[Federal Register Volume 67, Number 205 (Wednesday, October 23, 2002)]
[Rules and Regulations]
[Pages 65276-65277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27045]



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Part VI





Department of Housing and Urban Development





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24 CFR Part 15



Testimony of Employees in Legal Proceedings; Final Rule

  Federal Register / Vol. 67 , No. 205 / Wednesday, October 23, 2002 / 
Rules and Regulations  

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 15

[Docket No. FR-4783-F-01]
RIN 2501-AC90


Testimony of Employees in Legal Proceedings

AGENCY: Office of the Secretary, HUD.

ACTION: Final rule.

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SUMMARY: This final rule amends HUD regulations to delegate authority 
to the General Counsel to authorize, for good cause shown, an employee 
to testify as an expert or opinion witness in both matters in which the 
United States is a party as well as in matters exclusively among non-
federal litigants.

DATES: Effective Date: November 22, 2002.

FOR FURTHER INFORMATION CONTACT: Carole W. Wilson, Associate General 
Counsel, Office of Litigation, Office of General Counsel, Department of 
Housing and Urban Development, 451 Seventh Street, SW., Room 10258, 
Washington, DC 20410, telephone (202) 708-0300 (this is not a toll-free 
number). A telecommunications device for hearing- and speech-impaired 
persons (TTY) is available at 1-800-877-8339 (Federal Information Relay 
Services) (this is a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    This rule amends the HUD regulations in subpart D of 24 CFR part 15 
to provide explicitly that only the Secretary or the General Counsel 
may authorize an exception to the general prohibition against an 
employee of the Department being called to testify as an expert or 
opinion witness by a party other than the United States. The rule also 
defines ``good cause'' for when HUD may permit expert or opinion 
testimony under specified circumstances.
    The general rule currently in 24 CFR 15.302 only permits employees 
of the Department to provide expert or opinion testimony on behalf of 
the United States. The objective of HUD's decision to authorize its 
employees to provide such testimony on behalf of non-federal litigants 
for good cause shown is to allow HUD to respond to meritorious requests 
for expert and opinion testimony, for example in criminal proceedings 
or administrative disciplinary actions for misconduct in connection 
with a HUD program. HUD believes that the amendment made by this rule 
will strengthen the integrity of HUD programs, and support HUD's 
partners in ensuring that business is conducted in accordance with 
HUD's core values and ethical standards.

Findings and Certifications

Justification for Final Rule

    In general, the Department publishes a rule for public comment 
before issuing a rule for effect, in accordance with its own 
regulations on rulemaking at 24 CFR part 10. Part 10, however, does 
provide in Sec.  10.1 for exceptions from that general rule under which 
prior notice and comment are not required. One exception provides that 
the notice and public procedure may be omitted with respect to rules 
governing the Department's organization or the Department's own 
internal practices or procedures. This rule authorizes the General 
Counsel to make determinations regarding the testimony of employees of 
the Department in legal proceedings, and, as such, is limited to the 
Department's internal practices and procedures. Prior notice and 
comment are, therefore, not required.

Environmental Review

    This rule would not direct, provide for assistance or loan and 
mortgage insurance for, or otherwise govern or regulate real property 
acquisition, disposition, leasing, rehabilitation, alteration, 
demolition, or new construction, or establish, revise, or provide for 
standards for construction or construction materials, manufactured 
housing or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this rule 
is categorically excluded from environmental review under the National 
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321).

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
establishes requirements for Federal agencies to assess the effects of 
their regulatory actions on State, local, and tribal governments and 
the private sector. This rule would not impose a Federal mandate that 
will result in expenditure by State, local, or tribal governments and 
the private sector within the meaning of the Unfunded Mandates Reform 
Act of 1995.

Regulatory Flexibility Act

    The Secretary, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)), has reviewed this rule before publication and by 
approving it certifies that this rule would not have a significant 
economic impact on a substantial number of small entities. There are no 
anti-competitive discriminatory aspects of the rule with regard to 
small entities and there are not any unusual procedures that would need 
to be complied with by small entities. The rule only addresses the 
Department's internal practices and procedures.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either (1) imposes substantial direct compliance costs on State and 
local governments and is not required by statute, or (2) the rule 
preempts State law, unless the agency meets the consultation and 
funding requirements of section 6 of the Executive Order. This rule 
would not have federalism implications and would not impose substantial 
direct compliance costs on State and local governments or preempt State 
law within the meaning of the Executive Order.

List of Subjects in 24 CFR Part 15

    Administrative practice and procedure, courts.

    Accordingly, for the reasons described in the preamble, HUD is 
amending 24 CFR part 15 to read as follows:

PART 15--PUBLIC ACCESS TO HUD RECORDS UNDER THE FREEDOM OF 
INFORMATION ACT AND TESTIMONY AND PRODUCTION OF INFORMATION BY HUD 
EMPLOYEES

    1. The authority citation for 24 CFR part 15 continues to read as 
follows:

    Authority: 42 U.S.C. 3535(d).
    Subpart A also issued under 5 U.S.C. 552.
    Section 15.107 also issued under E.O. 12958, 60 FR 19825, 3 CFR 
Comp., p. 333.
    Subparts C and D also issued under 5 U.S.C. 301.

    2. Revise Sec.  15.302(a) to read as follows:


Sec.  15.302  Testimony in proceedings in which the United States is a 
party.

    (a) In any legal proceeding in which the United States is a party, 
an employee of the Department may not be called to testify as an expert 
or opinion witness by any party other than the United States unless 
specifically authorized by the Secretary or the General Counsel for 
good cause shown. An employee may be called by a non-federal party to 
testify as to facts.
* * * * *

    3. Revise Sec.  15.303 to read as follows:

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Sec.  15.303  Legal proceedings among non-federal litigants; general 
rule.

    (a) In any legal proceeding exclusively among non-federal 
litigants, no employee of the Department may, unless specifically 
authorized by the Secretary or General Counsel for good cause shown, 
testify as an expert or opinion witness as to any matter related to his 
or her duties or the functions of the Department, including the meaning 
of Departmental documents.
    (b) For purposes of this subpart, ``good cause'' includes action 
necessary to prevent a miscarriage of justice or to promote a 
significant interest of the Department.

    4. Revise Sec.  15.305 to read as follows:


Sec.  15.305  Legal proceedings among non-federal litigants; expert or 
opinion testimony.

    If, while testifying in a legal proceeding exclusively among non-
federal litigants, an employee of the Department is asked for expert or 
opinion testimony, the employee shall, unless specifically authorized 
by the Secretary or General Counsel in accordance with Sec.  15.303, 
decline to answer on the grounds that he or she is forbidden to do so 
by this part.

    Dated: October 16, 2002.
Mel Martinez,
Secretary.
[FR Doc. 02-27045 Filed 10-22-02; 8:45 am]
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