1、82 49 CFR Subtitle A (10110 Edition) Pt. 9 contracting officers assure that actions required by the regulation are taken. PART 9TESTIMONY OF EMPLOY-EES OF THE DEPARTMENT AND PRODUCTION OF RECORDS IN LEGAL PROCEEDINGS Sec. 9.1 Purpose. 9.2 Applicability. 9.3 Definitions. 9.5 General prohibition of pr
2、oduction or dis-closure in legal proceedings. 9.7 Testimony by employees before the De-partment or in other legal proceedings in which the United States is a party. 9.9 Legal proceedings between private liti-gants: General rules. 9.11 Legal proceedings between private liti-gants: Demands. 9.13 Legal
3、 proceedings between private liti-gants: Procedures to request records. 9.15 Legal proceedings between private liti-gants: Procedures to request testimony. 9.17 Legal proceedings between private liti-gants: Procedures for taking testimony. 9.19 Acceptance of service on behalf of Sec-retary. AUTHORIT
4、Y: 5 U.S.C. 301; 45 U.S.C. 4142; 49 U.S.C. 322; 49 U.S.C. 504(f); 23 U.S.C. 409. SOURCE: 58 FR 6724, Feb. 2, 1993, unless oth-erwise noted. 9.1 Purpose. (a) This part sets forth procedures governing the testimony of an em-ployee in legal proceedings in which the United States is a party. It also set
5、s forth procedures to be followed when an employee is issued a subpoena, order or other demand (collectively re-ferred to in this part as a demand) by a court or other competent author-ity, or is requested by a private liti-gant, to provide testimony or produce records concerning information ac-quir
6、ed in the course of performing offi-cial duties or because of the employees official status. It also prescribes the policies and procedures of the Depart-ment with respect to the acceptance of service of legal process and pleadings in legal proceedings involving the De-partment. (b) The purposes of
7、this part are to: (1) Conserve the time of employees for conducting official business; (2) Minimize the possibility of involv-ing the Department in controversial issues not related to its mission; (3) Maintain the impartiality of the Department among private litigants; (4) Avoid spending the time an
8、d money of the United States for private purposes; and (5) To protect confidential, sensitive information and the deliberative proc-esses of the Department. (c) Agency counsel, in his or her dis-cretion, may permit an exception from any requirement in this part. The ex-ception may be granted only wh
9、en the deviation will not interfere with mat-ters of operational or military neces-sity, and when agency counsel deter-mines that: (1) It is necessary to prevent a mis-carriage of justice; (2) The Department has an interest in the decision that may be rendered in the legal proceeding; or (3) The exc
10、eption is in the best inter-est of the Department or the United States. For Office of Inspector General em-ployees and documents, the Inspector General, in conjunction with the Gen-eral Counsel of the Department, may permit an exception from any require-ment of this part if the Inspector Gen-eral de
11、termines, based on the Inspector General Act of 1978, as amended, that application of the requirement would be inappropriate. 9.2 Applicability. This part applies to the testimony of an employee in legal proceedings in which the United States is a party. It also applies in legal proceedings be-tween
12、 private litigants to requests or demands for testimony or records con-cerning information acquired in the course of an employee performing offi-cial duties or because of the employees official status. This part does not apply to any legal proceeding in which an employee is to testify as to facts or
13、 events that are in no way related to the employees official duties or the functions of the Department. Nor does it apply to Congressional demands for testimony or documents. 9.3 Definitions. For purposes of this part: VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00092 Fmt 8010 Sfmt 80
14、10 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-83 Office of the Secretary of Transportation 9.7 Department means the Department of Transportation (DOT), including the Office of the Secretar
15、y (which encom-passes the Office of the Inspector Gen-eral) and the following operating ad-ministrations while they are part of DOT: (a) The U.S. Coast Guard. (b) The Federal Aviation Administra-tion. (c) The Federal Highway Administra-tion. (d) The Federal Railroad Administra-tion. (e) The Federal
16、Transit Administra-tion. (f) The St. Lawrence Seaway Devel-opment Corporation. (g) The National Highway Traffic Safety Administration. (h) The Maritime Administration. (i) The Research and Special Pro-grams Administration. (j) Any DOT operating administra-tion established after the effective date of
17、 this part. Legal proceeding means any case or controversy pending before any federal, state, or local court (including grand jury proceedings), any administrative proceeding pending before any federal, state, or local agency, or any legisla-tive proceeding pending before any state or local agency.
18、Legal proceeding between private liti-gants means any legal proceeding in which neither the Department of Transportation nor the United States (including any federal agency or officer of the United States in his or her offi-cial capacity) is a party. Employee of the Department or Em-ployee means any
19、 current or former of-ficer or employee of the Department; any active duty, retired, or former offi-cer or enlisted member of the Coast Guard; or any current or former con-tractor (including any corporation or other entity and any employee or sub-contractor). Agency counsel means the General Counsel
20、 of the Department or the Chief Counsel of any operating administra-tion of the Department concerned, any person to whom the General Counsel or Chief Counsel has delegated authority, or any person who is authorized to rep-resent the Department in a specific legal proceeding. Testimony means any writ
21、ten or oral statement by a witness, including depositions, answers to interrogatories, affidavits, declarations, and state-ments at a hearing or trial. 9.5 General prohibition of production or disclosure in legal proceedings. No employee of the Department may provide testimony or produce any ma-teri
22、al contained in the files of the De-partment, or disclose any information relating to, or based upon, material contained in the files of the Depart-ment, or disclose any information or produce any material acquired as part of the performance of that employees official duties or because of that em-pl
23、oyees official status unless author-ized in accordance with this part, or by other applicable law. 9.7 Testimony by employees before the Department or in other legal proceedings in which the United States is a party. In any legal proceeding before the Department or in which the United States (includ
24、ing any federal agency or officer of the United States) is a party: (a) Agency counsel shall arrange for an employee to testify as a witness for the United States whenever the attor-ney representing the United States re-quests it. (b) An employee may testify for the United States both as to facts wi
25、thin the employees personal knowledge and as an expert or opinion witness. Except as provided in paragraph (c) of this sec-tion, an employee may not testify as an expert or opinion witness, with re-gard to any matter arising out of the employees official duties or the func-tions of the Department, f
26、or any party other than the United States in any legal proceeding in which the United States is a party. An employee who re-ceives a demand to testify on behalf of a party other than the United States may testify as to facts within the em-ployees personal knowledge, provided that the testimony be su
27、bject to the prior approval of agency counsel and to the Federal Rules of Civil Procedure and any applicable claims of privilege. (c) An employee may testify as an ex-pert or opinion witness on behalf of an officer or enlisted member of the Coast VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 0000
28、0 Frm 00093 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-84 49 CFR Subtitle A (10110 Edition) 9.9 Guard in any legal proceeding con-ducted by the Coast Guard. 9.9 Legal pr
29、oceedings between pri-vate litigants: General rules. In legal proceedings between private litigants: (a) The proper method for obtaining testimony or records from an employee is to submit a request to agency coun-sel as provided in 9.13 and 9.15 of this part, not to serve a demand on the em-ployee.
30、Whenever, in a legal proceeding between private litigants, an employee is served with a demand, or receives a request, to testify in that employees official capacity or produce records, the employee shall immediately notify agency counsel. (b) If authorized to testify pursuant to these rules, an emp
31、loyee may testify only as to facts within that employees personal knowledge with regard to matters arising out of his or her offi-cial duties. (1) When the proceeding arises from an accident, an employee may testify only as to personally known facts, not reasonably available from other sources, obse
32、rved by the employee or uncovered during the employees inves-tigation of the accident or observed by the employee even if he or she did not investigate the accident. The employee shall decline to testify regarding facts beyond the scope of his or her official duties. (2) The employee shall not testi
33、fy to facts that are contained in a report, or any part of a report, unless the em-ployee has obtained permission from agency counsel to disclose the informa-tion. (3) The employee shall not disclose confidential or privileged information unless the employee has obtained per-mission from agency coun
34、sel to dis-close the information. (4) The employee shall not testify as to facts when agency counsel deter-mines that the testimony would not be in the best interest of the Department or the United States if disclosed. (c) An employee shall not testify as an expert or opinion witness with re-gard to
35、 any matter arising out of the employees official duties or the func-tions of the Department. An employee who is asked questions that call for ex-pert or opinion testimony shall decline to answer on the grounds that it is for-bidden by this part. Agency counsel shall advise the employee on how to pr
36、oceed if the presiding officer directs the employee to provide expert or opin-ion testimony. (d) An employee shall not provide testimony at a trial or hearing. An em-ployees testimony shall be limited to a single deposition, affidavit, or set of interrogatories, concerning the cir-cumstances (e.g. a
37、n accident) from which the proceeding arose. Where multiple legal proceedings concerning those circumstances are pending, or can occur, it shall be the duty of the private litigant seeking the testimony to ascertain, to the extent feasible, the identities of all parties, or potential parties, to tho
38、se proceedings and notify them that a deposition has been grant-ed and that they have the opportunity to participate. The private litigant shall submit an affidavit or certifi-cation describing the extent of the search for parties and potential parties and listing the names of the parties and potent
39、ial parties notified. (e) Where an employee has already provided testimony, any party wishing to obtain further testimony from that employee concerning the same matter or occurrence, whether in the same or a different private legal proceeding, may submit a request to agency coun-sel to waive the res
40、trictions of para-graph (d) of this section. The request shall, in addition to meeting the re-quirements of 9.15 of this part, state why the requester should be permitted to gather additional information de-spite not having previously requested the information when it had an oppor-tunity to do so, a
41、nd why the additional testimony is now required and the prior testimony or previously supplied documents are insufficient. 9.11 Legal proceedings between pri-vate litigants: Demands. (a) If an employee receives a demand that has not been validly issued or served, agency counsel may instruct the empl
42、oyee not to comply with the demand. (b) If an employee receives a demand (validly issued and served) to testify or produce records, agency counsel, in his VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00094 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProv
43、ided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-85 Office of the Secretary of Transportation 9.15 or her discretion, may grant the em-ployee permission to testify or produce records only if the purposes of this part are met or agency counsel determines t
44、hat an exception is appropriate. (c) If a demand is issued to an em-ployee, agency counsel shall contact the requester of the demand, inform that person of the requirements of this part, and may, in agency counsels dis-cretion, ask that the demand be with-drawn. (d) If the requester of the demand re
45、-fuses to have it withdrawn or fails to comply with this part, the Department may seek to quash the demand. (e) If the court or other competent authority declines to grant the Depart-ments motion to quash, agency coun-sel shall instruct the employee whether to testify or produce documents pursu-ant
46、to the demand. Agency counsel may permit the testimony under 9.1(c) of this part. If response to a demand is required before the court or other com-petent authority rules on the motion to quash and the court fails to stay the demand, the employee must appear at the stated time and place, produce a c
47、opy of this part, and respectfully refuse to provide any testimony or produce any documents. Agency coun-sel shall take steps to arrange for legal representation for the employee. Agen-cy counsel shall advise the employee how to respond, including not to tes-tify, if the court or other competent aut
48、hority rules that the demand must be complied with irrespective of these regulations. 9.13 Legal proceedings between pri-vate litigants: Procedures to re-quest records. (a) In a legal proceeding between pri-vate litigants, a party who wishes to obtain records from the Department shall submit to agen
49、cy counsel a re-quest for the records. The request will ordinarily be handled in accordance with the Departments procedures con-cerning requests for records found at 49 CFR part 7. If the party does not follow the procedures specified in that part, the request must be accompanied by a statement setting forth the relevance of the records to the proceeding. The request should be resolved before any request for testimony under 9.15 is submitted. Where a
