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Federal Register/Vol. 68, No. 93/Wednesday, May 14, 2003/Rules and Regulations

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Federal Register/Vol. 68, No. 93/Wednesday, May 14, 2003/Rules and Regulations 25838 Federal Register / Vol. 68, No. 93 / Wednesday, May 14, 2003 / Rules and Regulations DEPARTMENT OF HEALTH AND processed under the Freedom of These amendments also modify § 2.6 HUMAN SERVICES Information Act, 5 U.S.C. 552. to delete the reference to the Freedom These amendments are designed to of Information Act regulations, 45 CFR Office of the Secretary address cases in which a Federal court part 5, to reflect the policy that the has jurisdiction to issue a subpoena for Department will certify any disclosed 45 CFR Part 2 DHHS documents. In such cases, the documents upon request, not just those current regulation may infringe on the disclosed pursuant to part 5. Testimony by Employees and the power of the court by allowing greater Public Participation: This rule is Production of Documents in authority to withhold a document under published as a final rule. It is exempt Proceedings Where the United States the FOIA than would be the case under from public comment, pursuant to 5 Is Not a Party the rules governing disclosure of U.S.C. 553(b)(A) as a rule of ‘‘agency documents in court. See FTC versus AGENCY: Department of Health and organization, procedure, or practice.’’ Grolier, Inc., 462 U.S. 19, 27–28 (1983). Human Services. Paperwork Reduction Act: This Because it is not the intention of the regulation is not subject to the ACTION: Final rule. Department to create or broaden a Paperwork Reduction Act because it Federal litigation privilege through this SUMMARY: This rule amends regulations deals solely with internal rules which provide that employees and part, we are amending the regulation to governing Department of Health and former employees of the Department of limit the applicability of the FOIA to Human Services personnel. situations in which the issuing tribunal Health and Human Services may not Cost/Regulatory Analysis: In has no jurisdiction over the Department. provide testimony as part of their accordance with Executive Order 12291, Accordingly, we are amending §§ 2.1, official duties in litigation where the the Secretary has determined that these 2.3, and 2.5 to provide that when the amendments will not constitute a United States or a Federal agency is not Office of the General Counsel a party, without the approval of the ‘‘major’’ rule and therefore are not determines that a subpoena is ‘‘legally subject to the regulatory impact and head of the agency. The purpose of sufficient,’’ including when the issuing these amendments is to modify analysis requirements of the Order. court has jurisdiction over the Major rules are those which impose a provisions which provide that Department or its employee(s), the subpoenas duces tecum and other cost on the economy of $100 million or Department will follow the applicable more a year and have certain other requests for documents from third procedural and substantive rules parties shall be treated as requests for economic impacts. relating to the production of information These amendments will not have a documents under the Freedom of and documents by a non-party. In cases significant impact on small businesses; Information Act (‘‘FOIA’’). Under these of informal requests for documents, and therefore, preparation of a regulatory amendments, the FOIA shall not apply where the tribunal issuing the subpoena flexibility analysis is not required. to a subpoena when the Department is does not have jurisdiction over the subject to the jurisdiction of the issuing Department—such as is the case in most List of Subjects in 45 CFR Part 2 Federal court or other Federal tribunal subpoenas issuing out of State, local and Administrative practice and and the subpoena is properly served. tribal courts, see, e.g., Boron Oil Co. procedure, Freedom of Information, The regulation provides that where versus Downie, 873 F.2d 67, 70 (4th Cir. Government employees. there is no jurisdiction over the 1989); Environmental Enterprises, Inc. ■ Accordingly, for the reasons set forth Department, as in the case of subpoenas versus EPA, 664 F. Supp. 585, 586 in the preamble, 45 CFR part 2 is issuing out of State, local and tribal (D.D.C. 1987); Reynolds Metals Co. amended as follows: courts, the FOIA will apply to such versus Crowther, 572 F. Supp. 288, 290– subpoenas. 91 (D. Mass. 1982)—the regulation PART 2—[AMENDED] provides that we will continue to treat EFFECTIVE DATE: June 13, 2003. ■ the request as a request made pursuant 1. The authority citation continues to FOR FURTHER INFORMATION CONTACT: read as follows: Katherine M. Drews, Associate General to the FOIA. The amendments also include Authority: 5 U.S.C. 301, 5 U.S.C. 552. Counsel, General Law Division, Office examples following the text of § 2.1 ■ of the General Counsel, at (202) 619– 2. Section 2.1 is amended by revising which illustrate the applicability of this 0150. paragraphs (a), (b), (c), (d)(4), (d)(6), and regulation to situations in which the adding Examples (1) through (5) to SUPPLEMENTARY INFORMATION: In 1987, regulation may or may not apply. paragraph (d)(7) to read as follows: the Department of Health and Human The amendments also reflect changes Services published regulations which in the organizational structure in the § 2.1 Scope, purpose, and applicability. addressed the issue of the increasing Department. The references in § 2.2 to (a) This part sets forth rules to be number of requests for the testimony of the Assistant Secretary for Human followed when an employee or former Department employees in litigation Development Services and the Assistant employee of the Department of Health involving only private parties and not Secretary for Family Support are deleted and Human Services (‘‘DHHS’’ or the United States. The regulation and replaced by references to the ‘‘Department’’), other than an employee addresses this matter by generally Assistant Secretary for Children and of the Food and Drug Administration, is prohibiting both voluntary appearances Families as the Agency Head for requested or subpoenaed to provide and compliance with subpoenas for requests involving the Administration testimony in a deposition, trial, or other testimony as part of an employee’s for Children and Families and by the similar proceeding concerning official duties, except where the Assistant Secretary for Aging for information acquired in the course of relevant agency head or his or her requests involving the Administration performing official duties or because of designee determines that the appearance on Aging. In addition, reference to the such person’s official capacity with would promote the objectives of the Commissioner of Social Security is DHHS. This part also sets forth Department. In addition, the regulation deleted, due to the March 31, 1995, procedures for the handling of provides that subpoenas for the independence of the Social Security subpoenas duces tecum and other production of documents would be Administration. requests for any document in the VerDate Jan<31>2003 11:50 May 13, 2003 Jkt 200001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\14MYR1.SGM 14MYR1 Federal Register / Vol. 68, No. 93 / Wednesday, May 14, 2003 / Rules and Regulations 25839 possession of DHHS, other than the what she observed. She is subsequently (6) Centers for Disease Control and Food and Drug Administration, and for subpoenaed to testify in a criminal Prevention—Director; the processing of requests for proceeding. The local prosecutor would not (7) Centers for Medicare and Medicaid certification of copies of documents. be required to obtain Agency head approval Services—Administrator; prior to requiring the employee to testify, (8) Health Resources and Services Separate regulations, 21 CFR part 20, because the subject of the testimony does not govern the Food and Drug ‘‘relate to’’ the Department, within the Administration—Administrator; Administration, and those regulations meaning of § 2.1(d)(5). (9) Indian Health Service—Director; are not affected by this part. Example (3): A nurse on duty at an Indian (10) National Institutes of Health— (b) It is the policy of the DHHS to Health Service hospital emergency room Director; provide information, data, and records treats a child who is brought in following a (11) Substance Abuse and Mental to non-federal litigants to the same report of domestic violence. The nurse is Health Services Administration— extent and in the same manner that they subsequently served with a subpoena to Administrator; are made available to the general public testify in a criminal proceeding against one (12) Office of Inspector General— and, when subject to the jurisdiction of of the child’s parents concerning the injuries Inspector General. to the child which he observed. The local Employee includes: a court or other tribunal presiding over prosecutor would be required to obtain non-federal party litigation, to follow all (1) Commissioned officers in the Agency head approval prior to requiring the Public Health Service Commissioned applicable procedural and substantive nurse to testify, because the subject of the rules relating to the production of testimony involves ‘‘information acquired in Corps, as well as regular and special information, data, and records by a non- the course of performing official duties or DHHS employees (except employees of party. The availability of Department because of the person’s official capacity,’’ the Food and Drug Administration), employees to testify in litigation not within the meaning of § 2.1(a). when they are performing the duties of involving federal parties is governed by Example (4): A personnel specialist their regular positions, as well as when the Department’s policy to maintain working for the Department is subpoenaed to they are performing duties in a testify concerning the meaning of entries on strict impartiality with respect to private temporary assignment at DHHS or time and attendance records of an employee, another organization.
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