[Federal Register Volume 68, Number 93 (Wednesday, May 14, 2003)]
[Rules and Regulations]
[Pages 25838-25840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11818]



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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary

45 CFR Part 2


Testimony by Employees and the Production of Documents in 
Proceedings Where the United States Is Not a Party

AGENCY: Department of Health and Human Services.

ACTION: Final rule.

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SUMMARY: This rule amends regulations which provide that employees and 
former employees of the Department of Health and Human Services may not 
provide testimony as part of their official duties in litigation where 
the United States or a Federal agency is not a party, without the 
approval of the head of the agency. The purpose of these amendments is 
to modify provisions which provide that subpoenas duces tecum and other 
requests for documents from third parties shall be treated as requests 
for documents under the Freedom of Information Act (``FOIA''). Under 
these amendments, the FOIA shall not apply to a subpoena when the 
Department is subject to the jurisdiction of the issuing Federal court 
or other Federal tribunal and the subpoena is properly served. The 
regulation provides that where there is no jurisdiction over the 
Department, as in the case of subpoenas issuing out of State, local and 
tribal courts, the FOIA will apply to such subpoenas.

EFFECTIVE DATE: June 13, 2003.

FOR FURTHER INFORMATION CONTACT: Katherine M. Drews, Associate General 
Counsel, General Law Division, Office of the General Counsel, at (202) 
619-0150.

SUPPLEMENTARY INFORMATION: In 1987, the Department of Health and Human 
Services published regulations which addressed the issue of the 
increasing number of requests for the testimony of Department employees 
in litigation involving only private parties and not the United States. 
The regulation addresses this matter by generally prohibiting both 
voluntary appearances and compliance with subpoenas for testimony as 
part of an employee's official duties, except where the relevant agency 
head or his or her designee determines that the appearance would 
promote the objectives of the Department. In addition, the regulation 
provides that subpoenas for the production of documents would be 
processed under the Freedom of Information Act, 5 U.S.C. 552.
    These amendments are designed to address cases in which a Federal 
court has jurisdiction to issue a subpoena for DHHS documents. In such 
cases, the current regulation may infringe on the power of the court by 
allowing greater authority to withhold a document under the FOIA than 
would be the case under the rules governing disclosure of documents in 
court. See FTC versus Grolier, Inc., 462 U.S. 19, 27-28 (1983). Because 
it is not the intention of the Department to create or broaden a 
Federal litigation privilege through this part, we are amending the 
regulation to limit the applicability of the FOIA to situations in 
which the issuing tribunal has no jurisdiction over the Department.
    Accordingly, we are amending Sec. Sec.  2.1, 2.3, and 2.5 to 
provide that when the Office of the General Counsel determines that a 
subpoena is ``legally sufficient,'' including when the issuing court 
has jurisdiction over the Department or its employee(s), the Department 
will follow the applicable procedural and substantive rules relating to 
the production of information and documents by a non-party. In cases of 
informal requests for documents, and where the tribunal issuing the 
subpoena does not have jurisdiction over the Department--such as is the 
case in most subpoenas issuing out of State, local and tribal courts, 
see, e.g., Boron Oil Co. versus Downie, 873 F.2d 67, 70 (4th Cir. 
1989); Environmental Enterprises, Inc. versus EPA, 664 F. Supp. 585, 
586 (D.D.C. 1987); Reynolds Metals Co. versus Crowther, 572 F. Supp. 
288, 290-91 (D. Mass. 1982)--the regulation provides that we will 
continue to treat the request as a request made pursuant to the FOIA.
    The amendments also include examples following the text of Sec.  
2.1 which illustrate the applicability of this regulation to situations 
in which the regulation may or may not apply.
    The amendments also reflect changes in the organizational structure 
in the Department. The references in Sec.  2.2 to the Assistant 
Secretary for Human Development Services and the Assistant Secretary 
for Family Support are deleted and replaced by references to the 
Assistant Secretary for Children and Families as the Agency Head for 
requests involving the Administration for Children and Families and by 
the Assistant Secretary for Aging for requests involving the 
Administration on Aging. In addition, reference to the Commissioner of 
Social Security is deleted, due to the March 31, 1995, independence of 
the Social Security Administration.
    These amendments also modify Sec.  2.6 to delete the reference to 
the Freedom of Information Act regulations, 45 CFR part 5, to reflect 
the policy that the Department will certify any disclosed documents 
upon request, not just those disclosed pursuant to part 5.
    Public Participation: This rule is published as a final rule. It is 
exempt from public comment, pursuant to 5 U.S.C. 553(b)(A) as a rule of 
``agency organization, procedure, or practice.''
    Paperwork Reduction Act: This regulation is not subject to the 
Paperwork Reduction Act because it deals solely with internal rules 
governing Department of Health and Human Services personnel.
    Cost/Regulatory Analysis: In accordance with Executive Order 12291, 
the Secretary has determined that these amendments will not constitute 
a ``major'' rule and therefore are not subject to the regulatory impact 
and analysis requirements of the Order. Major rules are those which 
impose a cost on the economy of $100 million or more a year and have 
certain other economic impacts.
    These amendments will not have a significant impact on small 
businesses; therefore, preparation of a regulatory flexibility analysis 
is not required.

List of Subjects in 45 CFR Part 2

    Administrative practice and procedure, Freedom of Information, 
Government employees.

0
Accordingly, for the reasons set forth in the preamble, 45 CFR part 2 
is amended as follows:

PART 2--[AMENDED]

0
1. The authority citation continues to read as follows:

    Authority: 5 U.S.C. 301, 5 U.S.C. 552.

0
2. Section 2.1 is amended by revising paragraphs (a), (b), (c), (d)(4), 
(d)(6), and adding Examples (1) through (5) to paragraph (d)(7) to read 
as follows:


Sec.  2.1  Scope, purpose, and applicability.

    (a) This part sets forth rules to be followed when an employee or 
former employee of the Department of Health and Human Services 
(``DHHS'' or ``Department''), other than an employee of the Food and 
Drug Administration, is requested or subpoenaed to provide testimony in 
a deposition, trial, or other similar proceeding concerning information 
acquired in the course of performing official duties or because of such 
person's official capacity with DHHS. This part also sets forth 
procedures for the handling of subpoenas duces tecum and other requests 
for any document in the

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possession of DHHS, other than the Food and Drug Administration, and 
for the processing of requests for certification of copies of 
documents. Separate regulations, 21 CFR part 20, govern the Food and 
Drug Administration, and those regulations are not affected by this 
part.
    (b) It is the policy of the DHHS to provide information, data, and 
records to non-federal litigants to the same extent and in the same 
manner that they are made available to the general public and, when 
subject to the jurisdiction of a court or other tribunal presiding over 
non-federal party litigation, to follow all applicable procedural and 
substantive rules relating to the production of information, data, and 
records by a non-party. The availability of Department employees to 
testify in litigation not involving federal parties is governed by the 
Department's policy to maintain strict impartiality with respect to 
private litigants and to minimize the disruption of official duties.
    (c) This part applies to state, local and tribal judicial, 
administrative, and legislative proceedings, and to federal judicial 
and administrative proceedings.
    (d) This part does not apply to:
* * * * *
    (4) Employees serving as expert witnesses in connection with 
professional and consultative services as approved outside activities 
in accordance with 5 CFR 2635.805 and 5 CFR 5501.106. (In cases where 
employees are providing such outside services, they must state for the 
record that the testimony represents their own views and does not 
necessarily represent the official position of the DHHS.)
* * * * *
    (6) Any matters covered in 21 CFR part 20-,involving the Food and 
Drug Administration.
* * * * *
    (7) * * *

    Example (1): While on duty, an employee of the Department 
witnesses an incident in which a fellow employee trips on a loose 
piece of carpeting and sustains an injury. The injured employee 
brings a private tort action against the contractor installing the 
carpeting and the private landlord maintaining the building. The 
employee/witness is served with a subpoena to appear at a deposition 
to testify about the incident. The person seeking the testimony 
would not be required to obtain Agency head approval prior to 
requesting the testimony, because the subject of the testimony does 
not ``relate to'' the Department, within the meaning of Sec.  
2.1(d)(5).
    Example (2): While on duty, an employee of the Department 
witnesses a mugging while looking out the window to check the 
weather, and then notifies the local police of what she observed. 
She is subsequently subpoenaed to testify in a criminal proceeding. 
The local prosecutor would not be required to obtain Agency head 
approval prior to requiring the employee to testify, because the 
subject of the testimony does not ``relate to'' the Department, 
within the meaning of Sec.  2.1(d)(5).
    Example (3): A nurse on duty at an Indian Health Service 
hospital emergency room treats a child who is brought in following a 
report of domestic violence. The nurse is subsequently served with a 
subpoena to testify in a criminal proceeding against one of the 
child's parents concerning the injuries to the child which he 
observed. The local prosecutor would be required to obtain Agency 
head approval prior to requiring the nurse to testify, because the 
subject of the testimony involves ``information acquired in the 
course of performing official duties or because of the person's 
official capacity,'' within the meaning of Sec.  2.1(a).
    Example (4): A personnel specialist working for the Department 
is subpoenaed to testify concerning the meaning of entries on time 
and attendance records of an employee, which the requesting party 
received from the employee pursuant to discovery in a personal 
injury action brought by the employee. The party requesting the 
personnel specialist to appear would be required to obtain Agency 
head approval prior to compelling the personnel specialist to 
testify, because the testimony sought involves ``information 
acquired in the course of performing official duties or because of 
the person's official capacity,'' within the meaning of Sec.  
2.1(a).
    Example (5): A National Institutes of Health physician is 
subpoenaed in a private medical malpractice action to provide expert 
testimony in her specialty. The party requesting her testimony would 
be required to obtain Agency head approval prior to her testifying 
in response to the subpoena, because the expert testimony sought 
involves ``information acquired in the course of performing official 
duties or because of the person's official capacity,'' within the 
meaning of Sec.  2.1(a).

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3. Section 2.2 is revised to read as follows:


Sec.  2.2  Definitions.

    Agency head refers to the head of the relevant operating division 
or other major component of the DHHS, or his or her delegatee. Agency 
head for the purposes of this part means the following officials for 
the components indicated:
    (1) Office of the Secretary--Assistant Secretary for Administration 
and Management;
    (2) Administration on Aging--Assistant Secretary for Aging;
    (3) Administration for Children and Families--Assistant Secretary 
for Children and Families;
    (4) Agency for Healthcare Research and Quality--Administrator;
    (5) Agency for Toxic Substances and Disease Registry--
Administrator;
    (6) Centers for Disease Control and Prevention--Director;
    (7) Centers for Medicare and Medicaid Services--Administrator;
    (8) Health Resources and Services Administration--Administrator;
    (9) Indian Health Service--Director;
    (10) National Institutes of Health--Director;
    (11) Substance Abuse and Mental Health Services Administration--
Administrator;
    (12) Office of Inspector General--Inspector General.
    Employee includes:
    (1) Commissioned officers in the Public Health Service Commissioned 
Corps, as well as regular and special DHHS employees (except employees 
of the Food and Drug Administration), when they are performing the 
duties of their regular positions, as well as when they are performing 
duties in a temporary assignment at DHHS or another organization.
    (2) Any employees of health insurance intermediaries and carriers 
performing functions under agreements entered into pursuant to sections 
1816 and 1842 of the Social Security Act, 42 U.S.C. 1395h, 1395u; and
    (3) Current and former employees and contractors of entities 
covered under the Federally Supported Health Centers Assistance Act of 
1992, as amended, 42 U.S.C Sec.  233 (FSHCAA), provided that the 
requested testimony or information relates to the performance of 
medical, surgical, dental or related functions which were performed at 
a time when the DHHS deemed the entity to be covered by the FSHCAA.
    Certify means to authenticate under seal, pursuant to 42 U.S.C 
3505, official documents of the Department.
    Testify and testimony includes both in-person, oral statements 
before a court, legislative or administrative body and statements made 
pursuant to depositions, interrogatories, declarations, affidavits, or 
other formal participation.

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4. Section 2.3 is revised to read as follows:


Sec.  2.3  Policy on Presentation of testimony and production of 
documents.

    No employee or former employee of the DHHS may provide testimony or 
produce documents in any proceedings to which this part applies 
concerning information acquired in the course of performing official 
duties or because of the person's official relationship with the 
Department unless authorized by the Agency head pursuant to this part 
based on a determination by the Agency head, after consultation with 
the Office of the General Counsel, that compliance with

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the request would promote the objectives of the Department.

0
5. Section 2.4 is revised to read as follows:


Sec.  2.4  Procedures when voluntary testimony is requested or when an 
employee is subpoenaed.

    (a) All requests for testimony by an employee or former employee of 
the DHHS in his or her official capacity and not subject to the 
exceptions set forth in Sec.  2.1(d) of this part must be addressed to 
the Agency head in writing and must state the nature of the requested 
testimony, why the information sought is unavailable by any other 
means, and the reasons why the testimony would be in the interest of 
the DHHS or the federal government.
    (b) If the Agency head denies approval to comply with a subpoena 
for testimony, or if the Agency head has not acted by the return date, 
the employee will be directed to appear at the stated time and place, 
unless advised by the Office of the General Counsel that responding to 
the subpoena would be inappropriate (in such circumstances as, for 
example, an instance where the subpoena was not validly issued or 
served, where the subpoena has been withdrawn, or where discovery has 
been stayed), produce a copy of these regulations, and respectfully 
decline to testify or produce any documents on the basis of these 
regulations.

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6. Section 2.5 is revised to read as follows:


Sec.  2.5  Subpoenas duces tecum.

    (a) Whenever a subpoena duces tecum has been served upon a DHHS 
employee or former employee commanding the production of any record, 
such person shall refer the subpoena to the Office of the General 
Counsel (including regional chief counsels) for a determination of the 
legal sufficiency of the subpoena, whether the subpoena was properly 
served, and whether the issuing court or other tribunal has 
jurisdiction over the Department.) If the General Counsel or his 
designee determines that the subpoena is legally sufficient, the 
subpoena was properly served, and the tribunal has jurisdiction, the 
terms of the subpoena shall be complied with unless affirmative action 
is taken by the Department to modify or quash the subpoena in 
accordance with Fed. R. Civ. P. 45 (c).
    (b) If a subpoena duces tecum served upon a DHHS employee or former 
employee commanding the production of any record is determined by the 
Office of the General Counsel to be legally insufficient, improperly 
served, or from a tribunal not having jurisdiction, such subpoena shall 
be deemed a request for records under the Freedom of Information Act 
and shall be handled pursuant to the rules governing public disclosure 
established in 45 CFR part 5.

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7. Section 2.6 is revised to read as follows:


Sec.  2.6  Certification and authentication of records.

    Upon request, DHHS agencies will certify, pursuant to 42 U.S.C. 
3505, the authenticity of copies of records that are to be disclosed. 
Fees for copying and certification are set forth in 45 CFR 5.43.

    Dated: May 6, 2003.
Tommy G. Thompson,
Secretary.
[FR Doc. 03-11818 Filed 5-13-03; 8:45 am]
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