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


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BROADCASTING BOARD OF GOVERNORS

22 CFR Part 504


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

AGENCY: Broadcasting Board of Governors.

ACTION: Proposed Rule; Comment Request.

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

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

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

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

SUPPLEMENTARY INFORMATION: 

Background

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

[[Page 10955]]

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

List of Subjects in 22 CFR Part 504

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

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

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

    Authority:  22 U.S.C. 6204.

Subpart A--General Provisions


504.1  Scope and purpose.

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


Sec.  504.2  Applicability.

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

[[Page 10956]]

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


Sec.  504. 3  Definitions.

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

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


Sec.  504.4  General prohibition.

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


Sec.  504.5  Factors the BBG will consider.

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


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

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

[[Page 10957]]

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


Sec.  504.7  Service of requests or demands.

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


Sec.  504.8  Processing requests or demands.

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


Sec.  504.9  Final determinations.

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


Sec.  504.10  Restrictions that apply to testimony.

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


Sec.  504.11  Restrictions that apply to released records.

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


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

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


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

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

Subpart C--Schedule of Fees


Sec.  504.14  Fees.

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

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

Subpart D--Penalties


Sec.  504.15  Penalties.

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

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