[Federal Register Volume 66, Number 62 (Friday, March 30, 2001)]
[Rules and Regulations]
[Pages 17364-17368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-7898]


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CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

40 CFR Parts 1611 and 1612


Testimony of Employees and Production of Records in Legal 
Proceedings

AGENCY: Chemical Safety and Hazard Investigation Board.

ACTION: Final rule.

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SUMMARY: This regulation establishes internal policies and procedures 
governing when and to what extent employees of the Chemical Safety and 
Hazard Investigation Board (``CSB'' or ``Board'') may appear as 
witnesses in third-party litigation or produce CSB records in third-
party litigation. The intended effect of this regulation is to conserve 
the CSB's ability to conduct official business, preserve its employee 
resources, minimize involvement in matters unrelated to its mission and 
programs, preserve its impartiality, avoid spending public time and 
money for private purposes, and to help avoid needless litigation.

DATES: This rule is effective March 30, 2001.

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

SUPPLEMENTARY INFORMATION: Based on the experience of other Federal 
agencies, there is a strong potential that CSB employees will be 
requested or subpoenaed to provide testimony or produce records in 
litigation. CSB regulations have not heretofore clearly specified when 
its employees are required to respond to subpoenas or produce CSB 
records. This has resulted in the potential of an employee giving 
testimony or providing records, which diverts such employee from 
performing his/her duties, and might create the appearance that the CSB 
is taking sides in private litigation. This regulation is intended to 
address this situation by generally prohibiting both voluntary 
appearances and compliance with subpoenas unless authorized by the CSB.
    The need for this regulation is even more acute at the CSB, because 
pursuant to 42 U.S.C. 7412(r)(6)(G), no part of the conclusions, 
findings or recommendations of the CSB relating to an accidental 
release or the investigation thereof, may be admitted as evidence or 
used in any suit or action for damages growing out of any matter 
mentioned in such report. The legislative history of this provision 
explains why Congress included it:

    The findings, conclusions and recommendations of the Board are 
not to be

[[Page 17365]]

used in civil proceedings for damages which result from an accident 
investigated by the Board. In conducting its investigations, the 
Board will need the fullest cooperation from facility owners and 
operators, equipment suppliers and other parties involved in an 
accidental release to determine the probable causes of the event. 
The likelihood that conclusions drawn from information provided to 
the Board will be used in a suit from damages will discourage full 
cooperation. Furthermore, and as noted above, the standard of 
evidence used by the Board in reaching its determinations of 
probable cause is likely to be less rigorous than evidentiary 
standards used in a civil proceeding and thus a conclusion, finding 
or recommendation of the Board should not be given the same weight 
as other evidence in such a proceeding.

Senate Report 101-228, Clean Air Act Amendments 1990.
    Identical language in the National Transportation Safety Board's 
statute (section 304(c) of the Independent Safety Board Act of 1974) 
was premised on Congress' ``strong * * * desire to keep the Board free 
of the entanglement of such suits.'' Rep. No. 93-1192, 93d Cong., 2d 
Sess., 44 (1974).
    The courts have made clear that subpoenas to testify concerning 
information which U.S. government employees have acquired in the course 
of performing official duties, or to produce records, are essentially 
legal actions against the United States for which there has been no 
waiver of sovereign immunity. Concomitantly, the courts have recognized 
the authority of Federal agencies to limit compliance with such 
subpoenas. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951). See also United States v. Williams, 170 F.3d 431 (4th Cir. 
1999); Smith v. Cromer, 159 F.3d 875 (4th Cir. 1998); Moore v. Armour 
Pharmaceutical Co., 927 F.2d 1194 (11th Cir. 1991); Davis Enterprises 
v. E.P.A., 877 F.2d 1181 (3rd Cir. 1989); Boron Oil Company v. Downie, 
873 F.2d 67 (4th Cir. 1989); Swett versus Schenk, 792 F.2d 1447 (9th 
Cir. 1986).
    Moreover, subpoenas by State, territorial or Tribal courts, and 
legislative or administrative bodies, which attempt to assert 
jurisdiction over Federal agencies and their employees, are 
inconsistent with the Supremacy Clause of the U.S. Constitution. A 
Federal regulation, such as this one prohibiting compliance with such 
subpoenas, is consistent with the Supremacy Clause. See McCulloch v. 
Maryland, 7 U.S. (4 Wheat.) 316 (1819); Houston Business Journal, Inc. 
v. Office of the Comptroller of the Currency, 86 F.3d 1208 (D.C. Cir. 
1996); Giza v. Secretary of HEW, 628 F.2d 748 (1st Cir. 1980); United 
States v. McLeod, 385 F.2d 734 (5th Cir. 1967). Accordingly, this 
regulation restricts a CSB employee from complying with subpoenas from 
State, territorial or Tribal courts, and legislative or administrative 
bodies without the approval of the General Counsel of the CSB.
    In addition, this regulation describes procedures by which the CSB 
will make its employees and records available in response to subpoenas 
in Federal court civil proceedings in which the United States is not a 
party. In the event that the CSB or its Office of General Counsel fails 
to reach an agreement regarding the proper scope of a subpoena, the 
Office of General Counsel will coordinate with the Department of 
Justice to file appropriate motions, including motions to quash or for 
a protective order.
    This regulation does not apply to congressional proceedings. This 
regulation also does not apply to Federal court civil proceedings in 
which the United States is a party, because the Department of Justice 
is already representing the CSB's interests and may file appropriate 
protective motions under the Federal Rules of Civil Procedure. This 
regulation likewise does not apply to either Freedom of Information Act 
or Privacy Act requests.
    This regulation applies to information which CSB employees acquire 
in the course of performing official duties, to production of records 
in CSB files, and to testimony concerning such records. It is 
recognized that employees may, on their own time or while in an 
approved leave status, appear as private citizens in proceedings in 
which CSB policies and programs are not at issue. This regulation does 
not restrict such activities.
    Finally, the CSB is sometimes asked to authenticate copies of 
official records for purposes of admissibility under 28 U.S.C. 1733, 
Federal Rule of Civil Procedure 44, or comparable State or Tribal law. 
Since official actions and policies can best be proved by CSB records, 
and since this regulation provides that it is generally inappropriate 
for employees to appear as witnesses to discuss the background of CSB 
policies and action in private litigation, this regulation provides 
that the CSB will authenticate copies of CSB records upon request.
    Because this regulation establishes internal policy for CSB 
employees, the Administrative Procedure Act does not require that it be 
published as a proposed regulation for notice and public comment. 5 
U.S.C. 553(a)(2). This regulation provides immediate clarifying 
guidance on how CSB employee testimony and CSB records may be obtained. 
As such, the CSB finds that good cause exists for making the regulation 
effective immediately upon publication. 5 U.S.C. 553(b)(3)(B).

Compliance With Other Laws

Regulatory Planning and Review (E.O. 12866)

    This regulation is not a significant rule and is not subject to 
review by the Office of Management and Budget under Executive Order 
12866.
    (1) This regulation will not have an effect of $100 million or more 
on the economy. This regulation regulates how and when CSB employees 
and documents may be provided in certain situations. As such, it will 
not adversely affect in a material way the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or Tribal governments or communities.
    (2) This regulation will not create a serious inconsistency or 
interfere with an action taken or planned by another agency.
    (3) This regulation does not alter the budgetary effects or 
entitlements, grants, user fees, or loan programs or the rights or 
obligations of their recipients.
    (4) This regulation is consistent with well-established 
constitutional and statutory principles and does not raise novel legal 
or policy issues.

Regulatory Flexibility Act

    The Board, in accordance with the Regulatory Flexibility Act, 5 
U.S.C. 605(b), has reviewed this regulation and by adopting it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities. This regulation 
merely regulates how and when CSB employees may testify and that 
documents may be provided in certain situations.

Small Business Regulatory Enforcement Fairness Act

    This regulation is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. Because this 
regulation only regulates how and when CSB employees may testify and 
that CSB documents may be provided in certain situations, this 
regulation:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, local government 
agencies or geographic regions.
    c. Does not have a significant adverse effect on competition, 
employment, investment, productivity, innovation or

[[Page 17366]]

the ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act

    This regulation does not impose an unfunded mandate on State, 
local, or tribal governments or the private sector of more than $100 
million per year. This regulation does not have a significant or unique 
effect on State, local or tribal governments or the private sector 
because this regulation only regulates how and when CSB employees may 
testify and that CSB documents may be provided in certain situations. A 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, this regulation does not 
have significant takings implications. A takings implication assessment 
is not required.

Federalism (E.O. 13132)

    The CSB has determined that this regulation conforms to the 
Federalism principals of Executive Order 13132. It also certifies that 
to the extent a regulatory preemption occurs, it is because the 
exercise of State and Tribal authority conflicts with the exercise of 
Federal authority under the U.S. Constitution's Supremacy Clause and 
Federal statute. This regulation is, however, restricted to the minimum 
level necessary to achieve the objectives of 5 U.S.C. 301, pursuant to 
which this regulation is promulgated.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the CSB has determined 
that this regulation does not unduly burden the judicial system, under 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and does 
meet the requirements of section 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    This regulation contains no reporting or recordkeeping requirements 
which require approval by the Office of Management and Budget under 44 
U.S.C. 3510 et seq.

National Environmental Policy Act (NEPA)

    This regulation does not constitute a major Federal action 
significantly affecting the quality of the human environment under 
NEPA, 42 U.S.C. 4321 et seq. A detailed statement under the NEPA is not 
required.

    Dated: March 21, 2001.
Christopher W. Warner,
General Counsel.

List of Subjects

40 CFR Part 1611

    Administrative practice and procedure, Freedom of information, 
Government employees, Investigations, Testimony of employees.

40 CFR Part 1612

    Administrative practice and procedure, Freedom of information, 
Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, the Chemical Safety and 
Hazard Investigation Board adds a new 40 CFR part 1611 and part 1612 as 
follows:

PART 1611--TESTIMONY BY EMPLOYEES IN LEGAL PROCEEDINGS

Sec.
1611.1   General.
1611.2   Definitions.
1611.3   Scope of permissible testimony.
1611.4   Manner in which testimony is given in civil litigation.
1611.5   Request for testimony in civil litigation.
1611.6   Testimony of former CSB employees.
1611.7   Testimony by current CSB employees regarding prior 
activity.
1611.8   Procedure in the event of a subpoena in civil litigation.
1611.9   Testimony in Federal, State, or local criminal 
investigations and other proceedings.
1611.10   Obtaining CSB investigation reports and supporting 
information.

    Authority: 5 U.S.C. 301, 42 U.S.C. 7412(r)(6)(G).


Sec. 1611.1  General.

    (a) This part prescribes policies and procedures regarding the 
testimony of employees of the Chemical Safety and Hazard Investigation 
Board (CSB) in suits or actions for damages and criminal proceedings 
arising out of chemical incidents when such testimony is in an official 
capacity and arises out of or is related to an incident investigation. 
The purpose of this part is to ensure that the time of CSB employees is 
used only for official purposes, to avoid embroiling the CSB in 
controversial issues that are not related to its duties, to avoid 
spending public funds for non-CSB purposes, to preserve the 
impartiality of the CSB, and to prohibit the discovery of opinion 
testimony.
    (b) This part does not apply to:
    (1) Congressional requests or subpoenas for testimony or records;
    (2) Federal court civil proceedings in which the United States is a 
party;
    (3) Federal administrative proceedings;
    (4) Employees who voluntarily testify, while on their own time or 
in approved leave status, as private citizens as to facts or events 
that are not related to the official business of the CSB. The employee 
must state for the record that the testimony represents the employee's 
own views and is not necessarily the official position of the CSB.
    (c) This part only provides guidance for the internal operations of 
the CSB, and neither creates nor is intended to create any enforceable 
right or benefit against the United States.


Sec. 1611.2  Definitions.

    CSB incident report means the report containing the CSB's 
determinations, including the probable cause of an incident, issued 
either as a narrative report or in a computer format. Pursuant to 42 
U.S.C. 7412(r)(6)(G), no part of the conclusions, findings or 
recommendations of the CSB relating to an accidental release or the 
investigation thereof, may be admitted as evidence or used in any suit 
or action for damages growing out of any matter mentioned in such 
report.


Sec. 1611.3  Scope of permissible testimony.

    (a) The statute creating the CSB, 42 U.S.C. 7412(r)(6)(G), 
precludes the use or admission into evidence of CSB investigative 
reports in any suit or action for damages arising from such incidents. 
This provision would be undermined if expert opinion testimony of CSB 
employees, which may be reflected in the views of the CSB expressed in 
its reports, were admitted in evidence or used in litigation arising 
out of an incident. The CSB relies heavily upon its investigators' 
opinions in its deliberations. Furthermore, the use of CSB employees as 
experts to give opinion testimony would impose a significant 
administrative burden on the CSB's investigative staff.
    (b) For the reasons stated in paragraph (a) of this section and 
Sec. 1611.1, CSB employees may only testify as to the factual 
information they obtained during the course of an investigation. 
However, they shall decline to testify regarding matters beyond the 
scope of their investigation, and they shall not give any expert or 
opinion testimony.
    (c) CSB employees may testify about the firsthand information they 
obtained during an investigation that is not reasonably available 
elsewhere, including their own factual observations. Consistent with 
the principles cited in Sec. 1611.1 and this

[[Page 17367]]

section, current CSB employees are not authorized to testify regarding 
other employee's observations or reports, or other types of CSB 
documents, including but not limited to safety recommendations, safety 
studies, safety proposals, safety accomplishments, reports labeled 
studies, and analysis reports, as they contain staff analysis and/or 
CSB conclusions.
    (d) Consistent with 42 U.S.C. 7412(r)(6)(G), a CSB employee may not 
use the CSB's investigation report for any purpose during his 
testimony.
    (e) No employee may testify in any matter absent advance approval 
by the General Counsel as provided in this part.


Sec. 1611.4  Manner in which testimony is given in civil litigation.

    (a) Testimony of CSB employees with unique, firsthand information 
may be made available for use in civil actions or civil suits for 
damages arising out of incidents through depositions or written 
interrogatories. CSB employees are not permitted to appear and testify 
in court in such actions.
    (b) Normally, depositions will be taken and interrogatories 
answered at the CSB's headquarters in Washington, DC, and at a time 
arranged with the employee reasonably fixed to avoid substantial 
interference with the performance of his or her duties.
    (c) CSB employees are authorized to testify only once in connection 
with any investigation they have made of an incident. Consequently, 
when more than one civil lawsuit arises as a result of an incident, it 
shall be the duty of counsel seeking the employee's deposition to 
ascertain the identity of all parties to the multiple lawsuits and 
their counsel, and to advise them of the fact that a deposition has 
been granted, so that all interested parties may be afforded the 
opportunity to participate therein.
    (d) Upon completion of the deposition of a CSB employee, the 
original of the transcript will be provided to the deponent for 
signature and correction, which the CSB does not waive. A copy of the 
transcript of the testimony and any videotape shall be furnished, at 
the expense of the party requesting the deposition, to the CSB's 
General Counsel at Washington, DC headquarters for the CSB's files.
    (e) If CSB employees are required to travel to testify, under the 
relevant substantive and procedural laws and regulations the party 
requesting the testimony must pay for the costs, including travel 
expenses. Costs must be paid by check or money order payable to the 
Chemical Safety and Hazard Investigation Board.


Sec. 1611.5  Request for testimony in civil litigation.

    (a) A written request for testimony by deposition or 
interrogatories of a CSB employee relating to an incident shall be 
addressed to the General Counsel, who may approve or deny the request 
consistent with this part. Such request shall set forth the title of 
the civil case, the court, the date and place of the incident, the 
reasons for desiring the testimony, and a showing that the information 
desired is not reasonably available from other sources.
    (b) Where testimony is sought in connection with civil litigation, 
the General Counsel shall not approve it until the CSB's investigation 
report is issued.
    (c) The General Counsel shall attach to the approval of any 
deposition such reasonable conditions as may be deemed appropriate in 
order that the testimony will be consistent with Sec. 1611.1, will be 
limited to the matters delineated in Sec. 1611.3, will not interfere 
with the performance of the duties of the employee as set forth in 
Sec. 1611.4, and will otherwise conform to the policies of this part.
    (d) A subpoena shall not be served upon a CSB employee in 
connection with the taking of a deposition in civil litigation.


Sec. 1611.6  Testimony of former CSB employees.

    It is not necessary to request CSB approval for testimony of a 
former CSB employee, nor is such testimony limited to depositions. 
However, the scope of permissible testimony continues to be constrained 
by all the limitations set forth in Sec. 1611.3 and Sec. 1611.4.


Sec. 1611.7  Testimony by current CSB employees regarding prior 
activity.

    Any testimony regarding any incident within the CSB's jurisdiction, 
or any expert testimony arising from employment prior to CSB service is 
prohibited absent approval by the General Counsel. Approval shall only 
be given if testimony will not violate Sec. 1611.1 and Sec. 1611.3, and 
is subject to whatever conditions the General Counsel finds necessary 
to promote the purposes of this part as set forth in Sec. 1611.1 and 
Sec. 1611.3.


Sec. 1611.8  Procedure in the event of a subpoena in civil litigation.

    (a) If the CSB employee has received a subpoena to appear and 
testify in connection with civil litigation, a request for his 
deposition shall not be approved until the subpoena has been withdrawn.
    (b) Upon receipt of a subpoena, the employee shall immediately 
notify the General Counsel and provide all information requested by the 
General Counsel.
    (c) The General Counsel shall determine the course of action to be 
taken and will so advise the employee.


Sec. 1611.9  Testimony in Federal, State, or local criminal 
investigations and other proceedings.

    (a) As with civil litigation, the CSB prefers that testimony be 
taken by deposition if court rules permit, and that testimony await the 
issuance of the investigation report. The CSB recognizes, however, that 
in the case of coroner's inquests and grand jury proceedings this may 
not be possible. The CSB encourages those seeking testimony of CSB 
employees to contact the General Counsel as soon as such testimony is 
being considered. Whenever the intent to seek such testimony is 
communicated to the employee, he shall immediately notify the General 
Counsel.
    (b) In any case, CSB employees are prohibited from testifying in 
any civil, criminal, or other matter, either in person or by deposition 
or interrogatories, absent advance approval of the General Counsel.
    (c) If permission to testify by deposition or in person is granted, 
testimony shall be limited as set forth in Sec. 1611.3. Only factual 
testimony is authorized; no expert or opinion testimony shall be given.


Sec. 1611.10  Obtaining CSB investigation reports and supporting 
information.

    It is the responsibility of the individual requesting testimony to 
obtain desired documents. There are a number of ways to obtain CSB 
investigation reports, and accompanying investigation docket files. The 
rules at part 1612 of this chapter explain CSB procedures for 
production of records in legal proceedings, and the CSB's Freedom of 
Information Act rules at part 1601 of this chapter explain CSB 
procedures for producing documents more generally. See also the 
information available on the CSB web site, at www.csb.gov. You may also 
call the CSB Office of General Counsel, at (202) 261-7600. Documents 
will not be supplied by witnesses at depositions, nor will copying 
services be provided by deponents.

PART 1612--PRODUCTION OF RECORDS IN LEGAL PROCEEDINGS

[[Page 17368]]

Sec.
1612.1  Purpose and scope.
1612.2  Applicability.
1612.3  Published reports and material contained in the public 
incident investigation dockets.
1612.4  Requests for authentication or certification of records.
1612.5  Other material.

    Authority: 5 U.S.C. 301, 42 U.S.C. 7412(r)(6)(G).


Sec. 1612.1  Purpose and scope.

    (a) This part sets forth procedures to be followed when requesting 
material for use in legal proceedings (including administrative 
proceedings) in which the Chemical Safety and Hazard Investigation 
Board (CSB) is not a party, and procedures to be followed by the 
employee upon receipt of a subpoena, order, or other demand 
(collectively referred to here as a demand) for such material by a 
court or other competent authority or by a private litigant. Material, 
as used in this part, means any type of physical or documentary 
evidence, including but not limited to paper documents, electronic 
media, videotapes, audiotapes, etc.
    (b) The purposes of this part are to:
    (1) Conserve the time of employees for conducting official 
business;
    (2) Minimize the possibility of involving the CSB in controversial 
issues not related to its mission;
    (3) Maintain the impartiality of the CSB among private litigants;
    (4) Avoid spending the time and money of the United States for 
private purposes; and
    (5) To protect confidential, sensitive information, and the 
deliberative processes of the CSB.


Sec. 1612.2  Applicability.

    This part applies to requests to produce material concerning 
information acquired in the course of performing official duties or 
because of the employee's official status. Specifically, this part 
applies to requests for: material contained in CSB files; and any 
information or material acquired by an employee of the CSB in the 
performance of official duties or as a result of the employee's status. 
Two sets of procedures are here established, dependent on the type of 
material sought. Rules governing requests for employee testimony, as 
opposed to material production, can be found at part 1611 of this 
chapter. Document production shall not accompany employee testimony, 
absent compliance with this part and General Counsel approval.


Sec. 1612.3  Published reports and material contained in the public 
incident investigation dockets.

    (a) Demands for published investigation reports should be directed 
to the Office of Congressional and Public Affairs, U.S. Chemical Safety 
and Hazard Investigation Board, 2175 K Street, NW, Suite 400, 
Washington, DC 20037. Demands for material contained in the CSB's 
official public docket files of its incident investigations shall be 
submitted, in writing, to CSB Records Officer, U.S. Chemical Safety and 
Hazard Investigation Board, 2175 K Street, NW, Suite 400, Washington, 
DC 20037. For information regarding the types of documents routinely 
issued by the CSB, see part 1601 of this chapter.
    (b) No subpoena shall be issued to obtain materials subject to this 
section, and any subpoena issued shall be required to be withdrawn 
prior to release of the requested information. Payment of reproduction 
fees may be required in advance.


Sec. 1612.4  Requests for authentication or certification of records.

    The CSB may authenticate or certify records to facilitate their use 
as evidence. Requests for certified copies should be made to the 
General Counsel at least 30 days before the date they will be needed. 
The CSB may charge a certification fee of $5.00 per document.


Sec. 1612.5  Other material.

    (a) Production prohibited unless approved. Except in the case of 
the material referenced in Sec. 1612.3, no employee or former employee 
of the CSB shall, in response to a demand of a private litigant, court, 
or other authority, produce any material contained in the files of the 
CSB (whether or not agency records under 5 U.S.C. 552) or produce any 
material acquired as part of the performance of the person's official 
duties or because of the person's official status, without the prior 
written approval of the General Counsel.
    (b) Procedures to be followed for the production of material under 
this section.
    (1) All demands for material shall be submitted to the General 
Counsel at CSB headquarters, 2175 K Street, NW., Suite 400, Washington, 
DC 20037. If an employee receives a demand, he shall forward it 
immediately to the General Counsel.
    (2) Each demand must contain an affidavit by the party seeking the 
material or his attorney setting forth the material sought and its 
relevance to the proceeding, and containing a certification, with 
support, that the information is not available from other sources, 
including CSB materials described in Sec. 1612.3 and part 1601 of this 
chapter.
    (3) In the absence of General Counsel approval of a demand, the 
employee is not authorized to comply with the demand.
    (4) The General Counsel shall advise the requester of approval or 
denial of the demand, and may attach whatever conditions to approval 
considered appropriate or necessary to promote the purposes of this 
part. The General Counsel may also permit exceptions to any requirement 
in this part when necessary to prevent a miscarriage of justice, or 
when the exception is in the best interests of the CSB and/or the 
United States.

[FR Doc. 01-7898 Filed 3-29-01; 8:45 am]
BILLING CODE 6350-01-P