Export-Import Bank of the United States ("Ex-Im Bank").
Ex-Im Bank is adopting a regulation that establishes policy and prescribes procedures with respect to the testimony of Ex-Im Bank personnel, both current and former, and the production of agency records, in legal proceedings. The regulation is designed to balance concerns such as preserving the time of Ex-Im Bank personnel for the conduct of official business against concerns such as whether the disclosure of information requested is necessary to prevent fraud or injustice. A proposed rule on this subject was published in the Federal Register on October 24, 2005 (70 FR 61395). Ex-Im Bank did not receive any comments on the proposed rule. Ex-Im Bank is accordingly adopting the proposed provisions as a final rule without further change.
Office of the General Counsel, Export-Import Bank of the United States, 811 Vermont Ave., NW., Washington, DC 20571.
Brian J. Sonfield, Assistant General Counsel for Administration, Export-Import Bank of the United States, Phone: (202) 565-3439/Fax: (202) 565-3586.
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.
The final rule is designed to establish centralized Ex-Im Bank policies and procedures to govern the production of agency records and testimony regarding information acquired in the course of the performance of official duties by current and former Ex-Im Bank personnel in legal proceedings before Federal, state, and local entities (as specified in the regulation) in which Ex-Im Bank: (i) Is not a party; (ii) is not represented; (iii) does not have a direct and substantial interest; and (iv) is not providing representation to an individual or entity that is a party. The rule does not cover requests for information that are not part of legal proceedings, such as requests for records under the Freedom of Information Act, 5 U.S.C. 552.
The regulation is intended to address Ex-Im Bank's need to conserve official personnel resources for the performance of the agency's statutory duties while at the same time accommodating legitimate requests or demands for official records or testimony to the extent possible. The procedures established will also provide necessary internal controls for management of Ex-Im Bank personnel on official duty and for release of Ex-Im Bank records and information.
This regulation will not authorize any Ex-Im Bank personnel to refuse to comply with the law. Rather, the regulation will permit Ex-Im Bank personnel, under certain circumstances, to refuse to comply with a party to litigation's demand or a court order due to: (1) Incomplete compliance with this rule; or (2) a determination by the General Counsel that a challenge to, or immediate review of, the demand or order is legally appropriate.
These procedures will not infringe upon the judiciary or create new privileges not previously recognized by law but will simply make uniform a process of responding to each request or demand for the production of records or testimony by Ex-Im Bank personnel in private controversies. Further, these procedures will not impede Ex-Im Bank personnel's access to the courts in relation to legal matters unrelated to their official duties or not involving the official records of Ex-Im Bank.
In compliance with the Administrative Procedure Act (5 U.S.C. 553), Ex-Im Bank Published a proposed rule on this subject in the Federal Register . This final rule will become effective as noted above.
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.
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), this rule will not significantly or uniquely affect small governments and will not result in increased expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more (as adjusted for inflation).
Administrative practice and procedure, Government employees, Information, Records.
5 U.S.C. 552 and 552a.
Section 404.7 also issued under E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.
Section 404.21 also issued under 5 U.S.C. 552a note.
Subpart C also issued under 5 U.S.C. 301, 12 U.S.C. 635.
Sec. 404.24 General provisions.404.25 Applicability.404.26 Definitions.404.27 Demand requirements.404.28 Notification of General Counsel required.404.29 Restrictions on testimony and production of records.404.30 Factors General Counsel may consider in determining whether to authorize testimony and/or the production of records.404.31 Procedure for declining to testify and/or produce records.404.32 Procedure in the event a decision concerning a demand is not made prior to the time a response to the demand is required.404.33 Procedure in the event of an adverse ruling.404.34 Procedure for demands for testimony or production of documents regarding confidential information.404.35 Procedure for requests for Ex-Im Bank employees to provide expert or opinion testimony.404.36 No private right of action.
(3) The offer of expert or opinion testimony by Ex-Im Bank personnel regarding matters related to the performance of their official duties.
(5) Maintenance of the integrity of the agency's deliberative processes.
(c) Congressional demands and requests for testimony or records.
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.
(f) Comply with all procedures governing valid service of process.
§ 404.28 Notification of General Counsel required.
Ex-Im Bank personnel receiving a demand for testimony and/or production of records regarding information acquired in the course of their performance of official duties, or due to their official status, shall immediately notify the General Counsel of Ex-Im Bank ("General Counsel") upon receipt of such demand. The General Counsel maintains the exclusive authority to waive the requirements of any or all sections of this subpart and reserves the right to delegate his or her authority under this subpart to other appropriate Ex-Im Bank personnel.
§ 404.29 Restrictions on testimony and production of records.
Ex-Im Bank personnel may not provide testimony and/or produce records regarding information acquired in the course of their performance of official duties, or due to their official status, in connection with any legal proceeding to which this subpart applies, without authorization by the General Counsel. Such authorization must be in writing, unless the General Counsel determines that circumstances warrant an oral authorization, and such oral authorization is subsequently documented.
§ 404.30 Factors General Counsel may consider in determining whether to authorize testimony and/or the production of records.
(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.
§ 404.31 Procedure for declining to testify and/or produce records.
(e) Request a stay of the request or demand pending a determination by the General Counsel.
§ 404.32 Procedure in the event a decision concerning a demand is not made prior to the time a response to the demand is required.
If response to a demand is required before a determination has been rendered by the General Counsel, the U.S. Attorney or such other attorney as may be designated for the purpose will appear with the Ex-Im Bank personnel upon whom the demand has been made, and will furnish the court or other authority with a copy of the regulations contained in this subpart and inform the court or other authority that the demand has been or is being, as the case may be, referred for prompt consideration of the General Counsel. The court or other authority shall be requested respectfully to stay the demand pending determination by the General Counsel.
§ 404.33 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 404.32 pending a determination by the General Counsel, or if the court or other authority rules that the demand must be complied with irrespective of the instructions from the General Counsel not to produce the material or disclose the information sought, the Ex-Im Bank personnel upon whom the demand has been made shall respectfully decline to comply with the demand ( United States ex rel. Touhy v. Ragen, 340 U.S. 462).
§ 404.34 Procedure for demands for testimony or production of documents regarding confidential information.
In addition to compliance with the requirements of this subpart, demands to provide testimony and/or produce records that concern information protected by the Privacy Act, 5 U.S.C. 552a, or any other authority mandating confidentiality of certain classes of records or information, must also satisfy the requirements for disclosure imposed by such authority before records may be produced or testimony given.
§ 404.35 Procedures for requests for Ex-Im Bank employees to provide expert or opinion testimony.
No Ex-Im Bank personnel may, unless specifically authorized by the General Counsel, testify in any legal proceeding as an expert or opinion witness as to any matter related to his or her duties or the functions of the Ex-Im Bank, including the meaning of Ex-Im Bank documents. Any demand for expert or opinion testimony shall comply with the policies and procedures outlined in this subpart.
§ 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.
General Counsel (Acting), Export-Import Bank of the United States.