[Federal Register Volume 59, Number 29 (Friday, February 11, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-3288] [[Page Unknown]] [Federal Register: February 11, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF VETERANS AFFAIRS Office of the Secretary 38 CFR Part 14 RIN 2900-AE76 Testimony of Department Personnel and Production of Department Records in Legal Proceedings AGENCY: Department of Veterans Affairs. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Department of Veterans Affairs (VA) is establishing procedures that must be followed when VA personnel, as defined in the rules, are to provide testimony or produce records in legal proceedings. These procedures are necessary for reasons including to ensure more efficient use of VA resources in meeting the Department's mission (VA attorneys and employees currently spend a considerable amount of time responding to requests or demands for VA documents or testimony by VA personnel), to minimize the possibility of involving VA in controversial issues not related to its mission, to maintain the impartiality of VA among persons and entities involved in disputes in which the United States does not have an interest, to protect sensitive, confidential information and the deliberative processes of VA, and to enhance VA's ability to respond to such requests. EFFECTIVE DATE: March 14, 1994. FOR FURTHER INFORMATION CONTACT: Questions concerning the application of the rules to the production of Department records should be directed to: Jeffrey C. Corzatt, Staff Attorney (024H2), Office of General Counsel, Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420, (202) 633-7240. Questions concerning the application of the rules to the testimony of Department personnel should be directed to: Joseph M. Vallowe, Staff Attorney (023K), Office of General Counsel, Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420, (202) 633-7186. SUPPLEMENTARY INFORMATION: Background On July 22, 1993, the Department of Veterans Affairs published a notice of proposed rulemaking (NPRM) (58 FR 39174, July 22, 1993) to promulgate regulations at 38 CFR part 14 establishing procedures governing the appearance of VA personnel, as witnesses in order to testify or produce official documents in legal proceedings, in response to requests or demands for such documents or testimony. Interested parties were invited to submit written comments on or before August 23, 1993. Three comments were received. As VA noted in its NPRM, private litigants are requesting or demanding the production of VA records or testimony by VA personnel or both in a large and apparently increasing number of cases. VA has a large hospital and benefits delivery system serving millions of veterans and their dependents. Further, VA participates in a wide range of activities, such as medical research, that benefits not only our veteran population, but also the general public. All of these activities generate records that contain information concerning individuals or issues of local or national significance. These documents and our personnel's expertise are being sought more often for use in legal proceedings in which the United States is neither involved nor has an interest. Responding to these requests and demands for documents and for testimony can be burdensome and time consuming. When employees are required to testify in depositions, hearings or trials that are brought for private purposes, employees are taken away from their official duties. Often these demands or requests are made on very short notice. The final rules establish new procedural requirements that private litigants must meet before VA would produce documents or make an employee available to testify in a private legal or administrative proceeding. These procedures are not intended to inflict an unnecessary burden on private litigants. Rather, VA's goals are to conserve VA resources, to minimize the possibility of involving VA in controversial issues not related to its mission, to maintain the Department's impartiality among private litigants, to protect the confidentiality of VA's deliberative processes, and to enhance VA's ability to respond more efficiently to requests and demands for records and testimony. As noted in the NPRM, the legal proceedings covered by the final rule are any administrative or judicial activities traditionally conducted within the executive or judicial branches of Federal, state, local, or foreign governmental entities in which the United States: (i) Is not a party; (ii) is not represented; (iii) does not have a direct and substantial interest; and (iv) is not providing representation to any individual or entity that is a party. The proposed rules do not cover activities that are not legal proceedings, such as Congressional requests for records or testimony, or requests for records under the Freedom of Information Act, 5 U.S.C. 552, or under the Privacy Act, 5 U.S.C. 552a. The final rules do not infringe upon or displace responsibilities committed to the Department of Justice in conducting litigation on behalf of the United States. The final rules do not remove the need to comply with any applicable confidentiality provisions, such as the Privacy Act, or 38 U.S.C. 7332, and their implementing regulations before there is legal authority to release records or provide testimony pursuant to a request or demand covered by these rules. In fact, if the requirements of those confidentiality statutes and the implementing regulations are not met, records or testimony cannot be provided even where the requirements of these regulations are met. As stated in the NPRM, the rules address VA's concern over the need to conserve official personnel resources for the performance of the agency's statutory duties while at the same time attempting to accommodate legitimate requests or demands for official records or testimony to the extent possible. Additionally, there is a need for uniformity within the VA system in our responses to these requests or demands. If a party fails to follow the Department's procedures or if VA determines that it will not comply with a demand, VA may move to quash the demand. If a response to a demand is required before the court rules on the motion to quash and the court fails to stay the demand, the employee would appear with agency counsel at the time and place stated in the demand, produce a copy of these regulations, and respectfully decline to testify or produce any documents. If the court orders the employee's testimony, VA counsel may permit an exception under Sec. 14.807(e), or, consistent with long-standing case law, direct the employee not to testify. For example, VA counsel might permit the employee to give factual testimony if permission would have been granted had the party seeking the testimony followed the procedures set forth in these rules. This would prevent a miscarriage of justice by not subjecting the employee to a contempt charge. In appropriate circumstances, agency counsel could still appeal the denial of the motion to quash. The VA's new rules provide that VA employees generally would not be permitted to testify as an expert or opinion witness concerning official VA information, subjects or activities at a hearing or trial in legal proceedings between private litigants. They would only be allowed to testify as to facts within their personal knowledge in these proceedings under limited circumstances. The Department's new rules do not apply to situations in which an employee, although on official duty, observes facts regarding matters that do not arise out of his or her official duties. For example, while driving a government vehicle on agency business, a VA employee witnesses an automobile accident. The rules would not govern efforts to obtain the employee's testimony as to what the employee saw. As stated in the NPRM, the rule does not interfere with the rights of VA personnel as private citizens or the rights of veterans and other private parties to invoke the powers of the courts. Discussion of Comments Two comments were from veterans service organizations and one was from a VA employee. These comments are discussed below. One commenter suggested that the regulations specifically state that they do not cover the production of witnesses and documents in the regular business and proceedings of the VA, that is, in administrative or judicial proceedings involving programs and laws administered by VA. It appears that the commenter was concerned about the rules' potential application to such VA activities as benefits adjudication proceedings in VA's Regional Offices or before the Board of Veterans Appeals, or in litigation before the Court of Veterans Appeals. In these situations, VA either would be a party to the proceedings or would have a direct and substantial interest in them. As explained in the preamble to the NPRM, under the terms of the regulations, they would not apply to either type of proceeding. However, so that there is no doubt on the matter, VA has modified the regulations to state expressly that they do not apply to proceedings involving a claim or dispute as to the rights of a beneficiary or obligations or liabilities of the United States under any law or program administered by the Department of Veterans Affairs. The same commenter also suggested that in addition to mentioning that the regulations do not apply when the Department and the United States is a party to the proceedings, the regulations should also mention that they do not apply when the Secretary of Veterans Affairs is a party in his or her official capacity. The Department accepts this suggestion and the regulations now do not apply when the Secretary of Veterans Affairs is a party to the proceedings. Another commenter suggested that the regulations specify that they do not apply to requests by a veteran or that veteran's representative for access to the veteran's records for use in an administrative or judicial claim for benefits administered by the Department of Veterans Affairs. The commenter was concerned that the proposed regulations would supplant current VA procedures for individuals and their representatives to obtain access to the veterans' claims records in order to pursue their claims. The VA accepts this suggestion. The same commenter also suggested that the regulations provide that they apply to copies of VA records in the possession of veterans service organizations in order to control the release of these records. Historically, VA has taken the legal position that once records have been obtained by a veterans service organization pursuant to a properly executed power of attorney or consent, the copies obtained by the service organization generally are no longer subject to control by VA. Consequently, VA cannot extend the reach of these regulations to copies of a veteran's records in the possession of a veterans service organization. The third commenter was concerned about the impact the proposed regulations would have upon the production of VA records in proceedings in the Republic of the Philippines which are already governed by Department of State procedures. It was not the intent of these regulations to change or replace existing Department of State procedures governing the production of records in legal proceedings in any foreign jurisdiction, including the Republic of the Philippines. Accordingly, the VA has modified the regulations to state specifically that they do not supplant Department of State procedures governing the production of records or witnesses in response to requests or demands in foreign legal proceedings. Regulatory Flexibility Act The Secretary of Veterans Affairs has certified that these proposed rules will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Pursuant to 5 U.S.C. 605(b), the regulations, therefore, are exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604. This certification can be made because the rules affect the conduct of VA activities and actions of VA personnel. They will have no significant economic impact on small entities, i.e., small businesses, small private and nonprofit organizations and small governmental jurisdictions. There are no Catalog of Federal Domestic Assistance numbers for this program. List of Subjects in 38 CFR Part 14 Government employees, Lawyers, Legal services, Veterans. Jesse Brown, Secretary of Veterans Affairs. In Consideration of the foregoing, the Department of Veterans Affairs amends 38 CFR Part 14, Legal Services, General Counsel to include the following: PART 14--LEGAL SERVICES, GENERAL COUNSEL 1. The authority citation for part 14 is revised to read as follows: Authority: 5 U.S.C. 301, 38 U.S.C. 501(a), 5502, 5902-5905, unless otherwise noted. 2. In part 14, Secs. 14.800 through 14.810 and an undesignated center heading prior to Sec. 14.800 are added to read as follows: Testimony of Department Personnel and Production of Department Records in Legal Proceedings Sec. 14.800 Purpose. 14.801 Applicability. 14.802 Definitions. 14.803 Policy. 14.804 Factors to consider. 14.805 Contents of a demand or request. 14.806 Scope of testimony or production. 14.807 Procedure when demand or request is made. 14.808 Expert or opinion testimony. 14.809 Demands or requests in legal proceedings for records protected by confidentiality statutes. 14.810 Fees. Testimony of Department Personnel and Production of Department Records in Legal Proceedings Sec. 14.800 Purpose. Sections 14.800 through 14.810 establish policy, assign responsibilities and prescribe procedures with respect to: (a) The production or disclosure of official information or records of the Department of Veterans Affairs (VA); and (b) The testimony of present or former VA personnel relating to any official information acquired by any individual as part of that individual's performance of official duties, or by virtue of that individual's official status, in federal, state or other legal proceedings covered by these regulations. (Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301.) Sec. 14.801 Applicability. (a) Sections 14.800 through 14.810 apply to: (1) Contractors and subcontractors which undertake a VA activity or maintain VA records when the contract covering their actions provides that these regulations apply, as well as the personnel of contractors and subcontractors. (2) All components of the Department, including Canteen Service, the Office of Inspector General, and all staff offices, services and administrations, and their personnel. (b) Sections 14.800 through 14.810 do not apply to: (1) Testimony or records provided in accordance with Office of Personnel Management regulations implementing 5 U.S.C. 6322. (2)(i) Legal proceedings in which the Department of Veterans Affairs, the Secretary of Veterans Affairs or the United States is a party, is represented or has a direct and substantial interest; or (ii) Legal proceedings in which an individual or entity is a party for whom the United States is providing representation. (3) Legal proceedings in which VA personnel are to testify while in leave or off-duty status as to matters which are purely personal and that do not arise out of, or relate in any way to, the personnel's official duties or to the functions and activities of the VA or the United States. (4) Official comments on matters in legal proceedings, where appropriate. (5) Disclosures, in the absence of a request or demand, of information or records by VA components, particularly the Office of Inspector General, to federal, state, local and foreign law enforcement or regulatory agencies. (6) Congressional demands or requests for testimony or documents. (7) Requests for, and release of, records under the Freedom of Information Act, 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a. (8) Disclosures in child support and alimony proceedings under the authority of 42 U.S.C. 659 and regulations promulgated by the Office of Personnel Management implementing that section. (9) Legal proceedings before or involving the VA concerning a claim or dispute as to the rights of a beneficiary or obligations or liabilities of the United States under any law or program administered by the Department of Veterans Affairs. (10) Requests by a veteran or that veteran's representative for access to the veteran's records for use in an administrative or judicial claim for benefits administered by the Department of Veterans Affairs. (11) Foreign legal proceedings covered by Department of State procedures governing the production of records or witnesses in response to requests or demands in connection with foreign legal proceedings. (c) Sections 14.800 through 14.810 are not intended to, and do not: (1) Waive the sovereign immunity of the United States; (2) Infringe upon or displace the responsibilities committed to the Department of Justice in conducting litigation on behalf of the United States in appropriate cases; (3) Remove the need for the Department to comply with any applicable legal confidentiality provisions, such as the Privacy Act, before having the legal authority to make any disclosure or providing any testimony under these regulations. (Sections 14.800 through 14.810 do not give VA disclosure authority under applicable confidentiality statutes; absent disclosure authority granted by those statutes, information and records subject to those laws may not be disclosed, or testimony given as to them under the procedures established in these regulations); or (4) Preclude treating any written request for agency records that is not in the nature of a request or demand related to legal proceedings as a request under the Freedom of Information or Privacy Acts. (Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301.) Sec. 14.802 Definitions. (a) Demand. Order, subpoena, or other demand of a court of competent jurisdiction, or other specific authority or under color of law, for the production, disclosure, or release of VA information or records or for the appearance and testimony of VA personnel as witnesses. (b) Request. Any informal request, by whatever method, from a party, a party's attorney, or any person acting on behalf of a party, for the production of VA records or information or for the testimony of VA personnel as witnesses, which has not been ordered by a court of competent jurisdiction or other specific authority or under color of law. (c) VA personnel. All present and former officers and employees of the VA and any other individuals who are or have been appointed by, or subject to the supervision, jurisdiction, or control of the Secretary of Veterans Affairs or another official of the VA, including nonappropriated fund activity employees, and other individuals hired through contractual agreements by or on behalf of the VA, or performing services under such agreements for VA, such as consultants, contractors, subcontractors, their employees and personnel. This phrase also includes individuals who served or are serving on any advisory committee or in any advisory capacity, whether formal or informal. (d) Legal proceedings. All pretrial, trial, and post-trial stages of all existing or reasonably anticipated judicial or administrative actions, hearings, investigations, or similar proceedings before courts, commissions, boards, or other tribunals, foreign or domestic that are not specified in Sec. 14.801(b). This phrase includes depositions and other pretrial proceedings, as well as responses to formal or informal requests by attorneys or others in situations involving legal proceedings not specified in Sec. 14.801(b). (e) Official VA information. All information of any kind, however stored, that is in the custody and control of VA or was acquired by VA personnel as part of their official duties or because of their official status. (f) Testimony. Testimony in any form, including personal appearances in court, depositions, recorded interviews, telephonic, televised or videotaped testimony or any response during discovery or similar proceedings, which response would involve more than the production of records. (g) VA records. All documents which are records of the Department of Veterans Affairs for purposes of the Freedom of Information Act, 5 U.S.C. 552, regardless of storage media, including the term ``record'' as defined in 44 U.S.C. 3301, and implementing regulations. (Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301.) Sec. 14.803. Policy. (a) VA personnel may provide testimony or produce VA records in legal proceedings covered by Secs. 14.800 through 14.810 only as authorized in accordance with these regulations. In determining whether to authorize testimony or the production of records, the determining official will consider the effect in this case, as well as in future cases generally, based on the factors set forth in Sec. 14.804, which testifying or producing records not available for public disclosure will have on the ability of the agency or VA personnel to perform their official duties. (b) The Department of Veterans Affairs does not seek to deny its employees access to the courts as citizens, or in the employees' private capacities on off-duty time. (c) The Department of Veterans Affairs does not seek to deny the Nation's veterans access to the courts. (Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.) Sec. 14.804. Factors to consider. In deciding whether to authorize the disclosure of VA records or information or the testimony of VA personnel, VA personnel responsible for making the decision should consider the following types of factors: (a) The need to avoid spending the time and money of the United States for private purposes and to conserve the time of VA personnel for conducting their official duties concerning servicing the Nation's veteran population; (b) How the testimony or production of records would assist VA in performing its statutory duties; (c) Whether the disclosure of the records or presentation of testimony is necessary to prevent the perpetration of fraud or other injustice in the matter in question; (d) Whether the demand or request is unduly burdensome or otherwise inappropriate under the applicable court or administrative rules; (e) Whether the testimony or production of records, including release in camera, is appropriate or necessary under the rules of procedure governing the case or matter in which the demand or request arose, or under the relevant substantive law concerning privilege; (f) Whether the testimony or production of records would violate a statute, executive order, regulation or directive. (Where the production of a record or testimony as to the content of a record or about information contained in a record would violate a confidentiality statute's prohibition against disclosure, disclosure will not be made. Examples of such statutes are the Privacy Act, 5 U.S.C. 552a, and sections 5701, 5705 and 7332 of title 38, United States Code.); (g) Whether the testimony or production of records, except when in camera and necessary to assert a claim of privilege, would reveal information properly classified pursuant to applicable statutes or Executive Orders; (h) Whether the testimony would interfere with ongoing law enforcement proceedings, compromise constitutional rights, compromise national security interests, hamper VA or private health care research activities, reveal sensitive patient or beneficiary information, interfere with patient care, disclose trade secrets or similarly confidential commercial or financial information or otherwise be inappropriate under the circumstances. (i) Whether such release or testimony reasonably could be expected to result in the appearance of VA or the Federal government favoring one litigant over another; (j) Whether such release or testimony reasonably could be expected to result in the appearance of VA or the Federal government endorsing or supporting a position advocated by a party to the proceeding; (k) The need to prevent the public's possible misconstruction of variances between personal opinions of VA personnel and VA or Federal policy. (l) The need to minimize VA's possible involvement in issues unrelated to its mission; (m) Whether the demand or request is within the authority of the party making it; (n) Whether the demand or request is sufficiently specific to be answered; (o) Other matters or concerns presented for consideration in making the decision. (Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.) Sec. 14.805. Contents of a demand or request. The request or demand for testimony or production of documents shall set forth in, or be accompanied by, an affidavit, or if that is not feasible, in, or accompanied by, a written statement by the party seeking the testimony or records or by the party's attorney, a summary of the nature and relevance of the testimony or records sought in the legal proceedings containing sufficient information for the responsible VA official to determine whether VA personnel should be allowed to testify or records should be produced. Where the materials are considered insufficient to make the determination as described in Sec. 14.807, the responsible VA official may ask the requester to provide additional information. (Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.) Sec. 14.806. Scope of testimony or production. VA personnel shall not, in response to a request or demand for testimony or production of records in legal proceedings, comment or testify or produce records without the prior written approval of the responsible VA official designated in Sec. 14.807(b). VA personnel may only testify concerning or comment upon official VA information, subjects or activities, or produce records, that were specified in writing, submitted to and properly approved by the responsible VA official. (Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.) Sec. 14.807. Procedure when demand or request is made. (a) VA personnel upon whom a demand or request for testimony or the production of records in connection with legal proceedings as defined in Sec. 14.802(d) is made shall notify the head of his or her field station, or if in Central Office, the head of the component for which he or she works. The field station or Central Office component shall notify the responsible VA official designated in Sec. 14.807(b). (b) In response to a demand or request for the production of records or the testimony of VA personnel, other than personnel in the Office of the Inspector General (OIG), as witnesses in legal proceedings covered by these regulations, the General Counsel, the District Counsel, an attorney in the Office of General Counsel designated by the General Counsel, or an attorney in the District Counsel office designated by the District Counsel is the responsible VA official authorized to determine whether VA personnel may be interviewed, contacted or used as witnesses, including used as expert witnesses, and whether VA records may be produced; and what, if any, conditions will be imposed upon such interview, contact, testimony or production of records. For personnel in the OIG, the Counselor to the Inspector General or an attorney designated by the Counselor to the Inspector General, is the responsible VA official authorized to make the determinations provided in Sec. 14.807, and that official will keep the General Counsel informed of such determinations for purposes of litigation or claims of privilege. (c) In appropriate cases, the responsible VA official shall promptly notify the Department of Justice of the demand or request. After consultation and coordination with the Department of Justice, as required, and after any necessary consultation with the VA component which employs or employed the VA personnel whose testimony is sought or which is responsible for the maintenance of the records sought, the VA official shall determine in writing whether the individual is required to comply with the demand or request and shall notify the requester or the court or other authority of the determination reached where the determination is that VA will not comply fully with the request or demand. The responsible VA official shall give notice of the decision to other persons as circumstances may warrant. Oral approval may be granted, and a record of such approval made and retained in accordance with the procedures in Sec. 14.807(f) concerning oral requests or demands. (d) If, after VA personnel have received a request or demand in a legal proceeding and have notified the responsible VA official in accordance with this section, a response to the request or demand is required before instructions from the responsible official are received, the responsible official designated in paragraph (b) of this section shall furnish the requester or the court or other authority with a copy of Secs. 14.800 through 14.810 and any other relevant documentation, inform the requester or the court or other authority that the request or demand is being reviewed, and seek a stay of the request or demand pending a final determination by the VA official concerned. (e) If a court of competent jurisdiction or other appropriate authority declines to stay the effect of the demand or request in response to action taken pursuant to Sec. 14.807(d), or if such court or other authority orders that the demand or request be complied with notwithstanding the final decision of the appropriate VA official, the VA personnel upon whom the demand or request was made shall notify the responsible VA official of such ruling or order. If the responsible VA official determines that no further legal review of or challenge to the ruling or order will be sought, the affected VA personnel shall comply with the demand, order or request. If directed by the appropriate VA official after consultation with the appropriate United States Attorney's office, however, the affected VA personnel shall respectfully decline to comply with the demand, request or order. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). (f) Normally, written demands or requests allowing reasonable lead time for evaluation and processing are required. However, in emergency situations where response time is limited and a written demand or request is impractical, the following procedures should be followed: (1) The responsible VA official has the authority to waive the requirement of a written demand or request and may expedite a response in the event of an emergency under conditions which could not be anticipated in the course of proper planning or which demonstrate a good faith attempt to comply with these regulations. Determinations on oral demands or requests should be reserved for instances where insistence on compliance with the requirements of a proper written request would result in the effective denial of the request and cause an injustice in the outcome of the legal proceeding for which the testimony or records are sought. No requester has a right to make an oral demand or request and receive a determination, however. Whether to permit such an exceptional procedure is a decision within the sole discretion of the responsible VA official. (2) If the responsible VA official concludes that the demand or request, or any portion of it, should be granted (after considering the factors listed in Sec. 14.804), the responsible VA official will then orally advise the requester of the determination in accordance with the procedures provided in Sec. 14.807(c), including any limitations on such testimony or production of records, and seek a written confirmation of the oral demand or request. The responsible VA official will make a written record of the determination made concerning the oral demand or request, including the grant or denial, the circumstances requiring the procedure, and the conditions to which the requester agreed. (Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.) Sec. 14.808 Expert or opinion testimony. (a) VA personnel shall not provide, with or without compensation, opinion or expert testimony in any legal proceedings concerning official VA information, subjects or activities, except on behalf of the United States or a party represented by the United States Department of Justice. Upon a showing by the requester or court or other appropriate authority that, in light of the factors listed in Sec. 14.804, there are exceptional circumstances and that the anticipated testimony will not be adverse to the interests of the Department of Veterans Affairs or to the United States, the responsible VA official designated in Sec. 14.807(b) may, in writing, grant special authorization for VA personnel to appear and testify. If, despite the final determination of the responsible VA official, a court of competent jurisdiction or other appropriate authority, orders the expert or opinion testimony of VA personnel, the personnel shall notify the responsible VA official of such order. If the responsible VA official determines that no further legal review of or challenge to the order will be sought, the affected VA personnel shall comply with the order. If directed by the appropriate VA official after consultation with the appropriate United States Attorney's office, however, the affected VA personnel shall respectfully decline to comply with the demand, request or order. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). (b)(1) If, while testifying in any legal proceeding, VA personnel are asked for expert or opinion testimony concerning official VA information, subjects or activities, which testimony has not been approved in advance in accordance with these regulations, the witness shall: (i) Respectfully decline to answer on the grounds that such expert or opinion testimony is forbidden by these regulations; (ii) Request an opportunity to consult with the responsible VA official mentioned in Sec. 14.807(b) before giving such testimony; (iii) Explain that, upon such consultation, approval for such testimony may be provided; and (iv) Explain that providing such testimony absent such approval may expose the individual to criminal liability under 18 U.S.C. 201-209 and to disciplinary or other adverse personnel action. (2) If the witness is then ordered by the body conducting the proceeding to provide expert or opinion testimony concerning official VA information, subjects or activities without the opportunity to consult with the appropriate VA official, the witness respectfully shall refuse to do so. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). (c) Upon notification by the witness of a request for opinion or expert testimony concerning official VA information, subjects or activities during Sec. 14.802(d) legal proceedings, the responsible VA official shall follow the procedures contained in this section to determine whether such testimony shall be approved. (d) If VA personnel who are unaware of these regulations provide expert or opinion testimony concerning official VA information, subjects or activities in any legal proceeding, including one mentioned in Sec. 14.802(d) in which the United States is not already represented, without consulting with the responsible VA official, the witness, as soon after testifying as possible, shall inform the responsible VA official of the fact that such testimony was given and provide a summary of the expert or opinion testimony given. (Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.) Sec. 14.809 Demands or requests in legal proceedings for records protected by confidentiality statutes. In addition to complying with the requirements of Secs. 14.800 through 14.810, requests or demands in legal proceedings for the production of records, or for testimony of VA employees concerning information, protected by the Privacy Act, 5 U.S.C. 552a, or other confidentiality statutes, such as 38 U.S.C. 5701, 5705 and 7332, must satisfy the requirements for disclosure imposed by those statutes, and implementing regulations, such as 38 CFR 1.511, before the records may be provided or testimony given. Accordingly, the responsible VA official may first determine whether there is legal authority to provide the testimony or records sought under applicable confidentiality statutes before applying Secs. 14.800 through 14.810. Where an applicable confidentiality statute mandates disclosure, Secs. 14.800 through 14.810 will not apply. (Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.) Sec. 14.810 Fees. (a) The testimony of VA personnel as witnesses, particularly as expert witnesses, and the production of VA records in legal proceedings subject to Secs. 14.800 through 14.810 are services which convey special benefits to the individuals or entities seeking such testimony or production of records above and beyond those accruing to the general public. These services are not regularly received by or available without charge to the public at large. Consequently, these are the sort of services for which the VA may establish a charge for providing under 31 U.S.C. 9701. The responsible VA official will determine all fees associated with Secs. 14.800 through 14.810, and shall timely notify the requester of the fees, particularly those which are to be paid in advance. (b)(1) When a request is granted under Sec. 14.808 to permit VA personnel to testify in whole or in part as to expert, opinion or policy matters, the requester shall pay to the government a fee calculated to reimburse the cost of providing the witness. The fee shall include: (i) Costs of the time expended by VA personnel to process and respond to the demand or request; (ii) Costs of attorney time expended in reviewing the demand or request and any information located in connection with the demand or request; (iii) Expenses generated by materials and equipment used to search for, produce, and copy the responsive information; (iv) The cost of the time expended by the witness to prepare to testify; and (v) Costs of travel by the witness and attendance at trial. (2) All costs for documents necessary for such expert testimony shall be calculated as provided in VA regulations implementing the fee provisions of the Freedom of Information Act, 5 U.S.C. 552. (c) When an individual testifies in legal proceedings covered by these regulations in any capacity other than as an expert witness, the requester shall pay to the witness the fee and expenses prescribed for attendance by the applicable rule of court. If no such fee is prescribed, the applicable Federal rule, such as a local Federal district court rule, will apply. No additional fee will be prescribed for the time spent while testifying or in attendance to do so. (d) When a requester wishes to interview VA personnel as part of legal proceedings covered by these regulations, and such interview has been approved in accordance with these regulations, the requester shall pay a fee calculated upon the total hourly pay of the individual interviewed. (e) When VA produces records in legal proceedings pursuant to Secs. 14.800 through 14.810, the fees to be charged and paid prior to production of the records shall be the fees charged by VA under its regulations implementing the fee provisions of the Freedom of Information Act, 5 U.S.C. 552. (f) Fees shall be paid as follows: (1) Fees for copies of documents, blueprints, electronic tapes, or other VA records will be paid to the VA office or station providing the records, and covered to the General Fund of the Department of the Treasury. (2) Witness fees for testimony shall be paid to the witness, who shall endorse the check ``pay to the United States,'' and surrender it to his or her supervisor. It shall thereafter be deposited in the General Fund. (3) The private party requesting a VA witness shall forward in advance necessary round trip tickets and all requisite travel and per diem funds. (g) A waiver of any fees in connection with the testimony of an expert witness may be granted by the appropriate VA official at the official's discretion provided that the waiver is in the interest of the United States. Fee waivers shall not be routinely granted, nor shall they be granted under circumstances which might create the appearance that the VA or the United States favors one party or a position advocated by a party to the legal proceeding. (Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301.) [FR Doc. 94-3288 Filed 2-10-94; 8:45 am] BILLING CODE 8320-01-P