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[Federal Register Volume 79, Number 230 (Monday, December 1, 2014)]
[Rules and Regulations]
[Pages 71009-71013]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-28248]

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DEFENSE NUCLEAR FACILITIES SAFETY BOARD

10 CFR Part 1708

Procedures for Safety Investigations

AGENCY: Defense Nuclear Facilities Safety Board.

ACTION: Final rule.

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SUMMARY: The Defense Nuclear Facilities Safety Board (Board) is 
promulgating a final rule which establishes 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 this 
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.

DATES: This rule is effective December 1, 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 National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 amended the 
Board's enabling legislation on January 2, 2013. The NDAA amendments 
required the Board to further modify the proposed rule. On August 11, 
2014, the Board published a second notice of proposed rule in the 
Federal Register (79 FR 46720). The second notice of proposed rule 
incorporated changes necessitated by those NDAA amendments.
    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, (77 FR 
44174) proposed rule: An email comment from Mr. Richard L. Urie, dated 
September 4, 2012, and a letter from Mr. Eric Fygi, DOE Deputy General

[[Page 71010]]

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, decided to 
treat this commentary as having been submitted directly to the Board as 
a comment. The Board carefully considered each comment received, and 
made modifications to the proposed rule in response where appropriate. 
These modifications were published in the August 11, 2014, (79 FR 
46720) second notice of proposed rule, along with a discussion of the 
disposition of comments received from the initial July 27, 2012, 
proposed rule and a request for additional comments. The Board received 
no additional comments on the second notice of proposed rule.

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. 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 stated in the preamble, the Defense Nuclear 
Facilities Safety Board adds a new 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.

Sec.  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)).

Sec.  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.

Sec.  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

[[Page 71011]]

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.

Sec.  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.

Sec.  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 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.

Sec.  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.

Sec.  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.

Sec.  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.

Sec.  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.

Sec.  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.

[[Page 71012]]

    (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 non-attorney representative.

Sec.  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.
    (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.

Sec.  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.

Sec.  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.

Sec.  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.

Sec.  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, non-disclosure 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.

Sec.  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

[[Page 71013]]

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.

Sec.  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: November 24, 2014.
Peter S. Winokur,
Chairman.
[FR Doc. 2014-28248 Filed 11-28-14; 8:45 am]
BILLING CODE 3670-01-P
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