81 FR 65309 - Production or Disclosure of Records, Information and Employee Testimony in Legal Proceedings
OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE Federal Register Volume 81, Issue 184 (September 22, 2016)
Federal Register Volume 81, Issue 184 (September 22, 2016)
| Page Range | 65309-65313 | |
| FR Document | 2016-22864 |
[Federal Register Volume 81, Number 184 (Thursday, September 22, 2016)] [Proposed Rules] [Pages 65309-65313] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-22864] ======================================================================= ----------------------------------------------------------------------- OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE 15 CFR Part 2004 [Docket Number USTR-2016-0016] RIN 0350-AA10 Production or Disclosure of Records, Information and Employee Testimony in Legal Proceedings AGENCY: Office of the United States Trade Representative. ACTION: Proposed rule with request for comments. ----------------------------------------------------------------------- SUMMARY: The Office of the United States Trade Representative (USTR) is renaming and reorganizing part 2004 to include all of the rules governing disclosure of records and information by USTR. Part 2004 will include four subparts--subpart A will contain definitions used throughout part 2004, subpart B will implement the Freedom of Information Act, subpart C will implement the Privacy Act of 1974, and subpart D will govern how USTR responds to official demands and informal requests for records, information or employee testimony in connection with legal proceedings in which neither the United States nor USTR is a party. This proposed rule [[Page 65310]] would establish subpart A, which contains definitions used throughout part 2004, and subpart D, which includes the requirements and procedures for demanding or requesting parties to submit demands or requests, and factors for USTR to consider in determining whether USTR employees will provide records, information or testimony relating to their official duties. DATES: We must receive your written comments on or before November 21, 2016. ADDRESSES: You should submit written comments through the Federal eRulemaking Portal: http://www.regulations.gov. The docket number for this rulemaking is USTR-2016-0016. USTR invites comments on all aspects of the proposed rule, and will revise the language as appropriate after taking all timely comments into consideration. Copies of all comments will be available for public viewing at www.regulations.gov upon completion of processing. You can view a submission by entering the docket number USTR-2016-0016 in the search field at http://www.regulations.gov. We will post comments without change and will include any personal information you provide, such as your name, mailing address, email address, and telephone number. FOR FURTHER INFORMATION CONTACT: Janice Kaye, Monique Ricker or Melissa Keppel, Office of General Counsel, United States Trade Representative, Anacostia Naval Annex, Building 410/Door 123, 250 Murray Lane SW., Washington, DC 20509, [email protected]; [email protected]; [email protected]; 202-395-3150. SUPPLEMENTARY INFORMATION: I. Background Federal agencies often receive formal demands (including subpoenas) or informal requests to produce records, information or testimony in judicial, legislative or administrative proceedings in which those agencies or the United States is not a named party. Many federal agencies have issued regulations to address the submission, evaluation and processing of these demands or requests. They have done so because responding to these demands or requests can be burdensome, may disrupt an agency employee's work schedule, may involve the agency in issues unrelated to its responsibilities, may divert agency resources from accomplishing mission critical functions, and may impede the agency's accomplishment of its mission and goals. Standard rules alleviate these difficulties by ensuring timely notice and centralized, objective 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), holding that agencies may issue rules governing record production and employee testimony. These rules are commonly referred to as ``Touhy rules.'' The proposed rule will establish a USTR Touhy rule that governs the process we use to authorize or deny such demands. It prohibits USTR employees from producing records, information or testimony in response to demands or requests, unless the demands or requests comply with the rule, and USTR grants permission for the production. Compliance with the rule is necessary, but not sufficient, for production to occur. The rule identifies the information that demanding or requesting parties must provide and the factors that USTR may consider when evaluating demands or requests. We are renaming and reorganizing 15 CFR part 2004, which will include all of the rules governing disclosure of records and information by USTR. Part 2004 will include four subparts--subpart A will contain definitions used throughout part 2004, subpart B will implement the Freedom of Information Act, 5 U.S.C. 552, subpart C will implement the Privacy Act of 1974, 5 U.S.C. 552a, and subpart D will establish the USTR Touhy rule. II. Section-by-Section Analysis Subpart A: Definitions Section 2004.0--Definitions: This section sets forth definitions of select terms that are used throughout Part 2004. Subpart D: Touhy Rule Section 2004.30--Purpose and scope: This section describes the proposed rule's scope, which includes internal agency operations. It also sets forth the rule's purpose, which is to specify the manner in which, and standards by which, demands or requests for records, information or testimony must be submitted, evaluated and processed. Section 2004.31--Definitions: This section defines terms relevant to this subpart. Section 2004.32--Production prohibited unless approved: This section bars producing USTR records, information or testimony in response to a demand or request without proper written authorization. Section 2004.33--Factors the General Counsel May Consider: This section sets forth factors that the USTR General Counsel may consider when evaluating demands or requests. Section 2004.34--Submitting demands and requests: This section describes the manner in which demands or requests for USTR records, information or testimony must be submitted. It prescribes the information that must be included in the demand or request and explains limitations on the scope of production or testimony. It also explains the consequences of failing to meet requirements in this subpart and the limited instances in which we may waive them. Section 2004.35--Processing demands and requests: This section describes how we will process demands or requests and establishes deadlines. Section 2004.36--Restrictions that apply to testimony: This section authorizes the imposition of conditions on USTR employee testimony. Section 2004.37--Restrictions that apply to released records and information: This section authorizes the imposition of conditions on production of USTR records or information. Section 2004.38--In the event of an adverse ruling: This section directs persons in possession of USTR information to decline to comply with a court order that conflicts with a USTR determination. It establishes an administrative mechanism by which parties aggrieved by a USTR determination about a demand or request may seek reconsideration of that determination. This section also establishes a petition for USTR reconsideration as a prerequisite to judicial review. Section 2004.39--Fees: This section describes USTR's entitlement to fees arising from the production of requested records, information or testimony. III. Regulatory Flexibility Act USTR has considered the impact of the proposed rule and determined that if adopted as a final rule it is not likely to have a significant economic impact on a substantial number of small business entities because it is applicable only to USTR's internal operations and legal obligations. See 5 U.S.C. 601 et seq. IV. Paperwork Reduction Act The proposed rule does not contain any information collection requirement that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). List of Subjects in 15 CFR Part 2004 Administrative practice and procedure, Courts, Disclosure, [[Page 65311]] Exemptions, Freedom of information, Government employees, Privacy, Records, Subpoenas, Testimony. 0 For the reasons stated in the preamble, the Office of the United States Trade Representative is proposing to revise part 2004 of chapter XX of title 15 of the Code of Federal Regulations to read as follows: PART 2004--DISCLOSURE OF RECORDS AND INFORMATION Subpart A--Definitions Sec. 2004.0 Definitions. Subpart B--Freedom of Information Act Policies and Procedures 2004.1 through 2004.9 [Reserved] Subpart C--Privacy Act Policies and Procedures 2004.10 through 2004.29 [Reserved] Subpart D--Production or Disclosure of Records, Information and Employee Testimony in Legal Proceedings 2004.30 Purpose and scope. 2004.31 Definitions. 2004.32 Production prohibited unless approved. 2004.33 Factors the General Counsel may consider. 2004.34 Submitting demands and requests. 2004.35 Processing demands and requests. 2004.36 Restrictions that apply to testimony. 2004.37 Restrictions that apply to released records or information. 2004.38 In the event of an adverse ruling. 2004.39 Fees. Subpart A--Definitions Authority: 19 U.S.C. 2171(e)(3). Sec. 2004.0 Definitions. For purposes of this part: Days, unless otherwise indicated, means working days, and does not include Saturdays, Sundays, and legal public holidays. If the last day of a specified period falls on a Saturday, Sunday, or legal public holiday, the period will be extended until the next working day. FOIA means the Freedom of Information Act, as amended, 5 U.S.C. 552. Privacy Act means the Privacy Act of 1974, as amended, 5 U.S.C. 552a. USTR means the Office of the United States Trade Representative. Subpart D--Production or Disclosure of USTR Records, Information and Employee Testimony in Legal Proceedings Authority: 5 U.S.C. 301; 19 U.S.C. 2171(e)(3). Sec. 2004.30 Purpose and scope. (a) Why are we issuing this rule? This subpart establishes the procedures USTR will follow when any federal, state or local government court or other authority seeks production of USTR records or information, or testimony relating to an employee's official duties, in the context of a legal proceeding. Parties seeking records, information or testimony must comply with these requirements when submitting demands or requests to USTR. (b) What does this rule cover? This subpart applies to demands or requests for records, information or testimony in legal proceedings in which USTR is not a named party. It does not apply to: Demands or requests for a USTR employee to testify as to facts or events that are unrelated to his or her official duties or to USTR's functions; FOIA or Privacy Act requests; or Congressional demands or requests for records or testimony. (c) Not a waiver. (1) By providing these policies and procedures, USTR does not waive the sovereign immunity of the United States. (2) The production of records, information or testimony pursuant to this subpart does not constitute a waiver by USTR of any privilege. (d) This subpart provides guidance for USTR's internal operations and does not create any right or benefit, substantive or procedural, that a party may rely upon in any legal proceeding against USTR or the United States. Sec. 2004.31 Definitions. For purposes of this subpart: Demand means a request, order, subpoena or other demand of a federal, state or local court or other authority for records, information or employee testimony in a legal proceeding in which USTR is not a named party. Employee means any current or former employee or officer of USTR, including contractors, detailees, interns, and any individual who has served or is serving in any consulting or advisory capacity to USTR, whether formal or informal. General Counsel means USTR's General Counsel or a person within USTR's Office of General Counsel to whom the General Counsel has delegated authority to act under this subpart. Legal proceeding means any matter, including all phases of litigation, 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. Records or Information means all documents and materials that are USTR agency records under the FOIA; any original or copy of a record or other property, no matter what media, contained in USTR files; and any other information or materials acquired by a USTR employee in the performance of his or her official duties or because of his or her official status. Request means any informal request, by whatever method, in connection with a legal proceeding, seeking production of records, information or testimony that has not been ordered by a court or other competent authority. Testimony means any written or oral statements, including depositions, answers to interrogatories, affidavits, declarations and recorded interviews made by an individual about USTR information in connection with a legal proceeding. Sec. 2004.32 Production prohibited unless approved. (a) Approval required. An employee or any other person or entity in possession of records or information may not produce those records or information, or provide any testimony related to the records or information, in response to any demand or request without prior written approval from the General Counsel. (b) Penalties. Any person or entity that fails to comply with this subpart may be subject to the penalties provided in 18 U.S.C. 641 and other applicable laws. A current employee also may be subject to administrative or disciplinary proceedings. Sec. 2004.33 Factors the General Counsel may consider. The General Counsel may grant an employee permission to testify regarding USTR matters and to produce records and information in response to a demand or request. Among the relevant factors the General Counsel may consider in making this determination are whether: (a) The requested records, information or testimony are reasonable in scope, relevant and material to the pending action, and unavailable from other sources such as a non-USTR employee, or a USTR employee other than the employee named. (b) Production of the records, information or testimony might result in USTR appearing to favor one litigant over another. (c) USTR has an interest in the decision that may be rendered in the legal proceeding. (d) Approving the demand or request would assist or hinder USTR in [[Page 65312]] performing statutory duties or unduly burden USTR resources. (e) The demand or request is unduly burdensome or otherwise inappropriate under the rules of discovery or procedure governing the case or matter in which the demand or request arose. (f) Production of the records, information or testimony might violate or be inconsistent with a statute, Executive Order, regulation or other legal authority. (g) Disclosure, including release in camera, is appropriate or necessary under the relevant substantive law concerning privilege. (h) Disclosure, except when in camera and necessary to assert a claim of privilege, would reveal information properly classified or other matters exempt from unrestricted disclosure. (i) Disclosure would interfere with ongoing enforcement proceedings, compromise constitutional rights, reveal the identity of an intelligence source or confidential informant, or disclose trade secrets or similarly confidential commercial or financial information. (j) Any other appropriate factor. Sec. 2004.34 Submitting demands and requests. (a) Where do I send a demand or request? To make a demand or request for records, information or testimony you should write directly to the General Counsel. Heightened security delays mail delivery. To avoid mail delivery delays, we strongly suggest that you email your demand or request to [email protected]. The mailing address is General Counsel, Office of the United States Trade Representative, Anacostia Naval Annex, Building 410/Door 123, 250 Murray Lane SW., Washington, DC 20509. To ensure delivery, you should mark the subject line of your email or your envelope and letter ``Touhy Request.'' (b) When should I submit it? You should submit your demand or request at least 45 calendar days in advance of the date on which the records, information or testimony is needed. (c) What must be included? A demand or request must include an affidavit or, if that is not feasible, a clear and concise statement by the party or his or her counsel summarizing the legal and factual issues in the proceeding and explaining how the records, information or testimony will contribute substantially to the resolution of one or more specifically identified issues. A demand or request for testimony also must include an estimate of the amount of time that the employee will need to devote to the process of testifying (including anticipated travel time and anticipated duration of round trip travel), plus a showing that no document or the testimony of non-USTR persons, including retained experts, could suffice in lieu of the employee's testimony. (d) Limits. The General Counsel will limit any authorization for testimony to the scope of the demand, and the scope of permissible production of records and information to that set forth in the written authorization. (e) Failure to meet requirements and exceptions. USTR may oppose any demand or request that does not meet the requirements set forth in this subpart. The General Counsel may grant exceptions to the requirements in this subpart upon a showing of compelling need, to promote a significant interest of USTR or the United States, or for other good cause. Sec. 2004.35 Processing demands and requests. (a) The General Counsel will review a request or demand to produce or disclose records, information or testimony and determine whether, or under what conditions, to authorize the employee to testify regarding USTR matters or produce records and information. The General Counsel will notify the requester of the final determination, the reasons for the grant or denial of the demand or request, and any conditions on disclosure. (b) When necessary, the General Counsel will coordinate with the U.S. Department of Justice to file appropriate motions, including motions to remove the matter to Federal court, to quash, or to obtain a protective order. (c) The General Counsel will process demands and requests in the order in which they are received. Absent unusual circumstances and depending on the scope of the demand or request, the General Counsel will respond within 45 calendar days of the date USTR receives all information necessary to evaluate the demand or request. Sec. 2004.36 Restrictions that apply to testimony. (a) The General Counsel may impose conditions or restrictions on the testimony of USTR employees including, for example, limiting the scope of testimony or requiring the requester and other parties to the legal proceeding to agree that the testimony transcript will be kept under seal or will only be used or made available in the particular legal proceeding for which testimony was requested. The General Counsel also may require a copy of the testimony transcript at the requester's expense. (b) USTR may offer the employee's written declaration in lieu of testimony. (c) If authorized to testify pursuant to this subpart, an employee may testify as to relevant facts within his or her personal knowledge, but, unless specifically authorized to do so by the General Counsel, the employee must not: (1) Disclose classified, confidential or privileged information; or (2) For a current USTR employee, testify as an expert or opinion witness with regard to any matter arising out of the employee's official duties or USTR's mission or functions, unless testimony is provided on behalf of the United States. A former employee can provide expert or opinion testimony where the testimony involves only general expertise gained while employed as a USTR employee. Sec. 2004.37 Restrictions that apply to released records and information. (a) The General Counsel may impose conditions or restrictions on the release of records and information, including requiring the parties to the legal proceeding to obtain a protective order or to execute a confidentiality agreement to limit access and further disclosure. The terms of a protective order or confidentiality agreement must be acceptable to the General Counsel. In cases where protective orders or confidentiality agreements already have been executed, USTR may condition the release of records and information on an amendment to the existing protective order or confidentiality agreement. (b) If the General Counsel so determines, USTR may present original records for examination in response to a demand or request, but the records cannot be marked or altered or presented as evidence or otherwise used in a manner by which they could lose their status as original records. In lieu of original records, certified copies will be presented for evidentiary purposes. (See 28 U.S.C. 1733). Sec. 2004.38 In the event of an adverse ruling. (a) Notwithstanding USTR's rejection of a demand or request for records, information or testimony, if a court or other competent authority orders a USTR employee to comply with the demand, the employee promptly must notify the General Counsel of the order, and must respectfully decline to comply, citing United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). (b) To seek reconsideration of USTR's rejection of a demand or request, or of any restrictions on receiving records, information or testimony, a requester must send a petition for reconsideration [[Page 65313]] in accordance with Sec. 2004.34(a) within 10 days of the date of the determination. The petition must contain a clear and concise statement of the basis for the reconsideration with supporting authorities. Determinations about petitions for reconsideration are within the discretion of the United States Trade Representative or his/her designee, and are final. (c) Pursuant to section 704 of the Administrative Procedure Act, 5 U.S.C. 704, a petition for reconsideration of a final determination under this section is a prerequisite to judicial review. Sec. 2004.39 Fees. (a) USTR may condition the production of records, information or an employee's appearance on advance payment of reasonable costs, which may include but are not limited to those associated with employee search time, copying, computer usage, and certifications. (b) Witness fees will include fees, expenses and allowances prescribed by the rules applicable to the particular legal proceeding. If no fees are prescribed, USTR will base fees on the rule of the federal district court closest to the location where the witness will appear. Such fees may include but are not limited to time for preparation, travel and attendance at the legal proceeding. Janice Kaye, Chief Counsel for Administrative Law, Office of the U.S. Trade Representative. [FR Doc. 2016-22864 Filed 9-21-16; 8:45 am] BILLING CODE 3290-F6-P
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Regulatory Findings (e) Unsafe Condition approval of an AMOC, provided the RC steps,
This AD was prompted by reports of single including substeps and identified figures, can
We determined that this proposed AD still be done as specified, and the airplane
and multiple uncommanded spoiler panel
would not have federalism implications extensions during flight when there was a can be put back in an airworthy condition.
under Executive Order 13132. This hydraulic system failure. We are issuing this (i) Related Information
proposed AD would not have a AD to prevent an uncommanded extension of
substantial direct effect on the States, on spoiler panels in the event of a hydraulic (1) For more information about this AD,
the relationship between the national system failure, which could result in loss of contact Myra Kuck, Aerospace Engineer,
control of the airplane. Cabin Safety/Mechanical & Environmental
Government and the States, or on the
Systems branch, ANM–150L, FAA, Los
distribution of power and (f) Compliance Angeles Aircraft Certification Office (ACO),
responsibilities among the various 3960 Paramount Boulevard, Lakewood,
Comply with this AD within the
levels of government. compliance times specified, unless already California 90712–4137; phone: 562–627–
For the reasons discussed above, I done. 5316; fax: 562–627–5210; email:
certify this proposed regulation: myra.j.kuck@faa.gov.
(g) Replacement (2) For service information identified in
(1) Is not a ‘‘significant regulatory
action’’ under Executive Order 12866, Within 51 months after the effective date this AD, contact Boeing Commercial
of this AD: Replace each spoiler power Airplanes, Attention: Data & Services
(2) Is not a ‘‘significant rule’’ under Management, P.O. Box 3707, MC 2H–65,
control unit (PCU) with a new or changed
the DOT Regulatory Policies and PCU at spoiler positions 2, 3, and 4 on the Seattle, WA 98124–2207; telephone 206–
Procedures (44 FR 11034, February 26, left wing, and spoiler positions 9, 10, and 11 544–5000, extension 1; fax 206–766–5680;
1979), on the right wing, in accordance with the Internet https://www.myboeingfleet.com. You
(3) Will not affect intrastate aviation Accomplishment Instructions of Boeing Alert may view this referenced service information
in Alaska, and Service Bulletin 757–27A0154, dated July 22, at the FAA, Transport Airplane Directorate,
(4) Will not have a significant 2016. 1601 Lind Avenue SW., Renton, WA. For
economic impact, positive or negative, information on the availability of this
(h) Alternative Methods of Compliance
material at the FAA, call 425–227–1221.
on a substantial number of small entities (AMOCs)
under the criteria of the Regulatory (1) The Manager, Los Angeles Aircraft Issued in Renton, Washington, on
Flexibility Act. Certification Office (ACO), FAA, has the September 12, 2016.
authority to approve AMOCs for this AD, if Michael Kaszycki,
List of Subjects in 14 CFR Part 39
requested using the procedures found in 14 Acting Manager, Transport Airplane
Air transportation, Aircraft, Aviation CFR 39.19. In accordance with 14 CFR 39.19, Directorate, Aircraft Certification Service.
safety, Incorporation by reference, send your request to your principal inspector [FR Doc. 2016–22697 Filed 9–21–16; 8:45 am]
Safety. or local Flight Standards District Office, as
BILLING CODE 4910–13–P
appropriate. If sending information directly
The Proposed Amendment to the manager of the ACO, send it to the
attention of the person identified in
Accordingly, under the authority paragraph (i)(1) of this AD. Information may OFFICE OF THE UNITED STATES
delegated to me by the Administrator, be emailed to: 9-ANM-LAACO-AMOC- TRADE REPRESENTATIVE
the FAA proposes to amend 14 CFR part Requests@faa.gov.
39 as follows: (2) Before using any approved AMOC, 15 CFR Part 2004
notify your appropriate principal inspector,
PART 39—AIRWORTHINESS or lacking a principal inspector, the manager [Docket Number USTR–2016–0016]
DIRECTIVES of the local flight standards district office/
certificate holding district office. RIN 0350–AA10
■ 1. The authority citation for part 39 (3) An AMOC that provides an acceptable
level of safety may be used for any repair, Production or Disclosure of Records,
continues to read as follows:
modification, or alteration required by this Information and Employee Testimony
Authority: 49 U.S.C. 106(g), 40113, 44701. AD if it is approved by the Boeing in Legal Proceedings
§ 39.13 [Amended] Commercial Airplanes Organization
Designation Authorization (ODA) that has AGENCY: Office of the United States
■ 2. The FAA amends § 39.13 by adding been authorized by the Manager, Los Angeles Trade Representative.
the following new airworthiness ACO, to make those findings. To be ACTION: Proposed rule with request for
directive (AD): approved, the repair method, modification comments.
deviation, or alteration deviation must meet
The Boeing Company: Docket No. FAA–
the certification basis of the airplane, and the SUMMARY: The Office of the United
2016–9111; Directorate Identifier 2016–
approval must specifically refer to this AD. States Trade Representative (USTR) is
NM–132–AD.
(4) For service information that contains renaming and reorganizing part 2004 to
(a) Comments Due Date steps that are labeled as Required for
include all of the rules governing
We must receive comments by November Compliance (RC), the provisions of
paragraphs (h)(4)(i) and (h)(4)(ii) of this AD disclosure of records and information by
7, 2016. USTR. Part 2004 will include four
apply.
(b) Affected ADs (i) The steps labeled as RC, including subparts—subpart A will contain
None. substeps under an RC step and any figures definitions used throughout part 2004,
identified in an RC step, must be done to subpart B will implement the Freedom
(c) Applicability comply with the AD. If a step or substep is of Information Act, subpart C will
This AD applies to The Boeing Company labeled ‘‘RC Exempt,’’ then the RC implement the Privacy Act of 1974, and
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Model 757–200, –200PF, –200CB, and –300 requirement is removed from that step or subpart D will govern how USTR
series airplanes, certificated in any category, substep. An AMOC is required for any
responds to official demands and
as identified in Boeing Alert Service Bulletin deviations to RC steps, including substeps
and identified figures. informal requests for records,
757–27A0154, dated July 22, 2016.
(ii) Steps not labeled as RC may be information or employee testimony in
(d) Subject deviated from using accepted methods in connection with legal proceedings in
Air Transport Association (ATA) of accordance with the operator’s maintenance which neither the United States nor
America Code 27; Flight controls. or inspection program without obtaining USTR is a party. This proposed rule
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Exemptions, Freedom of information, § 2004.30 Purpose and scope. Records or Information means all
Government employees, Privacy, (a) Why are we issuing this rule? This documents and materials that are USTR
Records, Subpoenas, Testimony. subpart establishes the procedures agency records under the FOIA; any
■ For the reasons stated in the preamble, USTR will follow when any federal, original or copy of a record or other
the Office of the United States Trade state or local government court or other property, no matter what media,
Representative is proposing to revise authority seeks production of USTR contained in USTR files; and any other
part 2004 of chapter XX of title 15 of the records or information, or testimony information or materials acquired by a
Code of Federal Regulations to read as relating to an employee’s official duties, USTR employee in the performance of
follows: in the context of a legal proceeding. his or her official duties or because of
Parties seeking records, information or his or her official status.
PART 2004—DISCLOSURE OF testimony must comply with these Request means any informal request,
RECORDS AND INFORMATION requirements when submitting demands by whatever method, in connection with
or requests to USTR. a legal proceeding, seeking production
Subpart A—Definitions (b) What does this rule cover? This of records, information or testimony that
Sec. subpart applies to demands or requests has not been ordered by a court or other
2004.0 Definitions. for records, information or testimony in competent authority.
Subpart B—Freedom of Information Act legal proceedings in which USTR is not Testimony means any written or oral
Policies and Procedures a named party. It does not apply to: statements, including depositions,
2004.1 through 2004.9 [Reserved] Demands or requests for a USTR answers to interrogatories, affidavits,
employee to testify as to facts or events declarations and recorded interviews
Subpart C—Privacy Act Policies and that are unrelated to his or her official made by an individual about USTR
Procedures information in connection with a legal
duties or to USTR’s functions; FOIA or
2004.10 through 2004.29 [Reserved] Privacy Act requests; or Congressional proceeding.
Subpart D—Production or Disclosure of demands or requests for records or § 2004.32 Production prohibited unless
Records, Information and Employee testimony. approved.
Testimony in Legal Proceedings (c) Not a waiver. (1) By providing (a) Approval required. An employee
2004.30 Purpose and scope. these policies and procedures, USTR or any other person or entity in
2004.31 Definitions. does not waive the sovereign immunity possession of records or information
2004.32 Production prohibited unless of the United States.
approved. may not produce those records or
(2) The production of records, information, or provide any testimony
2004.33 Factors the General Counsel may information or testimony pursuant to
consider. related to the records or information, in
this subpart does not constitute a waiver response to any demand or request
2004.34 Submitting demands and requests.
2004.35 Processing demands and requests. by USTR of any privilege. without prior written approval from the
2004.36 Restrictions that apply to (d) This subpart provides guidance for General Counsel.
testimony. USTR’s internal operations and does not (b) Penalties. Any person or entity
2004.37 Restrictions that apply to released create any right or benefit, substantive that fails to comply with this subpart
records or information. or procedural, that a party may rely may be subject to the penalties provided
2004.38 In the event of an adverse ruling. upon in any legal proceeding against
2004.39 Fees. in 18 U.S.C. 641 and other applicable
USTR or the United States. laws. A current employee also may be
Subpart A—Definitions § 2004.31 Definitions. subject to administrative or disciplinary
proceedings.
For purposes of this subpart:
Authority: 19 U.S.C. 2171(e)(3). Demand means a request, order, § 2004.33 Factors the General Counsel
§ 2004.0 Definitions. subpoena or other demand of a federal, may consider.
state or local court or other authority for The General Counsel may grant an
For purposes of this part:
Days, unless otherwise indicated, records, information or employee employee permission to testify
means working days, and does not testimony in a legal proceeding in regarding USTR matters and to produce
include Saturdays, Sundays, and legal which USTR is not a named party. records and information in response to
public holidays. If the last day of a Employee means any current or a demand or request. Among the
specified period falls on a Saturday, former employee or officer of USTR, relevant factors the General Counsel
Sunday, or legal public holiday, the including contractors, detailees, interns, may consider in making this
period will be extended until the next and any individual who has served or determination are whether:
working day. is serving in any consulting or advisory (a) The requested records, information
FOIA means the Freedom of capacity to USTR, whether formal or or testimony are reasonable in scope,
Information Act, as amended, 5 U.S.C. informal. relevant and material to the pending
552. General Counsel means USTR’s action, and unavailable from other
Privacy Act means the Privacy Act of General Counsel or a person within sources such as a non-USTR employee,
1974, as amended, 5 U.S.C. 552a. USTR’s Office of General Counsel to or a USTR employee other than the
USTR means the Office of the United whom the General Counsel has employee named.
States Trade Representative. delegated authority to act under this (b) Production of the records,
subpart.
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information or testimony might result in
Subpart D—Production or Disclosure Legal proceeding means any matter, USTR appearing to favor one litigant
of USTR Records, Information and including all phases of litigation, before over another.
Employee Testimony in Legal a court of law, administrative board or (c) USTR has an interest in the
Proceedings tribunal, commission, administrative decision that may be rendered in the
law judge, hearing officer, or other body legal proceeding.
Authority: 5 U.S.C. 301; 19 U.S.C. that conducts a legal or administrative (d) Approving the demand or request
2171(e)(3). proceeding. would assist or hinder USTR in
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![Federal Register / Vol. 81, No. 184 / Thursday, September 22, 2016 / Proposed Rules 65313
in accordance with § 2004.34(a) within withdraws as unnecessary the proposed ACTION: Proposed rule.
10 days of the date of the determination. rule.
The petition must contain a clear and DATES: The proposed rule published on
SUMMARY: The Environmental Protection
concise statement of the basis for the July 11, 2016, 81 FR 44827, is Agency (EPA) is proposing to approve a
reconsideration with supporting withdrawn. State Implementation Plan (SIP)
authorities. Determinations about revision submitted by the State of
FOR FURTHER INFORMATION CONTACT: Tennessee, through the Tennessee
petitions for reconsideration are within Thomas Howard, Chief of Staff, National
the discretion of the United States Trade Department of Environment and
Cemetery Administration (NCA), Conservation (TDEC), on January 11,
Representative or his/her designee, and Department of Veterans Affairs, (40A),
are final. 2016. The proposed revision was
810 Vermont Avenue NW., Washington, submitted by TDEC on behalf of the
(c) Pursuant to section 704 of the DC 20420, (202) 461–6215. (This is not
Administrative Procedure Act, 5 U.S.C. Knox County Department of Air Quality
a toll-free number.) Management, which has jurisdiction
704, a petition for reconsideration of a
SUPPLEMENTARY INFORMATION: In a over Knox County, Tennessee. The
final determination under this section is
proposed rule published in the Federal revision that EPA is proposing for
a prerequisite to judicial review.
Register on July 11, 2016, 81 FR 44827, approval amends the Knox County Air
§ 2004.39 Fees. VA proposed to amend 38 Code of Quality Management Department’s
(a) USTR may condition the Federal Regulations (CFR) 38.603(b) that regulations, which are part of the
production of records, information or an prohibits the solicitation of Tennessee SIP, to address EPA’s startup,
employee’s appearance on advance contributions. On the same date, VA shutdown, and malfunction (SSM) SIP
payment of reasonable costs, which may published a substantially identical call for Knox County. EPA is proposing
include but are not limited to those direct final rule at 81 FR 44792. The approval of the January 11, 2016, SIP
associated with employee search time, direct final rule and proposed rule each revision because the Agency has
copying, computer usage, and provided a 30-day comment period that determined that it is in accordance with
certifications. ended on August 10, 2016. Two public the requirements for SIP provisions
(b) Witness fees will include fees, comments were received, both in under the Clean Air Act (CAA or Act).
expenses and allowances prescribed by support of the rulemakings. Because no DATES: Comments must be received on
the rules applicable to the particular adverse comments were received, VA is or before October 24, 2016.
legal proceeding. If no fees are withdrawing the proposed rule as
ADDRESSES: Submit your comments,
prescribed, USTR will base fees on the unnecessary. In a companion document
identified by Docket ID No. EPA–R04–
rule of the federal district court closest in this issue of the Federal Register, VA
OAR–2016–0359 at http://
to the location where the witness will is confirming the effective date of
www.regulations.gov. Follow the online
appear. Such fees may include but are September 9, 2016 for the direct final
instructions for submitting comments.
not limited to time for preparation, rule, RIN 2900–AP75, published at 81
Once submitted, comments cannot be
travel and attendance at the legal FR 44792.
edited or removed from regulations.gov.
proceeding. Signing Authority EPA may publish any comment received
Janice Kaye, The Secretary of Veterans Affairs, or to its public docket. Do not submit
Chief Counsel for Administrative Law, Office designee, approved this document and electronically any information you
of the U.S. Trade Representative. authorized the undersigned to sign and consider to be Confidential Business
[FR Doc. 2016–22864 Filed 9–21–16; 8:45 am] submit the document to the Office of the Information (CBI) or other information
Federal Register for publication whose disclosure is restricted by statute.
BILLING CODE 3290–F6–P
electronically as an official document of Multimedia submissions (audio, video,
the Department of Veterans Affairs. Gina etc.) must be accompanied by a written
S. Farrisee, Deputy Chief of Staff, comment. The written comment is
DEPARTMENT OF VETERANS considered the official comment and
AFFAIRS Department of Veterans Affairs,
approved this document on September should include discussion of all points
38 CFR Part 38 16, 2016, for publication. you wish to make. EPA will generally
not consider comments or comment
RIN 2900–AP74 Dated: September 19, 2016.
contents located outside of the primary
Jeffrey Martin, submission (i.e., on the web, cloud, or
Authority To Solicit Gifts and Office Program Manager, Office of Regulation other file sharing system). For
Donations; Withdrawal Policy & Management, Office of the Secretary, additional submission methods, the full
Department of Veterans Affairs.
AGENCY: Department of Veterans Affairs. EPA public comment policy,
[FR Doc. 2016–22833 Filed 9–21–16; 8:45 am]
ACTION: Withdrawal of proposed rule. information about CBI or multimedia
BILLING CODE 8320–01–P submissions, and general guidance on
SUMMARY: The Department of Veterans making effective comments, please visit
Affairs (VA) is withdrawing VA’s http://www2.epa.gov/dockets/
proposed rulemaking, published on July ENVIRONMENTAL PROTECTION commenting-epa-dockets.
11, 2016, to amend its regulation giving AGENCY FOR FURTHER INFORMATION CONTACT:
the Under Secretary of Memorial Affairs 40 CFR Part 52 Madolyn Sanchez, Air Regulatory
(USMA), or his designee, authority to Management Section, Air Planning and
ehiers on DSK5VPTVN1PROD with PROPOSALS
solicit gifts and donations. VA received [EPA–R04–OAR–2016–0359; FRL–9952–73– Implementation Branch, Air, Pesticides
two supportive comments and no Region 4] and Toxics Management Division, U.S.
adverse comments concerning the Environmental Protection Agency,
Air Plan Approval; TN; Revisions to the
proposed rule and its companion Region 4, 61 Forsyth Street SW.,
Knox County Portion of the TN SIP
substantially identical direct final rule Atlanta, Georgia 30303–8960. The
published in the Federal Register on the AGENCY: Environmental Protection telephone number is (404) 562–9644.
same date. Accordingly, this document Agency. Ms. Sanchez can also be reached via
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Document Created: 2016-09-22 01:03:51
Document Modified: 2016-09-22 01:03:51
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule with request for comments. | |
| Dates | We must receive your written comments on or before November 21, 2016. | |
| Contact | Janice Kaye, Monique Ricker or Melissa Keppel, Office of General Counsel, United States Trade Representative, Anacostia Naval Annex, Building 410/Door 123, 250 Murray Lane SW., Washington, DC 20509, [email protected]; [email protected]; [email protected]; 202-395-3150. | |
| FR Citation | 81 FR 65309 | |
| RIN Number | 0350-AA10 | |
| CFR Associated | Administrative Practice and Procedure; Courts; Disclosure; Exemptions; Freedom of Information; Government Employees; Privacy; Records; Subpoenas and Testimony |
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