[Federal Register Volume 66, Number 220 (Wednesday, November 14, 2001)]
[Proposed Rules]
[Pages 57003-57007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28543]


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DEFENSE NUCLEAR FACILITIES SAFETY BOARD

10 CFR Part 1707


Testimony by DNFSB Employees and Production of Official Records 
in Legal Proceedings

AGENCY: Defense Nuclear Facilities Safety Board (DNFSB).

ACTION: Proposed rule.

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SUMMARY: The Defense Nuclear Facilities Safety Board (DNFSB) is issuing 
a proposed rule that sets forth procedures that requesters would have 
to follow when making demands or requests to a DNFSB employee to 
produce official records or information or to provide testimony 
relating to official information in connection with a legal proceeding 
in which the DNFSB is not a party. This proposed rule establishes 
procedures to respond to such demands and requests in an orderly and 
consistent manner. The rule, among other benefits, promotes uniformity 
in decisions, protects confidential information, provides guidance to 
requesters, and reduces the potential for both inappropriate 
disclosures of official information and wasteful allocation of agency 
resources.

DATES: Comments must be received on or before December 14, 2001.

ADDRESSES: Send comments to Richard A. Azzaro, General Counsel, Defense 
Nuclear Facilities Safety Board, 625 Indiana Avenue, NW., Suite 700, 
Washington, DC 20004-2901.

FOR FURTHER INFORMATION CONTACT: Richard A. Azzaro, General Counsel, 
Defense Nuclear Facilities Safety Board, 625 Indiana Avenue, NW., Suite 
700, Washington, DC 20004-2901, telephone: 202-694-7062; FAX: 202-208-
6518.

SUPPLEMENTARY INFORMATION:

Background

    The Defense Nuclear Facilities Safety Board may receive subpoenas 
and requests for DNFSB employees to provide evidence in litigation in 
which the DNFSB is not a party. These subpoenas and requests may also 
be for DNFSB records that are not available to the public under the 
Freedom of Information Act. Also, DNFSB could receive subpoenas or 
requests for DNFSB employees to appear as witnesses in litigation in 
conjunction with a request for nonpublic records.
    Responding to such demands and requests could divert DNFSB 
resources from their congressionally mandated functions. The proposed 
regulation will ensure a more efficient use of DNFSB resources, 
minimize the possibility of involving DNFSB in issues unrelated to its 
responsibilities, promote uniformity in responding to such requests and 
subpoenas, and maintain impartiality of DNFSB in matters that are in 
dispute between other parties. It also serves DNFSB's duty to protect 
sensitive, confidential, and privileged information and records.
    Furthermore, responding to such demands and requests could also 
result in significant disruption in a DNFSB employee's work schedule. 
The result is that employees may be diverted from performing their 
official duties in order to respond to requests from parties in 
litigation. In order to address this problem, many agencies over the 
years have issued ``Touhy'' regulations that are similar to this 
proposed regulation, governing the circumstances and manner in which an 
employee may respond to demands for testimony or for the production of 
documents. Such a regulation was upheld by the United States Supreme 
Court in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    In Touhy, the Supreme Court held that a Department of Justice (DOJ) 
official, acting on order of the Attorney

[[Page 57004]]

General, could not be held in contempt for declining to produce records 
in response to a subpoena. The employee's refusal was based upon a DOJ 
regulation that prohibited disclosure of agency files, documents, 
records, or information without the express approval of the Attorney 
General. The Court upheld the validity of the DOJ regulation, reasoning 
that it was appropriate for the Attorney General to prescribe 
regulations not inconsistent with law for the custody, use, and 
preservation of records, papers, and property pertaining to the 
Department of Justice.
    Briefly summarized, this proposed rule would prohibit disclosure of 
nonpublic official records or testimony by DNFSB employees unless 
authorization is provided pursuant to the rule (Secs. 1707.201 and 
1707.203). The proposed rule identifies the factors that DNFSB will 
consider in making determinations in response to such requests and what 
information requesters must provide (Secs. 1707.202 and 1707.203). The 
proposed rule also specifies when the request should be submitted 
(Sec. 1707.203), the time period for review (Sec. 1707.205), potential 
fees (Sec. 1707.301), and, if a request is granted, any restrictions 
that may be placed on the disclosure of records or the appearance of a 
DNFSB employee as a witness (Secs. 1707.207 and 1707.208). The charges 
for witnesses are the same as those provided by the Federal courts; and 
the fees related to production of records are the same as those charged 
under FOIA. The charges for time spent by an employee to prepare for 
testimony and for certification of records by DNFSB are authorized 
under 31 U.S.C. 9701, which permits an agency to charge for services or 
things of value that are provided by the agency.
    The proposed rule applies to a broad range of matters in any legal 
proceeding in which DNFSB is not a named party. It also applies to 
former and current DNFSB employees (as well as DNFSB consultants and 
advisors). Former employees are prohibited from testifying about 
specific matters for which they had responsibility during their active 
employment unless permitted to testify as provided in the proposed 
rule. They would not be barred from appearing to testify about general 
matters unconnected with the specific matters for which they had 
responsibility.
    The proposed DNFSB rule is internal to the agency, and is 
essentially procedural, not substantive. It would not create a right to 
obtain official records or the testimony of a DNFSB employee nor would 
it create any additional right or privilege not already available to 
DNFSB to deny any demand or request therefor. However, failure to 
comply with the procedures in the proposed rule would be a basis for 
denying a demand or request submitted to DNFSB.

Matters of Regulatory Procedure

Administrative Procedure Act

    This rulemaking is in compliance with the Administrative Procedure 
Act (5 U.S.C. 553) and allows for a 30-day comment period. Interested 
persons are invited to submit written comments to DNFSB on this 
proposed regulation, to be received on or before December 14, 2001. The 
Defense Nuclear Facilities Safety Board will review all comments 
received and consider any modifications to this proposal which appear 
warranted in issuing its final rule.

Regulatory Flexibility Act

    For purposes of the Regulatory Flexibility Act (5 U.S.C. chapter 
6), the rule will not have a significant economic impact on a 
substantial number of small entities. The rule addresses only the 
procedures to be followed in the production or disclosure of DNFSB 
materials and information in litigation where DNFSB is not a party.
    Accordingly, DNFSB has determined that a Regulatory Flexibility 
Analysis is not required.

Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
chapter 25, subchapter II), the proposed rule would not significantly 
or uniquely affect small governments and would not result in increased 
expenditures by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more (as adjusted for 
inflation).

Executive Order 12866

    In issuing this regulation, the Defense Nuclear Facilities Safety 
Board has adhered to the regulatory philosophy and the applicable 
principles of regulation as set forth in section 1 of Executive Order 
12866, Regulatory Planning and Review. This rule has not been reviewed 
by the Office of Management and Budget under that Executive Order since 
it is not a significant regulatory action within the meaning of the 
Executive Order.

Executive Order 12988

    The Defense Nuclear Facilities Safety Board, has reviewed this 
regulation in light of section 3 of Executive Order 12988, Civil 
Justice Reform, and certifies that it meets the applicable standards 
provided therein.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply 
because this regulation does not contain information collection 
requirements that require approval by the Office of Management and 
Budget. The Defense Nuclear Facilities Safety Board expects the 
collection of information that is called for by the regulation would 
involve fewer than ten persons each year.

Congressional Review Act

    The Defense Nuclear Facilities Safety Board has determined that 
this rulemaking does not involve a rule within the meaning of the 
Congressional Review Act (5 U.S.C. chapter 8).

List of Subjects in 10 CFR Part 1707

    Administrative practice and procedure, Conflict of interests, 
Courts, Government employees, Records, Subpoenas, Testimony.

    Approved: November 8, 2001.
John T. Conway,
Chairman, Defense Nuclear Facilities Safety Board.
    Accordingly, for the reasons set forth in the preamble, the Defense 
Nuclear Facilities Safety Board propses to add a new part 1707 to 10 
CFR to read as follows:

PART 1707--TESTIMONY BY DNFSB EMPLOYEES AND PRODUCTION OF OFFICIAL 
RECORDS IN LEGAL PROCEEDINGS

Subpart A--General Provisions

Sec.
1707.101  Scope and purpose.
1707.102  Applicability.
1707.103  Definitions.
Subpart B--Requests for Testimony and Production of Documents
1707.201  General prohibition.
1707.202  Factors DNFSB will consider.
1707.203  Filing requirements for demands or requests for documents 
or testimony.
1707.204  Service of subpoenas or requests.
1707.205  Processing demands or requests.
1707.206  Final determination.
1707.207  Restrictions that apply to testimony.
1707.208  Restrictions that apply to released records.
1707.209  Procedure when a decision is not made prior to the time a 
response is required.
1707.210  Procedure in the event of an adverse ruling.
Subpart C--Schedule of Fees
1707.301  Fees.
Subpart D--Penalties
1707.401  Penalties.


[[Page 57005]]


    Authority: Enabling Statute of the Defense Nuclear Facilities 
Safety Board, 42 U.S.C. 2286b(c); 44 U.S.C. 3101-3107, 3301-3303a, 
3308-3314.

Subpart A--General Provisions


Sec. 1707.101  Scope and purpose.

    (a) This part sets forth policies and procedures you must follow 
when you submit a demand or request to an employee of the Defense 
Nuclear Facilities Safety Board (DNFSB) to produce official records and 
information, or provide testimony relating to official information, in 
connection with a legal proceeding. You must comply with these 
requirements when you request the release or disclosure of official 
records and information.
    (b) The Defense Nuclear Facilities Safety Board intends these 
provisions to:
    (1) Promote economy and efficiency in its programs and operations;
    (2) Minimize the possibility of involving DNFSB in controversial 
issues not related to our functions;
    (3) Maintain DNFSB's impartiality among private litigants where 
DNFSB is not a named party; and
    (4) Protect sensitive, confidential information and the 
deliberative processes of DNFSB.
    (c) In providing for these requirements, DNFSB does not waive the 
sovereign immunity of the United States.
    (d) This part provides guidance for the internal operations of 
DNFSB. It does not create any right or benefit, substantive or 
procedural, that a party may rely upon in any legal proceeding against 
the United States.


Sec. 1707.102  Applicability.

    This part applies to demands and requests to employees for factual, 
opinion, or expert testimony relating to official information, or for 
production of official records or information, in legal proceedings 
whether or not the United States or the DNFSB is a named party. 
However, it does not apply to:
    (a) Demands upon or requests for a DNFSB employee to testify as to 
facts or events that are unrelated to his or her official duties or 
that are unrelated to the functions of DNFSB;
    (b) Demands upon or requests for a former DNFSB employee to testify 
as to matters in which the former employee was not directly or 
materially involved while at the DNFSB;
    (c) Requests for the release of records under the Freedom of 
Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; and
    (d) Congressional demands and requests for testimony or records.


Sec. 1707.103  Definitions.

    Demand means a subpoena, or an order or other demand of a court or 
other competent authority, for the production, disclosure, or release 
of records or for the appearance and testimony of a DNFSB employee that 
is issued in a legal proceeding.
    DNFSB means the Defense Nuclear Facilities Safety Board.
    DNFSB employee or employee means:
    (1) Any current or former officer or employee of DNFSB;
    (2) Any contractor or contractor employee working on behalf of the 
DNFSB or who has performed services for DNFSB; and
    (3) Any individual who is serving or has served in any advisory 
capacity to DNFSB, whether formal or informal.
    (4) Provided, that this definition does not include persons who are 
no longer employed by DNFSB and who are retained or hired as expert 
witnesses or who agree to testify about general matters, matters 
available to the public, or matters with which they had no specific 
involvement or responsibility during their employment with DNFSB.
    General Counsel means the General Counsel of DNFSB or a person to 
whom the General Counsel has delegated authority under this part.
    Legal proceeding means any matter 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. Legal proceeding includes all phases of litigation.
    Records or official records and information mean:
    (1) All documents and materials which are DNFSB agency records 
under the Freedom of Information Act, 5 U.S.C. 552;
    (2) All other documents and materials contained in DNFSB files; and
    (3) All other information or materials acquired by a DNFSB employee 
in the performance of his or her official duties or because of his or 
her official status.
    Request means any formal or informal request, by whatever method, 
for the production of records and information or for testimony which 
has not been demanded by a court or other competent authority.
    Testimony means any written or oral statements, including but not 
limited to depositions, answers to interrogatories, affidavits, 
declarations, interviews, and statements made by an individual in 
connection with a legal proceeding.

Subpart B--Requests for Testimony and Production of Documents


Sec. 1707.201  General prohibition.

    No employee may produce official records and information or provide 
any testimony relating to official information in response to a demand 
or request without the prior, written approval of the General Counsel.


Sec. 1707.202  Factors DNFSB will consider.

    The General Counsel, in his or her sole discretion, may grant an 
employee permission to testify on matters relating to official 
information, or produce official records and information, in response 
to a demand or request. Among the relevant factors that the General 
Counsel may consider in making this decision are whether:
    (a) The purposes of this part are met;
    (b) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice;
    (c) DNFSB has an interest in the decision that may be rendered in 
the legal proceeding;
    (d) Allowing such testimony or production of records would assist 
or hinder DNFSB in performing its statutory duties or use DNFSB 
resources where responding to the request will interfere with the 
ability of DNFSB employees to do their work;
    (e) Allowing such testimony or production of records would be in 
the best interest of DNFSB or the United States;
    (f) The records or testimony can be obtained from other sources;
    (g) The demand or request is unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand or request 
arose;
    (h) Disclosure would violate a statute, executive order or 
regulation;
    (i) Disclosure would reveal confidential, sensitive, or privileged 
information, trade secrets or similar, confidential commercial or 
financial information, or otherwise protected information, or would 
otherwise be inappropriate for release;
    (j) Disclosure would impede or interfere with an ongoing law 
enforcement investigation or proceedings;
    (k) Disclosure would compromise constitutional rights;
    (l) Disclosure would result in DNFSB appearing to favor one 
litigant over another;
    (m) Disclosure relates to documents that were produced by another 
agency;
    (n) A substantial Government interest is implicated;

[[Page 57006]]

    (o) The demand or request is within the authority of the party 
making it; and
    (p) The demand or request is sufficiently specific to be answered.


Sec. 1707.203  Filing requirements for demands or requests for 
documents or testimony.

    You must comply with the following requirements whenever you issue 
demands or requests to a DNFSB employee for official records, 
information, or testimony.
    (a) Your request must be in writing and must be submitted to the 
General Counsel. If you serve a subpoena on DNFSB or a DNFSB employee 
before submitting a written request and receiving a final 
determination, DNFSB will oppose the subpoena on grounds that your 
request was not submitted in accordance with this subpart.
    (b) Your written request must contain the following information:
    (1) The caption of the legal proceeding, docket number, and name 
and address of the court or other authority involved;
    (2) A copy of the complaint or equivalent document setting forth 
the assertions in the case and any other pleading or document necessary 
to show relevance of the testimony, records, or information you seek 
from the DNFSB;
    (3) A list of categories of records sought, a detailed description 
of how the information sought is relevant to the issues in the legal 
proceeding, and a specific description of the substance of the 
testimony or records sought;
    (4) A statement as to how the need for the information outweighs 
the need to maintain any confidentiality of the information and 
outweighs the burden on DNFSB to produce the records or provide 
testimony;
    (5) A statement indicating that the information sought is not 
available from another source, from other persons or entities, or from 
the testimony of someone other than a DNFSB employee, such as a 
retained expert;
    (6) If testimony is requested, the intended use of the testimony, a 
general summary of the desired testimony, and a showing that no 
document could be provided and used in lieu of testimony;
    (7) A description of all prior decisions, orders, or pending 
motions in the case that bear upon the relevance of the requested 
records or testimony;
    (8) The name, address, and telephone number of counsel to each 
party in the case; and
    (9) An estimate of the amount of time that the requester and other 
parties will require with each DNFSB employee for time spent by the 
employee to prepare for testimony, in travel, and for attendance in the 
legal proceeding.
    (c) The Defense Nuclear Facilities Safety Board reserves the right 
to require additional information to complete your request where 
appropriate.
    (d) Your request should be submitted at least 45 days before the 
date that records or testimony is required. Requests submitted in less 
than 45 days before records or testimony is required must be 
accompanied by a written explanation stating the reasons for the late 
request and the reasons for expedited processing.
    (e) Failure to cooperate in good faith to enable the General 
Counsel to make an informed decision may serve as the basis for a 
determination not to comply with your request.


Sec. 1707.204  Service of subpoenas or requests.

    Subpoenas or requests for official records or information or 
testimony must be served on the General Counsel, Defense Nuclear 
Facilities Safety Board, 625 Indiana Avenue, NW., Suite 700, 
Washington, DC 20004-2901.


Sec. 1707.205  Processing demands or requests.

    (a) After service of a demand or request to testify, the General 
Counsel will review the demand or request and, in accordance with the 
provisions of this subpart, determine whether, or under what 
conditions, to authorize the employee to testify on matters relating to 
official information and/or produce official records and information.
    (b) The Defense Nuclear Facilities Safety Board will process 
requests in the order in which they are received. Absent exigent or 
unusual circumstances, DNFSB will respond within 45 days from the date 
that we receive it. The time for response will depend upon the scope of 
the request.
    (c) The General Counsel may grant a waiver of any procedure 
described by this subpart where a waiver is considered necessary to 
promote a significant interest of the DNFSB or the United States or for 
other good cause.


Sec. 1707.206  Final determination.

    The General Counsel makes the final determination on demands and 
requests to employees for production of official records and 
information or testimony. All final determinations are within the sole 
discretion of the General Counsel. The General Counsel will notify the 
requester and the court or other authority of the final determination, 
the reasons for the grant or denial of the demand or request, and any 
conditions that the General Counsel may impose on the release of 
records or information, or on the testimony of a DNFSB employee.


Sec. 1707.207  Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on 
the testimony of DNFSB employees including, for example, limiting the 
areas of testimony or requiring the requester and other parties to the 
legal proceeding to agree that the transcript of the testimony 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 may also require a copy of the transcript of testimony 
at the requester's expense.
    (b) The DNFSB may offer the employee's written declaration in lieu 
of testimony.
    (c) If authorized to testify pursuant to this part, an employee may 
testify as to facts within his or her personal knowledge, but, unless 
specifically authorized to do so by the General Counsel, the employee 
shall not:
    (1) Disclose classified, privileged, or otherwise protected 
information;
    (2) Testify as an expert or opinion witness with regard to any 
matter arising out of the employee's official duties or the functions 
of DNFSB unless testimony is being given on behalf of the United States 
(see also 5 CFR 2635.805 for current employees).


Sec. 1707.208  Restrictions that apply to released records.

    (a) The General Counsel may impose conditions or restrictions on 
the release of official records and information, including the 
requirement that parties to the proceeding obtain a protective order or 
execute a confidentiality agreement to limit access and any further 
disclosure. The terms of the protective order or of a confidentiality 
agreement must be acceptable to the General Counsel. In cases where 
protective orders or confidentiality agreements have already been 
executed, DNFSB may condition the release of official records and 
information on an amendment to the existing protective order or 
confidentiality agreement.
    (b) If the General Counsel so determines, original DNFSB records 
may be presented for examination in response to a demand or request, 
but they are not to be presented as evidence or otherwise used in a 
manner by which they could lose their identity as official DNFSB 
records, nor are they to be marked or altered. In lieu of the original 
records, certified copies will be

[[Page 57007]]

presented for evidentiary purposes (see 28 U.S.C. 1733).


Sec. 1707.209  Procedure when a decision is not made prior to the time 
a response is required.

    If a response to a demand or request is required before the General 
Counsel can make the determination referred to in Sec. 1707.201, the 
General Counsel, when necessary, will provide the court or other 
competent authority with a copy of this part, inform the court or other 
competent authority that the demand or request is being reviewed, and 
seek a stay of the demand or request pending a final determination.


Sec. 1707.210  Procedure in the event of an adverse ruling.

    If the court or other competent authority fails to stay the demand, 
the employee upon whom the demand is made, unless otherwise advised by 
the General Counsel, will appear at the stated time and place, produce 
a copy of this part, state that the employee has been advised by 
counsel not to provide the requested testimony or produce documents, 
and respectfully decline to comply with the demand, citing United 
States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). A written response 
may be offered to a request, or to a demand, if permitted by the court 
or other competent authority.

Subpart C--Schedule of Fees


Sec. 1707.301  Fees.

    (a) Generally. The General Counsel may condition the production of 
records or appearance for testimony upon advance payment of a 
reasonable estimate of the costs to DNFSB.
    (b) Fees for records. Fees for producing records will include fees 
for searching, reviewing, and duplicating records, costs of attorney 
time spent in reviewing the demand or request, and expenses generated 
by materials and equipment used to search for, produce, and copy the 
responsive information. Costs for employee time will be calculated on 
the basis of the hourly pay of the employee (including all pay, 
allowance, and benefits). Fees for duplication will be the same as 
those charged by DNFSB in its Freedom of Information Act fee 
regulations at 10 CFR part 1703.
    (c) Witness fees. Fees for attendance by a witness will include 
fees, expenses, and allowances prescribed by the court's rules. If no 
such fees are prescribed, witness fees will be determined based upon 
the rule of the Federal district court closest to the location where 
the witness will appear. Such fees will include cost of time spent by 
the witness to prepare for testimony, in travel, and for attendance in 
the legal proceeding.
    (d) Payment of fees. You must pay witness fees for current DNFSB 
employees and any records certification fees by submitting to the 
General Counsel a check or money order for the appropriate amount made 
payable to the Treasury of the United States. In the case of testimony 
by former DNFSB employees, you must pay applicable fees directly to the 
former employee in accordance with 28 U.S.C. 1821 or other applicable 
statutes.
    (e) Certification (authentication) of copies of records. The 
Defense Nuclear Facilities Safety Board may certify that records are 
true copies in order to facilitate their use as evidence. If you seek 
certification, you must request certified copies from DNFSB at least 45 
days before the date they will be needed. The request should be sent to 
the General Counsel. You will be charged a certification fee of $15.00 
for each document certified.
    (f) Waiver or reduction of fees. The General Counsel, in his or her 
sole discretion, may, upon a showing of reasonable cause, waive or 
reduce any fees in connection with the testimony, production, or 
certification of records.
    (g) De minimis fees. Fees will not be assessed if the total charge 
would be $10.00 or less.

Subpart D--Penalties


Sec. 1707.401  Penalties.

    (a) An employee who discloses official records or information or 
gives testimony relating to official information, except as expressly 
authorized by DNFSB or as ordered by a Federal court after DNFSB has 
had the opportunity to be heard, may face the penalties provided in 18 
U.S.C. 641 and other applicable laws. Additionally, former DNFSB 
employees are subject to the restrictions and penalties of 18 U.S.C. 
207 and 216.
    (b) A current DNFSB employee who testifies or produces official 
records and information in violation of this part shall be subject to 
disciplinary action.

[FR Doc. 01-28543 Filed 11-13-01; 8:45 am]
BILLING CODE 3670-01-P