Testimony by BBG Employees, Production of Official Records, and Disclosure of Official Information in Legal Proceedings, 10954-10958 [E7-4329]

Download as PDF 10954 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Proposed Rules to request a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedures. The Proposal The FAA is considering an amendment to 14 CFR part 71 by modifying the Class E airspace area at St. Johns Industrial Air Park, St. Johns, AZ. The establishment of an Area Navigation (RNAV) Global Positioning System (GPS) Standard Instrument Approach Procedure (SIAP) to Runway 32 at St. Johns Industry Air Park, St. Johns, AZ, has made this proposal necessary. Additional controlled airspace extending upward from 700 feet above the surface is needed to contain aircraft executing the RNAV (GPS) IAP to RWY 32 at St. Johns Industrial Air Park, St. Johns, AZ. The intended effect of this proposal is to provide adequate controlled airspace for aircraft executing the RNAV (GPS) IAP to RWY 32 at St. Johns Industrial Air Park, St. Johns, AZ. Class E airspace designations are published in paragraph 60005 of FAA Order 7400.9P dated September 1, 2006, and effective September 15, 2006, which is Incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in this Order. The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation—(1) Is not a ‘‘significant regulatory action’’ under Executive Order 12866; (2) is not a ‘‘significant rule’’ under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 71 jlentini on PROD1PC65 with PROPOSAL Airspace, Incorporation by reference, Navigation (air). The Proposed Amendment In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows: VerDate Aug<31>2005 16:38 Mar 09, 2007 Jkt 211001 PART 71—DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; ROUTES; AND REPORTING POINTS BROADCASTING BOARD OF GOVERNORS 1. The authority citation for 14 CFR part 71 continues to read as follows: Testimony by BBG Employees, Production of Official Records, and Disclosure of Official Information in Legal Proceedings Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2006, and Effective, September 15, 2006, is amended as follows: Paragraph 6005 Class E airspace areas extending upward from 700 feet or more above the surface of the earth. * * * AWP AZ E5 * * St. Johns, AZ [Amended] St. Johns Industrial Air Park, AZ (Lat. 34°31′07″ N., long. 109°22′44″ W.) St. Johns VORTAC (Lat. 34°25′27″ N., long. 109°08′37″ W.) That airspace extending upward from 700 feet above the surface within 4.3 miles each side of the St. Johns VORTAC 296° radial extending from the St. Johns VORTAC to 23 miles northwest of the VORTAC, and that airspace beginning at lat. 34°23′30″ N., long. 109°14′30″ W., to lat. 34°22′00″ N., long. 109°20′00″ W., to lat. 34°26′00″ N., long. 109°21′00″ W., to the point of beginning. That airspace extending upward from 1,200 feet above the surface within 8.7 miles southeast and 6.1 miles northwest of the St. Johns VORTAC 067° and 247° radials, extending from the 7.8 miles northeast to 17.4 miles southwest of the VORTAC, excluding the portion within the state of New Mexico, and that airspace beginning at lat. 34°47′41″ N., long. 109°49′22″ W., to lat. 34°42′54″ N., long. 109°35′03″ W., to lat. 34°40′56″ N., long. 109°37′33″ W., to lat. 34°47′33″ N., long. 109°54′19″ W., to the point of beginning and that airspace bounded by lat. 34°37′06″ N., long. 109°48′33″ W., to lat. 34°28′39″ N., long. 109°27′29″ W., to lat. 34°26′21″ N., long. 109°41′35″ W., to lat. 34°33′51″ N., long. 19°52′12″ W., to the point of beginning. * * * * * Issued in Los Angeles, California, on February 12, 2007. Teri L. Bristol, Acting Director of Terminal Operations, Western Service Area. [FR Doc. 07–1127 Filed 3–9–07; 8:45 am] BILLING CODE 4910–13–M PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 22 CFR Part 504 Broadcasting Board of Governors. ACTION: Proposed Rule; Comment Request. AGENCY: SUMMARY: The Broadcasting Board of Governors (BBG) seeks public comment on a proposed rule that would govern access to BBG information and records in connection with legal proceedings in which neither the United States nor the BBG is a party. The rule would establish guidelines for use in determining whether BBG employees will be permitted to testify or to provide records relating to their official duties. The rule would also establish procedures that requesters would have to follow when making demands on or requests to a BBG employee for official documents or to provide testimony. The proposed rule will promote uniformity in decisions, conserve the ability of BBG to conduct official business, preserve its employee resources, protect confidential information, provide guidance to requestors, minimize involvement in matters unrelated to its mission and programs, avoid wasteful allocation of agency resources, and avoid spending public time and money for private purposes. DATES: Comments must be received on or before April 11, 2007. ADDRESSES: Send or deliver comments to the Office of the General Counsel, Broadcasting Board of Governors, 330 Independence Ave., SW., Washington, DC 20237 by mail or fax at (202) 203– 4585. FOR FURTHER INFORMATION CONTACT: Christopher Veith, Assistant General Counsel, Broadcasting Board of Governors, 330 Independence Ave., SW., Washington, DC 20237, phone: (202) 203–4550 or fax at (202) 203–4585. SUPPLEMENTARY INFORMATION: Background The BBG occasionally receives subpoenas and other informal requests for documents and requests for BBG employees to provide testimony or evidence in cases in which the BBG is not a party. Usually these subpoenas or requests are for BBG records that are not available to the public under the Freedom of Information Act. The BBG may also receive a request for an E:\FR\FM\12MRP1.SGM 12MRP1 jlentini on PROD1PC65 with PROPOSAL Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Proposed Rules employee to provide testimony relating to materials contained in BBG’s official records or to provide testimony or information acquired by a BBG employee during the performance of the employee’s official duties. Although the BBG has rules governing requests for information from the general public, the BBG currently has no regulations governing subpoenas and other informal requests for document production and testimony of BBG employees in legal proceedings. An increase in such requests in recent years warrants adoption of regulations governing their submission, evaluation, and processing. Responding to these requests and subpoenas is not only burdensome, may result in a significant disruption of a BBG employee’s work schedule and possibly involve the BBG in issues unrelated to its responsibilities. In order to resolve these problems, many agencies have issued regulations, similar to the proposed regulation, governing the circumstances and manner in which an employee may respond to demands for testimony or for the production of documents. Establishing uniform procedures for legal processes will ensure timely notice and promote centralized decisionmaking. The United States Supreme Court upheld this type of regulation in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). Briefly summarized, the proposed rule will prohibit disclosure of nonpublic official records or testimony by the BBG’s employees, as defined in part 504.4, unless there is compliance with the rule. The proposed rule sets out the information that requesters must provide and the factors that the BBG will consider in making determinations in response to requests for testimony or the production of documents. The charges for witnesses are the same as those provided in Federal courts and the fees related to production of records are the same as those charged under FOIA. The charges for time spent by an employee to prepare for testimony and for searches, copying, and certification of records by the BBG are authorized under 31 U.S.C. 9701, which permits an agency to charge for services or things of value that are provided by the agency. This rule applies to a range of matters in any legal proceeding in which the BBG is not a named party and applies to current and former BBG employees. Both current and former BBG employees are prohibited by 18 U.S.C. 1905 from testifying about specific matters involving information for which they had responsibility during their active employment unless permitted to testify VerDate Aug<31>2005 16:38 Mar 09, 2007 Jkt 211001 as provided in the rule. They would not be prohibited from testifying about general matters unconnected with the specific BBG matters for which they had responsibility. This rule will ensure a more efficient use of the BBG’s resources, minimize the possibility of involving the BBG in issues unrelated to its responsibilities, promote uniformity in responding to such subpoenas and like requests, and maintain the impartiality of the BBG in matters that are in dispute between other parties. It will also serve the BBG’s interest in protecting sensitive, confidential, and privileged information and records that are generated in fulfillment of the BBG’s statutory responsibilities. This rule is internal and procedural rather than substantive. It does not create a right to obtain official records or the official testimony of a BBG employee nor does it create any additional right or privilege not already available to the BBG to deny any demand or request for testimony or documents. Failure to comply with the procedures set out in these regulations would be a basis for denying a demand or request submitted to the BBG. List of Subjects in 22 CFR Part 504 Administrative practice and procedure. For the reasons stated in the preamble, the Broadcasting Board of Governors proposes to amend 22 CFR, Chapter V, by adding part 504, to read as follows: PART 504—TESTIMONY BY BBG EMPLOYEES, PRODUCTION OF OFFICIAL RECORDS, AND DISCLOSURE OF OFFICIAL INFORMATION IN LEGAL PROCEEDINGS Subpart A—General Provisions Sec. 504.1 Scope and purpose. 504.2 Applicability. 504.3 Definitions. Subpart B—Demands or Requests for Testimony and Production of Documents 504.4 General prohibition. 504.5 Factors the BBG will consider. 504.6 Filing requirements for litigants seeking documents or testimony. 504.7 Service of requests or demands. 504.8 Processing requests or demands. 504.9 Final determinations. 504.10 Restrictions that apply to testimony. 504.11 Restrictions that apply to released records. 504.12 Procedure when a decision is not made prior to the time a response is required. 504.13 Procedure in the event of an adverse ruling. PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 10955 Subpart C—Schedule of Fees 504.14 Fees. Subpart D—Penalties 504.15 Penalties. Authority: 22 U.S.C. 6204. Subpart A—General Provisions 504.1 Scope and purpose. (a) These regulations in this subpart establish policy, assign responsibilities and prescribe procedures with respect to: (1) The production or disclosure of official information or records by BBG employees, and (2) The testimony of current and former BBG employees, relating to official information, official duties, or the BBG’s records, in connection with federal or state litigation in which the BBG is not a party. (b) The BBG intends these provisions to: (1) Conserve the time of BBG employees for conducting official business; (2) Minimize the involvement of BBG employees in issues unrelated to BBG’s mission; (3) Maintain the impartiality of BBG employees in disputes between private litigants; and (4) Protect sensitive, confidential information and the deliberative processes of the BBG. (c) In providing for these requirements, the BBG does not waive the sovereign immunity of the United States. (d) This part provides guidance for the internal operations of BBG. It does not create any right or benefit, substantive or procedural, that a party may rely upon in any legal proceeding against the United States. § 504.2 Applicability. This part applies to demands and requests to current and former employees for factual or expert testimony relating to official information or official duties or for production of official records or information, in legal proceedings in which the BBG is not a named party. This part does not apply to: (a) Demands upon or requests for a BBG employee to testify as to facts or events that are unrelated to his or her official duties or that are unrelated to the functions of the BBG; (b) Demands upon or requests for a former BBG employee to testify as to matters in which the former employee was not directly or materially involved while at the BBG; (c) Requests for the release of records under the Freedom of Information Act, E:\FR\FM\12MRP1.SGM 12MRP1 10956 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Proposed Rules 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; or (d) Congressional demands and requests for testimony, records or information. § 504. 3 Definitions. jlentini on PROD1PC65 with PROPOSAL The following definitions apply to this part: (a) Demand means an order, subpoena, or other command of a court or other competent authority for the production, disclosure, or release of records or for the appearance and testimony of a BBG employee in a legal proceeding. (b) General Counsel means the General Counsel of the BBG or a person to whom the General Counsel has delegated authority under this part. (c) Legal proceeding means any matter before a court of law, administrative board or tribunal, commission, administrative law judge, hearing officer or other body that conducts a legal or administrative proceeding. Legal proceeding includes all phases of litigation. (d) BBG means the Broadcasting Board of Governors. (e) BBG employee means: (1) Any current or former employee of the BBG. (2) This definition does not include persons who are no longer employed by the BBG and who agree to testify about general matters, matters available to the public, or matters with which they had no specific involvement or responsibility during their employment with the BBG. (f) Records or official records and information means all information in the custody and control of the BBG, relating to information in the custody and control of the BBG, or acquired by a BBG employee in the performance of his or her official duties or because of his or her official status, while the individual was employed by the BBG. (g) Request means any informal request, by whatever method, for the production of records and information or for testimony which has not been ordered by a court or other competent authority. (h) Testimony means any written or oral statements, including depositions, answers to interrogatories, affidavits, declarations, interviews, and statements made by an individual in connection with a legal proceeding. Subpart B—Demands or Requests for Testimony and Production of Documents § 504.4 General prohibition. (a) In any United States federal, state, and local proceeding or administrative VerDate Aug<31>2005 16:38 Mar 09, 2007 Jkt 211001 action, or proceeding or administrative action conducted in a foreign country, in which the BBG is not a party, no BBG employee shall, in response to a demand or request for official records or information, furnish or produce documents or testimony as to any material contained in BBG files, any information relating to or based upon material contained in BBG files, or any information or material acquired as part of the performance of that person’s official duties (or because of that person’s official status) without the prior written approval of the General Counsel. (b) Whenever a request or demand for information is made upon a BBG employee, the employee, wherever located, shall immediately prepare a report that specifically describes the testimony or documents sought and immediately notify the General Counsel. The BBG employee shall then await instructions from the General Counsel concerning a response to the request or demand. The failure of any BBG employee to follow the procedures specified in this subpart neither creates nor confers any rights, privileges, or benefits on any person or party. § 504.5 Factors the BBG will consider. The General Counsel, in his or her sole discretion, may grant an employee permission to testify on matters relating to official information, or produce official records and information, in response to a demand or request. Among the relevant factors that the General Counsel may consider in making this decision are whether: (a) The purposes of this part are met; (b) Allowing such testimony or production of records would be necessary to prevent a miscarriage of justice; (c) Allowing such testimony or production of records would assist or hinder the BBG in performing its statutory duties; (d) Allowing such testimony or production of records would be in the best interest of the BBG or the United States; (e) The records or testimony can be obtained from other sources; (f) The demand or request is unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rules of procedure governing the case or matter in which the demand or request arose; (g) Disclosure would violate a statute, Executive Order or regulation; (h) Disclosure would reveal confidential, sensitive, or privileged information, trade secrets or similar, confidential or financial information, PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 otherwise protected information, or information which would otherwise be inappropriate for release; (i) Disclosure would impede or interfere with an ongoing law enforcement investigation or proceeding, or compromise constitutional rights or national security interests; (j) Disclosure would result in the BBG appearing to favor one litigant over another; (k) Whether the request was served before the demand; (l) A substantial Government interest is implicated; (m) The demand or request is within the authority of the party making it; and (n) The demand or request is sufficiently specific to be answered and/ or can be limited to information to that which would be consistent with the factors specified herein. § 504. 6 Filing requirements for litigants seeking documents or testimony. A litigant must comply with the following requirements when filing a request for official records and information or testimony under this subpart. A request should be filed before a demand. (a) The request must be in writing and must be submitted to the General Counsel. (b) The written request must contain the following information: (1) The caption of the legal proceeding, docket number, and name and address of the court or other authority involved; (2) A copy of the complaint or equivalent document setting forth the assertions in the case and any other pleading or document necessary to show relevance; (3) A list of categories of records sought, a detailed description of how the information sought is relevant to the issues in the legal proceeding, and a specific description of the substance of the testimony or records sought; (4) A statement as to how the need for the information outweighs any need to maintain the confidentiality of the information and outweighs the burden on the BBG to produce the records or provide testimony; (5) A statement indicating that the information sought is not available from another source, from other persons or entities, or from the testimony of someone other than a BBG employee, such as a retained expert; (6) If testimony is requested, the intended use of the testimony, and a showing that no document could be provided and used in lieu of testimony; (7) A description of all prior decisions, orders, or pending motions in E:\FR\FM\12MRP1.SGM 12MRP1 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Proposed Rules the case that bear upon the relevance of the requested records or testimony; (8) The name, address, and telephone number of counsel to each party in the case; and (9) An estimate of the amount of time that the requester and other parties will require for each BBG employee for time spent by the employee to prepare for testimony, in travel, and for attendance in the legal proceeding. (c) The BBG reserves the right to require additional information to complete the request where appropriate. (d) The request should be submitted at least 30 days before the date that records or testimony is required. Requests submitted in less than 30 days before records or testimony is required must be accompanied by a written explanation stating the reasons for the late request and the reasons for expedited processing. (e) Failure to cooperate in good faith to enable the General Counsel to make an informed decision may serve as the basis for a determination not to comply with the request. (f) The request should state that the requester will provide a copy of the BBG employee’s statement free of charge and that the requester will permit the BBG to have a representative present during the employee’s testimony. § 504.7 Service of requests or demands. Requests or demands for official records or information or testimony under this Subpart must be served on the General Counsel, BBG, 330 Independence Ave., SW., Washington, DC 20237 by mail or fax at (202) 203– 4585 and clearly marked ‘‘Part 504— Request for Testimony or Official Records in Legal Proceedings.’’ jlentini on PROD1PC65 with PROPOSAL § 504.8 Processing requests or demands. (a) After receiving service of a request or demand for testimony, the General Counsel will review the request and, in accordance with the provisions of this Subpart, determine whether, or under what conditions, to authorize the employee to testify on matters relating to official information and/or produce official records and information. (b) Absent exigent circumstances, the BBG will issue a determination within 30 days from the date the request is received. (c) The General Counsel may grant a waiver of any procedure described by this Subpart where a waiver is considered necessary to promote a significant interest of the BBG or the United States, or for other good cause. (d) Certification (authentication) of copies of records. The BBG may certify that records are true copies in order to VerDate Aug<31>2005 16:38 Mar 09, 2007 Jkt 211001 facilitate their use as evidence. If a requester seeks certification, the requester must request certified copies from the BBG at least 30 days before the date they will be needed. The request should be sent to the BBG General Counsel. § 504.9 Final determinations. The General Counsel makes the final determination on demands or requests to employees for production of official records and information or testimony in litigation in which the BBG is not a party. All final determinations are within the sole discretion of the General Counsel. The General Counsel will notify the requester and, when appropriate, the court or other competent authority of the final determination, the reasons for the grant or denial of the request, and any conditions that the General Counsel may impose on the release of records or information, or on the testimony of a BBG employee. The General Counsel’s decision exhausts administrative remedies for discovery of the information. § 504.10 Restrictions that apply to testimony. (a) The General Counsel may impose conditions or restrictions on the testimony of BBG employees including, for example: (1) Limiting the areas of testimony; (2) Requiring the requester and other parties to the legal proceeding to agree that the transcript of the testimony will be kept under seal; (3) Requiring that the transcript will be used or made available only in the particular legal proceeding for which testimony was requested. The General Counsel may also require a copy of the transcript of testimony at the requester’s expense. (b) The BBG may offer the employee’s written declaration in lieu of testimony. (c) If authorized to testify pursuant to this part, an employee may testify as to facts within his or her personal knowledge, but, unless specifically authorized to do so by the General Counsel, the employee shall not: (1) Disclose confidential or privileged information; or (2) For a current BBG employee, testify as an expert or opinion witness with regard to any matter arising out of the employee’s official duties or the functions of the BBG unless testimony is being given on behalf of the United States (see also 5 CFR 2635.805). (d) The scheduling of an employee’s testimony, including the amount of time that the employee will be made available for testimony, will be subject to the BBG’s approval. PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 10957 § 504.11 Restrictions that apply to released records. (a) The General Counsel may impose conditions or restrictions on the release of official records and information, including the requirement that parties to the proceeding obtain a protective order or execute a confidentiality agreement to limit access and any further disclosure. The terms of the protective order or of a confidentiality agreement must be acceptable to the General Counsel. In cases where protective orders or confidentiality agreements have already been executed, the BBG may condition the release of official records and information on an amendment to the existing protective order or confidentiality agreement. (b) If the General Counsel so determines, original BBG records may be presented for examination in response to a request, but they may not be presented as evidence or otherwise used in a manner by which they could lose their identity as official BBG records, nor may they be marked or altered. In lieu of the original records, certified copies may be presented for evidentiary purposes. § 504.12 Procedure when a decision is not made prior to the time a response is required. If a response to a demand or request is required before the General Counsel can make the determination referred to in Sec. 504.9, the General Counsel, when necessary, will provide the court or other competent authority with a copy of this part, inform the court or other competent authority that the request is being reviewed, provide an estimate as to when a decision will be made, and seek a stay of the demand or request pending a final determination. § 504. 13 Procedure in the event of an adverse ruling. If the court or other competent authority fails to stay a demand or request, the employee upon whom the demand or request is made, unless otherwise advised by the General Counsel, will appear, if necessary, at the stated time and place, produce a copy of this part, state that the employee has been advised by counsel not to provide the requested testimony or produce documents, and respectfully decline to comply with the demand or request, citing United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). Subpart C—Schedule of Fees § 504.14 Fees. (a) Generally. The General Counsel may condition the production of records or appearance for testimony upon E:\FR\FM\12MRP1.SGM 12MRP1 10958 Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / Proposed Rules advance payment of a reasonable estimate of the costs to the BBG. (b) Fees for records. Fees for producing records will include fees for searching, reviewing, and duplicating records, costs of attorney time spent in reviewing the request, and expenses generated by materials and equipment used to search for, produce, and copy the responsive information. Costs for employee time will be calculated on the basis of the hourly pay of the employee (including all pay, allowances, and benefits). Fees for duplication will be the same as those charged by the BBG in its Freedom of Information Act regulations at 22 CFR Part 503. (c) Witness fees. Fees for attendance by a witness will include fees, expenses, and allowances prescribed by the court’s rules. If no such fees are prescribed, witness fees will be determined based upon the rule of the Federal district court closest to the location where the witness will appear and on 28 U.S.C. 1821, as applicable. Such fees will include cost of time spent by the witness to prepare for testimony, in travel and for attendance in the legal proceeding, plus travel costs. (d) Payment of fees. A requester must pay witness fees for current BBG employees and any record certification fees by submitting to the General Counsel a check or money order for the appropriate amount made payable to the Treasury of the United States. In the case of testimony of former BBG employees, the requester must pay applicable fees directly to the former BBG employee in accordance with 28 U.S.C. 1821 or other applicable statutes. (e) Waiver or reduction of fees. The General Counsel, in his or her sole discretion, may, upon a showing of reasonable cause, waive or reduce any fees in connection with the testimony, production, or certification of records. (f) De minimis fees. Fees will not be assessed if the total charge would be $10.00 or less. Subpart D—Penalties jlentini on PROD1PC65 with PROPOSAL § 504.15 Penalties. (a) An employee who discloses official records or information or gives testimony relating to official information, except as expressly authorized by the BBG, or as ordered by a Federal court after the BBG has had the opportunity to be heard, may face penalties as provided in any applicable enforcement statute. (b) A current BBG employee who testifies or produces official records and information in violation of this part shall be subject to disciplinary action and, if done for a valuable VerDate Aug<31>2005 16:38 Mar 09, 2007 Jkt 211001 consideration, may subject that person to criminal prosecution. Dated: March 6, 2007. Carol F. Baker, Director, Office of Administration. [FR Doc. E7–4329 Filed 3–9–07; 8:45 am] BILLING CODE 8610–01–P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD05–07–015] RIN 1625–AA87 Security Zone: America’s 400th Celebration, Jamestown, VA Coast Guard, DHS. Notice of proposed rulemaking. AGENCY: ACTION: SUMMARY: The United States Coast Guard is establishing a security zone encompassing waters within 2-nautical miles of Church Point at 37–12.45 N, 076–46.66 W, Jamestown Island, VA, for America’s 400th Anniversary celebration. This action is intended to restrict vessel traffic within the security zone. This security zone is necessary to protect attendees of this event from potential maritime hazards and threats and enhance public and maritime security. DATES: Comments and related material must reach the Coast Guard on or before March 27, 2007. ADDRESSES: You may mail comments and related material to the attention of LCDR Thomas Tarrants at the address listed below. Documents indicated in this preamble as being available in the docket are part of docket CGD05–07– 015 and are available for inspection or copying at USCG Sector Hampton Roads, 4000 Coast Guard Blvd., Portsmouth, Virginia 23703, between 9:30 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: LCDR Thomas Tarrants, Enforcement Branch Chief, U.S. Coast Guard Sector Hampton Roads, Virginia at (757) 483– 8571. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking CGD05–07–015, indicate the specific section of this PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81⁄2 by 11 inches, suitable for copying. If you would like to know that your submission reached us, please enclose a stamped, selfaddressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for a comment period shorter than 30 days. This security zone of short duration is needed to provide for the security of persons at the event, and a shortened comment period provides the public the ability to comment while ensuring the security zone is in place before the event. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Sector Hampton Roads at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a separate notice in the Federal Register. Background and Purpose Following terrorist attacks on the United States in September 2001, there is now a heightened awareness that vessels or persons could engage in subversive activity against targets ashore in the United States. This regulation is necessary to protect attendees of America’s 400th Anniversary celebration on Jamestown Island, VA, from potential maritime threats. This temporary security zone will only be in effect from 3 p.m. on May 11th, 2007 until 10 p.m. on May 13th, 2007. This zone will have minimal impact on vessel transits because vessels can request authorization from the Captain of the Port (COTP) to safely transit through the zone and they are not precluded from using any portion of the waterway except the security zone area itself. Additionally, public notifications announcing this regulation will be made via marine information broadcasts prior to the zone taking effect. Discussion of Rule The Coast Guard is proposing to establish a temporary security zone on specified waters to provide protection to dignitaries visiting Jamestown Island. The security zone will be effective from 3 p.m. on May 11th, 2007, until 10 p.m. on May 13th, 2007. The security zone E:\FR\FM\12MRP1.SGM 12MRP1

Agencies

[Federal Register Volume 72, Number 47 (Monday, March 12, 2007)]
[Proposed Rules]
[Pages 10954-10958]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-4329]


=======================================================================
-----------------------------------------------------------------------

BROADCASTING BOARD OF GOVERNORS

22 CFR Part 504


Testimony by BBG Employees, Production of Official Records, and 
Disclosure of Official Information in Legal Proceedings

AGENCY: Broadcasting Board of Governors.

ACTION: Proposed Rule; Comment Request.

-----------------------------------------------------------------------

SUMMARY: The Broadcasting Board of Governors (BBG) seeks public comment 
on a proposed rule that would govern access to BBG information and 
records in connection with legal proceedings in which neither the 
United States nor the BBG is a party. The rule would establish 
guidelines for use in determining whether BBG employees will be 
permitted to testify or to provide records relating to their official 
duties. The rule would also establish procedures that requesters would 
have to follow when making demands on or requests to a BBG employee for 
official documents or to provide testimony. The proposed rule will 
promote uniformity in decisions, conserve the ability of BBG to conduct 
official business, preserve its employee resources, protect 
confidential information, provide guidance to requestors, minimize 
involvement in matters unrelated to its mission and programs, avoid 
wasteful allocation of agency resources, and avoid spending public time 
and money for private purposes.

DATES: Comments must be received on or before April 11, 2007.

ADDRESSES: Send or deliver comments to the Office of the General 
Counsel, Broadcasting Board of Governors, 330 Independence Ave., SW., 
Washington, DC 20237 by mail or fax at (202) 203-4585.

FOR FURTHER INFORMATION CONTACT: Christopher Veith, Assistant General 
Counsel, Broadcasting Board of Governors, 330 Independence Ave., SW., 
Washington, DC 20237, phone: (202) 203-4550 or fax at (202) 203-4585.

SUPPLEMENTARY INFORMATION: 

Background

    The BBG occasionally receives subpoenas and other informal requests 
for documents and requests for BBG employees to provide testimony or 
evidence in cases in which the BBG is not a party. Usually these 
subpoenas or requests are for BBG records that are not available to the 
public under the Freedom of Information Act. The BBG may also receive a 
request for an

[[Page 10955]]

employee to provide testimony relating to materials contained in BBG's 
official records or to provide testimony or information acquired by a 
BBG employee during the performance of the employee's official duties.
    Although the BBG has rules governing requests for information from 
the general public, the BBG currently has no regulations governing 
subpoenas and other informal requests for document production and 
testimony of BBG employees in legal proceedings. An increase in such 
requests in recent years warrants adoption of regulations governing 
their submission, evaluation, and processing. Responding to these 
requests and subpoenas is not only burdensome, may result in a 
significant disruption of a BBG employee's work schedule and possibly 
involve the BBG in issues unrelated to its responsibilities. In order 
to resolve these problems, many agencies have issued regulations, 
similar to the proposed regulation, governing the circumstances and 
manner in which an employee may respond to demands for testimony or for 
the production of documents. Establishing uniform procedures for legal 
processes will ensure timely notice and promote centralized decision-
making. The United States Supreme Court upheld this type of regulation 
in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    Briefly summarized, the proposed rule will prohibit disclosure of 
nonpublic official records or testimony by the BBG's employees, as 
defined in part 504.4, unless there is compliance with the rule. The 
proposed rule sets out the information that requesters must provide and 
the factors that the BBG will consider in making determinations in 
response to requests for testimony or the production of documents.
    The charges for witnesses are the same as those provided in Federal 
courts and the fees related to production of records are the same as 
those charged under FOIA. The charges for time spent by an employee to 
prepare for testimony and for searches, copying, and certification of 
records by the BBG are authorized under 31 U.S.C. 9701, which permits 
an agency to charge for services or things of value that are provided 
by the agency.
    This rule applies to a range of matters in any legal proceeding in 
which the BBG is not a named party and applies to current and former 
BBG employees. Both current and former BBG employees are prohibited by 
18 U.S.C. 1905 from testifying about specific matters involving 
information for which they had responsibility during their active 
employment unless permitted to testify as provided in the rule. They 
would not be prohibited from testifying about general matters 
unconnected with the specific BBG matters for which they had 
responsibility.
    This rule will ensure a more efficient use of the BBG's resources, 
minimize the possibility of involving the BBG in issues unrelated to 
its responsibilities, promote uniformity in responding to such 
subpoenas and like requests, and maintain the impartiality of the BBG 
in matters that are in dispute between other parties. It will also 
serve the BBG's interest in protecting sensitive, confidential, and 
privileged information and records that are generated in fulfillment of 
the BBG's statutory responsibilities.
    This rule is internal and procedural rather than substantive. It 
does not create a right to obtain official records or the official 
testimony of a BBG employee nor does it create any additional right or 
privilege not already available to the BBG to deny any demand or 
request for testimony or documents. Failure to comply with the 
procedures set out in these regulations would be a basis for denying a 
demand or request submitted to the BBG.

List of Subjects in 22 CFR Part 504

    Administrative practice and procedure.
    For the reasons stated in the preamble, the Broadcasting Board of 
Governors proposes to amend 22 CFR, Chapter V, by adding part 504, to 
read as follows:

PART 504--TESTIMONY BY BBG EMPLOYEES, PRODUCTION OF OFFICIAL 
RECORDS, AND DISCLOSURE OF OFFICIAL INFORMATION IN LEGAL 
PROCEEDINGS

Subpart A--General Provisions
Sec.
504.1 Scope and purpose.
504.2 Applicability.
504.3 Definitions.
Subpart B--Demands or Requests for Testimony and Production of 
Documents
504.4 General prohibition.
504.5 Factors the BBG will consider.
504.6 Filing requirements for litigants seeking documents or 
testimony.
504.7 Service of requests or demands.
504.8 Processing requests or demands.
504.9 Final determinations.
504.10 Restrictions that apply to testimony.
504.11 Restrictions that apply to released records.
504.12 Procedure when a decision is not made prior to the time a 
response is required.
504.13 Procedure in the event of an adverse ruling.
Subpart C--Schedule of Fees
504.14 Fees.
Subpart D--Penalties
504.15 Penalties.

    Authority:  22 U.S.C. 6204.

Subpart A--General Provisions


504.1  Scope and purpose.

    (a) These regulations in this subpart establish policy, assign 
responsibilities and prescribe procedures with respect to:
    (1) The production or disclosure of official information or records 
by BBG employees, and
    (2) The testimony of current and former BBG employees, relating to 
official information, official duties, or the BBG's records, in 
connection with federal or state litigation in which the BBG is not a 
party.
    (b) The BBG intends these provisions to:
    (1) Conserve the time of BBG employees for conducting official 
business;
    (2) Minimize the involvement of BBG employees in issues unrelated 
to BBG's mission;
    (3) Maintain the impartiality of BBG employees in disputes between 
private litigants; and
    (4) Protect sensitive, confidential information and the 
deliberative processes of the BBG.
    (c) In providing for these requirements, the BBG does not waive the 
sovereign immunity of the United States.
    (d) This part provides guidance for the internal operations of BBG. 
It does not create any right or benefit, substantive or procedural, 
that a party may rely upon in any legal proceeding against the United 
States.


Sec.  504.2  Applicability.

    This part applies to demands and requests to current and former 
employees for factual or expert testimony relating to official 
information or official duties or for production of official records or 
information, in legal proceedings in which the BBG is not a named 
party. This part does not apply to:
    (a) Demands upon or requests for a BBG employee to testify as to 
facts or events that are unrelated to his or her official duties or 
that are unrelated to the functions of the BBG;
    (b) Demands upon or requests for a former BBG employee to testify 
as to matters in which the former employee was not directly or 
materially involved while at the BBG;
    (c) Requests for the release of records under the Freedom of 
Information Act,

[[Page 10956]]

5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; or
    (d) Congressional demands and requests for testimony, records or 
information.


Sec.  504. 3  Definitions.

    The following definitions apply to this part:
    (a) Demand means an order, subpoena, or other command of a court or 
other competent authority for the production, disclosure, or release of 
records or for the appearance and testimony of a BBG employee in a 
legal proceeding.
    (b) General Counsel means the General Counsel of the BBG or a 
person to whom the General Counsel has delegated authority under this 
part.
    (c) Legal proceeding means any matter before a court of law, 
administrative board or tribunal, commission, administrative law judge, 
hearing officer or other body that conducts a legal or administrative 
proceeding. Legal proceeding includes all phases of litigation.
    (d) BBG means the Broadcasting Board of Governors.
    (e) BBG employee means:
    (1) Any current or former employee of the BBG.
    (2) This definition does not include persons who are no longer 
employed by the BBG and who agree to testify about general matters, 
matters available to the public, or matters with which they had no 
specific involvement or responsibility during their employment with the 
BBG.
    (f) Records or official records and information means all 
information in the custody and control of the BBG, relating to 
information in the custody and control of the BBG, or acquired by a BBG 
employee in the performance of his or her official duties or because of 
his or her official status, while the individual was employed by the 
BBG.
    (g) Request means any informal request, by whatever method, for the 
production of records and information or for testimony which has not 
been ordered by a court or other competent authority.
    (h) Testimony means any written or oral statements, including 
depositions, answers to interrogatories, affidavits, declarations, 
interviews, and statements made by an individual in connection with a 
legal proceeding.

Subpart B--Demands or Requests for Testimony and Production of 
Documents


Sec.  504.4  General prohibition.

    (a) In any United States federal, state, and local proceeding or 
administrative action, or proceeding or administrative action conducted 
in a foreign country, in which the BBG is not a party, no BBG employee 
shall, in response to a demand or request for official records or 
information, furnish or produce documents or testimony as to any 
material contained in BBG files, any information relating to or based 
upon material contained in BBG files, or any information or material 
acquired as part of the performance of that person's official duties 
(or because of that person's official status) without the prior written 
approval of the General Counsel.
    (b) Whenever a request or demand for information is made upon a BBG 
employee, the employee, wherever located, shall immediately prepare a 
report that specifically describes the testimony or documents sought 
and immediately notify the General Counsel. The BBG employee shall then 
await instructions from the General Counsel concerning a response to 
the request or demand. The failure of any BBG employee to follow the 
procedures specified in this subpart neither creates nor confers any 
rights, privileges, or benefits on any person or party.


Sec.  504.5  Factors the BBG will consider.

    The General Counsel, in his or her sole discretion, may grant an 
employee permission to testify on matters relating to official 
information, or produce official records and information, in response 
to a demand or request. Among the relevant factors that the General 
Counsel may consider in making this decision are whether:
    (a) The purposes of this part are met;
    (b) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice;
    (c) Allowing such testimony or production of records would assist 
or hinder the BBG in performing its statutory duties;
    (d) Allowing such testimony or production of records would be in 
the best interest of the BBG or the United States;
    (e) The records or testimony can be obtained from other sources;
    (f) The demand or request is unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand or request 
arose;
    (g) Disclosure would violate a statute, Executive Order or 
regulation;
    (h) Disclosure would reveal confidential, sensitive, or privileged 
information, trade secrets or similar, confidential or financial 
information, otherwise protected information, or information which 
would otherwise be inappropriate for release;
    (i) Disclosure would impede or interfere with an ongoing law 
enforcement investigation or proceeding, or compromise constitutional 
rights or national security interests;
    (j) Disclosure would result in the BBG appearing to favor one 
litigant over another;
    (k) Whether the request was served before the demand;
    (l) A substantial Government interest is implicated;
    (m) The demand or request is within the authority of the party 
making it; and
    (n) The demand or request is sufficiently specific to be answered 
and/or can be limited to information to that which would be consistent 
with the factors specified herein.


Sec.  504. 6  Filing requirements for litigants seeking documents or 
testimony.

    A litigant must comply with the following requirements when filing 
a request for official records and information or testimony under this 
subpart. A request should be filed before a demand.
    (a) The request must be in writing and must be submitted to the 
General Counsel.
    (b) The written request must contain the following information:
    (1) The caption of the legal proceeding, docket number, and name 
and address of the court or other authority involved;
    (2) A copy of the complaint or equivalent document setting forth 
the assertions in the case and any other pleading or document necessary 
to show relevance;
    (3) A list of categories of records sought, a detailed description 
of how the information sought is relevant to the issues in the legal 
proceeding, and a specific description of the substance of the 
testimony or records sought;
    (4) A statement as to how the need for the information outweighs 
any need to maintain the confidentiality of the information and 
outweighs the burden on the BBG to produce the records or provide 
testimony;
    (5) A statement indicating that the information sought is not 
available from another source, from other persons or entities, or from 
the testimony of someone other than a BBG employee, such as a retained 
expert;
    (6) If testimony is requested, the intended use of the testimony, 
and a showing that no document could be provided and used in lieu of 
testimony;
    (7) A description of all prior decisions, orders, or pending 
motions in

[[Page 10957]]

the case that bear upon the relevance of the requested records or 
testimony;
    (8) The name, address, and telephone number of counsel to each 
party in the case; and
    (9) An estimate of the amount of time that the requester and other 
parties will require for each BBG employee for time spent by the 
employee to prepare for testimony, in travel, and for attendance in the 
legal proceeding.
    (c) The BBG reserves the right to require additional information to 
complete the request where appropriate.
    (d) The request should be submitted at least 30 days before the 
date that records or testimony is required. Requests submitted in less 
than 30 days before records or testimony is required must be 
accompanied by a written explanation stating the reasons for the late 
request and the reasons for expedited processing.
    (e) Failure to cooperate in good faith to enable the General 
Counsel to make an informed decision may serve as the basis for a 
determination not to comply with the request.
    (f) The request should state that the requester will provide a copy 
of the BBG employee's statement free of charge and that the requester 
will permit the BBG to have a representative present during the 
employee's testimony.


Sec.  504.7  Service of requests or demands.

    Requests or demands for official records or information or 
testimony under this Subpart must be served on the General Counsel, 
BBG, 330 Independence Ave., SW., Washington, DC 20237 by mail or fax at 
(202) 203-4585 and clearly marked ``Part 504--Request for Testimony or 
Official Records in Legal Proceedings.''


Sec.  504.8  Processing requests or demands.

    (a) After receiving service of a request or demand for testimony, 
the General Counsel will review the request and, in accordance with the 
provisions of this Subpart, determine whether, or under what 
conditions, to authorize the employee to testify on matters relating to 
official information and/or produce official records and information.
    (b) Absent exigent circumstances, the BBG will issue a 
determination within 30 days from the date the request is received.
    (c) The General Counsel may grant a waiver of any procedure 
described by this Subpart where a waiver is considered necessary to 
promote a significant interest of the BBG or the United States, or for 
other good cause.
    (d) Certification (authentication) of copies of records. The BBG 
may certify that records are true copies in order to facilitate their 
use as evidence. If a requester seeks certification, the requester must 
request certified copies from the BBG at least 30 days before the date 
they will be needed. The request should be sent to the BBG General 
Counsel.


Sec.  504.9  Final determinations.

    The General Counsel makes the final determination on demands or 
requests to employees for production of official records and 
information or testimony in litigation in which the BBG is not a party. 
All final determinations are within the sole discretion of the General 
Counsel. The General Counsel will notify the requester and, when 
appropriate, the court or other competent authority of the final 
determination, the reasons for the grant or denial of the request, and 
any conditions that the General Counsel may impose on the release of 
records or information, or on the testimony of a BBG employee. The 
General Counsel's decision exhausts administrative remedies for 
discovery of the information.


Sec.  504.10  Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on 
the testimony of BBG employees including, for example:
    (1) Limiting the areas of testimony;
    (2) Requiring the requester and other parties to the legal 
proceeding to agree that the transcript of the testimony will be kept 
under seal;
    (3) Requiring that the transcript will be used or made available 
only in the particular legal proceeding for which testimony was 
requested. The General Counsel may also require a copy of the 
transcript of testimony at the requester's expense.
    (b) The BBG may offer the employee's written declaration in lieu of 
testimony.
    (c) If authorized to testify pursuant to this part, an employee may 
testify as to facts within his or her personal knowledge, but, unless 
specifically authorized to do so by the General Counsel, the employee 
shall not:
    (1) Disclose confidential or privileged information; or
    (2) For a current BBG employee, testify as an expert or opinion 
witness with regard to any matter arising out of the employee's 
official duties or the functions of the BBG unless testimony is being 
given on behalf of the United States (see also 5 CFR 2635.805).
    (d) The scheduling of an employee's testimony, including the amount 
of time that the employee will be made available for testimony, will be 
subject to the BBG's approval.


Sec.  504.11  Restrictions that apply to released records.

    (a) The General Counsel may impose conditions or restrictions on 
the release of official records and information, including the 
requirement that parties to the proceeding obtain a protective order or 
execute a confidentiality agreement to limit access and any further 
disclosure. The terms of the protective order or of a confidentiality 
agreement must be acceptable to the General Counsel. In cases where 
protective orders or confidentiality agreements have already been 
executed, the BBG may condition the release of official records and 
information on an amendment to the existing protective order or 
confidentiality agreement.
    (b) If the General Counsel so determines, original BBG records may 
be presented for examination in response to a request, but they may not 
be presented as evidence or otherwise used in a manner by which they 
could lose their identity as official BBG records, nor may they be 
marked or altered. In lieu of the original records, certified copies 
may be presented for evidentiary purposes.


Sec.  504.12  Procedure when a decision is not made prior to the time a 
response is required.

    If a response to a demand or request is required before the General 
Counsel can make the determination referred to in Sec. 504.9, the 
General Counsel, when necessary, will provide the court or other 
competent authority with a copy of this part, inform the court or other 
competent authority that the request is being reviewed, provide an 
estimate as to when a decision will be made, and seek a stay of the 
demand or request pending a final determination.


Sec.  504. 13  Procedure in the event of an adverse ruling.

    If the court or other competent authority fails to stay a demand or 
request, the employee upon whom the demand or request is made, unless 
otherwise advised by the General Counsel, will appear, if necessary, at 
the stated time and place, produce a copy of this part, state that the 
employee has been advised by counsel not to provide the requested 
testimony or produce documents, and respectfully decline to comply with 
the demand or request, citing United States ex rel. Touhy v. Ragen, 340 
U.S. 462 (1951).

Subpart C--Schedule of Fees


Sec.  504.14  Fees.

    (a) Generally. The General Counsel may condition the production of 
records or appearance for testimony upon

[[Page 10958]]

advance payment of a reasonable estimate of the costs to the BBG.
    (b) Fees for records. Fees for producing records will include fees 
for searching, reviewing, and duplicating records, costs of attorney 
time spent in reviewing the request, and expenses generated by 
materials and equipment used to search for, produce, and copy the 
responsive information. Costs for employee time will be calculated on 
the basis of the hourly pay of the employee (including all pay, 
allowances, and benefits). Fees for duplication will be the same as 
those charged by the BBG in its Freedom of Information Act regulations 
at 22 CFR Part 503.
    (c) Witness fees. Fees for attendance by a witness will include 
fees, expenses, and allowances prescribed by the court's rules. If no 
such fees are prescribed, witness fees will be determined based upon 
the rule of the Federal district court closest to the location where 
the witness will appear and on 28 U.S.C. 1821, as applicable. Such fees 
will include cost of time spent by the witness to prepare for 
testimony, in travel and for attendance in the legal proceeding, plus 
travel costs.
    (d) Payment of fees. A requester must pay witness fees for current 
BBG employees and any record certification fees by submitting to the 
General Counsel a check or money order for the appropriate amount made 
payable to the Treasury of the United States. In the case of testimony 
of former BBG employees, the requester must pay applicable fees 
directly to the former BBG employee in accordance with 28 U.S.C. 1821 
or other applicable statutes.
    (e) Waiver or reduction of fees. The General Counsel, in his or her 
sole discretion, may, upon a showing of reasonable cause, waive or 
reduce any fees in connection with the testimony, production, or 
certification of records.
    (f) De minimis fees. Fees will not be assessed if the total charge 
would be $10.00 or less.

Subpart D--Penalties


Sec.  504.15  Penalties.

    (a) An employee who discloses official records or information or 
gives testimony relating to official information, except as expressly 
authorized by the BBG, or as ordered by a Federal court after the BBG 
has had the opportunity to be heard, may face penalties as provided in 
any applicable enforcement statute.
    (b) A current BBG employee who testifies or produces official 
records and information in violation of this part shall be subject to 
disciplinary action and, if done for a valuable consideration, may 
subject that person to criminal prosecution.

     Dated: March 6, 2007.
 Carol F. Baker,
Director, Office of Administration.
 [FR Doc. E7-4329 Filed 3-9-07; 8:45 am]
BILLING CODE 8610-01-P