2022-08133. Testimony by DNFSB Employees and Production of Official Records in Legal Proceedings

AGENCY:

Defense Nuclear Facilities Safety Board.

ACTION:

Direct final rule.

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 If the direct final rule is withdrawn as a result of such comments, timely notice of the withdrawal will be published in the Federal Register .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 [e-mail]. 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, [phone].

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 testimony relating to official information.

The Board's Touhy regulations are located at 10 CFR part 1707, subpart B (§§  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

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

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

§  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 in which the United States or the DNFSB is not a named party. However, it does not apply to:

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Dated: April 12, 2022.

Joyce Connery,

Chairperson.