82 FR 49747 - Touhy Regulations
COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Federal Register Volume 82, Issue 207 (October 27, 2017)
Federal Register Volume 82, Issue 207 (October 27, 2017)
| Page Range | 49747-49751 | |
| FR Document | 2017-23388 |
[Federal Register Volume 82, Number 207 (Friday, October 27, 2017)] [Rules and Regulations] [Pages 49747-49751] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-23388] ======================================================================= ----------------------------------------------------------------------- COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED 41 CFR Part 51-11 RIN 3037-AA04 Touhy Regulations AGENCY: Committee for Purchase From People Who Are Blind or Severely Disabled. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Committee for Purchase From People Who Are Blind or Severely Disabled (Committee) has revised procedures to respond to subpoenas or other official demands for information and testimony served upon itself or its employees. DATES: This rule is effective November 27, 2017 FOR FURTHER INFORMATION CONTACT: Timi Kenealy, (703) 603-2100, Email: [email protected]. SUPPLEMENTARY INFORMATION: Background The Committee, operating as the U.S. AbilityOne Commission, administers the AbilityOne Program pursuant to the authority of 41 U.S.C. 8501. Through this program, employment opportunities are provided to people who are blind or severely disabled through the provisions of products and services to the Federal Government. Pursuant to 5 U.S.C. 301, the head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. The part does not authorize withholding information from the public or limiting the availability of records to the public. The United States Supreme Court held in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), that the head of a Federal agency may make the determination on his/her sole authority to produce documents and authorize employee's testimony in response to a subpoena or other demand for information. This regulation governs the Committee's procedures for authorizing or denying such demands. In addition to the updates for the Touhy case, the Committee made technical corrections to include changes to the mailing address and changed ``JWOD'' to ``AbilityOne'' the operating name of the agency since 2010. Changes to this section of the CFR were last made in 1994. On July 18, 2017, the Committee published a proposed rule outlining these changes on https://www.federalregister.gov/. No comments were received and this rule is being finalized with no additional changes. Regulatory Analysis Executive Order 12866, Regulatory Planning and Review, and Executive Order 13563, Improving Regulation and Regulatory Review Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule benefits the public and the United States Government by providing clear procedures for members of the public and Government employees to follow when official [[Page 49748]] testimony or official documents, records, files or information are sought from the Committee or from Committee personnel in connection with legal proceedings. This rule has not been designated a significant regulatory action. Unfunded Mandates Reform Act Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532) requires agencies to assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2016, that threshold is approximately $146 million. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs. Public Law 96-354, Regulatory Flexibility Act The Committee certifies this proposed rule is not subject to the Regulatory Flexibility Act (5 U.S.C. Ch. 6) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule will provide clarity to U.S. Government personnel and outside counsel on the proper rules and procedures to serve process on U.S. Government officials in their official capacity and to obtain official U.S. Government testimony or documents for use in legal proceedings. Therefore, the Regulatory Flexibility Act, as amended, does not require the Committee to prepare a regulatory flexibility analysis. Executive Order 13132, Federalism Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This rule will not have a substantial effect on the States; the relationship between the National Government and the States; or the distribution of power and responsibilities among the various levels of Government. Public Law 96-511, Paperwork Reduction Act It has been determined that this rule does not impose reporting or record keeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). List of Subjects in 41 CFR Part 51-11 Administrative practices and procedures, Courts, Disclosure, Exemptions, Government employees, Subpoenas, Records, Testimony. 0 For the reasons set forth above, the Committee amends chapter 51 of title 41 by adding part 51-11 to read as follows: PART 51-11--PRODUCTION OR DISCLOSURE IN FEDERAL AND STATE PROCEEDINGS Sec. 51-11.1 Scope and purpose. 51-11.2 Applicability. 51-11.3 Definitions. 51-11.4 General prohibition. 51-11.5 Service of demand. 51-11.6 Filing requirements for demand for documents or testimony. 51-11.7 Factors the Committee will consider. 51-11.8 Processing demands or requests. 51-11.9 Final determination. 51-11.10 Restrictions that apply to testimony. 51-11.11 Restrictions that apply to released records. 51-11.12 Procedure when a decision is not made prior to the time a response is required. 51-11.13 Procedure in the event of an adverse ruling. 51-11.14 Fees. 51-11.15 Penalties. Authority: 41 U.S.C. 8503(d); 41 CFR Ch. 51. Sec. 51-11.1 Scope and purpose. (a) This part sets forth policies and procedures of the Committee for Purchase From People Who Are Blind or Severely Disabled (Committee) regarding the testimony of current and former employees as witnesses and the production or disclosure of Committee documents or information: (1) In all Federal and State proceedings in which the United States is a party; and (2) In all Federal and State proceedings in which the United States is not a party, when a demand pursuant to a subpoena, order or request (collectively referred to in this part as a ``demand'') of a court or other authority is issued for such material, testimony, or information. (b) The Committee intends these provisions to: (1) Promote economy and efficiency in its programs and operations; (2) Minimize the possibility of involving the Committee in controversial issues not related to its functions; (3) Prevent the misuse of the Committee's employees as involuntary expert witnesses for private interests or as inappropriate expert witnesses as to the state of the law; (4) Maintain the Committee's impartiality among private litigants where neither the Committee nor any other Federal entity is a named party; and (5) Protect sensitive, confidential information and the deliberative processes of the Committee. (c) In providing for these requirements, the Committee does not waive the sovereign immunity of the United States. (d) This part provides guidance for the internal operations of the Committee. The procedures specified in this part, or the failure of any Committee employee to follow the procedures specified in this part, are not intended to, do not, and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by a party against the United States. Sec. 51-11.2 Applicability. This part applies to demands and requests to employees of the Committee in legal proceedings, for factual or expert testimony relating to official information or for production of official records or information. However, it does not apply to: (a) Demands for a current Committee 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 Committee; (b) Demands for a former Committee employee to testify as to matters in which the former employee was not directly or materially involved while at the Committee; (c) Requests for the release of non-exempt records under the Freedom of Information Act, 5 U.S.C. 552 (41 CFR part 51-8), or the Privacy Act, 5 U.S.C. 552(a) (41 CFR part 51-9); and (d) Congressional or Government Accountability Office (GAO) demands and requests for testimony or records. Sec. 51-11.3 Definitions. As used in this part: Committee means the Committee for Purchase From People Who Are Blind or Severely Disabled. Committee employee or employee means: (1) Any current or former officer or employee of the Committee; (2) Any other individual hired through contractual agreement by or on behalf of the Committee or who has performed or is performing services under such an agreement for the Committee; and (3) Any individual who served or is serving in any consulting or advisory [[Page 49749]] capacity to the Committee, whether formal or informal. (4) Provided, that this definition does not include persons who are no longer employed by the Committee and who are retained or hired as expert witnesses or who agree to testify about general matters available to the public, or matters with which they had no specific involvement or responsibility during their employment with the Committee. Demand means a subpoena, request, or an order or other command of a court or other competent authority, for the production, disclosure, or release of records or information related to, for the appearance and testimony of a Committee employee that is issued in a legal proceeding. General Counsel means Committee General Counsel or Committee employee to whom the General Counsel has delegated authority to act under this part. Legal proceeding means any matter before a court of law, administrative board or tribunal, commission, administrative law judge, hearing officer, or other body that conducts a legal or administrative proceeding. Legal proceeding includes all phases of discovery, litigation and informal requests by attorneys or others involved in legal proceedings seeking interviews or the like. Records or official records and information mean all documents and materials, however stored, that is in the custody and control of the Committee, relating to information in the custody and control of the Committee, or acquired by a Committee employee in the performance of his or her official duties or because of his or her official status, while such individual was employed. 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. Testimony means any written or oral statements, including depositions, answers to interrogatories, affidavits, declarations, recorded interviews, and statements made by an individual in connection with a legal proceeding. Sec. 51-11.4 General prohibition. (a) In any Federal or State case or matter in which the United States is not a party, no employee or former employee of the Committee shall, in response to a demand, produce any record contained in the files of the Committee, or disclose any information relating to or based upon record contained in the files of the Department, or disclose any information or produce any record acquired as part of the performance of that person's official duties or because of that person's official status without prior written approval of the General Counsel in accordance with Sec. 51-11.9. (1) Whenever a demand is made upon an employee or former employee as described in this paragraph (a), the employee shall immediately notify the General Counsel. The General Counsel shall follow procedures set forth in Sec. 51-11.8. (2) If oral testimony is sought by a demand in any case or matter in which the United States is not a party, an affidavit, or, if that is not feasible, a statement by the party seeking the testimony or by his attorney, setting forth a summary of the testimony sought and its relevance to the proceeding, must be furnished to the General Counsel. Any authorization for testimony by a present or former employee of the Committee shall be limited to the scope of the demand as summarized in such statement. (3) When information other than oral testimony is sought by a demand, the General Counsel shall request a summary of the information sought and its relevance to the proceeding. (b) In any Federal or State case or matter in which the United States is a party, the General Counsel is authorized to reveal and furnish to any person, including an actual or prospective witness, a grand jury, counsel, or a court, either during or preparatory to a proceeding, such testimony, and relevant unclassified material, documents, or information secured by the employee or former employee of the Committee, as the General Counsel shall deem necessary or desirable to the discharge of the attorney's official duties: Provided, Such an attorney shall consider, with respect to any disclosure, the factors set forth in Sec. 51-11.7. (1) If oral testimony is sought by a demand in a case or matter in which the United States is a party, an affidavit, or, if that is not feasible, a statement by the party seeking the testimony or by the party's attorney setting forth a summary of the testimony sought must be furnished to the agency attorney handling the case or matter. (2) [Reserved] (c) In appropriate cases, the General Counsel shall notify the United States Department of Justice (DOJ) of the demand and coordinate with the DOJ to file any appropriate motions or other pleadings. Sec. 51-11.5 Service of demand. (a) Written demands directed to the Committee or requests for official records, information or testimony shall be served in accordance with the requirements of the Federal Rules of Civil or Criminal Procedure, or applicable State procedures, as appropriate. If the demand is served by U.S. mail, it should be addressed to the General Counsel, Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, VA 22202. The Committee's acceptance of service of a demand shall not constitute an admission or waiver of any objection with respect to the propriety of jurisdiction, service of process, venue or any other defense in law or equity available under applicable law. (b) If any doubt exists, whether a demand relates to purely personal matters or arises out of the performance of official duties, copies of the demand may be delivered to the General Counsel for such determination. Sec. 51-11.6 Filing requirements for demands for documents or testimony. Compliance with the following requirements is required when issuing demands or requests for official records, information or testimony. (a) Requests must be in writing and must be submitted to the General Counsel. If a subpoena is served on the Committee or a Committee employee before submitting a written request and receiving a final determination, the Committee will object to the subpoena on grounds that it was not submitted in accordance with this part. (b) Written requests 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 the relevance of the information sought; (3) 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 the need to maintain any confidentiality of the information and outweighs the burden on the Committee 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 a Committee employee, such as a retained expert; [[Page 49750]] (6) If testimony is requested, the intended use of the testimony, a general summary of the desired 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 with each Committee employee for time spent by the employee to prepare for testimony, in travel, and for attendance at the legal proceeding. (c) The Committee reserves the right to require additional information to complete any request where appropriate. (d) Requests should be submitted at least 45 calendar days before the date that records or testimony is required. Requests submitted in less than 45 calendar days before records or testimony is required must be accompanied by a written explanation stating the reasons for the late request and the reasons for expedited processing. (e) Failure to cooperate in good faith to enable the General Counsel to make an informed decision may serve as the basis for a determination not to comply with the request. Sec. 51-11.7 Factors the Committee will consider. The General Counsel in his or her sole discretion, may grant an employee permission to testify on matters relating to official information, or produce official records and information, in response to an appropriate demand or request. Among the relevant factors that the General Counsel may consider in making this decision are whether: (a) The purposes of this part are met; (b) Allowing such testimony or production of records would be necessary to prevent a miscarriage of justice; (c) The Committee has an interest in the decision that may be rendered in the legal proceeding; (d) Allowing such testimony or production of records would assist or hinder the Committee in performing its statutory duties or use the Committee resources in a way that will interfere with the ability of the Committee employees to do their regular work; (e) Allowing such testimony or production of records would be in the best interest of the Committee or the United States; (f) The records or testimony can be obtained from other sources; (g) 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; (h) Disclosure would violate a statute, Executive order or regulation; (i) Disclosure would reveal confidential, sensitive, or privileged information, trade secrets or similar, confidential commercial or financial information, otherwise protected information, or would otherwise be inappropriate for release; (j) Disclosure would impede or interfere with an ongoing law enforcement investigation or proceedings, or compromise constitutional rights; (k) Disclosure would result in the Committee appearing to favor one private litigant over another private litigant; (l) Disclosure relates to documents that originate from another agency; (m) A substantial Government interest is implicated; (n) The demand or request is within the authority of the party making it; (o) The demand improperly seeks to compel a Committee employee to serve as an expert witness for a private interest; (p) The demand improperly seeks to compel a Committee employee to testify as to a matter of law; and/or (q) The demand or request is sufficiently specific to be answered. Sec. 51-11.8 Processing demands or requests. (a) After service of a demand or request, the General Counsel will review the demand or request and, in accordance with the provisions of this part, determine whether, or under what conditions, to authorize an employee to testify on matters relating to Committee records and/or produce records. (b) The Committee will process requests in the order in which they are received. Absent exigent or unusual circumstances, the Committee will respond within 45 calendar days from the date of receipt. The time for response will depend upon the scope of the request. (c) The General Counsel may grant a waiver of any procedure described by this part where a waiver is considered necessary to promote a significant interest of the Committee or the United States or for other good cause. Sec. 51-11.9 Final determination. The General Counsel makes the final determination on demands and requests for production of official records and information or testimony. All final determinations are within the sole discretion of the General Counsel. The General Counsel will notify the requester and the court or other authority of the final determination, the reasons for the grant or denial of the demand or request, and any conditions that the General Counsel may impose on the release of records or information, or on the testimony of a Committee employee. Sec. 51-11.10 Restrictions that apply to testimony. (a) Conditions or restrictions may be imposed on the testimony of the Committee employees including, for example, limiting the areas of testimony or requiring the requester and other parties to the legal proceeding to agree that they will seek to file the transcript of the testimony under seal and that it will be used or made available only in the particular legal proceeding for which testimony was requested. The General Counsel may also require a copy of the transcript or testimony be provided to the Committee at the requester's expense. (b) The Committee may offer the employee's written declaration in lieu of testimony. (c) If authorized to testify pursuant to this part, an employee may testify as to facts within his or her personal knowledge, but, unless specifically authorized to do so by the General Counsel, the employee shall not: (1) Disclose confidential or privileged information; (2) Testify as to any information outside the scope of the General Counsel's authorization (see Sec. 51-11.7); or (3) For a current Committee 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 Committee unless testimony is being given on behalf of the United States whether or not the United States is a party. Sec. 51-11.11 Restrictions that apply to released records. (a) The General Counsel may impose conditions or restrictions on the release of official records and information, including the requirement that parties to the proceeding obtain a protective order or execute a confidentiality agreement to limit access and any further disclosure. The terms of the protective order or of a confidentiality agreement must be acceptable to the General Counsel. In cases where protective orders or confidentiality agreements [[Page 49751]] have already been executed, the Committee may condition the release of official records and information on an amendment to the existing protective order or confidentiality agreement. (b) If the General Counsel so determines, original Committee records may be presented for examination in response to a demand or request, but they are not to be presented as evidence or otherwise used in a manner by which they could lose their identity as official Committee records, and they are not to be marked or altered. In lieu of the original records, certified copies will be presented for evidentiary purposes. Sec. 51-11.12 Procedure when a decision is not made prior to the time a response is required. If a response to a demand or request is required before the General Counsel can make the determination previously referred to, the General Counsel when necessary, will provide the court or other competent authority with a copy of this part, inform the court or other competent authority that the demand or request is being reviewed, and seek a stay of the demand or request pending a final determination. Sec. 51-11.13 Procedure in the event of an adverse ruling. If the court or other competent authority fails to stay the demand, the employee upon whom the demand or request is made, unless otherwise advised by the General Counsel, will appear at the stated time and place, produce a copy of this part, state that the employee has not been authorized to provide the requested testimony or produce documents, and respectfully decline to comply with the demand, citing United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). A written response may be offered to a request, or to a demand, if permitted by the court or other competent authority. Sec. 51-11.14 Fees. (a) Generally. The General Counsel may condition the production of records or appearance for testimony upon advance payment of a reasonable estimate of the costs to the Committee. (b) Fees for records. Fees for producing records will include fees for searching, reviewing, and duplicating records, costs of attorney time spent in reviewing the demand or request, and expenses generated by materials and equipment used to search for, produce, and copy the responsive information. Costs for employee time will be calculated on the basis of the hourly pay of the employee (including all pay, allowance, and benefits). Fees for duplication will be the same as those charged by the Committee in its Freedom of Information Act regulations at 41 CFR part 51-8. (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. Such fees will include cost of time spent by the witness to prepare for testimony, travel time and expenses, and for attendance in the legal proceeding. (d) Payment of fees. Witness fees for current Committee employees and any records certification fees shall be paid by check or money order presented to the Committee made payable to the United States Department of Treasury. Applicable fees for former Committee employees' testimony must be paid directly to the former employee in accordance with 28 U.S.C. 1821 or other applicable statutes. (e) Certification (authentication) of copies of records. The Committee Records Manager may certify that records are true copies in order to facilitate their use as evidence. Certification requests require 45 calendar days for processing and a fee of $15.00 for each document certified. (f) Waiver or reduction of fees. The General Counsel, in his or her sole discretion, may, upon a showing of reasonable cause, waive or reduce any fees in connection with the testimony, production, or certification of records. (g) De minimis fees. Fees will not be assessed if the total charge would be $10.00 or less. Sec. 51-11.15 Penalties. (a) An employee who discloses official records or information or gives testimony relating to official information, except as expressly authorized by the Committee, or as ordered by a Federal court after the Committee has had the opportunity to be heard, may face the penalties provided in 18 U.S.C. 641 and other applicable laws. Additionally, former Committee employees are subject to the restrictions and penalties of 18 U.S.C. 207 and 216. (b) A current Committee employee who testifies or produces official records and information in violation of this part may be subject to disciplinary action. Patricia Briscoe, Deputy Director, Business Operations (Pricing and Information Management). [FR Doc. 2017-23388 Filed 10-26-17; 8:45 am] BILLING CODE 6353-01-P
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Children from Environmental Health Register. This action is not a ‘‘major the AbilityOne Program pursuant to the
Risks and Safety Risks’’ (62 FR 19885, rule’’ as defined by 5 U.S.C. 804(2). authority of 41 U.S.C. 8501. Through
April 23, 1997). This action does not this program, employment opportunities
List of Subjects in 40 CFR Part 180
contain any information collections are provided to people who are blind or
subject to OMB approval under the Environmental protection, severely disabled through the provisions
Paperwork Reduction Act (PRA), 44 Administrative practice and procedure, of products and services to the Federal
U.S.C. 3501 et seq., nor does it require Agricultural commodities, Pesticides Government.
any special considerations under and pests, Reporting and recordkeeping Pursuant to 5 U.S.C. 301, the head of
Executive Order 12898, entitled requirements. an Executive department or military
‘‘Federal Actions to Address Dated: October 11, 2017. department may prescribe regulations
Environmental Justice in Minority Richard P. Keigwin, Jr., for the government of his department,
Populations and Low-Income Director, Office of Pesticide Programs. the conduct of its employees, the
Populations’’ (59 FR 7629, February 16, distribution and performance of its
1994). Therefore, 40 CFR chapter I is business, and the custody, use, and
Since tolerances and exemptions that amended as follows: preservation of its records, papers, and
are established on the basis of a petition property. The part does not authorize
under FFDCA section 408(d), such as PART 180—[AMENDED]
withholding information from the
the tolerance exemption in this action, public or limiting the availability of
■ 1. The authority citation for part 180
do not require the issuance of a records to the public.
continues to read as follows:
proposed rule, the requirements of the The United States Supreme Court
Regulatory Flexibility Act (RFA) (5 Authority: 21 U.S.C. 321(q), 346a and 371. held in United States ex rel. Touhy v.
U.S.C. 601 et seq.) do not apply. ■ 2. Add § 180.1347 to subpart D to read Ragen, 340 U.S. 462 (1951), that the
This action directly regulates growers, as follows: head of a Federal agency may make the
food processors, food handlers, and food determination on his/her sole authority
retailers, not States or tribes. As a result, § 180.1347 Bacillus amyloliquefaciens
to produce documents and authorize
this action does not alter the strain F727; exemption from the
requirement of a tolerance. employee’s testimony in response to a
relationships or distribution of power subpoena or other demand for
and responsibilities established by An exemption from the requirement
information.
Congress in the preemption provisions of a tolerance is established for residues This regulation governs the
of FFDCA section 408(n)(4). As such, of Bacillus amyloliquefaciens strain Committee’s procedures for authorizing
EPA has determined that this action will F727 in or on all food commodities or denying such demands. In addition to
not have a substantial direct effect on when used in accordance with label the updates for the Touhy case, the
States or tribal governments, on the directions and good agricultural Committee made technical corrections
relationship between the national practices. to include changes to the mailing
government and the States or tribal [FR Doc. 2017–23469 Filed 10–26–17; 8:45 am]
address and changed ‘‘JWOD’’ to
governments, or on the distribution of BILLING CODE 6560–50–P
‘‘AbilityOne’’ the operating name of the
power and responsibilities among the agency since 2010. Changes to this
various levels of government or between section of the CFR were last made in
the Federal Government and Indian COMMITTEE FOR PURCHASE FROM 1994. On July 18, 2017, the Committee
tribes. Thus, EPA has determined that PEOPLE WHO ARE BLIND OR published a proposed rule outlining
Executive Order 13132, entitled SEVERELY DISABLED these changes on https://
‘‘Federalism’’ (64 FR 43255, August 10, www.federalregister.gov/. No comments
1999), and Executive Order 13175, 41 CFR Part 51–11
were received and this rule is being
entitled ‘‘Consultation and Coordination RIN 3037–AA04 finalized with no additional changes.
with Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), do not apply Touhy Regulations Regulatory Analysis
to this action. In addition, this action Executive Order 12866, Regulatory
does not impose any enforceable duty or AGENCY: Committee for Purchase From
People Who Are Blind or Severely Planning and Review, and Executive
contain any unfunded mandate as Order 13563, Improving Regulation and
described under Title II of the Unfunded Disabled.
ACTION: Final rule.
Regulatory Review
Mandates Reform Act (UMRA) (2 U.S.C.
1501 et seq.). Executive Orders 12866 and 13563
SUMMARY: The Committee for Purchase direct agencies to assess all costs and
This action does not involve any
From People Who Are Blind or Severely benefits of available regulatory
technical standards that would require
Disabled (Committee) has revised alternatives and, if regulation is
EPA’s consideration of voluntary
procedures to respond to subpoenas or necessary, to select regulatory
consensus standards pursuant to section
other official demands for information approaches that maximize net benefits
12(d) of the National Technology
and testimony served upon itself or its (including potential economic,
Transfer and Advancement Act
employees. environmental, public health and safety
(NTTAA) (15 U.S.C. 272 note).
DATES: This rule is effective November effects, distribute impacts, and equity).
V. Congressional Review Act 27, 2017 Executive Order 13563 emphasizes the
asabaliauskas on DSKBBXCHB2PROD with RULES
Pursuant to the Congressional Review FOR FURTHER INFORMATION CONTACT: importance of quantifying both costs
Act (5 U.S.C. 801 et seq.), EPA will Timi Kenealy, (703) 603–2100, Email: and benefits, of reducing costs, of
submit a report containing this rule and CMTEFedReg@AbilityOne.gov. harmonizing rules, and of promoting
other required information to the U.S. SUPPLEMENTARY INFORMATION: flexibility. This rule benefits the public
Senate, the U.S. House of and the United States Government by
Representatives, and the Comptroller Background providing clear procedures for members
General of the United States prior to The Committee, operating as the U.S. of the public and Government
publication of the rule in the Federal AbilityOne Commission, administers employees to follow when official
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capacity to the Committee, whether any record acquired as part of the records, information or testimony shall
formal or informal. performance of that person’s official be served in accordance with the
(4) Provided, that this definition does duties or because of that person’s requirements of the Federal Rules of
not include persons who are no longer official status without prior written Civil or Criminal Procedure, or
employed by the Committee and who approval of the General Counsel in applicable State procedures, as
are retained or hired as expert witnesses accordance with § 51–11.9. appropriate. If the demand is served by
or who agree to testify about general (1) Whenever a demand is made upon U.S. mail, it should be addressed to the
matters available to the public, or an employee or former employee as General Counsel, Committee for
matters with which they had no specific described in this paragraph (a), the Purchase From People Who Are Blind
involvement or responsibility during employee shall immediately notify the or Severely Disabled, 1401 S. Clark
their employment with the Committee. General Counsel. The General Counsel Street, Suite 715, Arlington, VA 22202.
Demand means a subpoena, request, shall follow procedures set forth in The Committee’s acceptance of service
or an order or other command of a court § 51–11.8. of a demand shall not constitute an
or other competent authority, for the (2) If oral testimony is sought by a admission or waiver of any objection
production, disclosure, or release of demand in any case or matter in which with respect to the propriety of
records or information related to, for the the United States is not a party, an jurisdiction, service of process, venue or
appearance and testimony of a affidavit, or, if that is not feasible, a any other defense in law or equity
Committee employee that is issued in a statement by the party seeking the available under applicable law.
legal proceeding. testimony or by his attorney, setting (b) If any doubt exists, whether a
General Counsel means Committee forth a summary of the testimony sought demand relates to purely personal
General Counsel or Committee and its relevance to the proceeding, matters or arises out of the performance
employee to whom the General Counsel must be furnished to the General of official duties, copies of the demand
has delegated authority to act under this Counsel. Any authorization for may be delivered to the General Counsel
part. testimony by a present or former for such determination.
Legal proceeding means any matter employee of the Committee shall be
before a court of law, administrative limited to the scope of the demand as § 51–11.6 Filing requirements for demands
board or tribunal, commission, summarized in such statement. for documents or testimony.
administrative law judge, hearing (3) When information other than oral Compliance with the following
officer, or other body that conducts a testimony is sought by a demand, the requirements is required when issuing
legal or administrative proceeding. General Counsel shall request a demands or requests for official records,
Legal proceeding includes all phases of summary of the information sought and information or testimony.
discovery, litigation and informal its relevance to the proceeding. (a) Requests must be in writing and
requests by attorneys or others involved (b) In any Federal or State case or must be submitted to the General
in legal proceedings seeking interviews matter in which the United States is a Counsel. If a subpoena is served on the
or the like. party, the General Counsel is authorized Committee or a Committee employee
Records or official records and to reveal and furnish to any person, before submitting a written request and
information mean all documents and including an actual or prospective receiving a final determination, the
materials, however stored, that is in the witness, a grand jury, counsel, or a Committee will object to the subpoena
custody and control of the Committee, court, either during or preparatory to a on grounds that it was not submitted in
relating to information in the custody proceeding, such testimony, and accordance with this part.
and control of the Committee, or relevant unclassified material, (b) Written requests must contain the
acquired by a Committee employee in documents, or information secured by following information:
the performance of his or her official the employee or former employee of the (1) The caption of the legal
duties or because of his or her official Committee, as the General Counsel shall proceeding, docket number, and name
status, while such individual was deem necessary or desirable to the and address of the court or other
employed. discharge of the attorney’s official authority involved;
Request means any informal request, duties: Provided, Such an attorney shall (2) A copy of the complaint or
by whatever method, for the production consider, with respect to any disclosure, equivalent document setting forth the
of records and information or for the factors set forth in § 51–11.7. assertions in the case and any other
testimony which has not been ordered (1) If oral testimony is sought by a pleading or document necessary to
by a court or other competent authority. demand in a case or matter in which the show the relevance of the information
Testimony means any written or oral United States is a party, an affidavit, or, sought;
statements, including depositions, if that is not feasible, a statement by the (3) A detailed description of how the
answers to interrogatories, affidavits, party seeking the testimony or by the information sought is relevant to the
declarations, recorded interviews, and party’s attorney setting forth a summary issues in the legal proceeding, and a
statements made by an individual in of the testimony sought must be specific description of the substance of
connection with a legal proceeding. furnished to the agency attorney the testimony or records sought;
handling the case or matter. (4) A statement as to how the need for
§ 51–11.4 General prohibition. the information outweighs the need to
(2) [Reserved]
(a) In any Federal or State case or (c) In appropriate cases, the General maintain any confidentiality of the
matter in which the United States is not Counsel shall notify the United States information and outweighs the burden
asabaliauskas on DSKBBXCHB2PROD with RULES
a party, no employee or former Department of Justice (DOJ) of the on the Committee to produce the
employee of the Committee shall, in demand and coordinate with the DOJ to records or provide testimony;
response to a demand, produce any file any appropriate motions or other (5) A statement indicating that the
record contained in the files of the pleadings. information sought is not available from
Committee, or disclose any information another source, from other persons or
relating to or based upon record § 51–11.5 Service of demand. entities, or from the testimony of
contained in the files of the Department, (a) Written demands directed to the someone other than a Committee
or disclose any information or produce Committee or requests for official employee, such as a retained expert;
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![Federal Register / Vol. 82, No. 207 / Friday, October 27, 2017 / Rules and Regulations 49751
have already been executed, the charged by the Committee in its DEPARTMENT OF THE INTERIOR
Committee may condition the release of Freedom of Information Act regulations
official records and information on an at 41 CFR part 51–8. Fish and Wildlife Service
amendment to the existing protective (c) Witness fees. Fees for attendance
order or confidentiality agreement. by a witness will include fees, expenses, 50 CFR Part 17
(b) If the General Counsel so and allowances prescribed by the [Docket No. FWS–HQ–ES–2015–0009;
determines, original Committee records court’s rules. If no such fees are 4500090023]
may be presented for examination in prescribed, witness fees will be
response to a demand or request, but determined based upon the rule of the RIN 1018–BA80
they are not to be presented as evidence Federal district court closest to the
or otherwise used in a manner by which Endangered and Threatened Wildlife
location where the witness will appear.
they could lose their identity as official and Plants; Removing Textual
Such fees will include cost of time spent
Committee records, and they are not to Descriptions of Critical Habitat
by the witness to prepare for testimony,
be marked or altered. In lieu of the Boundaries for Plants on the Hawaiian
travel time and expenses, and for
original records, certified copies will be Islands
attendance in the legal proceeding.
presented for evidentiary purposes. (d) Payment of fees. Witness fees for AGENCY: Fish and Wildlife Service,
current Committee employees and any Interior.
§ 51–11.12 Procedure when a decision is
not made prior to the time a response is records certification fees shall be paid ACTION: Final rule.
required. by check or money order presented to
the Committee made payable to the SUMMARY: We, the U.S. Fish and
If a response to a demand or request
United States Department of Treasury. Wildlife Service (Service), are removing
is required before the General Counsel
can make the determination previously Applicable fees for former Committee the textual descriptions of critical
referred to, the General Counsel when employees’ testimony must be paid habitat boundaries from those
necessary, will provide the court or directly to the former employee in designations for plants on the Hawaiian
other competent authority with a copy accordance with 28 U.S.C. 1821 or other Islands of Kauai, Niihau, and Hawaii for
of this part, inform the court or other applicable statutes. which the maps have been determined
competent authority that the demand or (e) Certification (authentication) of to be sufficient to stand as the official
request is being reviewed, and seek a copies of records. The Committee delineation of critical habitat. For these
stay of the demand or request pending Records Manager may certify that entries, the boundaries of critical habitat
a final determination. records are true copies in order to as mapped or otherwise described will
facilitate their use as evidence. be the official delineation of the
§ 51–11.13 Procedure in the event of an Certification requests require 45 designation. The coordinates and/or
adverse ruling. calendar days for processing and a fee plot points that we are removing from
If the court or other competent of $15.00 for each document certified. the Code of Federal Regulations will be
authority fails to stay the demand, the (f) Waiver or reduction of fees. The available to the public at the lead field
employee upon whom the demand or General Counsel, in his or her sole office of the Service responsible for the
request is made, unless otherwise discretion, may, upon a showing of designation and online at the Federal
advised by the General Counsel, will reasonable cause, waive or reduce any eRulemaking Portal. This action does
appear at the stated time and place, fees in connection with the testimony, not increase, decrease, or otherwise
produce a copy of this part, state that production, or certification of records. change the boundaries of any critical
the employee has not been authorized to (g) De minimis fees. Fees will not be habitat designation. We are taking this
provide the requested testimony or assessed if the total charge would be action in accordance with our May 1,
produce documents, and respectfully $10.00 or less. 2012, revision of the regulations related
decline to comply with the demand, to publishing textual descriptions of
citing United States ex rel. Touhy v. § 51–11.15 Penalties.
critical habitat boundaries in the Code
Ragen, 340 U.S. 462 (1951). A written (a) An employee who discloses of Federal Regulations and as part of our
response may be offered to a request, or official records or information or gives response to Executive Order 13563
to a demand, if permitted by the court testimony relating to official (January 18, 2011) directing Federal
or other competent authority. information, except as expressly agencies to review their existing
authorized by the Committee, or as regulations and then to modify or
§ 51–11.14 Fees. ordered by a Federal court after the streamline them in accordance with
(a) Generally. The General Counsel Committee has had the opportunity to what they learned.
may condition the production of records be heard, may face the penalties
or appearance for testimony upon DATES: This rule is effective November
provided in 18 U.S.C. 641 and other 27, 2017.
advance payment of a reasonable applicable laws. Additionally, former
estimate of the costs to the Committee. ADDRESSES: This final rule is available
Committee employees are subject to the
(b) Fees for records. Fees for online at the Federal eRulemaking
restrictions and penalties of 18 U.S.C.
producing records will include fees for Portal at http://www.regulations.gov.
207 and 216.
searching, reviewing, and duplicating (b) A current Committee employee Supporting documentation used in the
records, costs of attorney time spent in who testifies or produces official preparation of this rule will be available
reviewing the demand or request, and records and information in violation of for public inspection, by appointment,
asabaliauskas on DSKBBXCHB2PROD with RULES
expenses generated by materials and this part may be subject to disciplinary during normal business hours at: U.S.
equipment used to search for, produce, action. Fish and Wildlife Service, Branch of
and copy the responsive information. Listing Policy and Support, MS: ES,
Costs for employee time will be Patricia Briscoe, 5275 Leesburg Pike, Falls Church, VA
calculated on the basis of the hourly pay Deputy Director, Business Operations (Pricing 22041–3803; telephone 703–358–2171;
of the employee (including all pay, and Information Management). facsimile 703–358–1735.
allowance, and benefits). Fees for [FR Doc. 2017–23388 Filed 10–26–17; 8:45 am] FOR FURTHER INFORMATION CONTACT:
duplication will be the same as those BILLING CODE 6353–01–P Carey Galst, U.S. Fish and Wildlife
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Document Created: 2017-10-27 02:06:40
Document Modified: 2017-10-27 02:06:40
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule is effective November 27, 2017 | |
| Contact | Timi Kenealy, (703) 603-2100, Email: [email protected] | |
| FR Citation | 82 FR 49747 | |
| RIN Number | 3037-AA04 | |
| CFR Associated | Administrative Practices and Procedures; Courts; Disclosure; Exemptions; Government Employees; Subpoenas; Records and Testimony |
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