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.

Rules and Regulations Federal Register

11639 

Vol. 74, No. 52 

Thursday, March 19, 2009 

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 § 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 § 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. 

■ 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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11640 Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 

§ 2411.11 [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 

§ 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. 

§ 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 

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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Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 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. 

§ 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 

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. 

§ 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 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. 

§ 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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11642 Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 

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. 

§ 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. 

§ 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 § 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). 

Subpart C—Schedule of Fees 

§ 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 

§ 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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Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 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 

DEPARTMENT OF AGRICULTURE 

Federal Crop Insurance Corporation 

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. 

SUMMARY: 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: 

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 

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 

comply with a requirement of FCIC. The 

term ‘‘requirement of this title’’ is 

confusing and provides no reference to 

a specific requirement. 

List of Subjects in 7 CFR Parts 407 and 

457 

Administrative practice and 

procedures; Administrative remedies for 

non-compliance. 

■ 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: 

Authority: 7 U.S.C. 1506(l) and 1506(o). 

PART 407—GROUP RISK PLAN OF 

INSURANCE REGULATIONS 

■ 2. In § 407.9 amend item 22 by 

revising paragraph (a)(1) to read as 

follows: 

§ 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: 

§ 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 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 522 

[Docket No. FDA–2009–N–0665] 

Implantation or Injectable Dosage 

Form New Animal Drugs; Tylosin 

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. 

SUPPLEMENTARY INFORMATION: 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. 

mstockstill on PROD1PC66 with RULES