This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

61395 

Vol. 70, No. 204 

Monday, October 24, 2005 

DEPARTMENT OF ENERGY 

Office of Energy Efficiency and 

Renewable Energy 

10 CFR Part 430 

[Docket No. EE–PS–2006–001] 

Energy Conservation Program for 

Consumer Products and Commercial 

and Industrial Equipment 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Notice of public meeting and 

availability. 

SUMMARY: The Department of Energy 

(DOE or Department) Building 

Technologies Program will hold a 

public meeting to discuss appliance 

standards scheduling issues. The 

Department is interested in receiving 

comments on the Department’s desire to 

bring all appliance rulemaking activities 

into compliance with the applicable 

statutory requirements. The Department 

will finalize its standards scheduling 

plan after consideration of comments 

received during and following the 

public meeting. 

DATES: The Department will hold a 

public meeting on Tuesday, November 

15, 2005, from 9 a.m. to 4 p.m. Please 

submit written comments by Thursday, 

December 15, 2005. 

ADDRESSES: The meeting will be held at 

the Holiday Inn Capitol, 550 C Street, 

SW., Washington, DC 20024. 

The DOE Web site at http:// 

www.eere.energy.gov/buildings/ 

appliance_standards/ 

2006_schedule_setting contains 

background information, including: The 

list of rulemaking activities; summary 

data sheets for affected products; 

analysis spreadsheets; and other 

information. 

The Department welcomes your 

participation at the meeting as well as 

written comments. Written comments, 

data, and information regarding 

scheduling issues will be accepted no 

later than the date provided in the DATES

section. 

You may submit comments, identified 

for the 2006 Appliance Standards 

Schedule Setting, by any of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: 

schedulesetting2006@ee.doe.gov. 

Include 2006 Appliance Standards 

Schedule Setting in the subject line of 

the message. 

• Mail: Ms. Brenda Edwards-Jones, 

U.S. Department of Energy, Building 

Technologies Program, Mailstop EE–2J, 

2006 Appliance Standards Schedule 

Setting, 1000 Independence Avenue, 

SW., Washington, DC 20585–0121. 

Telephone: (202) 586–2945. Please 

submit one signed original. 

• Hand delivery/Courier: Ms. Brenda 

Edwards-Jones, U.S. Department of 

Energy, Building Technologies Program, 

Mailstop EE–2J, 2006 Appliance 

Standards Schedule Setting, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121. 

Instructions: All submissions received 

must include the agency name and 

reference the 2006 Appliance Standards 

Schedule Setting. Submit electronic 

comments in WordPerfect, Microsoft 

Word, PDF, or text (ASCII) format file; 

avoid the use of special characters or 

any form of encryption; and, wherever 

possible, include the electronic 

signature of the author. If you don’t 

include an electronic signature, you 

must authenticate comments by 

thereafter submitting the signed original 

paper document. No telefacsimiles 

(telefaxes) will be accepted. 

Docket: For access to the docket to 

read background documents or 

comments received, go to the U.S. 

Department of Energy, Forrestal 

Building, Room 1J–018 Resources Room 

of the Building Technologies Program), 

1000 Independence Avenue, SW., 

Washington, DC, (202) 586–9127, 

between 9 a.m. and 4 p.m., Monday 

through Friday, except Federal holidays. 

Please call Ms. Brenda Edwards-Jones at 

the above telephone number for 

additional information regarding 

visiting the Resource Room. 

FOR FURTHER INFORMATION CONTACT: 

Linda Graves, Esq., U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, EE–2J, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121, (202) 586– 

1851, e-mail: Linda.Graves@ee.doe.gov, 

or Francine Pinto, Esq., or Thomas 

DePriest, Esq., U.S. Department of 

Energy, Office of General Counsel, GC– 

72, 1000 Independence Avenue, SW., 

Washington, DC 20585, (202) 586–9507, 

e-mail: Francine.Pinto@hq.doe.gov, or 

Thomas.DePriest@hq.doe.gov, 

respectively. 

SUPPLEMENTARY INFORMATION: The 

Department invites your participation in 

a public meeting to address how the 

Department will develop and 

implement a full compliance scheduling 

plan for appliance standards rulemaking 

activities. The Department particularly 

welcomes your perspective and 

assistance with respect to scheduling 

activities, given the enormous, 

competing demands on its resources. 

The meeting will be conducted in an 

informal, conference style. There will 

not be any discussion of proprietary 

information, costs or prices, market 

shares, or other commercial matters 

regulated by the U.S. antitrust laws. 

After the meeting and expiration of 

the period for submitting written 

statements, the Department will 

consider the comments received. 

If you would like to participate in the 

meeting or be added to the DOE mailing 

list to receive future notices and 

information regarding the energy 

conservation program for consumer 

products and commercial and industrial 

equipment, please contact Ms. Brenda 

Edwards-Jones at (202) 586–2945. 

Issued in Washington, DC, on October 19, 

2005. 

Douglas L. Faulkner, 

Acting Assistant Secretary, Energy Efficiency 

and Renewable Energy. 

[FR Doc. 05–21248 Filed 10–20–05; 9:07 am] 

BILLING CODE 6450–01–P 

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. 

61396 Federal Register / Vol. 70, No. 204 / Monday, October 24, 2005 / Proposed Rules 

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 foreignbased 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. 

Federal Register / Vol. 70, No. 204 / Monday, October 24, 2005 / Proposed Rules 61397 

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. 

§ 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. 

§ 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. 

§ 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, subcontractors, 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. 

§ 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. 

§ 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. 

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; 

61398 Federal Register / Vol. 70, No. 204 / Monday, October 24, 2005 / Proposed Rules 

(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. 

§ 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. 

§ 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 of 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. 

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] 

BILLING CODE 6690—01—M 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2005–22055; Directorate 

Identifier 2005–NE–31–AD] 

RIN 2120–AA64 

Airworthiness Directives; General 

Electric Company Model CF6–80C2D1F 

Turbofan Engines 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The FAA proposes to adopt a 

new airworthiness directive (AD) for 

General Electric Company Model CF6–

80C2D1F turbofan engines. This 

proposed AD would require modifying 

the latching system of the fan reverser. 

This proposed AD results from 13 

reports of released thrust reverser 

hardware. We are proposing this AD to 

prevent release of the thrust reverser 

cascade on landing, which could result 

in runway debris and a possible hazard 

to other aircraft. 

DATES: We must receive any comments 

on this proposed AD by November 23, 

2005. 

ADDRESSES: Use one of the following 

addresses to comment on this proposed 

AD.