This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

46720 

Vol. 79, No. 154 

Monday, August 11, 2014 

DEFENSE NUCLEAR FACILITIES 

SAFETY BOARD 

10 CFR Part 1708 

Procedures for Safety Investigations 

AGENCY: Defense Nuclear Facilities 

Safety Board. 

ACTION: Second notice of proposed rule. 

SUMMARY: The Defense Nuclear 

Facilities Safety Board (Board) 

published a proposed rule in the 

Federal Register (77 FR 44174) on July 

27, 2012. The proposed rule established 

procedures for conducting preliminary 

and formal safety investigations of 

events or practices at Department of 

Energy (DOE) defense nuclear facilities 

that the Board determines have 

adversely affected, or may adversely 

affect, public health and safety. The 

Board’s experience in conducting formal 

safety investigations necessitates 

codifying the procedures set forth in the 

final rule. Among other benefits, these 

procedures will ensure a more efficient 

investigative process, protect 

confidential and privileged safety 

information, and promote uniformity of 

future safety investigations. The rule 

also promotes public awareness through 

greater transparency in the conduct of 

Board investigations. 

The Board’s enabling legislation, 42 

U.S.C. 2286 et seq., was amended on 

January 2, 2013, by the National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2013. The amendments 

appeared before the final rule was 

published. This second notice of 

proposed rule incorporates changes 

necessitated by those amendments. 

DATES: To be considered, comments 

must be mailed, emailed, or delivered to 

the address listed below on or before 

October 10, 2014. 

FOR FURTHER INFORMATION CONTACT: John 

G. Batherson, Associate General 

Counsel, Defense Nuclear Facilities 

Safety Board, 625 Indiana Avenue NW., 

Suite 700, Washington, DC 20004, 

telephone (202) 694–7018, facsimile 

(202) 208–6518, email JohnB@dnfsb.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On July 27, 2012, the Board published 

a proposed rule in the Federal Register 

(77 FR 44174). The Board initially 

provided a 30-day public comment 

period for the proposed rule, and then 

extended the comment period an 

additional 30 days to September 26, 

2012 (77 FR 51943). Subsequent to 

publication of the proposed rule and 

disposition of comments, but before the 

final rule was published, the NDAA for 

FY 2013 amended the Board’s enabling 

legislation on January 2, 2013. One new 

provision, 42 U.S.C. 2286(c)(5), 

describes the authority of individual 

Board Members. This authority includes 

equal responsibility in establishing 

decisions and determining actions of the 

Board, full access to all information 

relating to the performance of the 

Board’s functions, powers, and mission, 

and authority to have one vote. The 

NDAA amendments require the Board to 

further modify the proposed rule. These 

modifications will be described in 

further detail in Section V. below. 

The Board is responsible for making 

recommendations to the Secretary of 

Energy and the President as the Board 

determines are necessary to ensure 

adequate protection of public health and 

safety at DOE defense nuclear facilities. 

The Board is vested with broad 

authority pursuant to 42 U.S.C. 

2286a(b)(2) to investigate events or 

practices which have adversely affected, 

or may adversely affect, public health 

and safety at DOE’s defense nuclear 

facilities. The Board is authorized to 

promulgate this final rule pursuant to its 

enabling legislation in the Atomic 

Energy Act of 1954, as amended, at 42 

U.S.C. 2286b(c), which states that the 

Board may prescribe regulations to carry 

out its responsibilities. The final rule 

establishes a new Part 1708 in the 

Board’s regulations, setting forth 

procedures governing the conduct of 

safety investigations. 

It is imperative that Board 

investigators be able to obtain 

information from witnesses necessary to 

form an understanding of the 

underlying causes that adversely affect, 

or may adversely affect, public health 

and safety at DOE defense nuclear 

facilities. Frank communications are 

critical if Board investigators are to be 

effective. The Board must also be 

viewed as uncompromising in 

maintaining non-disclosure of 

privileged safety information. The Board 

must be able to assure complete 

confidentiality in order to encourage 

future witnesses to come forward. 

The Board requires the discretion to 

offer individuals enforceable assurances 

of confidentiality in order to encourage 

their full and frank testimony. Without 

such authority, individuals may refrain 

from providing the Board with vital 

information affecting public health and 

safety, frustrating the efficient operation 

of the Board’s oversight mission. To 

encourage candor and facilitate the free 

flow of information, the Board adopted 

in the proposed rule procedures to 

protect confidential statements from 

disclosure to the maximum extent 

permitted under existing law. 

The Board received two formal 

comments on the July 27, 2012, 

proposed rule: An email comment from 

Mr. Richard L. Urie, dated September 4, 

2012, and a letter from Mr. Eric Fygi, 

DOE Deputy General Counsel, dated 

September 26, 2012, submitted on 

behalf of DOE. The Board also became 

aware of additional commentary from 

Mr. Larry Brown, a former Board 

Member, published in the ‘‘Weapons 

Complex Monitor.’’ This commentary 

was not sent to the Board’s contact point 

noticed in the proposed rule. However, 

the Board, in its discretion, has decided 

to treat this commentary as having been 

submitted directly to the Board as a 

comment. The Board has carefully 

considered each comment received, and 

has made modifications to the proposed 

rule in response where appropriate. 

II. Email Comment From Mr. Richard 

L. Urie 

Comment. The commenter stated that 

he submitted his comment in his 

personal capacity as a health and safety 

professional, and that he was not 

speaking on behalf of or for DOE. The 

commenter fully supports the concept of 

providing anonymity and formality in 

the investigative process. He alluded to 

raising significant safety issues in the 

past as a contractor and found the 

subsequent process to be demoralizing 

and punitive in nature. The commenter 

further suggested that raising safety 

issues, even with the best of intentions, 

nearly always negatively impacts both 

the individual and his or her family; 

such impacts disincentivize employees 


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to report safety issues. The commenter 

indicated he was a strong advocate of 

workers’ rights to report or discuss 

relevant issues in a protected status, and 

that anything less is counterproductive 

to a mission oriented, proactive safety 

culture within any organization. 

Response: The Board agrees with this 

comment. The Board’s intent in 

promulgating the rule resonates with the 

commenter’s support for anonymity and 

formality in the investigative process. 

The Board believes the final rule will 

address the concerns raised by the 

commenter by providing confidentiality 

to individuals and enhanced procedural 

processes in the conduct of safety 

investigations. No change to the 

proposed rule is needed in response to 

this comment. 

III. Comments From the Department of 

Energy via Deputy General Counsel 

Eric Fygi 

A comprehensive set of comments 

was received from Mr. Eric Fygi, DOE 

Deputy General Counsel. Each of the 

enumerated comments under this subheading is attributable to the 

commenter. 

Comment 1. As a general matter, the 

Board is a public entity whose 

paramount mission is to provide 

recommendations to DOE relating to 

nuclear safety. However, the proposed 

rule would allow the Board to withhold 

information it collects during safety 

investigations and would place 

restrictive limits on the role of DOE’s 

counsel in such investigations. The rule 

therefore runs counter to the Board’s 

essential mission of providing 

information and recommendations to 

DOE and will likely have unintended, 

negative consequences. If there are 

safety matters to resolve, DOE is the 

entity responsible for taking swift and 

appropriate actions. By withholding 

information collected by the Board from 

DOE, the Board’s proposed rule runs the 

very real risk of limiting the 

effectiveness of DOE’s response to 

genuine safety issues. 

Response: The comment 

fundamentally misconstrues the 

statutory structure that governs the 

Board’s operations. It is true that one of 

the Board’s principal functions is ‘‘to 

provide recommendations to the 

Department of Energy relating to nuclear 

safety.’’ In order to carry out this 

function, the Board must gather 

information. The Board collects 

information via examination of 

documents sent to it voluntarily and 

with the cooperation of DOE, imposition 

of reporting requirements on the 

Secretary of Energy, investigations, and 

public hearings. The Board’s enabling 

act and the legislative history do not, 

however, assign to the Board the task of 

‘‘providing information’’ to DOE. In the 

investigative context, the Board reviews 

all information it develops and may use 

the information to make 

recommendations to the Secretary. But 

the Board must first obtain all necessary 

information, which is the precise 

purpose of the proposed rule. In the 

event a safety investigation revealed 

information pertinent to a genuine 

safety issue, the Board would readily 

disclose such information consistent 

with its charter to ensure adequate 

protection of the public and worker 

health and safety. On the other hand, an 

investigation could conceivably not 

result in the discovery of new safety 

information of value to DOE. No change 

to the proposed rule is needed in 

response to this comment. 

Comment 2: The proposed rule does 

not take account of existing, effective 

procedures through which safety 

concerns may be raised to DOE. DOE 

and its contractors provide numerous 

formal and informal processes by which 

employees may report safety concerns, 

including the Differing Professional 

Opinion process. DOE takes seriously its 

need to foster and support a fully 

effective ‘‘Safety Conscious Work 

Environment,’’ one where employees 

feel free to raise safety concerns to 

management without fear of reprisal. It 

is not clear that the Board’s proposed 

rule is necessary or that it fully takes 

account of existing, effective procedures 

at DOE and its contractors. 

Response: The Board is aware of the 

internal DOE procedures referred to in 

the comment. It is not clear how these 

procedures relate to the subject of the 

proposed rule regarding safety 

investigations conducted by the Board. 

The Board’s enabling legislation states 

that the Board ‘‘shall investigate any 

event or practice at a Department of 

Energy defense nuclear facility which 

the Board determines has adversely 

affected, or may adversely affect, public 

health and safety.’’ The Board is not 

given the option of declining to do 

investigations of health and safety 

matters based on DOE’s employee 

concerns reporting procedures. 

Moreover, DOE and contractor processes 

for protecting employees who report 

safety issues may not be completely 

effective. In the investigation preceding 

the Board’s Recommendation 2011–1, 

Safety Culture at the Waste Treatment 

and Immobilization Plant (WTP), the 

Board found evidence that a DOE 

employee concerns program was not 

effective, and that technical dissent was 

being suppressed at the WTP project. 

Provisions in the Board’s final rule 

designed to further enhance the 

confidentiality of employees who raise 

safety issues facilitate a healthier 

‘‘Safety Conscious Work Environment.’’ 

No change to the proposed rule is 

needed in response to this comment. 

Comment 3: DOE objects to any 

provisions that would purport to allow 

the Board or any Investigating Officer 

from barring counsel from a hearing 

room absent extraordinarily weighty 

grounds. Specifically, proposed 

§ 1708.110(c) would authorize an 

Investigating Officer to exclude an 

attorney who represents multiple 

interests if the Investigating Officer has 

‘‘concrete evidence’’ that the attorney’s 

presence would ‘‘obstruct or impede the 

safety investigation.’’ DOE objects to 

this proposed provision to the extent it 

may be construed to exclude DOE 

counsel from being present during the 

testimony of multiple agency witnesses. 

As an initial matter, a DOE attorney 

appearing with DOE officers and 

employees does not have a ‘‘possible 

conflict of interest’’ to report because 

DOE counsel represents the interests of 

the agency and its officers and 

employees in their official capacities. 

Response: In a safety investigation, 

testimony could be taken from DOE or 

contractor employees who have 

challenged management positions and 

fear corporate or agency reprisals. In 

such cases, representation by corporate 

counsel or DOE counsel may not be 

desired by the witness. If counsel is 

nonetheless present, such witnesses 

may say little or refuse to testify at all 

because the attorney may report the 

substance of the testimony to corporate 

or agency officials. For this reason, it is 

entirely appropriate for the Board to 

exclude a corporate or DOE attorney in 

certain cases where the ‘‘concrete 

evidence’’ standard is met. Moreover, 

there may come a point where a 

witness’s or employee’s interests may 

diverge from that of the employer or 

agency. Proposed § 1708.110(c) simply 

recognizes the contingency where 

potential or actual adverse interests may 

exist such that impartiality cannot be 

maintained consistent with the 

‘‘concrete evidence’’ standard. No 

change to the proposed rule is needed 

in response to this comment. 

Comment 4: The Nuclear Regulatory 

Commission (NRC), in promulgating a 

rule that contains a provision nearly 

identical to proposed § 1708.110(c), 

predicted that ‘‘it will be a rare case in 

which there is actual proof that the 

multiple representation will seriously 

obstruct and impede the investigation.’’ 

57 FR 61,780, 61,783 (Dec. 29, 1992). 

That prediction was prescient: in the 

twenty years since the NRC’s rule went 


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into effect, the agency has not once 

exercised its power to exclude counsel 

from a safety investigation. DOE 

contends that should the Board choose 

to maintain the ‘‘concrete evidence’’ 

language in the rule that it apply the 

standard in the same rigorous fashion as 

the NRC. 

Response: The Board agrees that it 

will probably be a rare case where the 

‘‘concrete evidence’’ standard is 

satisfied. However, as the commenter 

points out, this standard is one accepted 

by the courts in the Administrative 

Procedure Act (APA) context. See 

Professional Reactor Operator Society v. 

Nuclear Regulatory Commission, 939 

F.2d 1047 (D.C. Cir. 1991) and Security 

and Exchange Commission v. Frank 

Csapo, 533 F.2d 7 (D.C. Cir. 1976). The 

Board agrees with the commenter’s 

suggestion that the Board should apply 

rigor in the application of the standard 

should the situation ever arise. No 

change to the proposed rule is needed 

in response to this comment. 

Comment 5: DOE recommends that 

the Board institute the same procedural 

protections that the NRC’s rule 

provides, viz., the requirement that the 

Board issue a written statement of the 

reasons supporting any decision to 

exclude counsel, and provide for a delay 

of the hearing to permit the retention of 

new counsel. See 10 CFR 19.18. 

Response: The Board agrees with the 

comment and has modified § 1708.110 

of the rule accordingly, so that the 

Board must issue a verbal or written 

statement of the reasons supporting any 

decision to exclude counsel and provide 

for a delay of the hearing to permit the 

retention of new counsel. 

Comment 6: Proposed § 1708.112(b) 

would authorize the Board to exclude 

from appearing before the Board any 

counsel found ‘‘[t]o have engaged in 

obstructionism or contumacy.’’ Unlike 

proposed § 1708.110(c), this provision 

has no counterpart in the NRC’s 

regulations governing investigatory 

proceedings. Indeed, despite the NRC’s 

critically important nuclear safety 

mission, that agency’s regulations do 

not contemplate the exclusion of 

counsel from investigative proceedings 

on any grounds except for 

representation of multiple interests, as 

discussed above. The NRC’s regulations 

governing adjudicatory proceedings— 

distinct from the investigative 

proceedings contemplated in the 

Board’s proposed rule—do contain a 

provision authorizing the presiding 

officer to exclude any counsel ‘‘who 

refuses to comply with its directions, or 

who is disorderly, disruptive, or engages 

in contemptuous conduct.’’ 10 CFR 

2.314(c). This authority has been 

exercised only on rare occasions, and 

only in the face of truly egregious 

misconduct. 

Response: The commenter seems to be 

arguing that the Board’s rules must track 

those used by NRC when NRC 

investigates licensees. The provision 

objected to has been utilized by other 

federal agencies with similar language. 

For example, the Chemical Safety and 

Hazard Investigation Board’s (CSHIB) 

rule on attorney misconduct provides 

that persons conducting depositions 

have authority to take all necessary 

actions to avoid delay, obstructionism 

and contemptuous language. This same 

provision grants the CSHIB authority to 

exclude attorneys from participation in 

investigations if circumstances warrant. 

See 40 CFR 1610.1(a)(5). The Federal 

Energy Regulatory Commission’s (FERC) 

rule on attorney misconduct has similar 

effect. A FERC investigating officer has 

authority to take all necessary action to 

regulate the course of a proceeding to 

avoid delay and prevent or restrain 

obstructionist or contumacious conduct 

or contemptuous language. Moreover, 

the Commission may suspend or bar 

counsel from further appearance before 

it, and may even exclude counsel from 

participation in an investigation if 

circumstances warrant. See 18 CFR 

1b.16c(4). The Board’s proposed 

§ 1708.112(c) is similar to the 

misconduct provisions in both the 

CSHIB and FERC rules in that the Board 

may exclude or suspend persons from 

participation in safety investigations if 

those persons engage in obstructionist 

or contumacious conduct. The Board 

finds that the CSHIB and FERC 

provisions, in use for a considerable 

length of time, are suitable models and 

chooses not to employ NRC’s more 

elaborate procedures, except as 

provided in response to Comments 8 

and 9 below. No change to the proposed 

rule is needed in response to this 

comment. 

Comment 7: Further, DOE asserts that 

proposed § 1708.112 does not provide 

any method to challenge an attorney’s 

exclusion on the grounds of 

obstructionism or contumacy. If the 

Board does not remove this provision 

from its proposed rule, DOE 

recommends that the Board provide 

witnesses and their attorneys the ability 

to request a stay and review of any 

contumacy or obstructionism finding, 

similar to that which NRC grants to 

attorneys practicing before it in an 

adjudicatory setting. 

Response: The Board chooses not to 

adopt the procedures used by NRC with 

respect to requesting a stay and review 

of contumacy or obstructionism 

findings. No change to the proposed 

rule is needed in response to this 

comment. 

Comment 8: Proposed § 1708.112(b) 

does not require any statement (written 

or otherwise) of the reasons for the 

finding of ‘‘obstructionism or 

contumacy.’’ DOE recommends that if 

the provision is retained, the proposed 

rule require a written statement of 

reasons to be given at the time of the 

finding. 

Response: The Board agrees with the 

comment and has created new 

§ 1708.112(d) to include language that a 

statement, either verbal or written, of 

the reasons for a finding of 

‘‘obstructionism or contumacy’’ will be 

given at the time of the finding. 

Comment 9: While proposed 

§ 1708.112(d) allows a witness whose 

counsel has been suspended or 

excluded to retain a replacement, DOE 

suggests that if retained, the rule specify 

that the witness will be allowed a 

reasonable time to obtain such a 

replacement. 

Response: The Board agrees with the 

comment and has created new 

§ 1708.112(e) to include language 

allowing a reasonable period of time to 

permit retention of new counsel. 

Comment 10. Proposed § 1708.109 

seeks to limit in various ways the 

grounds on which attorneys may raise 

objections at an investigative hearing. 

For example, it would prohibit counsel 

from objecting to any question unless it 

is deemed to be outside the scope of the 

investigation or would require the 

witness to reveal privileged information. 

See Proposed § 1708.109(c). It would 

also prohibit ‘‘unnecessary objections,’’ 

without providing guidance on what 

objections should be considered 

necessary and what should be 

considered unnecessary. Finally, it 

would preclude counsel from repeating 

an objection that has been made to a 

similar line of inquiry. See Proposed 

§ 1708.109(e), (f). These prohibitions do 

not constitute the full range of 

acceptable and reasonable legal 

objections, and these limitations would 

necessarily infringe upon counsel’s 

responsibility to zealously represent his 

or her client. 

Response: The commenter 

misapprehends the purpose of 

testimony given in a Board safety 

investigation. Safety investigations are 

not APA proceedings designed to 

assemble an evidentiary record upon 

which rulemaking or adjudicatory 

decisions are based. Hearings in safety 

investigations conducted by the Board 

have only one purpose: To obtain as 

much relevant information as possible 

in a timely manner about the event or 

practice of concern. Counsel for a 


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witness is not present to ensure that 

strict rules of evidence are followed. To 

the contrary, formal rules of evidence do 

not apply in such proceedings. 

Investigative proceedings could easily 

be made ineffective by actions of 

counsel whose purpose is to impede the 

free giving of relevant testimony. The 

Board certainly recognizes that if the 

form of a question is confusing or could 

be misconstrued, counsel is encouraged 

to seek clarification from the Board. 

Additionally, the Board will not make 

inquiries into protected privileged 

communications between counsel and 

client. The Board is optimistic that if a 

hearing is convened pursuant to a safety 

investigation, it will be conducted in a 

mutually civil and cooperative manner. 

No change to the proposed rule is 

needed in response to this comment. 

Comment 11: DOE also questions the 

Board’s authority for withholding 

information from DOE based on a 

purported ‘‘safety privilege,’’ at 

proposed §§ 1708.104, 1708.114, and 

1708.115. The proposed rule provides 

that information will be treated as 

‘‘safety privileged . . . to the extent 

permissible under existing law.’’ 

Proposed § 1708.104; see also 

Background paragraph (safety privilege 

adopted ‘‘to protect confidential witness 

statements to the maximum extent 

permitted under existing law’’). 

However, no common law or statutory 

privilege exists to protect disclosure of 

information to DOE on the ground that 

it relates to safety. 

Response: This comment appears to 

proceed from the assumption that DOE 

has a statutory right to request 

information from the Board, much as a 

private citizen has a statutory right to 

request disclosure of agency records 

under the Freedom of Information Act 

(FOIA). Such an assumption conflicts 

both with the Board’s enabling 

legislation (which offers no such right) 

and with the Board’s status as an 

independent federal agency within the 

executive branch. The Board need not 

cite a privilege in response to a DOE 

request because DOE has no statutory 

right to Board information. In the event 

a safety investigation revealed 

information pertinent to a genuine 

safety issue, the Board would readily 

disclose such information consistent 

with its charter to ensure adequate 

protection of the public and worker 

health and safety. Since the Board began 

operation, confidentiality of 

communications from concerned 

employees or the public has served both 

the Board and DOE in ensuring 

adequate protection of public health and 

safety. The rule’s provisions on 

confidentiality are intended to be 

consistent with the Board’s legal 

obligations with respect to compliance 

with the Freedom of Information Act, 

the Government in the Sunshine Act, or 

any procedures or requirements 

contained in the Board’s regulations 

issued pursuant to those Acts. These 

statutes relate to public access to 

information, not access by other federal 

agencies. 

With regard to public access to 

information, the U.S. Supreme Court 

has recognized that FOIA Exemption 5 

encompasses a common law, safetyrelated privilege concerning promises of 

confidentiality given to complainants 

and witnesses interviewed during 

accident investigations. United States v. 

Weber Aircraft Corp., 465 U.S. 792, 800 

(1984); Machin v. Zuckert, 316 F.2d 336 

(1963). Indeed, DOE’s Office of Hearings 

and Appeals (OHA) applied this 

privilege administratively in a FOIA 

appeal matter. Department of Energy 

OHA Case No. TFA–0173 (March 29, 

2007). Acknowledging the need for 

confidentiality in safety investigations, 

OHA remarked that promises of 

confidentiality given to complainants 

and witnesses are critical to the 

effectiveness of investigations. No 

change to the proposed rule is needed 

in response to this comment. 

Comment 12: In addition, the creation 

of a ‘‘safety privilege,’’ which would 

allow the Board to withhold from DOE 

information collected in its safety 

investigations, may have negative, 

unintended consequences. For example, 

proposed § 1708.115(b) provides that 

the report of the safety investigation is 

not releasable because it is protected by 

the safety privilege. By withholding this 

information from DOE as a matter of 

course, the Board’s proposed rule runs 

the very real risk of limiting the 

effectiveness of DOE’s response to 

genuine safety issues. 

Response: As stated in the response to 

Comment 1, the Board will ensure that 

any safety information developed in an 

investigation that would assist DOE in 

effectively responding to a health and 

safety issue will be promptly provided. 

The Board reserves the right, however, 

to provide information without 

disclosing its sources. No change to the 

proposed rule is needed in response to 

this comment. 

Comment 13: The Board’s enabling 

statute, under the heading ‘‘Powers of 

Board’’ and the subheading ‘‘Hearings,’’ 

authorizes the Board or a member 

authorized by the Board to hold 

hearings and require, by subpoena or 

otherwise, the attendance and testimony 

of witnesses and the production of 

evidence. 42 U.S.C. 2286b(a)(1). Further, 

the Board’s statute allows subpoenas to 

be issued only under the signature of 

the Chairman or any Member of the 

Board designated by him. 42 U.S.C. 

2286b(a)(2)(A). Proposed § 1708.109, 

and in particular proposed 

§ 1708.109(h) and (i), exceed the Board’s 

statutory authority because under that 

authority, the Board may compel 

testimony or document productions 

only before the Board [as a whole] or a 

Member authorized by the Board. 42 

U.S.C. 2286b(a)(1). The Board has no 

statutory authority to compel a witness 

to testify before Board staff or even a 

Board staff member designated as an 

‘‘Investigative Officer.’’ 

Response: The Board accepts the 

comment and has modified the text of 

§ 1708.109 to clarify that only the Board 

or designated Board Members may 

receive testimony and documents taken 

under compulsion of a subpoena issued 

by the Chairman or a Board Member 

authorized by the Chairman. 

Comment 14: In the second paragraph 

of the Background section, the proposed 

rule references the Board’s authority to 

investigate practices that affect ‘‘health 

and safety of the public and workers at 

DOE defense nuclear facilities.’’ DOE 

suggests striking the words ‘‘and 

workers,’’ as investigations into worker 

health and safety exceed the Board’s 

statutory authority. See 42 U.S.C. 2286a. 

Response: In its Annual Report to 

Congress for 1990 (Annual Report to 

Congress, Defense Nuclear Facilities 

Safety Board, February 1991) the Board 

stated: 

The Board’s jurisdiction extends to ‘‘public 

health and safety’’ issues at ‘‘United States 

Department of Energy defense nuclear 

facilities.’’ 42 U.S.C. 2286a, 2286g. The 

various provisions of the statute and their 

attendant legislative history indicate that 

Congress generally intended the phrase 

‘‘public health and safety’’ to be considered 

broadly. For example, both Congress and the 

Board have interpreted the public to include 

workers at defense nuclear facilities. 

The Board’s 1991 statement on 

jurisdiction had, and still has, sound 

support in case law. Siegel v. Atomic 

Energy Commission, 400 F.2d 778 (D.C. 

Cir. 1968); Commonwealth of 

Massachusetts v. U.S. Nuclear 

Regulatory Commission, 708 F.3d 63 

(1st Cir. 2013). The Board has issued a 

number of recommendations aimed in 

whole or in part at the safety of workers 

at DOE’s defense nuclear facilities. See, 

for example, Recommendations 90–6, 

91–6, 92–7, 94–4, and 2010–1. DOE has 

accepted all of these recommendations 

either fully or, in the case of 

Recommendation 2010–1, partially. In 

no case has DOE rejected any part of a 

recommendation based on the argument 

made in this comment. In fact, DOE has 


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endorsed this interpretation of the 

Board’s statute. For example, in 

Recommendation 92–7, ‘‘Training and 

Qualification,’’ the Board stated: 

Since its inception, the Defense Nuclear 

Facilities Safety Board has emphasized that 

a well constructed and documented program 

for training and qualifying operations, 

maintenance, and technical support 

personnel and supervisors at defense nuclear 

facilities is an essential foundation of 

operations and maintenance and, hence, the 

safety and health of the public, including the 

facility workers. (Emphasis added). 

Secretary James Watkins responded: 

Your recommendations in 92–7 are fully 

consistent with our ongoing initiatives, and 

consequently, I accept all elements of 

Recommendation 92–7. 

As recently as May 27, 2011, Secretary 

Chu wrote to the Board in regard to 

Recommendation 2010–1: 

The clarifications you provided in your 

reaffirmation letter have furthered that 

dialogue, and will help guide our work to 

develop an Implementation Plan that satisfies 

our mutual objectives of ensuring that our 

requirements are clear, ensure adequate 

protection of the public, workers and the 

environment, and can be implemented as 

written. (Emphasis added). 

The comment appears to be at odds with 

DOE’s official, public position that the 

Board’s health and safety jurisdiction 

extends to workers at defense nuclear 

facilities. No change to the proposed 

rule is needed in response to this 

comment. 

IV. Comment From Mr. Larry Brown 

Comment 1. The commenter’s 

primary concern is that the rule is 

contrary to the principle of open and 

transparent government, and that the 

procedures grant to the Chairman 

unchecked power. 

Response: With regard to 

transparency, the Board’s objective is 

not to make its operations less 

transparent to the public, but to protect 

its sources and the content of 

confidential communications in safety 

investigations. It is unclear what the 

commenter is referring to in the context 

that the rule imparts to the Chairman 

‘‘unchecked power.’’ With that said, the 

Board has modified the rule in such a 

way that complies with recent 

amendments to the Board’s enabling 

legislation and addresses this comment. 

Specifically, the Board amended the 

rule to make clear that safety 

investigations will only be instituted by 

an order following a recorded notational 

vote of all Board Members, or after 

convening a meeting in accordance with 

the Government in the Sunshine Act of 

1976 and voting in open or closed 

session. Hearings associated with safety 

investigations will be convened only 

after a recorded notational vote of all 

Board Members. Finally, subpoenas 

associated with safety investigation 

hearings will only be authorized by 

notational vote of the Board, and issued 

as authorized under the Board’s 

enabling legislation—under signature of 

the Chairman or any Member of the 

Board designated by the Chairman. 

V. Modifications to the Proposed Rule 

Resulting From Amendments to the 

Board’s Statute 

The NDAA for FY 2013 contained 

amendments to the Board’s enabling 

legislation that require several changes 

to the proposed rule in addition to those 

changes resulting from the 

aforementioned comments. Section 

1708.102(f) of the proposed rule is 

modified to clarify that following a 

notational vote, the Board may 

authorize a closed investigative hearing 

that grants all Board Members full 

participatory rights and access to all 

information relating to the matter under 

investigation. This modification satisfies 

the new language in the Board’s statute 

at 42 U.S.C. 2286(c)(5)(B) that each 

Board Member shall have full access to 

information relating to the performance 

of the Board’s functions, powers, and 

mission, including the investigation 

function. This provision also 

contemplates that all of the 

requirements of the Government in the 

Sunshine Act will be met for closed 

proceedings. 

Section 1708.102(g) is also modified 

to add the word ‘‘hearings’’ after the 

words ‘‘safety investigation.’’ This 

change is made for two reasons. First, to 

clarify that issuance of subpoenas in 

safety investigations is authorized only 

where the hearing power is invoked 

during such investigations. In making 

this change, it is noted that the Board’s 

hearing provision under 42 U.S.C. 

2286b(a)(2)(C) states that in connection 

with issuance of a subpoena, a court 

may order ‘‘such person to appear 

before the Board to produce evidence or 

to give testimony relating to the matter 

under investigation.’’ This provision 

demonstrates that the Board’s hearing 

provision contemplates convening 

hearings for investigations. 

Moreover, § 1708.102(g) will now 

include language that subpoenas 

associated with safety investigation 

hearings will only be authorized after 

notational vote of the Board. The change 

is intended to satisfy 42 U.S.C. 

2286(c)(5)(A), which provides that each 

Board member shall have equal 

responsibility and authority in 

establishing decisions and determining 

actions of the Board. Issuance of the 

subpoena remains the exclusive 

authority of the Chairman pursuant to 

42 U.S.C. 2286b(a)(2)(A), unless the 

Chairman designates another Board 

Member with that authority. 

Finally, a new provision in the 

proposed rule, § 1708.102(h), is added 

to recognize 42 U.S.C. 2286(c)(5)(A) and 

(C). These provisions, when read 

together, provide that before the Board 

establishes a decision or determines an 

action the Board must take a notational 

vote on that decision or action with 

each Board Member having one vote. 

Consequently, § 1708.102(h) mandates 

that the Board will conduct a notational 

vote before making any decision or 

taking any action authorized under the 

procedures in the proposed rule. 

Matters of Regulatory Procedure 

Regulatory Flexibility Act 

For purposes of the Regulatory 

Flexibility Act, the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The rule addresses only the procedures 

to be followed in safety investigations. 

Accordingly, the Board has determined 

that a Regulatory Flexibility Analysis is 

not required. 

Unfunded Mandates Reform Act 

For purposes of the Unfunded 

Mandates Reform Act of 1995, the rule 

would not significantly or uniquely 

affect small governments and would not 

result in increased expenditures by 

State, local, and tribal governments, in 

the aggregate, or by the private sector, of 

$100 million or more (as adjusted for 

inflation). 

Executive Order 12866 

In issuing this regulation, the Board 

has adhered to the regulatory 

philosophy and the applicable 

principles of regulation as set forth in 

section 1 of Executive Order 12866, 

Regulatory Planning and Review. This 

rule has not been reviewed by the Office 

of Management and Budget under that 

Executive Order since it is not a 

significant regulatory action within the 

meaning of the Executive Order. 

Executive Order 12988 

The Board has reviewed this 

regulation in light of section 3 of 

Executive Order 12988, Civil Justice 

Reform, and certifies that it meets the 

applicable standards provided therein. 

Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because this regulation does 

not contain information collection 

requirements that require approval by 

the Office of Management and Budget. 


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Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Proposed Rules 46725 

The Board expects the collection of 

information that is called for by the 

regulation would involve fewer than 10 

persons each year. 

Congressional Review Act 

The Board has determined that this 

rulemaking does not involve a rule 

within the meaning of the Congressional 

Review Act. 

List of Subjects in 10 CFR Part 1708 

Administrative practice, Procedure, 

and Safety investigations. 

For the reasons set forth in the 

preamble, the Defense Nuclear Facilities 

Safety Board proposes to add Part 1708 

to 10 CFR chapter XVII to read as 

follows: 

PART 1708—PROCEDURES FOR 

SAFETY INVESTIGATIONS 

Sec. 

1708.100 Authority to conduct safety 

investigations. 

1708.101 Scope and purpose of safety 

investigations. 

1708.102 Types of safety investigations. 

1708.103 Request to conduct safety 

investigations. 

1708.104 Confidentiality of safety 

investigations and privileged safety 

information. 

1708.105 Promise of confidentiality. 

1708.106 Limitation on participation. 

1708.107 Powers of persons conducting 

formal safety investigations. 

1708.108 Cooperation: Ready access to 

facilities, personnel, and information. 

1708.109 Rights of witnesses in safety 

investigations. 

1708.110 Multiple interests. 

1708.111 Sequestration of witnesses. 

1708.112 Appearance and practice before 

the Board. 

1708.113 Right to submit statements. 

1708.114 Official transcripts. 

1708.115 Final report of safety 

investigation. 

1708.116 Procedure after safety 

investigations. 

Authority: 42 U.S.C. 2286b(c); 42 U.S.C. 

2286a(b)(2); 44 U.S.C. 3101–3107, 3301– 

3303a, 3308–3314. 

§ 1708.100 Authority to conduct safety 

investigations. 

(a) The Defense Nuclear Facilities 

Safety Board (Board) is an independent 

federal agency in the executive branch 

of the United States Government. 

(b) The Board’s enabling legislation 

authorizes it to conduct safety 

investigations pursuant to the Atomic 

Energy Act of 1954, as amended (42 

U.S.C. 2286a(b)(2)). 

§ 1708.101 Scope and purpose of safety 

investigations. 

(a) The Board shall investigate any 

event or practice at a Department of 

Energy defense nuclear facility which 

the Board determines has adversely 

affected, or may adversely affect, public 

health and safety. 

(b) The purpose of any Board 

investigation shall be: 

(1) To determine whether the 

Secretary of Energy is adequately 

implementing standards (including all 

applicable Department of Energy orders, 

regulations, and requirements) at 

Department of Energy defense nuclear 

facilities; 

(2) To ascertain information 

concerning the circumstances of such 

event or practice and its implications for 

such standards; 

(3) To determine whether such event 

or practice is related to other events or 

practices at other Department of Energy 

defense nuclear facilities; and 

(4) To provide to the Secretary of 

Energy such recommendations for 

changes in such standards or the 

implementation of such standards 

(including Department of Energy orders, 

regulations, and requirements) and such 

recommendations relating to data or 

research needs as may be prudent or 

necessary. 

§ 1708.102 Types of safety investigations. 

(a) The Board may initiate a 

preliminary safety inquiry or order a 

formal safety investigation. 

(b) A preliminary safety inquiry 

means any inquiry conducted by the 

Board or its staff, other than a formal 

investigation. Where it appears from a 

preliminary safety inquiry that a formal 

safety investigation is appropriate, the 

Board’s staff will so recommend to the 

Board. 

(c) A formal safety investigation is 

instituted by an Order of Safety 

Investigation issued either after a 

recorded notational vote of Board 

Members or after convening a meeting 

in accordance with the Government in 

the Sunshine Act and voting in open or 

closed session, as the case may be. 

(d) Orders of Safety Investigations 

will outline the basis for the 

investigation, the matters to be 

investigated, the Investigating Officer(s) 

designated to conduct the investigation, 

and their authority. 

(e) The Office of the General Counsel 

shall have primary responsibility for 

conducting and leading a formal safety 

investigation. The Investigating 

Officer(s) shall report to the Board. 

(f) Following a notational vote and in 

accordance with the Government in the 

Sunshine Act, the Board or an 

individual Board Member authorized by 

the Board may hold such closed or open 

hearings and sit and act at such times 

and places, and require the attendance 

and testimony of such witnesses and the 

production of such evidence as the 

Board or an authorized member may 

find advisable, or exercise any other 

applicable authority as provided in the 

Board’s enabling legislation. Each Board 

Member shall have full access to all 

information relating to the matter under 

investigation, including attendance at 

closed hearings. 

(g) Subpoenas in formal safety 

investigation hearings may be issued by 

the Chairman only after a notational 

vote of the Board. The Chairman may 

designate another Board Member to 

issue a subpoena. Subpoenas shall be 

served by any person designated by the 

Chairman, or otherwise as provided by 

law. 

(h) A determination of a decision or 

action authorized to the Board by these 

procedures shall only be made after a 

notational vote of the Board with each 

Board Member having one vote. 

§ 1708.103 Request to conduct safety 

investigations. 

(a) Any person may request that the 

Board perform a preliminary safety 

inquiry or conduct a formal safety 

investigation concerning a matter within 

the Board’s jurisdiction. 

(b) Actions the Board may take 

regarding safety investigation requests 

are discretionary. 

(c) The Board will offer to protect the 

identity of a person requesting a safety 

investigation to the maximum extent 

permitted by law. 

(d) Board safety investigations are 

wholly administrative and investigatory 

in nature and do not involve a 

determination of criminal culpability, 

adjudication of rights and duties, or 

other quasi-judicial determinations. 

§ 1708.104 Confidentiality of safety 

investigations and privileged safety 

information. 

(a) Information obtained during the 

course of a preliminary safety inquiry or 

a formal safety investigation may be 

treated as confidential, safety privileged, 

and non-public by the Board and its 

staff, to the extent permissible under 

existing law. The information subject to 

this protection includes but is not 

limited to: Identity of witnesses; 

recordings; statements; testimony; 

transcripts; emails; all documents, 

whether or not obtained pursuant to 

Board subpoena; any conclusions based 

on privileged safety information; any 

deliberations or recommendations as to 

policies to be pursued; and all other 

related investigative proceedings and 

activities. 

(b) The Board shall have the 

discretion to assert the safety privilege 

when safety information, determined by 


tkelley on DSK3SPTVN1PROD with PROPOSALS
46726 Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Proposed Rules 

the Board as protected from release, is 

sought by any private or public 

governmental entity or by parties to 

litigation who attempt to compel its 

release. 

(c) Nothing in this section voids or 

otherwise displaces the Board’s legal 

obligations with respect to the Freedom 

of Information Act, the Government in 

the Sunshine Act, or any procedures or 

requirements contained in the Board’s 

regulations issued pursuant to those 

Acts. 

§ 1708.105 Promise of confidentiality. 

(a) The Investigating Officer(s) may 

give a promise of confidentiality to any 

individual who provides evidence for a 

safety inquiry or investigation to 

encourage frank communication. 

(b) A promise of confidentiality must 

be explicit. 

(c) A promise of confidentiality must 

be documented in writing. 

(d) A promise of confidentiality may 

be given only as needed to ensure 

forthright cooperation of a witness and 

may not be given on a blanket basis to 

all witnesses. 

(e) A promise of confidentiality must 

inform the witness that it applies only 

to information given to the Investigating 

Officer(s) and not to the same 

information if given to others. 

§ 1708.106 Limitation on participation. 

(a) A safety investigation under this 

rule is not a judicial or adjudicatory 

proceeding. 

(b) No person or entity has standing 

to intervene or participate as a matter of 

right in any safety investigation under 

this regulation. 

§ 1708.107 Powers of persons conducting 

formal safety investigations. 

The Investigating Officer(s) appointed 

by the Board may take informal or 

formal statements, interview witnesses, 

take testimony, request production of 

documents, recommend issuance of 

subpoenas, recommend taking of 

testimony in a closed forum, 

recommend administration of oaths, and 

otherwise perform any lawful act 

authorized under the Board’s enabling 

legislation in connection with any safety 

investigation ordered by the Board. 

§ 1708.108 Cooperation: Ready access to 

facilities, personnel, and information. 

(a) Section 2286c(a) of the Atomic 

Energy Act of 1954, as amended, 

requires the Department of Energy to 

fully cooperate with the Board and 

provide the Board with ready access to 

such facilities, personnel, and 

information as the Board considers 

necessary, including ready access in 

connection with a safety investigation. 

(b) Each contractor operating a 

Department of Energy defense nuclear 

facility under a contract awarded by the 

Secretary is also required, to the extent 

provided in such contract or otherwise 

with the contractor’s consent, to fully 

cooperate with the Board and provide 

the Board with ready access to such 

facilities, personnel, and information of 

the contractor as the Board considers 

necessary in connection with a safety 

investigation. 

(c) The Board may make a written 

request to persons or entities relevant to 

the safety investigation to preserve 

pertinent information, documents, and 

evidence, including electronically 

stored information, in order to preclude 

alteration or destruction of that 

information. 

§ 1708.109 Rights of witnesses in safety 

investigations. 

(a) Any person who is compelled to 

appear in person to provide testimony 

or produce documents in connection 

with a safety investigation is entitled to 

be accompanied, represented, and 

advised by an attorney. Subpoenas in 

safety investigations shall issue only 

under signature of the Chairman or any 

Member of the Board designated by the 

Chairman. Attendance and testimony 

shall be before the Board or a Member 

authorized by the Board. 

(b) If an executive branch agency 

employee witness is represented by 

counsel from that same agency, counsel 

shall identify who counsel represents to 

determine whether counsel represents 

multiple interests in the safety 

investigation. 

(c) Counsel for a witness may advise 

the witness with respect to any question 

asked where it is claimed that the 

testimony sought from the witness is 

outside the scope of the safety 

investigation, or that the witness is 

privileged to refuse to answer a question 

or to produce other evidence. For these 

permissible objections, the witness or 

counsel may object on the record to the 

question and may state briefly and 

precisely the grounds therefore. 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 any oral 

examination. 

(d) When it is claimed that the 

witness has a privilege to refuse to 

answer a question on the grounds of 

self-incrimination, the witness must 

assert the privilege personally. 

(e) Any objections made during the 

course of examination will be treated as 

continuing objections and preserved 

throughout the further course of 

testimony without the necessity for 

repeating them as to any similar line of 

inquiry. 

(f) Counsel for a witness may not 

interrupt the examination by making 

any unnecessary objections or 

statements on the record. 

(g) Following completion of the 

examination of a witness, such witness 

may make a statement on the record, 

and that person’s counsel may, on the 

record, question the witness to enable 

the witness to clarify any of the 

witness’s answers or to offer other 

evidence. 

(h) The Board or any Member 

authorized by the Board shall take all 

measures necessary to regulate the 

course of an investigative proceeding to 

avoid delay and prevent or restrain 

obstructionist or contumacious conduct 

or contemptuous language. 

(i) If the Board or any Member 

authorized by the Board finds that 

counsel for a witness, or other 

representative, has refused to comply 

with his or her directions, or has 

engaged in obstructionism or 

contumacy, the Board or Member 

authorized by the Board may thereupon 

take action as the circumstances may 

warrant. 

(j) Witnesses appearing voluntarily do 

not have a right to have counsel present 

during questioning, although the Board 

or Member authorized by the Board, in 

consultation with the Office of the 

General Counsel, may permit a witness 

appearing on a voluntary basis to be 

accompanied by an attorney or nonattorney representative. 

§ 1708.110 Multiple interests. 

(a) If counsel representing a witness 

appears in connection with a safety 

investigation, counsel shall state on the 

record all other persons or entities 

counsel represents in that investigation. 

(b) When counsel does represent more 

than one person or entity in a safety 

investigation, counsel shall inform the 

Investigating Officer(s) and each client 

of counsel’s possible conflict of interest 

in representing that client. 

(c) When an Investigating Officer(s), 

or the Board, as the case may be, in 

consultation with the Board’s General 

Counsel, has concrete evidence that the 

presence of an attorney representing 

multiple interests would obstruct or 

impede the safety investigation, the 

Investigating Officer(s) or the Board may 

prohibit that attorney from being 

present during testimony. 


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Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Proposed Rules 46727 

(d) The Board shall issue a written 

statement of the reasons supporting a 

decision to exclude counsel under this 

section within five working days 

following exclusion. The Board shall 

also delay the safety investigation for a 

reasonable period of time to permit 

retention of new counsel. 

§ 1708.111 Sequestration of witnesses. 

(a) Witnesses shall be sequestered 

during interviews, or during the taking 

of testimony, unless otherwise 

permitted by the Investigating Officer(s) 

or by the Board, as the case may be. 

(b) No witness, or counsel 

accompanying any such witness, shall 

be permitted to be present during the 

examination of any other witness called 

in such proceeding, unless permitted by 

the Investigating Officer(s) or the Board, 

as the case may be. 

§ 1708.112 Appearance and practice 

before the Board. 

(a) Counsel appearing before the 

Board or the Investigating Officer(s) 

must conform to the standards of ethical 

conduct required of practitioners before 

the Courts of the United States. 

(b) The Board may suspend or deny, 

temporarily or permanently, the 

privilege of appearing or practicing 

before the Board in any way to a person 

who is found: 

(1) Not to possess the requisite 

qualifications to represent others; or 

(2) To have engaged in unethical or 

improper professional conduct; or 

(3) To have engaged in obstructionism 

or contumacy before the Board; or 

(4) To be otherwise not qualified. 

(c) Obstructionist or contumacious 

conduct in an investigation before the 

Board or the Investigating Officer(s) will 

be grounds for exclusion of any person 

from such safety investigation 

proceedings and for summary 

suspension for the duration of the 

investigation. 

(d) At the time of the finding the 

Board shall issue a verbal or written 

statement of the reasons supporting a 

decision to suspend or exclude counsel 

for obstructionism or contumacy. 

(e) A witness may have a reasonable 

amount of time to retain replacement 

counsel if original counsel is suspended 

or excluded. 

§ 1708.113 Right to submit statements. 

At any time during the course of an 

investigation, any person may submit 

documents, statements of facts, or 

memoranda of law for the purpose of 

explanation or further development of 

the facts and circumstances relevant to 

the safety matter under investigation. 

§ 1708.114 Official transcripts. 

(a) Official transcripts of witness 

testimony, whether or not compelled by 

subpoena to appear before a Board 

safety investigation, shall be recorded 

either by an official reporter or by any 

other person or means designated by the 

Investigating Officer(s) or the Board’s 

General Counsel. 

(b) Such witness, after completing the 

compelled testimony, may file a request 

with the Board’s General Counsel to 

procure a copy of the official transcript 

of that witness’s testimony. The General 

Counsel shall rule on the request, and 

may deny for good cause. 

(c) Good cause for denying a witness’s 

request to procure a transcript may 

include, but shall not be limited to, the 

protection of a trade secret, nondisclosure of confidential or proprietary 

business information, security-sensitive 

operational or vulnerability information, 

safety privileged information, or the 

integrity of Board investigations. 

(d) Whether or not a request is made, 

the witness and his or her attorney shall 

have the right to inspect the official 

transcript of the witness’s own 

testimony, in the presence of the 

Investigating Officer(s) or his designee, 

for purposes of conducting errata 

review. 

(e) Transcripts of testimony are 

otherwise considered confidential and 

privileged safety information, and in no 

case shall a copy or any reproduction of 

such transcript be released to any other 

person or entity, except as provided in 

paragraph (b) above or as required under 

the Freedom of Information Act or the 

Government in the Sunshine Act, or any 

procedures or requirements contained 

in Board regulations issued pursuant to 

those Acts. 

§ 1708.115 Final report of safety 

investigation. 

(a) The Board will complete a final 

report of the safety investigation fully 

setting forth the Board’s findings and 

conclusions. 

(b) The final report of the safety 

investigation is confidential and 

protected by the safety privilege, and is 

therefore not releasable. 

(c) The Board, in its discretion, may 

sanitize the final report of the safety 

investigation by redacting confidential 

and safety privileged information so that 

the report is put in a publically 

releasable format. 

(d) Nothing in this section voids or 

otherwise displaces the Board’s legal 

obligations with respect to compliance 

with the Freedom of Information Act, 

the Government in the Sunshine Act, or 

any procedures or requirements 

contained in the Board’s regulations 

issued pursuant to those Acts. 

§ 1708.116 Procedure after safety 

investigations. 

(a) If a formal safety investigation 

results in a finding that an event or 

practice has adversely affected, or may 

adversely affect, public health and 

safety, the Board may take any 

appropriate action authorized to it 

under its enabling statute, including, 

but not limited to, making a formal 

recommendation to the Secretary of 

Energy, convening a hearing, or 

establishing a reporting requirement. 

(b) If a safety investigation yields 

information relating to violations of 

federal criminal law involving 

government officers and employees, the 

Board shall expeditiously refer the 

matter to the Department of Justice for 

disposition. 

(c) If in the course of a safety 

investigation, a safety issue or concern 

is found to be outside the Board’s 

jurisdiction, that safety issue or concern 

shall be referred to the appropriate 

entity with jurisdiction for disposition. 

(d) Statements made in connection 

with testimony provided to the Board in 

an investigation are subject to the 

provisions of 18 U.S.C. 1001. 

Dated: August 6, 2014. 

Peter S. Winokur, 

Chairman. 

[FR Doc. 2014–18575 Filed 8–8–14; 8:45 am] 

BILLING CODE 3670–01–P 

NATIONAL CREDIT UNION 

ADMINISTRATION 

12 CFR Part 701 

RIN 3133–AE39 

Federal Credit Union Ownership of 

Fixed Assets 

AGENCY: National Credit Union 

Administration (NCUA). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The NCUA Board (Board) 

proposes to amend its regulation 

governing federal credit union (FCU) 

ownership of fixed assets to provide 

regulatory relief and to help FCUs better 

manage their fixed assets. The proposed 

rule provides greater flexibility to FCUs 

by removing the waiver requirement for 

FCUs to exceed the five percent 

aggregate limit on investments in fixed 

assets. An FCU that chooses to exceed 

the five percent aggregate limit may do 

so without prior NCUA approval, 

provided it implements a fixed assets 

management (FAM) program that 


tkelley on DSK3SPTVN1PROD with PROPOSALS