
[Code of Federal Regulations]
[Title 7, Volume 1]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR1]

[Page 67-70]
 
                          TITLE 7--AGRICULTURE
 
PART 1--ADMINISTRATIVE REGULATIONS--Table of Contents
 
Subpart K--Appearance of USDA Employees as Witnesses in Judicial or Administrat
ive Proceedings

    Source: 55 FR 42347, Oct. 19, 1990, unless otherwise noted.

Sec. 1.210  Purpose.

    This subpart sets forth procedures governing the appearance of USDA 
employees as witnesses in order to testify or produce official documents 
in judicial or administrative proceedings when such appearance is in 
their official capacity or arises out of or is related to their 
employment with USDA. These regulations do not apply to appearances by 
USDA employees as witnesses in judicial or administrative proceedings 
which are purely personal or do not arise out of or relate to their 
employment with USDA. This subpart also does not apply to Congressional 
requests or subpoenas for testimony or documents.

Sec. 1.211  Definitions.

    (a) Administrative proceeding means any proceeding pending before 
any federal, state, or local agency and undertaken for the purpose of 
the issuance of any regulations, orders, licenses, permits, or other 
rulings, or the adjudication of any matter, dispute, or controversy.
    (b) Appearance means testimony or production of documents the 
request for which arises out of an employee's official duties with USDA 
or relates to his or her employment with USDA. For

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the purpose of this subpart, an appearance also includes an affidavit, 
deposition, interrogatory, or other required written submission.
    (c) Judicial proceeding means any case or controversy pending before 
any federal, state, or local court.
    (d) Travel expenses means the amount of money paid to a witness for 
reimbursement for transportation, lodging, meals, and other 
miscellaneous expenses in connection with attendance at a judicial or 
administrative proceeding.
    (e) USDA means the United States Department of Agriculture.
    (f) USDA agency means an organizational unit of USDA whose head 
reports to an official within the Office of the Secretary of 
Agriculture.
    (g) Valid summons, subpoena, or other compulsory process means an 
order that is served properly and within the legal authority and the 
jurisdictional boundaries of the court or administrative agency or 
official that has issued it.
    (h) Witness fees means the amount of money paid to a witness as 
compensation for attendance at a judicial or administrative proceeding.

Sec. 1.212  General.

    No USDA employee may provide testimony or produce documents in a 
judicial or administrative proceeding unless authorized in accordance 
with this subpart.

Sec. 1.213  Appearance as a witness on behalf of the United States.

    An employee of USDA may appear as a witness on behalf of the United 
States in any judicial or administrative proceeding without the issuance 
of a summons, subpoena, or other compulsory process. Employees should 
obtain permission for such an appearance from their immediate supervisor 
unless the USDA agency or General Counsel has issued instructions 
providing otherwise.

Sec. 1.214  Appearance as a witness on behalf of a party other than the 
          United States where the United States is not a party.

    (a) An employee of USDA served with a valid summons, subpoena, or 
other compulsory process demanding his or her appearance, or otherwise 
requested to appear on behalf of a party other than the United States in 
a judicial or administrative proceeding in which the United States is 
not a party, shall promptly notify the head of his or her USDA agency of 
the existence and nature of the order compelling his or her appearance, 
or of the document requesting his or her attendance. He or she shall 
also specify, if that is known, the nature of the judicial or 
administrative proceeding and the nature of the testimony or documents 
requested.
    (b)(1) An employee of USDA served with a valid summons, subpoena, or 
other compulsory process, or requested to appear as a witness on behalf 
of a party other than the United States in a judicial or administrative 
proceeding in which the United States is not a party, may appear only if 
such appearance has been authorized by the head of his or her USDA 
agency, with the concurrence of the General Counsel, based upon a 
determination that such an appearance is in the interest of USDA.
    (2) An employee of USDA requested to appear as a witness on behalf 
of a party other than the United States in a judicial or administrative 
proceeding in which the United States is not a party, without the 
service of a valid summons, subpoena, or other compulsory process, may 
appear only if such appearance has been authorized by the head of his or 
her USDA agency and approved by the appropriate Assistant Secretary, 
Under Secretary or other general officer, and by the General Counsel, 
based upon a determination that such an appearance is in the interest of 
USDA.
    (c) Unless an appearance is authorized as provided in paragraphs 
(b)(1) or (b)(2) of this section, the employee shall appear at the 
stated time and place (unless advised by the General Counsel or his or 
her designee that the summons, subpoena, or other process was not 
validly issued or served), produce a copy of these regulations and 
respectfully decline to provide any testimony. As appropriate, the 
General Counsel or his or her designee will request the assistance of 
the Department

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of Justice or of a United States Attorney, in the case of a judicial 
proceeding; or of the official or attorney representing the United 
States, in the case of an administrative proceeding, to represent the 
interests of the employee and USDA.
    (d) If there is any question regarding the validity of a summons, 
subpoena, or other compulsory process, an employee shall contact the 
Office of the General Counsel for advice.
    (e)(1) In determining whether the employee's appearance is in the 
interest of USDA, authorizing officials should consider the following:
    (i) what interest of USDA would be promoted by the employee's 
testimony;
    (ii) whether an appearance would result in an unnecessary 
interference with the duties of the USDA employee;
    (iii) whether an employee's testimony would result in the appearance 
of improperly favoring one litigant over another.
    (2) The considerations listed in paragraph (e)(1) of this section 
are illustrative and not exhaustive.

Sec. 1.215  Subpoenas duces tecum for USDA records in judicial or 
          administrative proceedings in which the United States is not a 
          party.

    (a) Subpoenas duces tecum for USDA records in judicial or 
administrative proceedings in which the United States is not a party 
shall be deemed to be requests for records under the Freedom of 
Information Act and shall be handled pursuant to the rules governing 
public disclosure under subpart A of this part.
    (b) Whenever a subpoena duces tecum compelling the production of 
records is served on a USDA employee in a judicial or administrative 
proceeding in which the United States is not a party, the employee, 
after consultation with the General Counsel or his or her designee, 
shall appear in response thereto, respectfully decline to produce the 
records on the grounds that it is prohibited by this section and state 
that the production of the records involved will be handled in 
accordance with subpart A of this part.

Sec. 1.216  Appearance as a witness or production of documents on behalf 
          of a party other than the United States where the United 
          States is a party.

    (a) An employee of USDA served with a valid summons, subpoena, or 
other compulsory process demanding his or her appearance, or otherwise 
requested to appear or produce documents on behalf of a party other than 
the United States in a judicial or administrative proceeding in which 
the United States is a party, shall promptly notify the head of his or 
her USDA agency and the General Counsel or his or her designee of the 
existence and nature of the order compelling his or her appearance, or 
of the document requesting his or her appearance. He or she shall also 
specify, if that is known, the nature of the judicial or administrative 
proceeding and the nature of the testimony or documents requested.
    (b)(1) Except as provided in paragraph (b)(2) of this section, an 
employee of USDA only may appear as a witness or produce records on 
behalf of a party other than the United States in a judicial or 
administrative proceeding in which the United States is a party if such 
appearance or production has been ordered by the service on the employee 
of a valid summons, subpoena, or other compulsory process issued by a 
court, administrative agency, or other official authorized to compel his 
or her appearance.
    (2) An employee requested to appear as a witness or produce records 
on behalf of a party other than the United States in a judicial or 
administrative proceeding in which the United States is a party, without 
being served a valid summons, subpoena, or other compulsory process, may 
appear or produce records only if such appearance or production has been 
authorized by a representative of the Department of Justice, the United 
States Attorney, or other counsel who is representing the United States 
in the case of a judicial proceeding; or by the official or attorney 
representing the United States, in the case of an administrative 
proceeding.
    (c) The head of the USDA agency shall consult with the General 
Counsel or his or her designee as to whether

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there are grounds to oppose the employee's attendance or production of 
documents and, if so, whether to seek to quash the summons, subpoena, 
compulsory process, or to deny authorization under paragraph (b)(2) of 
this section.
    (d) As appropriate, the General Counsel or his or her designee will 
request the assistance of the Department of Justice, a United States 
Attorney, or other counsel representing the United States, in the case 
of a judicial proceeding; or of the official or attorney representing 
the United States, in the case of an administrative proceeding, to 
represent the interest of the employee and USDA.
    (e) If there is any question regarding the validity of a summons, 
subpoena, or other compulsory process, an employee shall contact the 
Office of the General Counsel for advice.

Sec. 1.217  Witness fees and travel expenses.

    (a) Any employee of USDA who attends a judicial or administrative 
proceeding as a witness in order to testify or produce official 
documents on behalf of the United States is entitled to travel expenses 
in connection with such appearance in accordance with the Agriculture 
Travel Regulations.
    (b) An employee of USDA who attends a judicial or administrative 
proceeding on behalf of the United States is not entitled to receive 
fees for such attendance.
    (c) An employee of USDA who attends a judicial or administrative 
proceeding on behalf of a party other than the United States when such 
appearance is in his or her official capacity or arises out of or 
relates to his or her employment with USDA is entitled to travel 
expenses in accordance with the Agriculture Travel Regulations to the 
extent that such expenses are not paid for by the court, agency, or 
official compelling his or her appearance or by the party on whose 
behalf he or she appears.
    (d) An employee of USDA who attends a judicial or administrative 
proceeding on behalf of a party other than the United States when such 
appearance is in his or her official capacity or arises out of or 
relates to his or her employment with USDA is required to collect the 
authorized fees for such service and remit such fees to his or her USDA 
agency.

Sec. 1.218  Penalty.

    An employee who testifies or produces records in a judicial or 
administrative proceeding in violation of the provisions of this 
regulation shall be subject to disciplinary action.

Sec. 1.219  Delegations.

    (a) Except as provided in paragraphs (b), (c), or (d) of this 
section, the head of a USDA agency may delegate his or her 
responsibilities under this subpart, including the requirement to be 
notified of the receipt of a subpoena as provided in Secs. 1.214(a) and 
1.216(a) of this part, to employees of his or her agency as follows:
    (1) In the National office of the agency, to a level no lower than 
two levels below the agency head;
    (2) In a field component of an agency, to a level no lower than the 
official who heads a state office.
    (b) Notwithstanding paragraph (a) of this section, the Chief of the 
Forest Service may delegate his responsibilities under this subpart as 
follows:
    (1) In the National office of the Forest Service, to a level no 
lower than a Deputy Chief of the Forest Service;
    (2) In a field component of the Forest Service, to a level no lower 
than a Regional Forester or Station Director.
    (c) Notwithstanding paragraph (a) of this section, the General 
Counsel may delegate his responsibilities under this subpart as follows:
    (1) In the National office of the Office of the General Counsel, to 
a level no lower than an Assistant General Counsel;
    (2) In the field component of the Office of the General Counsel, to 
Regional Attorneys who may redelegate their responsibilities to 
Associate Regional Attorneys and Assistant Regional Attorneys who report 
to them.
    (d) The responsibilities assigned to heads of agencies and to 
Assistant and Under Secretaries in Sec. 1.214(b)(2) of this part may not 
be redelegated.

[58 FR 62495, Nov. 29, 1993; 58 FR 64353, Dec. 6, 1993]

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