[Federal Register Volume 72, Number 76 (Friday, April 20, 2007)]
[Rules and Regulations]
[Pages 19798-19801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7559]


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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: Final rule.

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SUMMARY: The Broadcasting Board of Governors (BBG) is publishing as a 
final rule a regulation governing access to BBG information and records 
in connection with legal proceedings in which neither the United States 
nor the BBG is a party. The proposed rule was published for comment in 
72 FR 10954 dated March 12, 2007. The BBG received no responses to the 
proposed rule. The final rule and corresponding regulation establishes 
guidelines for use in determining whether BBG employees are permitted 
to testify or to provide records relating to their official duties and 
procedures that requesters must follow when making demands on, or 
requests to, a BBG employee for official documents or to provide 
testimony.

DATES: The effective date of the regulation is April 23, 2007.

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: Briefly, the final rule prohibits 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 
final 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 final 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. The final 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 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.
    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 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.


0
For the reasons stated in the preamble, the Broadcasting Board of 
Governors amends 22 CFR, Chapter V, by adding part 504, 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.

[[Page 19799]]

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


Sec.  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, 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

[[Page 19800]]

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) 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 an 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 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 an 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

[[Page 19801]]

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 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: April 16, 2007.
Carol F. Baker,
Director, Office of Administration.
[FR Doc. E7-7559 Filed 4-19-07; 8:45 am]
BILLING CODE 8610-01-P