26474 Federal Register / Vol. 61, No. 103 / Tuesday, May 28, 1996 / Proposed Rules

and analyze the draft document so as to

formulate and submit meaningful,

substantive comments to the agency. In

a letter of April 26, 1996, FDA

responded by offering an additional 29

days for comment, while the agency

considered the requests for a 90-day

extension. After careful consideration,

the agency has concluded that it is in

the public interest to allow additional

time for interested persons to submit

comments. Accordingly, FDA is

extending the original comment period

by 90 days, to July 26, 1996.

Interested persons may, on or before

July 26, 1996, submit written comments

to the Dockets Management Branch

(address above). Two copies of any

comments are to be submitted, except

that individuals may submit one copy.

Comments are to be identified with the

docket number found in brackets in the

heading of this document. A copy of the

draft document and received comments

are available for public examination in

the Dockets Management Branch

(address above) between 9 a.m. and 4

p.m., Monday through Friday.

Dated: May 23, 1996.

William K. Hubbard,

Associate Commissioner for Policy

Coordination.

[FR Doc. 96–13304 Filed 5–22–96; 4:03 pm]

BILLING CODE 4160–01–F

ARMS CONTROL AND DISARMAMENT

AGENCY

22 CFR Part 608

Service of Process; Production of

Official Information; and Testimony of

Agency Employees

AGENCY: Arms Control and Disarmament

Agency.

ACTION: Notice of proposed rulemaking.

SUMMARY: This proposed rule would

establish or clarify policies, practices,

responsibilities, and procedures for the

service of legal process upon the United

States Arms Control and Disarmament

Agency (ACDA, the Agency), its officers,

and employees, and the production of

official ACDA information and the

appearance of and testimony by ACDA

employees as witnesses in connection

with litigation. This rule is procedural

in nature. Although not required to do

so, ACDA is voluntarily publishing this

proposed rule for public comment.

DATES: To be considered, comments

must be delivered by mail or in person

to the address, or faxed to the telephone

number, listed below by 5 p.m. on

Friday, June 28, 1996.

ADDRESSES: Comments should be

directed to the Office of the General

Counsel, United States Arms Control

and Disarmament Agency, Room 5636,

320 21st Street, NW., Washington, DC

20451; FAX (202) 647–0024. Comments

will be available for inspection between

8:15 a.m. and 5 p.m. at the same

address.

FOR FURTHER INFORMATION CONTACT:

Frederick Smith, Jr., United States Arms

Control and Disarmament Agency,

Room 5635, 320 21st Street, NW.,

Washington, DC 20451, telephone (202)

647–3596.

SUPPLEMENTARY INFORMATION:

General

This proposed rule is intended to

clarify ACDA policies and practices

regarding litigation-related matters such

as service of process upon ACDA and

ACDA employees and the production of

official ACDA information in litigation.

ACDA anticipates that the rule, which

generally parallels similar rules which

have been adopted by numerous other

federal agencies, e.g., the Department of

Defense (32 CFR part 97), the

Department of Justice (28 CFR part 16,

subpart B), the Nuclear Regulatory

Commission (10 CFR part 9, subpart D),

and the Department of State (22 CFR

part 172), will eliminate or reduce

current ambiguities regarding such

matters for ACDA employees, as well as

for private attorneys and judicial and

quasi-judicial authorities. ACDA also

expects that this rule will promote

consistency in ACDA’s assertions of

privileges and objections, thereby

reducing the potential for both

inappropriate, potentially harmful

disclosure of protected information and

wasteful or inappropriate allocation of

Agency resources. Although the

proposed rule is largely selfexplanatory, we describe the general

scheme of the several subsections below

for the readers’ ease of reference.

Service of Process

Part 604.4(b) of 22 CFR establishes the

Agency’s Office of the General Counsel

as the designated office for the

presentation of administrative claims

asserted under the Federal Tort Claims

Act (and 22 CFR parts 602, 603, and 605

set forth procedures for administrative

requests under the Freedom of

Information Act, under the Privacy Act,

and for declassification of national

security information, respectively).

However, until the present, the Agency

has not had regulations establishing the

Agency’s General Counsel, or his/her

delegate, as the sole Agency recipient

for litigation-related demands, whether

civil or criminal, for official Agency

information, whether oral or

documentary, or for other Agency

action. The proposed rule also clarifies

that ACDA is not an agent for service on

behalf of its employees in respect of

purely private legal disputes and

explains that ACDA will counsel its

employees not to use their official

positions to evade judicial process.

Compliance With Requests or Demands

for Official Information

Fundamentally, the compliance

sections of the proposed rule (§ § 608.4–

608.9) simply track, to a greater or lesser

degree, similar regulations which have

been adopted by other federal agencies

(such as those referenced above), and

which derive from the Supreme Court’s

decision in United States ex rel. Touhy

v. Ragen, 340 U.S. 462 (1951). Thus, the

principal thrust of the compliance

provisions of the proposed rule is that

Agency employees (including former

employees) must obtain the approval of

the Agency’s General Counsel, or his/

her delegate, prior to responding to any

subpoenas or other litigation-related

requests or demands for Agency

information, whether classified or

unclassified, that relate to the

employee’s official duties.

Significantly, § 608.5 requires the

party who initiates a litigation-related

request or demand for official ACDA

information to provide a written

statement providing specified

information concerning the nature and

scope of the demand.

Finally, the proposed rule describes

factors, among others, that Agency

officials shall take into consideration

when considering litigation-related

requests or demands and specifies that

Agency employees may ordinarily not

provide expert or official testimony on

behalf of private parties.

Regulatory Flexibility Act Certification

It is hereby certified that the proposed

rule will not have a significant

economic impact on a substantial

number of small entities. Accordingly, a

regulatory flexibility analysis is not

required.

Executive Order 12866 Determination

ACDA has determined that the

proposed rule is not a significant

regulatory action within the meaning of

section 3(f) of that Executive Order.

Paperwork Reduction Act Statement

The proposed rule is not subject to the

provisions of the Paperwork Reduction

Act because it does not contain any

information collection requirements

within the meaning of that Act.
Federal Register / Vol. 61, No. 103 / Tuesday, May 28, 1996 / Proposed Rules 26475

Unfunded Mandates Act Determination

ACDA has determined that the

proposed rule will not result in

expenditures by state, local, and tribal

governments, or by the private sector, of

more than $100 million in any one year.

Accordingly, a budgetary impact

statement is not required under section

202 of the Unfunded Mandates Reform

Act of 1995, 2 U.S.C. 1532.

List of Subjects in 22 CFR Part 608

Administrative practice and

procedure, Classified information,

Government employees.

The Proposed Regulations

ACDA proposes to amend title 22 of

the Code of Federal Regulations by

adding a new part 608 as follows:

PART 608—SERVICE OF PROCESS;

PRODUCTION OR DISCLOSURE OF

OFFICIAL INFORMATION IN

RESPONSE TO COURT ORDERS,

SUBPOENAS, NOTICES OF

DEPOSITIONS, REQUESTS FOR

ADMISSIONS, INTERROGATORIES, OR

SIMILAR REQUESTS OR DEMANDS IN

CONNECTION WITH FEDERAL OR

STATE LITIGATION; EXPERT

TESTIMONY

Sec.

608.1 Purpose and scope; definitions.

608.2 Service of summonses and

complaints.

608.3 Service of subpoenas, court orders,

and other demands or requests for

official information or action.

608.4 Testimony and production of

documents prohibited unless approved

by appropriate Agency officials.

608.5 Procedure when testimony or

production of documents is sought—

general.

608.6 Procedure when response to demand

is required prior to receiving

instructions.

608.7 Procedure in the event of an adverse

ruling.

608.8 Considerations in determining

whether the Agency will comply with a

demand or request.

608.9 Prohibition on providing expert or

opinion testimony.

Authority: 22 U.S.C. 2581(j).

§ 608.1 Purpose and scope; definitions.

(a) This part sets forth the procedures

to be followed with respect to:

(1) Service of summonses and

complaints or other requests or

demands directed to the U.S. Arms

Control and Disarmament Agency

(ACDA, the Agency) or to any ACDA

employee or former employee in

connection with federal or state

litigation arising out of or involving the

performance of official activities of

ACDA; and

(2) The oral or written disclosure, in

response to subpoenas, orders, or other

requests or demands of federal or state

judicial or quasi-judicial authority

(collectively, ‘‘demands’’), whether civil

or criminal in nature, or in response to

requests for depositions, affidavits,

admissions, responses to interrogatories,

document production, or other

litigation-related matters, pursuant to

the Federal Rules of Civil Procedure, the

Federal Rules of Criminal Procedure, or

applicable state rules (collectively,

‘‘requests’’), of any material contained

in the files of the Agency, any

information relating to material

contained in the files of the Agency, or

any information acquired while the

subject of the demand or request is or

was an employee of the Agency as part

of the performance of the person’s

duties or by virtue of the person’s

official status.

(b) For purposes of this part, and

except as ACDA may otherwise

determine in a particular case, the term

employee includes the Director of

ACDA and former Directors of ACDA,

and all employees and former

employees of ACDA or other federal

agencies who are or were appointed by,

or subject to the supervision,

jurisdiction, or control of the Director of

ACDA, whether residing or working in

the United States or abroad, including

United States nationals, foreign

nationals, and contractors.

(c) For purposes of this part, the term

litigation encompasses all pre-trial, trial,

and post-trial stages of all judicial or

administrative actions, hearings,

investigations, or similar proceedings

before courts, commissions, boards, or

other judicial or quasi-judicial bodies or

tribunals, whether criminal, civil, or

administrative in nature. This part

governs, inter alia, responses to

discovery requests, depositions, and

other pre-trial, trial, or post-trial

proceedings, as well as responses to

informal requests by attorneys or others

in situations involving litigation.

However, this part shall not apply to

any claims by ACDA employees

(present or former), or applicants for

Agency employment, for which

jurisdiction resides with the U.S. Equal

Employment Opportunity Commission;

the U.S. Merit Systems Protection

Board; the Office of Special Counsel; the

Federal Labor Relations Authority; the

Foreign Service Labor Relations Board;

the Foreign Service Grievance Board; or

a labor arbitrator operating under a

collective bargaining agreement between

ACDA and a labor organization

representing ACDA employees; or their

successor agencies or entities.

(d) For purposes of this part, official

information means all information of

any kind, however stored, that is in the

custody and control of ACDA, relates to

information in the custody and control

of ACDA, or was acquired by ACDA

employees as part of their official duties

or because of their official status within

ACDA while such individuals are

employed by or served on behalf of

ACDA.

(e) Nothing in this part affects

disclosure of information under the

Freedom of Information Act (FOIA), 5

U.S.C. 552, the Privacy Act, 5 U.S.C.

552a, Executive Order 12356 on

national security information (or

successor order thereto), the

Government in the Sunshine Act, 5

U.S.C. 552b, the Agency’s regulations in

22 CFR chapter VI implementing any of

the foregoing, or pursuant to

congressional subpoena. Nothing in this

part otherwise permits disclosure of

information by ACDA or its employees

except as provided by statute or other

applicable law.

(f) This part is intended only to

inform the public about ACDA

procedures concerning the service of

process and responses to demands or

requests and is not intended to and does

not create, and may not be relied upon

to create, any right or benefit

substantive or procedural, enforceable at

law by a party against ACDA or the

United States.

(g) Nothing in this part affects:

(1) The disclosure of information

during the course of legal proceedings

in foreign courts, commissions, boards,

or other judicial or quasi-judicial bodies

or tribunals; or

(2) The rules and procedures, under

applicable U.S. law and international

conventions, governing diplomatic and

consular immunity.

(h) Nothing in this part affects the

disclosure of official information to

other foreign agencies or Department of

Justice attorneys in connection with

litigation conducted on behalf or in

defense of the United States, its

agencies, officers, and employees, or to

federal, state, local, or foreign

prosecuting and law enforcement

authorities in conjunction with criminal

law enforcement investigations,

prosecutions, extradition, deportation or

other proceedings.

§ 608.2 Service of summonses and

complaints.

(a) Only ACDA’s General Counsel, or

his/her delegate, is authorized to receive

and accept summonses or complaints

sought to be served upon ACDA or

ACDA employees. All such documents

should be delivered or addressed to
26476 Federal Register / Vol. 61, No. 103 / Tuesday, May 28, 1996 / Proposed Rules

General Counsel, U.S. Arms Control and

Disarmament Agency, 320 21st St. N.W.,

Room 5635, Washington, DC 20451.

Pursuant to 42 U.S.C. 659(b) and 5

U.S.C. 5520a(c)(1), this same officer has

been designated specifically to accept

service of process for the enforcement of

the legal obligation to provide child

support or to make alimony payments

by employees of the Agency and to

accept service of process for the

enforcement of the legal obligation to

pay monies owed for other than child

support or alimony by employees of the

Agency, respectively.

(b) In the event any summons or

complaint described in § 608.1(a) is

delivered to an employee of ACDA other

than in the manner specified in this

part, such attempted service shall be

ineffective, and the recipient thereof

shall either decline to accept the

proffered service or return such

document under cover of a written

communication which directs the

person attempting to make service to the

procedures set forth in this part.

(c) Except as otherwise provided in

§§ 608.2(d) and 608.3(c), ACDA is not

an authorized agent for service of

process with respect to civil litigation

against ACDA employees purely in their

personal, non-official capacity. Copies

of summonses or complaints directed to

ACDA employees in connection with

legal proceedings arising out of the

performance of official duties may,

however, be served upon ACDA’s

General Counsel, or his/her delegate.

(d) Although ACDA is not an agent for

the service of process upon its

employees with respect to purely

personal, non-official litigation, ACDA

recognizes that its employees stationed

overseas should not use their official

positions to evade their personal

obligations and will, therefore, counsel

and encourage ACDA employees to

accept service of process in appropriate

cases, and will waive applicable

diplomatic or consular privileges and

immunities when ACDA determines

that it is in the interest of the United

States to do so. Pursuant to section 302

of Executive Order 12953, ACDA’s

General Counsel has been designated in

Appendix B to 5 CFR part 581 as the

official to assist in the service of legal

process in civil actions pursuant to

orders of State courts to establish

paternity and to establish or to enforce

support obligations by making ACDA

employees available for service of

process, regardless of the location of the

employee’s workplace.

(e) Documents for which ACDA’s

General Counsel, or his/her delegate,

accepts service in official capacity only

shall be stamped ‘‘Service Accepted in

Official Capacity Only.’’ Acceptance of

service shall not constitute an

admission or waiver with respect to

jurisdiction, propriety of service,

improper venue, or any other defense in

law or equity available under the laws

or rules applicable for the service of

process.

§ 608.3 Service of subpoenas, court

orders, and other demands or requests for

official information or action.

(a) Except in cases in which ACDA is

represented by legal counsel who have

entered an appearance or otherwise

given notice of their representation,

only ACDA’s General Counsel, or his/

her delegate, is authorized to receive

and accept subpoenas, or other demands

or requests directed to ACDA or any

component thereof, or its employees, or

former employees, whether civil or

criminal in nature, for:

(1) Material, including documents,

contained in the files of the Agency;

(2) Information, including testimony,

affidavits, declarations, admissions,

response to interrogatories, or informal

statements, relating to material

contained in the files of the Agency or

which any Agency employee acquired

in the course and scope of the

performance of official duties;

(3) Garnishment or attachment of

compensation of current or former

employees; or

(4) The performance or nonperformance of any official ACDA duty.

(b) In the event that any subpoena,

demand, or request is sought to be

delivered to an Agency employee

(including former employee) other than

in the manner prescribed in paragraph

(a) of this section, such attempted

service shall be ineffective. Such

employee shall, after consultation with

the office of the General Counsel,

decline to accept the subpoena,

demand, or request or shall return it to

the serve under cover of a written

communication referring to the

procedures prescribed in this part.

(c) Except as otherwise provided in

this part, ACDA is not an agent for

service or otherwise authorized to

accept on behalf of its employees any

subpoenas, show-cause orders, or

similar compulsory process of federal or

state courts, or requests from private

individuals or attorneys, which are not

related to the employees’ official duties

except upon the express, written

authorization of the individual ACDA

employee to whom such demand or

request is directed.

(d) Acceptance of such documents by

ACDA’s General Counsel, or his/her

delegate, does not constitute a waiver of

any defenses that might otherwise exist

with respect to service under the

Federal Rules of Civil or Criminal

Procedure or other applicable rules.

§ 608.4 Testimony and production of

documents prohibited unless approved by

appropriate Agency officials.

(a) No employee of ACDA shall, in

response to a demand or request in

connection with any litigation, whether

criminal or civil, provide oral or written

testimony by deposition, declaration,

affidavit, or otherwise concerning any

information acquired wile such person

is or was an employee of ACDA as part

of the performance of that person’s

official duties or by virtue of that

person’s official status, unless

authorized to do so by ACDA’s General

Counsel, or his/her delegate.

(b) No ACDA employee shall, in

response to a demand or request in

connection with any litigation, produce

for use at such proceedings any

document or any other material

acquired as part of the performance of

that employee’s duties or by virtue of

that employee’s official status, unless

authorized to do so by ACDA’s General

Counsel, or his/her delegate.

§ 608.5 Produce when testimony or

production of documents is sought—

general.

(a) if official ACDA information is

sought, through testimony or otherwise,

by a request or demand, the party

seeking such release or testimony must

(except as otherwise required by federal

law or authorized by the Office of the

General Counsel) set forth in writing

and with as much specificity as

possible, the nature and relevance of the

official information sought. Where

documents or other materials are

sought, the party should identify the

record or reasonably describe it in terms

of date, format, subject matter, the office

originating or receiving the record, and

the names of all persons to whom the

record is known to relate. Subject to

§ 606.7, ACDA employees may produce,

disclose, release, comment upon, or

testify concerning only those matters

that were specified in writing and

properly approved by ACDA’s General

Counsel or his/her delegate. See United

States ex re. Toughy v. Ragen, 340 U.S.

462 (1951). The Office of the General

Counsel may waive this requirement in

appropriate circumstances.

(b) To the extent it deems necessary

or appropriate, ACDA may also require

from the party seeking such testimony

or documents a plan of all reasonably

foreseeable demands, including but not

limited to the names of all employees

and former employees from whom

discovery will be sought, areas of
Federal Register / Vol. 61, No. 103 / Tuesday, May 28, 1996 / Proposed Rules 26477

inquiry, expected duration of

proceedings requiring oral testimony,

and identification of potentially relevant

documents.

(c) ACDA’s General Counsel, or his/

her delegate, will notify the ACDA

employee and such other persons as

circumstances may warrant of the

decision regarding compliance with the

request or demand.

(d) The Office of the General Counsel

will consult with the Department of

Justice regarding legal representation for

ACDS employees in appropriate cases.

§ 608.6 Procedure when response to

demand is required prior to receiving

instructions.

(a) If a response to a demand is

required before ACDA’s General

Counsel, or his/her delegate, renders a

decision, ACDA will request that either

a Department of Justice attorney or an

ACDA attorney designated for the

purpose:

(1) Appear with the employee upon

whom the demand has been made;

(2) Furnish the court or other

authority with a copy of the regulations

contained in this part;

(3) Inform the court or other authority

that the demand has been or is being, as

the case may be, referred for the prompt

consideration of ACDA’s General

Counsel, or his/her delegate; and

(4) Respectfully request the court or

authority to stay the demand pending

receipt of the requested instructions.

(b) In the event that an immediate

demand for production or disclosure is

made in circumstances that would

preclude the proper designation or

appearance of a Department of Justice or

ACDA attorney on the employee’s

behalf, the employee shall respectfully

request the demanding court or

authority for a reasonable stay of

proceedings for the purpose of obtaining

instructions from ACDA.

§ 608.7 Procedure in the event of an

adverse ruling.

If the court or other judicial or quasijudicial authority declines to stay the

effect of the demand in response to a

request made pursuant to § 608.6, or if

the court or other authority rules that

the demand must be complied with

irrespective of the Agency’s instructions

not to produce the material or disclose

the information sought, the employee

upon whom the demand has been made

shall respectfully decline to comply

with the demand, citing these

regulations and United States ex rel.

Touhy v. Ragen, 340 U.S. 463 (1951).

§ 608.8 Considerations in determining

whether the Agency will comply with a

demand or request.

(a) In deciding whether to comply

with a demand or request, ACDA

officials and attorneys shall consider,

among others:

(1) Whether such compliance would

be 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 arose;

(2) Whether compliance is

appropriate under the relevant

substantive law concerning privilege or

disclosure of information;

(3) The public interest;

(4) The need to conserve the time of

ACDA employees for the conduct of

official business;

(5) The need to avoid spending the

time and money of the United States for

private purposes;

(6) The need to maintain impartiality

between private litigants in cases where

a substantial government interest is not

implicated;

(7) Whether compliance would have

an adverse effect on performance by

ACDA of its mission and duties; and

(8) The need to avoid involving ACDA

in controversial issues not related to its

mission.

(b) Among those demands and

requests in response to which

compliance will not ordinarily be

authorized are those with respect to

which, inter alia, any of the following

factors exist:

(1) Compliance would violate a

statute or a rule of procedure;

(2) Compliance would violate a

specific regulation or executive order;

(3) Compliance would reveal

information properly classified in the

interest of national security;

(4) Compliance would reveal

confidential commercial or financial

information or trade secrets without the

owner’s consent;

(5) Compliance would reveal the

internal deliberative processes of the

Executive Branch; or

(6) Compliance would potentially

impede or prejudice an ongoing law

enforcement investigation.

§ 608.9 Prohibition on providing expert or

opinion testimony.

(a) Except as provided in this section,

and subject to 5 CFR 2635.805, ACDA

employees shall not provide opinion or

expert testimony based upon

information which they acquired in the

scope and performance of their official

ACDA duties, except on behalf of the

United States or a party represented by

the Department of Justice.

(b) Upon a showing by the requester

of exceptional need or unique

circumstances and that the anticipated

testimony will not be adverse to the

interests of the United States, ACDA’s

General Counsel, or his/her delegate,

may, consistent with 5 CFR 2635.805, in

the exercise of discretion, grant special,

written authorization for ACDA

employees to appear and testify as

expert witnesses at no expense to the

United States.

(c) If, despite the final determination

of ACDA’s General Counsel, a court of

competent jurisdiction or other

appropriate authority orders the

appearance and expert or opinion

testimony of an ACDA employee, such

employee shall immediately inform the

Office of General Counsel of such order.

If the Office of the General Counsel

determines that no further legal review

of or challenge to the court’s order will

be made, the ACDA employee shall

comply with the order. If so directed by

the Office of the General Counsel,

however, the employee shall

respectfully decline to testify. See

United States ex rel. Touhy v. Ragen,

340 U.S. 462 (1951).

Dated: May 17, 1996.

Mary Elizabeth Hoinkes,

General Counsel.

[FR Doc. 96–13194 Filed 5–24–96; 8:45 am]

BILLING CODE 6820–32–M

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Parts 925, 926, 931, 934, 935,

936, 938, 943, 944, 946, 948 and 950

RIN 1029–AB87

State Program Amendments

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Proposed rule.

SUMMARY: The Office of Surface Mining

Reclamation and Enforcement (OSM) is

proposing to amend its regulations by

revising the information currently

reported in the Code of Federal

Regulations (CFR) regarding the OSM

Director’s approval of amendments to

State regulatory programs and

abandoned mine land reclamation plans

(hereafter State program amendments).

A companion rule, State Program

Amendments (I), was proposed revising

the information reported at 30 CFR parts

901 through 920. As with the prior

rulemaking, the information regarding

the Director’s approval of State program