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.

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REGISTER issue of each week.

Rules and Regulations Federal Register

58019 

Vol. 73, No. 194 

Monday, October 6, 2008 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 295 

RIN 3206–AL22 

Testimony by OPM Employees 

Relating to Official Information and 

Production of Official Records in Legal 

Proceedings 

AGENCY: U.S. Office of Personnel 

Management (OPM). 

ACTION: Final rule. 

SUMMARY: The U.S. Office of Personnel 

Management is adopting as final a 

proposed rule, with certain minor 

changes, that sets forth procedures that 

requesters have to follow when making 

demands on or requests to an OPM 

employee to produce official records 

and information, and provide testimony 

relating to official information, in 

connection with a legal proceeding in 

which OPM is not a party. This final 

rule establishes procedures to respond 

to such demands and requests in an 

orderly and consistent manner. The 

rule, among other benefits, will promote 

uniformity in decisions, protect 

confidential information, provide 

guidance to requesters, and reduce the 

potential for both inappropriate 

disclosures of official information and 

wasteful allocation of agency resources. 

DATE: Effective October 6, 2008. 

FOR FURTHER INFORMATION CONTACT: R. 

Alan Miller, Associate General Counsel, 

U.S. Office of Personnel Management, 

Room 7353, 1900 E Street, NW., 

Washington, DC 20415 or by electronic 

mail at Richard.Miller@opm.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The U.S. Office of Personnel 

Management (OPM) occasionally 

receives subpoenas and requests for 

OPM employees to provide evidence in 

litigation in which OPM is not a party. 

Often these subpoenas and requests are 

for OPM records that are not available 

to the public under the Freedom of 

Information Act. Also, OPM sometimes 

receives subpoenas and requests for 

OPM employees to appear as witnesses 

in litigation in conjunction with a 

request for nonpublic records. 

Requesters have sought information, for 

example, on retirement records, pay 

issues, and other program matters, 

under OPM jurisdiction. Responding to 

such demands and requests can result in 

a significant disruption to OPM 

employees’ work schedules. The result 

is that employees may be diverted from 

performing their official duties in order 

to respond to requests from parties in 

litigation. In order to address this 

problem, many agencies over the years 

have issued regulations that are similar 

to this proposed regulation, governing 

the circumstances and manner in which 

an employee may respond to demands 

for testimony or for the production of 

documents. Such a regulation was 

sustained by the United States Supreme 

Court in United States ex rel. Touhy v. 

Ragen, 340 U.S. 462 (1951). 

In Touhy, the Supreme Court held 

that a U.S. Department of Justice (DOJ) 

official, acting on order of the Attorney 

General, could not be held in contempt 

for declining to produce records in 

response to a subpoena. The employee’s 

refusal was based upon a DOJ regulation 

that prohibited disclosure of agency 

files, documents, records, or 

information without the express 

approval of the Attorney General. The 

Court sustained the validity of the DOJ 

regulations, reasoning that it was 

appropriate for the Attorney General to 

prescribe regulations not inconsistent 

with law for the custody, use and 

preservation of records, papers, and 

property pertaining to the Department of 

Justice. 

On June 23, 2008, OPM published in 

the Federal Register its own proposed 

Touhy regulation, for codification in a 

new part 295 of 5 CFR (See 73 FR 

35354) which provided for a 60-day 

public comment period. OPM received 

suggestions on the rule as proposed 

from one commenter, whose comments 

were directed to the penalties section 

[295.401] and to OPM’s authority to 

regulate the conduct of former 

employees. As noted below in the 

summary of this final rule, we are not 

adopting changes in this final rule from 

the rule as proposed based upon those 

comments because employees and 

former employees are already on notice 

of and subject to penalties for violating 

the precepts established herein. 

However, in order to clarify the 

application of this rule, OPM has 

decided to revise the proposed part 

heading to make express that it applies 

to testimony by OPM employees 

‘‘relating to official information’’ (as 

opposed to private matters), as well as 

to the production of official records in 

legal proceedings. In addition, OPM has 

determined to add a reference to 31 

U.S.C. 9701 to the new part 295 

authority citation. This statute 

authorizes agencies to issue regulations 

providing for fair and cost-based fees 

and charges. 

Briefly summarized, this final rule 

prohibits disclosure of nonpublic 

official records or testimony by OPM 

employees unless there is compliance 

with the rule (295.201 and 295.203). 

The rule identifies the factors that OPM 

will consider in making determinations 

in response to such requests and what 

information requesters must provide 

(295.202 and 295.203). On its own 

initiative, OPM has added ‘‘otherwise 

protected information’’ to the types of 

sensitive information enumerated in 

paragraph (i) of 295.202. The rule also 

specifies when the request should be 

submitted (295.203), the time period for 

review (295.205), potential fees 

(295.301), and, if a request is granted, 

any restrictions that may be placed on 

the disclosure of records or the 

appearance of an OPM employee as a 

witness (295.207 and 295.208). OPM is 

also adopting in this final rule two other 

changes on its own initiative. First, 

OPM is adding the phrase ‘‘when 

necessary’’ to the procedure provided in 

295.209 for informing the court or other 

competent authority and seeking a stay 

when a decision is not made prior to the 

time a response is required. This 

modification from the section as 

proposed recognizes that at times there 

can be informal resolution of such 

matters short of seeking a stay. The 

second change is that OPM is adding the 

phrase ‘‘unless otherwise advised by the 

General Counsel’’ to the procedure 

provided in 295.210 for personal 

appearance of an OPM employee when 

a stay of a demand (or, as now added 

by OPM, a request) is denied. This 

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58020 Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 

change likewise recognizes that such 

denials can sometimes be resolved 

instead by written response (see the 

section’s last sentence) or otherwise. 

The commenter generally objected to 

penalizing employees who fail to 

comply with this rule (295.401), upon 

the grounds that the language of 

subsection 401 would appear to 

penalize an employee, even if OPM did 

not have an opportunity to appear and 

be heard by the court in question. 

Additionally, the commenter questions 

penalizing employees who are trying to 

be helpful and provide responses to 

informal inquiries from outside parties 

that seek clarification. OPM is not 

changing the penalty section based 

upon these comments. First, the 

penalties section (295.401) does not 

impose penalties a priori. Rather, as 

with any potential disciplinary matter, 

it provides that employees may be 

subject to discipline for violation of the 

rule. Moreover, employees and former 

employees are already subject to the 

provisions of the statutes cited in the 

subsection. Additionally, the rule does 

not apply to mere informal requests for 

clarification. Instead, as set out in 

subsections 101 and 102, it applies to 

demands or requests for official records 

or information in a legal proceeding in 

which OPM is not a party, while 

recognizing that requests may be 

received informally. Moreover, as set 

out in subsections 209 and 210, an 

employee is given guidance as to how 

to respond if OPM has not had the 

opportunity to be heard by the court. 

The charges for witnesses are the 

same as those provided by the Federal 

courts; and the fees related to 

production of records are the same as 

those charged under FOIA. The charges 

for time spent by an employee to 

prepare for testimony and for 

certification of records by OPM 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 final rule applies to a broad 

range of matters in any legal proceeding 

in which OPM is not a named party. It 

also applies to former and current OPM 

employees (as well as OPM consultants 

and advisers). Former OPM 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 rule. They would not 

be barred from appearing to testify about 

general matters unconnected with the 

specific matters for which they had 

responsibility. 

This final regulation will ensure a 

more efficient use of OPM resources, 

minimize the possibility of involving 

OPM in issues unrelated to its 

responsibilities, promote uniformity in 

responding to such requests and 

subpoenas, and maintain the 

impartiality of OPM in matters that are 

in dispute between other parties. It will 

also serve OPM’s interest in protecting 

sensitive, confidential, and privileged 

information and records that are 

generated in response to the 

requirements in the ethics laws and 

regulations. 

This final OPM rule is internal (not 

branch-wide), and is essentially 

procedural, not substantive. It does not 

create a right to obtain official records 

or the official testimony of an OPM 

employee and it does not create any 

additional right or privilege not already 

available to OPM to deny any demand 

or request therefor. However, any failure 

to comply with the procedures in this 

rule would be a basis for denying a 

demand or request submitted to OPM. 

Regulatory Flexibility Act 

For purposes of the Regulatory 

Flexibility Act (5 U.S.C. chapter 6), this 

final rule will not have a significant 

economic impact on a substantial 

number of small entities. The final rule 

addresses only the procedures to be 

followed in the production or disclosure 

of OPM materials and information in 

litigation where OPM is not a party. 

Accordingly, OPM has determined that 

a Regulatory Flexibility Analysis is not 

required. 

Unfunded Mandates Reform Act 

For purposes of the Unfunded 

Mandates Reform Act of 1995 (2 U.S.C. 

chapter 25, subchapter II), the final rule 

would not significantly or uniquely 

affect small governments and would not 

result in increased expenditures by 

State, local, and tribal governments, in 

the aggregate, or by the private sector, of 

$100 million or more (as adjusted for 

inflation). 

Executive Order 12866 

In issuing this final regulation, OPM 

has adhered to the regulatory 

philosophy and the applicable 

principles of regulation as set forth in 

section 1 of Executive Order 12866, 

Regulatory Planning and Review. This 

final rule has not been reviewed by the 

Office of Management and Budget under 

that Executive Order since it is not a 

significant regulatory action with the 

meaning of the Executive Order. 

Executive Order 12988 

As Acting Director of OPM, I have 

reviewed this final regulation in light of 

section 3 of Executive Order 12988, 

Civil Justice Reform, and certify that it 

meets the applicable standards provided 

therein. 

Paperwork Reduction Act 

The Paperwork Reduction Act (44 

U.S.C. chapter 35) does not apply 

because this final regulation does not 

contain information collection 

requirements that require approval by 

the Office of Management and Budget. 

OPM expects the collection of 

information that is called for by the final 

regulation would involve fewer than ten 

persons each year. 

List of Subjects in 5 CFR Part 295 

Administrative practice and 

procedures, Conflict of Interests, Courts, 

Government employees, Records, 

Subpoenas, Testimony. 

U.S. Office of Personnel Management. 

Michael W. Hager, 

Acting Director. 

■ Accordingly, for the reasons set forth 

in the preamble, the U.S. Office of 

Personnel Management hereby adds a 

new part 295 to 5 CFR to read as 

follows: 

PART 295—TESTIMONY BY OPM 

EMPLOYEES RELATING TO OFFICIAL 

INFORMATION AND PRODUCTION OF 

OFFICIAL RECORDS IN LEGAL 

PROCEEDINGS 

Subpart A—General Provisions 

Sec. 

295.101 Scope and purpose. 

295.102 Applicability. 

295.103 Definitions. 

Subpart B—Requests for Testimony and 

Production of Documents 

295.201 General prohibition 

295.202 Factors OPM will consider. 

295.203 Filing requirements for demands or 

requests for documents or testimony. 

295.204 Service of subpoenas or requests. 

295.205 Processing demands or requests. 

295.206 Final determination. 

295.207 Restrictions that apply to 

testimony. 

295.208 Restrictions that apply to released 

records. 

295.209 Procedure when a decision is not 

made prior to the time a response is 

required. 

295.210 Procedure in the event of an 

adverse ruling. 

Subpart C—Schedule of Fees 

295.301 Fees. 

Subpart D—Penalties 

295.401 Penalties. 

Authority: 5 U.S.C. App. (Sec. 1103, Civil 

Service Reform Act of 1978; 31 U.S.C. 9701). 

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Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 58021 

Subpart A—General Provisions 

§ 295.101 Scope and purpose. 

(a) This part sets forth policies and 

procedures you must follow when you 

submit a demand or request to an 

employee of the U.S. Office of Personnel 

Management (OPM) to produce official 

records and information, or provide 

testimony relating to official 

information, in connection with a legal 

proceeding. You must comply with 

these requirements when you request 

the release or disclosure of official 

records and information. 

(b) OPM intends these provisions to: 

(1) Promote economy and efficiency 

in its programs and operations; 

(2) Minimize the possibility of 

involving OPM in controversial issues 

not related to our functions; 

(3) Prevent the misuse of OPM 

employees as involuntary expert 

witnesses for private interests or as 

inappropriate expert witnesses as to the 

state of the law; 

(4) Maintain OPM’s impartiality 

among private litigants where neither 

OPM nor any other Federal entity is a 

named party; and 

(5) Protect sensitive, confidential 

information and the deliberative 

processes of OPM. 

(c) In providing for these 

requirements, OPM does not waive the 

sovereign immunity of the United 

States. 

(d) This part provides guidance for 

the internal operations of OPM. It does 

not create any right or benefits, 

substantive or procedural, that a party 

may rely upon in any legal proceeding 

against the United States. 

§ 295.102 Applicability. 

This part applies to demands and 

requests to employees of OPM in legal 

proceedings in which OPM is not a 

named party, 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 upon or requests for a 

current OPM 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 OPM; 

(b) Demands upon or requests for a 

former OPM employee to testify as to 

matters in which the former employee 

was not directly or materially involved 

while at OPM; 

(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. 552(a); and 

(d) Congressional or Government 

Accountability Office (GAO) demands 

and requests for testimony or records. 

§ 295.103 Definitions. 

Demand means a subpoena, or an 

order 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 OPM employee that is 

issued in a legal proceeding. 

General Counsel means the General 

Counsel of OPM or a person to whom 

the General Counsel has delegated 

authority 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 

litigation. 

OPM means the U.S. Office of 

Personnel Management. 

OPM employee or employee means: 

(1) Any current or former officer or 

employee of OPM; 

(2) Any other individual hired 

through contractual agreement by or on 

behalf of the OPM or who has 

performed or is performing services 

under such an agreement for OPM; and 

(3) Any individual who served or is 

serving in any consulting or advisory 

capacity to OPM, whether formal or 

informal. 

(4) Provided, that this definition does 

not include persons who are no longer 

employed by OPM 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 OPM. 

Records or official records and 

information mean: 

(1) All documents and materials 

which are OPM agency records under 

the Freedom of Information Act, 5 

U.S.C. 552; 

(2) All other documents and materials 

contained in OPM files; and 

(3) All other information or materials 

acquired by an OPM employee in the 

performance of his or her official duties 

or because of his or her official status. 

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. 

Subpart B—Requests for Testimony 

and Production of Documents 

§ 295.201 General prohibition. 

No employee may produce official 

records and information or provide any 

testimony relating to official 

information in response to a demand or 

request without the prior, written 

approval of the General Counsel. 

§ 295.202 Factors OPM 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) OPM 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 OPM in performing its statutory 

duties or use OPM resources in a way 

that will interfere with the ability of 

OPM employees to do their regular 

work; 

(e) Allowing such testimony or 

production of records would be in the 

best interest of OPM 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 OPM 

appearing to favor one private litigant 

over another private litigant; 

(l) Disclosure relates to documents 

that were produced by another agency; 

(m) A substantial Government interest 

is implicated; 

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58022 Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 

(n) The demand or request is within 

the authority of the party making it; 

(o) The demand improperly seeks to 

compel an OPM employee to serve as an 

expert witness for a private interest; 

(p) The demand improperly seeks to 

compel an OPM employee to testify as 

to a matter of law; 

(q) The demand or request is 

sufficiently specific to be answered. 

§ 295.203 Filing requirements for demands 

or requests for documents or testimony. 

You must comply with the following 

requirements whenever you issue 

demands or requests to an OPM 

employee for official records and 

information or testimony. 

(a) Your request must be in writing 

and must be submitted to the General 

Counsel. If you serve a subpoena on 

OPM or an OPM employee before 

submitting a written request and 

receiving a final determination, OPM 

will oppose the subpoena on grounds 

that your request was not submitted in 

accordance with this subpart. 

(b) You 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 the need to 

maintain any confidentiality of the 

information and outweighs the burden 

on OPM 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 OPM employee, 

such as a retained expert; 

(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 OPM employee for 

time spent by the employee to prepare 

for testimony, in travel, and for 

attendance in the legal proceeding. 

(c) The Office of Personnel 

Management reserves the right to 

require additional information to 

complete your request where 

appropriate. 

(d) Your request should be submitted 

at least 45 days before the date that 

records or testimony is required. 

Requests submitted in less than 45 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 your request. 

§ 295.204 Service of subpoenas or 

request. 

Subpoenas or requests for official 

records or information or testimony 

must be served on the General Counsel, 

U.S. Office of Personnel Management, 

1900 E Street, NW., Washington, DC 

20415. 

§ 295.205 Processing demands or 

requests. 

(a) After service of a demand or 

request to testify, the General Counsel 

will review the demand or request and, 

in accordance with the provisions of 

this subpart, 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) OPM will process requests in the 

order in which they are received. 

Absent exigent or unusual 

circumstances, OPM will respond 

within 45 days from the date that we 

receive it. 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 subpart where a waiver is 

considered necessary to promote a 

significant interest of OPM or the 

United States or for other good cause. 

§ 295.206 Final determination. 

The General Counsel makes the final 

determination on demands and requests 

to employees 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 an OPM employee. 

§ 295.207 Restrictions that apply to 

testimony. 

(a) The General Counsel may impose 

conditions or restrictions on the 

testimony of OPM employees including, 

for example, limiting the areas of 

testimony or requiring the requester and 

other parties to the legal proceeding to 

agree that the transcript of the testimony 

will be kept under seal or will only be 

used or made available in the particular 

legal proceeding for which testimony 

was requested. The General Counsel 

may also require a copy of the transcript 

of testimony at the requester’s expense. 

(b) OPM 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 facts when the 

General Counsel determines such 

testimony would not be in the best 

interest of OPM or the United States; or 

(3) For a current OPM 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 OPM unless testimony is 

being given on behalf of the United 

States. 

§ 295.208 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 

have already been executed, OPM 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 OPM 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 identify as official 

OPM records, and they are not to be 

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Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 58023 

marked or altered. In lieu of the original 

records, certified copies will be 

presented for evidentiary purposes (see 

28 U.S.C. 1733). 

§ 295.209 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 General Counsel 

can make the determination referred to 

in Sec.295.206, 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. 

§ 295.210 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 been advised by 

counsel not 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. 

Subpart C—Schedule of Fees 

§ 295.301 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 OPM. 

(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 OPM in its Freedom of 

Information Act regulations at 5 CFR 

part 294. 

(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, 

in travel, and for attendance in the legal 

proceeding. 

(d) Payment of fees. You must pay 

witness fees for current OPM employees 

and any records certification fees by 

submitting to the General Counsel a 

check or money order for the 

appropriate amount made payable to the 

Treasury of the United States. In the 

case of testimony by former OPM 

employees, you must pay applicable 

fees 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 U.S. Office of 

Personnel Management may certify that 

records are true copies in order to 

facilitate their use as evidence. If you 

seek certification, you must request 

certified copies from OPM at least 45 

days before the date they will be 

needed. The request should be sent to 

the General Counsel. You will be 

charged a certification 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. 

Subpart D—Penalties 

§ 295.401 Penalties. 

(a) An employee who discloses 

official records or information or gives 

testimony relating to official 

information, except as expressly 

authorized by OPM or as ordered by a 

Federal court after OPM has had the 

opportunity to be heard, may face the 

penalties provided in 18 U.S.C. 641 and 

other applicable laws. Additionally, 

former OPM employees are subject to 

the restrictions and penalties of 18 

U.S.C. 207 and 216. 

(b) A current OPM employee who 

testifies or produces official records and 

information in violation of this part may 

be subject to disciplinary action. 

[FR Doc. E8–23605 Filed 10–3–08; 8:45 am] 

BILLING CODE 6325–48–P 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 100 and 212 

[USCBP–2007–0084; CBP Dec. 08–41] 

RIN 1651–AA71 

Issuance of a Visa and Authorization 

for Temporary Admission Into the 

United States for Certain 

Nonimmigrant Aliens Infected With HIV 

AGENCY: Customs and Border Protection; 

DHS. 

ACTION: Final rule. 

SUMMARY: The Department of Homeland 

Security (DHS) is amending its 

regulations to provide, on a limited and 

categorical basis, a more streamlined 

process for nonimmigrant aliens 

infected with the human 

immunodeficiency virus (HIV) to enter 

the United States as visitors on 

temporary visas (for business or 

pleasure) for up to 30 days. 

Nonimmigrant aliens who do not meet 

the specific requirements of the rule or 

who do not wish to consent to the 

conditions imposed by this rule may 

elect to seek admission under current 

procedures and obtain a case-by-case 

determination of their eligibility for a 

waiver of the nonimmigrant visa 

requirements concerning inadmissibility 

for aliens who are infected with HIV. 

DATES: This rule is effective on October 

6, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Michael D. Olszak, Customs and Border 

Protection, Office of Field Operations, 

(703) 261–8424. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background and Purpose 

II. The Final Rule 

III. Discussion of Comments 

A. Objections to the Inadmissibility of HIVPositive Aliens 

B. Opposition to Admission of HIVPositive Aliens 

C. Asylees and the Required Waiver of 

Adjustment of Status 

D. Privacy Rights/Annotation of Visas 

E. Whether the Rule Is More Stringent 

Than the Existing Process 

F. Sufficient Insurance and Medication 

G. Human Rights Concerns 

H. Public Health Reasons for the Rule 

I. Disparate Treatment Applied to 

Contagious Diseases 

J. The 30-Day Temporary Admission Limit 

K. Extension of the Comment Period 

L. Vagueness in Criteria and Medical 

Expertise of Consular Officers 

M. Negative Impact on United States 

Citizens 

N. Focus on Illegal Aliens 

O. Aliens Who Are Unaware of Their HIV 

Status 

mstockstill on PROD1PC66 with RULES