Rule2022-08133
Testimony by DNFSB Employees and Production of Official Records in Legal Proceedings
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 15, 2022
Effective
July 14, 2022
Issuing agencies
Defense Nuclear Facilities Safety Board
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 73 (Friday, April 15, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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is withdrawn as a result of such comments, timely notice of the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 <a href="/cdn-cgi/l/email-protection#5a393537373f342e1a3e343c2938743d352c"><span class="__cf_email__" data-cfemail="8be8e4e6e6eee5ffcbefe5edf8e9a5ece4fd">[email protected]</span></a>. 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]
BILLING CODE P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.