Testimony by TVA Employees, Production of Official Records, and Disclosure of Official Information in Legal Proceedings, 60547-60550 [E7-20907]
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Federal Register / Vol. 72, No. 206 / Thursday, October 25, 2007 / Rules and Regulations
Rulemaking to amend section
344.9(a)(3) to extend the time period for
reporting quarterly personal securities
transactions to 30-calendar days after
the end of the calendar quarter.5 The
comment period was 60 days, and
expired on August 27, 2007. The FDIC
received one comment on this proposal.
The commenter supported the proposed
amendment and agreed that the purpose
of extending the reporting deadline was
to align the FDIC’s requirements with
the SEC’s, and to promote practical and
uniform recordkeeping requirements.
III. Final Rule
As explained above, the FDIC
received one industry comment on its
proposal to extend the personal
securities transactions reporting
requirement to 30-calendar days after
the end of the calendar quarter, which
comment endorsed the FDIC’s reasoning
for its proposal. Accordingly, the FDIC
is adopting the rule as proposed with no
revisions.
IV. Regulatory Analysis and Procedure
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A. Plain Language
Section 722 of the Gramm-LeachBliley Act (12 U.S.C. 4809) requires the
FDIC to use ‘‘plain language’’ in all
proposed and final rules published after
January 1, 2000. The proposed rule
requested comments on how the rule
might be changed to reflect the
requirements of GLBA. No comments
were received.
B. Regulatory Flexibility Act
Under section 605(b) of the
Regulatory Flexibility Act (‘‘RFA’’) (5
U.S.C. 605(b)) the regulatory flexibility
analysis otherwise required under
section 603 of the RFA (5 U.S.C. 603) is
not required if the head of the agency
certifies that the rule will not have a
significant economic impact on a
substantial number of small entities and
the agency publishes such certification
and a statement explaining the factual
basis for such a certification in the
Federal Register along with its rule.
Pursuant to section 605(b) of the RFA,
the FDIC certifies that this final rule will
not have a significant impact on a
substantial number of small entities.
The FDIC does not expect that this rule
will create any additional burden on
small entities. In effect, the rule extends
to 30-calendar days the reporting period
within which officers and certain
employees of state nonmember banks
have to report their personal securities
transactions and gives these individuals
more latitude to report their quarterly
securities transactions. Accordingly, a
5 72
regulatory flexibility analysis is not
required.
C. Paperwork Reduction Act
The recordkeeping and reporting
requirements for securities transactions
in Part 344 constitute a collection of
information as defined by the
Paperwork Reduction Act. The
information collection has been
approved by the Office of Management
and Budget under control number 3064–
0028. The reporting requirements and
burden associated with that collection
would not be affected by this rule.
List of Subjects in 12 CFR Part 344
Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, title 12, chapter III, part 344,
is amended as follows:
I
PART 344—RECORDKEEPING AND
CONFIRMATION REQUIREMENTS FOR
SECURITIES TRANSACTIONS
1. The authority citation for Part 344
continues to read as follows:
I
Authority: 12 U.S.C. 1817, 1818, and 1819.
2. In § 344.9, paragraph (a)(3) is
revised to read as follows:
I
§ 344.9 Personal securities trading
reporting by bank officers and employees.
(a) * * *
(3) In connection with their duties,
obtain information concerning which
securities are being purchased or sold or
recommend such action, must report to
the bank, within 30-calendar days after
the end of the calendar quarter, all
transactions in securities made by them
or on their behalf, either at the bank or
elsewhere in which they have a
beneficial interest. The report shall
identify the securities purchased or sold
and indicate the dates of the
transactions and whether the
transactions were purchases or sales.
*
*
*
*
*
By Order of the Board of Directors.
Dated at Washington, DC, the 16th day of
October, 2007.
Federal Deposit Insurance Corporation
Robert E. Feldman,
Executive Secretary.
[FR Doc. E7–20998 Filed 10–24–07; 8:45 am]
BILLING CODE 6714–01–P
FR 35204 (June 27, 2007).
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60547
TENNESSEE VALLEY AUTHORITY
18 CFR Part 1301
Testimony by TVA Employees,
Production of Official Records, and
Disclosure of Official Information in
Legal Proceedings
Tennessee Valley Authority
(TVA).
ACTION: Final rule.
AGENCY:
SUMMARY: The Tennessee Valley
Authority (‘‘TVA’’) is publishing as a
final rule a regulation governing access
to TVA information and records in
connection with legal proceedings in
which neither the United States nor
TVA is a party. This final rule
establishes guidelines for use in
determining whether TVA employees
will provide testimony or records
relating to their official duties. It also
establishes procedures for requesters to
follow when making demands on or
requests to a TVA employee for official
documents or to provide testimony.
This final rule standardizes TVA’s past
practices, promotes uniformity in
decisions, conserves the ability of TVA
to conduct official business, preserves
its employee resources, protects
confidential information, provides
guidance to requestors, minimizes
involvement in matters unrelated to
TVA’s mission and programs, avoids
wasteful allocation of agency resources,
and avoids spending public time and
money for private purpose.
DATES: The effective date of the
regulation is October 25, 2007.
FOR FURTHER INFORMATION CONTACT:
Nicholas P. Goschy, Assistant General
Counsel, Tennessee Valley Authority,
400 W. Summit Hill Drive, Knoxville,
Tennessee 37902, (865) 632–8960.
SUPPLEMENTARY INFORMATION:
Background
TVA regularly receives subpoenas and
other informal requests for documents
and requests for TVA employees to
provide testimony or evidence in cases
in which TVA is not a party. Sometimes
these subpoenas or requests are for TVA
records that are not available to the
public under the Freedom of
Information Act. TVA also receives
requests for TVA employees to appear
as witnesses in litigation and to provide
testimony relating to materials
contained in TVA’s official records or
provide testimony or information
acquired during the performance of the
employees’ official duties.
Although many other federal agencies
currently have regulations in place to
address these types of requests, and
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Federal Register / Vol. 72, No. 206 / Thursday, October 25, 2007 / Rules and Regulations
TVA itself has rules implementing the
Freedom of Information Act that govern
requests for information from the
general public, TVA has not had official
regulations governing subpoenas and
other information requests for document
production and testimony of TVA
employees in legal proceedings. Issues
about such requests that have arisen in
recent years warrant adoption of
regulations governing their submission,
evaluation, and processing. Responding
to these requests is not only
burdensome, but may also result in a
significant disruption of a TVA
employee’s work schedule and possibly
involve TVA in issues unrelated to its
responsibilities. In order to resolve these
issues, many agencies have issued
regulations, similar to this final
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).
On September 10, 2007, TVA
published in the Federal Register its
own proposed Touhy regulation, for
codification in part 1301 of 18 CFR. See
72 FR 51572–51574, which provided for
a 30 day comment period. TVA did not
receive any comments on the proposed
rule, and is issuing the final rule with
no substantive changes from the
proposed rule.
The final rule will formalize past
practices already utilized by TVA in
responding to requests for disclosure of
official records or testimony by TVA
employees when TVA is not a party to
the litigation. Briefly summarized, the
final rule will prohibit disclosure of
official records or testimony by TVA’s
employees, as defined in section
1301.52, unless there is compliance
with the rule. The final rule sets out the
information that requesters must
provide and the factors that TVA will
consider in making determinations in
response to requests for testimony or the
production of documents. The final rule
sets forth TVA’s standard practice of
providing employee testimony by
affidavit only and clarifies those steps
requesters must follow in order to
obtain official TVA documents,
including how to accomplish service of
process on TVA. The final rule also
establishes a new practice that service
can now be accomplished by United
States mail.
This final rule applies to a range of
matters in any legal proceeding in
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which TVA is not a named party.
Current and former TVA employees will
not provide testimony about specific
matters involving information which
they acquired during the performance of
their official duties unless permitted to
testify as provided in the rule. They are
not restricted from providing testimony
on their own time about general matters
unconnected with the specific TVA
matters.
This final rule will ensure a more
efficient use of TVA’s resources,
minimize the possibility of involving
TVA in issues unrelated to its
responsibilities, promote uniformity in
responding to such subpoenas and like
requests, and maintain the impartiality
of TVA in matters that are in dispute
between other parties. It will also serve
TVA’s interest in protecting sensitive,
confidential, and privileged information
and records that are generated in
fulfillment of TVA’s statutory
responsibilities.
The final rule is internal and
procedural rather than substantive. It
does not create a right to obtain official
records or the official testimony of a
TVA employee nor does it create any
additional right or privilege not already
available to TVA 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 TVA.
List of Subjects in 18 CFR Part 1301
Administrative practice and
procedure.
For the reasons stated in the preamble,
TVA amends 18 CFR Chapter XIII, as
follows:
I
PART 1301—PROCEDURES
1. The authority citation for part 1301
continues to read as follows:
I
Authority: 16 U.S.C. 831–831ee, 5 U.S.C.
552.
2. Part 1301 is amended by adding
subpart D to read as follows:
I
Subpart D—Testimony by TVA Employees,
Production of Official Records, and
Disclosure of Official Information in Legal
Proceedings
Sec.
1301.51 Purpose and scope.
1301.52 Definitions.
1301.53 General.
1301.54 Requirements for a demand for
records or testimony.
1301.55 Responding to demands.
1301.56 Final determination.
1301.57 Waiver.
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Subpart D—Testimony by TVA
Employees, Production of Official
Records, and Disclosure of Official
Information in Legal Proceedings
§ 1301.51
Purpose and scope.
(a) Purpose. This part sets forth the
procedures to be followed when TVA or
a TVA employee is served with a
demand to provide testimony and/or
produce or disclose official information
or records in a legal proceeding in
which TVA or the United States is not
a party, and where such appearance
arises out of, or is related to, the
individual’s employment with TVA.
(b) Scope. This part applies when, in
a judicial, administrative, legislative, or
other legal proceeding, a TVA employee
is served with a demand to provide
testimony concerning information
acquired in the course of performing
official duties or because of official
status and/or to produce official
information and/or records.
§ 1301.52
Definitions.
The following definitions apply to
this part:
(a) Appearance means testimony or
production of documents or other
material, including an affidavit,
deposition, interrogatory, declaration, or
other required written submission.
(b) Demand means a subpoena, order,
or other demand of a court of competent
jurisdiction, or other specific authority
(e.g. an administrative or State
legislative body), for the production,
disclosure, or release of TVA records or
information or for the appearance of
TVA personnel as witnesses in their
official capacities.
(c) Employee means any members of
the Board of Directors, officials, officers,
directors, employees or agents of TVA,
except as TVA may otherwise determine
in a particular case, and includes former
TVA employees to the extent that the
information sought was acquired in the
performance of official duties for TVA.
(d) General Counsel means the
General Counsel of TVA or a person to
whom the General Counsel has
delegated authority under this part.
(e) Legal proceeding means any and
all pre-trial, trial, and post-trial stages of
all judicial or administrative actions,
hearings, investigations, or similar
proceedings before courts, commissions,
boards, or other judicial or quasijudicial bodies or tribunals, whether
criminal, civil, or administrative in
nature.
(f) Records or official records and
information means all information in
the custody and control of TVA, relating
to information in the custody and
control of TVA, or acquired by a TVA
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employee in performance of his or her
official duties or because of his or her
official status while the individual was
employed by TVA.
(g) 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.
§ 1301.53
General.
(a) No employee shall appear, in
response to a demand for official
records or information, in any
proceeding to which this part applies to
provide testimony and/or produce
records or other official information
without prior authorization as set forth
in this part.
(b) This part is intended only to
provide procedures for responding to
demands for testimony or production of
records or other official information,
and is not intended to, does not, and
may not be relied upon to, create any
right or benefit, substantive or
procedural, enforceable by any party
against TVA and the United States.
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§ 1301.54 Requirements for a demand for
records or testimony.
(a) Service of demands. Only TVA’s
General Counsel or his/her designee is
authorized to receive and accept
demands sought to be served upon TVA
or its employees. All such documents
should be delivered in person or by
United States mail to the Office of the
General Counsel, Tennessee Valley
Authority, 400 W. Summit Hill Drive,
Knoxville, Tennessee 37902.
(b) Time limit for serving demands.
The demand must be served at least 30
days prior to the scheduled date of
testimony or disclosure of records, in
order to ensure that the General Counsel
has adequate time to consider the
demand and prepare a response, except
in cases of routine requests for
personnel and payroll records located
on-site in Knoxville, where service 15
days prior will normally be considered
sufficient. The General Counsel may,
upon request and for good cause shown,
waive the requirement of this paragraph.
(c) Form of Demand. A demand for
testimony or production of records or
other official information must comply
with the following requirements:
(1) The demand must be in writing
and submitted to the General Counsel.
(2) The demand must include the
following information:
(i) The caption of the legal
proceeding, docket number, and name
and address of the court or other
authority involved.
(ii) If production or records or other
official information is sought, a list of
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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
records sought.
(iii) If testimony is sought, a
description of the intended use of the
testimony, a detailed description of how
the testimony sought is relevant to the
issues in the legal proceeding, and a
specific description of the substance of
the testimony sought.
(iv) 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 TVA to produce the documents or
testimony.
(v) 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 TVA employee,
such as a retained expert.
(vi) The name, address, and telephone
number of counsel to each party in the
case.
(d) Additional information. TVA
reserves the right to require additional
information to complete the request
where appropriate or to waive any of the
requirements of this section at its sole
discretion.
§ 1301.55
Responding to demands.
Generally, authorization to provide
the requested material or testimony
shall not be withheld unless their
disclosure is prohibited by law or for
other compelling reasons, provided the
request is reasonable and in compliance
with the requirements of this part, and
subject to the following conditions:
(a) Demands for testimony. TVA’s
practice is to provide requested
testimony of TVA employees by
affidavit only. TVA will provide
affidavit testimony in response to
demands for such testimony, provided
all requirements of this part are met and
there is no compelling factor under
paragraph (c) of this section that
requires the testimony to be withheld.
The General Counsel may waive this
restriction when necessary.
(b) Demands for production of records
or official information. TVA’s practice is
to provide requested records or official
information, provided all requirements
of this part are met and there is no
compelling factor under paragraph (c) of
this section that requires the records or
official information to be withheld.
(c) Factors to be considered in
determining whether requested
testimony or records or official
information must be withheld. The
General Counsel shall consider the
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60549
following factors, among others, in
deciding whether requested testimony
or materials must be withheld:
(1) Whether production is appropriate
in light of any relevant privilege;
(2) Whether production is appropriate
under the applicable rules of discovery
or the procedures governing the case or
matter in which the demand arose;
(3) Whether the material requested is
relevant to the matter at issue;
(4) Whether allowing such testimony
or production of records would be
necessary to prevent a miscarriage of
justice;
(5) Whether disclosure would violate
a statute, Executive Order, or regulation,
including, but not limited to, the
Privacy Act of 1974, as amended, 5
U.S.C. 552a;
(6) Whether disclosure would impede
or interfere with an ongoing law
enforcement investigation or
proceeding, or compromise
constitutional rights or national security
interests;
(7) Whether disclosure would
improperly reveal trade secrets or
proprietary confidential information
without the owner’s consent;
(8) Whether disclosure would unduly
interfere with the orderly conduct of
TVA’s functions;
(9) Whether the records or testimony
can be obtained from other sources;
(10) Whether disclosure would result
in TVA appearing to favor one litigant
over another;
(11) Whether the demand or request is
within the authority of the party making
it; and
(12) Whether a substantial
Government interest is implicated.
(d) Restrictions on testimony or
production of records or official
information. When necessary or
appropriate, the General Counsel may
impose restrictions or conditions on the
production of testimony or records or
official information. These restrictions
may include, but are not limited to:
(1) Limiting the area of testimony;
(2) Requiring that the requester and
other parties to the legal proceeding
agree to keep the testimony under seal;
(3) Requiring that the testimony be
used or made available only in the legal
proceeding for which it was requested;
(4) Requiring that the parties to the
legal proceeding obtain a protective
order or execute a confidentiality
agreement to limit access and any
further disclosure of produced records
or official information.
(e) Fees for Production. Fees will be
charged for production of TVA records
and information. The fees will be the
same as those charged by TVA pursuant
to its Freedom of Information Act
regulations, 16 CFR 1301.10.
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Federal Register / Vol. 72, No. 206 / Thursday, October 25, 2007 / Rules and Regulations
§ 1301.56
Final determination.
The General Counsel makes the final
determination whether a demand for
testimony or production of records or
official testimony in a legal proceeding
in which TVA is not a party shall be
granted. All final determinations are
within the sole discretion of the General
Counsel. The General Counsel will
notify the requesting party and, when
necessary, the court or other 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 production of
testimony or records or official
information.
§ 1301.57
Waiver.
The General Counsel may grant a
waiver of any procedure described by
this part where a waiver is considered
necessary to promote a significant
interest of TVA or the United States, or
for other good cause.
Maureen H. Dunn,
General Counsel.
[FR Doc. E7–20907 Filed 10–24–07; 8:45 am]
BILLING CODE 8120–08–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
supplement to NADA 140–958 that
provides for use of EQUIPHEN
(phenylbutazone) Paste in horses for
relief of inflammatory conditions
associated with the musculoskeletal
system. The supplemental NADA
provides for a revised human food
safety warning on product labeling. The
supplemental NADA is approved as of
September 26, 2007, and the regulations
are amended in 21 CFR 520.1720c to
reflect the approval.
Approval of this supplemental NADA
did not require review of additional
safety or effectiveness data or
information. Therefore, a freedom of
information summary is not required.
FDA has determined under 21 CFR
25.33(a)(1) that this action is of a type
that does not individually or
cumulatively have a significant effect on
the human environment. Therefore,
neither an environmental assessment
nor an environmental impact statement
is required.
This rule does not meet the definition
of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because
it is a rule of ‘‘particular applicability.’’
Therefore, it is not subject to the
congressional review requirements in 5
U.S.C. 801–808.
List of Subjects in 21 CFR Part 520
Food and Drug Administration
Animal drugs.
21 CFR Part 520
Oral Dosage Form New Animal Drugs;
Phenylbutazone Paste
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Final rule.
The Food and Drug
Administration (FDA) is amending the
animal drug regulations to reflect
approval of a supplemental new animal
drug application (NADA) filed by
Luitpold Pharmaceuticals, Inc. The
supplemental NADA provides for a
revised human food safety warning for
phenylbutazone paste, used in horses
for relief of inflammatory conditions
associated with the musculoskeletal
system.
DATES: This rule is effective October 25,
2007.
FOR FURTHER INFORMATION CONTACT:
Melanie R. Berson, Center for Veterinary
Medicine (HFV–110), Food and Drug
Administration, 7500 Standish Pl.,
Rockville, MD 20855, 301–827–7540, email: melanie.berson@fda.hhs.gov.
SUPPLEMENTARY INFORMATION: Luitpold
Pharmaceuticals, Inc., Animal Health
Division, Shirley, NY 11967, filed a
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SUMMARY:
VerDate Aug<31>2005
18:00 Oct 24, 2007
Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs and redelegated to
the Center for Veterinary Medicine, 21
CFR part 520 is amended as follows:
I
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PART 520—ORAL DOSAGE FORM
NEW ANIMAL DRUGS
1. The authority citation for 21 CFR
part 520 continues to read as follows:
I
Authority: 21 U.S.C. 360b.
§ 520.1720c
[Amended]
2. In § 520.1720c, in paragraph (c)(3),
remove ‘‘Not for use in horses intended
for food.’’ and add in its place ‘‘Do not
use in horses intended for human
consumption.’’
I
Dated: October 17, 2007.
Bernadette Dunham,
Deputy Director, Center for Veterinary
Medicine.
[FR Doc. E7–21054 Filed 10–24–07; 8:45 am]
BILLING CODE 4160–01–S
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DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Part 520
Oral Dosage Form New Animal Drugs;
Spinosad
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Final rule.
SUMMARY: The Food and Drug
Administration (FDA) is amending the
animal drug regulations to reflect
approval of a new animal drug
application (NADA) filed by Elanco
Animal Health. The NADA provides for
veterinary prescription use of spinosad
chewable tablets to kill fleas and for the
prevention and treatment of flea
infestations on dogs for 1 month.
DATES: This rule is effective October 25,
2007.
FOR FURTHER INFORMATION CONTACT:
Melanie R. Berson, Center for Veterinary
Medicine (HFV–110), Food and Drug
Administration, 7500 Standish Pl.,
Rockville, MD 20855, 301–827–7540, email: melanie.berson@fda.hhs.gov.
SUPPLEMENTARY INFORMATION: Elanco
Animal Health, A Division of Eli Lilly
& Co., Lilly Corporate Center,
Indianapolis, IN 46285, filed NADA
141–277 that provides for veterinary
prescription use of COMFORTIS
(spinosad) Chewable Tablets to kill fleas
and for the prevention and treatment of
flea infestations (Ctenocephalides felis)
on dogs for 1 month. The NADA is
approved as of September 25, 2007, and
the regulations in 21 CFR part 520 are
amended by adding § 520.2130 to reflect
the approval.
In accordance with the freedom of
information provisions of 21 CFR part
20 and 21 CFR 514.11(e)(2)(ii), a
summary of safety and effectiveness
data and information submitted to
support approval of this application
may be seen in the Division of Dockets
Management (HFA–305), Food and Drug
Administration, 5630 Fishers Lane, rm.
1061, Rockville, MD 20852, between 9
a.m. and 4 p.m., Monday through
Friday.
Under section 512(c)(2)(F)(i) of the
Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360b(c)(2)(F)(i)), this
approval qualifies for 5 years of
marketing exclusivity beginning on the
date of approval.
FDA has determined under 21 CFR
25.33(d)(1) that this action is of a type
that does not individually or
cumulatively have a significant effect on
the human environment. Therefore,
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]]>Agencies
[Federal Register Volume 72, Number 206 (Thursday, October 25, 2007)]
[Rules and Regulations]
[Pages 60547-60550]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-20907]
=======================================================================
-----------------------------------------------------------------------
TENNESSEE VALLEY AUTHORITY
18 CFR Part 1301
Testimony by TVA Employees, Production of Official Records, and
Disclosure of Official Information in Legal Proceedings
AGENCY: Tennessee Valley Authority (TVA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Tennessee Valley Authority (``TVA'') is publishing as a
final rule a regulation governing access to TVA information and records
in connection with legal proceedings in which neither the United States
nor TVA is a party. This final rule establishes guidelines for use in
determining whether TVA employees will provide testimony or records
relating to their official duties. It also establishes procedures for
requesters to follow when making demands on or requests to a TVA
employee for official documents or to provide testimony. This final
rule standardizes TVA's past practices, promotes uniformity in
decisions, conserves the ability of TVA to conduct official business,
preserves its employee resources, protects confidential information,
provides guidance to requestors, minimizes involvement in matters
unrelated to TVA's mission and programs, avoids wasteful allocation of
agency resources, and avoids spending public time and money for private
purpose.
DATES: The effective date of the regulation is October 25, 2007.
FOR FURTHER INFORMATION CONTACT: Nicholas P. Goschy, Assistant General
Counsel, Tennessee Valley Authority, 400 W. Summit Hill Drive,
Knoxville, Tennessee 37902, (865) 632-8960.
SUPPLEMENTARY INFORMATION:
Background
TVA regularly receives subpoenas and other informal requests for
documents and requests for TVA employees to provide testimony or
evidence in cases in which TVA is not a party. Sometimes these
subpoenas or requests are for TVA records that are not available to the
public under the Freedom of Information Act. TVA also receives requests
for TVA employees to appear as witnesses in litigation and to provide
testimony relating to materials contained in TVA's official records or
provide testimony or information acquired during the performance of the
employees' official duties.
Although many other federal agencies currently have regulations in
place to address these types of requests, and
[[Page 60548]]
TVA itself has rules implementing the Freedom of Information Act that
govern requests for information from the general public, TVA has not
had official regulations governing subpoenas and other information
requests for document production and testimony of TVA employees in
legal proceedings. Issues about such requests that have arisen in
recent years warrant adoption of regulations governing their
submission, evaluation, and processing. Responding to these requests is
not only burdensome, but may also result in a significant disruption of
a TVA employee's work schedule and possibly involve TVA in issues
unrelated to its responsibilities. In order to resolve these issues,
many agencies have issued regulations, similar to this final
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).
On September 10, 2007, TVA published in the Federal Register its
own proposed Touhy regulation, for codification in part 1301 of 18 CFR.
See 72 FR 51572-51574, which provided for a 30 day comment period. TVA
did not receive any comments on the proposed rule, and is issuing the
final rule with no substantive changes from the proposed rule.
The final rule will formalize past practices already utilized by
TVA in responding to requests for disclosure of official records or
testimony by TVA employees when TVA is not a party to the litigation.
Briefly summarized, the final rule will prohibit disclosure of official
records or testimony by TVA's employees, as defined in section 1301.52,
unless there is compliance with the rule. The final rule sets out the
information that requesters must provide and the factors that TVA will
consider in making determinations in response to requests for testimony
or the production of documents. The final rule sets forth TVA's
standard practice of providing employee testimony by affidavit only and
clarifies those steps requesters must follow in order to obtain
official TVA documents, including how to accomplish service of process
on TVA. The final rule also establishes a new practice that service can
now be accomplished by United States mail.
This final rule applies to a range of matters in any legal
proceeding in which TVA is not a named party. Current and former TVA
employees will not provide testimony about specific matters involving
information which they acquired during the performance of their
official duties unless permitted to testify as provided in the rule.
They are not restricted from providing testimony on their own time
about general matters unconnected with the specific TVA matters.
This final rule will ensure a more efficient use of TVA's
resources, minimize the possibility of involving TVA in issues
unrelated to its responsibilities, promote uniformity in responding to
such subpoenas and like requests, and maintain the impartiality of TVA
in matters that are in dispute between other parties. It will also
serve TVA's interest in protecting sensitive, confidential, and
privileged information and records that are generated in fulfillment of
TVA's statutory responsibilities.
The final rule is internal and procedural rather than substantive.
It does not create a right to obtain official records or the official
testimony of a TVA employee nor does it create any additional right or
privilege not already available to TVA 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 TVA.
List of Subjects in 18 CFR Part 1301
Administrative practice and procedure.
0
For the reasons stated in the preamble, TVA amends 18 CFR Chapter XIII,
as follows:
PART 1301--PROCEDURES
0
1. The authority citation for part 1301 continues to read as follows:
Authority: 16 U.S.C. 831-831ee, 5 U.S.C. 552.
0
2. Part 1301 is amended by adding subpart D to read as follows:
Subpart D--Testimony by TVA Employees, Production of Official Records,
and Disclosure of Official Information in Legal Proceedings
Sec.
1301.51 Purpose and scope.
1301.52 Definitions.
1301.53 General.
1301.54 Requirements for a demand for records or testimony.
1301.55 Responding to demands.
1301.56 Final determination.
1301.57 Waiver.
Subpart D--Testimony by TVA Employees, Production of Official
Records, and Disclosure of Official Information in Legal
Proceedings
Sec. 1301.51 Purpose and scope.
(a) Purpose. This part sets forth the procedures to be followed
when TVA or a TVA employee is served with a demand to provide testimony
and/or produce or disclose official information or records in a legal
proceeding in which TVA or the United States is not a party, and where
such appearance arises out of, or is related to, the individual's
employment with TVA.
(b) Scope. This part applies when, in a judicial, administrative,
legislative, or other legal proceeding, a TVA employee is served with a
demand to provide testimony concerning information acquired in the
course of performing official duties or because of official status and/
or to produce official information and/or records.
Sec. 1301.52 Definitions.
The following definitions apply to this part:
(a) Appearance means testimony or production of documents or other
material, including an affidavit, deposition, interrogatory,
declaration, or other required written submission.
(b) Demand means a subpoena, order, or other demand of a court of
competent jurisdiction, or other specific authority (e.g. an
administrative or State legislative body), for the production,
disclosure, or release of TVA records or information or for the
appearance of TVA personnel as witnesses in their official capacities.
(c) Employee means any members of the Board of Directors,
officials, officers, directors, employees or agents of TVA, except as
TVA may otherwise determine in a particular case, and includes former
TVA employees to the extent that the information sought was acquired in
the performance of official duties for TVA.
(d) General Counsel means the General Counsel of TVA or a person to
whom the General Counsel has delegated authority under this part.
(e) Legal proceeding means any and all pre-trial, trial, and post-
trial stages of all judicial or administrative actions, hearings,
investigations, or similar proceedings before courts, commissions,
boards, or other judicial or quasi-judicial bodies or tribunals,
whether criminal, civil, or administrative in nature.
(f) Records or official records and information means all
information in the custody and control of TVA, relating to information
in the custody and control of TVA, or acquired by a TVA
[[Page 60549]]
employee in performance of his or her official duties or because of his
or her official status while the individual was employed by TVA.
(g) 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.
Sec. 1301.53 General.
(a) No employee shall appear, in response to a demand for official
records or information, in any proceeding to which this part applies to
provide testimony and/or produce records or other official information
without prior authorization as set forth in this part.
(b) This part is intended only to provide procedures for responding
to demands for testimony or production of records or other official
information, and is not intended to, does not, and may not be relied
upon to, create any right or benefit, substantive or procedural,
enforceable by any party against TVA and the United States.
Sec. 1301.54 Requirements for a demand for records or testimony.
(a) Service of demands. Only TVA's General Counsel or his/her
designee is authorized to receive and accept demands sought to be
served upon TVA or its employees. All such documents should be
delivered in person or by United States mail to the Office of the
General Counsel, Tennessee Valley Authority, 400 W. Summit Hill Drive,
Knoxville, Tennessee 37902.
(b) Time limit for serving demands. The demand must be served at
least 30 days prior to the scheduled date of testimony or disclosure of
records, in order to ensure that the General Counsel has adequate time
to consider the demand and prepare a response, except in cases of
routine requests for personnel and payroll records located on-site in
Knoxville, where service 15 days prior will normally be considered
sufficient. The General Counsel may, upon request and for good cause
shown, waive the requirement of this paragraph.
(c) Form of Demand. A demand for testimony or production of records
or other official information must comply with the following
requirements:
(1) The demand must be in writing and submitted to the General
Counsel.
(2) The demand must include the following information:
(i) The caption of the legal proceeding, docket number, and name
and address of the court or other authority involved.
(ii) If production or records or other official information is
sought, 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 records
sought.
(iii) If testimony is sought, a description of the intended use of
the testimony, a detailed description of how the testimony sought is
relevant to the issues in the legal proceeding, and a specific
description of the substance of the testimony sought.
(iv) 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 TVA to produce the documents or testimony.
(v) 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 TVA employee, such as a retained
expert.
(vi) The name, address, and telephone number of counsel to each
party in the case.
(d) Additional information. TVA reserves the right to require
additional information to complete the request where appropriate or to
waive any of the requirements of this section at its sole discretion.
Sec. 1301.55 Responding to demands.
Generally, authorization to provide the requested material or
testimony shall not be withheld unless their disclosure is prohibited
by law or for other compelling reasons, provided the request is
reasonable and in compliance with the requirements of this part, and
subject to the following conditions:
(a) Demands for testimony. TVA's practice is to provide requested
testimony of TVA employees by affidavit only. TVA will provide
affidavit testimony in response to demands for such testimony, provided
all requirements of this part are met and there is no compelling factor
under paragraph (c) of this section that requires the testimony to be
withheld. The General Counsel may waive this restriction when
necessary.
(b) Demands for production of records or official information.
TVA's practice is to provide requested records or official information,
provided all requirements of this part are met and there is no
compelling factor under paragraph (c) of this section that requires the
records or official information to be withheld.
(c) Factors to be considered in determining whether requested
testimony or records or official information must be withheld. The
General Counsel shall consider the following factors, among others, in
deciding whether requested testimony or materials must be withheld:
(1) Whether production is appropriate in light of any relevant
privilege;
(2) Whether production is appropriate under the applicable rules of
discovery or the procedures governing the case or matter in which the
demand arose;
(3) Whether the material requested is relevant to the matter at
issue;
(4) Whether allowing such testimony or production of records would
be necessary to prevent a miscarriage of justice;
(5) Whether disclosure would violate a statute, Executive Order, or
regulation, including, but not limited to, the Privacy Act of 1974, as
amended, 5 U.S.C. 552a;
(6) Whether disclosure would impede or interfere with an ongoing
law enforcement investigation or proceeding, or compromise
constitutional rights or national security interests;
(7) Whether disclosure would improperly reveal trade secrets or
proprietary confidential information without the owner's consent;
(8) Whether disclosure would unduly interfere with the orderly
conduct of TVA's functions;
(9) Whether the records or testimony can be obtained from other
sources;
(10) Whether disclosure would result in TVA appearing to favor one
litigant over another;
(11) Whether the demand or request is within the authority of the
party making it; and
(12) Whether a substantial Government interest is implicated.
(d) Restrictions on testimony or production of records or official
information. When necessary or appropriate, the General Counsel may
impose restrictions or conditions on the production of testimony or
records or official information. These restrictions may include, but
are not limited to:
(1) Limiting the area of testimony;
(2) Requiring that the requester and other parties to the legal
proceeding agree to keep the testimony under seal;
(3) Requiring that the testimony be used or made available only in
the legal proceeding for which it was requested;
(4) Requiring that the parties to the legal proceeding obtain a
protective order or execute a confidentiality agreement to limit access
and any further disclosure of produced records or official information.
(e) Fees for Production. Fees will be charged for production of TVA
records and information. The fees will be the same as those charged by
TVA pursuant to its Freedom of Information Act regulations, 16 CFR
1301.10.
[[Page 60550]]
Sec. 1301.56 Final determination.
The General Counsel makes the final determination whether a demand
for testimony or production of records or official testimony in a legal
proceeding in which TVA is not a party shall be granted. All final
determinations are within the sole discretion of the General Counsel.
The General Counsel will notify the requesting party and, when
necessary, the court or other 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 production of testimony or
records or official information.
Sec. 1301.57 Waiver.
The General Counsel may grant a waiver of any procedure described
by this part where a waiver is considered necessary to promote a
significant interest of TVA or the United States, or for other good
cause.
Maureen H. Dunn,
General Counsel.
[FR Doc. E7-20907 Filed 10-24-07; 8:45 am]
BILLING CODE 8120-08-P
