[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]
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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. 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