[Federal Register Volume 87, Number 73 (Friday, April 15, 2022)]
[Rules and Regulations]
[Pages 22436-22438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08133]


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DEFENSE NUCLEAR FACILITIES SAFETY BOARD

10 CFR Part 1707

[Docket No. DNFSB-2022-0001]


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

AGENCY: Defense Nuclear Facilities Safety Board.

ACTION: Direct final rule.

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SUMMARY: The Touhy regulations of the Defense Nuclear Facilities Board 
(DNFSB or the Board) set forth procedures for responding to requests 
for information, documents, or testimony for use in legal proceedings. 
This direct final rule revises the regulations by clarifying that Touhy 
regulations only apply when the United States or the Board is not a 
party to the underlying legal proceedings.

DATES: This final rule is effective July 14, 2022 unless significant 
adverse comments are received by May 16, 2022. If the direct final rule 
is withdrawn as a result of such comments, timely notice of the 
withdrawal will be published in the Federal Register.

ADDRESSES: You may submit comments at any time prior to the comment 
deadline by the following methods:
    Email: Send an email to [email protected]. Please include ``Touhy 
Regulations Comments'' in the subject line of your email.
    Mail: Send hard copy comments to the Defense Nuclear Facilities 
Safety Board, Attn: Office of the General Counsel, 625 Indiana Avenue 
NW, Suite 700, Washington, DC 20004-2901.

FOR FURTHER INFORMATION CONTACT: Patricia A. Hargrave, Associate 
General Counsel, Defense Nuclear Facilities Safety Board, 625 Indiana 
Avenue NW, Suite 700, Washington, DC 20004-2901, (202) 694-7000.

SUPPLEMENTARY INFORMATION:

I. Background

    Under 5 U.S.C. 301, the ``Housekeeping Statute,'' and in response 
to a demand for official information that arises out of a legal 
proceeding, many agencies have regulations governing the production of 
official information and employee testimony relating to official 
information. Known as Touhy regulations, after United States ex rel. v. 
Touhy v. Ragen, 340 U.S. 462 (1951), these regulations usually prohibit 
unauthorized disclosures of official information by employees. These 
regulations also establish procedures for agencies responding to 
subpoenas seeking official information or employee

[[Page 22437]]

testimony relating to official information.
    The Board's Touhy regulations are located at 10 CFR part 1707, 
subpart B (Sec. Sec.  1707.201 through 1707.210). Those regulations 
were established in 2001 and have not been amended previously. The 
Board is amending its Touhy regulations at this time to clarify the 
legal proceedings to which the regulations apply.

Section 1707.102--Applicability

    This direct final rule revises the introductory text to remove 
language suggesting that Touhy regulations apply when the Board is a 
party to the legal proceeding. This amendment clarifies that the 
regulations apply when the United States or the Board is not a party to 
the legal proceeding and will make the rule consistent with case law.

II. Regulatory Analysis

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, agencies 
must consider the impact of their rulemakings on ``small entities'' 
(small businesses, small organizations, and local governments) when 
publishing regulations subject to the notice and comment requirements 
of the Administrative Procedure Act. As noted below in section III. 
Rulemaking Procedure, the Board has determined that notice and the 
opportunity to comment are unnecessary because this rulemaking 
constitutes a limited, routine change to clarify the type of litigation 
these regulations apply to. Therefore, no analysis is required by the 
Regulatory Flexibility Act.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in 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 are deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, as amended, 
5 U.S.C. 804. This rule will not result in an annual effect on the 
economy of $100,000,000 or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Paperwork Reduction Act

    This rule contains no new reporting or recordkeeping requirements 
under the Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501 et seq. 
This update to the Board's Touhy regulations does not require or 
request information from members of the public. Therefore, this 
rulemaking is not covered by the restrictions of the PRA.

Executive Order 12988 and Executive Order 13132--Federalism

    According to Executive Orders 12988 and 13132, agencies must state 
in clear language the preemptive effect, if any, of new regulations. 
The amendments to the agency's Touhy regulations affect only how the 
Board responds to requests for information in legal proceedings, and 
therefore, have no effect on preemption of State, tribal, or local 
government laws or otherwise have federalism implications.

Congressional Review Act

    This action is not a ``rule'' as defined in the Congressional 
Review Act (5 U.S.C. 804(3)), which excludes any rule of agency 
organization, procedure, or practice that does not substantially affect 
the rights or obligations of non-agency parties.

Finding of No Significant Environmental Impact

    The direct final rule amends the Board's regulations for responding 
to requests for information in legal proceedings. The procedural change 
to the Touhy implementing regulations will not result in significant 
impacts affecting the quality of the human environment, unavoidable 
adverse environmental effects, rejection of reasonable alternatives to 
the proposed action, or irreversible or irretrievable commitments of 
environmental resources. The agency has not consulted with any other 
agencies in making this determination.

 III. Rulemaking Procedure

    The Board is publishing this rule without a prior proposal because 
it is a limited, clarifying change, and the Board does not anticipate 
any significant adverse public comments. This amendment will become 
effective on July 14, 2022. However, if the Board receives a 
significant adverse comment by May 16, 2022, then the Board will 
publish a document in the Federal Register withdrawing this rule and 
publishing the changes as a notice of proposed rulemaking. The Board 
will respond to the significant adverse comment(s) in that notice of 
proposed rulemaking and take an additional 30 days of comments before 
publishing any final rule. If no significant adverse comment is 
received, the Board will publish a document that confirms the effective 
date of this direct final rule.
    A significant adverse comment is a comment in which the commenter 
explains why the rule would be inappropriate, including challenges to 
the rule's underlying premise or approach, or would be ineffective or 
unacceptable without a change. A comment is adverse and significant if:
    (1) The comment opposes the rule and provides a reason sufficient 
to require a substantive response in a notice-and-comment process. For 
example, a substantive response is required when:
    (a) The comment causes the Board staff to reevaluate (or 
reconsider) its position or conduct additional analysis;
    (b) The comment raises an issue serious enough to warrant a 
substantive response to clarify or complete the record; or
    (c) The comment raises a relevant issue that was not previously 
addressed or considered by the Board.
    (2) The comment proposes a change or an addition to the rule, and 
it is apparent that the rule would be ineffective or unacceptable 
without incorporation of the change or addition; or
    (3) The comment causes the Board to make a change (other than 
editorial) to the rule.

List of Subjects in 10 CFR part 1707

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

    For the reasons described in the preamble, the Board amends 10 CFR 
part 1707 as follows:

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

0
1. The authority citation for part 1707 continues to read as follows:

    Authority: 42 U.S.C. 2286b(c); 44 U.S.C. 3101-3107, 3301-3303a, 
3308-3314.

Subpart A--General Provisions

0
2. Amend Sec.  1707.102 by revising the introductory text to read as 
follows:


Sec.  1707.102  Applicability.

    This part applies to demands and requests to employees for factual,

[[Page 22438]]

opinion, or expert testimony relating to official information, or for 
production of official records or information, in legal proceedings in 
which the United States or the DNFSB is not a named party. However, it 
does not apply to:
* * * * *

    Dated: April 12, 2022.
Joyce Connery,
Chairperson.
[FR Doc. 2022-08133 Filed 4-14-22; 8:45 am]
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