[Federal Register Volume 70, Number 204 (Monday, October 24, 2005)]
[Proposed Rules]
[Pages 61395-61398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21147]


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EXPORT-IMPORT BANK OF THE UNITED STATES

12 CFR Part 404


Production of Records and Testimony of Personnel of the Export-
Import Bank of the United States in Legal Proceedings

AGENCY: Export-Import Bank of the United States (``Ex-Im Bank'').

ACTION: Proposed rule.

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[[Page 61396]]

SUMMARY: Ex-Im Bank is issuing a proposed regulation that would 
establish policy and prescribe procedures with respect to the testimony 
of Ex-Im Bank personnel, both current and former, and the production of 
agency records, in legal proceedings. The proposed regulation is 
designed to balance concerns such as preserving the time of Ex-Im Bank 
personnel for the conduct of official business against concerns such as 
whether the disclosure of information requested is necessary to prevent 
fraud or injustice.

DATES: Comments due by November 23, 2005.

ADDRESSES: Office of the General Counsel, Export Import Bank of the 
United States, 811 Vermont Ave., NW., Washington, DC 20571.

FOR FURTHER INFORMATION CONTACT: Brian J. Sonfield, Assistant General 
Counsel for Administration, Export Import Bank of the United States, 
Phone: (202) 565-3439/Fax: (202) 565-3586.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 301 of title 5, United States Code, provides that the head 
of an Executive department may prescribe regulations for the custody, 
use and preservation of its records. The Supreme Court has interpreted 
this statute as allowing Federal agencies to promulgate regulations 
under the authority of section 301 establishing procedures governing 
the production of records and testimony by federal agency personnel in 
legal proceedings in which the agency is not a party. United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    Ex-Im Bank frequently receives demands for: (1) Testimony of its 
employees or (2) the production of agency records--in legal proceedings 
to which Ex-Im Bank is not a party. Ex-Im Bank currently does not have 
any regulations or procedures to address this situation.

II. Analysis of Proposed Regulation

    The proposed rule is designed to establish centralized Ex-Im Bank 
policies and procedures to govern the production of agency records and 
testimony regarding information acquired in the course of the 
performance of official duties by current and former Ex-Im Bank 
personnel in legal proceedings before Federal, state, and local 
entities (as specified in the proposed regulation) in which Ex-Im Bank 
(i) Is not a party; (ii) is not represented; (iii) does not have a 
direct and substantial interest; and (iv) is not providing 
representation to an individual or entity that is a party. The proposed 
rule does not cover requests for information that are not part of legal 
proceedings, such as requests for records under the Freedom of 
Information Act, 5 U.S.C. 552.
    The proposed regulation is intended to address Ex-Im Bank's need to 
conserve official personnel resources for the performance of the 
agency's statutory duties while at the same time accommodating 
legitimate requests or demands for official records or testimony to the 
extent possible. The procedures established would also provide 
necessary internal controls for management of Ex-Im Bank personnel on 
official duty and for release of Ex-Im Bank records and information.
    This proposed regulation would not authorize any Ex-Im Bank 
personnel to refuse to comply with the law. Rather, the proposed 
regulation would permit Ex-Im Bank personnel, under certain 
circumstances, to refuse to comply with a party to litigation's demand 
or a court order due to: (1) Incomplete compliance with this proposed 
rule; or (2) a determination by the General Counsel that a challenge 
to, or immediate review of, the demand or order is legally appropriate.
    These procedures would not infringe upon the judiciary or create 
new privileges not previously recognized by law, but would simply make 
uniform a process of responding to each request or demand for the 
production of records or testimony by Ex-Im Bank personnel in private 
controversies. Further, these procedures would not impede Ex-Im Bank 
personnel's access to the courts in relation to legal matters unrelated 
to their official duties or not involving the official records of Ex-Im 
Bank.

III. Matters of Regulatory Procedure

Administrative Procedure Act

    This rulemaking is in compliance with the Administrative Procedure 
Act (5 U.S.C. 553) and allows for a 30-day comment period. Interested 
persons are invited to submit written comments to Ex-Im Bank on this 
proposed regulation, to be received within 30 days of publication of 
the proposed rule. Prior to issuing its final rule, Ex-Im Bank will 
review all comments received and consider any modifications to this 
proposal that appear warranted.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a ``major rule,'' as defined by the Small Business 
Enforcement Fairness Act of 1996. This rule will not result in an 
annual effect on the economy of $100,000,000 or more; a major increase 
in cost or prices; or significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based companies to compete with foreign-based companies 
in domestic and export markets.

Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C., 
chapter 25, subchapter II), this proposed rule will not significantly 
or uniquely affect small governments and will not result in increased 
expenditures by State, local, and tribal governments, or by the private 
sector, of $100 million or more (as adjusted for inflation).

List of Subjects in 12 CFR Part 404

    Administrative practice and procedure, Government employees, 
Information, Records.


    Authority: 5 U.S.C. 552 and 552a.

    Accordingly, for the reasons set forth in the preamble, the Export-
Import Bank of the United States proposes to amend 12 CFR part 404 as 
follows:

PART 404--[AMENDED]

    1. The authority citation for part 404 is revised to read as 
follows:
    Section 404.7 also issued under E.O. 12600, 52 FR 23781, 3 CFR, 
1987 Comp., p. 235.
    Section 404.21 also issued under 5 U.S.C. 552a.
    Note Subpart C also issued under 5 U.S.C. 301, 12 U.S.C. 635.
    2. Subpart C is added to read as follows:

Subpart C--Demands for Testimony of Current and Former Ex-Im Bank 
Personnel and for Production of Ex-Im Bank Records

Sec.
404.24 General provisions.
404.25 Applicability.
404.26 Definitions.
404.27 Demand requirements.
404.28 Notification of General Counsel required.
404.29 Restrictions on testimony and production of records.
404.30 Factors the General Counsel may consider in determining 
whether to authorize testimony and/or the production of records.
404.31 Procedure for declining to testify and/or produce records.
404.32 Procedure in the event a decision concerning a demand is not 
made prior to the time a response to the demand is required.
404.33 Procedure in the event of an adverse ruling.

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404.34 Procedure for demands for testimony or production of 
documents regarding confidential information.
404.35 Procedure for requests for Ex-Im Bank employees to provide 
expert or opinion testimony.
404.36 No private right of action.


Sec.  404.24  General provisions.

    (a) Purpose. This subpart establishes policy, assigns 
responsibilities and prescribes procedures with respect to:
    (1) The production or disclosure of official information or records 
of Ex-Im Bank in all legal proceedings to which Ex-Im Bank is not a 
party;
    (2) Demands for testimony of Ex-Im Bank personnel related to 
information acquired as a result of performance of their official 
duties, or by virtue of their official status, in all legal proceedings 
where Ex-Im Bank is not a party; and
    (3) The offer of expert or opinion testimony by Ex-Im Bank 
personnel regarding matters related to the performance of their 
official duties.
    (b) Policy. Ex-Im Bank seeks to further the following goals in 
enacting this subpart:
    (1) Conservation of agency resources for official business;
    (2) Minimization of agency involvement in controversial issues 
unrelated to its mission;
    (3) Maintenance of the agency's impartiality amongst private 
litigants;
    (4) Protection of confidential and/or sensitive information; and
    (5) Maintenance of the integrity of the agency's deliberative 
processes.


Sec.  404.25  Applicability.

    This subpart applies exclusively to demands for testimony and/or 
production of records issued to Ex-Im Bank personnel, in connection 
with legal proceedings to which Ex-Im Bank is not a party, regarding 
information acquired in the course of the performance of official 
duties or due to their official status. Nothing in this subpart shall 
be construed to waive the sovereign immunity of the United States.
    This subpart shall not apply to the following:
    (a) Demands for testimony and/or production of records pursuant to 
a legal proceeding to which Ex-Im Bank is a party;
    (b) Demands for testimony and/or production of records in those 
instances in which Ex-Im Bank personnel are asked to disclose 
information wholly unrelated to their official duties; and
    (c) Congressional demands and requests for testimony or records.


Sec.  404.26  Definitions.

    For purposes of this subpart, the following definitions shall 
apply--
    Demand--includes an order, subpoena, or other compulsory process 
issued by a party in litigation or a court of competent jurisdiction, 
requiring the production or release of Ex-Im Bank information or 
records, or requiring the testimony of Ex-Im Bank personnel.
    Ex-Im Bank personnel--includes any current or former officer or 
employee of Ex-Im Bank, including all individuals who have been 
appointed by, or subject to, the official supervision, jurisdiction, or 
control of any Ex-Im Bank employees. This definition encompasses all 
individuals hired through contractual agreements with Ex-Im Bank, such 
as: consultants, contractors, sub-contractors, and their employees.
    Legal proceeding--a case or controversy pending before any federal, 
state, or local court, including a grand jury proceeding; a proceeding 
before a federal, state, or local administrative judge, board, or other 
similar body with adjudicative powers; or a legislative proceeding 
before a state or local legislative body.
    Records--all documentary materials that Ex-Im Bank creates or 
receives in connection with the transaction of official business, 
including any materials classified as ``Federal records'' under 44 
U.S.C. 3301 and its implementing regulations.
    Testimony--written or oral statements, including, but not limited 
to, depositions, answers to interrogatories, affidavits, declarations, 
and any other statements made in a legal proceeding, including any 
expert or opinion testimony.


Sec.  404.27  Demand requirements.

    A party's demand for testimony and/or production of records by Ex-
Im Bank personnel regarding information acquired in the course of their 
performance of official duties or due to their official status shall be 
set forth in, or accompanied by, a signed affidavit or other written 
statement. Such affidavit or written statement must be submitted at 
least 30 days prior to the date such testimony and/or production of 
records is requested to be taken and/or produced. A copy of the 
affidavit or written statement shall be served on the other parties to 
the legal proceeding. The affidavit or written statement must:
    (a) Be addressed to the Export Import Bank of the United States, 
Office of the General Counsel, 811 Vermont Ave., NW., Washington, DC 
20571;
    (b) State the nature of the legal proceeding, including any docket 
number, title of the case, and the name of the administrative or 
adjudicative body before which the proceedings are to be heard;
    (c) State the nature of the testimony or records sought;
    (d) State the relevance of the information sought to the legal 
proceedings;
    (e) State why such information can only be obtained through 
testimony or production of records by Ex-Im Bank personnel; and
    (f) Comply with all procedures governing valid service of process.


Sec.  404.28  Notification of General Counsel required.

    Ex-Im Bank personnel receiving a demand for testimony and/or 
production of records regarding information acquired in the course of 
their performance of official duties, or due to their official status, 
shall immediately notify the General Counsel of Ex-Im Bank (``General 
Counsel'') upon receipt of such demand. The General Counsel maintains 
the exclusive authority to waive the requirements of any or all 
sections of this subpart and reserves the right to delegate his or her 
authority under this subpart to other appropriate Ex-Im Bank personnel.


Sec.  404.29  Restrictions on testimony and production of records.

    Ex-Im Bank personnel may not provide testimony and/or produce 
records regarding information acquired in the course of their 
performance of official duties, or due to their official status, in 
connection with any legal proceeding to which this subpart applies, 
without authorization by the General Counsel. Such authorization must 
be in writing, unless the General Counsel determines that circumstances 
warrant an oral authorization, and such oral authorization is 
subsequently documented.


Sec.  404.30  Factors General Counsel may consider in determining 
whether to authorize testimony and/or the production of records.

    In determining whether to authorize Ex-Im Bank personnel to provide 
testimony and/or produce records regarding information acquired in the 
course of their performance of official duties, or due to their 
official status, the General Counsel may consider factors including, 
but not limited to, the following:
    (a) Efficiency--the conservation of the time and resources of Ex-Im 
Bank personnel for the conduct of official business;
    (b) Undue burden--whether the demand creates an undue burden upon 
Ex-Im Bank or is otherwise inappropriate under any applicable 
administrative or court rules;

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    (c) Appearance of bias--whether the testimony and/or production of 
records could result in the public perception that Ex-Im Bank is 
favoring one party over another, or advocating the position of a party 
to the proceeding;
    (d) Furtherance of agency policy--whether the testimony and/or 
production of records is consistent with the policy and mission of the 
Ex-Im Bank;
    (e) Prevention of fraud or injustice--whether the disclosure of the 
information requested is necessary to prevent the perpetration of fraud 
or injustice;
    (f) Relevance to litigation--whether the testimony and/or 
production of records sought is relevant to the subject litigation;
    (g) Necessity--whether the testimony and/or production of records, 
including a release of such in camera, is appropriate or necessary as 
determined by either the procedural rules governing the legal 
proceeding, or according to the relevant laws concerning privilege;
    (h) Availability from another source--whether the information 
sought through testimony or production of records is available from 
another source;
    (i) Violations of laws or regulations--whether the testimony and/or 
production of records would violate a statute, regulation, executive 
order, or other official directive;
    (j) Classified information--whether the testimony and/or production 
of records would improperly reveal information classified pursuant to 
applicable statute or Executive Order; and
    (k) Compromise of rights and interests--whether the testimony and/
or production of records would compromise any of the following: law 
enforcement interests, constitutional rights, national security 
interests,, foreign policy interests, or the confidentiality of 
commercial and/or financial information.


Sec.  404.31  Procedure for declining to testify and/or produce 
records.

    Ex-Im Bank personnel receiving a demand to provide testimony and/or 
produce records regarding information acquired in the course of their 
performance of official duties, or due to their official status, and 
who have not received written authorization from the General Counsel to 
provide such information, shall:
    (a) Respectfully decline to answer or appear for examination on the 
grounds that such testimony is forbidden by this subpart;
    (b) Request the opportunity to consult with the General Counsel;
    (c) Explain that only upon consultation may they be granted 
approval to provide such testimony;
    (d) Explain that providing such testimony or records absent 
approval may subject the individual to criminal liability under 18 
U.S.C. 641, as well as other applicable laws, and other disciplinary 
action; and
    (e) Request a stay of the request or demand pending a determination 
by the General Counsel.


Sec.  404.32  Procedure in the event a decision concerning a demand is 
not made prior to the time a response to the demand is required.

    If response to a demand is required before a determination has been 
rendered by the General Counsel, the U.S. Attorney or such other 
attorney as may be designated for the purpose will appear with the Ex-
Im Bank personnel upon whom the demand has been made, and will furnish 
the court or other authority with a copy of the regulations contained 
in this subpart and inform the court or other authority that the demand 
has been or is being, as the case may be, referred for prompt 
consideration of the General Counsel. The court or other authority 
shall be requested respectfully to stay the demand pending 
determination by the General Counsel.


Sec.  404.33  Procedure in the event of an adverse ruling.

    If the court of other authority declines to stay the effect of the 
demand in response to a request made in accordance with Sec.  404.32 
pending a determination by the General Counsel, or if the court or 
other authority rules that the demand must be complied with 
irrespective of the instructions from the General Counsel not to 
produce the material or disclose the information sought, the Ex-Im Bank 
personnel upon whom the demand has been made shall respectfully decline 
to comply with the demand (United States ex rel. Touhy v. Ragen, 340 
U.S. 462).


Sec.  404.34  Procedure for demands for testimony or production of 
documents regarding confidential information.

    In addition to compliance with the requirements of this subpart, 
demands to provide testimony and/or produce records that concern 
information protected by the Privacy Act, 5 U.S.C. 552a, or any other 
authority mandating confidentiality of certain classes of records or 
information, must also satisfy the requirements for disclosure imposed 
by such authority before records may be produced or testimony given.


Sec.  404.35  Procedures for requests for Ex-Im Bank employees to 
provide expert or opinion testimony.

    No Ex-Im Bank personnel may, unless specifically authorized by the 
General Counsel, testify in any legal proceeding as an expert or 
opinion witness as to any matter related to his or her duties or the 
functions of the Ex-Im Bank, including the meaning of Ex-Im Bank 
documents. Any demand for expert or opinion testimony shall comply with 
the policies and procedures outlined in this subpart.


Sec.  404.36  No private right of action.

    Nothing in this subpart shall be construed as creating any right, 
substantive or procedural, enforceable at law or equity by a party 
against Ex-Im Bank or the United States.

    Dated: October 18, 2005.
Howard A. Schweitzer,
General Counsel (Acting), Export Import Bank of the United States.
[FR Doc. 05-21147 Filed 10-21-05; 8:45 am]
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