[Federal Register Volume 79, Number 154 (Monday, August 11, 2014)]
[Proposed Rules]
[Pages 46720-46727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18575]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 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. 79, No. 154 / Monday, August 11, 2014 / 
Proposed Rules  

[[Page 46720]]



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.

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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 [email protected].

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

[[Page 46721]]

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 
sub-heading 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 Sec.  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 
Sec.  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 Sec.  
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

[[Page 46722]]

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 Sec.  
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 Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  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 
Sec.  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 Sec.  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 
Sec.  1708.112(e) to include language allowing a reasonable period of 
time to permit retention of new counsel.
    Comment 10. Proposed Sec.  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 Sec.  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 
Sec.  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

[[Page 46723]]

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 Sec. Sec.  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 Sec.  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, safety-
related 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 Sec.  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 Sec.  1708.109, and in particular proposed 
Sec.  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 Sec.  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

[[Page 46724]]

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, Sec.  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, Sec.  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, Sec.  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.

[[Page 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.


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 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

[[Page 46726]]

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.
    (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.

[[Page 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.


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 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: August 6, 2014.
Peter S. Winokur,
Chairman.
[FR Doc. 2014-18575 Filed 8-8-14; 8:45 am]
BILLING CODE 3670-01-P