[Federal Register Volume 72, Number 206 (Thursday, October 25, 2007)]
[Rules and Regulations]
[Pages 60547-60550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20907]


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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.

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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.

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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]
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