Testimony by FLRA Employees and Production of Official Records in Legal Proceedings, 11639-11643 [E9-5694]
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11639
Rules and Regulations
Federal Register
Vol. 74, No. 52
Thursday, March 19, 2009
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 LABOR RELATIONS
AUTHORITY
5 CFR Parts 2411 and 2417
Testimony by FLRA Employees and
Production of Official Records in Legal
Proceedings
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AGENCY: Federal Labor Relations
Authority.
ACTION: Final rule.
SUMMARY: This final rule amends the
Federal Labor Relations Authority’s
(FLRA) rules by setting out procedures
for requesters to follow when making
demands on or requests to an employee
of the FLRA, the General Counsel of the
FLRA (General Counsel) or the Federal
Service Impasses Panel (Panel) to
produce official records or provide
testimony relating to official
information in connection with a civil
legal proceeding in which the FLRA is
not named as 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 March
19, 2009.
FOR FURTHER INFORMATION CONTACT: Rosa
M. Koppel, Solicitor, Federal Labor
Relations Authority, 1400 K Street, NW.,
Washington, DC 20424; (202) 218–7999;
fax: (202) 343–1007; or e-mail
rkoppel@flra.gov.
SUPPLEMENTARY INFORMATION: The FLRA
is amending and relocating to a new
Part 2417 what was § 2411.11. Section
2411.11 prohibited employees from
producing documents or giving
testimony in response to a subpoena or
other request without the written
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consent of the FLRA, the General
Counsel or the Panel, as appropriate.
Under § 2411.11, any employee served
with a subpoena or request who was not
given the requisite written consent was
instructed to move to have the subpoena
invalidated ‘‘on the ground that the
evidence sought is privileged against
disclosure by this rule.’’ This approach
incorrectly treated the regulations as
though they created a privilege against
disclosure.
The FLRA is amending the
regulations to set out specific
procedures that must be followed by
persons who submit demands or
requests for non-public FLRA
information. The new Part 2417 also
sets out factors that the FLRA will
consider when deliberating on demands
or requests for non-public FLRA
information. Non-public information, as
that term is used in this proposal, is
information, confidential or otherwise,
not available to the public pursuant to
the Freedom of Information Act.
Responding to such demands and
requests may result in a significant
disruption of an FLRA employee’s work
schedule and possibly involve the FLRA
in issues unrelated to its
responsibilities. In order to resolve these
problems, many agencies have issued
regulations, similar to these new
regulations, governing the
circumstances and manner in which an
employee may respond to demands for
testimony or for the production of
documents. The United States Supreme
Court upheld this type of regulation in
United States ex rel. Touhy v. Ragen,
340 U.S. 462 (1951).
This rule applies to a range of matters
in any civil legal proceeding in which
the FLRA is not a named party. It also
applies to former and current FLRA
employees (as well as to FLRA
consultants and advisors). Former FLRA
employees are prohibited from testifying
about specific matters for which they
had responsibility during their active
employment unless permitted to testify
as provided in the regulations. They
would not be prohibited from testifying
about general matters unconnected with
the specific FLRA matters for which
they had responsibility.
This rule will ensure a more efficient
use of the FLRA’s resources, minimize
the possibility of involving the FLRA in
issues unrelated to its responsibilities,
promote uniformity in responding to
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such subpoenas and requests, and
maintain the impartiality of the FLRA in
matters that are in dispute between
other parties. It will also serve the
FLRA’s interest in protecting sensitive,
confidential, and privileged information
and records that are generated in
fulfillment of the FLRA’s statutory
responsibilities.
The charges for witnesses are the
same as those provided in Federal
courts; and the fees related to
production of records are the same as
those charged under the Freedom of
Information Act. The charges for time
spent by an employee to prepare for
testimony and for searches, copying,
and certification of records by the FLRA
are authorized under 31 U.S.C. 9701,
which permits an agency to charge for
services or things of value that are
provided by the agency.
This rule is internal and procedural
rather than substantive. It does not
create a right to obtain official records
or the official testimony of an FLRA
employee nor does it create any
additional right or privilege not already
available to FLRA to deny any demand
or request for testimony or documents.
Failure to comply with the procedures
set out in these regulations would be a
basis for denying a demand or request
submitted to the FLRA.
On December 24, 2008, the FLRA
published a proposed rule with request
for comments that proposed to amend 5
CFR, chapter XIV (73 FR 79024). The
FLRA received no comments during the
30 days allowed for public comment
and this final rule makes no changes to
the previously published proposed rule.
See 73 FR 79024 for additional
information concerning this amendment
of 5 CFR, chapter XIV.
List of Subjects in 5 CFR Parts 2411 and
2417
Administrative practice and
procedure; Government employees.
For the reasons stated in the preamble,
the Federal Labor Relations Authority
amends 5 CFR part 2411 and adds part
2417 as set forth below:
■
PART 2411—AVAILABILITY OF
OFFICIAL INFORMATION
1. The authority citation for part 2411
continues to read as follows:
■
Authority: 5 U.S.C. 552
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§ 2411.11
■
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[Removed]
2. Section 2411.11 is removed.
§ 2411.12
[Amended]
3. Section 2411.12 is redesignated as
§ 2411.11.
■ 4. Part 2417 is added to read as
follows:
■
PART 2417—TESTIMONY BY
EMPLOYEES RELATING TO OFFICIAL
INFORMATION AND PRODUCTION OF
OFFICIAL RECORDS IN LEGAL
PROCEEDINGS
Subpart A—General Provisions
Sec.
2417.101 Scope and purpose.
2417.102 Applicability.
2417.103 Definitions.
Subpart B—Demands or Requests for
Testimony and Production of Documents
2417.201 General prohibition.
2417.202 Factors to consider.
2417.203 Filing requirements for litigants
seeking documents or testimony.
2417.204 Where to submit a request.
2417.205 Processing of requests or
demands.
2417.206 Final determinations.
2417.207 Restrictions that apply to
testimony.
2417.208 Restrictions that apply to released
records.
2417.209 Procedure when a decision is not
made prior to the time a response is
required.
2417.210 Procedure in the event of an
adverse ruling.
Subpart C—Schedule of Fees
2417.301 Fees.
Subpart D—Penalties
2417.401 Penalties.
Authority: 5 U.S.C. 7105; 31 U.S.C. 9701;
44 U.S.C. 3101–3107.
Subpart A—General Provisions
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§ 2417.101
Scope and purpose.
(a) These regulations establish policy,
assign responsibilities and prescribe
procedures with respect to:
(1) The production or disclosure of
official information or records by
employees, members, advisors, and
consultants of the Federal Labor
Relations Authority, the General
Counsel of the Federal Labor Relations
Authority or the Federal Service
Impasses Panel; and
(2) The testimony of current and
former employees, members, advisors,
and consultants of the Authority, the
General Counsel or the Panel relating to
official information, official duties or
official records, in connection with civil
federal or state litigation in which the
Authority, the General Counsel or the
Panel is not a party.
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(b) The FLRA intends these
provisions to:
(1) Conserve the time of employees for
conducting official business;
(2) Minimize the involvement of
employees in issues unrelated to the
mission of the FLRA;
(3) Maintain the impartiality of
employees in disputes between private
litigants; and
(4) Protect sensitive, confidential
information and the deliberative
processes of the FLRA.
(c) In providing for these
requirements, the FLRA does not waive
the sovereign immunity of the United
States.
(d) This part provides guidance for
the internal operations of the FLRA. 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.
§ 2417.102
Applicability.
This part applies to demands and
requests to current and former
employees, members, advisors, and
consultants for factual or expert
testimony relating to official
information or official duties or for
production of official records or
information, in civil legal proceedings
in which the Authority, the General
Counsel or the Panel is not a named
party. This part does not apply to:
(a) Demands upon or requests for an
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 Authority, the General
Counsel or the Panel;
(b) Demands upon or requests for a
former employee to testify as to matters
in which the former employee was not
directly or materially involved while at
the Authority, the General Counsel or
the Panel;
(c) Requests for the release of records
under the Freedom of Information Act,
5 U.S.C. 552, or the Privacy Act, 5
U.S.C. 552a;
(d) Congressional demands and
requests for testimony, records or
information; or
(e) Demands or requests for testimony,
records or information by any Federal,
state, or local agency in furtherance of
an ongoing investigation of possible
violations of criminal law.
§ 2417.103
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
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testimony of an employee in a civil legal
proceeding.
(b) 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 civil legal
or administrative proceeding. Legal
proceeding includes all phases of
litigation.
(c) Employee means:
(i) Any current or former employee or
member of the Authority, the General
Counsel or the Federal Service Impasses
Panel;
(ii) Any other individual hired
through contractual agreement by or on
behalf of the Authority or who has
performed or is performing services
under such an agreement for the
Authority; and
(iii) Any individual who served or is
serving in any consulting or advisory
capacity to the Authority whether
formal or informal.
This definition does not include:
Persons who are no longer employed by
the Authority, the General Counsel or
the Panel 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 Authority, the General Counsel
or the Panel.
(d) Records or official records and
information means: All information in
the custody and control of the
Authority, the General Counsel or the
Panel, relating to information in the
custody and control thereof, or acquired
by an employee while in the
performance of his or her official duties
or because of his or her official status,
while the individual was employed by
or on behalf of the Authority, the
General Counsel or the Panel.
(e) 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 or other competent
authority.
(f) 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
§ 2417.201
General prohibition.
No employee of the Authority, the
General Counsel or the Panel may
produce official records and information
or provide any testimony relating to
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official information in response to a
demand or request without the prior,
written approval of the Chairman of the
FLRA or the Chairman’s designee.
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§ 2417.202
Factors the FLRA will consider.
The Chairman or the Chairman’s
designee, 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 Chairman 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 FLRA in performing its
statutory duties;
(d) Allowing such testimony or
production of records would be in the
best interest of the FLRA;
(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 rules of procedure governing the
case or matter 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
FLRA appearing to favor one litigant
over another;
(k) 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;
(n) The demand or request is
sufficiently specific to be answered; and
(o) Any other factor deemed relevant
under the circumstances of the
particular request.
§ 2417.203 Filing requirements for litigants
seeking documents or testimony.
A litigant must comply with the
following requirements when filing a
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request for official records and
information or testimony under part
2417. A request should be filed before
a demand.
(a) The request must be in writing and
must be submitted to the Office of the
Solicitor.
(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 FLRA 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 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 employee for time spent
by the employee to prepare for
testimony, in travel, and for attendance
in the legal proceeding.
(c) The Office of the Solicitor 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
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 FLRA to make an informed
decision may serve as the basis for a
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11641
determination not to comply with the
request.
(f) The request should state that the
requester will provide a copy of the
employee’s statement free of charge and
that the requester will permit the FLRA
to have a representative present during
the employee’s testimony.
§ 2417.204
Where to submit a request.
(a) Requests or demands for official
records or information or testimony
under this part must be served on the
Office of the Solicitor at the following
address: Office of the Solicitor, Federal
Labor Relations Authority, 1400 K
Street, NW., Suite 201, Washington, DC
20424–0001; telephone: (202) 218–7999;
fax: (202) 343–1007. The request must
be sent by mail, fax, or e-mail and
clearly marked ‘‘Part 2417 Request for
Testimony or Official Records in Legal
Proceedings.’’
(b) A person requesting public FLRA
information and non-public FLRA
information under this part may submit
a combined request for both to the
Office of the Solicitor. If a requester
decides to submit a combined request
under this section, the FLRA will
process the combined request under this
part and not under part 2411 (FOIA).
§ 2417.205
demands.
Consideration of requests or
(a) After receiving service of a request
or demand for testimony, the FLRA will
review the request and, in accordance
with the provisions of this part,
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
FLRA will issue a determination within
30 days from the date the request is
received.
(c) The FLRA may grant a waiver of
any procedure described by this part
where a waiver is considered necessary
to promote a significant interest of the
FLRA or the United States or for other
good cause.
(d) Certification (authentication) of
copies of records. The FLRA 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 Solicitor at least 30 days before
the date they will be needed.
§ 2417.206
Final determination.
The Chairman of the FLRA, or the
Chairman’s designee, makes the final
determination on demands or requests
to employees thereof for production of
official records and information or
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testimony in litigation in which the
FLRA is not a party. All final
determinations are within the sole
discretion of the Chairman or the
Chairman’s designee. The Chairman or
designee will notify the requester and,
when appropriate, the court or other
competent authority of the final
determination, the reasons for the grant
or denial of the request, and any
conditions that may be imposed on the
release of records or information, or on
the testimony of an employee. This final
determination exhausts administrative
remedies for discovery of the
information.
§ 2417.207 Restrictions that apply to
testimony.
(a) Conditions or restrictions may be
imposed on the testimony of 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 requester
may also be required to provide a copy
of the transcript of testimony at the
requester’s expense.
(b) The employee’s written
declaration may be provided 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 Chairman or
the Chairman’s designee, the employee
shall not:
(1) Disclose confidential or privileged
information; or
(2) For a current 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 FLRA 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 approval of the Chairman or the
Chairman’s designee.
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If a response to a demand or request
is required before the Chairman or the
Chairman’s designee can make the
determination referred to in § 2417.206,
the Chairman or the Chairman’s
designee, 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.
§ 2417.210 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 Chairman or
the Chairman’s designee, 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. Touhy v. Ragen, 340 U.S. 462
(1951).
§ 2417.301
(a) The Chairman or the Chairman’s
designee 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
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§ 2417.209 Procedure when a decision is
not made prior to the time a response is
required.
Subpart C—Schedule of Fees
§ 2417.208 Restrictions that apply to
released records.
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limit access and any further disclosure.
The terms of the protective order or of
a confidentiality agreement must be
acceptable to the Chairman or the
Chairman’s designee. In cases where
protective orders or confidentiality
agreements have already been executed,
the Chairman or the Chairman’s
designee may condition the release of
official records and information on an
amendment to the existing protective
order or confidentiality agreement.
(b) If the Chairman or the Chairman’s
designee so determines, original 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 records, nor
may they be marked or altered. In lieu
of the original records, certified copies
may be presented for evidentiary
purposes.
Fees.
(a) Generally. The Chairman or the
Chairman’s designee may condition the
production of records or appearance for
testimony upon advance payment of a
reasonable estimate of the costs thereto.
(b) Fees for records. Fees for
producing records will include fees for
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searching, reviewing, and duplicating
records, costs of employee time spent in
reviewing the request, and expenses
generated by materials and equipment
used to search for, produce, and copy
the responsive information. These fees
and costs will be calculated and charged
as are like fees and costs arising from
requests made pursuant to the Freedom
of Information Act regulations in Part
2411.
(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 court 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 employees
and any record certification fees by
submitting to the Office of the Solicitor
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 employees,
the requester must pay applicable fees
directly to the former employee in
accordance with 28 U.S.C. 1821 or other
applicable statutes.
(e) Waiver or reduction of fees. The
Chairman or the Chairman’s designee,
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
§ 2417.401
Penalties.
(a) An employee who discloses
official records or information or gives
testimony relating to official
information, except as expressly
authorized by the Chairman or the
Chairman’s designee, or as ordered by a
Federal court after the FLRA has had the
opportunity to be heard, may face the
penalties provided in 18 U.S.C. 641 and
other applicable laws. Additionally,
former employees are subject to the
restrictions and penalties of 18 U.S.C.
207 and 216.
(b) A current employee who testifies
or produces official records and
information in violation of this part may
be subject to disciplinary action.
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11643
Dated: March 11, 2009.
Carol Waller Pope,
Acting Chairman.
[FR Doc. E9–5694 Filed 3–18–09; 8:45 am]
comply with a requirement of FCIC. The
term ‘‘requirement of this title’’ is
confusing and provides no reference to
a specific requirement.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
BILLING CODE 6727–01–P
List of Subjects in 7 CFR Parts 407 and
457
21 CFR Part 522
DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
Administrative practice and
procedures; Administrative remedies for
non-compliance.
Implantation or Injectable Dosage
Form New Animal Drugs; Tylosin
7 CFR Parts 400, 407, 457
■
RIN 0563–AB73
General Administrative Regulations;
Administrative Remedies for NonCompliance; Correcting Amendments
AGENCY: Federal Crop Insurance
Corporation, USDA.
ACTION: Final rule; correcting
amendment.
2. In § 407.9 amend item 22 by
revising paragraph (a)(1) to read as
follows:
■
This document contains
correcting amendments to the final
regulations that were published
December 18, 2008 (73 FR 76868–
76891). These regulations pertain to
Administrative Remedies for NonCompliance and provide clarification of
existing remedies.
DATES: Effective Date: March 19, 2009.
FOR FURTHER INFORMATION CONTACT:
Cynthia Simpson, Director, Appeals,
Litigation and Legal Liaison Staff, Risk
Management Agency, United States
Department of Agriculture, 1400
Independence Avenue, SW., Room
6603, Stop 0806, Washington, DC
20250, telephone (202) 720–0642.
SUPPLEMENTARY INFORMATION:
§ 407.9
Group risk plan common policy.
*
*
*
*
*
22. Remedial Sanctions
*
*
*
*
*
(a) * * *
(1) The amount of the pecuniary gain
obtained as a result of the false or
inaccurate information provided or the
noncompliance with a requirement of
FCIC; or
*
*
*
*
*
PART 457—COMMON CROP
INSURANCE REGULATIONS
3. In § 457.8 amend item 27 by
revising paragraph (e)(1)(i) to read as
follows:
■
Background
The final regulation that is the subject
of these correcting amendments was
intended to add additional
administrative remedies that are
available as a result of the enactment of
section 515(h) of the Federal Crop
Insurance Act (Act) (7 U.S.C. 1515(h)),
make such other changes as are
necessary to implement the provisions
of section 515(h) of the Act, and to
clarify existing administrative remedies.
Need for Corrections
mstockstill on PROD1PC66 with RULES
Authority: 7 U.S.C. 1506(l) and 1506(o).
PART 407—GROUP RISK PLAN OF
INSURANCE REGULATIONS
SUMMARY:
As published, the final regulation
contained an error that may prove to be
misleading and needs to be clarified.
On page 73 FR 76891 in § 407.9 item
22(a)(1) and § 457.8 item 27(e)(1)(i) the
term ‘‘requirement of this title’’ is
incorrect and should read ‘‘requirement
of FCIC.’’ Section 515(h) of the Act
authorizes disqualification and the
assessment of civil fine of persons who
willfully and intentionally provide false
or inaccurate information or fails to
VerDate Nov<24>2008
Accordingly, the 7 CFR part 407 and
457 is amended as follows:
■ 1. The authority citation for 7 CFR
part 407 and 457 is revised to read as
follows:
18:17 Mar 18, 2009
Jkt 217001
§ 457.8
The application and policy.
*
*
*
*
*
27. Concealment, Misrepresentation
or Fraud.
*
*
*
*
*
(e) * * *
(1) * * *
(i) The amount of the pecuniary gain
obtained as a result of the false or
inaccurate information provided or the
noncompliance with a requirement of
FCIC; or
*
*
*
*
*
Signed in Washington, DC, on March 11,
2009.
William J. Murphy,
Acting Manager, Federal Crop Insurance
Corporation.
[FR Doc. E9–5793 Filed 3–18–09; 8:45 am]
BILLING CODE 3410–08–P
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
Food and Drug Administration
[Docket No. FDA–2009–N–0665]
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Final rule.
SUMMARY: The Food and Drug
Administration (FDA) is amending the
animal drug regulations to reflect
approval of a supplemental new animal
drug application (NADA) filed by
Elanco Animal Health. The
supplemental NADA provides for
changing scientific nomenclature for a
bovine pathogen on labeling for tylosin
injectable solution.
DATES: This rule is effective March 19,
2009.
FOR FURTHER INFORMATION CONTACT:
Cindy L. Burnsteel, Center for
Veterinary Medicine (HFV–130), Food
and Drug Administration, 7500 Standish
Pl., Rockville, MD 20855, 240–276–
8341, e-mail:
cindy.burnsteel@fda.hhs.gov.
Elanco
Animal Health, A Division of Eli Lilly
& Co., Lilly Corporate Center,
Indianapolis, IN 46285, filed a
supplement to NADA 12–965 for
TYLAN (tylosin) Injection, an injectable
solution used for the treatment of
animal diseases associated with several
bacterial pathogens. The supplemental
NADA provides for changing a bovine
pathogen name on product labeling. The
supplemental NADA is approved as of
February 24, 2009, and the regulations
in 21 CFR 522.2640 and 522.2640a are
amended to reflect the approval.
Approval of this supplemental NADA
did not require review of additional
safety or effectiveness data or
information. Therefore, a freedom of
information summary is not required.
The agency has determined under 21
CFR 25.33(a)(1) that this action is of a
type that does not individually or
cumulatively have a significant effect on
the human environment. Therefore,
neither an environmental assessment
nor an environmental impact statement
is required.
This rule does not meet the definition
of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because
it is a rule of ‘‘particular applicability.’’
Therefore, it is not subject to the
congressional review requirements in 5
U.S.C. 801–808.
SUPPLEMENTARY INFORMATION:
E:\FR\FM\19MRR1.SGM
19MRR1
]]>Agencies
[Federal Register Volume 74, Number 52 (Thursday, March 19, 2009)]
[Rules and Regulations]
[Pages 11639-11643]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-5694]
========================================================================
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. 74, No. 52 / Thursday, March 19, 2009 / Rules
and Regulations
[[Page 11639]]
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Parts 2411 and 2417
Testimony by FLRA Employees and Production of Official Records in
Legal Proceedings
AGENCY: Federal Labor Relations Authority.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the Federal Labor Relations Authority's
(FLRA) rules by setting out procedures for requesters to follow when
making demands on or requests to an employee of the FLRA, the General
Counsel of the FLRA (General Counsel) or the Federal Service Impasses
Panel (Panel) to produce official records or provide testimony relating
to official information in connection with a civil legal proceeding in
which the FLRA is not named as 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 March 19, 2009.
FOR FURTHER INFORMATION CONTACT: Rosa M. Koppel, Solicitor, Federal
Labor Relations Authority, 1400 K Street, NW., Washington, DC 20424;
(202) 218-7999; fax: (202) 343-1007; or e-mail rkoppel@flra.gov.
SUPPLEMENTARY INFORMATION: The FLRA is amending and relocating to a new
Part 2417 what was Sec. 2411.11. Section 2411.11 prohibited employees
from producing documents or giving testimony in response to a subpoena
or other request without the written consent of the FLRA, the General
Counsel or the Panel, as appropriate. Under Sec. 2411.11, any employee
served with a subpoena or request who was not given the requisite
written consent was instructed to move to have the subpoena invalidated
``on the ground that the evidence sought is privileged against
disclosure by this rule.'' This approach incorrectly treated the
regulations as though they created a privilege against disclosure.
The FLRA is amending the regulations to set out specific procedures
that must be followed by persons who submit demands or requests for
non-public FLRA information. The new Part 2417 also sets out factors
that the FLRA will consider when deliberating on demands or requests
for non-public FLRA information. Non-public information, as that term
is used in this proposal, is information, confidential or otherwise,
not available to the public pursuant to the Freedom of Information Act.
Responding to such demands and requests may result in a significant
disruption of an FLRA employee's work schedule and possibly involve the
FLRA in issues unrelated to its responsibilities. In order to resolve
these problems, many agencies have issued regulations, similar to these
new regulations, governing the circumstances and manner in which an
employee may respond to demands for testimony or for the production of
documents. The United States Supreme Court upheld this type of
regulation in United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
This rule applies to a range of matters in any civil legal
proceeding in which the FLRA is not a named party. It also applies to
former and current FLRA employees (as well as to FLRA consultants and
advisors). Former FLRA employees are prohibited from testifying about
specific matters for which they had responsibility during their active
employment unless permitted to testify as provided in the regulations.
They would not be prohibited from testifying about general matters
unconnected with the specific FLRA matters for which they had
responsibility.
This rule will ensure a more efficient use of the FLRA's resources,
minimize the possibility of involving the FLRA in issues unrelated to
its responsibilities, promote uniformity in responding to such
subpoenas and requests, and maintain the impartiality of the FLRA in
matters that are in dispute between other parties. It will also serve
the FLRA's interest in protecting sensitive, confidential, and
privileged information and records that are generated in fulfillment of
the FLRA's statutory responsibilities.
The charges for witnesses are the same as those provided in Federal
courts; and the fees related to production of records are the same as
those charged under the Freedom of Information Act. The charges for
time spent by an employee to prepare for testimony and for searches,
copying, and certification of records by the FLRA are authorized under
31 U.S.C. 9701, which permits an agency to charge for services or
things of value that are provided by the agency.
This rule is internal and procedural rather than substantive. It
does not create a right to obtain official records or the official
testimony of an FLRA employee nor does it create any additional right
or privilege not already available to FLRA to deny any demand or
request for testimony or documents. Failure to comply with the
procedures set out in these regulations would be a basis for denying a
demand or request submitted to the FLRA.
On December 24, 2008, the FLRA published a proposed rule with
request for comments that proposed to amend 5 CFR, chapter XIV (73 FR
79024). The FLRA received no comments during the 30 days allowed for
public comment and this final rule makes no changes to the previously
published proposed rule. See 73 FR 79024 for additional information
concerning this amendment of 5 CFR, chapter XIV.
List of Subjects in 5 CFR Parts 2411 and 2417
Administrative practice and procedure; Government employees.
0
For the reasons stated in the preamble, the Federal Labor Relations
Authority amends 5 CFR part 2411 and adds part 2417 as set forth below:
PART 2411--AVAILABILITY OF OFFICIAL INFORMATION
0
1. The authority citation for part 2411 continues to read as follows:
Authority: 5 U.S.C. 552
[[Page 11640]]
Sec. 2411.11 [Removed]
0
2. Section 2411.11 is removed.
Sec. 2411.12 [Amended]
0
3. Section 2411.12 is redesignated as Sec. 2411.11.
0
4. Part 2417 is added to read as follows:
PART 2417--TESTIMONY BY EMPLOYEES RELATING TO OFFICIAL INFORMATION
AND PRODUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS
Subpart A--General Provisions
Sec.
2417.101 Scope and purpose.
2417.102 Applicability.
2417.103 Definitions.
Subpart B--Demands or Requests for Testimony and Production of
Documents
2417.201 General prohibition.
2417.202 Factors to consider.
2417.203 Filing requirements for litigants seeking documents or
testimony.
2417.204 Where to submit a request.
2417.205 Processing of requests or demands.
2417.206 Final determinations.
2417.207 Restrictions that apply to testimony.
2417.208 Restrictions that apply to released records.
2417.209 Procedure when a decision is not made prior to the time a
response is required.
2417.210 Procedure in the event of an adverse ruling.
Subpart C--Schedule of Fees
2417.301 Fees.
Subpart D--Penalties
2417.401 Penalties.
Authority: 5 U.S.C. 7105; 31 U.S.C. 9701; 44 U.S.C. 3101-3107.
Subpart A--General Provisions
Sec. 2417.101 Scope and purpose.
(a) These regulations establish policy, assign responsibilities and
prescribe procedures with respect to:
(1) The production or disclosure of official information or records
by employees, members, advisors, and consultants of the Federal Labor
Relations Authority, the General Counsel of the Federal Labor Relations
Authority or the Federal Service Impasses Panel; and
(2) The testimony of current and former employees, members,
advisors, and consultants of the Authority, the General Counsel or the
Panel relating to official information, official duties or official
records, in connection with civil federal or state litigation in which
the Authority, the General Counsel or the Panel is not a party.
(b) The FLRA intends these provisions to:
(1) Conserve the time of employees for conducting official
business;
(2) Minimize the involvement of employees in issues unrelated to
the mission of the FLRA;
(3) Maintain the impartiality of employees in disputes between
private litigants; and
(4) Protect sensitive, confidential information and the
deliberative processes of the FLRA.
(c) In providing for these requirements, the FLRA does not waive
the sovereign immunity of the United States.
(d) This part provides guidance for the internal operations of the
FLRA. 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. 2417.102 Applicability.
This part applies to demands and requests to current and former
employees, members, advisors, and consultants for factual or expert
testimony relating to official information or official duties or for
production of official records or information, in civil legal
proceedings in which the Authority, the General Counsel or the Panel is
not a named party. This part does not apply to:
(a) Demands upon or requests for an 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 Authority, the General Counsel or the
Panel;
(b) Demands upon or requests for a former employee to testify as to
matters in which the former employee was not directly or materially
involved while at the Authority, the General Counsel or the Panel;
(c) Requests for the release of records under the Freedom of
Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a;
(d) Congressional demands and requests for testimony, records or
information; or
(e) Demands or requests for testimony, records or information by
any Federal, state, or local agency in furtherance of an ongoing
investigation of possible violations of criminal law.
Sec. 2417.103 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 employee in a civil
legal proceeding.
(b) 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 civil legal or
administrative proceeding. Legal proceeding includes all phases of
litigation.
(c) Employee means:
(i) Any current or former employee or member of the Authority, the
General Counsel or the Federal Service Impasses Panel;
(ii) Any other individual hired through contractual agreement by or
on behalf of the Authority or who has performed or is performing
services under such an agreement for the Authority; and
(iii) Any individual who served or is serving in any consulting or
advisory capacity to the Authority whether formal or informal.
This definition does not include: Persons who are no longer
employed by the Authority, the General Counsel or the Panel 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 Authority, the General
Counsel or the Panel.
(d) Records or official records and information means: All
information in the custody and control of the Authority, the General
Counsel or the Panel, relating to information in the custody and
control thereof, or acquired by an employee while in the performance of
his or her official duties or because of his or her official status,
while the individual was employed by or on behalf of the Authority, the
General Counsel or the Panel.
(e) 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 or other competent authority.
(f) 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. 2417.201 General prohibition.
No employee of the Authority, the General Counsel or the Panel may
produce official records and information or provide any testimony
relating to
[[Page 11641]]
official information in response to a demand or request without the
prior, written approval of the Chairman of the FLRA or the Chairman's
designee.
Sec. 2417.202 Factors the FLRA will consider.
The Chairman or the Chairman's designee, 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 Chairman 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 FLRA in performing its statutory duties;
(d) Allowing such testimony or production of records would be in
the best interest of the FLRA;
(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 rules of
procedure governing the case or matter 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 FLRA appearing to favor one
litigant over another;
(k) 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;
(n) The demand or request is sufficiently specific to be answered;
and
(o) Any other factor deemed relevant under the circumstances of the
particular request.
Sec. 2417.203 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 part
2417. A request should be filed before a demand.
(a) The request must be in writing and must be submitted to the
Office of the Solicitor.
(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 FLRA 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 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 employee for time spent by the employee
to prepare for testimony, in travel, and for attendance in the legal
proceeding.
(c) The Office of the Solicitor 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 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 FLRA 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 employee's statement free of charge and that the requester will
permit the FLRA to have a representative present during the employee's
testimony.
Sec. 2417.204 Where to submit a request.
(a) Requests or demands for official records or information or
testimony under this part must be served on the Office of the Solicitor
at the following address: Office of the Solicitor, Federal Labor
Relations Authority, 1400 K Street, NW., Suite 201, Washington, DC
20424-0001; telephone: (202) 218-7999; fax: (202) 343-1007. The request
must be sent by mail, fax, or e-mail and clearly marked ``Part 2417
Request for Testimony or Official Records in Legal Proceedings.''
(b) A person requesting public FLRA information and non-public FLRA
information under this part may submit a combined request for both to
the Office of the Solicitor. If a requester decides to submit a
combined request under this section, the FLRA will process the combined
request under this part and not under part 2411 (FOIA).
Sec. 2417.205 Consideration of requests or demands.
(a) After receiving service of a request or demand for testimony,
the FLRA will review the request and, in accordance with the provisions
of this part, 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 FLRA will issue a
determination within 30 days from the date the request is received.
(c) The FLRA may grant a waiver of any procedure described by this
part where a waiver is considered necessary to promote a significant
interest of the FLRA or the United States or for other good cause.
(d) Certification (authentication) of copies of records. The FLRA
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 Solicitor at least 30 days before the
date they will be needed.
Sec. 2417.206 Final determination.
The Chairman of the FLRA, or the Chairman's designee, makes the
final determination on demands or requests to employees thereof for
production of official records and information or
[[Page 11642]]
testimony in litigation in which the FLRA is not a party. All final
determinations are within the sole discretion of the Chairman or the
Chairman's designee. The Chairman or designee will notify the requester
and, when appropriate, the court or other competent authority of the
final determination, the reasons for the grant or denial of the
request, and any conditions that may be imposed on the release of
records or information, or on the testimony of an employee. This final
determination exhausts administrative remedies for discovery of the
information.
Sec. 2417.207 Restrictions that apply to testimony.
(a) Conditions or restrictions may be imposed on the testimony of
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 requester may also be required to provide a copy of the
transcript of testimony at the requester's expense.
(b) The employee's written declaration may be provided 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 Chairman or the Chairman's
designee, the employee shall not:
(1) Disclose confidential or privileged information; or
(2) For a current 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 FLRA 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 approval of the Chairman or the Chairman's designee.
Sec. 2417.208 Restrictions that apply to released records.
(a) The Chairman or the Chairman's designee 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 Chairman or the
Chairman's designee. In cases where protective orders or
confidentiality agreements have already been executed, the Chairman or
the Chairman's designee may condition the release of official records
and information on an amendment to the existing protective order or
confidentiality agreement.
(b) If the Chairman or the Chairman's designee so determines,
original 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 records,
nor may they be marked or altered. In lieu of the original records,
certified copies may be presented for evidentiary purposes.
Sec. 2417.209 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
Chairman or the Chairman's designee can make the determination referred
to in Sec. 2417.206, the Chairman or the Chairman's designee, 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. 2417.210 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 Chairman or the Chairman's designee, 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. Touhy v. Ragen, 340 U.S. 462 (1951).
Subpart C--Schedule of Fees
Sec. 2417.301 Fees.
(a) Generally. The Chairman or the Chairman's designee may
condition the production of records or appearance for testimony upon
advance payment of a reasonable estimate of the costs thereto.
(b) Fees for records. Fees for producing records will include fees
for searching, reviewing, and duplicating records, costs of employee
time spent in reviewing the request, and expenses generated by
materials and equipment used to search for, produce, and copy the
responsive information. These fees and costs will be calculated and
charged as are like fees and costs arising from requests made pursuant
to the Freedom of Information Act regulations in Part 2411.
(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 court 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
employees and any record certification fees by submitting to the Office
of the Solicitor 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 employees, the requester must pay applicable fees directly to
the former employee in accordance with 28 U.S.C. 1821 or other
applicable statutes.
(e) Waiver or reduction of fees. The Chairman or the Chairman's
designee, 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. 2417.401 Penalties.
(a) An employee who discloses official records or information or
gives testimony relating to official information, except as expressly
authorized by the Chairman or the Chairman's designee, or as ordered by
a Federal court after the FLRA has had the opportunity to be heard, may
face the penalties provided in 18 U.S.C. 641 and other applicable laws.
Additionally, former employees are subject to the restrictions and
penalties of 18 U.S.C. 207 and 216.
(b) A current employee who testifies or produces official records
and information in violation of this part may be subject to
disciplinary action.
[[Page 11643]]
Dated: March 11, 2009.
Carol Waller Pope,
Acting Chairman.
[FR Doc. E9-5694 Filed 3-18-09; 8:45 am]
BILLING CODE 6727-01-P
