Production of Records and Testimony of Personnel of the Export-Import Bank of the United States in Legal Proceedings, 61395-61398 [05-21147]
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61395
Proposed Rules
Federal Register
Vol. 70, No. 204
Monday, October 24, 2005
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
DEPARTMENT OF ENERGY
Office of Energy Efficiency and
Renewable Energy
10 CFR Part 430
[Docket No. EE–PS–2006–001]
Energy Conservation Program for
Consumer Products and Commercial
and Industrial Equipment
Office of Energy Efficiency and
Renewable Energy, Department of
Energy.
ACTION: Notice of public meeting and
availability.
AGENCY:
SUMMARY: The Department of Energy
(DOE or Department) Building
Technologies Program will hold a
public meeting to discuss appliance
standards scheduling issues. The
Department is interested in receiving
comments on the Department’s desire to
bring all appliance rulemaking activities
into compliance with the applicable
statutory requirements. The Department
will finalize its standards scheduling
plan after consideration of comments
received during and following the
public meeting.
DATES: The Department will hold a
public meeting on Tuesday, November
15, 2005, from 9 a.m. to 4 p.m. Please
submit written comments by Thursday,
December 15, 2005.
ADDRESSES: The meeting will be held at
the Holiday Inn Capitol, 550 C Street,
SW., Washington, DC 20024.
The DOE Web site at https://
www.eere.energy.gov/buildings/
appliance_standards/
2006_schedule_setting contains
background information, including: The
list of rulemaking activities; summary
data sheets for affected products;
analysis spreadsheets; and other
information.
The Department welcomes your
participation at the meeting as well as
written comments. Written comments,
data, and information regarding
scheduling issues will be accepted no
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later than the date provided in the DATES
section.
You may submit comments, identified
for the 2006 Appliance Standards
Schedule Setting, by any of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• E-mail:
schedulesetting2006@ee.doe.gov.
Include 2006 Appliance Standards
Schedule Setting in the subject line of
the message.
• Mail: Ms. Brenda Edwards-Jones,
U.S. Department of Energy, Building
Technologies Program, Mailstop EE–2J,
2006 Appliance Standards Schedule
Setting, 1000 Independence Avenue,
SW., Washington, DC 20585–0121.
Telephone: (202) 586–2945. Please
submit one signed original.
• Hand delivery/Courier: Ms. Brenda
Edwards-Jones, U.S. Department of
Energy, Building Technologies Program,
Mailstop EE–2J, 2006 Appliance
Standards Schedule Setting, 1000
Independence Avenue, SW.,
Washington, DC 20585–0121.
Instructions: All submissions received
must include the agency name and
reference the 2006 Appliance Standards
Schedule Setting. Submit electronic
comments in WordPerfect, Microsoft
Word, PDF, or text (ASCII) format file;
avoid the use of special characters or
any form of encryption; and, wherever
possible, include the electronic
signature of the author. If you don’t
include an electronic signature, you
must authenticate comments by
thereafter submitting the signed original
paper document. No telefacsimiles
(telefaxes) will be accepted.
Docket: For access to the docket to
read background documents or
comments received, go to the U.S.
Department of Energy, Forrestal
Building, Room 1J–018 Resources Room
of the Building Technologies Program),
1000 Independence Avenue, SW.,
Washington, DC, (202) 586–9127,
between 9 a.m. and 4 p.m., Monday
through Friday, except Federal holidays.
Please call Ms. Brenda Edwards-Jones at
the above telephone number for
additional information regarding
visiting the Resource Room.
FOR FURTHER INFORMATION CONTACT:
Linda Graves, Esq., U.S. Department of
Energy, Office of Energy Efficiency and
Renewable Energy, EE–2J, 1000
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Independence Avenue, SW.,
Washington, DC 20585–0121, (202) 586–
1851, e-mail: Linda.Graves@ee.doe.gov,
or Francine Pinto, Esq., or Thomas
DePriest, Esq., U.S. Department of
Energy, Office of General Counsel, GC–
72, 1000 Independence Avenue, SW.,
Washington, DC 20585, (202) 586–9507,
e-mail: Francine.Pinto@hq.doe.gov, or
Thomas.DePriest@hq.doe.gov,
respectively.
SUPPLEMENTARY INFORMATION: The
Department invites your participation in
a public meeting to address how the
Department will develop and
implement a full compliance scheduling
plan for appliance standards rulemaking
activities. The Department particularly
welcomes your perspective and
assistance with respect to scheduling
activities, given the enormous,
competing demands on its resources.
The meeting will be conducted in an
informal, conference style. There will
not be any discussion of proprietary
information, costs or prices, market
shares, or other commercial matters
regulated by the U.S. antitrust laws.
After the meeting and expiration of
the period for submitting written
statements, the Department will
consider the comments received.
If you would like to participate in the
meeting or be added to the DOE mailing
list to receive future notices and
information regarding the energy
conservation program for consumer
products and commercial and industrial
equipment, please contact Ms. Brenda
Edwards-Jones at (202) 586–2945.
Issued in Washington, DC, on October 19,
2005.
Douglas L. Faulkner,
Acting Assistant Secretary, Energy Efficiency
and Renewable Energy.
[FR Doc. 05–21248 Filed 10–20–05; 9:07 am]
BILLING CODE 6450–01–P
EXPORT-IMPORT BANK OF THE
UNITED STATES
12 CFR Part 404
Production of Records and Testimony
of Personnel of the Export-Import Bank
of the United States in Legal
Proceedings
Export-Import Bank of the
United States (‘‘Ex-Im Bank’’).
ACTION: Proposed rule.
AGENCY:
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61396
Federal Register / Vol. 70, No. 204 / Monday, October 24, 2005 / Proposed Rules
SUMMARY: Ex-Im Bank is issuing a
proposed regulation that would
establish policy and prescribe
procedures with respect to the
testimony of Ex-Im Bank personnel,
both current and former, and the
production of agency records, in legal
proceedings. The proposed regulation is
designed to balance concerns such as
preserving the time of Ex-Im Bank
personnel for the conduct of official
business against concerns such as
whether the disclosure of information
requested is necessary to prevent fraud
or injustice.
DATES: Comments due by November 23,
2005.
ADDRESSES: Office of the General
Counsel, Export Import Bank of the
United States, 811 Vermont Ave., NW.,
Washington, DC 20571.
FOR FURTHER INFORMATION CONTACT:
Brian J. Sonfield, Assistant General
Counsel for Administration, Export
Import Bank of the United States,
Phone: (202) 565–3439/Fax: (202) 565–
3586.
SUPPLEMENTARY INFORMATION:
I. Background
Section 301 of title 5, United States
Code, provides that the head of an
Executive department may prescribe
regulations for the custody, use and
preservation of its records. The Supreme
Court has interpreted this statute as
allowing Federal agencies to promulgate
regulations under the authority of
section 301 establishing procedures
governing the production of records and
testimony by federal agency personnel
in legal proceedings in which the
agency is not a party. United States ex
rel. Touhy v. Ragen, 340 U.S. 462
(1951).
Ex-Im Bank frequently receives
demands for: (1) Testimony of its
employees or (2) the production of
agency records—in legal proceedings to
which Ex-Im Bank is not a party. Ex-Im
Bank currently does not have any
regulations or procedures to address this
situation.
II. Analysis of Proposed Regulation
The proposed rule is designed to
establish centralized Ex-Im Bank
policies and procedures to govern the
production of agency records and
testimony regarding information
acquired in the course of the
performance of official duties by current
and former Ex-Im Bank personnel in
legal proceedings before Federal, state,
and local entities (as specified in the
proposed regulation) in which Ex-Im
Bank (i) Is not a party; (ii) is not
represented; (iii) does not have a direct
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and substantial interest; and (iv) is not
providing representation to an
individual or entity that is a party. The
proposed rule does not cover requests
for information that are not part of legal
proceedings, such as requests for
records under the Freedom of
Information Act, 5 U.S.C. 552.
The proposed regulation is intended
to address Ex-Im Bank’s need to
conserve official personnel resources for
the performance of the agency’s
statutory duties while at the same time
accommodating legitimate requests or
demands for official records or
testimony to the extent possible. The
procedures established would also
provide necessary internal controls for
management of Ex-Im Bank personnel
on official duty and for release of Ex-Im
Bank records and information.
This proposed regulation would not
authorize any Ex-Im Bank personnel to
refuse to comply with the law. Rather,
the proposed regulation would permit
Ex-Im Bank personnel, under certain
circumstances, to refuse to comply with
a party to litigation’s demand or a court
order due to: (1) Incomplete compliance
with this proposed rule; or (2) a
determination by the General Counsel
that a challenge to, or immediate review
of, the demand or order is legally
appropriate.
These procedures would not infringe
upon the judiciary or create new
privileges not previously recognized by
law, but would simply make uniform a
process of responding to each request or
demand for the production of records or
testimony by Ex-Im Bank personnel in
private controversies. Further, these
procedures would not impede Ex-Im
Bank personnel’s access to the courts in
relation to legal matters unrelated to
their official duties or not involving the
official records of Ex-Im Bank.
III. Matters of Regulatory Procedure
Administrative Procedure Act
This rulemaking is in compliance
with the Administrative Procedure Act
(5 U.S.C. 553) and allows for a 30-day
comment period. Interested persons are
invited to submit written comments to
Ex-Im Bank on this proposed regulation,
to be received within 30 days of
publication of the proposed rule. Prior
to issuing its final rule, Ex-Im Bank will
review all comments received and
consider any modifications to this
proposal that appear warranted.
Small Business Regulatory Enforcement
Fairness Act of 1996
This rule is not a ‘‘major rule,’’ as
defined by the Small Business
Enforcement Fairness Act of 1996. This
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rule will not result in an annual effect
on the economy of $100,000,000 or
more; a major increase in cost or prices;
or significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.
Unfunded Mandates Reform Act
For purposes of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.,
chapter 25, subchapter II), this proposed
rule will not significantly or uniquely
affect small governments and will not
result in increased expenditures by
State, local, and tribal governments, or
by the private sector, of $100 million or
more (as adjusted for inflation).
List of Subjects in 12 CFR Part 404
Administrative practice and
procedure, Government employees,
Information, Records.
Authority: 5 U.S.C. 552 and 552a.
Accordingly, for the reasons set forth
in the preamble, the Export-Import Bank
of the United States proposes to amend
12 CFR part 404 as follows:
PART 404—[AMENDED]
1. The authority citation for part 404
is revised to read as follows:
Section 404.7 also issued under E.O.
12600, 52 FR 23781, 3 CFR, 1987
Comp., p. 235.
Section 404.21 also issued under 5
U.S.C. 552a.
Note Subpart C also issued under 5
U.S.C. 301, 12 U.S.C. 635.
2. Subpart C is added to read as
follows:
Subpart C—Demands for Testimony of
Current and Former Ex-Im Bank
Personnel and for Production of Ex-Im
Bank Records
Sec.
404.24 General provisions.
404.25 Applicability.
404.26 Definitions.
404.27 Demand requirements.
404.28 Notification of General Counsel
required.
404.29 Restrictions on testimony and
production of records.
404.30 Factors the General Counsel may
consider in determining whether to
authorize testimony and/or the
production of records.
404.31 Procedure for declining to testify
and/or produce records.
404.32 Procedure in the event a decision
concerning a demand is not made prior
to the time a response to the demand is
required.
404.33 Procedure in the event of an adverse
ruling.
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Federal Register / Vol. 70, No. 204 / Monday, October 24, 2005 / Proposed Rules
404.34 Procedure for demands for
testimony or production of documents
regarding confidential information.
404.35 Procedure for requests for Ex-Im
Bank employees to provide expert or
opinion testimony.
404.36 No private right of action.
§ 404.24
General provisions.
(a) Purpose. This subpart establishes
policy, assigns responsibilities and
prescribes procedures with respect to:
(1) The production or disclosure of
official information or records of Ex-Im
Bank in all legal proceedings to which
Ex-Im Bank is not a party;
(2) Demands for testimony of Ex-Im
Bank personnel related to information
acquired as a result of performance of
their official duties, or by virtue of their
official status, in all legal proceedings
where Ex-Im Bank is not a party; and
(3) The offer of expert or opinion
testimony by Ex-Im Bank personnel
regarding matters related to the
performance of their official duties.
(b) Policy. Ex-Im Bank seeks to further
the following goals in enacting this
subpart:
(1) Conservation of agency resources
for official business;
(2) Minimization of agency
involvement in controversial issues
unrelated to its mission;
(3) Maintenance of the agency’s
impartiality amongst private litigants;
(4) Protection of confidential and/or
sensitive information; and
(5) Maintenance of the integrity of the
agency’s deliberative processes.
§ 404.25
Applicability.
This subpart applies exclusively to
demands for testimony and/or
production of records issued to Ex-Im
Bank personnel, in connection with
legal proceedings to which Ex-Im Bank
is not a party, regarding information
acquired in the course of the
performance of official duties or due to
their official status. Nothing in this
subpart shall be construed to waive the
sovereign immunity of the United
States.
This subpart shall not apply to the
following:
(a) Demands for testimony and/or
production of records pursuant to a
legal proceeding to which Ex-Im Bank is
a party;
(b) Demands for testimony and/or
production of records in those instances
in which Ex-Im Bank personnel are
asked to disclose information wholly
unrelated to their official duties; and
(c) Congressional demands and
requests for testimony or records.
§ 404.26
Definitions.
For purposes of this subpart, the
following definitions shall apply—
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Demand—includes an order,
subpoena, or other compulsory process
issued by a party in litigation or a court
of competent jurisdiction, requiring the
production or release of Ex-Im Bank
information or records, or requiring the
testimony of Ex-Im Bank personnel.
Ex-Im Bank personnel—includes any
current or former officer or employee of
Ex-Im Bank, including all individuals
who have been appointed by, or subject
to, the official supervision, jurisdiction,
or control of any Ex-Im Bank employees.
This definition encompasses all
individuals hired through contractual
agreements with Ex-Im Bank, such as:
consultants, contractors, subcontractors, and their employees.
Legal proceeding—a case or
controversy pending before any federal,
state, or local court, including a grand
jury proceeding; a proceeding before a
federal, state, or local administrative
judge, board, or other similar body with
adjudicative powers; or a legislative
proceeding before a state or local
legislative body.
Records—all documentary materials
that Ex-Im Bank creates or receives in
connection with the transaction of
official business, including any
materials classified as ‘‘Federal records’’
under 44 U.S.C. 3301 and its
implementing regulations.
Testimony—written or oral
statements, including, but not limited
to, depositions, answers to
interrogatories, affidavits, declarations,
and any other statements made in a
legal proceeding, including any expert
or opinion testimony.
§ 404.27
Demand requirements.
A party’s demand for testimony and/
or production of records by Ex-Im Bank
personnel regarding information
acquired in the course of their
performance of official duties or due to
their official status shall be set forth in,
or accompanied by, a signed affidavit or
other written statement. Such affidavit
or written statement must be submitted
at least 30 days prior to the date such
testimony and/or production of records
is requested to be taken and/or
produced. A copy of the affidavit or
written statement shall be served on the
other parties to the legal proceeding.
The affidavit or written statement must:
(a) Be addressed to the Export Import
Bank of the United States, Office of the
General Counsel, 811 Vermont Ave.,
NW., Washington, DC 20571;
(b) State the nature of the legal
proceeding, including any docket
number, title of the case, and the name
of the administrative or adjudicative
body before which the proceedings are
to be heard;
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61397
(c) State the nature of the testimony
or records sought;
(d) State the relevance of the
information sought to the legal
proceedings;
(e) State why such information can
only be obtained through testimony or
production of records by Ex-Im Bank
personnel; and
(f) Comply with all procedures
governing valid service of process.
§ 404.28 Notification of General Counsel
required.
Ex-Im Bank personnel receiving a
demand for testimony and/or
production of records regarding
information acquired in the course of
their performance of official duties, or
due to their official status, shall
immediately notify the General Counsel
of Ex-Im Bank (‘‘General Counsel’’)
upon receipt of such demand. The
General Counsel maintains the
exclusive authority to waive the
requirements of any or all sections of
this subpart and reserves the right to
delegate his or her authority under this
subpart to other appropriate Ex-Im Bank
personnel.
§ 404.29 Restrictions on testimony and
production of records.
Ex-Im Bank personnel may not
provide testimony and/or produce
records regarding information acquired
in the course of their performance of
official duties, or due to their official
status, in connection with any legal
proceeding to which this subpart
applies, without authorization by the
General Counsel. Such authorization
must be in writing, unless the General
Counsel determines that circumstances
warrant an oral authorization, and such
oral authorization is subsequently
documented.
§ 404.30 Factors General Counsel may
consider in determining whether to
authorize testimony and/or the production
of records.
In determining whether to authorize
Ex-Im Bank personnel to provide
testimony and/or produce records
regarding information acquired in the
course of their performance of official
duties, or due to their official status, the
General Counsel may consider factors
including, but not limited to, the
following:
(a) Efficiency—the conservation of the
time and resources of Ex-Im Bank
personnel for the conduct of official
business;
(b) Undue burden—whether the
demand creates an undue burden upon
Ex-Im Bank or is otherwise
inappropriate under any applicable
administrative or court rules;
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Federal Register / Vol. 70, No. 204 / Monday, October 24, 2005 / Proposed Rules
(c) Appearance of bias—whether the
testimony and/or production of records
could result in the public perception
that Ex-Im Bank is favoring one party
over another, or advocating the position
of a party to the proceeding;
(d) Furtherance of agency policy—
whether the testimony and/or
production of records is consistent with
the policy and mission of the Ex-Im
Bank;
(e) Prevention of fraud or injustice—
whether the disclosure of the
information requested is necessary to
prevent the perpetration of fraud or
injustice;
(f) Relevance to litigation—whether
the testimony and/or production of
records sought is relevant to the subject
litigation;
(g) Necessity—whether the testimony
and/or production of records, including
a release of such in camera, is
appropriate or necessary as determined
by either the procedural rules governing
the legal proceeding, or according to the
relevant laws concerning privilege;
(h) Availability from another source—
whether the information sought through
testimony or production of records is
available from another source;
(i) Violations of laws or regulations—
whether the testimony and/or
production of records would violate a
statute, regulation, executive order, or
other official directive;
(j) Classified information—whether
the testimony and/or production of
records would improperly reveal
information classified pursuant to
applicable statute or Executive Order;
and
(k) Compromise of rights and
interests—whether the testimony and/or
production of records would
compromise any of the following: law
enforcement interests, constitutional
rights, national security interests,,
foreign policy interests, or the
confidentiality of commercial and/or
financial information.
§ 404.31 Procedure for declining to testify
and/or produce records.
Ex-Im Bank personnel receiving a
demand to provide testimony and/or
produce records regarding information
acquired in the course of their
performance of official duties, or due to
their official status, and who have not
received written authorization from the
General Counsel to provide such
information, shall:
(a) Respectfully decline to answer or
appear for examination on the grounds
that such testimony is forbidden by this
subpart;
(b) Request the opportunity to consult
with the General Counsel;
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(c) Explain that only upon
consultation may they be granted
approval to provide such testimony;
(d) Explain that providing such
testimony or records absent approval
may subject the individual to criminal
liability under 18 U.S.C. 641, as well as
other applicable laws, and other
disciplinary action; and
(e) Request a stay of the request or
demand pending a determination by the
General Counsel.
§ 404.32 Procedure in the event a decision
concerning a demand is not made prior to
the time a response to the demand is
required.
If response to a demand is required
before a determination has been
rendered by the General Counsel, the
U.S. Attorney or such other attorney as
may be designated for the purpose will
appear with the Ex-Im Bank personnel
upon whom the demand has been made,
and will furnish the court or other
authority with a copy of the regulations
contained in this subpart and inform the
court or other authority that the demand
has been or is being, as the case may be,
referred for prompt consideration of the
General Counsel. The court or other
authority shall be requested respectfully
to stay the demand pending
determination by the General Counsel.
§ 404.33 Procedure in the event of an
adverse ruling.
If the court of other authority declines
to stay the effect of the demand in
response to a request made in
accordance with § 404.32 pending a
determination by the General Counsel,
or if the court or other authority rules
that the demand must be complied with
irrespective of the instructions from the
General Counsel not to produce the
material or disclose the information
sought, the Ex-Im Bank personnel upon
whom the demand has been made shall
respectfully decline to comply with the
demand (United States ex rel. Touhy v.
Ragen, 340 U.S. 462).
§ 404.34 Procedure for demands for
testimony or production of documents
regarding confidential information.
In addition to compliance with the
requirements of this subpart, demands
to provide testimony and/or produce
records that concern information
protected by the Privacy Act, 5 U.S.C.
552a, or any other authority mandating
confidentiality of certain classes of
records or information, must also satisfy
the requirements for disclosure imposed
by such authority before records may be
produced or testimony given.
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§ 404.35 Procedures for requests for Ex-Im
Bank employees to provide expert or
opinion testimony.
No Ex-Im Bank personnel may, unless
specifically authorized by the General
Counsel, testify in any legal proceeding
as an expert or opinion witness as to
any matter related to his or her duties
or the functions of the Ex-Im Bank,
including the meaning of Ex-Im Bank
documents. Any demand for expert or
opinion testimony shall comply with
the policies and procedures outlined in
this subpart.
§ 404.36
No private right of action.
Nothing in this subpart shall be
construed as creating any right,
substantive or procedural, enforceable at
law or equity by a party against Ex-Im
Bank or the United States.
Dated: October 18, 2005.
Howard A. Schweitzer,
General Counsel (Acting), Export Import Bank
of the United States.
[FR Doc. 05–21147 Filed 10–21–05; 8:45 am]
BILLING CODE 6690—01—M
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2005–22055; Directorate
Identifier 2005–NE–31–AD]
RIN 2120–AA64
Airworthiness Directives; General
Electric Company Model CF6–80C2D1F
Turbofan Engines
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
SUMMARY: The FAA proposes to adopt a
new airworthiness directive (AD) for
General Electric Company Model CF6–
80C2D1F turbofan engines. This
proposed AD would require modifying
the latching system of the fan reverser.
This proposed AD results from 13
reports of released thrust reverser
hardware. We are proposing this AD to
prevent release of the thrust reverser
cascade on landing, which could result
in runway debris and a possible hazard
to other aircraft.
DATES: We must receive any comments
on this proposed AD by November 23,
2005.
ADDRESSES: Use one of the following
addresses to comment on this proposed
AD.
E:\FR\FM\24OCP1.SGM
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]]>Agencies
[Federal Register Volume 70, Number 204 (Monday, October 24, 2005)]
[Proposed Rules]
[Pages 61395-61398]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-21147]
=======================================================================
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EXPORT-IMPORT BANK OF THE UNITED STATES
12 CFR Part 404
Production of Records and Testimony of Personnel of the Export-
Import Bank of the United States in Legal Proceedings
AGENCY: Export-Import Bank of the United States (``Ex-Im Bank'').
ACTION: Proposed rule.
-----------------------------------------------------------------------
[[Page 61396]]
SUMMARY: Ex-Im Bank is issuing a proposed regulation that would
establish policy and prescribe procedures with respect to the testimony
of Ex-Im Bank personnel, both current and former, and the production of
agency records, in legal proceedings. The proposed regulation is
designed to balance concerns such as preserving the time of Ex-Im Bank
personnel for the conduct of official business against concerns such as
whether the disclosure of information requested is necessary to prevent
fraud or injustice.
DATES: Comments due by November 23, 2005.
ADDRESSES: Office of the General Counsel, Export Import Bank of the
United States, 811 Vermont Ave., NW., Washington, DC 20571.
FOR FURTHER INFORMATION CONTACT: Brian J. Sonfield, Assistant General
Counsel for Administration, Export Import Bank of the United States,
Phone: (202) 565-3439/Fax: (202) 565-3586.
SUPPLEMENTARY INFORMATION:
I. Background
Section 301 of title 5, United States Code, provides that the head
of an Executive department may prescribe regulations for the custody,
use and preservation of its records. The Supreme Court has interpreted
this statute as allowing Federal agencies to promulgate regulations
under the authority of section 301 establishing procedures governing
the production of records and testimony by federal agency personnel in
legal proceedings in which the agency is not a party. United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
Ex-Im Bank frequently receives demands for: (1) Testimony of its
employees or (2) the production of agency records--in legal proceedings
to which Ex-Im Bank is not a party. Ex-Im Bank currently does not have
any regulations or procedures to address this situation.
II. Analysis of Proposed Regulation
The proposed rule is designed to establish centralized Ex-Im Bank
policies and procedures to govern the production of agency records and
testimony regarding information acquired in the course of the
performance of official duties by current and former Ex-Im Bank
personnel in legal proceedings before Federal, state, and local
entities (as specified in the proposed regulation) in which Ex-Im Bank
(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 an individual or entity that is a party. The proposed
rule does not cover requests for information that are not part of legal
proceedings, such as requests for records under the Freedom of
Information Act, 5 U.S.C. 552.
The proposed regulation is intended to address Ex-Im Bank's need to
conserve official personnel resources for the performance of the
agency's statutory duties while at the same time accommodating
legitimate requests or demands for official records or testimony to the
extent possible. The procedures established would also provide
necessary internal controls for management of Ex-Im Bank personnel on
official duty and for release of Ex-Im Bank records and information.
This proposed regulation would not authorize any Ex-Im Bank
personnel to refuse to comply with the law. Rather, the proposed
regulation would permit Ex-Im Bank personnel, under certain
circumstances, to refuse to comply with a party to litigation's demand
or a court order due to: (1) Incomplete compliance with this proposed
rule; or (2) a determination by the General Counsel that a challenge
to, or immediate review of, the demand or order is legally appropriate.
These procedures would not infringe upon the judiciary or create
new privileges not previously recognized by law, but would simply make
uniform a process of responding to each request or demand for the
production of records or testimony by Ex-Im Bank personnel in private
controversies. Further, these procedures would not impede Ex-Im Bank
personnel's access to the courts in relation to legal matters unrelated
to their official duties or not involving the official records of Ex-Im
Bank.
III. Matters of Regulatory Procedure
Administrative Procedure Act
This rulemaking is in compliance with the Administrative Procedure
Act (5 U.S.C. 553) and allows for a 30-day comment period. Interested
persons are invited to submit written comments to Ex-Im Bank on this
proposed regulation, to be received within 30 days of publication of
the proposed rule. Prior to issuing its final rule, Ex-Im Bank will
review all comments received and consider any modifications to this
proposal that appear warranted.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a ``major rule,'' as defined by the Small Business
Enforcement Fairness Act of 1996. This rule will not result in an
annual effect on the economy of $100,000,000 or more; a major increase
in cost or prices; or significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based companies to compete with foreign-based companies
in domestic and export markets.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.,
chapter 25, subchapter II), this proposed rule will not significantly
or uniquely affect small governments and will not result in increased
expenditures by State, local, and tribal governments, or by the private
sector, of $100 million or more (as adjusted for inflation).
List of Subjects in 12 CFR Part 404
Administrative practice and procedure, Government employees,
Information, Records.
Authority: 5 U.S.C. 552 and 552a.
Accordingly, for the reasons set forth in the preamble, the Export-
Import Bank of the United States proposes to amend 12 CFR part 404 as
follows:
PART 404--[AMENDED]
1. The authority citation for part 404 is revised to read as
follows:
Section 404.7 also issued under E.O. 12600, 52 FR 23781, 3 CFR,
1987 Comp., p. 235.
Section 404.21 also issued under 5 U.S.C. 552a.
Note Subpart C also issued under 5 U.S.C. 301, 12 U.S.C. 635.
2. Subpart C is added to read as follows:
Subpart C--Demands for Testimony of Current and Former Ex-Im Bank
Personnel and for Production of Ex-Im Bank Records
Sec.
404.24 General provisions.
404.25 Applicability.
404.26 Definitions.
404.27 Demand requirements.
404.28 Notification of General Counsel required.
404.29 Restrictions on testimony and production of records.
404.30 Factors the General Counsel may consider in determining
whether to authorize testimony and/or the production of records.
404.31 Procedure for declining to testify and/or produce records.
404.32 Procedure in the event a decision concerning a demand is not
made prior to the time a response to the demand is required.
404.33 Procedure in the event of an adverse ruling.
[[Page 61397]]
404.34 Procedure for demands for testimony or production of
documents regarding confidential information.
404.35 Procedure for requests for Ex-Im Bank employees to provide
expert or opinion testimony.
404.36 No private right of action.
Sec. 404.24 General provisions.
(a) Purpose. This subpart establishes policy, assigns
responsibilities and prescribes procedures with respect to:
(1) The production or disclosure of official information or records
of Ex-Im Bank in all legal proceedings to which Ex-Im Bank is not a
party;
(2) Demands for testimony of Ex-Im Bank personnel related to
information acquired as a result of performance of their official
duties, or by virtue of their official status, in all legal proceedings
where Ex-Im Bank is not a party; and
(3) The offer of expert or opinion testimony by Ex-Im Bank
personnel regarding matters related to the performance of their
official duties.
(b) Policy. Ex-Im Bank seeks to further the following goals in
enacting this subpart:
(1) Conservation of agency resources for official business;
(2) Minimization of agency involvement in controversial issues
unrelated to its mission;
(3) Maintenance of the agency's impartiality amongst private
litigants;
(4) Protection of confidential and/or sensitive information; and
(5) Maintenance of the integrity of the agency's deliberative
processes.
Sec. 404.25 Applicability.
This subpart applies exclusively to demands for testimony and/or
production of records issued to Ex-Im Bank personnel, in connection
with legal proceedings to which Ex-Im Bank is not a party, regarding
information acquired in the course of the performance of official
duties or due to their official status. Nothing in this subpart shall
be construed to waive the sovereign immunity of the United States.
This subpart shall not apply to the following:
(a) Demands for testimony and/or production of records pursuant to
a legal proceeding to which Ex-Im Bank is a party;
(b) Demands for testimony and/or production of records in those
instances in which Ex-Im Bank personnel are asked to disclose
information wholly unrelated to their official duties; and
(c) Congressional demands and requests for testimony or records.
Sec. 404.26 Definitions.
For purposes of this subpart, the following definitions shall
apply--
Demand--includes an order, subpoena, or other compulsory process
issued by a party in litigation or a court of competent jurisdiction,
requiring the production or release of Ex-Im Bank information or
records, or requiring the testimony of Ex-Im Bank personnel.
Ex-Im Bank personnel--includes any current or former officer or
employee of Ex-Im Bank, including all individuals who have been
appointed by, or subject to, the official supervision, jurisdiction, or
control of any Ex-Im Bank employees. This definition encompasses all
individuals hired through contractual agreements with Ex-Im Bank, such
as: consultants, contractors, sub-contractors, and their employees.
Legal proceeding--a case or controversy pending before any federal,
state, or local court, including a grand jury proceeding; a proceeding
before a federal, state, or local administrative judge, board, or other
similar body with adjudicative powers; or a legislative proceeding
before a state or local legislative body.
Records--all documentary materials that Ex-Im Bank creates or
receives in connection with the transaction of official business,
including any materials classified as ``Federal records'' under 44
U.S.C. 3301 and its implementing regulations.
Testimony--written or oral statements, including, but not limited
to, depositions, answers to interrogatories, affidavits, declarations,
and any other statements made in a legal proceeding, including any
expert or opinion testimony.
Sec. 404.27 Demand requirements.
A party's demand for testimony and/or production of records by Ex-
Im Bank personnel regarding information acquired in the course of their
performance of official duties or due to their official status shall be
set forth in, or accompanied by, a signed affidavit or other written
statement. Such affidavit or written statement must be submitted at
least 30 days prior to the date such testimony and/or production of
records is requested to be taken and/or produced. A copy of the
affidavit or written statement shall be served on the other parties to
the legal proceeding. The affidavit or written statement must:
(a) Be addressed to the Export Import Bank of the United States,
Office of the General Counsel, 811 Vermont Ave., NW., Washington, DC
20571;
(b) State the nature of the legal proceeding, including any docket
number, title of the case, and the name of the administrative or
adjudicative body before which the proceedings are to be heard;
(c) State the nature of the testimony or records sought;
(d) State the relevance of the information sought to the legal
proceedings;
(e) State why such information can only be obtained through
testimony or production of records by Ex-Im Bank personnel; and
(f) Comply with all procedures governing valid service of process.
Sec. 404.28 Notification of General Counsel required.
Ex-Im Bank personnel receiving a demand for testimony and/or
production of records regarding information acquired in the course of
their performance of official duties, or due to their official status,
shall immediately notify the General Counsel of Ex-Im Bank (``General
Counsel'') upon receipt of such demand. The General Counsel maintains
the exclusive authority to waive the requirements of any or all
sections of this subpart and reserves the right to delegate his or her
authority under this subpart to other appropriate Ex-Im Bank personnel.
Sec. 404.29 Restrictions on testimony and production of records.
Ex-Im Bank personnel may not provide testimony and/or produce
records regarding information acquired in the course of their
performance of official duties, or due to their official status, in
connection with any legal proceeding to which this subpart applies,
without authorization by the General Counsel. Such authorization must
be in writing, unless the General Counsel determines that circumstances
warrant an oral authorization, and such oral authorization is
subsequently documented.
Sec. 404.30 Factors General Counsel may consider in determining
whether to authorize testimony and/or the production of records.
In determining whether to authorize Ex-Im Bank personnel to provide
testimony and/or produce records regarding information acquired in the
course of their performance of official duties, or due to their
official status, the General Counsel may consider factors including,
but not limited to, the following:
(a) Efficiency--the conservation of the time and resources of Ex-Im
Bank personnel for the conduct of official business;
(b) Undue burden--whether the demand creates an undue burden upon
Ex-Im Bank or is otherwise inappropriate under any applicable
administrative or court rules;
[[Page 61398]]
(c) Appearance of bias--whether the testimony and/or production of
records could result in the public perception that Ex-Im Bank is
favoring one party over another, or advocating the position of a party
to the proceeding;
(d) Furtherance of agency policy--whether the testimony and/or
production of records is consistent with the policy and mission of the
Ex-Im Bank;
(e) Prevention of fraud or injustice--whether the disclosure of the
information requested is necessary to prevent the perpetration of fraud
or injustice;
(f) Relevance to litigation--whether the testimony and/or
production of records sought is relevant to the subject litigation;
(g) Necessity--whether the testimony and/or production of records,
including a release of such in camera, is appropriate or necessary as
determined by either the procedural rules governing the legal
proceeding, or according to the relevant laws concerning privilege;
(h) Availability from another source--whether the information
sought through testimony or production of records is available from
another source;
(i) Violations of laws or regulations--whether the testimony and/or
production of records would violate a statute, regulation, executive
order, or other official directive;
(j) Classified information--whether the testimony and/or production
of records would improperly reveal information classified pursuant to
applicable statute or Executive Order; and
(k) Compromise of rights and interests--whether the testimony and/
or production of records would compromise any of the following: law
enforcement interests, constitutional rights, national security
interests,, foreign policy interests, or the confidentiality of
commercial and/or financial information.
Sec. 404.31 Procedure for declining to testify and/or produce
records.
Ex-Im Bank personnel receiving a demand to provide testimony and/or
produce records regarding information acquired in the course of their
performance of official duties, or due to their official status, and
who have not received written authorization from the General Counsel to
provide such information, shall:
(a) Respectfully decline to answer or appear for examination on the
grounds that such testimony is forbidden by this subpart;
(b) Request the opportunity to consult with the General Counsel;
(c) Explain that only upon consultation may they be granted
approval to provide such testimony;
(d) Explain that providing such testimony or records absent
approval may subject the individual to criminal liability under 18
U.S.C. 641, as well as other applicable laws, and other disciplinary
action; and
(e) Request a stay of the request or demand pending a determination
by the General Counsel.
Sec. 404.32 Procedure in the event a decision concerning a demand is
not made prior to the time a response to the demand is required.
If response to a demand is required before a determination has been
rendered by the General Counsel, the U.S. Attorney or such other
attorney as may be designated for the purpose will appear with the Ex-
Im Bank personnel upon whom the demand has been made, and will furnish
the court or other authority with a copy of the regulations contained
in this subpart and inform the court or other authority that the demand
has been or is being, as the case may be, referred for prompt
consideration of the General Counsel. The court or other authority
shall be requested respectfully to stay the demand pending
determination by the General Counsel.
Sec. 404.33 Procedure in the event of an adverse ruling.
If the court of other authority declines to stay the effect of the
demand in response to a request made in accordance with Sec. 404.32
pending a determination by the General Counsel, or if the court or
other authority rules that the demand must be complied with
irrespective of the instructions from the General Counsel not to
produce the material or disclose the information sought, the Ex-Im Bank
personnel upon whom the demand has been made shall respectfully decline
to comply with the demand (United States ex rel. Touhy v. Ragen, 340
U.S. 462).
Sec. 404.34 Procedure for demands for testimony or production of
documents regarding confidential information.
In addition to compliance with the requirements of this subpart,
demands to provide testimony and/or produce records that concern
information protected by the Privacy Act, 5 U.S.C. 552a, or any other
authority mandating confidentiality of certain classes of records or
information, must also satisfy the requirements for disclosure imposed
by such authority before records may be produced or testimony given.
Sec. 404.35 Procedures for requests for Ex-Im Bank employees to
provide expert or opinion testimony.
No Ex-Im Bank personnel may, unless specifically authorized by the
General Counsel, testify in any legal proceeding as an expert or
opinion witness as to any matter related to his or her duties or the
functions of the Ex-Im Bank, including the meaning of Ex-Im Bank
documents. Any demand for expert or opinion testimony shall comply with
the policies and procedures outlined in this subpart.
Sec. 404.36 No private right of action.
Nothing in this subpart shall be construed as creating any right,
substantive or procedural, enforceable at law or equity by a party
against Ex-Im Bank or the United States.
Dated: October 18, 2005.
Howard A. Schweitzer,
General Counsel (Acting), Export Import Bank of the United States.
[FR Doc. 05-21147 Filed 10-21-05; 8:45 am]
BILLING CODE 6690--01--M
