[Federal Register Volume 66, Number 4 (Friday, January 5, 2001)]
[Rules and Regulations]
[Pages 1050-1051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-288]


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CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

40 CFR Part 1610


Representation of Witnesses in Agency Investigations

AGENCY: Chemical Safety and Hazard Investigation Board.

ACTION: Final rule.

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SUMMARY: This document sets forth the Chemical Safety and Hazard 
Investigation Board's regulations for the representation of witnesses 
in agency investigations. It covers representation by attorneys of 
witnesses in depositions or other situations where testimony is 
compelled and representation by attorneys or non-attorney 
representatives of witnesses who are appearing voluntarily for 
interviews.

DATES: Effective January 5, 2001.

FOR FURTHER INFORMATION CONTACT: Raymond C. Porfiri, (202) 261-7600.

SUPPLEMENTARY INFORMATION: The Chemical Safety and Hazard Investigation 
Board (``CSB'' or ``Board'') is mandated by law to ``Investigate (or 
cause to be investigated), determine and report to the public in 
writing the facts, conditions, and circumstances and the cause or 
probable cause of any accidental release [within its jurisdiction] 
resulting in a fatality, serious injury or substantial property 
damages.'' 42 U.S.C. 7412(r)(6)(C)(i). The Board has developed 
practices and procedures for conducting investigations under this 
provision and has determined that its procedures and policies 
concerning witness representation should be published in the Federal 
Register and codified in the Code of Federal Regulations for wider 
public dissemination. These rules codify the law concerning witness 
representation as set forth in the Administrative Procedure Act, 5 
U.S.C. 555(b). Because they concern a matter of agency organization, 
procedure, or practice, notice-and-comment procedures are not required 
and are not provided here. 5 U.S.C. 553(b)(B).
    It should be noted that CSB administrative investigations are 
purely investigatory and that the CSB lacks the authority to determine 
anyone's civil or criminal liability, or make any other determination 
depriving a person of life, liberty or property. Its enabling statute 
prohibits any part of the ``conclusions, findings, or recommendations 
of the Board'' from being admitted as evidence or used in any other way 
in civil suits arising from incidents investigated by the CSB. 42 
U.S.C. 7212(r)(6)(G). Witnesses in CSB proceedings are not targets of 
the investigation, do not have their legal rights at issue, and as such 
are not entitled to the sort of due process protections that attend 
agency adjudications. See Hannah v. Larche, 363 U.S. 420 (1960).
    The Administrative Procedure Act does, however, provide that 
witnesses who are ``compelled to appear in person'' before the agency 
may be ``accompanied, represented, and advised by counsel, or if 
permitted by the agency by other qualified representative.'' 5 U.S.C. 
555(b). The Board's rule codifies this provision and provides that 
witnesses compelled to appear (normally for a deposition) may be 
accompanied, represented, and advised by an attorney. The Board, in its 
discretion, has determined not to provide for non-attorney 
representation in such situations.
    The CSB practice, which is being codified in this final rule, 
provides reasonable ``ground rules'' for attorney participation in 
witness depositions. It is modeled, in part, on the regulation of the 
Federal Trade Commission, 16 CFR 2.9(b).
    The CSB also is providing guidance to witnesses who appear 
voluntarily for interviews. In such circumstances, the agency's 
Investigator-in-Charge, in consultation with the General Counsel, may 
permit the witness to be accompanied by an attorney or a non-attorney 
representative, but there is no right to such representation. The 
Administrative Procedure Act does not mandate a right to representation 
for non-compulsory appearances. 5 U.S.C. 555(b).

Regulatory Flexibility Act

    The Board, in accordance with the Regulatory Flexibility Act, 5 
U.S.C. 605(b), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

    Dated: December 22, 2000.
Christopher W. Warner,
General Counsel.

List of Subjects in 40 CFR Part 1610,

    Administrative practice and procedure, Investigations.

    For the reasons set forth in the preamble, the Chemical Safety and 
Hazard Investigation Board adds a new 40 CFR part 1610 as follows:

PART 1610--ADMINISTRATIVE INVESTIGATIONS

Sec.
1610.1  Representation of witnesses in investigations.

    Authority: 42 U.S.C. 7412(r)(6)(C)(i), 7412(r)(6)(L), 
7412(r)(6)(N)


Sec. 1610.1  Representation of witnesses in investigations.

    (a) Witnesses who are compelled to appear. Witnesses who are 
compelled to appear for a deposition (i.e., by subpoena) are entitled 
to be accompanied, represented, and advised by an attorney as follows:
    (1) Counsel for a witness may advise the witness with respect to 
any question asked where it is claimed that the testimony or other 
evidence sought from a witness is outside the scope of the 
investigation, or that the witness is privileged to refuse to answer a 
question or to produce other evidence. For these allowable objections, 
the witness or counsel for the witness may object on the record to the 
question or requirement and may state briefly and precisely the ground 
therefor. If the witness refuses to answer a question, then counsel may 
briefly state on the record that counsel has advised the witness not to 
answer the question and the legal grounds for such refusal. The witness 
and his or her counsel shall not otherwise object to or refuse to 
answer any question, and they shall not otherwise interrupt the oral 
examination.
    (2) Any objections made will be treated as continuing objections 
and preserved throughout the further course of the deposition without 
the necessity for repeating them as to any similar line of inquiry. 
Cumulative objections are unnecessary. Repetition of the grounds for 
any objection will not be allowed.
    (3) Counsel for a witness may not, for any purpose or to any extent 
not allowed by paragraphs (a)(1) and (2) of this section, interrupt the 
examination of the witness by making any objections or statements on 
the record.

[[Page 1051]]

    (4) Following completion of the examination of a witness, counsel 
for the witness may on the record request the person conducting the 
deposition to permit the witness to clarify any of his or her answers. 
The grant or denial of such request shall be within the sole discretion 
of the person conducting the deposition.
    (5) The person conducting the deposition shall take all necessary 
action to regulate the course of the deposition, to avoid delay, and to 
prevent or restrain disorderly, dilatory, obstructionist, or 
contumacious conduct, or contemptuous language. Such person shall, for 
reasons stated on the record, immediately report to the Board any 
instances where an attorney has allegedly refused to comply with his or 
her directions, or has allegedly engaged in disorderly, dilatory, 
obstructionist, or contumacious conduct, or contemptuous language in 
the course of the deposition. The Board may thereupon take such further 
action, if any, as the circumstances warrant, including exclusion of 
that attorney from further participation in the particular 
investigation.
    (b) Voluntary interviews. Witnesses appearing voluntarily do not 
have a right to have an attorney present during questioning. The 
Investigator-in-Charge (IIC), in consultation with the General Counsel, 
may permit a witness to be accompanied by an attorney or non-attorney 
representative. If so accompanied, the role of the attorney or non-
attorney representative is limited to raising objections to questions 
that are outside the scope of the investigation and to advising the 
witness with respect to any legal privilege such as, for example, under 
the Fifth Amendment to the U. S. Constitution. Attorney and non-
attorney representatives may not represent more than one witness in 
each investigation in this fashion, absent the consent of the IIC and 
the General Counsel.

[FR Doc. 01-288 Filed 1-4-01; 8:45 am]
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