[Federal Register Volume 67, Number 67 (Monday, April 8, 2002)]
[Proposed Rules]
[Pages 16670-16673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8437]


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CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

40 CFR Part 1603


Rules Implementing the Government in the Sunshine Act

AGENCY: Chemical Safety and Hazard Investigation Board.

ACTION: Proposed rule.

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SUMMARY: The Chemical Safety and Hazard Investigation Board proposes 
new regulations establishing the agency's procedures for implementing 
the Government in the Sunshine Act.

DATES: Submit comments on or before May 8, 2002.

ADDRESSES: Address all comments concerning this proposed rule to 
Christopher Kirkpatrick, Chemical Safety and Hazard Investigation 
Board, 2175 K Street, NW, Suite 400, Washington, DC 20037.

FOR FURTHER INFORMATION CONTACT: Christopher Kirkpatrick, (202) 261-
7600.

SUPPLEMENTARY INFORMATION: The Chemical Safety and Hazard Investigation 
Board (``CSB'' or ``Board''), as an agency headed by a collegial body 
composed of five members appointed by the President with the advice and 
consent of the Senate, is subject to the Government in the Sunshine Act 
(``Sunshine Act'' or ``Act''), 5 U.S.C. 552b. The Sunshine Act 
establishes standards for publicizing and permitting access to agency 
meetings, and for closing meetings to the public under certain 
conditions. The Act requires agencies to promulgate regulations to 
implement the statute's requirements.
    This proposed rule is designed to implement the requirements of the 
Sunshine Act. This proposed rule mirrors the Sunshine Act regulations 
of many other agencies, most specifically, those of the National 
Transportation Safety Board (49 CFR part 804) and the Defense Nuclear 
Facilities Safety Board (10 CFR part 1704).

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, Public Law 104-4, 109 Stat. 48.

List of Subjects in 40 CFR Part 1603

    Sunshine Act.

    For the reasons set forth in the preamble, the Chemical Safety and 
Hazard Investigation Board proposes to add a new 40 CFR part 1603 to 
read as follows:

PART 1603--RULES IMPLEMENTING THE GOVERNMENT IN THE SUNSHINE ACT

Sec.
1603.1   Applicability.
1603.2   Policy.
1603.3   Definitions.
1603.4   Open meetings requirement.
1603.5   Assurance of compliance.
1603.6   Business requiring a meeting.
1603.7   Grounds on which meetings may be closed or information may 
be withheld.
1603.8   Procedures for closing meetings, or withholding 
information, and requests by affected persons to close a meeting.
1603.9   Procedures for public announcement of meetings.
1603.10   Changes following public announcement.
1603.11   Transcripts, recordings, or minutes of closed meetings.
1603.12   Availability of transcripts, recordings, and minutes, and 
applicable fees.
1603.13   Report to Congress.
1603.14   Severability.

    Authority: 5 U.S.C. 552b; 42 U.S.C. 7412(r)(6)(N).


Sec. 1603.1  Applicability.

    (a) This part implements the provisions of the Government in the 
Sunshine Act, 5 U.S.C. 552b. These procedures apply to meetings, as 
defined in this part, of the Members of the Chemical Safety and Hazard 
Investigation Board (``CSB'' or ``Board'').
    (b) This part does not affect the procedures by which CSB records 
are made available to the public, which continue to be governed by part 
1601 of this chapter pursuant to the Freedom of Information Act, 5 
U.S.C. 552, except that the exemptions set forth in Sec. 1603.7 shall 
govern in the case of any requests made for the transcripts, 
recordings, and minutes described in Sec. 1603.11.


Sec. 1603.2  Policy.

    It is the policy of the CSB to provide the public with the fullest 
practicable information regarding the decisionmaking processes of the 
Board, while protecting the rights of individuals and the ability of 
the Board to discharge its statutory functions and responsibilities. 
The public is invited to

[[Page 16671]]

attend but not to participate in open meetings. For any open meeting, 
the Board, by majority vote, may decide to allow for a public comment 
period immediately following the close of that meeting.


Sec. 1603.3  Definitions.

    As used in this part:
    (a) Days means calendar days, except where noted otherwise.
    (b) General Counsel means the Board's principal legal officer, or a 
CSB attorney serving as Acting General Counsel.
    (c) Meeting means the deliberations of at least a quorum of Members 
where such deliberations determine or result in the joint conduct or 
disposition of official CSB business, and includes conference telephone 
calls or other exchanges otherwise coming within the definition. A 
meeting does not include:
    (1) Notation voting or similar consideration of business, whether 
by circulation of material to the Members individually in writing or by 
a polling of the Members individually by telephone.
    (2) Action by at least a quorum of Members to:
    (i) Open or to close a meeting or to release or to withhold 
information pursuant to Sec. 1603.7;
    (ii) Set an agenda for a proposed meeting(s);
    (iii) Call a meeting on less than seven days' notice as permitted 
by Sec. 1603.9(b); or
    (iv) Change the subject matter or the determination to open or to 
close a publicly announced meeting under Sec. 1603.10(b).
    (3) A session attended by at least a quorum of Members for the 
purpose of having the Board's staff or expert consultants to the Board 
brief or otherwise provide information to the Board concerning any 
matters within the purview of the Board under its authorizing statute, 
provided that the Board does not engage in deliberations that determine 
or result in the joint conduct or disposition of official CSB business 
on such matters.
    (4) A session attended by at least a quorum of Members for the 
purpose of having the Environmental Protection Agency or Occupational 
Safety and Health Administration (including contractors of those 
agencies) or other persons or organizations brief or otherwise provide 
information to the Board concerning any matters within the purview of 
the Board under its authorizing statute, provided that the Board does 
not engage in deliberations that determine or result in the joint 
conduct or disposition of official CSB business on such matters.
    (5) A gathering of Members for the purpose of holding informal 
preliminary discussions or exchange of views which do not effectively 
predetermine official action.
    (d) Member means an individual duly appointed and confirmed to the 
collegial body known as the Board.
    (e) Reporter means a CSB employee designated by the General 
Counsel, under section 1603.5(c), to attend and prepare a written 
summary of all briefings described in paragraphs (c)(3) and (c)(4) of 
this section and all informal preliminary discussions described in 
paragraph (c)(5) of this section.
    (f) Sunshine Act means the Government in the Sunshine Act, 5 U.S.C. 
552b.


Sec. 1603.4  Open meetings requirement.

    Any meetings of the Board, as defined in Sec. 1603.3, shall be 
conducted in accordance with this part. Except as provided in 
Sec. 1603.7, the Board's meetings, or portions thereof, shall be open 
to public observation.


Sec. 1603.5  Assurance of compliance.

    (a) The General Counsel or another attorney designated by the 
General Counsel will attend and monitor all briefings described in 
Sec. 1603.3(c)(3) and (c)(4) and all informal preliminary discussions 
described in Sec. 1603.3(c)(5), to assure that those gatherings do not 
proceed to the point of becoming deliberations and meetings for 
Sunshine Act purposes.
    (b) The General Counsel or the designated attorney will inform the 
Board Members if developing discussions at a briefing or gathering 
should be deferred until a notice of an open or closed meeting can be 
published in the Federal Register, and a meeting conducted pursuant to 
the Sunshine Act and this part.
    (c) For each briefing described in Sec. 1603.3(c)(3) or (c)(4) and 
each informal preliminary discussion described in Sec. 1603.3(c)(5), 
the General Counsel is hereby authorized to designate a CSB employee, 
other than the attorney referred to in paragraph (a) of this section, 
to serve as a reporter. An employee may be designated as reporter for a 
single briefing or informal discussion or for a series of briefings or 
discussions. The reporter shall attend and prepare a written summary of 
each briefing(s) or informal discussion(s) for which he/she has been 
designated. The reporter must prepare the summary of a particular 
briefing or informal discussion within five business days after the 
date of that briefing or discussion. The reporter must then submit the 
summary to the General Counsel or the designated attorney who attended 
the briefing or informal discussion that is the subject of the summary 
for review and approval as a fair and accurate summary of that briefing 
or discussion. The written summaries of briefings and informal 
discussions shall be maintained in the Office of General Counsel.


Sec. 1603.6  Business requiring a meeting.

    The Board may, by majority vote of its Members, determine that 
particular items or classes of Board business cannot be accomplished by 
notation voting, but must instead be decided by a recorded vote at a 
meeting, as defined in Sec. 1603.3(c).


Sec. 1603.7  Grounds on which meetings may be closed or information may 
be withheld.

    Except in a case where the Board finds that the public interest 
requires otherwise, a meeting may be closed and information pertinent 
to such meeting otherwise required by Secs. 1603.8, 1603.9, and 1603.10 
to be disclosed to the public may be withheld if the Board properly 
determines that such meeting or portion thereof or the disclosure of 
such information is likely to:
    (a) Disclose matters that are:
    (1) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interests of national defense 
or foreign policy, and
    (2) Are, in fact, properly classified pursuant to such Executive 
Order. In making the determination that this exemption applies, the 
Board shall rely upon the classification assigned to a document by the 
Environmental Protection Agency, Occupational Safety and Health 
Administration, or other originating agency;
    (b) Relate solely to the internal personnel rules and practices of 
the CSB;
    (c) Disclose matters specifically exempted from disclosure by 
statute (other than 5 U.S.C. 552), provided that such statute:
    (1) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (2) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (d) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (e) Involve accusing any person of a crime, or formally censuring 
any person;

[[Page 16672]]

    (f) Disclose information of a personal nature where disclosure 
would constitute a clearly unwarranted invasion of personal privacy;
    (g) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would:
    (1) Interfere with enforcement proceedings;
    (2) Deprive a person of a right to a fair trial or an impartial 
adjudication;
    (3) Constitute an unwarranted invasion of personal privacy;
    (4) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source;
    (5) Disclose investigative techniques and procedures; or
    (6) Endanger the life or physical safety of law enforcement 
personnel;
    (h) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed action 
of the CSB, except that this paragraph (h) shall not apply in any 
instance where the Board has already disclosed to the public the 
content or nature of its proposed action or is not required by law to 
make such disclosure on its own initiative prior to taking final action 
on such proposal;
    (i) Specifically concern the Board's issuance of a subpoena, or the 
CSB's participation in a civil action or proceeding, an action in a 
foreign court or international tribunal, or an arbitration, or the 
initiation, conduct, or disposition by the CSB of a particular case of 
formal agency adjudication pursuant to the procedures in 5 U.S.C. 554 
or otherwise involving a determination on the record after opportunity 
for a hearing; or
    (j) Disclose other information for which the Government in the 
Sunshine Act provides an exemption to the open meeting requirements of 
that Act.


Sec. 1603.8  Procedures for closing meetings, or withholding 
information, and requests by affected persons to close a meeting.

    (a) A meeting shall not be closed, or information pertaining 
thereto withheld, unless a majority of all Members votes to take such 
action. A majority of the Board may act by taking a single vote with 
respect to any action under Sec. 1603.7. A single vote is permitted 
with respect to a series of meetings, a portion or portions of which 
are proposed to be closed to the public, or with respect to any 
information concerning such series of meetings, so long as each meeting 
in such series involves the same particular subject matters and is 
scheduled to be held no more than thirty days after the initial meeting 
in such series. Each Member's vote under this paragraph shall be 
recorded and proxies are not permitted.
    (b) Any person whose interest may be directly affected if a portion 
of a meeting is open may request the Board to close that portion on any 
of the grounds referred to in Sec. 1603.7 (e) through (g). Requests, 
with reasons in support thereof, should be submitted in writing, no 
later than two days before the meeting in question, to the General 
Counsel, Chemical Safety and Hazard Investigation Board, 2175 K Street, 
NW., Suite 400, Washington, DC 20037. On motion of any Member, the 
Board shall determine by recorded vote whether to grant the request.
    (c) Within one working day of any vote taken pursuant to this 
section, the CSB shall make available a written copy of such vote 
reflecting the vote of each Member on the question and, if a portion of 
a meeting is to be closed to the public, a full written explanation of 
its action closing the meeting and a list of all persons expected to 
attend and their affiliation.
    (d) Before every closed meeting, the General Counsel of the CSB 
shall publicly certify that, in his/her opinion, the meeting may be 
closed to the public and shall state each relevant exemption provision. 
If the General Counsel invokes the exemption for classified or 
sensitive unclassified information under Sec. 1603.7(a), he/she shall 
rely upon the classification or designation assigned to the document 
containing such information by the Environmental Protection Agency, 
Occupational Safety and Health Administration, or other originating 
agency. A copy of such certification, together with a statement setting 
forth the time and place of the meeting and the persons present, shall 
be retained by the Board as part of the transcript, recording, or 
minutes required by Sec. 1603.11.


Sec. 1603.9  Procedures for public announcement of meetings.

    (a) For each meeting, the CSB shall make public announcement, at 
least one week before the meeting, of:
(1) The time of the meeting;
(2) The place of the meeting;
(3) The subject matter of the meeting;
(4) Whether the meeting is to be open or closed; and
    (5) The name and business telephone number of the official 
designated by the CSB to respond to requests for information about the 
meeting.
    (b) The one week advance notice required by paragraph (a) of this 
section may be reduced only if:
    (1) A majority of all Members determines by recorded vote that CSB 
business requires that such meeting be scheduled in less than seven 
days; and
    (2) The public announcement required by paragraph (a) of this 
section is made at the earliest practicable time.
    (c) Immediately following each public announcement required by this 
section, or by Sec. 1603.10, the CSB shall submit a notice of public 
announcement for publication in the Federal Register.


Sec. 1603.10  Changes following public announcement.

    (a) The time or place of a meeting may be changed following the 
public announcement only if the CSB publicly announces such change at 
the earliest practicable time. Members need not approve such change.
    (b) A meeting may be cancelled, or the subject matter of a meeting 
or the determination of the Board to open or to close a meeting, or a 
portion thereof, to the public may be changed following public 
announcement only if:
    (1) A majority of all Members determines by recorded vote that CSB 
business so requires and that no earlier announcement of the 
cancellation or change was possible; and
    (2) The CSB publicly announces such cancellation or change and the 
vote of each Member thereon at the earliest practicable time.
    (c) The deletion of any subject matter announced for a meeting is 
not a change requiring the approval of the Board under paragraph (b) of 
this section.


Sec. 1603.11  Transcripts, recordings, or minutes of closed meetings.

    (a) Along with the General Counsel's certification referred to in 
Sec. 1603.8(d), the CSB shall maintain a complete transcript or 
electronic recording adequate to record fully the proceedings of each 
meeting, or a portion thereof, closed to the public. The CSB may 
maintain a set of minutes in lieu of such transcript or recording for 
meetings closed pursuant to Sec. 1603.7(i). Such minutes shall fully 
and clearly describe all matters discussed and shall provide a full and 
accurate summary of any actions taken, and the reasons therefor, 
including a description of each of the views expressed on any item and 
the record of any rollcall vote. All documents considered in connection 
with any actions shall be identified in such minutes.

[[Page 16673]]

    (b) The CSB shall maintain a complete verbatim copy of the 
transcript, a complete copy of the minutes, or a complete electronic 
recording of each meeting, or a portion thereof, closed to the public 
for at least two years after such meeting, or until one year after the 
conclusion of any CSB proceeding with respect to which the meeting, or 
a portion thereof, was held, whichever occurs later.


Sec. 1603.12  Availability of transcripts, recordings, and minutes, and 
applicable fees.

    The CSB shall make promptly available to the public the transcript, 
electronic recording, or minutes of the discussion of any item on the 
agenda or of any testimony received at a meeting, except for such item, 
or items, of discussion or testimony as determined by the CSB to 
contain matters which may be withheld under the exemptive provisions of 
Sec. 1603.7. Copies of the nonexempt portions of the transcript or 
minutes, or transcription of such recordings disclosing the identity of 
each speaker, shall be furnished to any person at the actual cost of 
transcription or duplication. Requests for transcripts, recordings, or 
minutes shall be made in writing to the General Counsel of the CSB, 
2175 K Street, NW, Suite 400, Washington, DC 20037.


Sec. 1603.13  Report to Congress.

    The CSB General Counsel shall annually report to the Congress 
regarding the Board's compliance with the Government in the Sunshine 
Act, including a tabulation of the total number of open meetings, the 
total number of closed meetings, the reasons for closing such meetings 
and a description of any litigation brought against the Board pursuant 
to the Government in the Sunshine Act, including any cost assessed 
against the Board in such litigation (whether or not paid by the 
Board).


Sec. 1603.14  Severability.

    If any provision of this part or the application of such provision 
to any person or circumstances, is held invalid, the remainder of this 
part or the application of such provision to persons or circumstances 
other than those as to which it is held invalid, shall not be affected 
thereby.

    Dated: April 3, 2002.
Christopher W. Warner,
General Counsel.
[FR Doc. 02-8437 Filed 4-5-02; 8:45 am]
BILLING CODE 6350-01-U