[Federal Register Volume 68, Number 19 (Wednesday, January 29, 2003)]
[Rules and Regulations]
[Pages 4392-4393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2001]


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CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

40 CFR Part 1610


Transcripts of Witness Testimony in Investigations

AGENCY: Chemical Safety and Hazard Investigation Board.

ACTION: Final rule.

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SUMMARY: The Chemical Safety and Hazard Investigation Board (``CSB'' or 
``Board'') implements a new rule concerning transcripts of the 
testimony of witnesses appearing at Board depositions. The rule 
provides that witnesses have the right to petition to procure a copy of 
a transcript of their testimony, except that due to the nonpublic 
nature of Board depositions, witnesses (and their counsel) may for good 
cause be limited to inspection of the official transcript of their 
testimony.

DATES: Effective February 28, 2003.

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

SUPPLEMENTARY INFORMATION: The Chemical Safety and Hazard Investigation 
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 for 
conducting investigations under this provision in 40 CFR 1610 and has 
spelled out the rights of witnesses to be represented in such 
proceedings (section 1610.1) and rules concerning attorney misconduct, 
(section 1610.2) and sequestration of witnesses and exclusion of 
counsel (section 1610.3). The Board has determined that it would be 
useful to add a provision concerning the taking, handling, and 
inspection of transcripts of Board depositions.
    In the Federal Register of December 9, 2002 (67 FR 72890), the CSB 
published a proposed rule setting forth new practices and procedures 
for the taking, handling, and inspection of transcripts of Board 
depositions. The proposed rule provided for a 30-day comment period. No 
comments were received in response to the proposed rule and invitation 
for comments. This final rule is unchanged from the proposed rule.
    In promulgating this regulation, the Board is following section 
555(c) of the Administrative Procedure Act, which provides:

    A person compelled to submit data or evidence is entitled to 
retain or, on payment of lawfully prescribed costs, procure a copy 
or transcript thereof, except that in a nonpublic investigatory 
proceeding the witness may for good cause be limited to inspection 
of the official transcript of his testimony.

    On its face, section 555(c) recognizes that it is sometimes 
necessary to balance a compelled witness' right to have access to his 
or her testimony, and an agency's need to limit the dissemination of 
sensitive matters revealed in such testimony.
    Board depositions are nonpublic investigatory proceedings. 
Attendance at depositions is limited to the minimum number of necessary 
CSB staff, the witness, and one attorney representing the witness. 
Depositions are not open to multiple attorneys representing the 
witness, non-attorney representative of the witness, or representatives 
of other parties (40 CFR part 1610). The Board's regulations on Freedom 
of Information Act requests (40 CFR part 1601) and on Production of 
Records in Legal Proceedings (40 CFR part 1612) further demonstrate 
that the Board recognizes that some of the information obtained in its 
investigation may not be appropriate for public dissemination.
    Several considerations have led the Board to conclude that it is 
necessary to establish a mechanism to ensure appropriate control over 
the dissemination of deposition transcripts while also respecting 
witness' rights under the Administrative Procedure Act. Because of the 
nature of Board investigations, deposition testimony may contain 
sensitive information. For example, testimony may reveal trade secrets 
and confidential business information, which are protected by the Trade 
Secrets Act, 18 U.S.C. 1905.
    Protection of the integrity of Board investigations also 
necessitates control over the dissemination of deposition transcripts. 
First-hand witness accounts are an invaluable source of information 
about the events leading to, and causes of, chemical incidents. 
Witnesses can be reluctant to cooperate, though, out of fear of 
whistleblower retaliation. The CSB would likely have greater difficulty 
obtaining vital testimony if witnesses believed that their testimony 
could easily become known to their employers and to other witnesses. 
Reasonable limits, such as those included in this regulation, on the 
dissemination of transcripts also helps to prevent the coaching of 
future witnesses based on testimony already given. Such preparation is 
undesirable in health and safety investigations, where it is important 
to gather unvarnished facts and untainted recollections.
    Ultimately, the Board's duty is to obtain the facts about chemical 
incidents and to report objectively based on those facts. The 
Administrative Procedure Act provision limiting the release of 
transcripts in non-public proceedings is intended to facilitate 
missions such as the Board's. It protects

[[Page 4393]]

against harms that would be caused by premature circulation of such 
transcripts, while protecting the witness' rights by allowing him or 
her to inspect the official transcript. This approach, embodied in this 
regulation, is also consistent with the principles of Attorney General 
Ashcroft's October 12, 2001, ``Memorandum for Heads of All Federal 
Departments and Agencies,'' on the Freedom of Information Act, in which 
he said, ``Any discretionary decision by your agency to disclose 
information protected under the FOIA should be made only after full and 
deliberate consideration of the institutional, commercial, and personal 
privacy interests that could be implicated by disclosure of the 
information.''
    This proposal is modeled on the rules of the Securities and 
Exchange Commission (17 CFR 203.6) and those of other agencies which 
also follow the APA and permit the agency to limit witnesses to 
inspection of transcripts in non-public investigatory proceedings for 
good cause. The Board has followed the APA process by allowing 
witnesses, after their testimony, to ask the General Counsel for the 
opportunity to procure a copy of the transcript, provided, of course, 
that for good cause, the General Counsel may deny the petition and 
limit the witness (and his or her counsel) to an inspection of the 
witness' testimony. This regulation also makes it clear that this right 
to inspect the transcript is a right guaranteed by the APA and that 
witnesses who seek copies of the transcript are informed by the General 
Counsel of their right to inspect it.
    As the court stated in SEC v. Sprecher, 594 F.2d 317, 319 (2nd Cir 
1979), ``[I]t is obviously impractical for the Commission to determine 
prior to the testimony of a witness whether there will be `good cause' 
to withhold a copy of the testimony from that witness, and we do not 
read the APA as requiring such an advance determination.''
    Moreover, the courts have made it clear that the APA ``does not 
require [the agency] to spell out the `good cause' which was the basis 
for the refusal to sell copies of the transcript.'' Commercial Capital 
Corp. v. SEC, 360 F. 2d 856, 858 (7th Cir. 1966).
    In summary, this regulation largely tracks the language of the APA. 
The courts have recognized that such regulations are properly designed 
to ``permit the [agency] to enjoy confidentiality, where it is 
necessary, in order effectively to complete its investigation.'' Zients 
v. La Morte, 319 F. Supp 956, 958 (S.D.N.Y 1970) (discussing purpose of 
the SEC regulation), accord Lamorte v. Mansfield, 438 F.2d 448 (2d Cir 
1971), (Friendly, J.) (``to the extent that a privilege exists, it is 
the agency's not the witness''').

Regulatory Flexibility Act

    The Board, in accordance with the Regulatory Flexibility Act, 5 
U.S.C. 605(b), has reviewed this 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 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.

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.

Paperwork Reduction Act

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

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 amends 40 CFR part 1610 as follows:

PART 1610--ADMINISTRATIVE INVESTIGATIONS

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

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

    Section 1610.4 also issued under 5 U.S.C. 555.
    2. Add Sec.  1610.4 to read as follows:


Sec.  1610.4  Deposition Transcripts.

    (a) Transcripts of depositions of witnesses compelled by subpoena 
to appear during a Board investigation, shall be recorded solely by an 
official reporter designated by the person conducting the deposition.
    (b) Such a witness, after completing the compelled testimony, may 
file a petition with the Board's General Counsel to procure a copy of 
the official transcript of such testimony. The General Counsel shall 
rule on the petition, and may deny it for good cause. Whether or not 
such a petition is filed, the witness (and his or her attorney), upon 
proper identification, shall have the right to inspect the official 
transcript of the witness' own testimony. If such a petition is denied 
by the General Counsel, he shall inform the petitioner of the right to 
inspect the transcript.
    (c) Good cause for denying a witness' petition to procure a 
transcript of his or her testimony may include, but shall not be 
limited to, the protection of: trade secrets and confidential business 
information contained in the testimony, security-sensitive operational 
and vulnerability information, and the integrity of Board 
investigations.

    Dated: January 23, 2003.
Christopher W. Warner,
General Counsel.
[FR Doc. 03-2001 Filed 1-28-03; 8:45 am]
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