[Title 40 CFR VI]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 40 - PROTECTION OF ENVIRONMENT]
[Chapter Vi - CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD]
[From the U.S. Government Printing Office]
40PROTECTION OF ENVIRONMENT282002-07-012002-07-01falseCHEMICAL SAFETY AND HAZARD INVESTIGATION BOARDVICHAPTER VIPROTECTION OF ENVIRONMENT
CHAPTER VI--CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD
1601 Procedures for disclosure of records under
the Freedom of Information Act.......... 509
1602 Protection of privacy and access to
individual records under the Privacy Act
of 1974................................. 521
1603 Rules implementing the Government in the
Sunshine Act............................ 525
1610 Administrative investigations............... 529
1611 Testimony by employees in legal proceedings. 531
1612 Production of records in legal proceedings.. 534
PART 1600 [RESERVED]
PART 1601--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT--Table of Contents
Subpart A--Purpose, Scope, and Applicability
1601.1 Purpose and scope.
1601.10 Protection of records.
1601.11 Preservation of records pertaining to requests under this part.
1601.12 Public reading room.
Subpart C--Procedures for Requesting and Disclosing Records
1601.20 Requests for records.
1601.21 Responses to requests.
1601.22 Form and content of responses.
1601.23 Appeals of denials.
1601.24 Timing of responses to requests.
1601.25 Disclosure of requested records.
1601.26 Special procedures for confidential business information.
1601.30 Fees to be charged--general.
1601.31 Fees to be charged--categories of requesters.
1601.32 Limitations on charging fees.
1601.33 Miscellaneous fee provisions.
Authority: 5 U.S.C. 552, 553; 42 U.S.C. 7412 et seq.
Source: 65 FR 70499, Nov. 24, 2000, unless otherwise noted.
Subpart A--Purpose, Scope, and Applicability
Sec. 1601.1 Purpose and scope.
This part contains the regulations of the United States Chemical
Safety and Hazard Investigation Board (``CSB'' or ``Board'' or
``agency'') implementing the Freedom of Information Act (``FOIA'').
These regulations provide procedures by which members of the public may
obtain access to records compiled, created, and maintained by the CSB,
along with procedures it must follow in response to such requests for
Sec. 1601.2 Applicability.
(a) General. The FOIA and the regulations in this part apply to all
CSB documents and information. However, if another law sets specific
procedures for disclosure, the CSB will process a request in accordance
with the procedures that apply to those specific documents. If a request
is received for disclosure of a document to the public which is not
required to be released under those provisions, the CSB will consider
the request under the FOIA and the regulations in this part.
(b) Records available through routine distribution procedures. When
the record requested includes material published and offered for sale,
e.g., by the Superintendent of Documents of the Government Printing
Office, or by an authorized private distributor, the CSB will first
refer the requester to those sources. Nevertheless, if the requester is
not satisfied with the alternative sources, the CSB will process the
request under the FOIA.
Sec. 1601.3 Definitions.
Appeals Officer means the person designated by the Chairperson to
process appeals of denials of requests for CSB records under the FOIA.
Business submitter means any person or entity which provides
confidential business information, directly or indirectly, to the CSB
and who has a proprietary interest in the information.
Chairperson means the Chairperson of the CSB (including, in the
absence of a Chairperson, the Board Member supervising personnel
matters) or his or her designee.
Commercial-use requester means requesters seeking information for a
use or purpose that furthers the commercial, trade, or profit interests
of the requester or the person on whose behalf the request is made. In
determining whether a requester properly belongs in this category, the
CSB shall determine, whenever reasonably possible, the use to which a
requester will put the documents requested. Where the CSB has reasonable
cause to doubt the use to which a requester will put the records sought,
or where that use is not clear from the request itself, the CSB
shall seek additional clarification before assigning the request to a
Confidential business information means records provided to the
government by a submitter that arguably contain material exempt from
disclosure under Exemption 4 of the FOIA, because disclosure could
reasonably be expected to cause substantial competitive harm.
Direct costs means those expenditures by the CSB actually incurred
in searching for and duplicating records to respond to a FOIA request.
Direct costs include the salary of the employee or employees performing
the work (the basic rate of pay for the employee plus a percentage of
that rate to cover benefits) and the cost of operating duplicating
machinery. Direct costs do not include overhead expenses, such as the
cost of space and heating or lighting of the facility in which the
records are stored.
Duplication refers to the process of making a copy of a document
necessary to fulfill a FOIA request. Such copies can take the form of,
among other things, paper copy, microform, audio-visual materials, or
machine-readable documentation. The copies provided shall be in a form
that is reasonably usable by requesters.
Educational institution refers to a preschool, a public or private
elementary or high school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, and an institution of vocational education,
which operates a program of scholarly research.
FOIA Officer means the person designated to process requests for CSB
documents under the FOIA.
Non-commercial scientific institution refers to an institution that
is not operated on a commercial basis as that term is used above in
defining commercial-use requester, and which is operated solely for the
purpose of conducting scientific research the results of which are not
intended to promote any particular product or industry.
Record includes any writing, drawing, map, recording, tape, film,
photo, or other documentary material by which information is preserved.
Representative of the news media refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term news means information that is
about current events or that would be of current interest to the public.
For freelance journalists to be regarded as working for a news
organization, they must demonstrate a solid basis for expecting
publication through that organization. A publication contract would be
the clearest proof, but components shall also look to the past
publication record of a requester in making this determination.
Requester means any person, including an individual, Indian tribe,
partnership, corporation, association, or public or private organization
other than a Federal agency, that requests access to records in the
possession of the CSB.
Review refers to the process of examining a record, in response to a
FOIA request, to determine whether any portion of that record may be
withheld under one or more of the FOIA exemptions. It also includes the
processing of any record for disclosure; for example, redacting
information that is exempt from disclosure under the FOIA. Review does
not include time spent resolving general legal or policy issues
regarding the use of FOIA exemptions.
Search refers to the time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within a document. The CSB shall ensure that
searches are conducted in the most efficient and least expensive manner
Submitter means any person or entity who provides information
directly or indirectly to the CSB. The term includes, but is not limited
to, corporations, Indian tribal governments, state governments, and
Working day means a Federal workday that does not include Saturdays,
Sundays, or Federal holidays.
Sec. 1601.10 Protection of records.
(a) Except as authorized by this part or as otherwise necessary in
performing official duties, no employee shall in any manner disclose or
disclosure of any document or information in the possession of the CSB
that is confidential or otherwise of a nonpublic nature, including that
regarding the CSB, the Environmental Protection Agency or the
Occupational Safety and Health Administration.
(b) No person may, without permission, remove from the place where
it is made available any record made available to him for inspection or
copying. Stealing, altering, mutilating, obliterating, or destroying, in
whole or in part, such a record shall be deemed a crime.
Sec. 1601.11 Preservation of records pertaining to requests under this part.
The CSB will preserve all correspondence pertaining to the requests
that it receives under this part, as well as copies of all requested
records, until disposition or destruction is authorized by Title 44 of
the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Records will not be
disposed of while they are the subject of a pending request, appeal, or
lawsuit under the FOIA.
Sec. 1601.12 Public reading room.
(a) The CSB maintains a public reading room that contains the
records that the FOIA requires to be made regularly available for public
inspection and copying as well as a current subject-matter index of its
reading room records.
(b) Because of the lack of requests to date for material required to
be indexed, the CSB has determined that it is unnecessary and
impracticable to publish quarterly, or more frequently, and distribute
(by sale or otherwise) copies of each index and supplements thereto, as
provided in 5 U.S.C. 552(a)(2). However, the CSB will provide a copy of
such indexes to a member of the public upon request, at a cost not to
exceed the direct cost of duplication and mailing, if sending records by
other than ordinary mail.
(c) The CSB maintains a public reading room at its headquarters:
2175 K Street, NW, Suite 400, Washington, DC 20037-1809.
(d) Copying. The cost of copying information available in the
offices of the CSB shall be imposed on a requester in accordance with
the provisions of Secs. 1601.30 through 1601.33.
(e) The CSB also makes reading room records available electronically
through the agency's World Wide Web site (which can be found at http://
www.csb.gov). This includes the index of its reading room records,
indicating which records are available electronically.
Subpart C--Procedures for Requesting and Disclosing Records
Sec. 1601.20 Requests for records.
(a) Addressing requests. Requests for records in the possession of
the CSB shall be made in writing. The envelope and the request both
should be clearly marked FOIA Request and addressed to: FOIA Officer,
United States Chemical Safety and Hazard Investigation Board, 2175 K
Street, NW, Suite 400, Washington, DC 20037-1809. A request improperly
addressed will be deemed not to have been received for the purposes of
Sec. 1601.24(a) until it is received, or would have been received with
the exercise of due diligence, by the FOIA Officer. Records requested in
conformance with this section and which are not withholdable records may
be obtained in person or by mail as specified in the request. Records to
be obtained in person will be available for inspection or copying during
business hours on a regular business day in the office of the CSB.
(b) Description of records. Each request must reasonably describe
the desired records in sufficient detail to enable CSB personnel to
locate the records with a reasonable amount of effort. A request for a
specific category of records will be regarded as fulfilling this
requirement if it enables responsive records to be identified by a
technique or process that is not unreasonably burdensome or disruptive
of CSB operations.
(1) Whenever possible, a request should include specific information
about each record sought, such as the date, title or name, author,
recipient, and subject matter of the record.
(2) If the FOIA Officer determines that a request does not
reasonably describe the records sought, he or she will either advise the
requester what additional information is needed to locate the record or
otherwise state why the request is insufficient. The FOIA Officer will
also extend to the requester an opportunity to confer with CSB personnel
with the objective of reformulating the request in a manner which will
meet the requirements of this section.
(c) Agreement to pay fees. A FOIA request shall be considered an
agreement by the requester to pay all applicable fees charged under
Secs. 1601.30 through 1601.33 up to $25, unless the requester seeks a
waiver of fees. The CSB ordinarily will confirm this agreement in an
acknowledgement letter. When making a request, you may specify a
willingness to pay a greater or lesser amount.
(d) Types of records not available. The FOIA does not require the
(1) Compile or create records solely for the purpose of satisfying a
request for records;
(2) Provide records not yet in existence, even if such records may
be expected to come into existence at some future time; or
(3) Restore records destroyed or otherwise disposed of, except that
the FOIA Officer must notify the requester that the requested records
have been destroyed or otherwise disposed of.
Sec. 1601.21 Responses to requests.
(a) Response to initial request. The FOIA Officer is authorized to
grant or deny any request for a record and to determine appropriate
(b) Referral to another agency. When a requester seeks records that
originated in another Federal government agency, the CSB will refer the
request to the other agency for response. If the CSB refers the request
to another agency, it will notify the requester of the referral. A
request for any records classified by some other agency will be referred
to that agency for response.
(c) Creating records. If a person seeks information from the CSB in
a format that does not currently exist, the CSB will make reasonable
efforts to provide the information in the format requested. The CSB will
not create a new record of information to satisfy a request.
(d) No responsive record. If no records are responsive to the
request, the FOIA Officer will so notify the requester in writing.
Sec. 1601.22 Form and content of responses.
(a) Form of notice granting a request. After the FOIA Officer has
granted a request in whole or in part, the requester will be notified in
writing. The notice shall describe the manner in which the record will
be disclosed, whether by providing a copy of the record with the
response or at a later date, or by making a copy of the record available
to the requester for inspection at a reasonable time and place. The
procedure for such an inspection may not unreasonably disrupt the
operation of the CSB. The response letter will also inform the requester
of any fees to be charged in accordance with the provisions of
Secs. 1601.30 through 1601.33.
(b) Form of notice denying a request. When the FOIA Officer denies a
request in whole or in part, he or she will so notify the requester in
writing. The response will be signed by the FOIA Officer and will
(1) The name and title or position of the person making the denial;
(2) A brief statement of the reason or reasons for the denial,
including the FOIA exemption or exemptions which the FOIA Officer has
relied upon in denying the request; and
(3) A statement that the denial may be appealed under Sec. 1601.23
and a description of the requirements of that section.
Sec. 1601.23 Appeals of denials.
(a) Right of appeal. If a request has been denied in whole or in
part, the requester may appeal the denial to: FOIA Appeals Officer,
United States Chemical Safety and Hazard Investigation Board, 2175 K
Street, NW, Suite 400, Washington, DC 20037-1809.
(b) Letter of appeal. The appeal must be in writing and must be sent
within 30 days of receipt of the denial letter. An appeal should include
a copy of the
initial request, a copy of the letter denying the request in whole or in
part, and a statement of the circumstances, reasons, or arguments
advanced in support of disclosure of the requested record. Both the
envelope and the letter of appeal must be clearly marked FOIA Appeal. An
appeal improperly addressed shall be deemed not to have been received
for purposes of the 20-day time period set forth in Sec. 1601.24(e)
until it is received, or would have been received with the exercise of
due diligence, by the Appeals Officer.
(c) Action on appeal. The disposition of an appeal will be in
writing and will constitute the final action of the CSB on a request. A
decision affirming in whole or in part the denial of a request will
include a brief statement of the reason or reasons for affirmance,
including each FOIA exemption relied on. If the denial of a request is
reversed in whole or in part on appeal, the request will be processed
promptly in accordance with the decision on appeal.
(d) Judicial review. If the denial of the request for records is
upheld in whole or in part, or if a determination on the appeal has not
been mailed at the end of the 20-day period or the last extension
thereof, the requester is deemed to have exhausted his or her
administrative remedies, giving rise to a right of judicial review under
5 U.S.C. 552(a)(4).
Sec. 1601.24 Timing of responses to requests.
(a) In general. The CSB ordinarily shall respond to requests
according to their order of receipt.
(b) Multitrack processing. (1) The CSB may use two processing tracks
by distinguishing between simple and more complex requests based on the
amount of work and/or time needed to process the request, including
according to limits based on the number of pages involved. If the agency
does so, it shall advise requesters assigned to its slower track of the
eligibility limits for its faster track.
(2) The agency may provide requesters in its slower track with an
opportunity to limit the scope of their requests in order to qualify for
faster processing within the specified limits of the agency's faster
track. If it does so, the agency will contact the requester either by
telephone or by letter, whichever is most efficient in each case.
(c) Unusual circumstances. (1) Where the time limits for processing
a request cannot be met because of unusual circumstances and the CSB
determines to extend the time limits on that basis, the agency shall as
soon as practicable notify the requester in writing of the unusual
circumstances and of the date by which processing of the request can be
expected to be completed. Where the extension is for more than ten
working days, the CSB shall provide the requester with an opportunity
either to modify the request so that it may be processed within the time
limits or to arrange an alternative time period for processing the
request or a modified request.
(2) Where the CSB reasonably believes that multiple requests
submitted by a requester, or by a group of requesters acting in concert,
constitute a single request that would otherwise involve unusual
circumstances, and the requests involve clearly related matters, they
may be aggregated. Multiple requests involving unrelated matters will
not be aggregated.
(d) Expedited processing. (1) Requests and appeals will be taken out
of order and given expedited treatment whenever it is determined that
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
Federal government activity, if made by a person primarily engaged in
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which
there exists possible questions about the government's integrity which
affect public confidence.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the
best of that person's knowledge and belief, explaining in detail the
basis for requesting expedited processing. For example, a requester
within the category in paragraph (d)(1)(ii) of this section, if not a
full-time member of the news media, must establish that he or she is a
person whose main professional activity or occupation is information
dissemination, though it need not be his or her sole occupation. A
requester within the category in paragraph (d)(1)(ii) of this section
also must establish a particular urgency to inform the public about the
government activity involved in the request, beyond the public's right
to know about government activity generally. The formality of
certification may be waived as a matter of administrative discretion.
(4) Within ten calendar days of its receipt of a request for
expedited processing, the CSB shall decide whether to grant it and shall
notify the requester of the decision. If a request for expedited
treatment is granted, the request shall be given priority and shall be
processed as soon as practicable. If a request for expedited processing
is denied, any appeal of that decision shall be acted on expeditiously.
(e) Appeals. A written determination on an appeal submitted in
accordance with Sec. 1601.23 will be issued within 20 working days after
receipt of the appeal. This time limit may be extended in unusual
circumstances up to a total of 10 working days after written notice to
the requester setting forth the reasons for the extension and the date
on which a determination is expected to be made. As used in this
paragraph, unusual circumstances means that there is a need to:
(1) Search for and collect the requested records from facilities
that are separate from the office processing the request;
(2) Search for, collect, and appropriately examine a voluminous
amount of separate and distinct records which are demanded in a single
(3) Consult with another agency having a substantial interest in the
determination of the request, or consult with various offices within the
CSB that have a substantial interest in the records requested.
(f) When a determination cannot be mailed within the applicable time
limit, the appeal will nevertheless be processed. In such case, upon the
expiration of the time limit, the requester will be informed of the
reason for the delay, of the date on which a determination may be
expected to be mailed, and of that person's right to seek judicial
review. The requester may be asked to forego judicial review until
determination of the appeal.
Sec. 1601.25 Disclosure of requested records.
(a) The FOIA Officer shall make requested records available to the
public to the greatest extent possible in keeping with the FOIA, except
that the following records are exempt from the disclosure requirements:
(1) Records specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense or
foreign policy and which are, in fact, properly classified pursuant to
such Executive Order;
(2) Records related solely to the internal personnel rules and
practices of the CSB;
(3) Records specifically exempted from disclosure by statute (other
than 5 U.S.C. 552(b)) provided that such statute requires that the
matters be withheld from the public in such a manner as to leave no
discretion on the issue or that the statute establishes particular
criteria for withholding information or refers to particular types of
matters to be withheld;
(4) Records containing trade secrets and commercial or financial
information obtained from a person and privileged or confidential;
(5) Interagency or intra-agency memoranda or letters which would not
be available by law to a party other than an agency in litigation with
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
(ii) Would deprive a person of a right to a fair trial or an
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and in the case of a record or information compiled
by criminal law enforcement authority in the course of a criminal
investigation or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(8) Records contained in or related to examination, operating, or
condition reports prepared by, or on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
(9) Geological or geophysical information and data, including maps,
(b) If a requested record contains exempted material along with
nonexempted material, all reasonably segregable nonexempt material shall
(c) Even if an exemption described in paragraph (a) of this section
may be reasonably applicable to a requested record, or portion thereof,
the CSB may elect under the circumstances of any particular request not
to apply the exemption to such requested record, or portion thereof,
subject to the provisions in Sec. 1601.26 for confidential business
information. The fact that the exemption is not applied by the CSB to
any requested record, or portion thereof, has no precedential
significance as to the application or non-application of the exemption
to any other requested record, or portion thereof, no matter when the
request is received.
Sec. 1601.26 Special procedures for confidential business information.
(a) In general. Confidential business information provided to the
CSB by a business submitter shall not be disclosed pursuant to a FOIA
request except in accordance with this section.
(b) Designation of business information. Business submitters should
use good-faith efforts to designate, by appropriate markings, either at
the time of submission or at a reasonable time thereafter, those
portions of their submissions which they deem to be protected under
Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Any such designation will
expire 10 years after the records were submitted to the government,
unless the submitter requests, and provides reasonable justification
for, a designation period of longer duration.
(c) Predisclosure notification. (1) Except as is provided for in
paragraph (h) of this section, the FOIA Officer shall, to the extent
permitted by law, provide a submitter with prompt written notice of a
FOIA request or administrative appeal encompassing its confidential
business information whenever required under paragraph (d) of this
section. Such notice shall either describe the exact nature of the
business information requested or provide copies of the records or
portions thereof containing the business information.
(2) Whenever the FOIA Officer provides a business submitter with the
notice set forth in this paragraph, the FOIA Officer shall notify the
requester that the request includes information that may arguably be
exempt from disclosure under Exemption 4 of the FOIA and that the person
or entity who submitted the information to the CSB has been given the
opportunity to comment on the proposed disclosure of information.
(d) When notice is required. The CSB shall provide a business
submitter with notice of a request whenever:
(1) The business submitter has in good faith designated the
as business information deemed protected from disclosure under 5 U.S.C.
(2) The CSB has reason to believe that the request seeks business
information the disclosure of which may result in substantial commercial
or financial injury to the business submitter.
(e) Opportunity to object to disclosure. Through the notice
described in paragraph (c) of this section, the CSB shall, to the extent
permitted by law, afford a business submitter at least 10 working days
within which it can provide the CSB with a detailed written statement of
any objection to disclosure. Such statement shall demonstrate why the
information is contended to be a trade secret or commercial or financial
information that is privileged or confidential and why disclosure would
cause competitive harm. Whenever possible, the business submitter's
claim of confidentiality should be supported by a statement or
certification by an officer or authorized representative of the business
submitter. Information provided by a submitter pursuant to this
paragraph may itself be subject to disclosure under the FOIA.
(f) Notice of intent to disclose. (1) The FOIA Officer shall
consider carefully a business submitter's objections and specific
grounds for nondisclosure prior to determining whether to disclose
confidential commercial business information. Whenever the FOIA Officer
decides to disclose such information over the objection of a business
submitter, the FOIA Officer shall forward to the business submitter a
written notice at least 10 working days before the date of disclosure
(i) A statement of the reasons for which the business submitter's
disclosure objections were not sustained,
(ii) A description of the confidential commercial information to be
(iii) A specified disclosure date.
(2) Such notice of intent to disclose likewise shall be forwarded to
the requester at least 10 working days prior to the specified disclosure
(g) Notice of FOIA lawsuit. Whenever a requester brings suit seeking
to compel disclosure of confidential business information, the FOIA
Officer shall promptly notify the business submitter of such action.
(h) Exceptions to predisclosure notification. The requirements of
this section shall not apply if:
(1) The FOIA Officer determines that the information should not be
(2) The information lawfully has been published or has been
officially made available to the public;
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(4) The designation made by the submitter in accordance with
paragraph (b) of this section appears obviously frivolous; except that,
in such a case, the FOIA Officer will provide the submitter with written
notice of any final decision to disclose confidential business
information within a reasonable number of days prior to a specified
Sec. 1601.30 Fees to be charged--general.
(a) Policy. Generally, the fees charged for requests for records
pursuant to 5 U.S.C. 552 shall cover the full allowable direct costs of
searching for, reproducing, and reviewing records that are responsive to
a request for information. Fees shall be assessed according to the
schedule contained in paragraph (b) of this section and the category of
requesters described in Sec. 1601.31 for services rendered by the CSB
staff in responding to, and processing requests for, records under this
part. Fees assessed will be paid by check or money order payable to the
United States Treasury.
(b) Types of charges. The types of charges that may be assessed in
connection with the production of records in response to a FOIA request
are as follows:
(i) Manual searches for records. For each quarter hour spent in
searching for and/or reviewing a requested record, the fees will be:
$4.00 for clerical personnel; $8.00 for professional personnel; and
$11.00 for managerial personnel.
(ii) Computer searches for records. Requesters will be charged at
the actual direct costs of conducting a search
using existing programming. These direct costs will include the cost of
operating the central processing unit for that portion of operating time
that is directly attributable to searching for records and the operator/
programmer salary, i.e., basic pay plus 16 percent, apportionable to the
search. A charge shall also be made for any substantial amounts of
special supplies or materials used to contain, present, or make
available the output of computers, based upon the prevailing levels of
costs to the CSB for the type and amount of such supplies or materials
that are used. Nothing in this paragraph shall be construed to entitle
any person or entity, as of right, to any services in connection with
computerized records, other than services to which such person or entity
may be entitled under the provisions of this section or Sec. 1601.32.
The CSB will not alter or develop programming to conduct a search.
(iii) Unproductive searches. The CSB will charge search fees even if
no records are found which are responsive to the request or if the
records found are exempt from disclosure.
(2) Duplication. Records will be reproduced at a rate of $0.25 per
page. For copies prepared by computer, such as tapes or printouts, the
requester shall be charged the actual cost, including operator time, of
production of the tape or printout. For other methods of reproduction,
the actual direct costs of reproducing the record(s) shall be charged.
(3) Review. Only commercial-use requesters may be charged for time
spent reviewing records to determine whether they are exempt from
mandatory disclosure. Charges may be assessed only for initial review,
i.e., the review undertaken the first time the CSB analyzes the
applicability of a specific exemption to a particular record or portion
of a record. Records or portions of records withheld in full under an
exemption that is subsequently determined not to apply may be reviewed
again to determine the applicability of other exemptions not previously
considered. The costs for such a subsequent review are properly
(4) Other services and materials. Where the CSB elects, as a matter
of administrative discretion, to comply with a request for a special
service or materials, such as certifying that records are true copies or
sending records by special methods, the actual direct costs of providing
the service or materials will be charged.
Sec. 1601.31 Fees to be charged--categories of requesters.
(a) Fees for various requester categories. Paragraphs (b) through
(e) of this section state, for each category of requester, the types of
fees generally charged by the CSB. However, for each of these
categories, the fees may be limited, waived or reduced in accordance
with the provisions set forth in Sec. 1601.32(c). If the CSB has
reasonable cause to doubt the purpose specified in the request for which
a requester will use the records sought, or where the purpose is not
clear from the request itself, the CSB will seek clarification before
assigning the request a specific category.
(b) Commercial use requester. The CSB shall charge fees for records
requested by persons or entities making a commercial use request in an
amount that equals the full direct costs for searching for, reviewing
for release, and reproducing the records sought. Commercial use
requesters are not entitled to 2 hours of free search time nor 100 free
pages of reproduction of records. In accordance with Sec. 1601.30,
commercial use requesters may be charged the costs of searching for and
reviewing records even if there is ultimately no disclosure of records.
(c) Educational and noncommercial scientific institutions. The CSB
shall charge fees for records requested by, or on behalf of, educational
institutions and noncommercial scientific institutions in an amount
which equals the cost of reproducing the records responsive to the
request, excluding the cost of reproducing the first 100 pages. No
search fee shall be charged with respect to requests by educational and
noncommercial scientific institutions. For a request to be included in
this category, requesters must show that the request being made is
authorized by and under the auspices of a qualifying institution, and
that the records are not sought for commercial use but are
sought in furtherance of scholarly research (if the request is from an
educational institution) or scientific research (if the request is from
a noncommercial scientific institution).
(d) News media. The CSB shall charge fees for records requested by
representatives of the news media in an amount which equals the cost of
reproducing the records responsive to the request, excluding the costs
of reproducing the first 100 pages. No search fee shall be charged with
respect to requests by representatives of the news media. For a request
to be included in this category, the requester must qualify as a
representative of the news media and the request must not be made for a
commercial use. A request for records supporting the news dissemination
function of the requester shall not be considered to be a request that
is for commercial use.
(e) All other requesters. The CSB shall charge fees for records
requested by persons or entities that are not classified in any of the
categories listed in paragraphs (b), (c), or (d) of this section in an
amount that equals the full reasonable direct cost of searching for and
reproducing records that are responsive to the request, excluding the
first 2 hours of search time and the cost of reproducing the first 100
pages of records. In accordance with Sec. 1601.30, requesters in this
category may be charged the cost of searching for records even if there
is ultimately no disclosure of records, excluding the first 2 hours of
(f) For purposes of the exceptions contained in this section on
assessment of fees, the word pages refers to paper copies of 8\1/2\ x 11
inches or 11 x 14 inches. Thus, requesters are not entitled to 100
microfiche or 100 computer disks, for example. A microfiche containing
the equivalent of 100 pages or a computer disk containing the equivalent
of 100 pages of computer printout meets the terms of the exception.
(g) For purposes of paragraph (e) of this section, the term search
time has as its basis, manual search. To apply this term to searches
made by computer, the CSB will determine the hourly cost of operating
the central processing unit and the operator's hourly salary plus 16
percent. When the cost of the search (including the operator time and
the cost of operating the computer to process a request) equals the
equivalent dollar amount of 2 hours of the salary plus 16 percent of the
person performing the search, i.e., the operator, the CSB will begin
assessing charges for the computer.
Sec. 1601.32 Limitations on charging fees.
(a) In general. Except for requesters seeking records for a
commercial use as described in Sec. 1601.31(b), the CSB will provide,
without charge, the first 100 pages of duplication and the first 2 hours
of search time, or their cost equivalent.
(b) No fee charged. The CSB will not charge fees to any requester,
including commercial use requesters, if the cost of collecting a fee
would be equal to or greater than the fee itself. The elements to be
considered in determining the cost of collecting a fee are the
administrative costs of receiving and recording a requester's remittance
and of processing the fee.
(c) Waiver or reduction of fees. The CSB may grant a waiver or
reduction of fees if the CSB determines that the disclosure of the
information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the Federal government, and the disclosure of the information is not
primarily in the commercial interest of the requester. Requests for a
waiver or reduction of fees will be considered on a case-by-case basis.
The following factors will be considered by the CSB in determining
whether a waiver or reduction of fees is in the public interest:
(i) The subject of the request. Whether the subject of the requested
records concerns the operations or activities of the government. The
subject matter of the requested records, in the context of the request,
must specifically concern identifiable operations or activities of the
Federal government with a connection that is direct and clear, not
remote or attenuated. Furthermore, the records must be sought for their
informative value with respect to those government operations or
activities; a request for access to records for their intrinsic
informational content alone
will not satisfy this threshold consideration.
(ii) The informative value of the information to be disclosed.
Whether the disclosure is likely to contribute to an understanding of
government operations or activities. The disclosable portions of the
requested records must be meaningfully informative on specific
government operations or activities in order to hold potential for
contributing to increased public understanding of those operations and
activities. The disclosure of information that is already in the public
domain, in either a duplicative or substantially identical form, would
not be likely to contribute to such understanding, as nothing new would
be added to the public record.
(iii) The contribution to an understanding of the subject by the
general public. Whether disclosure of the requested information will
contribute to the public understanding. The disclosure must contribute
to the understanding of the public at large, as opposed to the
individual understanding of the requester or a narrow segment of
interested persons. A requester's identity and qualifications, e.g.,
expertise in the subject area and ability and intention to convey
information to the general public, will be considered.
(iv) The significance of the contribution in public understanding.
Whether the disclosure is likely to significantly enhance the public
understanding of government operations or activities. The public's
understanding of the subject matter in question, as compared to the
level of public understanding existing prior to the disclosure, must be
likely to be enhanced by the disclosure to a significant extent. The
FOIA Officer shall not make a separate value judgment as to whether
information, even though it in fact would contribute significantly to
public understanding of the operations or activities of the government,
is ``important'' enough to be made public.
(2) In order to determine whether the second fee waiver requirement
is met, i.e., that disclosure of the requested information is not
primarily in the commercial interest of the requester, the CSB shall
consider the following two factors in sequence:
(i) The existence and magnitude of a commercial interest. Whether
the requester, or any person on whose behalf the requester may be
acting, has a commercial interest that would be furthered by the
requested disclosure. In assessing the magnitude of identified
commercial interests, consideration will be given to the effect that the
information disclosed would have on those commercial interests, as well
as to the extent to which FOIA disclosures serve those interests
overall. Requesters shall be given a reasonable opportunity in the
administrative process to provide information bearing upon this
(ii) The primary interest in disclosure. Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large in comparison with the public interest in disclosure, that
disclosure is primarily in the commercial interest of the requester. A
fee waiver or reduction is warranted only where, once the public
interest standard set out in paragraph (c)(1) of this section is
satisfied, that public interest can fairly be regarded as greater in
magnitude than that of the requester's commercial interest in
disclosure. The CSB will ordinarily presume that, where a news media
requester has satisfied the public interest standard, the public
interest will be serviced primarily by disclosure to that requester.
Disclosure to requesters who compile and market Federal government
information for direct economic gain will not be presumed to primarily
serve the public interest.
(3) Where only a portion of the requested record satisfies the
requirements for a waiver or reduction of fees under this paragraph, a
waiver or reduction shall be granted only as to that portion.
(4) A request for a waiver or reduction of fees must accompany the
request for disclosure of records and should include:
(i) A clear statement of the requester's interest in the records;
(ii) The proposed use of the records and whether the requester will
derive income or other benefit from such use;
(iii) A statement of how the public will benefit from release of the
requested records; and
(iv) If specialized use of the documents is contemplated, a
statement of the requester's qualifications that are relevant to the
(5) A requester may appeal the denial of a request for a waiver or
reduction of fees in accordance with the provisions of Sec. 1601.23.
Sec. 1601.33 Miscellaneous fee provisions.
(a) Notice of anticipated fees in excess of $25. Where the CSB
determines or estimates that the fees chargeable will amount to more
than $25, the CSB shall promptly notify the requester of the actual or
estimated amount of fees or such portion thereof that can be readily
estimated, unless the requester has indicated his or her willingness to
pay fees as high as those anticipated. Where a requester has been
notified that the actual or estimated fees may exceed $25, the request
will be deemed not to have been received until the requester has agreed
to pay the anticipated total fee. A notice to the requester pursuant to
this paragraph will include the opportunity to confer with CSB personnel
in order to reformulate the request to meet the requester's needs at a
(b) Aggregating requests. A requester may not file multiple requests
at the same time, each seeking portions of a record or records, solely
in order to avoid the payment of fees. When the CSB reasonably believes
that a requester, or a group of requesters acting in concert, is
attempting to break a request into a series of requests for the purpose
of evading the assessment of fees, the CSB may aggregate such requests
and charge accordingly. One element to be considered in determining
whether a belief would be reasonable is the time period over which the
requests have occurred. The CSB will presume that multiple requests of
this type made within a 30-day period have been made in order to evade
fees. Where requests are separated by a longer period, the CSB shall
aggregate them only where there exists a solid basis for determining
that such aggregation is warranted, e.g., where the requests involve
clearly related matters. Multiple requests regarding unrelated matters
will not be aggregated.
(c) Advance payment of fees. (1) The CSB does not require an advance
payment before work is commenced or continued, unless:
(i) The CSB estimates or determines that the fees are likely to
exceed $250. If it appears that the fees will exceed $250, the CSB will
notify the requester of the likely cost and obtain satisfactory
assurance of full payment where the requester has a history of prompt
payment of FOIA fees. In the case of requesters with no history of
payment, the CSB may require an advance payment of fees in an amount up
to the full estimated charge that will be incurred; or
(ii) The requester has previously failed to pay a fee in a timely
fashion, i.e., within 30 days of the date of a billing. In such cases,
the CSB may require the requester to pay the full amount owed plus any
applicable interest, as provided in paragraph (d) of this section, or
demonstrate that the fee owed has been paid, prior to processing any
further record request. Under these circumstances, the CSB may require
the requester to make an advance payment of the full amount of the fees
anticipated before processing a new request or finishing processing of a
pending request from that requester.
(2) A request for an advance deposit shall ordinarily include an
offer to the requester to confer with identified CSB personnel to
attempt to reformulate the request in a manner which will meet the needs
of the requester at a lower cost.
(3) When the CSB requests an advance payment of fees, the
administrative time limits described in 5 U.S.C. 552(a)(6) begin only
after the CSB has received the advance payment.
(d) Interest. The CSB may assess interest charges on an unpaid bill
starting on the 31st day following the day on which the bill was sent.
Once a fee payment has been received by the CSB, even if not processed,
the accrual of interest shall be stayed. Interest charges shall be
assessed at the rate prescribed in 31 U.S.C. 3717 and shall accrue from
the date of the billing.
(e) Whenever a total fee calculated under paragraph (d) of this
section is $14.00 or less for any request, no fee will be charged.
PART 1602--PROTECTION OF PRIVACY AND ACCESS TO INDIVIDUAL RECORDS UNDER THE PRIVACY ACT OF 1974--Table of Contents
1602.1 General provisions.
1602.2 Requests for access to records.
1602.3 Responsibility for responding to requests for access to records.
1602.4 Responses to requests for access to records.
1602.5 Appeals from denials of requests for access to records.
1602.6 Requests for amendment or correction of records.
1602.7 Requests for accountings of record disclosures.
1602.8 Preservation of records.
1602.10 Notice of court-ordered and emergency disclosures.
Authority: 5 U.S.C. 552a, 553; 42 U.S.C. 7412 et seq.
Source: 66 FR 17080, Mar. 29, 2001, unless otherwise noted.
Sec. 1602.1 General provisions.
(a) Purpose and scope. This part contains the rules that the
Chemical Safety and Hazard Investigation Board (``CSB'' or ``Board'')
follows under the Privacy Act of 1974, 5 U.S.C. 552a. These rules should
be read together with the Privacy Act, which provides additional
information about records maintained on individuals. The rules in this
part apply to all records in systems of records maintained by the CSB
that are retrieved by an individual's name or personal identifier. They
describe the procedures by which individuals may request access to
records about themselves, request amendment or correction of those
records, and request an accounting of disclosures of those records by
the CSB. In addition, the CSB processes all Privacy Act requests for
access to records under the Freedom of Information Act (FOIA), 5 U.S.C.
552, following the rules contained in part 1601 of this chapter, which
gives requests the benefit of both statutes.
(b) Definitions. As used in this part:
Requester means an individual who makes a request for access, a
request for amendment or correction, or a request for an accounting
under the Privacy Act.
Request for access to a record means a request made as described in
subsection (d)(1) of the Privacy Act, 5 U.S.C. 552a.
Request for amendment or correction of a record means a request made
as described in subsection (d)(2) of the Privacy Act, 5 U.S.C. 552a.
Request for an accounting means a request made as described in
subsection (c)(3) of the Privacy Act, 5 U.S.C. 552a.
Sec. 1602.2 Requests for access to records.
(a) How made and addressed. You may make a request for access to a
CSB record about yourself by appearing in person or by writing to the
CSB. Your request should be sent or delivered to the CSB's General
Counsel, at 2175 K Street, NW., 4th Floor, Washington, DC 20037. For the
quickest possible handling, you should mark both your request letter and
the envelope ``Privacy Act Request.''
(b) Description of records sought. You must describe the records
that you want in enough detail to enable CSB personnel to locate the
system of records containing them with a reasonable amount of effort.
Whenever possible, your request should describe the records sought, the
time periods in which you believe they were compiled, and the name or
identifying number of each system of records in which you believe they
are kept. The CSB publishes notices in the Federal Register that
describe its systems of records. A description of the CSB's systems of
records also may be found as part of the ``Privacy Act Compilation''
published by the National Archives and Records Administration's Office
of the Federal Register. This compilation is available in most large
reference and university libraries. This compilation also can be
accessed electronically at the Government Printing Office's World Wide
Web site (which can be found at http://www.access.gpo.gov/su--docs).
(c) Agreement to pay fees. If you make a Privacy Act request for
access to records, it shall be considered an agreement by you to pay all
applicable fees charged under Sec. 1602.9 up to $25.00. The CSB
ordinarily will confirm this agreement in an acknowledgment letter. When
making a request, you may
specify a willingness to pay a greater or lesser amount.
(d) Verification of identity. When you make a request for access to
records about yourself, you must verify your identity. You must state
your full name, current address, and date and place of birth. You must
sign your request and your signature must either be notarized or
submitted by you under 28 U.S.C. 1746, a law that permits statements to
be made under penalty of perjury as a substitute for notarization. In
order to help the identification and location of requested records, you
may also, at your option, include your social security number.
(e) Verification of guardianship. When making a request as the
parent or guardian of a minor or as the guardian of someone determined
by a court to be incompetent, for access to records about that
individual, you must establish:
(1) The identity of the individual who is the subject of the record,
by stating the name, current address, date and place of birth, and, at
your option, the social security number of the individual;
(2) Your own identity, as required in paragraph (d) of this section;
(3) That you are the parent or guardian of that individual, which
you may prove by providing a copy of the individual's birth certificate
showing your parentage or by providing a court order establishing your
(4) That you are acting on behalf of that individual in making the
Sec. 1602.3 Responsibility for responding to requests for access to records.
(a) In general. In determining which records are responsive to a
request, the CSB ordinarily will include only those records in its
possession as of the date the CSB begins its search for them. If any
other date is used, the CSB will inform the requester of that date.
(b) Authority to grant or deny requests. The CSB's General Counsel,
or his/her designee, is authorized to grant or deny any request for
access to a record of the CSB.
(c) Consultations and referrals. When the CSB receives a request for
access to a record in its possession, it will determine whether another
agency of the Federal Government is better able to determine whether the
record is exempt from access under the Privacy Act. If the CSB
determines that it is best able to process the record in response to the
request, then it will do so. If the CSB determines that it is not best
able to process the record, then it will either:
(1) Respond to the request regarding that record, after consulting
with the agency best able to determine whether the record is exempt from
access and with any other agency that has a substantial interest in it;
(2) Refer the responsibility for responding to the request regarding
that record to another agency that originated the record (but only if
that agency is subject to the Privacy Act). Ordinarily, the agency that
originated a record will be presumed to be best able to determine
whether it is exempt from access.
(d) Notice of referral. Whenever the CSB refers all or any part of
the responsibility for responding to your request to another agency, it
ordinarily will notify you of the referral and inform you of the name of
each agency to which the request has been referred and of the part of
the request that has been referred.
(e) Timing of responses to consultations and referrals. All
consultations and referrals shall be handled according to the date the
Privacy Act access request was initially received by the CSB, not any
Sec. 1602.4 Responses to requests for access to records.
(a) Acknowledgments of requests. On receipt of your request, the CSB
ordinarily will send an acknowledgment letter, which shall confirm your
agreement to pay fees under Sec. 1602.2(c) and may provide an assigned
request number for further reference.
(b) Grants of requests for access. Once the CSB makes a
determination to grant your request for access in whole or in part, it
will notify you in writing. The CSB will inform you in the notice of any
fee charged under Sec. 1602.9 and will disclose records to you promptly
on payment of any applicable fee. If your request is made in person, the
CSB may disclose records to you directly, in a manner not unreasonably
disruptive of its operations, on payment of any applicable fee and with
a written record made of the grant of the request. If you are
accompanied by another person when you make a request in person, you
shall be required to authorize in writing any discussion of the records
in the presence of the other person.
(c) Adverse determinations of requests for access. If the CSB makes
an adverse determination denying your request for access in any respect,
it will notify you of that determination in writing. Adverse
determinations, or denials of requests, consist of: a determination to
withhold any requested record in whole or in part; a determination that
a requested record does not exist or cannot be located; a determination
that what has been requested is not a record subject to the Privacy Act;
a determination on any disputed fee matter; and a denial of a request
for expedited treatment. The notification letter shall be signed by the
General Counsel, or his/her designee, and shall include:
(1) The name and title or position of the person responsible for the
(2) A brief statement of the reason(s) for the denial, including any
Privacy Act exemption(s) applied by the CSB in denying the request; and
(3) A statement that the denial may be appealed under Sec. 1602.5(a)
and a description of the requirements of Sec. 1602.5(a).
Sec. 1602.5 Appeals from denials of requests for access to records.
(a) Appeals. If you are dissatisfied with the CSB's response to your
request for access to records, you may appeal an adverse determination
denying your request in any respect to the Privacy Act Appeals Officer
of the CSB, 2175 K Street, NW., Suite 400, Washington, DC 20037. You
must make your appeal in writing, and it must be received within 60 days
of the date of the letter denying your request. Your appeal letter may
include as much or as little related information as you wish, as long as
it clearly identifies the determination (including the assigned request
number, if any) that you are appealing. For the quickest possible
handling, you should mark both your appeal letter and the envelope
``Privacy Act Appeal.''
(b) Responses to appeals. The decision on your appeal will be made
in writing. A decision affirming an adverse determination in whole or in
part will include a brief statement of the reason(s) for the affirmance,
including any Privacy Act exemption applied, and will inform you of the
Privacy Act provisions for court review of the decision. If the adverse
determination is reversed or modified on appeal in whole or in part, you
will be notified in a written decision and your request will be
reprocessed in accordance with that appeal decision.
(c) When appeal is required. If you wish to seek review by a court
of any adverse determination or denial of a request, you must first
appeal it under this section.
Sec. 1602.6 Requests for amendment or correction of records.
(a) How made and addressed. You may make a request for amendment or
correction of a CSB record about yourself by following the procedures in
Sec. 1602.2. Your request should identify each particular record in
question, state the amendment or correction that you want, and state why
you believe that the record is not accurate, relevant, timely, or
complete. You may submit any documentation that you think would be
(b) CSB responses. Within ten working days of receiving your request
for amendment or correction of records, the CSB will send you a written
acknowledgment of its receipt of your request, and it will promptly
notify you whether your request is granted or denied. If the CSB grants
your request in whole or in part, it will describe the amendment or
correction made and advise you of your right to obtain a copy of the
corrected or amended record. If the CSB denies your request in whole or
in part, it will send you a letter stating:
(1) The reason(s) for the denial; and
(2) The procedure for appeal of the denial under paragraph (c) of
this section, including the name and business address of the official
who will act on your appeal.
(c) Appeals. You may appeal a denial of a request for amendment or
correction in the same manner as a denial of a request for access to
records (see Sec. 1602.5), and the same procedures will be followed. If
your appeal is denied, you will be advised of your right to file a
Statement of Disagreement as described in paragraph (d) of this section
and of your right under the Privacy Act for court review of the
(d) Statements of Disagreement. If your appeal under this section is
denied in whole or in part, you have the right to file a Statement of
Disagreement that states your reason(s) for disagreeing with the CSB's
denial of your request for amendment or correction. Statements of
Disagreement must be concise, must clearly identify each part of any
record that is disputed, and should be no longer than one typed page for
each fact disputed. Your Statement of Disagreement must be sent to the
CSB, which will place it in the system of records in which the disputed
record is maintained and will mark the disputed record to indicate that
a Statement of Disagreement has been filed and where in the system of
records it may be found.
(e) Notification of amendment/correction or disagreement. Within 30
working days of the amendment or correction of a record, the CSB shall
notify all persons, organizations, or agencies to which it previously
disclosed the record, if an accounting of that disclosure was made, that
the record has been amended or corrected. If an individual has filed a
Statement of Disagreement, the CSB will attach a copy of it to the
disputed record whenever the record is disclosed and may also attach a
concise statement of its reason(s) for denying the request to amend or
correct the record.
Sec. 1602.7 Requests for an accounting of record disclosures.
(a) How made and addressed. Except where accountings of disclosures
are not required to be kept (as stated in paragraph (b) of this
section), you may make a request for an accounting of any disclosure
that has been made by the CSB to another person, organization, or agency
of any record about you. This accounting contains the date, nature, and
purpose of each disclosure, as well as the name and address of the
person, organization, or agency to which the disclosure was made. Your
request for an accounting should identify each particular record in
question and should be made by writing to the CSB, following the
procedures in Sec. 1602.2.
(b) Where accountings are not required. The CSB is not required to
provide accountings to you where they relate to disclosures for which
accountings are not required to be kept---in other words, disclosures
that are made to employees within the agency and disclosures that are
made under the FOIA.
(c) Appeals. You may appeal a denial of a request for an accounting
to the CSB Appeals Officer in the same manner as a denial of a request
for access to records (see Sec. 1602.5) and the same procedures will be
Sec. 1602.8 Preservation of records.
The CSB will preserve all correspondence pertaining to the requests
that it receives under this part, as well as copies of all requested
records, until disposition or destruction is authorized by Title 44 of
the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Records will not be
disposed of while they are the subject of a pending request, appeal, or
lawsuit under the Privacy Act.
Sec. 1602.9 Fees.
The CSB will charge fees for duplication of records under the
Privacy Act in the same way in which it charges duplication fees under
the FOIA (see part 1601, subpart D of this chapter). No search or review
fee will be charged for any record.
Sec. 1602.10 Notice of court-ordered and emergency disclosures.
(a) Court-ordered disclosures. When a record pertaining to an
individual is required to be disclosed by a court order, the CSB will
make reasonable efforts to provide notice of this to the individual.
Notice will be given within a reasonable time after the CSB's receipt of
the order--except that in a case in which the order is not a matter of
public record, the notice will be given only
after the order becomes public. This notice will be mailed to the
individual's last known address and will contain a copy of the order and
a description of the information disclosed.
(b) Emergency disclosures. Upon disclosing a record pertaining to an
individual made under compelling circumstances affecting health or
safety, the CSB will notify that individual of the disclosure. This
notice will be mailed to the individual's last known address and will
state the nature of the information disclosed; the person, organization,
or agency to which it was disclosed; the date of disclosure; and the
compelling circumstances justifying the disclosure.
PART 1603--RULES IMPLEMENTING THE GOVERNMENT IN THE SUNSHINE ACT--Table of Contents
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
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
1603.13 Report to Congress.
Authority: 5 U.S.C. 552b; 42 U.S.C. 7412(r)(6)(N).
Source: 67 FR 35445, May 20, 2002, unless otherwise noted.
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 herein, 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 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 Sec. 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
(f) Sunshine Act means the Government in the Sunshine Act, 5 U.S.C.
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
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
(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) 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
(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
(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
(1) Interfere with enforcement proceedings;
(2) Deprive a person of a right to a fair trial or an impartial
(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
(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 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 required by law to make such
disclosure on its own initiative prior to taking final action on such
(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
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. In 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/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. 1603.9 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 offical 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
(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.
(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
PART 1610--ADMINISTRATIVE INVESTIGATIONS--Table of Contents
1610.1 Representation of witnesses in investigations.
1610.2 Repeated attorney misconduct, sanctions, hearings.
1610.3 Sequestration of witnesses and exclusion of Counsel.
Authority: 42 U.S.C. 7412(r)(6)(C)(i), 7412(r)(6)(L), 7412(r)(6)(N).
Source: 66 FR 1050, Jan. 5, 2001, unless otherwise noted.
Sec. 1610.1 Representation of witnesses in investigations.
(a) Witnesses who are compelled to appear. Witnesses who are
compelled to appear for a deposition (i.e., by subpoena) are entitled to
be accompanied, represented, and advised by an attorney as follows:
(1) Counsel for a witness may advise the witness with respect to any
question asked where it is claimed that the testimony or other evidence
sought from a witness is outside the scope of the investigation, or that
is privileged to refuse to answer a question or to produce other
evidence. For these allowable objections, the witness or counsel for the
witness may object on the record to the question or requirement and may
state briefly and precisely the ground therefor. If the witness refuses
to answer a question, then counsel may briefly state on the record that
counsel has advised the witness not to answer the question and the legal
grounds for such refusal. The witness and his or her counsel shall not
otherwise object to or refuse to answer any question, and they shall not
otherwise interrupt the oral examination.
(2) Any objections made will be treated as continuing objections and
preserved throughout the further course of the deposition without the
necessity for repeating them as to any similar line of inquiry.
Cumulative objections are unnecessary. Repetition of the grounds for any
objection will not be allowed.
(3) Counsel for a witness may not, for any purpose or to any extent
not allowed by paragraphs (a)(1) and (2) of this section, interrupt the
examination of the witness by making any objections or statements on the
(4) Following completion of the examination of a witness, counsel
for the witness may on the record request the person conducting the
deposition to permit the witness to clarify any of his or her answers.
The grant or denial of such request shall be within the sole discretion
of the person conducting the deposition.
(5) The person conducting the deposition shall take all necessary
action to regulate the course of the deposition, to avoid delay, and to
prevent or restrain disorderly, dilatory, obstructionist, or
contumacious conduct, or contemptuous language. Such person shall, for
reasons stated on the record, immediately report to the Board any
instances where an attorney has allegedly refused to comply with his or
her directions, or has allegedly engaged in disorderly, dilatory,
obstructionist, or contumacious conduct, or contemptuous language in the
course of the deposition. The Board may thereupon take such further
action, if any, as the circumstances warrant, including exclusion of
that attorney from further participation in the particular
(b) Voluntary interviews. Witnesses appearing voluntarily do not
have a right to have an attorney present during questioning. The
Investigator-in-Charge (IIC), in consultation with the General Counsel,
may permit a witness to be accompanied by an attorney or non-attorney
representative. If so accompanied, the role of the attorney or non-
attorney representative is limited to raising objections to questions
that are outside the scope of the investigation and to advising the
witness with respect to any legal privilege such as, for example, under
the Fifth Amendment to the U. S. Constitution. Attorney and non-attorney
representatives may not represent more than one witness in each
investigation in this fashion, absent the consent of the IIC and the
Sec. 1610.2 Repeated attorney misconduct, sanctions, hearings.
(a) If an attorney who has been sanctioned by the Board for
disorderly, dilatory, obstructionist, or contumacious conduct, or
contemptuous language in the course of a deposition under
Sec. 1610.1(a)(5) is sanctioned again by the Board in a subsequent
deposition or investigation, the Board, after offering the attorney an
opportunity to be heard, may reprimand, censure the attorney, or suspend
the attorney from further practice before the Board for such period of
time as the Board deems advisable.
(b) A reprimand or a censure shall be ordered with grounds stated on
the record of the proceeding. A suspension shall be in writing, shall
state the grounds on which it is based, and shall advise the person
suspended of the right to appeal.
(c) An attorney suspended pursuant to this section may within ten
(10) days after issuance of the order file an appeal with the Board. The
appeal shall be in writing and state concisely, with supporting
argument, why the appellant believes the order was erroneous, either as
a matter of fact or law. If necessary for a full and fair consideration
of the facts, the Board as a whole may conduct further evidentiary
or may refer the matter to another presiding officer for development of
a record. Such presiding officer may be an attorney who is a Member of
the Board or is employed in the Office of General Counsel, or an
administrative law judge detailed from another agency pursuant to 5
U.S.C. 3344. If the Board refers the matter to a presiding officer,
unless the Board provides specific directions to the presiding officer,
that officer shall determine the procedure to be followed and who shall
present evidence, subject to applicable provisions of law. Such hearing
shall commence as soon as possible. If no appeal is taken of a
suspension, or, if the suspension is upheld at the conclusion of the
appeal, the presiding officer, or the Board, as appropriate, shall
notify the state bar(s) to which the attorney is admitted. Such
notification shall include copies of the order of suspension, and, if an
appeal was taken, briefs of the parties, and the decision of the Board.
[66 FR 17363, Mar. 30, 2001]
Sec. 1610.3 Sequestration of witnesses and exclusion of Counsel.
(a) All witnesses compelled by subpoena to submit to CSB depositions
shall be sequestered unless the official conducting the depositions
(b) Any witness compelled by subpoena to appear at a deposition
during a CSB investigation may be accompanied, represented, and advised
by an attorney in good standing of his or her choice, pursuant to
Sec. 1610.1. However, when the CSB official conducting the investigation
determines, after consultation with the Office of General Counsel, that
the CSB has concrete evidence that the presence of an attorney
representing multiple interests would obstruct and impede the
investigation or inspection, the CSB official may prohibit that counsel
from being present during the deposition.
(c) The deposing official is to provide a witness whose counsel has
been excluded under paragraph (b) of this section, and the witness'
counsel, a written statement of the reasons supporting the decision to
exclude. This statement, which must be provided no later than five
working days after exclusion, must explain the basis for the counsel's
exclusion. This statement must also advise the witness of the witness'
right to appeal the exclusion decision and obtain an automatic stay of
the effectiveness of the subpoena by filing a motion to quash the
subpoena with the Board within five days of receipt of this written
(d) Within five days after receipt of the written notification
required in paragraph (c) of this section, a witness whose counsel has
been excluded may appeal the exclusion decision by filing a motion to
quash the subpoena with the Board. The filing of the motion to quash
will stay the effectiveness of the subpoena pending the Board's decision
on the motion.
(e) If a witness' counsel is excluded under paragraph (b) of this
section, the deposition may, at the witness' request, either proceed
without counsel or be delayed for a reasonable period of time to permit
the retention of new counsel. The deposition may also be rescheduled to
a subsequent date established by the CSB, although the deposition shall
not be rescheduled by the CSB to a date that precedes the expiration of
the time provided in paragraph (d) of this section for appeal of the
exclusion of counsel, unless the witness consents to an earlier date.
[66 FR 17363, Mar. 30, 2001]
PART 1611--TESTIMONY BY EMPLOYEES IN LEGAL PROCEEDINGS--Table of Contents
1611.3 Scope of permissible testimony.
1611.4 Manner in which testimony is given in civil litigation.
1611.5 Request for testimony in civil litigation.
1611.6 Testimony of former CSB employees.
1611.7 Testimony by current CSB employees regarding prior activity.
1611.8 Procedure in the event of a subpoena in civil litigation.
1611.9 Testimony in Federal, State, or local criminal investigations and
1611.10 Obtaining CSB investigation reports and supporting information.
Authority: 5 U.S.C. 301, 42 U.S.C. 7412(r)(6)(G).
Source: 66 FR 17366, Mar. 30, 2001, unless otherwise noted.
Sec. 1611.1 General.
(a) This part prescribes policies and procedures regarding the
testimony of employees of the Chemical Safety and Hazard Investigation
Board (CSB) in suits or actions for damages and criminal proceedings
arising out of chemical incidents when such testimony is in an official
capacity and arises out of or is related to an incident investigation.
The purpose of this part is to ensure that the time of CSB employees is
used only for official purposes, to avoid embroiling the CSB in
controversial issues that are not related to its duties, to avoid
spending public funds for non-CSB purposes, to preserve the impartiality
of the CSB, and to prohibit the discovery of opinion testimony.
(b) This part does not apply to:
(1) Congressional requests or subpoenas for testimony or records;
(2) Federal court civil proceedings in which the United States is a
(3) Federal administrative proceedings;
(4) Employees who voluntarily testify, while on their own time or in
approved leave status, as private citizens as to facts or events that
are not related to the official business of the CSB. The employee must
state for the record that the testimony represents the employee's own
views and is not necessarily the official position of the CSB.
(c) This part only provides guidance for the internal operations of
the CSB, and neither creates nor is intended to create any enforceable
right or benefit against the United States.
Sec. 1611.2 Definitions.
CSB incident report means the report containing the CSB's
determinations, including the probable cause of an incident, issued
either as a narrative report or in a computer format. Pursuant to 42
U.S.C. 7412(r)(6)(G), no part of the conclusions, findings or
recommendations of the CSB relating to an accidental release or the
investigation thereof, may be admitted as evidence or used in any suit
or action for damages growing out of any matter mentioned in such
Employee, for the purpose of this part and part 1612 of this
chapter, refers to current or former CSB Board Members or employees,
including student interns, and contractors, contract employees, or
consultants (and their employees). This definition does not include
persons who are no longer employed by or under contract to the CSB, and
who are retained or hired as expert witnesses or agree to testify about
matters that do not involve their work for the CSB.
[66 FR 17366, Mar. 30, 2001, as amended at 66 FR 23854, May 10, 2001]
Sec. 1611.3 Scope of permissible testimony.
(a) The statute creating the CSB, 42 U.S.C. 7412(r)(6)(G), precludes
the use or admission into evidence of CSB investigative reports in any
suit or action for damages arising from such incidents. This provision
would be undermined if expert opinion testimony of CSB employees, which
may be reflected in the views of the CSB expressed in its reports, were
admitted in evidence or used in litigation arising out of an incident.
The CSB relies heavily upon its investigators' opinions in its
deliberations. Furthermore, the use of CSB employees as experts to give
opinion testimony would impose a significant administrative burden on
the CSB's investigative staff.
(b) For the reasons stated in paragraph (a) of this section and
Sec. 1611.1, CSB employees may only testify as to the factual
information they obtained during the course of an investigation.
However, they shall decline to testify regarding matters beyond the
scope of their investigation, and they shall not give any expert or
(c) CSB employees may testify about the firsthand information they
obtained during an investigation that is not reasonably available
elsewhere, including their own factual observations. Consistent with the
principles cited in Sec. 1611.1 and this section, current CSB employees
are not authorized to testify regarding other employee's observations or
reports, or other types of CSB documents, including but not limited to
safety recommendations, safety studies, safety proposals, safety
accomplishments, reports labeled studies, and
analysis reports, as they contain staff analysis and/or CSB conclusions.
(d) Consistent with 42 U.S.C. 7412(r)(6)(G), a CSB employee may not
use the CSB's investigation report for any purpose during his testimony.
(e) No employee may testify in any matter absent advance approval by
the General Counsel as provided in this part.
Sec. 1611.4 Manner in which testimony is given in civil litigation.
(a) Testimony of CSB employees with unique, firsthand information
may be made available for use in civil actions or civil suits for
damages arising out of incidents through depositions or written
interrogatories. CSB employees are not permitted to appear and testify
in court in such actions.
(b) Normally, depositions will be taken and interrogatories answered
at the CSB's headquarters in Washington, DC, and at a time arranged with
the employee reasonably fixed to avoid substantial interference with the
performance of his or her duties.
(c) CSB employees are authorized to testify only once in connection
with any investigation they have made of an incident. Consequently, when
more than one civil lawsuit arises as a result of an incident, it shall
be the duty of counsel seeking the employee's deposition to ascertain
the identity of all parties to the multiple lawsuits and their counsel,
and to advise them of the fact that a deposition has been granted, so
that all interested parties may be afforded the opportunity to
(d) Upon completion of the deposition of a CSB employee, the
original of the transcript will be provided to the deponent for
signature and correction, which the CSB does not waive. A copy of the
transcript of the testimony and any videotape shall be furnished, at the
expense of the party requesting the deposition, to the CSB's General
Counsel at Washington, DC headquarters for the CSB's files.
(e) If CSB employees are required to travel to testify, under the
relevant substantive and procedural laws and regulations the party
requesting the testimony must pay for the costs, including travel
expenses. Costs must be paid by check or money order payable to the
Chemical Safety and Hazard Investigation Board.
Sec. 1611.5 Request for testimony in civil litigation.
(a) A written request for testimony by deposition or interrogatories
of a CSB employee relating to an incident shall be addressed to the
General Counsel, who may approve or deny the request consistent with
this part. Such request shall set forth the title of the civil case, the
court, the date and place of the incident, the reasons for desiring the
testimony, and a showing that the information desired is not reasonably
available from other sources.
(b) Where testimony is sought in connection with civil litigation,
the General Counsel shall not approve it until the CSB's investigation
report is issued.
(c) The General Counsel shall attach to the approval of any
deposition such reasonable conditions as may be deemed appropriate in
order that the testimony will be consistent with Sec. 1611.1, will be
limited to the matters delineated in Sec. 1611.3, will not interfere
with the performance of the duties of the employee as set forth in
Sec. 1611.4, and will otherwise conform to the policies of this part.
(d) A subpoena shall not be served upon a CSB employee in connection
with the taking of a deposition in civil litigation.
Sec. 1611.6 Testimony of former CSB employees.
(a) It is not necessary to request CSB approval for testimony of a
former CSB employee, nor is such testimony limited to depositions.
However, the scope of permissible testimony continues to be constrained
by all the limitations set forth in Sec. 1611.3 and Sec. 1611.4.
(b) Any former employee who is served with a subpoena to appear and
testify in connection with civil litigation that relates to his or her
work with the CSB, shall immediately notify the CSB General Counsel and
provide all information requested by the General Counsel.
[66 FR 17366, Mar. 30, 2001, as amended at 66 FR 23854, May 10, 2001]
Sec. 1611.7 Testimony by current CSB employees regarding prior activity.
Any testimony regarding any incident within the CSB's jurisdiction,
or any expert testimony arising from employment prior to CSB service is
prohibited absent approval by the General Counsel. Approval shall only
be given if testimony will not violate Sec. 1611.1 and Sec. 1611.3, and
is subject to whatever conditions the General Counsel finds necessary to
promote the purposes of this part as set forth in Sec. 1611.1 and
Sec. 1611.8 Procedure in the event of a subpoena in civil litigation.
(a) If the CSB employee has received a subpoena to appear and
testify in connection with civil litigation, a request for his
deposition shall not be approved until the subpoena has been withdrawn.
(b) Upon receipt of a subpoena, the employee shall immediately
notify the General Counsel and provide all information requested by the
(c) The General Counsel shall determine the course of action to be
taken and will so advise the employee.
Sec. 1611.9 Testimony in Federal, State, or local criminal investigations and other proceedings.
(a) As with civil litigation, the CSB prefers that testimony be
taken by deposition if court rules permit, and that testimony await the
issuance of the investigation report. The CSB recognizes, however, that
in the case of coroner's inquests and grand jury proceedings this may
not be possible. The CSB encourages those seeking testimony of CSB
employees to contact the General Counsel as soon as such testimony is
being considered. Whenever the intent to seek such testimony is
communicated to the employee, he shall immediately notify the General
(b) In any case, CSB employees are prohibited from testifying in any
civil, criminal, or other matter, either in person or by deposition or
interrogatories, absent advance approval of the General Counsel.
(c) If permission to testify by deposition or in person is granted,
testimony shall be limited as set forth in Sec. 1611.3. Only factual
testimony is authorized; no expert or opinion testimony shall be given.
Sec. 1611.10 Obtaining CSB investigation reports and supporting information.
It is the responsibility of the individual requesting testimony to
obtain desired documents. There are a number of ways to obtain CSB
investigation reports, and accompanying investigation docket files. The
rules at part 1612 of this chapter explain CSB procedures for production
of records in legal proceedings, and the CSB's Freedom of Information
Act rules at part 1601 of this chapter explain CSB procedures for
producing documents more generally. See also the information available
on the CSB web site, at www.csb.gov. You may also call the CSB Office of
General Counsel, at (202) 261-7600. Documents will not be supplied by
witnesses at depositions, nor will copying services be provided by
PART 1612--PRODUCTION OF RECORDS IN LEGAL PROCEEDINGS--Table of Contents
1612.1 Purpose and scope.
1612.3 Published reports and material contained in the public incident
1612.4 Requests for authentication or certification of records.
1612.5 Other material.
Authority: 5 U.S.C. 301, 42 U.S.C. 7412(r)(6)(G).
Source: 66 FR 17366, Mar. 30, 2001, unless otherwise noted.
Sec. 1612.1 Purpose and scope.
(a) This part sets forth procedures to be followed when requesting
material for use in legal proceedings (including administrative
proceedings) in which the Chemical Safety and Hazard Investigation Board
(CSB) is not a party, and procedures to be followed by the employee upon
receipt of a subpoena, order, or other demand (collectively referred to
here as a demand) for such material by a court or other competent
authority or by a private litigant. Material, as used in this part,
type of physical or documentary evidence, including but not limited to
paper documents, electronic media, videotapes, audiotapes, etc.
(b) The purposes of this part are to:
(1) Conserve the time of employees for conducting official business;
(2) Minimize the possibility of involving the CSB in controversial
issues not related to its mission;
(3) Maintain the impartiality of the CSB among private litigants;
(4) Avoid spending the time and money of the United States for
private purposes; and
(5) To protect confidential, sensitive information, and the
deliberative processes of the CSB.
Sec. 1612.2 Applicability.
This part applies to requests to produce material concerning
information acquired in the course of performing official duties or
because of the employee's official status. Specifically, this part
applies to requests for: material contained in CSB files; and any
information or material acquired by an employee of the CSB in the
performance of official duties or as a result of the employee's status.
Two sets of procedures are here established, dependent on the type of
material sought. Rules governing requests for employee testimony, as
opposed to material production, can be found at part 1611 of this
chapter. Document production shall not accompany employee testimony,
absent compliance with this part and General Counsel approval.
Sec. 1612.3 Published reports and material contained in the public incident investigation dockets.
(a) Demands for published investigation reports should be directed
to the Office of Congressional and Public Affairs, U.S. Chemical Safety
and Hazard Investigation Board, 2175 K Street, NW, Suite 400,
Washington, DC 20037. Demands for material contained in the CSB's
official public docket files of its incident investigations shall be
submitted, in writing, to CSB Records Officer, U.S. Chemical Safety and
Hazard Investigation Board, 2175 K Street, NW, Suite 400, Washington, DC
20037. For information regarding the types of documents routinely issued
by the CSB, see part 1601 of this chapter.
(b) No subpoena shall be issued to obtain materials subject to this
section, and any subpoena issued shall be required to be withdrawn prior
to release of the requested information. Payment of reproduction fees
may be required in advance.
Sec. 1612.4 Requests for authentication or certification of records.
The CSB may authenticate or certify records to facilitate their use
as evidence. Requests for certified copies should be made to the General
Counsel at least 30 days before the date they will be needed. The CSB
may charge a certification fee of $5.00 per document.
Sec. 1612.5 Other material.
(a) Production prohibited unless approved. Except in the case of the
material referenced in Sec. 1612.3, no employee or former employee of
the CSB shall, in response to a demand of a private litigant, court, or
other authority, produce any material contained in the files of the CSB
(whether or not agency records under 5 U.S.C. 552) or produce any
material acquired as part of the performance of the person's official
duties or because of the person's official status, without the prior
written approval of the General Counsel.
(b) Procedures to be followed for the production of material under
(1) All demands for material shall be submitted to the General
Counsel at CSB headquarters, 2175 K Street, NW., Suite 400, Washington,
DC 20037. If an employee receives a demand, he shall forward it
immediately to the General Counsel.
(2) Each demand must contain an affidavit by the party seeking the
material or his attorney setting forth the material sought and its
relevance to the proceeding, and containing a certification, with
support, that the information is not available from other sources,
including CSB materials described in Sec. 1612.3 and part 1601 of this
(3) In the absence of General Counsel approval of a demand, the
employee is not authorized to comply with the demand.
(4) The General Counsel shall advise the requester of approval or
denial of the demand, and may attach whatever conditions to approval
considered appropriate or necessary to promote the purposes of this
part. The General Counsel may also permit exceptions to any requirement
in this part when necessary to prevent a miscarriage of justice, or when
the exception is in the best interests of the CSB and/or the United
PARTS 1613-1699 [RESERVED]