[Federal Register Volume 66, Number 24 (Monday, February 5, 2001)]
[Proposed Rules]
[Pages 8926-8928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-2902]


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CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

40 CFR Part 1610


Attorney Misconduct, Sequestration of Witnesses, and Exclusion of 
Counsel

AGENCY: Chemical Safety and Hazard Investigation Board.

ACTION: Proposed rule.

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SUMMARY: This document sets forth new proposed regulations of the 
Chemical Safety and Hazard Investigation Board (``CSB'') concerning 
sanctions for repeated attorney misconduct, and the sequestration of 
witnesses and exclusion of counsel in depositions

[[Page 8927]]

conducted under subpoena in CSB investigations.

DATES: Submit comments on or before March 7, 2001.

ADDRESSES: Address all comments concerning this proposed rule to 
Raymond C. Porfiri, Chemical Safety and Hazard Investigation Board, 
2175 K Street, NW., 4th Floor, Washington, DC 20037.

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 concerning witness representation in CSB 
investigations at 40 CFR 1610.1 (66 FR 1050, Jan. 5, 2001).
    These proposed rules amplify those rules. Because they provide for 
the possibility of suspension of attorneys from practice before the 
Board in certain circumstances, the Board has determined that the rules 
and the procedures therein should be published for comment as proposed 
rules.
    New Sec. 1610.2 provides for sanctions against attorneys who are 
involved in repeated acts of misconduct and for hearing procedures for 
issuing suspensions from practice before the Board.
    New Sec. 1610.3 provides for the sequestration of witnesses in 
investigative proceedings and for the exclusion of attorneys 
representing multiple witnesses in investigations from witness 
depositions where the person conducting the deposition, after 
consultation with the Office of General Counsel, determines that the 
CSB has concrete evidence that the presence of such attorney would 
obstruct or impede the investigation. This ``concrete evidence'' 
standard meets the test set forth by the court in Professional Reactor 
Operator Society v. Nuclear Regulatory Commission, 939 F.2d 1047 (D.C. 
Cir 1991). See also SEC v. Csapo, 533 F.2d 7 (D.C. Cir. 1976).

Regulatory Flexibility Act

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

Unfunded Mandates Reform Act of 1995

    This proposed 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, Pub. L. 104-4, 109 Stat. 48.

    Dated: January 26, 2001.
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 proposes to amend 40 CFR part 1610 as 
follows:

PART 1610--ADMINISTRATIVE INVESTIGATIONS

    1. The authority citation for part 1610 continues to read as 
follows:

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

    2. Add Secs. 1610.2 and 1610.3 to read as follows:


Sec. 1610.2  Repeated attorney misconduct, sanctions, hearings.

    (a) If an attorney who has been sanctioned by the Board for 
disorderly, dilatory, obstructionist, or contumacious conduct, or 
contemptuous language in the course of a deposition under 
Sec. 1610.1(a)(5) is sanctioned again by the Board in a subsequent 
deposition or investigation, the Board, after offering the attorney an 
opportunity to be heard, may reprimand, censure the attorney, or 
suspend the attorney from further practice before the Board for such 
period of time as the Board deems advisable.
    (b) A reprimand or a censure shall be ordered with grounds stated 
on the record of the proceeding. A suspension shall be in writing, 
shall state the grounds on which it is based, and shall advise the 
person suspended of the right to appeal.
    (c) An attorney suspended pursuant to this section may within ten 
(10) days after issuance of the order file an appeal with the Board. 
The appeal shall be in writing and state concisely, with supporting 
argument, why the appellant believes the order was erroneous, either as 
a matter of fact or law. If necessary for a full and fair consideration 
of the facts, the Board as a whole may conduct further evidentiary 
hearings, or may refer the matter to another presiding officer for 
development of a record. Such presiding officer may be an attorney who 
is a Member of the Board or is employed in the Office of General 
Counsel, or an administrative law judge detailed from another agency 
pursuant to 5 U.S.C. 3344. If the Board refers the matter to a 
presiding officer, unless the Board provides specific directions to the 
presiding officer, that officer shall determine the procedure to be 
followed and who shall present evidence, subject to applicable 
provisions of law. Such hearing shall commence as soon as possible. If 
no appeal is taken of a suspension, or, if the suspension is upheld at 
the conclusion of the appeal, the presiding officer, or the Board, as 
appropriate, shall notify the state bar(s) to which the attorney is 
admitted. Such notification shall include copies of the order of 
suspension, and, if an appeal was taken, briefs of the parties, and the 
decision of the Board.


Sec. 1610.3  Sequestration of witnesses and exclusion of counsel.

    (a) All witnesses compelled by subpoena to submit to CSB 
depositions shall be sequestered unless the official conducting the 
depositions permits otherwise.
    (b) Any witness compelled by subpoena to appear at a deposition 
during a CSB investigation may be accompanied, represented, and advised 
by an attorney in good standing of his or her choice, pursuant to 
Sec. 1610.1. However, when the CSB official conducting the 
investigation determines, after consultation with the Office of General 
Counsel, that the CSB has concrete evidence that the presence of an 
attorney representing multiple interests would obstruct and impede the 
investigation or inspection, the CSB official may prohibit that counsel 
from being present during the deposition.
    (c) The deposing official is to provide a witness whose counsel has 
been excluded under paragraph (b) of this section, and the witness' 
counsel, a written statement of the reasons supporting the decision to 
exclude. This statement, which must be provided no later than five 
working days after exclusion, must explain the basis for the counsel's 
exclusion. This statement must also advise the witness of the witness' 
right to appeal the exclusion decision and obtain an automatic stay of 
the effectiveness of the subpoena by filing a motion to quash the 
subpoena

[[Page 8928]]

with the Board within five days of receipt of this written statement.
    (d) Within five days after receipt of the written notification 
required in paragraph (c) of this section, a witness whose counsel has 
been excluded may appeal the exclusion decision by filing a motion to 
quash the subpoena with the Board. The filing of the motion to quash 
will stay the effectiveness of the subpoena pending the Board's 
decision on the motion.
    (e) If a witness' counsel is excluded under paragraph (b) of this 
section, the deposition may, at the witness' request, either proceed 
without counsel or be delayed for a reasonable period of time to permit 
the retention of new counsel. The deposition may also be rescheduled to 
a subsequent date established by the CSB, although the deposition shall 
not be rescheduled by the CSB to a date that precedes the expiration of 
the time provided in paragraph (d) of this section for appeal of the 
exclusion of counsel, unless the witness consents to an earlier date.
[FR Doc. 01-2902 Filed 2-2-01; 8:45 am]
BILLING CODE 6350-01-U