Legal Process: Testimony by Employees and Production of Records, 10853-10857 [E9-5446]
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Federal Register / Vol. 74, No. 48 / Friday, March 13, 2009 / Proposed Rules
provides Congress, through the Office of
Management and Budget, with an
explanation of why using these
standards would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are
technical standards (e.g., specifications
of materials, performance, design, or
operation; test methods; sampling
procedures; and related management
systems practices) that are developed or
adopted by voluntary consensus
standards bodies.
This proposed rule does not use
technical standards. Therefore, we did
not consider the use of voluntary
consensus standards.
Dated: February 17, 2009.
Fred M. Rosa, Jr.,
Rear Admiral, U.S. Coast Guard, Commander,
Fifth Coast Guard District.
[FR Doc. E9–5408 Filed 3–12–09; 8:45 am]
Environment
SUMMARY: The Presidio Trust proposes a
regulation, limited to the Presidio
Trust’s organization and management,
governing access to Presidio Trust
information and records in connection
with legal proceedings in which neither
the United States nor the Presidio Trust
is a party. This proposed rule will
establish guidelines for use in
determining whether Presidio Trust
employees (as defined in the proposed
rule) will provide testimony or records
relating to their official duties. It also
will establish procedures for requesters
to follow when making demands on or
requests to a Presidio Trust employee
for official documents or to provide
testimony. This proposed rule will
standardize the Presidio Trust’s
practices, promote uniformity in
decisions, conserve the ability of the
Presidio Trust to conduct official
business, preserve its employee
resources, protect confidential
information, provide guidance to
requestors, minimize involvement in
matters unrelated to the Presidio Trust’s
mission and programs, avoid wasteful
allocation of agency resources and avoid
spending public time and money for
private purpose.
DATES: Submit written comments on or
before April 20, 2009.
ADDRESSES: Send written comments to
Karen A. Cook, General Counsel,
Presidio Trust, 34 Graham Street, P.O.
Box 29052, San Francisco, CA 94129–
0052.
We have analyzed this proposed rule
under Department of Homeland
Security Management Directive 0023.1
and Commandant Instruction
M16475.lD which guides the Coast
Guard in complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have made a preliminary determination
that this is one of a category of actions
which do not individually or
cumulatively have a significant effect on
the human environment. Therefore, this
rule is categorically excluded, under
section 2.B.2. Figure 2–1, paragraph
32(e), of the Instruction because it
simply promulgates the operating
regulations or procedures for
drawbridges. We seek any comments or
information that may lead to the
discovery of a significant environmental
impact from this proposed rule.
List of Subjects in 33 CFR Part 117
Bridges.
For the reasons discussed in the
preamble, the Coast Guard proposes to
amend 33 CFR Part 117 as follows:
PART 117—DRAWBRIDGE
OPERATION REGULATIONS
1. The authority citation for part 117
continues to read as follows:
Authority: 33 U.S.C. 499; 33 CFR 1.05–1;
Department of Homeland Security Delegation
No. 0170.1.
2. Revise § 117.835 to read as follows:
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§ 117.835
Perquimans River
The draw of the US17 Bridge, mile
12.0, at Hertford, NC shall open on
signal from 8 a.m. to 10 p.m. from May
1 through September 30; and from 10
a.m. to 8 p.m. from October 1 through
April 30, if two hours notice is given.
The draw need not be opened at all
other times.
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BILLING CODE 4910–15–P
PRESIDIO TRUST
36 CFR Part 1012
Legal Process: Testimony by
Employees and Production of Records
Presidio Trust.
Proposed Rule.
AGENCY:
ACTION:
FOR FURTHER INFORMATION CONTACT:
Karen A. Cook, General Counsel,
Presidio Trust, 34 Graham Street, P.O.
Box 29052, San Francisco, CA 94129–
0052. Telephone: 415.561.5300.
SUPPLEMENTARY INFORMATION: The
Presidio Trust, a wholly-owned federal
government corporation, on occasion
receives subpoenas and other requests
for documents and requests for Presidio
Trust employees (as defined in the
proposed rule) to provide testimony or
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10853
evidence in judicial, legislative or
administrative proceedings in which the
Presidio Trust is not a party. Sometimes
these subpoenas or requests are for
Presidio Trust records that are exempt
from disclosure under the Freedom of
Information Act. The Presidio Trust also
receives requests for Presidio Trust
employees to appear as witnesses and to
provide testimony relating to materials
contained in the Presidio Trust’s official
records or provide testimony or
information acquired during the
performance of the employees’ official
duties.
Although many other federal agencies
currently have regulations in place to
address these types of requests, and the
Presidio Trust itself has rules governing
requests for information under the
Freedom of Information Act, the
Presidio Trust has not adopted
regulations governing subpoenas and
other information requests for document
production and testimony of Presidio
Trust employees in judicial, legislative
or administrative proceedings in which
the Presidio Trust is not a party. Issues
about such requests that have arisen in
recent years warrant adoption of
regulations governing their submission,
evaluation and processing. Responding
to these requests is not only
burdensome, but may also result in a
significant disruption of a Presidio Trust
employee’s work schedule, involve the
Presidio Trust in issues unrelated to its
responsibilities and/or impede the
Presidio Trust’s accomplishment of its
budgetary goals. In order to resolve
these issues, many agencies have issued
regulations, similar to this proposed
regulation, governing the circumstances
and manner for responding to demands
for testimony or for the production of
documents. Establishing uniform
procedures for submission, evaluation
and response to such demands will
ensure timely notice and promote
centralized decision making. The
United States Supreme Court upheld
this type of regulation in United States
ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
Briefly summarized, the proposed
rule will prohibit disclosure of official
records or testimony by the Presidio
Trust’s employees unless there is
compliance with the rule. The proposed
rule sets out the information that
requesters must provide and the factors
that the Presidio Trust will consider in
making determinations in response to
requests for testimony or the production
of documents.
This proposed rule will ensure a more
efficient use of the Presidio Trust’s
resources, minimize the possibility of
involving the Presidio Trust in issues
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unrelated to its mission or
responsibilities, promote uniformity in
responding to such subpoenas and
similar requests, and maintain the
impartiality of the Presidio Trust in
matters that are in dispute between
other parties. It will also serve the
Presidio Trust’s interest in protecting
sensitive, confidential and privileged
information and records that are
generated in fulfillment of the Presidio
Trust’s responsibilities.
The proposed rule is internal and
procedural rather than substantive. It
will not create a right to obtain official
records or the official testimony of a
Presidio Trust employee nor will it
create any additional right or privilege
not already available to the Presidio
Trust to deny any demand or request for
testimony or documents. Failure to
comply with the procedures set out in
these proposed regulations would be a
basis for denying a demand or request
submitted to the Presidio Trust.
This rulemaking is in compliance
with the Administrative Procedure Act
(5 U.S.C. 553) and allows for a 30-day
comment period. Interested persons are
invited to submit written comments to
the Presidio Trust on this proposed
regulation, to be received on or before
April 20, 2009. Prior to issuing its final
rule, the Presidio Trust will review all
comments received and consider any
modifications to this proposal that
appear warranted.
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Executive Order 12866—Regulatory
Planning and Review
This proposed rule has been reviewed
under Executive Order 12866 issued
September 30, 1993 on Regulatory
Planning and Review. This proposed
rule will not have an annual effect of
$100 million or more on the economy
nor adversely affect productivity,
competition, jobs, the environment,
public health or safety, nor State or local
governments. This proposed rule will
neither interfere with an action taken or
planned by another agency nor raise
new legal or policy issues. This
proposed rule will not alter the
budgetary impact of entitlements,
grants, user fees, or loan programs or the
rights and obligations of recipients of
such programs. Therefore, it has been
determined that this is not an
economically significant rule.
Executive Order 12988—Civil Justice
Reform
This proposed rule has been drafted
and reviewed in accordance with
Executive Order 12988, Civil Justice
Reform, and will not unduly burden the
Federal court system. This proposed
rule has been written so as to minimize
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litigation and provide a clear legal
standard for affected conduct, and has
been reviewed carefully to eliminate
drafting errors and ambiguities.
Additionally, the Presidio Trust has not
identified any State or local laws or
regulations that are in conflict with this
regulation or that would impede full
implementation of this proposed rule.
Nonetheless, in the event that such a
conflict was to be identified, the
proposed rule would preempt State or
local laws or regulations found to be in
conflict. However, in that case, (1) no
retroactive effect would be given to this
proposed rule; and (2) the proposed rule
does not require the use of
administration proceedings before
parties may file suit in court challenging
its provisions.
Executive Order 13132—Federalism
This proposed rule conforms with the
Federalism principles set out in
Executive Order 13132 and would not
impose any compliance costs on the
States; and would not have substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, it has
been determined that this proposed rule
does not have federalism implications.
Unfunded Mandates
Pursuant to Title II of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1531–1538) as well as Executive Order
12875, the Presidio Trust has assessed
the effects of this proposed rule on
State, local, and Tribal governments and
the private sector. This proposed rule
does not compel the expenditure of
$100 million or more in any one year by
any State, local, or Tribal governments
or anyone in the private sector.
Therefore, a statement under section
202 of the Act is not required.
Executive Order 13175—Consultation
With Indian Tribal Governments
Pursuant to Executive Order 13175 of
November 6, 2000, the Presidio Trust
has assessed the impact of this proposed
rule on Indian Tribal governments and
has determined that the proposed rule
does not significantly or uniquely affect
communities of Indian Tribal
governments. The Presidio Trust has
also determined that this proposed rule
does not impose substantial direct
compliance costs or Tribal implications
on Indian tribal governments, and
therefore advance consultation with
Tribes is not required.
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Regulatory Flexibility Act and
Executive Order 13272—Consideration
of Small Entities
This proposed rule has been
considered in light of the Regulatory
Flexibility Act (5 U.S.C. 602 et seq.) and
Executive Order 13272 of August 13,
2002. This proposed rule will not have
a significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act and
Executive Order 13272, because the
proposed rule will not impose
recordkeeping requirements on them; it
will not affect their competitive position
in relation to large entities; and it will
not affect their cash flow, liquidity or
ability to remain in the market.
Certification
The Presidio Trust certifies that this
proposed rule is not expected to have a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act or
Executive Order 13272.
Congressional Review Act
The Congressional Review Act (5
U.S.C. 801 et seq.), as added by the
Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. Because this
proposed rule is a rule of agency
organization, procedure or practice that
does not substantially affect the rights or
obligations of non-agency parties it is
not a ‘‘rule’’ as defined by the
Congressional Review Act (5 U.S.C.
804(3)(C)) and is not subject to it.
Executive Order 13211—Energy Effects
This proposed rule is not a
‘‘significant energy action’’ as defined in
Executive Order 13211 of May 22, 2001,
because it is not likely to have a
significant adverse affect on the supply,
distribution or use of energy. The
Presidio Trust has determined that this
proposed rule is not likely to have any
adverse energy effects.
The Paperwork Reduction Act of 1995
This proposed rule contains no
paperwork burdens or information
collection requirements that are subject
to review by the Office of Management
and Budget under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3520).
Analysis of Environmental Impact
The Presidio Trust has analyzed this
proposed rule in accordance with the
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criteria of the National Environmental
Policy Act of 1969 and determined that
rule does not constitute a major Federal
action significantly affecting the quality
of the human environment. Therefore,
neither an environmental assessment
nor an environmental impact statement
is required.
1012.11 Must I get approval before
testifying as an expert witness other than
on behalf of the United States in a
Federal proceeding in which the United
States is a party or has a direct and
substantial interest?
Government Paperwork Elimination
Act
The Presidio Trust is committed to
compliance with the Government
Paperwork Elimination Act (GPEA),
which requires Government agencies to
provide the public the option of
submitting information or transacting
business electronically to the maximum
extent possible. This proposed rule
contains no paperwork burdens or
information collection requirements,
and is thus in compliance with the
GPEA.
General Information
Executive Order 12630—No Takings
Implication
This proposed rule has been analyzed
in accordance with the principles of and
criteria contained in Executive Order
12630 issued March 15, 1988, and it has
been determined that the proposed rule
does not pose a risk of a taking of
constitutionally protected private
property.
For the reasons set forth in the
preamble, the Presidio Trust proposes to
amend chapter X of title 36 of the Code
of Federal Regulations by adding new
part 1012 to read as follows:
PART 1012—LEGAL PROCESS:
TESTIMONY BY EMPLOYEES AND
PRODUCTION OF RECORDS
Sec.
General Information
1012.1 What does this part cover?
1012.2 What is the Presidio Trust’s policy
on granting requests for employee
testimony or Presidio Trust records?
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Responsibilities of Requesters
1012.3 How can I obtain employee
testimony or Presidio Trust records?
1012.4 If I serve a subpoena duces tecum,
must I also submit a Touhy Request?
1012.5 What information must I put in my
Touhy Request?
1012.6 How much will I be charged?
1012.7 Can I get an authenticated copy of a
Presidio Trust record?
Responsibilities of the Presidio Trust
1012.8 How will the Presidio Trust process
my Touhy Request?
1012.9 What criteria will the Presidio Trust
consider in responding to my Touhy
Request?
Responsibilities of Employees
1012.10 What must I, as an employee, do
upon receiving a request?
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Authority: 16 U.S.C. 460bb appendix; 40
U.S.C. 102; 44 U.S.C. 2901 and 3102.
§ 1012.1
What does this part cover?
(a) This part describes how the
Presidio Trust responds to requests or
subpoenas for:
(1) Testimony by employees in State,
territorial or Tribal judicial, legislative
or administrative proceedings
concerning information acquired while
performing official duties or because of
an employee’s official status;
(2) Testimony by employees in
Federal court civil proceedings in which
the United States or the Presidio Trust
is not a party concerning information
acquired while performing official
duties or because of an employee’s
official status;
(3) Testimony by employees in any
judicial or administrative proceeding in
which the United States or the Presidio
Trust, while not a party, has a direct and
substantial interest;
(4) Official records or certification of
such records for use in Federal, State,
territorial or Tribal judicial, legislative
or administrative proceedings.
(b) In this part, ‘‘employee’’ means a
current or former Presidio Trust
employee, or Board member, including
a contractor or special government
employee, except as the Presidio Trust
may otherwise determine in a particular
case.
(c) This part does not apply to:
(1) Congressional requests or
subpoenas for testimony or records;
(2) Federal court civil proceedings in
which the United States or the Presidio
Trust is a party;
(3) Federal administrative
proceedings;
(4) Federal, State, and Tribal criminal
court proceedings;
(5) Employees who voluntarily testify,
while on their own time or in approved
leave status, as private citizens as to
facts or events that are not related to the
official business of the Presidio Trust.
The employee must state for the record
that the testimony represents the
employee’s own views and is not
necessarily the official position of the
Presidio Trust. See 5 CFR 2635.702(b),
2635.807(b).
(6) Testimony by employees as expert
witnesses on subjects outside their
official duties, except that they must
obtain prior approval if required by
§ 1012.11.
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(d) This part does not affect the rights
of any individual or the procedures for
obtaining records under the Freedom of
Information Act (FOIA), Privacy Act, or
statutes governing the certification of
official records. The Presidio Trust
FOIA and Privacy Act regulations are
found at parts 1007 and 1008 of this
chapter.
(e) Nothing in this part is intended to
impede the appropriate disclosure
under applicable laws of Presidio Trust
information to Federal, State, territorial,
Tribal, or foreign law enforcement,
prosecutorial, or regulatory agencies.
(f) This part only provides guidance
for the internal operations of the
Presidio Trust, and neither creates nor
is intended to create any enforceable
right or benefit against the United States
or the Presidio Trust.
§ 1012.2 What is the Presidio Trust’s
policy on granting requests for employee
testimony or Presidio Trust records?
(a) Except for proceedings covered by
§ 1012.1(c) and (d), it is the Presidio
Trust’s general policy not to allow its
employees to testify or to produce
Presidio Trust records either upon
request or by subpoena. However, if the
party seeking such testimony or records
requests in writing, the Presidio Trust
will consider whether to allow
testimony or production of records
under this part. The Presidio Trust’s
policy ensures the orderly execution of
its mission and programs while not
impeding any proceeding
inappropriately.
(b) No Presidio Trust employee may
testify or produce records in any
proceeding to which this part applies
unless authorized by the Presidio Trust
under §§ 1012.1 through 1012.11.
United States ex rel. Touhy v. Ragen,
340 U.S. 462 (1951).
Responsibilities of Requesters
§ 1012.3 How can I obtain employee
testimony or Presidio Trust records?
(a) To obtain employee testimony, you
must submit:
(1) A written request (hereafter a
‘‘Touhy Request;’’ see § 1012.5 and
United States ex rel. Touhy v. Ragen,
340 U.S. 462 (1951)); and
(2) A statement that you will submit
a valid check for costs to the Presidio
Trust, in accordance with § 1012.6, if
your Touhy Request is granted.
(b) To obtain official Presidio Trust
records, you must submit:
(1) A Touhy Request; and
(2) A statement that you agree to pay
the costs of search and/or duplication in
accordance with the provisions
governing requests under the Freedom
of Information Act in part 1007 of this
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chapter, if your Touhy Request is
granted.
(c) You must send your Touhy
Request to both:
(1) The employee; and
(2) The General Counsel of the
Presidio Trust.
(d) The address of Presidio Trust
employees and the General Counsel is:
Presidio Trust, 34 Graham Street, P.O.
Box 29052, San Francisco, CA 94129–
0052.
§ 1012.4 If I serve a subpoena duces
tecum, must I also submit a Touhy request?
Yes. If you serve a subpoena for
employee testimony or if you serve a
subpoena duces tecum for records in the
possession of the Presidio Trust, you
also must submit a Touhy Request.
§ 1012.5 What information must I put in my
Touhy Request?
Your Touhy Request must:
(a) Identify the employee or record;
(b) Describe the relevance of the
desired testimony or records to your
proceeding and provide a copy of the
pleadings underlying your request;
(c) Identify the parties to your
proceeding and any known
relationships they have with the
Presidio Trust or to its mission or
programs;
(d) Show that the desired testimony or
records are not reasonably available
from any other source;
(e) Show that no record could be
provided and used in lieu of employee
testimony;
(f) Provide the substance of the
testimony expected of the employee;
and
(g) Explain why you believe your
Touhy Request meets the criteria
specified in § 1012.9.
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§ 1012.6
How much will I be charged?
We will charge you the costs,
including travel expenses, for
employees to testify under the relevant
substantive and procedural laws and
regulations. You must pay costs for
record production in accordance with
the provisions governing requests under
the Freedom of Information Act in part
1007 of this chapter. Estimated Costs
must be paid in advance by check or
money order payable to the Presidio
Trust. Upon determination of the
precise costs, the Presidio Trust will
either reimburse you for any
overpayment, or charge you for any
underpayment, which charges must be
paid within 10 business days by check
or money order payable to the Presidio
Trust.
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§ 1012.7 Can I get an authenticated copy
of a Presidio Trust record?
Responsibilities of Employees
Yes. We may provide an
authenticated copy of a Presidio Trust
record, for purposes of admissibility
under Federal, State or Tribal law. We
will do this only if the record has been
officially released or would otherwise
be released under parts 1007 or 1008 of
this chapter, or this part.
§ 1012.10 What must I, as an employee, do
upon receiving a request?
Responsibilities of the Presidio Trust
§ 1012.8 How will the Presidio Trust
process my Touhy Request?
(a) The Executive Director will decide
whether to grant or deny your Touhy
Request. The Presidio Trust’s General
Counsel, or his or her agent, may
negotiate with you or your attorney to
refine or limit both the timing and
content of your Touhy Request. When
necessary, the General Counsel also will
coordinate with the Department of
Justice to file appropriate motions,
including motions to remove the matter
to Federal court, to quash, or to obtain
a protective order.
(b) We will limit the Presidio Trust’s
decision to allow employee testimony to
the scope of your Touhy Request.
(c) If you fail to follow the
requirements of this part, we will not
allow the testimony or produce the
records.
(d) If your Touhy Request is complete,
we will consider the request under
§ 1012.9.
§ 1012.9 What criteria will the Presidio
Trust consider in responding to my Touhy
Request?
In deciding whether to grant your
Touhy Request, the Executive Director
will consider:
(a) Your ability to obtain the
testimony or records from another
source;
(b) The appropriateness of the
employee testimony and record
production under the relevant
regulations of procedure and
substantive law, including the FOIA or
the Privacy Act; and
(c) The Presidio Trust’s ability to:
(1) Conduct its official business
unimpeded;
(2) Maintain impartiality in
conducting its business;
(3) Minimize the possibility that the
Presidio Trust will become involved in
issues that are not related to its mission
or programs;
(4) Avoid spending public employees’
time for private purposes;
(5) Avoid any negative cumulative
effect of granting similar requests;
(6) Ensure that privileged or protected
matters remain confidential; and
(7) Avoid undue burden on the
Presidio Trust.
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(a) If you receive a request or
subpoena that does not include a Touhy
Request, you must immediately notify
your supervisor and the Presidio Trust’s
General Counsel for assistance in
issuing the proper response.
(b) If you receive a Touhy Request,
you must promptly notify your
supervisor and forward the request to
the General Counsel. After consulting
with the General Counsel, the Executive
Director will decide whether to grant
the Touhy Request under § 1012.9.
(c) All decisions granting or denying
a Touhy Request must be in writing. The
Executive Director must ask the General
Counsel for advice when preparing the
decision.
(d) Under 28 U.S.C. 1733, Federal
Rule of Civil Procedure 44(a)(1), or
comparable State or Tribal law, a
request for an authenticated copy of a
Presidio Trust record may be granted by
the person having the legal custody of
the record. If you believe that you have
custody of a record:
(1) Consult the General Counsel to
determine if you can grant a request for
authentication of records; and
(2) Consult the General Counsel
concerning the proper form of the
authentication (as authentication
requirements may vary by jurisdiction).
§ 1012.11 Must I get approval before
testifying as an expert witness other than
on behalf of the United States in a Federal
proceeding in which the United States is a
party or has a direct and substantial
interest?
(a) You must comply with 5 CFR
2635.805(c), which details the
authorization procedure for an
employee to testify as an expert witness,
not on behalf of the United States, in
any proceeding before a court or agency
of the United States in which the United
States is a party or has a direct and
substantial interest. This procedure
means:
(1) You must obtain the written
approval of the Presidio Trust’s General
Counsel;
(2) You must be in an approved leave
status if you testify during duty hours;
and
(3) You must state for the record that
you are appearing as a private
individual and that your testimony does
not represent the official views of the
Presidio Trust.
(b) If you testify as an expert witness
on a matter outside the scope of your
official duties, and which is not covered
by paragraph (a) of this section, you
must comply with 5 CFR 2635.802.
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Dated: March 9, 2009.
Karen A. Cook,
General Counsel.
[FR Doc. E9–5446 Filed 3–12–09; 8:45 am]
BILLING CODE 4310–4R–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 223
[Docket No. 080229343–81352–02]
RIN 0648–XF87
Endangered and Threatened Wildlife
and Plants: Proposed Threatened
Status for Southern Distinct
Population Segment of Eulachon
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AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; 12–month
petition finding; request for comments.
SUMMARY: We, the NMFS, have
completed a review of the status of the
Pacific eulachon (Thaleichthys
pacificus; hereafter ‘‘eulachon’’) under
the Endangered Species Act (ESA) in
response to a petition submitted by the
Cowlitz Indian Tribe to list eulachon as
a threatened or endangered species.
After reviewing the best scientific and
commercial information available, we
have determined that the species is
comprised of two or more distinct
population segments (DPSs) that qualify
as species under the ESA. Moreover,
after evaluating threats facing the
species, and considering efforts being
made to protect eulachon, we have
determined that the southern DPS is
likely to become endangered within the
foreseeable future throughout all of its
range. We propose to list it as
threatened under the ESA. The southern
DPS of eulachon consists of populations
spawning in rivers south of the Nass
River in British Columbia, Canada, to,
and including, the Mad River in
California. Within the range of the
southern DPS, major production areas or
‘‘core populations’’ for this species
include the Columbia and Fraser rivers
and may have historically included the
Klamath River. We solicit information to
inform the development of the final
listing rule.
Any protective regulations
determined to be necessary and
advisable for the conservation of the
southern DPS of eulachon under ESA
section 4(d) will be proposed in a
subsequent Federal Register notice. We
VerDate Nov<24>2008
13:40 Mar 12, 2009
Jkt 217001
solicit information to inform the
development of proposed protective
regulations and designation of critical
habitat in the event the DPS is listed. If
the proposed listing is finalized, a
recovery plan will also be prepared and
implemented for the southern DPS.
DATES: Comments on this proposal must
be received by May 12, 2009. A public
hearing will be held promptly if any
person so requests by April 27, 2009.
Notice of the location and time of any
such hearing will be published in the
Federal Register not less than 15 days
before the hearing is held.
ADDRESSES: You may submit comments
identified by 0648–XF87 by any of the
following methods:
• Electronic Submissions: Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Submit written comments to
Chief, Protected Resources Division,
Northwest Region, National Marine
Fisheries Service, 1201 NE Lloyd Blvd.,
Suite 1100, Portland, OR 97232.
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
www.regulations.gov without change.
All Personal Identifying Information (for
example, name, address, etc.)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit Confidential Business
Information or otherwise sensitive or
protected information. We will accept
anonymous comments (enter ‘‘N/A’’ in
the required fields if you wish to remain
anonymous). Attachments to electronic
comments will be accepted in Microsoft
Word, Excel, WordPerfect, or Adobe
PDF file formats only. The eulachon
petition, status review, and other
reference materials regarding this
determination can be obtained via the
Internet at: https://www.nwr.noaa.gov/ or
by submitting a request to the Assistant
Regional Administrator, Protected
Resources Division, Northwest Region,
NMFS, 1201 NE Lloyd Blvd., Suite
1100, Portland, OR 97232.
FOR FURTHER INFORMATION CONTACT: Eric
Murray, NMFS, Northwest Region (503)
231–2378; or Dwayne Meadows, NMFS,
Office of Protected Resources (301) 713–
1401.
SUPPLEMENTARY INFORMATION:
Background
On July 16, 1999, we received a
petition from Mr. Sam Wright of
Olympia, Washington, to list and
designate critical habitat for Columbia
River populations of eulachon. On
November 29, 1999, we determined that,
while the petition indicated that
PO 00000
Frm 00016
Fmt 4702
Sfmt 4702
10857
eulachon catches had recently declined
in the Columbia River basin, it did not
present substantial scientific
information indicating that the
petitioned action may be warranted (64
FR 66601). That finding was based on
observations that the species is likely
more abundant than commercial
landings indicate and, based on life
history attributes (e.g., the species’ high
fecundity and short life span) and
assumptions from catch data and
anecdotal reports, has a demonstrated
ability to rebound from periods of low
abundance. Additionally, the petition
did not provide sufficient information
regarding the distinctness of eulachon
populations in the Columbia River
relative to the other populations in the
species’ range.
On November 8, 2007, we received a
petition from the Cowlitz Indian Tribe
requesting that we list the eulachon that
spawn south of the U.S./WashingtonCanada border as threatened or
endangered under the ESA. In contrast
to our 1999 review, we concluded there
was sufficient information showing that
eulachon may warrant delineation into
DPSs and that eulachon in the
petitioned portion of the species’ range
had substantially declined in
abundance. On March 12, 2008, we
determined that the petition presented
substantial information indicating that
the petitioned action may be warranted,
and we requested information to assist
with a status review to determine if
eulachon warranted listing under the
ESA (73 FR 13185).
ESA Statutory Provisions
The ESA defines species to include
subspecies or a DPS of any vertebrate
species which interbreeds when mature
(16 U.S.C. 1532(16)). The U.S. Fish and
Wildlife Service (FWS) and NMFS have
adopted a joint policy describing what
constitutes a DPS of a taxonomic species
(61 FR 4722; February 7, 1996). The
joint DPS policy identifies two criteria
for making DPS determinations: (1) the
population must be discrete in relation
to the remainder of the taxon (species or
subspecies) to which it belongs; and (2)
the population must be significant to the
remainder of the taxon to which it
belongs.
A population segment of a vertebrate
species may be considered discrete if it
satisfies either one of the following
conditions: (1) ‘‘it is markedly separated
from other populations of the same
taxon as a consequence of physical,
physiological, ecological, or behavioral
factors. Quantitative measures of genetic
or morphological discontinuity may
provide evidence of this separation’’; or
(2) ‘‘it is delimited by international
E:\FR\FM\13MRP1.SGM
13MRP1
]]>Agencies
[Federal Register Volume 74, Number 48 (Friday, March 13, 2009)]
[Proposed Rules]
[Pages 10853-10857]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-5446]
=======================================================================
-----------------------------------------------------------------------
PRESIDIO TRUST
36 CFR Part 1012
Legal Process: Testimony by Employees and Production of Records
AGENCY: Presidio Trust.
ACTION: Proposed Rule.
-----------------------------------------------------------------------
SUMMARY: The Presidio Trust proposes a regulation, limited to the
Presidio Trust's organization and management, governing access to
Presidio Trust information and records in connection with legal
proceedings in which neither the United States nor the Presidio Trust
is a party. This proposed rule will establish guidelines for use in
determining whether Presidio Trust employees (as defined in the
proposed rule) will provide testimony or records relating to their
official duties. It also will establish procedures for requesters to
follow when making demands on or requests to a Presidio Trust employee
for official documents or to provide testimony. This proposed rule will
standardize the Presidio Trust's practices, promote uniformity in
decisions, conserve the ability of the Presidio Trust to conduct
official business, preserve its employee resources, protect
confidential information, provide guidance to requestors, minimize
involvement in matters unrelated to the Presidio Trust's mission and
programs, avoid wasteful allocation of agency resources and avoid
spending public time and money for private purpose.
DATES: Submit written comments on or before April 20, 2009.
ADDRESSES: Send written comments to Karen A. Cook, General Counsel,
Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA
94129-0052.
FOR FURTHER INFORMATION CONTACT: Karen A. Cook, General Counsel,
Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA
94129-0052. Telephone: 415.561.5300.
SUPPLEMENTARY INFORMATION: The Presidio Trust, a wholly-owned federal
government corporation, on occasion receives subpoenas and other
requests for documents and requests for Presidio Trust employees (as
defined in the proposed rule) to provide testimony or evidence in
judicial, legislative or administrative proceedings in which the
Presidio Trust is not a party. Sometimes these subpoenas or requests
are for Presidio Trust records that are exempt from disclosure under
the Freedom of Information Act. The Presidio Trust also receives
requests for Presidio Trust employees to appear as witnesses and to
provide testimony relating to materials contained in the Presidio
Trust's official records or provide testimony or information acquired
during the performance of the employees' official duties.
Although many other federal agencies currently have regulations in
place to address these types of requests, and the Presidio Trust itself
has rules governing requests for information under the Freedom of
Information Act, the Presidio Trust has not adopted regulations
governing subpoenas and other information requests for document
production and testimony of Presidio Trust employees in judicial,
legislative or administrative proceedings in which the Presidio Trust
is not a party. Issues about such requests that have arisen in recent
years warrant adoption of regulations governing their submission,
evaluation and processing. Responding to these requests is not only
burdensome, but may also result in a significant disruption of a
Presidio Trust employee's work schedule, involve the Presidio Trust in
issues unrelated to its responsibilities and/or impede the Presidio
Trust's accomplishment of its budgetary goals. In order to resolve
these issues, many agencies have issued regulations, similar to this
proposed regulation, governing the circumstances and manner for
responding to demands for testimony or for the production of documents.
Establishing uniform procedures for submission, evaluation and response
to such demands will ensure timely notice and promote centralized
decision making. The United States Supreme Court upheld this type of
regulation in United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
Briefly summarized, the proposed rule will prohibit disclosure of
official records or testimony by the Presidio Trust's employees unless
there is compliance with the rule. The proposed rule sets out the
information that requesters must provide and the factors that the
Presidio Trust will consider in making determinations in response to
requests for testimony or the production of documents.
This proposed rule will ensure a more efficient use of the Presidio
Trust's resources, minimize the possibility of involving the Presidio
Trust in issues
[[Page 10854]]
unrelated to its mission or responsibilities, promote uniformity in
responding to such subpoenas and similar requests, and maintain the
impartiality of the Presidio Trust in matters that are in dispute
between other parties. It will also serve the Presidio Trust's interest
in protecting sensitive, confidential and privileged information and
records that are generated in fulfillment of the Presidio Trust's
responsibilities.
The proposed rule is internal and procedural rather than
substantive. It will not create a right to obtain official records or
the official testimony of a Presidio Trust employee nor will it create
any additional right or privilege not already available to the Presidio
Trust to deny any demand or request for testimony or documents. Failure
to comply with the procedures set out in these proposed regulations
would be a basis for denying a demand or request submitted to the
Presidio Trust.
This rulemaking is in compliance with the Administrative Procedure
Act (5 U.S.C. 553) and allows for a 30-day comment period. Interested
persons are invited to submit written comments to the Presidio Trust on
this proposed regulation, to be received on or before April 20, 2009.
Prior to issuing its final rule, the Presidio Trust will review all
comments received and consider any modifications to this proposal that
appear warranted.
Executive Order 12866--Regulatory Planning and Review
This proposed rule has been reviewed under Executive Order 12866
issued September 30, 1993 on Regulatory Planning and Review. This
proposed rule will not have an annual effect of $100 million or more on
the economy nor adversely affect productivity, competition, jobs, the
environment, public health or safety, nor State or local governments.
This proposed rule will neither interfere with an action taken or
planned by another agency nor raise new legal or policy issues. This
proposed rule will not alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients of such programs. Therefore, it has been determined that
this is not an economically significant rule.
Executive Order 12988--Civil Justice Reform
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform, and will not unduly burden
the Federal court system. This proposed rule has been written so as to
minimize litigation and provide a clear legal standard for affected
conduct, and has been reviewed carefully to eliminate drafting errors
and ambiguities. Additionally, the Presidio Trust has not identified
any State or local laws or regulations that are in conflict with this
regulation or that would impede full implementation of this proposed
rule. Nonetheless, in the event that such a conflict was to be
identified, the proposed rule would preempt State or local laws or
regulations found to be in conflict. However, in that case, (1) no
retroactive effect would be given to this proposed rule; and (2) the
proposed rule does not require the use of administration proceedings
before parties may file suit in court challenging its provisions.
Executive Order 13132--Federalism
This proposed rule conforms with the Federalism principles set out
in Executive Order 13132 and would not impose any compliance costs on
the States; and would not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, it has been determined that
this proposed rule does not have federalism implications.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538) as well as Executive Order 12875, the Presidio Trust
has assessed the effects of this proposed rule on State, local, and
Tribal governments and the private sector. This proposed rule does not
compel the expenditure of $100 million or more in any one year by any
State, local, or Tribal governments or anyone in the private sector.
Therefore, a statement under section 202 of the Act is not required.
Executive Order 13175--Consultation With Indian Tribal Governments
Pursuant to Executive Order 13175 of November 6, 2000, the Presidio
Trust has assessed the impact of this proposed rule on Indian Tribal
governments and has determined that the proposed rule does not
significantly or uniquely affect communities of Indian Tribal
governments. The Presidio Trust has also determined that this proposed
rule does not impose substantial direct compliance costs or Tribal
implications on Indian tribal governments, and therefore advance
consultation with Tribes is not required.
Regulatory Flexibility Act and Executive Order 13272--Consideration of
Small Entities
This proposed rule has been considered in light of the Regulatory
Flexibility Act (5 U.S.C. 602 et seq.) and Executive Order 13272 of
August 13, 2002. This proposed rule will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act and Executive Order 13272, because the
proposed rule will not impose recordkeeping requirements on them; it
will not affect their competitive position in relation to large
entities; and it will not affect their cash flow, liquidity or ability
to remain in the market.
Certification
The Presidio Trust certifies that this proposed rule is not
expected to have a significant economic impact on a substantial number
of small entities under the Regulatory Flexibility Act or Executive
Order 13272.
Congressional Review Act
The Congressional Review Act (5 U.S.C. 801 et seq.), as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Because this proposed rule is a rule of
agency organization, procedure or practice that does not substantially
affect the rights or obligations of non-agency parties it is not a
``rule'' as defined by the Congressional Review Act (5 U.S.C.
804(3)(C)) and is not subject to it.
Executive Order 13211--Energy Effects
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211 of May 22, 2001, because it is not
likely to have a significant adverse affect on the supply, distribution
or use of energy. The Presidio Trust has determined that this proposed
rule is not likely to have any adverse energy effects.
The Paperwork Reduction Act of 1995
This proposed rule contains no paperwork burdens or information
collection requirements that are subject to review by the Office of
Management and Budget under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501-3520).
Analysis of Environmental Impact
The Presidio Trust has analyzed this proposed rule in accordance
with the
[[Page 10855]]
criteria of the National Environmental Policy Act of 1969 and
determined that rule does not constitute a major Federal action
significantly affecting the quality of the human environment.
Therefore, neither an environmental assessment nor an environmental
impact statement is required.
Government Paperwork Elimination Act
The Presidio Trust is committed to compliance with the Government
Paperwork Elimination Act (GPEA), which requires Government agencies to
provide the public the option of submitting information or transacting
business electronically to the maximum extent possible. This proposed
rule contains no paperwork burdens or information collection
requirements, and is thus in compliance with the GPEA.
Executive Order 12630--No Takings Implication
This proposed rule has been analyzed in accordance with the
principles of and criteria contained in Executive Order 12630 issued
March 15, 1988, and it has been determined that the proposed rule does
not pose a risk of a taking of constitutionally protected private
property.
For the reasons set forth in the preamble, the Presidio Trust
proposes to amend chapter X of title 36 of the Code of Federal
Regulations by adding new part 1012 to read as follows:
PART 1012--LEGAL PROCESS: TESTIMONY BY EMPLOYEES AND PRODUCTION OF
RECORDS
Sec.
General Information
1012.1 What does this part cover?
1012.2 What is the Presidio Trust's policy on granting requests for
employee testimony or Presidio Trust records?
Responsibilities of Requesters
1012.3 How can I obtain employee testimony or Presidio Trust
records?
1012.4 If I serve a subpoena duces tecum, must I also submit a Touhy
Request?
1012.5 What information must I put in my Touhy Request?
1012.6 How much will I be charged?
1012.7 Can I get an authenticated copy of a Presidio Trust record?
Responsibilities of the Presidio Trust
1012.8 How will the Presidio Trust process my Touhy Request?
1012.9 What criteria will the Presidio Trust consider in responding
to my Touhy Request?
Responsibilities of Employees
1012.10 What must I, as an employee, do upon receiving a request?
1012.11 Must I get approval before testifying as an expert witness
other than on behalf of the United States in a Federal proceeding in
which the United States is a party or has a direct and substantial
interest?
Authority: 16 U.S.C. 460bb appendix; 40 U.S.C. 102; 44 U.S.C.
2901 and 3102.
General Information
Sec. 1012.1 What does this part cover?
(a) This part describes how the Presidio Trust responds to requests
or subpoenas for:
(1) Testimony by employees in State, territorial or Tribal
judicial, legislative or administrative proceedings concerning
information acquired while performing official duties or because of an
employee's official status;
(2) Testimony by employees in Federal court civil proceedings in
which the United States or the Presidio Trust is not a party concerning
information acquired while performing official duties or because of an
employee's official status;
(3) Testimony by employees in any judicial or administrative
proceeding in which the United States or the Presidio Trust, while not
a party, has a direct and substantial interest;
(4) Official records or certification of such records for use in
Federal, State, territorial or Tribal judicial, legislative or
administrative proceedings.
(b) In this part, ``employee'' means a current or former Presidio
Trust employee, or Board member, including a contractor or special
government employee, except as the Presidio Trust may otherwise
determine in a particular case.
(c) This part does not apply to:
(1) Congressional requests or subpoenas for testimony or records;
(2) Federal court civil proceedings in which the United States or
the Presidio Trust is a party;
(3) Federal administrative proceedings;
(4) Federal, State, and Tribal criminal court proceedings;
(5) Employees who voluntarily testify, while on their own time or
in approved leave status, as private citizens as to facts or events
that are not related to the official business of the Presidio Trust.
The employee must state for the record that the testimony represents
the employee's own views and is not necessarily the official position
of the Presidio Trust. See 5 CFR 2635.702(b), 2635.807(b).
(6) Testimony by employees as expert witnesses on subjects outside
their official duties, except that they must obtain prior approval if
required by Sec. 1012.11.
(d) This part does not affect the rights of any individual or the
procedures for obtaining records under the Freedom of Information Act
(FOIA), Privacy Act, or statutes governing the certification of
official records. The Presidio Trust FOIA and Privacy Act regulations
are found at parts 1007 and 1008 of this chapter.
(e) Nothing in this part is intended to impede the appropriate
disclosure under applicable laws of Presidio Trust information to
Federal, State, territorial, Tribal, or foreign law enforcement,
prosecutorial, or regulatory agencies.
(f) This part only provides guidance for the internal operations of
the Presidio Trust, and neither creates nor is intended to create any
enforceable right or benefit against the United States or the Presidio
Trust.
Sec. 1012.2 What is the Presidio Trust's policy on granting requests
for employee testimony or Presidio Trust records?
(a) Except for proceedings covered by Sec. 1012.1(c) and (d), it
is the Presidio Trust's general policy not to allow its employees to
testify or to produce Presidio Trust records either upon request or by
subpoena. However, if the party seeking such testimony or records
requests in writing, the Presidio Trust will consider whether to allow
testimony or production of records under this part. The Presidio
Trust's policy ensures the orderly execution of its mission and
programs while not impeding any proceeding inappropriately.
(b) No Presidio Trust employee may testify or produce records in
any proceeding to which this part applies unless authorized by the
Presidio Trust under Sec. Sec. 1012.1 through 1012.11. United States
ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
Responsibilities of Requesters
Sec. 1012.3 How can I obtain employee testimony or Presidio Trust
records?
(a) To obtain employee testimony, you must submit:
(1) A written request (hereafter a ``Touhy Request;'' see Sec.
1012.5 and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951));
and
(2) A statement that you will submit a valid check for costs to the
Presidio Trust, in accordance with Sec. 1012.6, if your Touhy Request
is granted.
(b) To obtain official Presidio Trust records, you must submit:
(1) A Touhy Request; and
(2) A statement that you agree to pay the costs of search and/or
duplication in accordance with the provisions governing requests under
the Freedom of Information Act in part 1007 of this
[[Page 10856]]
chapter, if your Touhy Request is granted.
(c) You must send your Touhy Request to both:
(1) The employee; and
(2) The General Counsel of the Presidio Trust.
(d) The address of Presidio Trust employees and the General Counsel
is: Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA
94129-0052.
Sec. 1012.4 If I serve a subpoena duces tecum, must I also submit a
Touhy request?
Yes. If you serve a subpoena for employee testimony or if you serve
a subpoena duces tecum for records in the possession of the Presidio
Trust, you also must submit a Touhy Request.
Sec. 1012.5 What information must I put in my Touhy Request?
Your Touhy Request must:
(a) Identify the employee or record;
(b) Describe the relevance of the desired testimony or records to
your proceeding and provide a copy of the pleadings underlying your
request;
(c) Identify the parties to your proceeding and any known
relationships they have with the Presidio Trust or to its mission or
programs;
(d) Show that the desired testimony or records are not reasonably
available from any other source;
(e) Show that no record could be provided and used in lieu of
employee testimony;
(f) Provide the substance of the testimony expected of the
employee; and
(g) Explain why you believe your Touhy Request meets the criteria
specified in Sec. 1012.9.
Sec. 1012.6 How much will I be charged?
We will charge you the costs, including travel expenses, for
employees to testify under the relevant substantive and procedural laws
and regulations. You must pay costs for record production in accordance
with the provisions governing requests under the Freedom of Information
Act in part 1007 of this chapter. Estimated Costs must be paid in
advance by check or money order payable to the Presidio Trust. Upon
determination of the precise costs, the Presidio Trust will either
reimburse you for any overpayment, or charge you for any underpayment,
which charges must be paid within 10 business days by check or money
order payable to the Presidio Trust.
Sec. 1012.7 Can I get an authenticated copy of a Presidio Trust
record?
Yes. We may provide an authenticated copy of a Presidio Trust
record, for purposes of admissibility under Federal, State or Tribal
law. We will do this only if the record has been officially released or
would otherwise be released under parts 1007 or 1008 of this chapter,
or this part.
Responsibilities of the Presidio Trust
Sec. 1012.8 How will the Presidio Trust process my Touhy Request?
(a) The Executive Director will decide whether to grant or deny
your Touhy Request. The Presidio Trust's General Counsel, or his or her
agent, may negotiate with you or your attorney to refine or limit both
the timing and content of your Touhy Request. When necessary, the
General Counsel also will coordinate with the Department of Justice to
file appropriate motions, including motions to remove the matter to
Federal court, to quash, or to obtain a protective order.
(b) We will limit the Presidio Trust's decision to allow employee
testimony to the scope of your Touhy Request.
(c) If you fail to follow the requirements of this part, we will
not allow the testimony or produce the records.
(d) If your Touhy Request is complete, we will consider the request
under Sec. 1012.9.
Sec. 1012.9 What criteria will the Presidio Trust consider in
responding to my Touhy Request?
In deciding whether to grant your Touhy Request, the Executive
Director will consider:
(a) Your ability to obtain the testimony or records from another
source;
(b) The appropriateness of the employee testimony and record
production under the relevant regulations of procedure and substantive
law, including the FOIA or the Privacy Act; and
(c) The Presidio Trust's ability to:
(1) Conduct its official business unimpeded;
(2) Maintain impartiality in conducting its business;
(3) Minimize the possibility that the Presidio Trust will become
involved in issues that are not related to its mission or programs;
(4) Avoid spending public employees' time for private purposes;
(5) Avoid any negative cumulative effect of granting similar
requests;
(6) Ensure that privileged or protected matters remain
confidential; and
(7) Avoid undue burden on the Presidio Trust.
Responsibilities of Employees
Sec. 1012.10 What must I, as an employee, do upon receiving a
request?
(a) If you receive a request or subpoena that does not include a
Touhy Request, you must immediately notify your supervisor and the
Presidio Trust's General Counsel for assistance in issuing the proper
response.
(b) If you receive a Touhy Request, you must promptly notify your
supervisor and forward the request to the General Counsel. After
consulting with the General Counsel, the Executive Director will decide
whether to grant the Touhy Request under Sec. 1012.9.
(c) All decisions granting or denying a Touhy Request must be in
writing. The Executive Director must ask the General Counsel for advice
when preparing the decision.
(d) Under 28 U.S.C. 1733, Federal Rule of Civil Procedure 44(a)(1),
or comparable State or Tribal law, a request for an authenticated copy
of a Presidio Trust record may be granted by the person having the
legal custody of the record. If you believe that you have custody of a
record:
(1) Consult the General Counsel to determine if you can grant a
request for authentication of records; and
(2) Consult the General Counsel concerning the proper form of the
authentication (as authentication requirements may vary by
jurisdiction).
Sec. 1012.11 Must I get approval before testifying as an expert
witness other than on behalf of the United States in a Federal
proceeding in which the United States is a party or has a direct and
substantial interest?
(a) You must comply with 5 CFR 2635.805(c), which details the
authorization procedure for an employee to testify as an expert
witness, not on behalf of the United States, in any proceeding before a
court or agency of the United States in which the United States is a
party or has a direct and substantial interest. This procedure means:
(1) You must obtain the written approval of the Presidio Trust's
General Counsel;
(2) You must be in an approved leave status if you testify during
duty hours; and
(3) You must state for the record that you are appearing as a
private individual and that your testimony does not represent the
official views of the Presidio Trust.
(b) If you testify as an expert witness on a matter outside the
scope of your official duties, and which is not covered by paragraph
(a) of this section, you must comply with 5 CFR 2635.802.
[[Page 10857]]
Dated: March 9, 2009.
Karen A. Cook,
General Counsel.
[FR Doc. E9-5446 Filed 3-12-09; 8:45 am]
BILLING CODE 4310-4R-P
