Production of Records and Testimony of Personnel of the Export-Import Bank of the United States in Legal Proceedings, 14360-14363 [06-2749]
Download as PDF
<![CDATA[
cprice-sewell on PROD1PC70 with RULES
14360
Federal Register / Vol. 71, No. 55 / Wednesday, March 22, 2006 / Rules and Regulations
period, but only a countywide voter list
is available, acquisition of the that voter
list would still fall within new section
100.24(a)(1)(iii) and would not be Type
II FEA. However, if the local party
committee acquires a voter list that is
for a geographic region that is larger
than the municipality conducting the
non-Federal election and a small voter
list covering the municipality is
available, the acquisition of the larger
voter list would be Type II FEA.
Choosing a list of voters that goes
beyond the voters participating in the
municipal election demonstrates that
the voter identification program is not
exclusively in connection with the
municipal election.
The interim final rule is consistent
with section 441i(b) of BCRA, which
seeks to regulate the funds used for
Type II FEA that are in connection with
Federal elections by State, district, and
local political party committees and
organizations. In defining ‘‘FEA,’’ BCRA
limited the definition to voter
registration activity within 120 days of
a Federal election and to Type II FEA
that are ‘‘in connection with’’ an
election in which a Federal candidate
appears on the ballot. See 2 U.S.C.
431(20)(A)(i) and (ii). Thus, BCRA
recognizes that some voter registration
activity, voter identification, GOTV
activity, and generic campaign activity
is not FEA. New section 100.24(a)(1)(iii)
applies only to voter identification and
GOTV activities that are not ‘‘in
connection with an election in which a
candidate for Federal office appears on
the ballot,’’ as required by BCRA.
The interim final rule will not lead to
circumvention of BCRA. The definition
of ‘‘FEA’’ as amended by the interim
final rule fully captures the activities
Congress sought to subject to BCRA’s
funding restrictions. As noted above, the
FEA provisions in BCRA address ‘‘the
very real danger that Federal
contribution limits could be evaded by
diverting funds to State and local
parties,’’ and it does so ‘‘while
preserving the rights and abilities of our
State and local parties to engage in truly
local activity.’’ See 148 Cong. Rec.
S2138 (daily ed. Mar. 20, 2002)
(Statement of Sen. McCain). The new
interim final rule does not create an
opportunity for such evasion because
the communications and activities that
fall within the rule are ‘‘purely nonFederal activities,’’ which the FEA
provisions were not intended to reach.
See id. Lastly, State, district, and local
political party committees and
organizations must continue to use an
allocable mix of Federal and nonFederal funds to pay for any
communications or activities covered by
VerDate Aug<31>2005
15:10 Mar 21, 2006
Jkt 208001
the new interim final rule. See 11 CFR
106.7(b), (c)(3), and (c)(5). Therefore,
even under the new interim final rule,
use of non-Federal funds for those
communications and activities remains
limited.
Certification of No Effect Pursuant to 5
U.S.C. 605(b) (Regulatory Flexibility
Act)
The Commission certifies that the
attached interim final rule will not have
a significant economic impact on a
substantial number of small entities.
The basis for this certification is that the
organizations affected by this rule are
State, district, and local political party
committees, which are not ‘‘small
entities’’ under 5 U.S.C. 601. These notfor-profit committees do not meet the
definition of ‘‘small organization,’’
which requires that the enterprise be
independently owned and operated and
not dominant in its field. 5 U.S.C.
601(4). State political party committees
are not independently owned and
operated because they are not financed
and controlled by a small identifiable
group of individuals, and they are
affiliated with the larger national
political party organizations. In
addition, the State political party
committees representing the Democratic
and Republican parties have a major
controlling influence within the
political arena of their State and are
thus dominant in their field. District
and local party committees are generally
considered affiliated with the State
committees and need not be considered
separately. To the extent that any State
party committees representing minor
political parties might be considered
‘‘small organizations,’’ the number
affected by this rule is not substantial.
Finally, new § 100.24(a)(1)(iii) operates
to relieve funding restrictions, which
reduces the economic impact on any
affected entities.
List of Subjects in 11 CFR Part 100
Elections.
I For the reasons set out in the
preamble, Subchapter A of Chapter 1 of
Title 11 of the Code of Federal
Regulations is amended as follows:
PART 100—SCOPE AND DEFINITIONS
(2 U.S.C. 431)
1. The authority citation for 11 CFR
part 100 continues to read as follows:
I
Authority: 2 U.S.C. 431, 434, and 438(a)(8).
2. In § 100.24, paragraph (a)(1)(iii) is
added to read as follows:
I
§ 100.24 Federal Election Activity (2 U.S.C.
431(20)).
(a) * * *
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
(1) * * *
(iii) Voter Identification and Get-Outthe-Vote Activities Limited to NonFederal Elections.
(A) Notwithstanding paragraphs
(a)(1)(i) and (ii) of this section, in
connection with an election in which a
candidate for Federal office appears on
the ballot does not include any activity
or communication that is in connection
with a non-Federal election that is held
on a date separate from a date of any
Federal election and that refers
exclusively to:
(1) Non-Federal candidates
participating in the non-Federal
election, provided the non-Federal
candidates are not also Federal
candidates;
(2) Ballot referenda or initiatives
scheduled for the date of the nonFederal election; or
(3) The date, polling hours and
locations of the non-Federal election.
(B) Paragraph (a)(1)(iii) of this section
shall not apply to any activities or
communications after September 1,
2007.
*
*
*
*
*
Dated: March 16, 2006.
Michael E. Toner,
Chairman, Federal Election Commission.
[FR Doc. 06–2766 Filed 3–21–06; 8:45 am]
BILLING CODE 6715–01–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: Final rule.
AGENCY:
SUMMARY: Ex-Im Bank is adopting a
regulation that establishes policy and
prescribes 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 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. A proposed
rule on this subject was published in the
Federal Register on October 24, 2005
(70 FR 61395). Ex-Im Bank did not
receive any comments on the proposed
rule. Ex-Im Bank is accordingly
E:\FR\FM\22MRR1.SGM
22MRR1
Federal Register / Vol. 71, No. 55 / Wednesday, March 22, 2006 / Rules and Regulations
adopting the proposed provisions as a
final rule without further change.
DATES: Effective March 22, 2006.
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, ExportImport Bank of the United States,
Phone: (202) 565–3439/Fax: (202) 565–
3586.
SUPPLEMENTARY INFORMATION:
cprice-sewell on PROD1PC70 with RULES
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 Final Rule
The final 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 regulation) in which ExIm 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
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 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
VerDate Aug<31>2005
15:10 Mar 21, 2006
Jkt 208001
extent possible. The procedures
established will also provide necessary
internal controls for management of ExIm Bank personnel on official duty and
for release of Ex-Im Bank records and
information.
This regulation will not authorize any
Ex-Im Bank personnel to refuse to
comply with the law. Rather, the
regulation will 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
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 will not infringe
upon the judiciary or create new
privileges not previously recognized by
law but will 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 will 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
In compliance with the
Administrative Procedure Act (5 U.S.C.
553), Ex-Im Bank Published a proposed
rule on this subject in the Federal
Register. This final rule will become
effective as noted above.
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 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 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).
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
14361
List of Subjects in 12 CFR Part 404
Administrative practice and
procedure, Government employees,
Information, Records.
I Accordingly, for the reasons set forth
in the preamble, the Export-Import Bank
of the United States amends 12 CFR part
404 as follows:
PART 404—INFORMATION
DISCLOSURE
1. The authority citation for part 404
is revised to read as follows:
I
Authority: 5 U.S.C. 552 and 552a.
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:
I
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 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.
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.
Subpart C—Demands for Testimony of
Current and Former Ex-Im Bank
Personnel and for Production of Ex-Im
Bank Records
§ 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;
E:\FR\FM\22MRR1.SGM
22MRR1
14362
Federal Register / Vol. 71, No. 55 / Wednesday, March 22, 2006 / Rules and Regulations
(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.
cprice-sewell on PROD1PC70 with RULES
§ 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
VerDate Aug<31>2005
15:10 Mar 21, 2006
Jkt 208001
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;
(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
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
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;
(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;
E:\FR\FM\22MRR1.SGM
22MRR1
Federal Register / Vol. 71, No. 55 / Wednesday, March 22, 2006 / Rules and Regulations
(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.
cprice-sewell on PROD1PC70 with RULES
§ 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.
VerDate Aug<31>2005
15:10 Mar 21, 2006
Jkt 208001
§ 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 or 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.
§ 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.
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
§ 404.36
14363
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: March 15, 2006.
Howard A. Schweitzer,
General Counsel (Acting), Export-Import
Bank of the United States.
[FR Doc. 06–2749 Filed 3–21–06; 8:45 am]
BILLING CODE 6690–01–M
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2005–23476; Directorate
Identifier 2005–NM–204–AD; Amendment
39–14516; AD 2006–06–07]
RIN 2120–AA64
Airworthiness Directives; Fokker
Model F.28 Mark 0070 and 0100
Airplanes
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
SUMMARY: The FAA is adopting a new
airworthiness directive (AD) for certain
Fokker Model F.28 Mark 0070 and 0100
airplanes. This AD requires inspecting
the main landing gear (MLG) main
fitting for cracks, and repair if
necessary. This AD also requires
installing a placard and revising the
airplane flight manual to include
procedures to prohibit the application of
brakes during backward movement of
the airplane. This AD results from a
report that an MLG main fitting failed
on an airplane that was braking while
moving backward. We are issuing this
AD to detect and correct cracks in the
MLG main fitting, which could result in
reduced structural integrity of the MLG
main fitting.
DATES: This AD becomes effective April
26, 2006.
The Director of the Federal Register
approved the incorporation by reference
of certain publications listed in the AD
as of April 26, 2006.
ADDRESSES: You may examine the AD
docket on the Internet at https://
dms.dot.gov or in person at the Docket
Management Facility, U.S. Department
of Transportation, 400 Seventh Street
SW., Nassif Building, room PL–401,
Washington, DC.
Contact Fokker Services B.V.,
Technical Services Dept, P.O. Box 231,
E:\FR\FM\22MRR1.SGM
22MRR1
]]>Agencies
[Federal Register Volume 71, Number 55 (Wednesday, March 22, 2006)]
[Rules and Regulations]
[Pages 14360-14363]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-2749]
=======================================================================
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: Ex-Im Bank is adopting a regulation that establishes policy
and prescribes 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 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. A proposed rule on this subject was published in the Federal
Register on October 24, 2005 (70 FR 61395). Ex-Im Bank did not receive
any comments on the proposed rule. Ex-Im Bank is accordingly
[[Page 14361]]
adopting the proposed provisions as a final rule without further
change.
DATES: Effective March 22, 2006.
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 Final Rule
The final 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 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 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 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 will 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 regulation will not authorize any Ex-Im Bank personnel to
refuse to comply with the law. Rather, the regulation will 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 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 will not infringe upon the judiciary or create new
privileges not previously recognized by law but will 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 will 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
In compliance with the Administrative Procedure Act (5 U.S.C. 553),
Ex-Im Bank Published a proposed rule on this subject in the Federal
Register. This final rule will become effective as noted above.
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 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.
0
Accordingly, for the reasons set forth in the preamble, the Export-
Import Bank of the United States amends 12 CFR part 404 as follows:
PART 404--INFORMATION DISCLOSURE
0
1. The authority citation for part 404 is revised to read as follows:
Authority: 5 U.S.C. 552 and 552a.
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.
0
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 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.
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.
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.
(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;
[[Page 14362]]
(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;
(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;
[[Page 14363]]
(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 or 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: March 15, 2006.
Howard A. Schweitzer,
General Counsel (Acting), Export-Import Bank of the United States.
[FR Doc. 06-2749 Filed 3-21-06; 8:45 am]
BILLING CODE 6690-01-M
