[Federal Register Volume 61, Number 103 (Tuesday, May 28, 1996)]
[Proposed Rules]
[Pages 26474-26477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13194]



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ARMS CONTROL AND DISARMAMENT AGENCY

22 CFR Part 608


Service of Process; Production of Official Information; and 
Testimony of Agency Employees

AGENCY: Arms Control and Disarmament Agency.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposed rule would establish or clarify policies, 
practices, responsibilities, and procedures for the service of legal 
process upon the United States Arms Control and Disarmament Agency 
(ACDA, the Agency), its officers, and employees, and the production of 
official ACDA information and the appearance of and testimony by ACDA 
employees as witnesses in connection with litigation. This rule is 
procedural in nature. Although not required to do so, ACDA is 
voluntarily publishing this proposed rule for public comment.

DATES: To be considered, comments must be delivered by mail or in 
person to the address, or faxed to the telephone number, listed below 
by 5 p.m. on Friday, June 28, 1996.

ADDRESSES: Comments should be directed to the Office of the General 
Counsel, United States Arms Control and Disarmament Agency, Room 5636, 
320 21st Street, NW., Washington, DC 20451; FAX (202) 647-0024. 
Comments will be available for inspection between 8:15 a.m. and 5 p.m. 
at the same address.

FOR FURTHER INFORMATION CONTACT:
Frederick Smith, Jr., United States Arms Control and Disarmament 
Agency, Room 5635, 320 21st Street, NW., Washington, DC 20451, 
telephone (202) 647-3596.

SUPPLEMENTARY INFORMATION:

General

    This proposed rule is intended to clarify ACDA policies and 
practices regarding litigation-related matters such as service of 
process upon ACDA and ACDA employees and the production of official 
ACDA information in litigation. ACDA anticipates that the rule, which 
generally parallels similar rules which have been adopted by numerous 
other federal agencies, e.g., the Department of Defense (32 CFR part 
97), the Department of Justice (28 CFR part 16, subpart B), the Nuclear 
Regulatory Commission (10 CFR part 9, subpart D), and the Department of 
State (22 CFR part 172), will eliminate or reduce current ambiguities 
regarding such matters for ACDA employees, as well as for private 
attorneys and judicial and quasi-judicial authorities. ACDA also 
expects that this rule will promote consistency in ACDA's assertions of 
privileges and objections, thereby reducing the potential for both 
inappropriate, potentially harmful disclosure of protected information 
and wasteful or inappropriate allocation of Agency resources. Although 
the proposed rule is largely self-explanatory, we describe the general 
scheme of the several subsections below for the readers' ease of 
reference.

Service of Process

    Part 604.4(b) of 22 CFR establishes the Agency's Office of the 
General Counsel as the designated office for the presentation of 
administrative claims asserted under the Federal Tort Claims Act (and 
22 CFR parts 602, 603, and 605 set forth procedures for administrative 
requests under the Freedom of Information Act, under the Privacy Act, 
and for declassification of national security information, 
respectively). However, until the present, the Agency has not had 
regulations establishing the Agency's General Counsel, or his/her 
delegate, as the sole Agency recipient for litigation-related demands, 
whether civil or criminal, for official Agency information, whether 
oral or documentary, or for other Agency action. The proposed rule also 
clarifies that ACDA is not an agent for service on behalf of its 
employees in respect of purely private legal disputes and explains that 
ACDA will counsel its employees not to use their official positions to 
evade judicial process.

Compliance With Requests or Demands for Official Information

    Fundamentally, the compliance sections of the proposed rule 
(Sec. Sec. 608.4-608.9) simply track, to a greater or lesser degree, 
similar regulations which have been adopted by other federal agencies 
(such as those referenced above), and which derive from the Supreme 
Court's decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951). Thus, the principal thrust of the compliance provisions of the 
proposed rule is that Agency employees (including former employees) 
must obtain the approval of the Agency's General Counsel, or his/her 
delegate, prior to responding to any subpoenas or other litigation-
related requests or demands for Agency information, whether classified 
or unclassified, that relate to the employee's official duties.
    Significantly, Sec. 608.5 requires the party who initiates a 
litigation-related request or demand for official ACDA information to 
provide a written statement providing specified information concerning 
the nature and scope of the demand.
    Finally, the proposed rule describes factors, among others, that 
Agency officials shall take into consideration when considering 
litigation-related requests or demands and specifies that Agency 
employees may ordinarily not provide expert or official testimony on 
behalf of private parties.

Regulatory Flexibility Act Certification

    It is hereby certified that the proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
Accordingly, a regulatory flexibility analysis is not required.

Executive Order 12866 Determination

    ACDA has determined that the proposed rule is not a significant 
regulatory action within the meaning of section 3(f) of that Executive 
Order.

Paperwork Reduction Act Statement

    The proposed rule is not subject to the provisions of the Paperwork 
Reduction Act because it does not contain any information collection 
requirements within the meaning of that Act.

[[Page 26475]]

Unfunded Mandates Act Determination

    ACDA has determined that the proposed rule will not result in 
expenditures by state, local, and tribal governments, or by the private 
sector, of more than $100 million in any one year. Accordingly, a 
budgetary impact statement is not required under section 202 of the 
Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532.

List of Subjects in 22 CFR Part 608

    Administrative practice and procedure, Classified information, 
Government employees.

The Proposed Regulations

    ACDA proposes to amend title 22 of the Code of Federal Regulations 
by adding a new part 608 as follows:

PART 608--SERVICE OF PROCESS; PRODUCTION OR DISCLOSURE OF OFFICIAL 
INFORMATION IN RESPONSE TO COURT ORDERS, SUBPOENAS, NOTICES OF 
DEPOSITIONS, REQUESTS FOR ADMISSIONS, INTERROGATORIES, OR SIMILAR 
REQUESTS OR DEMANDS IN CONNECTION WITH FEDERAL OR STATE LITIGATION; 
EXPERT TESTIMONY

Sec.
608.1  Purpose and scope; definitions.
608.2  Service of summonses and complaints.
608.3  Service of subpoenas, court orders, and other demands or 
requests for official information or action.
608.4  Testimony and production of documents prohibited unless 
approved by appropriate Agency officials.
608.5  Procedure when testimony or production of documents is 
sought--general.
608.6  Procedure when response to demand is required prior to 
receiving instructions.
608.7  Procedure in the event of an adverse ruling.
608.8  Considerations in determining whether the Agency will comply 
with a demand or request.
608.9 Prohibition on providing expert or opinion testimony.

    Authority: 22 U.S.C. 2581(j).


Sec. 608.1  Purpose and scope; definitions.

    (a) This part sets forth the procedures to be followed with respect 
to:
    (1) Service of summonses and complaints or other requests or 
demands directed to the U.S. Arms Control and Disarmament Agency (ACDA, 
the Agency) or to any ACDA employee or former employee in connection 
with federal or state litigation arising out of or involving the 
performance of official activities of ACDA; and
    (2) The oral or written disclosure, in response to subpoenas, 
orders, or other requests or demands of federal or state judicial or 
quasi-judicial authority (collectively, ``demands''), whether civil or 
criminal in nature, or in response to requests for depositions, 
affidavits, admissions, responses to interrogatories, document 
production, or other litigation-related matters, pursuant to the 
Federal Rules of Civil Procedure, the Federal Rules of Criminal 
Procedure, or applicable state rules (collectively, ``requests''), of 
any material contained in the files of the Agency, any information 
relating to material contained in the files of the Agency, or any 
information acquired while the subject of the demand or request is or 
was an employee of the Agency as part of the performance of the 
person's duties or by virtue of the person's official status.
    (b) For purposes of this part, and except as ACDA may otherwise 
determine in a particular case, the term employee includes the Director 
of ACDA and former Directors of ACDA, and all employees and former 
employees of ACDA or other federal agencies who are or were appointed 
by, or subject to the supervision, jurisdiction, or control of the 
Director of ACDA, whether residing or working in the United States or 
abroad, including United States nationals, foreign nationals, and 
contractors.
    (c) For purposes of this part, the term litigation encompasses all 
pre-trial, trial, and post-trial stages of all judicial or 
administrative actions, hearings, investigations, or similar 
proceedings before courts, commissions, boards, or other judicial or 
quasi-judicial bodies or tribunals, whether criminal, civil, or 
administrative in nature. This part governs, inter alia, responses to 
discovery requests, depositions, and other pre-trial, trial, or post-
trial proceedings, as well as responses to informal requests by 
attorneys or others in situations involving litigation. However, this 
part shall not apply to any claims by ACDA employees (present or 
former), or applicants for Agency employment, for which jurisdiction 
resides with the U.S. Equal Employment Opportunity Commission; the U.S. 
Merit Systems Protection Board; the Office of Special Counsel; the 
Federal Labor Relations Authority; the Foreign Service Labor Relations 
Board; the Foreign Service Grievance Board; or a labor arbitrator 
operating under a collective bargaining agreement between ACDA and a 
labor organization representing ACDA employees; or their successor 
agencies or entities.
    (d) For purposes of this part, official information means all 
information of any kind, however stored, that is in the custody and 
control of ACDA, relates to information in the custody and control of 
ACDA, or was acquired by ACDA employees as part of their official 
duties or because of their official status within ACDA while such 
individuals are employed by or served on behalf of ACDA.
    (e) Nothing in this part affects disclosure of information under 
the Freedom of Information Act (FOIA), 5 U.S.C. 552, the Privacy Act, 5 
U.S.C. 552a, Executive Order 12356 on national security information (or 
successor order thereto), the Government in the Sunshine Act, 5 U.S.C. 
552b, the Agency's regulations in 22 CFR chapter VI implementing any of 
the foregoing, or pursuant to congressional subpoena. Nothing in this 
part otherwise permits disclosure of information by ACDA or its 
employees except as provided by statute or other applicable law.
    (f) This part is intended only to inform the public about ACDA 
procedures concerning the service of process and responses to demands 
or requests and is not intended to and does not create, and may not be 
relied upon to create, any right or benefit substantive or procedural, 
enforceable at law by a party against ACDA or the United States.
    (g) Nothing in this part affects:
    (1) The disclosure of information during the course of legal 
proceedings in foreign courts, commissions, boards, or other judicial 
or quasi-judicial bodies or tribunals; or
    (2) The rules and procedures, under applicable U.S. law and 
international conventions, governing diplomatic and consular immunity.
    (h) Nothing in this part affects the disclosure of official 
information to other foreign agencies or Department of Justice 
attorneys in connection with litigation conducted on behalf or in 
defense of the United States, its agencies, officers, and employees, or 
to federal, state, local, or foreign prosecuting and law enforcement 
authorities in conjunction with criminal law enforcement 
investigations, prosecutions, extradition, deportation or other 
proceedings.


Sec. 608.2  Service of summonses and complaints.

    (a) Only ACDA's General Counsel, or his/her delegate, is authorized 
to receive and accept summonses or complaints sought to be served upon 
ACDA or ACDA employees. All such documents should be delivered or 
addressed to

[[Page 26476]]

General Counsel, U.S. Arms Control and Disarmament Agency, 320 21st St. 
N.W., Room 5635, Washington, DC 20451. Pursuant to 42 U.S.C. 659(b) and 
5 U.S.C. 5520a(c)(1), this same officer has been designated 
specifically to accept service of process for the enforcement of the 
legal obligation to provide child support or to make alimony payments 
by employees of the Agency and to accept service of process for the 
enforcement of the legal obligation to pay monies owed for other than 
child support or alimony by employees of the Agency, respectively.
    (b) In the event any summons or complaint described in 
Sec. 608.1(a) is delivered to an employee of ACDA other than in the 
manner specified in this part, such attempted service shall be 
ineffective, and the recipient thereof shall either decline to accept 
the proffered service or return such document under cover of a written 
communication which directs the person attempting to make service to 
the procedures set forth in this part.
    (c) Except as otherwise provided in Secs. 608.2(d) and 608.3(c), 
ACDA is not an authorized agent for service of process with respect to 
civil litigation against ACDA employees purely in their personal, non-
official capacity. Copies of summonses or complaints directed to ACDA 
employees in connection with legal proceedings arising out of the 
performance of official duties may, however, be served upon ACDA's 
General Counsel, or his/her delegate.
    (d) Although ACDA is not an agent for the service of process upon 
its employees with respect to purely personal, non-official litigation, 
ACDA recognizes that its employees stationed overseas should not use 
their official positions to evade their personal obligations and will, 
therefore, counsel and encourage ACDA employees to accept service of 
process in appropriate cases, and will waive applicable diplomatic or 
consular privileges and immunities when ACDA determines that it is in 
the interest of the United States to do so. Pursuant to section 302 of 
Executive Order 12953, ACDA's General Counsel has been designated in 
Appendix B to 5 CFR part 581 as the official to assist in the service 
of legal process in civil actions pursuant to orders of State courts to 
establish paternity and to establish or to enforce support obligations 
by making ACDA employees available for service of process, regardless 
of the location of the employee's workplace.
    (e) Documents for which ACDA's General Counsel, or his/her 
delegate, accepts service in official capacity only shall be stamped 
``Service Accepted in Official Capacity Only.'' Acceptance of service 
shall not constitute an admission or waiver with respect to 
jurisdiction, propriety of service, improper venue, or any other 
defense in law or equity available under the laws or rules applicable 
for the service of process.


Sec. 608.3  Service of subpoenas, court orders, and other demands or 
requests for official information or action.

    (a) Except in cases in which ACDA is represented by legal counsel 
who have entered an appearance or otherwise given notice of their 
representation, only ACDA's General Counsel, or his/her delegate, is 
authorized to receive and accept subpoenas, or other demands or 
requests directed to ACDA or any component thereof, or its employees, 
or former employees, whether civil or criminal in nature, for:
    (1) Material, including documents, contained in the files of the 
Agency;
    (2) Information, including testimony, affidavits, declarations, 
admissions, response to interrogatories, or informal statements, 
relating to material contained in the files of the Agency or which any 
Agency employee acquired in the course and scope of the performance of 
official duties;
    (3) Garnishment or attachment of compensation of current or former 
employees; or
    (4) The performance or non-performance of any official ACDA duty.
    (b) In the event that any subpoena, demand, or request is sought to 
be delivered to an Agency employee (including former employee) other 
than in the manner prescribed in paragraph (a) of this section, such 
attempted service shall be ineffective. Such employee shall, after 
consultation with the office of the General Counsel, decline to accept 
the subpoena, demand, or request or shall return it to the serve under 
cover of a written communication referring to the procedures prescribed 
in this part.
    (c) Except as otherwise provided in this part, ACDA is not an agent 
for service or otherwise authorized to accept on behalf of its 
employees any subpoenas, show-cause orders, or similar compulsory 
process of federal or state courts, or requests from private 
individuals or attorneys, which are not related to the employees' 
official duties except upon the express, written authorization of the 
individual ACDA employee to whom such demand or request is directed.
    (d) Acceptance of such documents by ACDA's General Counsel, or his/
her delegate, does not constitute a waiver of any defenses that might 
otherwise exist with respect to service under the Federal Rules of 
Civil or Criminal Procedure or other applicable rules.


Sec. 608.4  Testimony and production of documents prohibited unless 
approved by appropriate Agency officials.

    (a) No employee of ACDA shall, in response to a demand or request 
in connection with any litigation, whether criminal or civil, provide 
oral or written testimony by deposition, declaration, affidavit, or 
otherwise concerning any information acquired wile such person is or 
was an employee of ACDA as part of the performance of that person's 
official duties or by virtue of that person's official status, unless 
authorized to do so by ACDA's General Counsel, or his/her delegate.
    (b) No ACDA employee shall, in response to a demand or request in 
connection with any litigation, produce for use at such proceedings any 
document or any other material acquired as part of the performance of 
that employee's duties or by virtue of that employee's official status, 
unless authorized to do so by ACDA's General Counsel, or his/her 
delegate.


Sec. 608.5  Produce when testimony or production of documents is 
sought--general.

    (a) if official ACDA information is sought, through testimony or 
otherwise, by a request or demand, the party seeking such release or 
testimony must (except as otherwise required by federal law or 
authorized by the Office of the General Counsel) set forth in writing 
and with as much specificity as possible, the nature and relevance of 
the official information sought. Where documents or other materials are 
sought, the party should identify the record or reasonably describe it 
in terms of date, format, subject matter, the office originating or 
receiving the record, and the names of all persons to whom the record 
is known to relate. Subject to Sec. 606.7, ACDA employees may produce, 
disclose, release, comment upon, or testify concerning only those 
matters that were specified in writing and properly approved by ACDA's 
General Counsel or his/her delegate. See United States ex re. Toughy v. 
Ragen, 340 U.S. 462 (1951). The Office of the General Counsel may waive 
this requirement in appropriate circumstances.
    (b) To the extent it deems necessary or appropriate, ACDA may also 
require from the party seeking such testimony or documents a plan of 
all reasonably foreseeable demands, including but not limited to the 
names of all employees and former employees from whom discovery will be 
sought, areas of

[[Page 26477]]

inquiry, expected duration of proceedings requiring oral testimony, and 
identification of potentially relevant documents.
    (c) ACDA's General Counsel, or his/her delegate, will notify the 
ACDA employee and such other persons as circumstances may warrant of 
the decision regarding compliance with the request or demand.
    (d) The Office of the General Counsel will consult with the 
Department of Justice regarding legal representation for ACDS employees 
in appropriate cases.


Sec. 608.6  Procedure when response to demand is required prior to 
receiving instructions.

    (a) If a response to a demand is required before ACDA's General 
Counsel, or his/her delegate, renders a decision, ACDA will request 
that either a Department of Justice attorney or an ACDA attorney 
designated for the purpose:
    (1) Appear with the employee upon whom the demand has been made;
    (2) Furnish the court or other authority with a copy of the 
regulations contained in this part;
    (3) Inform the court or other authority that the demand has been or 
is being, as the case may be, referred for the prompt consideration of 
ACDA's General Counsel, or his/her delegate; and
    (4) Respectfully request the court or authority to stay the demand 
pending receipt of the requested instructions.
    (b) In the event that an immediate demand for production or 
disclosure is made in circumstances that would preclude the proper 
designation or appearance of a Department of Justice or ACDA attorney 
on the employee's behalf, the employee shall respectfully request the 
demanding court or authority for a reasonable stay of proceedings for 
the purpose of obtaining instructions from ACDA.


Sec. 608.7  Procedure in the event of an adverse ruling.

    If the court or other judicial or quasi-judicial authority declines 
to stay the effect of the demand in response to a request made pursuant 
to Sec. 608.6, or if the court or other authority rules that the demand 
must be complied with irrespective of the Agency's instructions not to 
produce the material or disclose the information sought, the employee 
upon whom the demand has been made shall respectfully decline to comply 
with the demand, citing these regulations and United States ex rel. 
Touhy v. Ragen, 340 U.S. 463 (1951).


Sec. 608.8  Considerations in determining whether the Agency will 
comply with a demand or request.

    (a) In deciding whether to comply with a demand or request, ACDA 
officials and attorneys shall consider, among others:
    (1) Whether such compliance would be unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand arose;
    (2) Whether compliance is appropriate under the relevant 
substantive law concerning privilege or disclosure of information;
    (3) The public interest;
    (4) The need to conserve the time of ACDA employees for the conduct 
of official business;
    (5) The need to avoid spending the time and money of the United 
States for private purposes;
    (6) The need to maintain impartiality between private litigants in 
cases where a substantial government interest is not implicated;
    (7) Whether compliance would have an adverse effect on performance 
by ACDA of its mission and duties; and
    (8) The need to avoid involving ACDA in controversial issues not 
related to its mission.
    (b) Among those demands and requests in response to which 
compliance will not ordinarily be authorized are those with respect to 
which, inter alia, any of the following factors exist:
    (1) Compliance would violate a statute or a rule of procedure;
    (2) Compliance would violate a specific regulation or executive 
order;
    (3) Compliance would reveal information properly classified in the 
interest of national security;
    (4) Compliance would reveal confidential commercial or financial 
information or trade secrets without the owner's consent;
    (5) Compliance would reveal the internal deliberative processes of 
the Executive Branch; or
    (6) Compliance would potentially impede or prejudice an ongoing law 
enforcement investigation.


Sec. 608.9  Prohibition on providing expert or opinion testimony.

    (a) Except as provided in this section, and subject to 5 CFR 
2635.805, ACDA employees shall not provide opinion or expert testimony 
based upon information which they acquired in the scope and performance 
of their official ACDA duties, except on behalf of the United States or 
a party represented by the Department of Justice.
    (b) Upon a showing by the requester of exceptional need or unique 
circumstances and that the anticipated testimony will not be adverse to 
the interests of the United States, ACDA's General Counsel, or his/her 
delegate, may, consistent with 5 CFR 2635.805, in the exercise of 
discretion, grant special, written authorization for ACDA employees to 
appear and testify as expert witnesses at no expense to the United 
States.
    (c) If, despite the final determination of ACDA's General Counsel, 
a court of competent jurisdiction or other appropriate authority orders 
the appearance and expert or opinion testimony of an ACDA employee, 
such employee shall immediately inform the Office of General Counsel of 
such order. If the Office of the General Counsel determines that no 
further legal review of or challenge to the court's order will be made, 
the ACDA employee shall comply with the order. If so directed by the 
Office of the General Counsel, however, the employee shall respectfully 
decline to testify. See United States ex rel. Touhy v. Ragen, 340 U.S. 
462 (1951).

    Dated: May 17, 1996.
Mary Elizabeth Hoinkes,
General Counsel.
[FR Doc. 96-13194 Filed 5-24-96; 8:45 am]
BILLING CODE 6820-32-M