[Federal Register Volume 66, Number 91 (Thursday, May 10, 2001)]
[Rules and Regulations]
[Pages 23853-23854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11791]


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CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

40 CFR Part 1611


Testimony by Employees in Legal Proceedings

AGENCY: Chemical Safety and Hazard Investigation Board.

ACTION: Final rule.

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SUMMARY: This rule amends 40 CFR part 1611 (Testimony by Employees in 
Legal Proceedings), published at 66 FR 17364 (March 30, 2001). Part 
1611 provides the Chemical Safety and Hazard Investigation Board's 
(CSB) policy concerning testimony of CSB employees in legal 
proceedings. This rule amends Sec. 1611.2 (Definitions) to add a 
definition of ``employee'' and amends Sec. 1611.6 (Testimony of former 
CSB employees) to add a requirement that former employees notify the 
CSB General Counsel when they are served with a subpoena relating to 
work performed for the CSB.

DATES: This rule is effective May 10, 2001.

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

SUPPLEMENTARY INFORMATION: (1) Amendment to section 1611.2. The current 
CSB rule on testimony by employees in legal proceedings, 40 CFR part 
1611, published at 66 FR 17364 (March 30, 2001) does not define 
``employee.'' The CSB has determined that for the purpose of part 1611 
(as well as part 1612, ``Production of Records in Legal Proceedings'') 
``employee'' should be defined to include all those who undertake work 
for the CSB and who may come into contact with protected information. 
Thus ``employee'' is defined to include: current or former CSB Board 
Members or employees, including student interns, and contractors, 
contract employees, or consultants (and their employees). But it is 
made clear that this definition does not include persons who are no 
longer employed by or under contract to the CSB, and who are retained 
or hired as expert witnesses or agree to testify about matters that do 
not involve their work for the CSB.
    Other agencies have included a similarly broad definition of 
employee for this purpose. See, e.g., Federal Energy Regulatory 
Commission, 18 CFR 388.111; Department of State, 22 CFR 172.1; USAID, 
22 CFR 206.1; Overseas Private Investment Corporation, 22 CFR 713.10; 
Department of the Navy, 32 CFR 725.4; and U.S. Postal Service, 39 CFR 
265.13. Moreover, CSB contractors are already required to sign non-
disclosure agreements, prohibiting them from disclosing in any forum 
(except to CSB employees) trade secret or confidential business 
information obtained in their work for the CSB.
    The need for this broad definition of employee is even more 
necessary 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.
    (2) Amendment to section 1611.6. The current rule pertaining to 
former employees is clarified to include a requirement that any former 
employee who is served with a subpoena to appear and testify in 
connection with civil litigation that relates to his or her work with 
the CSB, shall immediately notify the CSB General Counsel and provide 
all information requested by the General Counsel. This clarification is 
necessary to give notice to former employees of their obligation in 
this regard, and to provide the agency with advance notice of a 
potential problem.
    Public Comment Procedures: Because this rule amends an 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. See 5 U.S.C. 553(a)(2). This rule provides immediate 
clarifying guidance pertaining to CSB employee testimony. As such, the 
CSB finds that good cause exists for making the regulation effective 
immediately upon publication. See 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 employee 
testimony 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 CSB certifies that this regulation will not have a significant 
economic effect on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This regulation 
merely regulates how and when CSB employees may testify 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 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.

[[Page 23854]]

    c. Does not have a significant adverse effect on competition, 
employment, investment, productivity, innovation or 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 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 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, 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.

List of Subjects

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

    For the reasons stated in the preamble, the Chemical Safety and 
Hazard Investigation Board amends 40 CFR part 1611 as follows:

PART 1611--TESTIMONY BY EMPLOYEES IN LEGAL PROCEEDINGS

    1. The authority citation for part 1611 continues to read as 
follows:

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

    2. Amend Sec. 1611.2 to add a new definition paragraph as follows:


Sec. 1611.2  Definitions.

* * * * *
    Employee, for the purpose of this part and part 1612 of this 
chapter, refers to current or former CSB Board Members or employees, 
including student interns, and contractors, contract employees, or 
consultants (and their employees). This definition does not include 
persons who are no longer employed by or under contract to the CSB, and 
who are retained or hired as expert witnesses or agree to testify about 
matters that do not involve their work for the CSB.

    3. Amend Sec. 1611.6 to redesignate the existing text as paragraph 
(a) and to add a new paragraph (b) as follows:


Sec. 1611.6  Testimony of former CSB employees.

    (a) * * *
    (b) Any former employee who is served with a subpoena to appear and 
testify in connection with civil litigation that relates to his or her 
work with the CSB, shall immediately notify the CSB General Counsel and 
provide all information requested by the General Counsel.

    Dated: May 1, 2001.
Christopher W. Warner,
General Counsel.
[FR Doc. 01-11791 Filed 5-9-01; 8:45 am]
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