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[Federal Register Volume 77, Number 145 (Friday, July 27, 2012)]
[Proposed Rules]
[Pages 44174-44177]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18180]

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Proposed Rules
                                                Federal Register
________________________________________________________________________

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.

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Federal Register / Vol. 77, No. 145 / Friday, July 27, 2012 / 
Proposed Rules

[[Page 44174]]

DEFENSE NUCLEAR FACILITIES SAFETY BOARD

10 CFR Part 1708

Procedures for Safety Investigations

AGENCY: Defense Nuclear Facilities Safety Board.

ACTION: Proposed rule.

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SUMMARY: The Defense Nuclear Facilities Safety Board (Board) is 
responsible for making recommendations to the Secretary of Energy and 
the President regarding health and safety issues at the Department of 
Energy's (DOE) defense nuclear facilities. In this notice, the Board 
proposes a rule establishing procedures for conducting preliminary and 
formal safety investigations of events or practices at 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 proposed rule. These 
procedures, among other benefits, will ensure a more efficient 
investigative process, protect confidential and privileged safety 
information, and promote uniformity of future safety investigations.

DATES: To be considered, comments must be mailed, emailed, or delivered 
to the address listed below by 5 p.m. on or before August 27, 2012.

ADDRESSES: Comments should be mailed or delivered to John G. Batherson, 
Associate General Counsel, Defense Nuclear Facilities Safety Board, 625 
Indiana Avenue NW., Suite 700, Washington, DC 20004. Send comments by 
facsimile to (202) 208-6518. Send comments by email to John G. 
Batherson at JohnB@dnfsb.gov.

FOR FURTHER INFORMATION CONTACT: John G. Batherson, Associate General 
Counsel, (202) 694-7018.

SUPPLEMENTARY INFORMATION: 

Background

    The Board is authorized to promulgate this proposed 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 Board is 
vested with broad authority pursuant to 42 U.S.C. 2286a(a)(2) to 
investigate events or practices which have adversely affected, or may 
adversely affect, public health and safety at DOE defense nuclear 
facilities.
    The proposed rule establishes a new Part 1708 to the Board's 
regulations, setting forth procedures governing the specific conduct of 
safety investigations. The rule is intended to state clearly the 
Board's policy and procedures for safety investigations convened 
pursuant to the Board's enabling legislation. The Board has not 
previously proposed a rule specifically addressing procedures to be 
utilized in safety investigations. Rather, the Board has conducted 
preliminary safety inquiries and formal safety investigations pursuant 
to its statutory authority, when appropriate, following standard safety 
investigation policies, practices, and procedures. The proposed rule is 
intended to formalize those practices and procedures. The experience of 
Board investigators was utilized in drafting the proposed rule. The 
proposed rule will ensure a more efficient investigative process, and 
promote uniformity in the investigation of events or practices that 
have adversely affected, or may adversely affect, health and safety of 
the public and workers at DOE defense nuclear facilities. The proposed 
rule also serves the Board's duty to protect confidential and 
privileged safety information.
    It is imperative that Board investigators be able to obtain 
information from witnesses as necessary to form an understanding of the 
underlying causes of events or practices that have adversely affected, 
or may adversely affect, public health and safety at DOE defense 
nuclear facilities. Frank, open 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 without fear of 
reprisal from employers.
    As such, the Board requires the authority to offer witnesses 
enforceable assurances of confidentiality in order to encourage their 
full and frank testimony. Without such authority, witnesses may refrain 
from providing the Board with vital information affecting public health 
and safety, which will, in turn, frustrate the efficient operation of 
the Board's oversight mission. To encourage candor and facilitate the 
free flow of information, the Board adopts in this proposed rule 
procedures establishing a safety privilege to protect confidential 
witness statements from disclosure to the maximum extent permitted 
under existing law.

Matters of Regulatory Procedure

Administrative Procedure Act

    This rulemaking complies with the Administrative Procedure Act and 
allows for a 30-day comment period. Interested persons are invited to 
submit written comments to the Board on this proposed rule, to be 
received on or before August 27, 2012. The Board will review all 
comments received and consider any modifications to this proposal that 
appear warranted in issuing its final 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 
proposed 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

[[Page 44175]]

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 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(a)(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(a)(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) 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.
    (g) Subpoenas in formal safety investigations may be issued only by 
signature of the Chairman, or any Member of the Board designated by the 
Chairman, and shall be served by any person designated by the Chairman, 
or otherwise as provided by law.

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

[[Page 44176]]

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 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.

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 and open 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.
    (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 ground 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 Investigating Officer(s) 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) The Investigating Officer(s) may report to the Board any 
instances where 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 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 Investigating Officer, 
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 
and each client of counsel's possible conflict of interest in 
representing that client.
    (c) When an Investigating Officer, 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

[[Page 44177]]

prohibit that attorney from being present during testimony.

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 and 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; 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 course of the 
investigation.
    (d) A witness may 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 testimony of witnesses, 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 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 
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 (2) 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 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: July 20, 2012.
Jessie H. Roberson,
Vice Chairman.
[FR Doc. 2012-18180 Filed 7-26-12; 8:45 am]
BILLING CODE 3670-01-P
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