Testimony by MSPB Employees and Production of Official Records in Legal Proceedings, 17967-17970 [06-3373]
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17967
Rules and Regulations
Federal Register
Vol. 71, No. 68
Monday, April 10, 2006
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
See 70 FR 74714 for additional
information concerning this amendment
of 5 CFR, chapter II.
List of Subjects in 5 CFR Part 1216
Administrative practice and
procedure.
MERIT SYSTEMS PROTECTION
BOARD
For the reasons stated in the preamble,
the Merit Systems Protection Board
amends 5 CFR, chapter II by adding
parts 1211 through 1216 to read as set
forth below:
5 CFR Part 1216
PART 1211—[RESERVED]
Testimony by MSPB Employees and
Production of Official Records in Legal
Proceedings
PART 1212—[RESERVED]
AGENCY:
Merit Systems Protection
PART 1213—[RESERVED]
PART 1214—[RESERVED]
Board.
ACTION:
I
Final rule.
PART 1215—[RESERVED]
This final rule amends the
Merit Systems Protection Board’s
(MSPB or ‘‘the Board’’) rules by setting
out procedures that requesters have to
follow when making demands on or
requests to an MSPB employee to
produce official records or provide
testimony relating to official
information in connection with a legal
proceeding in which the MSPB is not a
party. The final rule establishes
procedures to respond to such demands
and requests in an orderly and
consistent manner. The final rule
promotes uniformity in decisions,
protects confidential information,
provides guidance to requesters, and
reduces the potential for both
inappropriate disclosures of official
information and wasteful allocation of
agency resources.
DATES: This final rule is effective April
10, 2006.
FOR FURTHER INFORMATION CONTACT:
Bentley M. Roberts, Clerk of the Board,
U.S. Merit Systems Protection Board,
1615 M Street, NW., Washington, DC
20419; (202) 653–7200; fax: (202) 653–
7130; or e-mail: mspb&mspb.gov.
SUPPLEMENTARY INFORMATION: On
December 16, 2005, the Board published
a proposed rule with request for
comments that proposed to amend 5
CFR, chapter II. (70 FR 74714). The
Board received no comments during the
60 days allowed for public comment
and this final rule makes no changes to
the previously published proposed rule.
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SUMMARY:
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PART 1216—TESTIMONY BY MSPB
EMPLOYEES RELATING TO OFFICIAL
INFORMATION AND PRODUCTION OF
OFFICIAL RECORDS IN LEGAL
PROCEEDINGS
Subpart A—General Provisions
Sec.
1216.101
1216.102
1216.103
Scope and purpose.
Applicability.
Definitions.
Subpart B—Demands or Requests for
Testimony and Production of Documents
1216.201 General prohibition.
1216.202 Factors the MSPB will consider.
1216.203 Filing requirements for litigants
seeking documents or testimony.
1216.204 Service of requests or demands.
1216.205 Processing requests or demands.
1216.206 Final determination.
1216.207 Restrictions that apply to
testimony.
1216.208 Restrictions that apply to released
records.
1216.209 Procedure when a decision is not
made prior to the time a response is
required.
1216.210 Procedure in the event of an
adverse ruling.
Subpart C—Schedule of Fees
1216.301
Fees.
Subpart D—Penalties.
1216.401
Penalties.
Authority: 5 U.S.C. 1204(h); 31 U.S.C.
9701.
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Subpart A—General Provisions
§ 1216.101
Scope and purpose.
(a) This part establishes policy,
assigns responsibilities and prescribes
procedures with respect to:
(1) The production or disclosure of
official information or records by MSPB
employees, advisors, and consultants;
and
(2) The testimony of current and
former MSPB employees, advisors, and
consultants relating to official
information, official duties, or the
MSPB’s record, in connection with
federal or state litigation in which the
MSPB is not a party.
(b) The MSPB intends this part to:
(1) Conserve the time of MSPB
employees for conducting official
business;
(2) Minimize the involvement of
MSPB employees in issues unrelated to
MSPB’s mission;
(3) Maintain the impartiality of MSPB
employees in disputes between private
litigants; and
(4) Protect sensitive, confidential
information and the deliberative
processes of the MSPB.
(c) In providing for these
requirements, the MSPB does not waive
the sovereign immunity of the United
States.
(d) This part provides guidance for
the internal operations of MSPB. It does
not create any right or benefit,
substantive or procedural, that a party
may rely upon in any legal proceeding
against the United States.
§ 1216.102
Applicability.
This part applies to demands and
requests to current and former
employees, advisors, and consultants for
factual or expert testimony relating to
official information or official duties or
for production of official records or
information, in legal proceedings in
which the MSPB is not a named party.
This part does not apply to:
(a) Demands upon or requests for an
MSPB employee to testify as to facts or
events that are unrelated to his or her
official duties or that are unrelated to
the functions of the MSPB;
(b) Demands upon or requests for a
former MSPB employee to testify as to
matters in which the former employee
was not directly or materially involved
while at the MSPB;
(c) Requests for the release of records
under the Freedom of Information Act,
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answers to interrogatories, affidavits,
declarations, interviews, and statements
made by an individual in connection
with a legal proceeding.
§ 1216.103
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5 U.S.C. 552, or the Privacy Act, 5
U.S.C. 552a; or
(d) Congressional demands and
requests for testimony, records or
information.
Subpart B—Demands or Requests for
Testimony and Production of
Documents
Definitions.
The following definitions apply to
this part.
(a) Demand means an order,
subpoena, or other command of a court
or other competent authority for the
production, disclosure, or release of
records or for the appearance and
testimony of an MSPB employee in a
legal proceeding.
(b) General Counsel means the
General Counsel of the MSPB or a
person to whom the General Counsel
has delegated authority under this part.
(c) Legal Proceeding means any matter
before a court of law, administrative
board or tribunal, commission,
administrative law judge, hearing officer
or other body that conducts a legal or
administrative proceeding. Legal
proceeding includes all phases of
litigation.
(d) MSPB means the Merit Systems
Protection Board.
(e) MSPB employee or employee
means:
(1)(i) Any current or former employee
of the MSPB;
(ii) Any other individual hired
through contractual agreement by or on
behalf of the MSPB or who has
performed or is performing services
under such an agreement for the MSPB;
and
(iii) Any individual who served or is
serving in any consulting or advisory
capacity to the MSPB, whether formal or
informal.
(2) This definition does not include
persons who are no longer employed by
the MSPB and who agree to testify about
general matters, matters available to the
public, or matters with which they had
no specific involvement or
responsibility during their employment
with the MSPB.
(f) Records or official records and
information all information in the
custody and control of the MSPB,
relating to information in the custody
and control of the MSPB, or acquired by
an MSPB employee in the performance
of his or her official duties or because
of his or her official status, while the
individual was employee by or on
behalf of the MSPB.
(g) Request means any informal
request, by whatever method, for the
production of records and information
or for testimony which has not been
ordered by a court of other competent
authority.
(h) Testimony means any written or
oral statements, including depositions,
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§ 1216.201
General prohibition.
No employee may produce official
records and information or provide any
testimony relating to official
information in response to a demand or
request without the prior, written
approval of the General Counsel.
§ 1216.202
consider.
Factors the MSPB will
The General Counsel, in his or her
sole discretion, may grant an employee
permission to testify on matters relating
to official information, or produce
official records and information, in
response to a demand or request.
Among the relevant factors that the
General Counsel may consider in
making this decision are whether:
(a) The purposes of this part are met;
(b) Allowing such testimony or
production of records would be
necessary to prevent a miscarriage of
justice;
(c) Allowing such testimony or
production of records would assist or
hinder the MSPB in performing its
statutory duties;
(d) Allowing such testimony or
production of records would be in the
best interest of the MSPB or the United
States;
(e) The records or testimony can be
obtained from other sources;
(f) The demand or request is unduly
burdensome or otherwise inappropriate
under the applicable rules of discovery
or the rule of procedure governing the
case or mater in which the demand or
request arose;
(g) Disclosure would violate a statute,
Executive Order or regulation;
(h) Disclosure would reveal
confidential, sensitive, or privileged
information, trade secrets or similar,
confidential or financial information,
otherwise protected information, or
information which would otherwise be
inappropriate for release;
(i) Disclosure would impede or
interfere with an ongoing law
enforcement investigation or
proceeding, or compromise
constitutional rights or national security
interests;
(j) Disclosure would result in the
MSPB appearing to favor one litigant
over another;
(k) Whether the request was served
before the demand;
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(l) A substantial Government interest
is implicated;
(m) The demand or request is within
the authority of the party making it; and
(n) The demand or request is
sufficiently specific to be answered.
§ 12.16.203 Filing requirements for
litigants seeking documents or testimony.
A litigant must comply with the
following requirements when filing a
request for official records and
information or testimony under this
part. A request should be filed before a
demand.
(a) The request must be in writing and
must be submitted to the Clerk of the
Board who will immediately forward
the request to the General Counsel.
(b) The written request must contain
the following information:
(1) The caption of the legal
proceeding, docket number, and name
and address of the court or other
authority involved;
(2) A copy of the complaint or
equivalent document setting forth the
assertions in the case and any other
pleading or document necessary to
show relevance;
(3) A list of categories of records
sought, a detailed description of how
the information sought is relevant to the
issues in the legal proceeding, and a
specific description of the substance of
the testimony or records sought;
(4) A statement as to how the need for
the information outweighs any need to
maintain the confidentiality of the
information and outweighs the burden
on the MSPB to produce the records or
provide testimony;
(5) A statement indicating that the
information sought is not available from
another source, from other persons or
entities, or from the testimony of
someone other than an MSPB employee,
such as a retained expert;
(6) If testimony is requested, the
intended use of the testimony, and a
showing that no document could be
provided and used in lieu of testimony;
(7) A description of all prior
decisions, orders, or pending motions in
the case that bear upon the relevance of
the requested records or testimony;
(8) The name, address, and telephone
number of counsel to each party in the
case; and
(9) An estimate of the amount of time
that the requester and other parties will
require for each MSPB employee for
time spent by the employee to prepare
for testimony, in travel, and for
attendance in the legal proceeding.
(c) The MSPB reserves the right to
require additional information to
complete the request where appropriate.
(d) The request should be submitted
at least 30 days before the date that
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records or testimony is required.
Requests submitted in less than 30 days
before records or testimony is required
must be accompanied by a written
explanation stating the reasons for the
late request and the reasons for
expedited processing.
(e) Failure to cooperate in good faith
to enable the General Counsel to make
an informed decision may serve as the
basis for a determination not to comply
with the request.
(f) The request should state that the
requester will provide a copy of the
MSPB employee’s statement free of
charge and that the requester will
permit the MSPB to have a
representative present during the
employee’s testimony.
§ 1216.204
demands.
§ 1216.207 Restrictions that apply to
testimony.
Service of requests or
Requests or demands for official
records or information or testimony
under this subpart must be served on
the Clerk of the Board, U.S. Merit
Systems Protection Board, 1615 M
Street, NW., Washington, DC 20419–
0002 by mail, fax, or e-mail and clearly
marked ‘‘Part 1216 Request for
Testimony or Official Records in Legal
Proceedings.’’ The request or demand
will be immediately forwarded to the
General Counsel for processing.
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§ 1216.205
demands.
Processing requests or
(a) After receiving service of a request
or demand for testimony, the General
Counsel will review the request and, in
accordance with the provisions of this
subpart, determine whether, or under
what conditions, to authorize the
employee to testify on matters relating
to official information and/or produce
official records and information.
(b) Absent exigent circumstances, the
MSPB will issue a determination within
30 days from the date the request is
received.
(c) The General Counsel may grant a
waiver of any procedure described by
this subpart where a waiver is
considered necessary to promote a
significant interest of the MSPB or the
United States, or for other good cause.
(d) Certification (authentication) of
copies of records. The MSPB may certify
that records are true copies in order to
facilitate their use as evidence. If a
requester seeks certification, the
requester must request certified copies
from the MSPB at least 30 days before
the date they will be needed. The
request should be sent to the Clerk of
the Board.
§ 1216.206
Final determination.
The General Counsel makes the final
determination on demands to requests
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to employees for production of official
records and information or testimony in
litigation in which the MSPB is not a
party. All final determinations are
within the sole discretion of the General
Counsel. The General Counsel will
notify the requester and, when
appropriate, the court of other
competent authority of the final
determination, the reasons for the grant
or denial of the request, and any
conditions that the General Counsel
may impose on the release of records or
information, or on the testimony of an
MSPB employee. The General Counsel’s
decision exhausts administrative
remedies for discovery of the
information.
(a) The General Counsel may impose
conditions or restrictions on the
testimony of MSPB employees
including, for example:
(1) Limiting the areas of testimony;
(2) Requiring the requester and other
parties to the legal proceeding to agree
that the transcript of the testimony will
be kept under seal;
(3) Requiring that the transcript will
be used or made available only in the
particular legal proceeding for which
testimony was requested. The General
Counsel may also require a copy of the
transcript of testimony at the requester’s
expense.
(b) The MSPB may offer the
employee’s written declaration in lieu of
testimony.
(c) If authorized to testify pursuant to
this part, an employee may testify as to
facts within his or her personal
knowledge, but, unless specifically
authorized to do so by the General
Counsel, the employee shall not;
(1) Disclose confidential or privileged
information; or
(2) For a current MSPB employee,
testify as an expert or opinion witness
with regard to any matter arising out of
the employee’s official duties or the
functions of the MSPB unless testimony
is being given on behalf of the United
States (see also 5 CFR 2635.805).
(d) The scheduling of an employee’s
testimony, including the amount of time
that the employee will be made
available for testimony, will be subject
to the MSPB’s approval.
§ 1216.208 Restrictions that apply to
released records.
(a) The General Counsel may impose
conditions or restrictions on the release
of official records and information,
including the requirement that parties to
the proceeding obtain a protective order
or execute a confidentiality agreement
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17969
to limit access and any further
disclosure. The terms of the protective
order or of a confidentiality agreement
must be acceptable to the General
Counsel. In cases where protective
orders or confidentiality agreements
have already been executed, the MSPB
may condition the release of official
records and information on an
amendment to the existing protective
order or confidentiality agreement.
(b) If the General Counsel so
determines, original MSPB records may
be presented for examination in
response to a request, but they may not
be presented as evidence or otherwise
used in a manner by which they could
lose their identity as official MSPB
records, nor may they be marked or
altered. In lieu of the original records,
certified copies may be presented for
evidentiary purposes.
§ 1216.209 Procedure when a decision is
not made prior to the time a response is
required.
If a response to a demand or request
is required before the General Counsel
can make the determination referred to
in § 1216.206, the General Counsel,
when necessary, will provide the court
or other competent authority with a
copy of this part, inform the court or
other competent authority that the
request is being reviewed, provide an
estimate as to when a decision will be
made, and seek a stay of the demand or
request pending a final determination.
§ 1216.210 Procedure in the event of an
adverse ruling.
If the court or other competent
authority fails to stay a demand or
request, the employee upon whom the
demand or request is made, unless
otherwise advised by the General
Counsel, will appear, if necessary, at the
stated time and place, produce a copy
of this part, state that the employee has
been advised by counsel not to provide
the requested testimony or produce
documents, and respectfully decline to
comply with the demand or request,
citing United States ex rel. Touchy v.
Ragen, 340 U.S. 462 (1951).
Subpart C—Schedule of Fees
§ 1216.301
Fees.
(a) Generally. The General Counsel
may condition the production of records
or appearance for testimony upon
advance payment of a reasonable
estimate of the costs to the MSPB.
(b) Fees for records. Fees for
producing records will include fees for
searching, reviewing, and duplicating
records, costs of attorney time spent in
reviewing the request, and expenses
generated by materials and equipment
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used to search for, produce, and copy
the responsive information. Costs for
employee time will be calculated on the
basis of the hourly pay of the employee
(including all pay, allowances, and
benefits). Fees for duplication will be
the same as those charged by the MSPB
in its Freedom of Information Act
regulations at 5 CFR part 1204.
(c) Witness fees. Fees for attendance
by a witness will include fees, expenses,
and allowances prescribed by the
court’s rules. If no such fees are
prescribed, witness fees will be
determined based upon the rule of the
Federal district closest to the location
where the witness will appear and on 28
U.S.C. 1821, as applicable. Such fees
will include cost of time spent by the
witness to prepare for testimony, in
travel and for attendance in the legal
proceeding, plus travel costs.
(d) Payment of fees. A requester must
pay witness fees for current MSPB
employees and any record certification
fees by submitting to the Clerk of the
Board a check or money order for the
appropriate amount made payable to the
Treasury of the United States. In the
case of testimony of former MSPB
employees, the request must pay
applicable fees directly to the former
MSPB employee in accordance with 28
U.S.C. 1821 or other applicable statutes.
(e) Waiver or reduction of fees. The
General Counsel, in his or her sole
discretion, may, upon a showing of
reasonable cause, waive or reduce any
fees in connection with the testimony,
production, or certification of records.
(f) De minimis fees. Fees will not be
assessed if the total charge would be
$10.00 or less.
Subpart D—Penalties
§ 1216.401
Penalties.
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(a) An employee who discloses
official records or information or gives
testimony relating to official
information, except as expressly
authorized by the MSPB, or as ordered
by a Federal court after the MSPB has
had the opportunity to be heard, may
face the penalties provided in 18 U.S.C.
641 and other applicable laws.
Additionally, former MSPB employees
are subject to the restrictions and
penalties of 18 U.S.C. 207 and 216.
(b) A current MSPB employee who
testifies or produces official records and
information in violation of this part
shall be subject to disciplinary action.
Dated: April 4, 2006.
Bentley M. Roberts, Jr.
Clerk of the Board.
[FR Doc. 06–3373 Filed 4–7–06; 8:45 am]
BILLING CODE 7400–01–M
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 916 and 917
[Docket No. FV06–916/917–1 IFR]
Nectarines and Peaches Grown in
California; Revision of Handling
Requirements for Fresh Nectarines
and Peaches
Agricultural Marketing Service,
USDA.
ACTION: Interim final rule with request
for comments.
AGENCY:
SUMMARY: This rule revises the handling
requirements for California nectarines
and peaches by modifying the grade,
size, maturity, and pack requirements
for fresh shipments of these fruits,
beginning with 2006 season shipments.
This rule also authorizes continued
shipments of ‘‘CA Utility’’ quality
nectarines and peaches, establishes
weight-count standards for Peento type
nectarines in volume-filled containers,
and eliminates the varietal container
marking requirements. The marketing
orders regulate the handling of
nectarines and peaches grown in
California and are administered locally
by the Nectarine Administrative and
Peach Commodity Committees
(committees). This rule will enable
handlers to continue to ship fresh
nectarines and peaches in a manner that
meets consumer needs, increases
returns to producers and handlers, and
reflects current industry practices.
DATES: Effective April 11, 2006.
Comments received by June 9, 2006 will
be considered prior to issuance of any
final rule.
ADDRESSES: Interested persons are
invited to submit written comments
concerning this rule. Comments must be
sent to the Docket Clerk, Fruit and
Vegetable Programs, AMS, USDA, 1400
Independence Avenue, SW., STOP
0237, Washington, DC 20250–0237; Fax:
(202) 720–8938, or E-mail:
moab.docketclerk@usda.gov, or Internet:
https://www.regulations.gov. All
comments should reference the docket
number and the date and page number
of this issue of the Federal Register and
will be made available for public
inspection at the Office of the Docket
Clerk during regular business hours, or
can be viewed at: https://
www.ams.usda.gov/fv/moab.html.
FOR FURTHER INFORMATION CONTACT:
Laurel May, Marketing Specialist,
California Marketing Field Office,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
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AMS, USDA, 2202 Monterey Street,
Suite 102B, Fresno, California, 93721;
Telephone (559) 487–5901, Fax: (559)
487–5906; or George Kelhart, Technical
Advisor, Marketing Order
Administration Branch, Fruit and
Vegetable Programs, AMS, USDA, 1400
Independence Avenue, SW., STOP
0237, Washington, DC 20250–0237;
Telephone: (202) 720–2491, Fax: (202)
720–8938.
Small businesses may request
information on complying with this
regulation by contacting Jay Guerber,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington,
DC 20250–0237; Telephone: (202) 720–
2491, Fax: (202) 720–8938, or E-mail:
Jay.Guerber@usda.gov.
This rule
is issued under Marketing Agreement
Nos. 124 and 85, and Marketing Order
Nos. 916 and 917 (7 CFR parts 916 and
917) regulating the handling of
nectarines and peaches grown in
California, respectively, hereinafter
referred to as the ‘‘orders.’’ The orders
are effective under the Agricultural
Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601–674), hereinafter
referred to as the ‘‘Act.’’
The Department of Agriculture
(USDA) is issuing this rule in
conformance with Executive Order
12866.
This rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. This rule is not intended to
have retroactive effect. This rule will
not preempt any State or local laws,
regulations, or policies, unless they
present an irreconcilable conflict with
this rule.
The Act provides that administrative
proceedings must be exhausted before
parties may file suit in court. Under
section 608c(15)(A) of the Act, any
handler subject to an order may file
with USDA a petition stating that the
order, any provision of the order, or any
obligation imposed in connection with
the order is not in accordance with law
and request a modification of the order
or to be exempted therefrom. A handler
is afforded the opportunity for a hearing
on the petition. After the hearing, USDA
would rule on the petition. The Act
provides that the district court of the
United States in any district in which
the handler is an inhabitant, or has his
or her principal place of business, has
jurisdiction to review USDA’s ruling on
the petition, provided an action is filed
not later than 20 days after the date of
the entry of the ruling.
SUPPLEMENTARY INFORMATION:
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]]>Agencies
[Federal Register Volume 71, Number 68 (Monday, April 10, 2006)]
[Rules and Regulations]
[Pages 17967-17970]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3373]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 71, No. 68 / Monday, April 10, 2006 / Rules
and Regulations
[[Page 17967]]
MERIT SYSTEMS PROTECTION BOARD
5 CFR Part 1216
Testimony by MSPB Employees and Production of Official Records in
Legal Proceedings
AGENCY: Merit Systems Protection Board.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the Merit Systems Protection Board's
(MSPB or ``the Board'') rules by setting out procedures that requesters
have to follow when making demands on or requests to an MSPB employee
to produce official records or provide testimony relating to official
information in connection with a legal proceeding in which the MSPB is
not a party. The final rule establishes procedures to respond to such
demands and requests in an orderly and consistent manner. The final
rule promotes uniformity in decisions, protects confidential
information, provides guidance to requesters, and reduces the potential
for both inappropriate disclosures of official information and wasteful
allocation of agency resources.
DATES: This final rule is effective April 10, 2006.
FOR FURTHER INFORMATION CONTACT: Bentley M. Roberts, Clerk of the
Board, U.S. Merit Systems Protection Board, 1615 M Street, NW.,
Washington, DC 20419; (202) 653-7200; fax: (202) 653-7130; or e-mail:
mspb&mspb.gov.
SUPPLEMENTARY INFORMATION: On December 16, 2005, the Board published a
proposed rule with request for comments that proposed to amend 5 CFR,
chapter II. (70 FR 74714). The Board received no comments during the 60
days allowed for public comment and this final rule makes no changes to
the previously published proposed rule. See 70 FR 74714 for additional
information concerning this amendment of 5 CFR, chapter II.
List of Subjects in 5 CFR Part 1216
Administrative practice and procedure.
0
For the reasons stated in the preamble, the Merit Systems Protection
Board amends 5 CFR, chapter II by adding parts 1211 through 1216 to
read as set forth below:
PART 1211--[RESERVED]
PART 1212--[RESERVED]
PART 1213--[RESERVED]
PART 1214--[RESERVED]
PART 1215--[RESERVED]
PART 1216--TESTIMONY BY MSPB EMPLOYEES RELATING TO OFFICIAL
INFORMATION AND PRODUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS
Subpart A--General Provisions
Sec.
1216.101 Scope and purpose.
1216.102 Applicability.
1216.103 Definitions.
Subpart B--Demands or Requests for Testimony and Production of
Documents
1216.201 General prohibition.
1216.202 Factors the MSPB will consider.
1216.203 Filing requirements for litigants seeking documents or
testimony.
1216.204 Service of requests or demands.
1216.205 Processing requests or demands.
1216.206 Final determination.
1216.207 Restrictions that apply to testimony.
1216.208 Restrictions that apply to released records.
1216.209 Procedure when a decision is not made prior to the time a
response is required.
1216.210 Procedure in the event of an adverse ruling.
Subpart C--Schedule of Fees
1216.301 Fees.
Subpart D--Penalties.
1216.401 Penalties.
Authority: 5 U.S.C. 1204(h); 31 U.S.C. 9701.
Subpart A--General Provisions
Sec. 1216.101 Scope and purpose.
(a) This part establishes policy, assigns responsibilities and
prescribes procedures with respect to:
(1) The production or disclosure of official information or records
by MSPB employees, advisors, and consultants; and
(2) The testimony of current and former MSPB employees, advisors,
and consultants relating to official information, official duties, or
the MSPB's record, in connection with federal or state litigation in
which the MSPB is not a party.
(b) The MSPB intends this part to:
(1) Conserve the time of MSPB employees for conducting official
business;
(2) Minimize the involvement of MSPB employees in issues unrelated
to MSPB's mission;
(3) Maintain the impartiality of MSPB employees in disputes between
private litigants; and
(4) Protect sensitive, confidential information and the
deliberative processes of the MSPB.
(c) In providing for these requirements, the MSPB does not waive
the sovereign immunity of the United States.
(d) This part provides guidance for the internal operations of
MSPB. It does not create any right or benefit, substantive or
procedural, that a party may rely upon in any legal proceeding against
the United States.
Sec. 1216.102 Applicability.
This part applies to demands and requests to current and former
employees, advisors, and consultants for factual or expert testimony
relating to official information or official duties or for production
of official records or information, in legal proceedings in which the
MSPB is not a named party. This part does not apply to:
(a) Demands upon or requests for an MSPB employee to testify as to
facts or events that are unrelated to his or her official duties or
that are unrelated to the functions of the MSPB;
(b) Demands upon or requests for a former MSPB employee to testify
as to matters in which the former employee was not directly or
materially involved while at the MSPB;
(c) Requests for the release of records under the Freedom of
Information Act,
[[Page 17968]]
5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; or
(d) Congressional demands and requests for testimony, records or
information.
Sec. 1216.103 Definitions.
The following definitions apply to this part.
(a) Demand means an order, subpoena, or other command of a court or
other competent authority for the production, disclosure, or release of
records or for the appearance and testimony of an MSPB employee in a
legal proceeding.
(b) General Counsel means the General Counsel of the MSPB or a
person to whom the General Counsel has delegated authority under this
part.
(c) Legal Proceeding means any matter before a court of law,
administrative board or tribunal, commission, administrative law judge,
hearing officer or other body that conducts a legal or administrative
proceeding. Legal proceeding includes all phases of litigation.
(d) MSPB means the Merit Systems Protection Board.
(e) MSPB employee or employee means:
(1)(i) Any current or former employee of the MSPB;
(ii) Any other individual hired through contractual agreement by or
on behalf of the MSPB or who has performed or is performing services
under such an agreement for the MSPB; and
(iii) Any individual who served or is serving in any consulting or
advisory capacity to the MSPB, whether formal or informal.
(2) This definition does not include persons who are no longer
employed by the MSPB and who agree to testify about general matters,
matters available to the public, or matters with which they had no
specific involvement or responsibility during their employment with the
MSPB.
(f) Records or official records and information all information in
the custody and control of the MSPB, relating to information in the
custody and control of the MSPB, or acquired by an MSPB employee in the
performance of his or her official duties or because of his or her
official status, while the individual was employee by or on behalf of
the MSPB.
(g) Request means any informal request, by whatever method, for the
production of records and information or for testimony which has not
been ordered by a court of other competent authority.
(h) Testimony means any written or oral statements, including
depositions, answers to interrogatories, affidavits, declarations,
interviews, and statements made by an individual in connection with a
legal proceeding.
Subpart B--Demands or Requests for Testimony and Production of
Documents
Sec. 1216.201 General prohibition.
No employee may produce official records and information or
provide any testimony relating to official information in response to a
demand or request without the prior, written approval of the General
Counsel.
Sec. 1216.202 Factors the MSPB will consider.
The General Counsel, in his or her sole discretion, may grant an
employee permission to testify on matters relating to official
information, or produce official records and information, in response
to a demand or request. Among the relevant factors that the General
Counsel may consider in making this decision are whether:
(a) The purposes of this part are met;
(b) Allowing such testimony or production of records would be
necessary to prevent a miscarriage of justice;
(c) Allowing such testimony or production of records would assist
or hinder the MSPB in performing its statutory duties;
(d) Allowing such testimony or production of records would be in
the best interest of the MSPB or the United States;
(e) The records or testimony can be obtained from other sources;
(f) The demand or request is unduly burdensome or otherwise
inappropriate under the applicable rules of discovery or the rule of
procedure governing the case or mater in which the demand or request
arose;
(g) Disclosure would violate a statute, Executive Order or
regulation;
(h) Disclosure would reveal confidential, sensitive, or privileged
information, trade secrets or similar, confidential or financial
information, otherwise protected information, or information which
would otherwise be inappropriate for release;
(i) Disclosure would impede or interfere with an ongoing law
enforcement investigation or proceeding, or compromise constitutional
rights or national security interests;
(j) Disclosure would result in the MSPB appearing to favor one
litigant over another;
(k) Whether the request was served before the demand;
(l) A substantial Government interest is implicated;
(m) The demand or request is within the authority of the party
making it; and
(n) The demand or request is sufficiently specific to be answered.
Sec. 12.16.203 Filing requirements for litigants seeking documents or
testimony.
A litigant must comply with the following requirements when filing
a request for official records and information or testimony under this
part. A request should be filed before a demand.
(a) The request must be in writing and must be submitted to the
Clerk of the Board who will immediately forward the request to the
General Counsel.
(b) The written request must contain the following information:
(1) The caption of the legal proceeding, docket number, and name
and address of the court or other authority involved;
(2) A copy of the complaint or equivalent document setting forth
the assertions in the case and any other pleading or document necessary
to show relevance;
(3) A list of categories of records sought, a detailed description
of how the information sought is relevant to the issues in the legal
proceeding, and a specific description of the substance of the
testimony or records sought;
(4) A statement as to how the need for the information outweighs
any need to maintain the confidentiality of the information and
outweighs the burden on the MSPB to produce the records or provide
testimony;
(5) A statement indicating that the information sought is not
available from another source, from other persons or entities, or from
the testimony of someone other than an MSPB employee, such as a
retained expert;
(6) If testimony is requested, the intended use of the testimony,
and a showing that no document could be provided and used in lieu of
testimony;
(7) A description of all prior decisions, orders, or pending
motions in the case that bear upon the relevance of the requested
records or testimony;
(8) The name, address, and telephone number of counsel to each
party in the case; and
(9) An estimate of the amount of time that the requester and other
parties will require for each MSPB employee for time spent by the
employee to prepare for testimony, in travel, and for attendance in the
legal proceeding.
(c) The MSPB reserves the right to require additional information
to complete the request where appropriate.
(d) The request should be submitted at least 30 days before the
date that
[[Page 17969]]
records or testimony is required. Requests submitted in less than 30
days before records or testimony is required must be accompanied by a
written explanation stating the reasons for the late request and the
reasons for expedited processing.
(e) Failure to cooperate in good faith to enable the General
Counsel to make an informed decision may serve as the basis for a
determination not to comply with the request.
(f) The request should state that the requester will provide a copy
of the MSPB employee's statement free of charge and that the requester
will permit the MSPB to have a representative present during the
employee's testimony.
Sec. 1216.204 Service of requests or demands.
Requests or demands for official records or information or
testimony under this subpart must be served on the Clerk of the Board,
U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC
20419-0002 by mail, fax, or e-mail and clearly marked ``Part 1216
Request for Testimony or Official Records in Legal Proceedings.'' The
request or demand will be immediately forwarded to the General Counsel
for processing.
Sec. 1216.205 Processing requests or demands.
(a) After receiving service of a request or demand for testimony,
the General Counsel will review the request and, in accordance with the
provisions of this subpart, determine whether, or under what
conditions, to authorize the employee to testify on matters relating to
official information and/or produce official records and information.
(b) Absent exigent circumstances, the MSPB will issue a
determination within 30 days from the date the request is received.
(c) The General Counsel may grant a waiver of any procedure
described by this subpart where a waiver is considered necessary to
promote a significant interest of the MSPB or the United States, or for
other good cause.
(d) Certification (authentication) of copies of records. The MSPB
may certify that records are true copies in order to facilitate their
use as evidence. If a requester seeks certification, the requester must
request certified copies from the MSPB at least 30 days before the date
they will be needed. The request should be sent to the Clerk of the
Board.
Sec. 1216.206 Final determination.
The General Counsel makes the final determination on demands to
requests to employees for production of official records and
information or testimony in litigation in which the MSPB is not a
party. All final determinations are within the sole discretion of the
General Counsel. The General Counsel will notify the requester and,
when appropriate, the court of other competent authority of the final
determination, the reasons for the grant or denial of the request, and
any conditions that the General Counsel may impose on the release of
records or information, or on the testimony of an MSPB employee. The
General Counsel's decision exhausts administrative remedies for
discovery of the information.
Sec. 1216.207 Restrictions that apply to testimony.
(a) The General Counsel may impose conditions or restrictions on
the testimony of MSPB employees including, for example:
(1) Limiting the areas of testimony;
(2) Requiring the requester and other parties to the legal
proceeding to agree that the transcript of the testimony will be kept
under seal;
(3) Requiring that the transcript will be used or made available
only in the particular legal proceeding for which testimony was
requested. The General Counsel may also require a copy of the
transcript of testimony at the requester's expense.
(b) The MSPB may offer the employee's written declaration in lieu
of testimony.
(c) If authorized to testify pursuant to this part, an employee may
testify as to facts within his or her personal knowledge, but, unless
specifically authorized to do so by the General Counsel, the employee
shall not;
(1) Disclose confidential or privileged information; or
(2) For a current MSPB employee, testify as an expert or opinion
witness with regard to any matter arising out of the employee's
official duties or the functions of the MSPB unless testimony is being
given on behalf of the United States (see also 5 CFR 2635.805).
(d) The scheduling of an employee's testimony, including the amount
of time that the employee will be made available for testimony, will be
subject to the MSPB's approval.
Sec. 1216.208 Restrictions that apply to released records.
(a) The General Counsel may impose conditions or restrictions on
the release of official records and information, including the
requirement that parties to the proceeding obtain a protective order or
execute a confidentiality agreement to limit access and any further
disclosure. The terms of the protective order or of a confidentiality
agreement must be acceptable to the General Counsel. In cases where
protective orders or confidentiality agreements have already been
executed, the MSPB may condition the release of official records and
information on an amendment to the existing protective order or
confidentiality agreement.
(b) If the General Counsel so determines, original MSPB records may
be presented for examination in response to a request, but they may not
be presented as evidence or otherwise used in a manner by which they
could lose their identity as official MSPB records, nor may they be
marked or altered. In lieu of the original records, certified copies
may be presented for evidentiary purposes.
Sec. 1216.209 Procedure when a decision is not made prior to the time
a response is required.
If a response to a demand or request is required before the General
Counsel can make the determination referred to in Sec. 1216.206, the
General Counsel, when necessary, will provide the court or other
competent authority with a copy of this part, inform the court or other
competent authority that the request is being reviewed, provide an
estimate as to when a decision will be made, and seek a stay of the
demand or request pending a final determination.
Sec. 1216.210 Procedure in the event of an adverse ruling.
If the court or other competent authority fails to stay a demand or
request, the employee upon whom the demand or request is made, unless
otherwise advised by the General Counsel, will appear, if necessary, at
the stated time and place, produce a copy of this part, state that the
employee has been advised by counsel not to provide the requested
testimony or produce documents, and respectfully decline to comply with
the demand or request, citing United States ex rel. Touchy v. Ragen,
340 U.S. 462 (1951).
Subpart C--Schedule of Fees
Sec. 1216.301 Fees.
(a) Generally. The General Counsel may condition the production of
records or appearance for testimony upon advance payment of a
reasonable estimate of the costs to the MSPB.
(b) Fees for records. Fees for producing records will include fees
for searching, reviewing, and duplicating records, costs of attorney
time spent in reviewing the request, and expenses generated by
materials and equipment
[[Page 17970]]
used to search for, produce, and copy the responsive information. Costs
for employee time will be calculated on the basis of the hourly pay of
the employee (including all pay, allowances, and benefits). Fees for
duplication will be the same as those charged by the MSPB in its
Freedom of Information Act regulations at 5 CFR part 1204.
(c) Witness fees. Fees for attendance by a witness will include
fees, expenses, and allowances prescribed by the court's rules. If no
such fees are prescribed, witness fees will be determined based upon
the rule of the Federal district closest to the location where the
witness will appear and on 28 U.S.C. 1821, as applicable. Such fees
will include cost of time spent by the witness to prepare for
testimony, in travel and for attendance in the legal proceeding, plus
travel costs.
(d) Payment of fees. A requester must pay witness fees for current
MSPB employees and any record certification fees by submitting to the
Clerk of the Board a check or money order for the appropriate amount
made payable to the Treasury of the United States. In the case of
testimony of former MSPB employees, the request must pay applicable
fees directly to the former MSPB employee in accordance with 28 U.S.C.
1821 or other applicable statutes.
(e) Waiver or reduction of fees. The General Counsel, in his or her
sole discretion, may, upon a showing of reasonable cause, waive or
reduce any fees in connection with the testimony, production, or
certification of records.
(f) De minimis fees. Fees will not be assessed if the total charge
would be $10.00 or less.
Subpart D--Penalties
Sec. 1216.401 Penalties.
(a) An employee who discloses official records or information or
gives testimony relating to official information, except as expressly
authorized by the MSPB, or as ordered by a Federal court after the MSPB
has had the opportunity to be heard, may face the penalties provided in
18 U.S.C. 641 and other applicable laws. Additionally, former MSPB
employees are subject to the restrictions and penalties of 18 U.S.C.
207 and 216.
(b) A current MSPB employee who testifies or produces official
records and information in violation of this part shall be subject to
disciplinary action.
Dated: April 4, 2006.
Bentley M. Roberts, Jr.
Clerk of the Board.
[FR Doc. 06-3373 Filed 4-7-06; 8:45 am]
BILLING CODE 7400-01-M
