Procedures for Safety Investigations, 71009-71013 [2014-28248]
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Federal Register / Vol. 79, No. 230 / Monday, December 1, 2014 / Rules and Regulations
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Additional Public Notification
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[FR Doc. 2014–28269 Filed 11–28–14; 8:45 am]
BILLING CODE 3410–DM–P
DEFENSE NUCLEAR FACILITIES
SAFETY BOARD
10 CFR Part 1708
Procedures for Safety Investigations
Mail
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Done at Washington, DC on: November 25,
2014
Alfred V. Almanza,
Acting Administrator.
13:52 Nov 28, 2014
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Defense Nuclear Facilities
Safety Board.
ACTION: Final rule.
AGENCY:
The Defense Nuclear
Facilities Safety Board (Board) is
promulgating a final rule which
establishes procedures for conducting
preliminary and formal safety
investigations of events or practices at
Department of Energy (DOE) defense
nuclear facilities that the Board
determines have adversely affected, or
may adversely affect, public health and
safety. The Board’s experience in
conducting formal safety investigations
necessitates codifying the procedures
set forth in this final rule. Among other
benefits, these procedures will ensure a
more efficient investigative process,
protect confidential and privileged
safety information, and promote
uniformity of future safety
investigations. The rule also promotes
public awareness through greater
transparency in the conduct of Board
investigations.
SUMMARY:
DATES:
This rule is effective December 1,
2014.
John
G. Batherson, Associate General
Counsel, Defense Nuclear Facilities
Safety Board, 625 Indiana Avenue NW.,
Suite 700, Washington, DC 20004,
telephone (202) 694–7018, facsimile
(202) 208–6518, email JohnB@dnfsb.gov.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. Background
On July 27, 2012, the Board published
a proposed rule in the Federal Register
(77 FR 44174). The Board initially
provided a 30-day public comment
period for the proposed rule, and then
extended the comment period an
additional 30 days to September 26,
2012 (77 FR 51943). Subsequent to
publication of the proposed rule and
disposition of comments, but before the
final rule was published, the National
Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2013 amended the
Board’s enabling legislation on January
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71009
2, 2013. The NDAA amendments
required the Board to further modify the
proposed rule. On August 11, 2014, the
Board published a second notice of
proposed rule in the Federal Register
(79 FR 46720). The second notice of
proposed rule incorporated changes
necessitated by those NDAA
amendments.
The Board is responsible for making
recommendations to the Secretary of
Energy and the President as the Board
determines are necessary to ensure
adequate protection of public health and
safety at DOE defense nuclear facilities.
The Board is vested with broad
authority pursuant to 42 U.S.C.
2286a(b)(2) to investigate events or
practices which have adversely affected,
or may adversely affect, public health
and safety at DOE’s defense nuclear
facilities. The Board is authorized to
promulgate this final rule pursuant to its
enabling legislation in the Atomic
Energy Act of 1954, as amended, at 42
U.S.C. 2286b(c), which states that the
Board may prescribe regulations to carry
out its responsibilities. The final rule
establishes a new Part 1708 in the
Board’s regulations, setting forth
procedures governing the conduct of
safety investigations.
It is imperative that Board
investigators be able to obtain
information from witnesses necessary to
form an understanding of the
underlying causes that adversely affect,
or may adversely affect, public health
and safety at DOE defense nuclear
facilities. Frank communications are
critical if Board investigators are to be
effective. The Board must also be
viewed as uncompromising in
maintaining non-disclosure of
privileged safety information. The Board
must be able to assure complete
confidentiality in order to encourage
future witnesses to come forward.
The Board requires the discretion to
offer individuals enforceable assurances
of confidentiality in order to encourage
their full and frank testimony. Without
such authority, individuals may refrain
from providing the Board with vital
information affecting public health and
safety, frustrating the efficient operation
of the Board’s oversight mission. To
encourage candor and facilitate the free
flow of information, the Board adopted
in the proposed rule procedures to
protect confidential statements from
disclosure to the maximum extent
permitted under existing law.
The Board received two formal
comments on the July 27, 2012, (77 FR
44174) proposed rule: An email
comment from Mr. Richard L. Urie,
dated September 4, 2012, and a letter
from Mr. Eric Fygi, DOE Deputy General
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Counsel, dated September 26, 2012,
submitted on behalf of DOE. The Board
also became aware of additional
commentary from Mr. Larry Brown, a
former Board Member, published in the
‘‘Weapons Complex Monitor.’’ This
commentary was not sent to the Board’s
contact point noticed in the proposed
rule. However, the Board, in its
discretion, decided to treat this
commentary as having been submitted
directly to the Board as a comment. The
Board carefully considered each
comment received, and made
modifications to the proposed rule in
response where appropriate. These
modifications were published in the
August 11, 2014, (79 FR 46720) second
notice of proposed rule, along with a
discussion of the disposition of
comments received from the initial July
27, 2012, proposed rule and a request
for additional comments. The Board
received no additional comments on the
second notice of proposed rule.
Regulatory Flexibility Act
For purposes of the Regulatory
Flexibility Act, the rule will not have a
significant economic impact on a
substantial number of small entities.
The rule addresses only the procedures
to be followed in safety investigations.
Accordingly, the Board has determined
that a Regulatory Flexibility Analysis is
not required.
Unfunded Mandates Reform Act
For purposes of the Unfunded
Mandates Reform Act of 1995, the rule
would not significantly or uniquely
affect small governments and would not
result in increased expenditures by
State, local, and tribal governments, in
the aggregate, or by the private sector, of
$100 million or more (as adjusted for
inflation).
Executive Order 12866
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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.
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Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because this regulation does
not contain information collection
requirements that require approval by
the Office of Management and Budget.
The Board expects the collection of
information that is called for by the
regulation would involve fewer than 10
persons each year.
Congressional Review Act
The Board has determined that this
rulemaking does not involve a rule
within the meaning of the Congressional
Review Act.
List of Subjects in 10 CFR Part 1708
Administrative practice, Procedure,
and Safety investigations.
For the reasons stated in the
preamble, the Defense Nuclear Facilities
Safety Board adds a new Part 1708 to 10
CFR chapter XVII to read as follows:
PART 1708—PROCEDURES FOR
SAFETY INVESTIGATIONS
Sec.
1708.100 Authority to conduct safety
investigations.
1708.101 Scope and purpose of safety
investigations.
1708.102 Types of safety investigations.
1708.103 Request to conduct safety
investigations.
1708.104 Confidentiality of safety
investigations and privileged safety
information.
1708.105 Promise of confidentiality.
1708.106 Limitation on participation.
1708.107 Powers of persons conducting
formal safety investigations.
1708.108 Cooperation: Ready access to
facilities, personnel, and information.
1708.109 Rights of witnesses in safety
investigations.
1708.110 Multiple interests.
1708.111 Sequestration of witnesses.
1708.112 Appearance and practice before
the Board.
1708.113 Right to submit statements.
1708.114 Official transcripts.
1708.115 Final report of safety
investigation.
1708.116 Procedure after safety
investigations.
Authority: 42 U.S.C. 2286b(c); 42 U.S.C.
2286a(b)(2); 44 U.S.C. 3101–3107, 3301–
3303a, 3308–3314.
§ 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)).
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§ 1708.101 Scope and purpose of safety
investigations.
(a) The Board shall investigate any
event or practice at a Department of
Energy defense nuclear facility which
the Board determines has adversely
affected, or may adversely affect, public
health and safety.
(b) The purpose of any Board
investigation shall be:
(1) To determine whether the
Secretary of Energy is adequately
implementing standards (including all
applicable Department of Energy orders,
regulations, and requirements) at
Department of Energy defense nuclear
facilities;
(2) To ascertain information
concerning the circumstances of such
event or practice and its implications for
such standards;
(3) To determine whether such event
or practice is related to other events or
practices at other Department of Energy
defense nuclear facilities; and
(4) To provide to the Secretary of
Energy such recommendations for
changes in such standards or the
implementation of such standards
(including Department of Energy orders,
regulations, and requirements) and such
recommendations relating to data or
research needs as may be prudent or
necessary.
§ 1708.102
Types of safety investigations.
(a) The Board may initiate a
preliminary safety inquiry or order a
formal safety investigation.
(b) A preliminary safety inquiry
means any inquiry conducted by the
Board or its staff, other than a formal
investigation. Where it appears from a
preliminary safety inquiry that a formal
safety investigation is appropriate, the
Board’s staff will so recommend to the
Board.
(c) A formal safety investigation is
instituted by an Order of Safety
Investigation issued either after a
recorded notational vote of Board
Members or after convening a meeting
in accordance with the Government in
the Sunshine Act and voting in open or
closed session, as the case may be.
(d) Orders of Safety Investigations
will outline the basis for the
investigation, the matters to be
investigated, the Investigating Officer(s)
designated to conduct the investigation,
and their authority.
(e) The Office of the General Counsel
shall have primary responsibility for
conducting and leading a formal safety
investigation. The Investigating
Officer(s) shall report to the Board.
(f) Following a notational vote and in
accordance with the Government in the
Sunshine Act, the Board or an
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individual Board Member authorized by
the Board may hold such closed or open
hearings and sit and act at such times
and places, and require the attendance
and testimony of such witnesses and the
production of such evidence as the
Board or an authorized member may
find advisable, or exercise any other
applicable authority as provided in the
Board’s enabling legislation. Each Board
Member shall have full access to all
information relating to the matter under
investigation, including attendance at
closed hearings.
(g) Subpoenas in formal safety
investigation hearings may be issued by
the Chairman only after a notational
vote of the Board. The Chairman may
designate another Board Member to
issue a subpoena. Subpoenas shall be
served by any person designated by the
Chairman, or otherwise as provided by
law.
(h) A determination of a decision or
action authorized to the Board by these
procedures shall only be made after a
notational vote of the Board with each
Board Member having one vote.
§ 1708.103 Request to conduct safety
investigations.
(a) Any person may request that the
Board perform a preliminary safety
inquiry or conduct a formal safety
investigation concerning a matter within
the Board’s jurisdiction.
(b) Actions the Board may take
regarding safety investigation requests
are discretionary.
(c) The Board will offer to protect the
identity of a person requesting a safety
investigation to the maximum extent
permitted by law.
(d) Board safety investigations are
wholly administrative and investigatory
in nature and do not involve a
determination of criminal culpability,
adjudication of rights and duties, or
other quasi-judicial determinations.
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§ 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
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related investigative proceedings and
activities.
(b) The Board shall have the
discretion to assert the safety privilege
when safety information, determined by
the Board as protected from release, is
sought by any private or public
governmental entity or by parties to
litigation who attempt to compel its
release.
(c) Nothing in this section voids or
otherwise displaces the Board’s legal
obligations with respect to the Freedom
of Information Act, the Government in
the Sunshine Act, or any procedures or
requirements contained in the Board’s
regulations issued pursuant to those
Acts.
§ 1708.105
Promise of confidentiality.
(a) The Investigating Officer(s) may
give a promise of confidentiality to any
individual who provides evidence for a
safety inquiry or investigation to
encourage frank communication.
(b) A promise of confidentiality must
be explicit.
(c) A promise of confidentiality must
be documented in writing.
(d) A promise of confidentiality may
be given only as needed to ensure
forthright cooperation of a witness and
may not be given on a blanket basis to
all witnesses.
(e) A promise of confidentiality must
inform the witness that it applies only
to information given to the Investigating
Officer(s) and not to the same
information if given to others.
§ 1708.106
Limitation on participation.
(a) A safety investigation under this
rule is not a judicial or adjudicatory
proceeding.
(b) No person or entity has standing
to intervene or participate as a matter of
right in any safety investigation under
this regulation.
§ 1708.107 Powers of persons conducting
formal safety investigations.
The Investigating Officer(s) appointed
by the Board may take informal or
formal statements, interview witnesses,
take testimony, request production of
documents, recommend issuance of
subpoenas, recommend taking of
testimony in a closed forum,
recommend administration of oaths, and
otherwise perform any lawful act
authorized under the Board’s enabling
legislation in connection with any safety
investigation ordered by the Board.
§ 1708.108 Cooperation: Ready access to
facilities, personnel, and information.
(a) Section 2286c(a) of the Atomic
Energy Act of 1954, as amended,
requires the Department of Energy to
fully cooperate with the Board and
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provide the Board with ready access to
such facilities, personnel, and
information as the Board considers
necessary, including ready access in
connection with a safety investigation.
(b) Each contractor operating a
Department of Energy defense nuclear
facility under a contract awarded by the
Secretary is also required, to the extent
provided in such contract or otherwise
with the contractor’s consent, to fully
cooperate with the Board and provide
the Board with ready access to such
facilities, personnel, and information of
the contractor as the Board considers
necessary in connection with a safety
investigation.
(c) The Board may make a written
request to persons or entities relevant to
the safety investigation to preserve
pertinent information, documents, and
evidence, including electronically
stored information, in order to preclude
alteration or destruction of that
information.
§ 1708.109 Rights of witnesses in safety
investigations.
(a) Any person who is compelled to
appear in person to provide testimony
or produce documents in connection
with a safety investigation is entitled to
be accompanied, represented, and
advised by an attorney. Subpoenas in
safety investigations shall issue only
under signature of the Chairman or any
Member of the Board designated by the
Chairman. Attendance and testimony
shall be before the Board or a Member
authorized by the Board.
(b) If an executive branch agency
employee witness is represented by
counsel from that same agency, counsel
shall identify who counsel represents to
determine whether counsel represents
multiple interests in the safety
investigation.
(c) Counsel for a witness may advise
the witness with respect to any question
asked where it is claimed that the
testimony sought from the witness is
outside the scope of the safety
investigation, or that the witness is
privileged to refuse to answer a question
or to produce other evidence. For these
permissible objections, the witness or
counsel may object on the record to the
question and may state briefly and
precisely the grounds therefore. If the
witness refuses to answer a question,
then counsel may briefly state on the
record that counsel has advised the
witness not to answer the question and
the legal grounds for such refusal. The
witness and his or her counsel shall not
otherwise object to or refuse to answer
any question, and they shall not
otherwise interrupt any oral
examination.
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(d) When it is claimed that the
witness has a privilege to refuse to
answer a question on the grounds of
self-incrimination, the witness must
assert the privilege personally.
(e) Any objections made during the
course of examination will be treated as
continuing objections and preserved
throughout the further course of
testimony without the necessity for
repeating them as to any similar line of
inquiry.
(f) Counsel for a witness may not
interrupt the examination by making
any unnecessary objections or
statements on the record.
(g) Following completion of the
examination of a witness, such witness
may make a statement on the record,
and that person’s counsel may, on the
record, question the witness to enable
the witness to clarify any of the
witness’s answers or to offer other
evidence.
(h) The Board or any Member
authorized by the Board shall take all
measures necessary to regulate the
course of an investigative proceeding to
avoid delay and prevent or restrain
obstructionist or contumacious conduct
or contemptuous language.
(i) If the Board or any Member
authorized by the Board finds that
counsel for a witness, or other
representative, has refused to comply
with his or her directions, or has
engaged in obstructionism or
contumacy, the Board or Member
authorized by the Board may thereupon
take action as the circumstances may
warrant.
(j) Witnesses appearing voluntarily do
not have a right to have counsel present
during questioning, although the Board
or Member authorized by the Board, in
consultation with the Office of the
General Counsel, may permit a witness
appearing on a voluntary basis to be
accompanied by an attorney or nonattorney representative.
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§ 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
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impede the safety investigation, the
Investigating Officer(s) or the Board may
prohibit that attorney from being
present during testimony.
(d) The Board shall issue a written
statement of the reasons supporting a
decision to exclude counsel under this
section within five working days
following exclusion. The Board shall
also delay the safety investigation for a
reasonable period of time to permit
retention of new counsel.
§ 1708.111
Sequestration of witnesses.
(a) Witnesses shall be sequestered
during interviews, or during the taking
of testimony, unless otherwise
permitted by the Investigating Officer(s)
or by the Board, as the case may be.
(b) No witness, or counsel
accompanying any such witness, shall
be permitted to be present during the
examination of any other witness called
in such proceeding, unless permitted by
the Investigating Officer(s) or the Board,
as the case may be.
§ 1708.112 Appearance and practice
before the Board.
(a) Counsel appearing before the
Board or the Investigating Officer(s)
must conform to the standards of ethical
conduct required of practitioners before
the Courts of the United States.
(b) The Board may suspend or deny,
temporarily or permanently, the
privilege of appearing or practicing
before the Board in any way to a person
who is found:
(1) Not to possess the requisite
qualifications to represent others; or
(2) To have engaged in unethical or
improper professional conduct; or
(3) To have engaged in obstructionism
or contumacy before the Board; or
(4) To be otherwise not qualified.
(c) Obstructionist or contumacious
conduct in an investigation before the
Board or the Investigating Officer(s) will
be grounds for exclusion of any person
from such safety investigation
proceedings and for summary
suspension for the duration of the
investigation.
(d) At the time of the finding the
Board shall issue a verbal or written
statement of the reasons supporting a
decision to suspend or exclude counsel
for obstructionism or contumacy.
(e) A witness may have a reasonable
amount of time to retain replacement
counsel if original counsel is suspended
or excluded.
§ 1708.113
Right to submit statements.
At any time during the course of an
investigation, any person may submit
documents, statements of facts, or
memoranda of law for the purpose of
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explanation or further development of
the facts and circumstances relevant to
the safety matter under investigation.
§ 1708.114
Official transcripts.
(a) Official transcripts of witness
testimony, whether or not compelled by
subpoena to appear before a Board
safety investigation, shall be recorded
either by an official reporter or by any
other person or means designated by the
Investigating Officer(s) or the Board’s
General Counsel.
(b) Such witness, after completing the
compelled testimony, may file a request
with the Board’s General Counsel to
procure a copy of the official transcript
of that witness’s testimony. The General
Counsel shall rule on the request, and
may deny for good cause.
(c) Good cause for denying a witness’s
request to procure a transcript may
include, but shall not be limited to, the
protection of a trade secret, nondisclosure of confidential or proprietary
business information, security-sensitive
operational or vulnerability information,
safety privileged information, or the
integrity of Board investigations.
(d) Whether or not a request is made,
the witness and his or her attorney shall
have the right to inspect the official
transcript of the witness’s own
testimony, in the presence of the
Investigating Officer(s) or his designee,
for purposes of conducting errata
review.
(e) Transcripts of testimony are
otherwise considered confidential and
privileged safety information, and in no
case shall a copy or any reproduction of
such transcript be released to any other
person or entity, except as provided in
paragraph (b) above or as required under
the Freedom of Information Act or the
Government in the Sunshine Act, or any
procedures or requirements contained
in Board regulations issued pursuant to
those Acts.
§ 1708.115 Final report of safety
investigation.
(a) The Board will complete a final
report of the safety investigation fully
setting forth the Board’s findings and
conclusions.
(b) The final report of the safety
investigation is confidential and
protected by the safety privilege, and is
therefore not releasable.
(c) The Board, in its discretion, may
sanitize the final report of the safety
investigation by redacting confidential
and safety privileged information so that
the report is put in a publically
releasable format.
(d) Nothing in this section voids or
otherwise displaces the Board’s legal
obligations with respect to compliance
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with the Freedom of Information Act,
the Government in the Sunshine Act, or
any procedures or requirements
contained in the Board’s regulations
issued pursuant to those Acts.
§ 1708.116 Procedure after safety
investigations.
(a) If a formal safety investigation
results in a finding that an event or
practice has adversely affected, or may
adversely affect, public health and
safety, the Board may take any
appropriate action authorized to it
under its enabling statute, including,
but not limited to, making a formal
recommendation to the Secretary of
Energy, convening a hearing, or
establishing a reporting requirement.
(b) If a safety investigation yields
information relating to violations of
federal criminal law involving
government officers and employees, the
Board shall expeditiously refer the
matter to the Department of Justice for
disposition.
(c) If in the course of a safety
investigation, a safety issue or concern
is found to be outside the Board’s
jurisdiction, that safety issue or concern
shall be referred to the appropriate
entity with jurisdiction for disposition.
(d) Statements made in connection
with testimony provided to the Board in
an investigation are subject to the
provisions of 18 U.S.C. 1001.
Dated: November 24, 2014.
Peter S. Winokur,
Chairman.
BILLING CODE 3670–01–P
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 730, 734, 736, 742, 744,
and 745
[Docket No. 141114962–4962–01]
RIN 0694–AG39
Updated Statements of Legal Authority
for the Export Administration
Regulations
Bureau of Industry and
Security, Commerce.
ACTION: Final rule.
rljohnson on DSK3VPTVN1PROD with RULES
AGENCY:
This rule updates the Code of
Federal Regulations (CFR) legal
authority paragraphs in the Export
Administration Regulations (EAR) to
cite the most recent Presidential notice
extending an emergency declared
pursuant to the International Emergency
Economic Powers Act. This is a
SUMMARY:
13:52 Nov 28, 2014
Background
Authority for EAR parts 730, 734, 736,
742, 744 & 745 rests, in part, on
Executive Order 12938 of November 14,
1994—National Emergency With
Respect to Weapons of Mass
Destruction, 59 FR 59099, 3 CFR, 1994
Comp., p. 950 and on annual notices
extending the emergency declared in
that executive order. This rule revises
the authority paragraphs for the affected
parts to cite the most recent such notice,
which the President signed on
November 7, 2014.
This rule is purely procedural, and
makes no changes other than to revise
CFR authority paragraphs for the
purpose of making the authority
citations current. It does not change the
text of any section of the EAR, nor does
it alter any right, obligation or
prohibition that applies to any person
under the EAR.
Rulemaking Requirements
[FR Doc. 2014–28248 Filed 11–28–14; 8:45 am]
VerDate Sep<11>2014
procedural rule that only updates
authority paragraphs of the EAR. It does
not alter any right, obligation or
prohibition that applies to any person
under the EAR.
DATES: The rule is effective December 1,
2014.
FOR FURTHER INFORMATION CONTACT:
William Arvin, Regulatory Policy
Division, Bureau of Industry and
Security, Telephone: (202) 482–2440.
SUPPLEMENTARY INFORMATION:
Jkt 235001
1. Executive Orders 13563 and 12866
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). This rule does not impose any
regulatory burden on the public and is
consistent with the goals of Executive
Order 13563. This rule has been
determined to be not significant for
purposes of Executive Order 12866.
2. Notwithstanding any other
provision of law, no person is required
to respond to, nor shall any person be
subject to a penalty for failure to comply
with, a collection of information subject
to the requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.) (PRA), unless that collection of
information displays a currently valid
Office of Management and Budget
(OMB) Control Number. This rule does
not involve any collection of
information.
3. This rule does not contain policies
with Federalism implications as that
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
71013
term is defined under Executive Order
13132.
4. The Department finds that there is
good cause under 5 U.S.C. 553(b)(B) to
waive the provisions of the
Administrative Procedure Act requiring
prior notice and the opportunity for
public comment because they are
unnecessary. This rule only updates
legal authority citations. It clarifies
information and is non-discretionary.
This rule does not alter any right,
obligation or prohibition that applies to
any person under the EAR. Because
these revisions are not substantive
changes, it is unnecessary to provide
notice and opportunity for public
comment. In addition, the 30-day delay
in effectiveness required by 5 U.S.C.
553(d) is not applicable because this
rule is not a substantive rule. Because
neither the Administrative Procedure
Act nor any other law requires that
notice of proposed rulemaking and an
opportunity for public comment be
given for this rule, the analytical
requirements of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) are
not applicable.
List of Subjects
15 CFR Part 730
Administrative practice and
procedure, Advisory committees,
Exports, Reporting and recordkeeping
requirements, Strategic and critical
materials.
15 CFR Part 734
Administrative practice and
procedure, Exports, Inventions and
patents, Research, Science and
technology.
15 CFR Part 736
Exports.
15 CFR Part 742
Exports, Terrorism.
15 CFR Part 744
Exports, Reporting and recordkeeping
requirements, Terrorism.
15 CFR Part 745
Administrative practice and
procedure, Chemicals, Exports, Foreign
trade, Reporting and recordkeeping
requirements.
Accordingly, parts 730, 734, 736, 742,
744 and 745 of the EAR (15 CFR parts
730–774) are amended as follows:
PART 730—[AMENDED]
1. The authority citation for 15 CFR
part 730 is revised to read as follows:
■
Authority: 50 U.S.C. app. 2401 et seq.; 50
U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C.
E:\FR\FM\01DER1.SGM
01DER1
]]>Agencies
[Federal Register Volume 79, Number 230 (Monday, December 1, 2014)]
[Rules and Regulations]
[Pages 71009-71013]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-28248]
=======================================================================
-----------------------------------------------------------------------
DEFENSE NUCLEAR FACILITIES SAFETY BOARD
10 CFR Part 1708
Procedures for Safety Investigations
AGENCY: Defense Nuclear Facilities Safety Board.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Defense Nuclear Facilities Safety Board (Board) is
promulgating a final rule which establishes procedures for conducting
preliminary and formal safety investigations of events or practices at
Department of Energy (DOE) defense nuclear facilities that the Board
determines have adversely affected, or may adversely affect, public
health and safety. The Board's experience in conducting formal safety
investigations necessitates codifying the procedures set forth in this
final rule. Among other benefits, these procedures will ensure a more
efficient investigative process, protect confidential and privileged
safety information, and promote uniformity of future safety
investigations. The rule also promotes public awareness through greater
transparency in the conduct of Board investigations.
DATES: This rule is effective December 1, 2014.
FOR FURTHER INFORMATION CONTACT: John G. Batherson, Associate General
Counsel, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue
NW., Suite 700, Washington, DC 20004, telephone (202) 694-7018,
facsimile (202) 208-6518, email JohnB@dnfsb.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On July 27, 2012, the Board published a proposed rule in the
Federal Register (77 FR 44174). The Board initially provided a 30-day
public comment period for the proposed rule, and then extended the
comment period an additional 30 days to September 26, 2012 (77 FR
51943). Subsequent to publication of the proposed rule and disposition
of comments, but before the final rule was published, the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 amended the
Board's enabling legislation on January 2, 2013. The NDAA amendments
required the Board to further modify the proposed rule. On August 11,
2014, the Board published a second notice of proposed rule in the
Federal Register (79 FR 46720). The second notice of proposed rule
incorporated changes necessitated by those NDAA amendments.
The Board is responsible for making recommendations to the
Secretary of Energy and the President as the Board determines are
necessary to ensure adequate protection of public health and safety at
DOE defense nuclear facilities. The Board is vested with broad
authority pursuant to 42 U.S.C. 2286a(b)(2) to investigate events or
practices which have adversely affected, or may adversely affect,
public health and safety at DOE's defense nuclear facilities. The Board
is authorized to promulgate this final rule pursuant to its enabling
legislation in the Atomic Energy Act of 1954, as amended, at 42 U.S.C.
2286b(c), which states that the Board may prescribe regulations to
carry out its responsibilities. The final rule establishes a new Part
1708 in the Board's regulations, setting forth procedures governing the
conduct of safety investigations.
It is imperative that Board investigators be able to obtain
information from witnesses necessary to form an understanding of the
underlying causes that adversely affect, or may adversely affect,
public health and safety at DOE defense nuclear facilities. Frank
communications are critical if Board investigators are to be effective.
The Board must also be viewed as uncompromising in maintaining non-
disclosure of privileged safety information. The Board must be able to
assure complete confidentiality in order to encourage future witnesses
to come forward.
The Board requires the discretion to offer individuals enforceable
assurances of confidentiality in order to encourage their full and
frank testimony. Without such authority, individuals may refrain from
providing the Board with vital information affecting public health and
safety, frustrating the efficient operation of the Board's oversight
mission. To encourage candor and facilitate the free flow of
information, the Board adopted in the proposed rule procedures to
protect confidential statements from disclosure to the maximum extent
permitted under existing law.
The Board received two formal comments on the July 27, 2012, (77 FR
44174) proposed rule: An email comment from Mr. Richard L. Urie, dated
September 4, 2012, and a letter from Mr. Eric Fygi, DOE Deputy General
[[Page 71010]]
Counsel, dated September 26, 2012, submitted on behalf of DOE. The
Board also became aware of additional commentary from Mr. Larry Brown,
a former Board Member, published in the ``Weapons Complex Monitor.''
This commentary was not sent to the Board's contact point noticed in
the proposed rule. However, the Board, in its discretion, decided to
treat this commentary as having been submitted directly to the Board as
a comment. The Board carefully considered each comment received, and
made modifications to the proposed rule in response where appropriate.
These modifications were published in the August 11, 2014, (79 FR
46720) second notice of proposed rule, along with a discussion of the
disposition of comments received from the initial July 27, 2012,
proposed rule and a request for additional comments. The Board received
no additional comments on the second notice of proposed rule.
Regulatory Flexibility Act
For purposes of the Regulatory Flexibility Act, the rule will not
have a significant economic impact on a substantial number of small
entities. The rule addresses only the procedures to be followed in
safety investigations. Accordingly, the Board has determined that a
Regulatory Flexibility Analysis is not required.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995, the rule
would not significantly or uniquely affect small governments and would
not result in increased expenditures by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (as adjusted for inflation).
Executive Order 12866
In issuing this regulation, the Board has adhered to the regulatory
philosophy and the applicable principles of regulation as set forth in
section 1 of Executive Order 12866, Regulatory Planning and Review.
This rule has not been reviewed by the Office of Management and Budget
under that Executive Order since it is not a significant regulatory
action within the meaning of the Executive Order.
Executive Order 12988
The Board has reviewed this regulation in light of section 3 of
Executive Order 12988, Civil Justice Reform, and certifies that it
meets the applicable standards provided therein.
Paperwork Reduction Act
The Paperwork Reduction Act does not apply because this regulation
does not contain information collection requirements that require
approval by the Office of Management and Budget. The Board expects the
collection of information that is called for by the regulation would
involve fewer than 10 persons each year.
Congressional Review Act
The Board has determined that this rulemaking does not involve a
rule within the meaning of the Congressional Review Act.
List of Subjects in 10 CFR Part 1708
Administrative practice, Procedure, and Safety investigations.
For the reasons stated in the preamble, the Defense Nuclear
Facilities Safety Board adds a new Part 1708 to 10 CFR chapter XVII to
read as follows:
PART 1708--PROCEDURES FOR SAFETY INVESTIGATIONS
Sec.
1708.100 Authority to conduct safety investigations.
1708.101 Scope and purpose of safety investigations.
1708.102 Types of safety investigations.
1708.103 Request to conduct safety investigations.
1708.104 Confidentiality of safety investigations and privileged
safety information.
1708.105 Promise of confidentiality.
1708.106 Limitation on participation.
1708.107 Powers of persons conducting formal safety investigations.
1708.108 Cooperation: Ready access to facilities, personnel, and
information.
1708.109 Rights of witnesses in safety investigations.
1708.110 Multiple interests.
1708.111 Sequestration of witnesses.
1708.112 Appearance and practice before the Board.
1708.113 Right to submit statements.
1708.114 Official transcripts.
1708.115 Final report of safety investigation.
1708.116 Procedure after safety investigations.
Authority: 42 U.S.C. 2286b(c); 42 U.S.C. 2286a(b)(2); 44 U.S.C.
3101-3107, 3301-3303a, 3308-3314.
Sec. 1708.100 Authority to conduct safety investigations.
(a) The Defense Nuclear Facilities Safety Board (Board) is an
independent federal agency in the executive branch of the United States
Government.
(b) The Board's enabling legislation authorizes it to conduct
safety investigations pursuant to the Atomic Energy Act of 1954, as
amended (42 U.S.C. 2286a(b)(2)).
Sec. 1708.101 Scope and purpose of safety investigations.
(a) The Board shall investigate any event or practice at a
Department of Energy defense nuclear facility which the Board
determines has adversely affected, or may adversely affect, public
health and safety.
(b) The purpose of any Board investigation shall be:
(1) To determine whether the Secretary of Energy is adequately
implementing standards (including all applicable Department of Energy
orders, regulations, and requirements) at Department of Energy defense
nuclear facilities;
(2) To ascertain information concerning the circumstances of such
event or practice and its implications for such standards;
(3) To determine whether such event or practice is related to other
events or practices at other Department of Energy defense nuclear
facilities; and
(4) To provide to the Secretary of Energy such recommendations for
changes in such standards or the implementation of such standards
(including Department of Energy orders, regulations, and requirements)
and such recommendations relating to data or research needs as may be
prudent or necessary.
Sec. 1708.102 Types of safety investigations.
(a) The Board may initiate a preliminary safety inquiry or order a
formal safety investigation.
(b) A preliminary safety inquiry means any inquiry conducted by the
Board or its staff, other than a formal investigation. Where it appears
from a preliminary safety inquiry that a formal safety investigation is
appropriate, the Board's staff will so recommend to the Board.
(c) A formal safety investigation is instituted by an Order of
Safety Investigation issued either after a recorded notational vote of
Board Members or after convening a meeting in accordance with the
Government in the Sunshine Act and voting in open or closed session, as
the case may be.
(d) Orders of Safety Investigations will outline the basis for the
investigation, the matters to be investigated, the Investigating
Officer(s) designated to conduct the investigation, and their
authority.
(e) The Office of the General Counsel shall have primary
responsibility for conducting and leading a formal safety
investigation. The Investigating Officer(s) shall report to the Board.
(f) Following a notational vote and in accordance with the
Government in the Sunshine Act, the Board or an
[[Page 71011]]
individual Board Member authorized by the Board may hold such closed or
open hearings and sit and act at such times and places, and require the
attendance and testimony of such witnesses and the production of such
evidence as the Board or an authorized member may find advisable, or
exercise any other applicable authority as provided in the Board's
enabling legislation. Each Board Member shall have full access to all
information relating to the matter under investigation, including
attendance at closed hearings.
(g) Subpoenas in formal safety investigation hearings may be issued
by the Chairman only after a notational vote of the Board. The Chairman
may designate another Board Member to issue a subpoena. Subpoenas shall
be served by any person designated by the Chairman, or otherwise as
provided by law.
(h) A determination of a decision or action authorized to the Board
by these procedures shall only be made after a notational vote of the
Board with each Board Member having one vote.
Sec. 1708.103 Request to conduct safety investigations.
(a) Any person may request that the Board perform a preliminary
safety inquiry or conduct a formal safety investigation concerning a
matter within the Board's jurisdiction.
(b) Actions the Board may take regarding safety investigation
requests are discretionary.
(c) The Board will offer to protect the identity of a person
requesting a safety investigation to the maximum extent permitted by
law.
(d) Board safety investigations are wholly administrative and
investigatory in nature and do not involve a determination of criminal
culpability, adjudication of rights and duties, or other quasi-judicial
determinations.
Sec. 1708.104 Confidentiality of safety investigations and privileged
safety information.
(a) Information obtained during the course of a preliminary safety
inquiry or a formal safety investigation may be treated as
confidential, safety privileged, and non-public by the Board and its
staff, to the extent permissible under existing law. The information
subject to this protection includes but is not limited to: Identity of
witnesses; recordings; statements; testimony; transcripts; emails; all
documents, whether or not obtained pursuant to Board subpoena; any
conclusions based on privileged safety information; any deliberations
or recommendations as to policies to be pursued; and all other related
investigative proceedings and activities.
(b) The Board shall have the discretion to assert the safety
privilege when safety information, determined by the Board as protected
from release, is sought by any private or public governmental entity or
by parties to litigation who attempt to compel its release.
(c) Nothing in this section voids or otherwise displaces the
Board's legal obligations with respect to the Freedom of Information
Act, the Government in the Sunshine Act, or any procedures or
requirements contained in the Board's regulations issued pursuant to
those Acts.
Sec. 1708.105 Promise of confidentiality.
(a) The Investigating Officer(s) may give a promise of
confidentiality to any individual who provides evidence for a safety
inquiry or investigation to encourage frank communication.
(b) A promise of confidentiality must be explicit.
(c) A promise of confidentiality must be documented in writing.
(d) A promise of confidentiality may be given only as needed to
ensure forthright cooperation of a witness and may not be given on a
blanket basis to all witnesses.
(e) A promise of confidentiality must inform the witness that it
applies only to information given to the Investigating Officer(s) and
not to the same information if given to others.
Sec. 1708.106 Limitation on participation.
(a) A safety investigation under this rule is not a judicial or
adjudicatory proceeding.
(b) No person or entity has standing to intervene or participate as
a matter of right in any safety investigation under this regulation.
Sec. 1708.107 Powers of persons conducting formal safety
investigations.
The Investigating Officer(s) appointed by the Board may take
informal or formal statements, interview witnesses, take testimony,
request production of documents, recommend issuance of subpoenas,
recommend taking of testimony in a closed forum, recommend
administration of oaths, and otherwise perform any lawful act
authorized under the Board's enabling legislation in connection with
any safety investigation ordered by the Board.
Sec. 1708.108 Cooperation: Ready access to facilities, personnel, and
information.
(a) Section 2286c(a) of the Atomic Energy Act of 1954, as amended,
requires the Department of Energy to fully cooperate with the Board and
provide the Board with ready access to such facilities, personnel, and
information as the Board considers necessary, including ready access in
connection with a safety investigation.
(b) Each contractor operating a Department of Energy defense
nuclear facility under a contract awarded by the Secretary is also
required, to the extent provided in such contract or otherwise with the
contractor's consent, to fully cooperate with the Board and provide the
Board with ready access to such facilities, personnel, and information
of the contractor as the Board considers necessary in connection with a
safety investigation.
(c) The Board may make a written request to persons or entities
relevant to the safety investigation to preserve pertinent information,
documents, and evidence, including electronically stored information,
in order to preclude alteration or destruction of that information.
Sec. 1708.109 Rights of witnesses in safety investigations.
(a) Any person who is compelled to appear in person to provide
testimony or produce documents in connection with a safety
investigation is entitled to be accompanied, represented, and advised
by an attorney. Subpoenas in safety investigations shall issue only
under signature of the Chairman or any Member of the Board designated
by the Chairman. Attendance and testimony shall be before the Board or
a Member authorized by the Board.
(b) If an executive branch agency employee witness is represented
by counsel from that same agency, counsel shall identify who counsel
represents to determine whether counsel represents multiple interests
in the safety investigation.
(c) Counsel for a witness may advise the witness with respect to
any question asked where it is claimed that the testimony sought from
the witness is outside the scope of the safety investigation, or that
the witness is privileged to refuse to answer a question or to produce
other evidence. For these permissible objections, the witness or
counsel may object on the record to the question and may state briefly
and precisely the grounds therefore. If the witness refuses to answer a
question, then counsel may briefly state on the record that counsel has
advised the witness not to answer the question and the legal grounds
for such refusal. The witness and his or her counsel shall not
otherwise object to or refuse to answer any question, and they shall
not otherwise interrupt any oral examination.
[[Page 71012]]
(d) When it is claimed that the witness has a privilege to refuse
to answer a question on the grounds of self-incrimination, the witness
must assert the privilege personally.
(e) Any objections made during the course of examination will be
treated as continuing objections and preserved throughout the further
course of testimony without the necessity for repeating them as to any
similar line of inquiry.
(f) Counsel for a witness may not interrupt the examination by
making any unnecessary objections or statements on the record.
(g) Following completion of the examination of a witness, such
witness may make a statement on the record, and that person's counsel
may, on the record, question the witness to enable the witness to
clarify any of the witness's answers or to offer other evidence.
(h) The Board or any Member authorized by the Board shall take all
measures necessary to regulate the course of an investigative
proceeding to avoid delay and prevent or restrain obstructionist or
contumacious conduct or contemptuous language.
(i) If the Board or any Member authorized by the Board finds that
counsel for a witness, or other representative, has refused to comply
with his or her directions, or has engaged in obstructionism or
contumacy, the Board or Member authorized by the Board may thereupon
take action as the circumstances may warrant.
(j) Witnesses appearing voluntarily do not have a right to have
counsel present during questioning, although the Board or Member
authorized by the Board, in consultation with the Office of the General
Counsel, may permit a witness appearing on a voluntary basis to be
accompanied by an attorney or non-attorney representative.
Sec. 1708.110 Multiple interests.
(a) If counsel representing a witness appears in connection with a
safety investigation, counsel shall state on the record all other
persons or entities counsel represents in that investigation.
(b) When counsel does represent more than one person or entity in a
safety investigation, counsel shall inform the Investigating Officer(s)
and each client of counsel's possible conflict of interest in
representing that client.
(c) When an Investigating Officer(s), or the Board, as the case may
be, in consultation with the Board's General Counsel, has concrete
evidence that the presence of an attorney representing multiple
interests would obstruct or impede the safety investigation, the
Investigating Officer(s) or the Board may prohibit that attorney from
being present during testimony.
(d) The Board shall issue a written statement of the reasons
supporting a decision to exclude counsel under this section within five
working days following exclusion. The Board shall also delay the safety
investigation for a reasonable period of time to permit retention of
new counsel.
Sec. 1708.111 Sequestration of witnesses.
(a) Witnesses shall be sequestered during interviews, or during the
taking of testimony, unless otherwise permitted by the Investigating
Officer(s) or by the Board, as the case may be.
(b) No witness, or counsel accompanying any such witness, shall be
permitted to be present during the examination of any other witness
called in such proceeding, unless permitted by the Investigating
Officer(s) or the Board, as the case may be.
Sec. 1708.112 Appearance and practice before the Board.
(a) Counsel appearing before the Board or the Investigating
Officer(s) must conform to the standards of ethical conduct required of
practitioners before the Courts of the United States.
(b) The Board may suspend or deny, temporarily or permanently, the
privilege of appearing or practicing before the Board in any way to a
person who is found:
(1) Not to possess the requisite qualifications to represent
others; or
(2) To have engaged in unethical or improper professional conduct;
or
(3) To have engaged in obstructionism or contumacy before the
Board; or
(4) To be otherwise not qualified.
(c) Obstructionist or contumacious conduct in an investigation
before the Board or the Investigating Officer(s) will be grounds for
exclusion of any person from such safety investigation proceedings and
for summary suspension for the duration of the investigation.
(d) At the time of the finding the Board shall issue a verbal or
written statement of the reasons supporting a decision to suspend or
exclude counsel for obstructionism or contumacy.
(e) A witness may have a reasonable amount of time to retain
replacement counsel if original counsel is suspended or excluded.
Sec. 1708.113 Right to submit statements.
At any time during the course of an investigation, any person may
submit documents, statements of facts, or memoranda of law for the
purpose of explanation or further development of the facts and
circumstances relevant to the safety matter under investigation.
Sec. 1708.114 Official transcripts.
(a) Official transcripts of witness testimony, whether or not
compelled by subpoena to appear before a Board safety investigation,
shall be recorded either by an official reporter or by any other person
or means designated by the Investigating Officer(s) or the Board's
General Counsel.
(b) Such witness, after completing the compelled testimony, may
file a request with the Board's General Counsel to procure a copy of
the official transcript of that witness's testimony. The General
Counsel shall rule on the request, and may deny for good cause.
(c) Good cause for denying a witness's request to procure a
transcript may include, but shall not be limited to, the protection of
a trade secret, non-disclosure of confidential or proprietary business
information, security-sensitive operational or vulnerability
information, safety privileged information, or the integrity of Board
investigations.
(d) Whether or not a request is made, the witness and his or her
attorney shall have the right to inspect the official transcript of the
witness's own testimony, in the presence of the Investigating
Officer(s) or his designee, for purposes of conducting errata review.
(e) Transcripts of testimony are otherwise considered confidential
and privileged safety information, and in no case shall a copy or any
reproduction of such transcript be released to any other person or
entity, except as provided in paragraph (b) above or as required under
the Freedom of Information Act or the Government in the Sunshine Act,
or any procedures or requirements contained in Board regulations issued
pursuant to those Acts.
Sec. 1708.115 Final report of safety investigation.
(a) The Board will complete a final report of the safety
investigation fully setting forth the Board's findings and conclusions.
(b) The final report of the safety investigation is confidential
and protected by the safety privilege, and is therefore not releasable.
(c) The Board, in its discretion, may sanitize the final report of
the safety investigation by redacting confidential and safety
privileged information so that the report is put in a publically
releasable format.
(d) Nothing in this section voids or otherwise displaces the
Board's legal obligations with respect to compliance
[[Page 71013]]
with the Freedom of Information Act, the Government in the Sunshine
Act, or any procedures or requirements contained in the Board's
regulations issued pursuant to those Acts.
Sec. 1708.116 Procedure after safety investigations.
(a) If a formal safety investigation results in a finding that an
event or practice has adversely affected, or may adversely affect,
public health and safety, the Board may take any appropriate action
authorized to it under its enabling statute, including, but not limited
to, making a formal recommendation to the Secretary of Energy,
convening a hearing, or establishing a reporting requirement.
(b) If a safety investigation yields information relating to
violations of federal criminal law involving government officers and
employees, the Board shall expeditiously refer the matter to the
Department of Justice for disposition.
(c) If in the course of a safety investigation, a safety issue or
concern is found to be outside the Board's jurisdiction, that safety
issue or concern shall be referred to the appropriate entity with
jurisdiction for disposition.
(d) Statements made in connection with testimony provided to the
Board in an investigation are subject to the provisions of 18 U.S.C.
1001.
Dated: November 24, 2014.
Peter S. Winokur,
Chairman.
[FR Doc. 2014-28248 Filed 11-28-14; 8:45 am]
BILLING CODE 3670-01-P
