ML19280A260
| ML19280A260 | |
| Person / Time | |
|---|---|
| Issue date: | 08/15/1980 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| FRN-45FR3594, FRN-45FR69877, RULE-PR-2, TASK-CC, TASK-SE SECY-80-385, NUDOCS 8009100243 | |
| Download: ML19280A260 (28) | |
Text
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UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555
^"""
SECW80-385 CONSENT CALENDAR ITEM For:
The Commissioners
}p From:
Howard K. Shapar Executive Legal Director Thru:
William J. Dircks Acting Executive Director for Operations
Subject:
AMENDMENTS TO 10 CFR PART 2 CONCERNING DISCIPLINE IN ADJUDICATORY PROCEEDINGS
Purpose:
To obtain Comission approval of amendments to 10 CFR Section 2.713 for publicr+, ion in final fom.
Category:
This is a matter requiring Commission approval.
Discussion:
Proposed amendments to 10 CFR Part 2.were published in the Federal Register (45 FR 3594) on January 18, 1980, after Commission action on SECY-79-514.
The proposed amendments to 10 CFR Section 2.713 were designed to:
1.
reiterate the standard of conduct expected of participants in proceedings; 2.
clarify who may appear before NRC in a representa-tive capacity; 3.
clarify and bolster the authority of the presiding officer, Appeal Board, and Commission to suspend any party or representative of a party fran par-ticipation in a particular proceeding where, as a result of the party's or representative's conduct, this is necessary for the orderly conduct of the proceeding; and 4.
specify special interlocutory appeal procedures governing suspensions from participation.
Four comment letters were received from interested persons during the forty-five day comment period.
The commenters addressed the following issues:
1.
The necessity for the rule; 2.
the standards of conduct;
Contact:
Bruce A. Berson, OELD 492-7678
.800g109 243
The Commissioners 3.
representation at NRC proceedings; 4.
the process of appealing suspensions; and 5.
referral of suspended attorneys to the state bar.
I believe that no changes to the rule based on the comments are necessary. A detailed discussion of the comments is contained in the attached Federal Register notice (Attachment A). However, I recommend a substan-tial revision to the process for appealing suspensions and two other minor clarifications to the rule based upon further internal review.
I believe the process for appealing suspensions should be broadened to authorize an appeal from all disciplinary sanctions, including reprimands, censures, and suspen-sions for less than 1 day. At least in the case of an attorney, an administratively unappealable disciplinary sanction may saddle an individual with an irrevocable, and possibly unjustified, professional " black mark."
For example, the District of Columbia bar application specifically requires an applicant to state whether he or she has ever been suspended, reprimanded, or censured as an attorney.
I also recommend a new 9 2.713(c)(4) that will delay the effectiveness of suspensions exceeding 1 day for 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> to pennit a suspended individual to request from the reviewing tribunal a stay of the sanc-tion pending appeal.
Finally, I recommend that the third sentence of proposed 9 2.713(c)(3) be changed to specifically require the reviewing tribunal to consider each appeal on the merits. This requirement will ensure that an appeal would not be declared moot if the suspen-sion had been " served" prior to consideration by the reviewing tribunal.
The first minor clarification I recommend is that the words "or officer" be inserted in the second sentence of 9 2.713(b) following " duly authorized member" to make clear that a partnership, corporation or unincorporated association may be represented by a duly authorized officer, as well as by a member or attorney.
This clarification reflects both actual practice and the intent of the rule.
The second clarification concerns referral of suspended attorneys to the appropriate state bar.
Proposed 9 2.713(c)(3) implies that if an attorney receives a
The Commissioners suspension exceeding one day and does not appeal, there is no referral to the state bar.
I propose that the rule be clarified by requiring referral of suspensions exceeding one day even when the attorney takes no appeal.
Referral should not depend upon whether an appeal is taken. Logic teaches that a suspended attorney who does not appeal may be more guilty than his peer who elects to appeal; therefore, both attorneys should be referred to the state bar. Although the clarification is likely to result in routine appeals by suspended attorneys, I expect little additional impact on resources since suspensions exceeding one day are likely to be imposed only in exceptional circumstances.
The proposed rule revised in accordance with the dis-cussion above is provided in Attachment A.
Recommendation:
I recommend that the Commission:
1.
Approve publication in the Federal Register of the amendments to 10 CFR Part 2 as set forth in Attach-ment A.
2.
Note that:
a.
The amendments will become effective 30 days after publication in the Federal Register, b.
A comparative text of the recommended final rule and the proposed rule is attached as Attachment B.
c.
The Senate Committee on Environnent and Public Works and the House Committees on Interior and Insular Affairs, Interstate and Foreign Commerce, and Government Operations will be informed by letter.
d.
The amendments do not significantly affect the quality of the human environment or involve unresolved conflicts concerning available resources. Accordingly, no environmental impact statement, negative declaration or environmental impact appraisal need be prepared.
A public announcement will not be issued.
e.
The Commissioners Coordination:
The Chairman of the Atomic Safety and Licensing Appeal Panel, the Acting Chairman of the Atomic Safety and Licensing Board Panel, and the Office of the General Counsel concur in the recommendation of this paper.
1 N to Howard K. Shapar Executive Legal Director Attachments:
A.
Proposed Federal Register Hotice B.
Comparative text of the reconnended final rule and the proposed rule.
C.
Draft letter for Congressional Committees.
Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Uednesday, September 3, 1980.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT August 26, 1980, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comnent, the Commissioners and the. Secretariat should be apprised of when comments may be expected.
DISTRIBUTION Commissioners Commission Staff Offices Exec Dir for Operations ACRS ASLBP ASLAP Secretariat 4
NUCLEAR REGULATORY COMMISSION
[10 CFR Part 2]
Changes in Rules of Practice Governing Discipline in Adjudica, tory Proceedings AGENCY:
U.S. Nuclear Regulatory Commission.
ACTION:
Final Rule.
SUMMARY
- The Nuclear Regulatory Commission is amending its regulations governing discipline in adjudicatory hearings,10 CFR Section 2.713, to (1) reiterate the standard of conduct expected of participants 'in proceedings; (2) clarify who may appear before NRC in a representative capacity; (3) clarify and bolster the authority of the presiding officer, Appeal Board, and Commission to suspend any party or represgtative of a party from par-ticipation in a particular proceeding where, as a result of the party's or representative's conduct, this is necessary for the orderly conduct of the proceeding; and (4) specify special interliicutory appeal procedures govern-ing suspensions from participation.
EFFECTIVE DATE:
(Thirty days after publication in the Federal Register.)
FOR FURTHER INFORMATION CONTACT: Bruce A. Berson, Office of the Executive Legal Director, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, Telephorie (301) 492-7678.
. SUPPLEMENTARY INF0PJiATION:
On January 18, 1980, the Nuclear Regulatory Com-mission published in the Federal Register (45 CFR 3594) a proposed amendment to its regulations,10 CFR Part 2
" Rules of Practice for Domestic Licensing Proceedings," regarding representation and conduct of attorneys in adjudica-tory proceedings.
Interested persons were invited to submit comments for consideration in connection with the proposed amendment by March 3,1980.
Four comment letters were received from interested persons during the 45 day comment period.
The comments addressed the following issues:
1.
The necessity for the rule; 2.
The standards of conduct; 3.
Representation at NRC proceedings; 4.
The process of appealing suspensions; and 5.
Referral of suspended attorneys to the state bar.
After careful consideration, the Commission has determined that no changes to the proposed rule based on the comments are necessary.
However, the Com-mission has revised and broadened the proces: of appealing suspensions and made two other minor clarifications to the rule based upon its own review.
The clarifications 1) add the words "or officer" to the second sentence of 5 2.713(b) following "duiy authorized member" to reflect actual practice and
. the intent of the rule; and 2) provide for mandatory referral of an attorney suspended for more than 1 day to the appropriate state bar even in the absence of an appeal.
(Issues 3 and 5 below).
The revision to the process of appealing suspensions is discussed below (Issue 4).
The public comments and changes made by the Commission are discussed below.
1.
Necessity for the rule:
Two commenters believe the rule is unnecessary.
One suggests that the presiding officer has adequate existing authority under 10 CFR 6 2.718,
" Power of the Presiding Officer," to control the conduct of the pro-
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ceeding and the other states that local authorities could be called if a true disturbance were created.
Although disciplinary authority may be implied from 10 CFR 2.718(e), the Commission believes it is preferable to specifically codify such authority and the associated procecures after public no+,1ce and opportunity for comment.
The Commission also believes presiding officers and other NRC tribunals should have speci-fic authority to discipline representatives in NRC proceedings, when necessary, without routinely requesting (or waiting for a situation to require) the assistance of local law enforcement authorities, as suggested by the second commenter.
2.
Standards of conduct:
Three commenters express the view that the types of conduct enumerated in proposed 5 2.713(c)(1) which may result in the suspension of a
. representative from a proceeding are vague, overly broad, or subject to abuse by a presiding officer.
One commenter also states that the meaning and consequence of " censure" are not defined.
The
>'a is designed to be read and applied in light of its purpose.
The"efore, presiding officers will generally apply judicially developed precedents governing contempt in imposing and fashioning appropriate disciplinary sanctions.
Since the presiding officer is charged with conducting a fair proceeding in a reasonable and even-handed manner, he or she is expected to apply the provisions of this rule in a similar fashion.
The Commission recognizes that a presidir.g officer might, on occasion, erroneously suspend a representative from a proceeding for conduct not warranting such action.
The appeal process provided in the rule would correct any such error.
Therefore, the Commissioa expects no abuse of the disciplinary standards.
The Commission believes the meaning and consequence of censure are sel f-explanato ry.
Censure, public or private, is generally a more appropriate remedy for an isolated instance of misconduct than suspen-sion.
In addition, the rule makes clear what conduct is expected of representatives.
(See generally, ABA Code of Professional Responsi-bility and Ethical Considerations, EC-7-34 thrcugh and including 7-39 and8-5.)
3.
Representatf or at NRC proceedings:
One commenter suggests that "the restriction of attorney-at-law to only those admitted to the bar of U.S. or District of Columbia Courts or the highest court of any State, territory, or possession of the United States may well work to deprive public-interest intervenors of otherwise well-qualified counsel or other legal representation." The Commission believes the restriction is appropriate because admission before one of the specified courts is generally required before an attorney may be licensed to engage in the practice of law in a particue lar jurisdiction.
The Commission has detenained that the words "or officer" should be added to the second sentence of 9 2.713(b), following " duly authorized member."
The clarification makes clear that a partnership, corporation or unincorporated association may be represented by a duly authorized officer, as well as by a inember or attorney and reflects both actual practice and the intent of the rule.
4.
Process of appealing suspensions:
The provisions for appealing suspensions received a number of comments.
Two commenters express concern thaf the appeals process requires a suspended individual to cvercone a presumption of guilt and establish his or her innocence. The Commission disagrees with this character-iza tion. Although there is some presumption that the action of a lower administrative tribunal is correct, the Commission or an Atomic Safety and Licensing Appeal Board need not accede to a lower board's decision simply because it is supported by " substantial evidence" or is not " clearly erroneous." See Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397 (1976).
Another comenter recommends that a proceeding be automatically stayed whenever a representative is suspended, even for one day or less. The commenter notes that disciplinary action nomally focuses on the conduct of the representative rather than the party and recommends that the "necessary to prevent injustice" standard governing the granting of a stay in 5 2.714(c)(2) be deleted.
She recommends instead that the party be given the option of electing either an automatic stay pending completion of the suspension (or final disposition of the appeal, if appealed) or a stay for a reasonable period of time in which to secure other representation.
The Commission believes that the proposed rule adequately protects the interests of an affected party by permitting a stay for a reasonable period of time in order to obtain other representation if necessary to prevent injustice. Whether a stay should be granted in a particular case should be left to the discretion of the presiding officer, since that individual will be most familiar with the procedural posture of the proceeding and the impact of the suspension upon the parties.
Under the comenter's proposal, a lengthy suspension could translate
. into a day-for-day stay of the entire proceeding, even though alterna-tive representation might be available auch sooner. This could add unnecessary delay to licensing proceedings.
The commenter also suggests the establishment of an alternative appeals process in cases in which the Commission itself orders a suspension so that the Commission does not also function as the appellate body.
Since the Canmission acts as a collegial body in licensing proceedings, there will be no further administrative appeal of suspensions it orders.
Judicial review would be available to a suspended representative.
Therefore, the Commission believes an alternative appeals process is unnecessary.
One commenter suggests that the rule be amended to require the com-pletion of an appellate hearing within 10 days of the imposition of the suspension or else the suspension should be revoked, not merely lifted.
According to the commenter, this change is designed to prevent an automatic 10-day non-reviewable suspension. The Canmission notes that it may not always be practical to complete a hearing within 10 days of the imposition of a suspension because the rule provides 10 days for filing an appeal.
Since proposed 5 2.713(c)(3) directs that a necessary hearing shall canmence as soon as possible after the filing of an appeal, the Commission believes that the intent of the comment is met.
However, after its own further review, the Commission has decided to broaden and revise the process for appealing suspensions in three respects.
First, an appeal of a reprimand, censure, or suspension not exceeding 1 day is authorized. The proposed rule limited review to suspensions exceeding 1 day.
The Commission believes that a right to appeal any sanction imposed pursuant to this section is desirable because, at least in the case of an attorney, an administratively unappealable sanction may saddle an individual with an irrevocable, and possibly unjustified, professional " black mark."
In the District of Columbia, for example, an applicant for admission to the bar must state whether he or she has been suspended, reprimanded or censured as an a ttorney.
Second, the Commission has revised the proposed rule to delay the effectiveness of suspensions exceeding 1 day for a period of 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />
~
from the time of the suspension order to pennit the suspended indivi-dual to request a stay of the sanction from the reviewing tribunal pending appeal. A timely stay request will stay the imposition of the sanction until the reviewing tribunal rules on the motion. Ten days are provided for the Commission or Appeal Board, as appropriate, to rule on the motion. All time limits will be computed in accordance with 10 CFR 2.710.
Responses to the stay request from other parties will not be entertained since they have no substantial interest in the disposition of the motion.
In ruling on the motion, the reviewing tribunal will consider only the first two stay factors specified in
-g.
10 CFR 2.788(e) (whether the moving party has made a strong showing that it is likely to prevail on the merits and whether the party will be irreparably injured unless a stay is granted).
The third and fourth factors (harm to other parties and the public interest) are excluded because each has little bearing on the proper disposition of the motion. This mechanism is provided in a new 9 2.713(c)(4).
Finally, the Commission has modified the third sentence of proposed 9 2.713(c)(3) to require an Atomic Safety and Licensing Appeal Board or the Commission, as appropriate, to consider each appeal on the merits.
The modification will ensure that an appeal would not be declared moot if the suspension has been " served" prior to appellate consideration.
5.
Referral to the state bar:
One commenter recommends deletion of the provision of proposed 9 2.713(c)(3) relating to notification of the appropriate state bar(s) if an attorney's suspension is upheld at the conclusion of the appeal, since no corres-ponding sanctions are imposed on non-lawyers and no pattern of attorney misconduct is cited.
The Commission does not agree with this recommen-dation.
Attorneys have an independent ethical obligation under the American Bar Association's Code of Professional Responsibility to refrain from engaging in undignified or discourteous conduct when appearing before a court or administrative tribunal.
(DR 7-106(c)(6)).
Therefore, referral to the stat,e bar(s) is appropriate in such cases.
4 However, proposed 5 2.713(c)(3) implies that if an attorney receives a suspension exceeding 1 day and does not appeal, there is no referral to the state bar. The Commission has clarified the rule by requiring mandatory referral of attorneys whose suspensions exceed 1 day even when no appeal is taken.
Referral.should not depend upon whether an appeal is taken.
Logic teaches that a suspended attorney who does not appeal may be more guilty than his peer who elects to appeal; therefore, both attorneys should be referred to the state bar if the suspension exceeds 1 day.
Pursuant to section 161(p) of the Atomic Enenjy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and sections 552, 553 and 555(b) of Title 5 of the United States Code,.ae following amendments to Title 10, Chapter 1, Code of Federal Regulations, Part 2 are published as a document subject to codification, to be effecitve on (thirty days after publication in the Federal Register).
Section 2.713 is amended in its entirety to read as follows:
9 2.713 Appearance and practice before the Commission in adjudica-tory proceedings.
(a) Standards of Practice.
In the exercise of their func-tions under this subpart, the Commission, the Atomic Safety and Licensing Appeal Boards, the Atomic Safety and Licensing Boards, and Administrative Law Judges function in a quasi-
. judicial capacity. Accordingly, parties and their representa-tives in proceedings subject to this subpart are expected to cor. duct themselves with honor, dignity, and decorum as they should before a court of law.
(b)
Representation. A person may appear in an adjudication on his or her own behalf or by an attorney-at-law. A partnership, corporation or unincorporated association may be represented by a duly authorized member or officer, or by an attorney-at-law.
A party may be represented by an attorney-at-law provided the attorney is in good standing snd has been admitted to practice before any court of the United States, the District of Columbia, or the highest court of any State, territory, or possess.
of the United States.
Any person appearing in a representative capacity chall file with the Commission a written notice of appearance which shall state his'or her name, address, and telephone number; the name and address of the person on whose behalf he or she appears; and, in the case of an attorney-at-law, the basis of his or her eligibility as a representative or, in the case of another representative, the basis of his or her authority to act on behalf of the party.
(c) Reprimand, Censure or Suspension from the Proceeding.
(1) A presiding officer, an Atomic Safety and Licensing Appeal Board, or the Cwanission may, if necessary
. for the orderly conduct of a proceeding, reprimand, censure or suspend from participation in the par-ticular proceeding pending before it any party or representative of a party who shall refuse to comply with its directions, or who shall be guilty of disorderly, disruptive, or contemptuous conduct.
(2) A reprimand, a censure or a suspension which is ordered to run for one day or less shall be ordered with grounds stated on the record of the proceeding and shall advise the person disciplined of the
~
right to appeal pursuant to paragraph (c)(3) of this section. A suspension which is ordered for a longer period shall be in writing, shall state the grounds on which it is based, and shall advise the person suspended of the right to appeal and to request a stay pursuant to paragraphs (c)(3) and (c)(4) of this section. A proceeding may be stayed for a reasonable time in order for an affected party to obtain other representation if this would be necessary to prevent injustice.
(3) Anyone disciplined pursuant to this section may within ten (10) days after issuance of the order file an appeal with the Atomic Safety and Licensing
. Appeal Board or the Commission, as appropriate.
The appeal shall be in writing and state concisely, with supporting argument, why the appellant believes the order was erroneous, either as a matter of fact or law. The Appeal Board or Commission, as appro-priate, shall consider each appeal on the merits, including appeals in cases in which the suspension period has already run.
If necessary for a full and fair consideration of the facts, the Appeal Board or Commission, as appropriate, may conduct further evidentiary hearings, or may refer the matter to another presiding officer for development of a record.
In the latter event, the officer before whom the matter is to be heard shall deter-mine the procedure to be followed and who shall present evidence.
Such hearing shall commence as soon as possible.
In the case of an attorney, if no appeal is taken of a suspension, or, if the suspension is upheld at the conclusion of the appeal, the presiding officer, the Appeal Board, or the Commission, as appropriate, shall notify the state bar(s) to which the attorney is admitted.
Such notification shall include copies of the order of suspension, and, if an appeal was taken, briefs of the parties, and the decision of the Appeal Board or Commission.
14 -
(4) A suspension exceeding i day shall not be effective for 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> from the date the suspension order is issued. Within this time a suspended individual may request a stay of the sanction from the appropriate reviewing tribunal pending appeal.
No responses to the stay request from other parties will be entertained.
If a timely stay request is filed, the suspension shall be stayed until the reviewing tribunal rules on the motion.
The stay request shall be in writing and contain the information specified in sections 2.788(b)(1), (2) and (4) of this part.
The Appeal Board or Commission, as appropriate, shall rule on the stay request within 10 days after the filing of the motion.
The Appeal Board or Com-mission shall consider the factors specified in sec-tions.2.788(e)(1) and (e)(2) of this part in determining whether to grant or deny a stay application.
Sec. 161(p), Pub. L.83-703, 68 Stat. 948 (42 U.S.C. 2201); Sec. 201, as amended, Pub. L.93-438, 88 Stat. 1243, Pub. L. 94-79, 89 Stat. 413 (42 U.S.C. 5841).
9 Dated at Washington, D.C. this day of
, 1980.
For the Nuclear Regulatory Commission.
Samuel J. Chilk Secretary of the Commission
Attachment B - Comparative Text of the Recommended Final Rule and the Proposed Rule i 2.713 Appearance and practice before the Commission in adjudicatory proceedings.
(a) Standards of Practice.
In the exercise cf their functions under this subpart, the Commission, the Atomic Safety and Licensing Appeal Boards, the Atomic Safety and Licensing Boards, and Administrative Law Judges function in a quasi-judicial capacity.
Accordingly, parties and their representatives in proceedings subject to this subpart are expected to conduct themselves with honor, dignity and decorum as they would before a court of law.
(b) Representation.
A person may appear in an adjudication on his or her own behalf or by an attorney-at-law. A partnership, corporation or
~
unincorporated association may be represented by a duly authorized member g officer, or by an attorney-at-law.
A party may be represented by an attorney-at-law provided the attorney is in good standing and has been admitted to practice before any court of the United States, the District of Columbia, or the highest court of any State, territory or I
possession of the United States.
Any person appearing in a representa-tive capacity shall file with the Commission a written notice of appear-ance which shall state his or her name, address and telephone number; and the name and address of the person on whose behalf he or she appears;
. and, in the case of an attorney-at-law, the basis of his or her eligi-bility as a representative or, in the case of another representative, the basis of his or her authority to act on behalf of the party.
(c)
Reprimand, Censure or Suspension from the Proceeding.
(1) A presiding officer, an Atomic Safety and Licensing Appeal Board, or the Commission may, if necessary for the orderly conduct of a proceeding, reprimand, censure or suspend fran participation in the particular proceeding pending before it any party or repre-sentative of a party who shall refuse comply with its directions, or who shall be guilty of disorderly, disruptive, or contemptuous conduct.
(2) A reprimand, a censure or a suspension which is ordered to
~
run for one day or less shall be ordered with grounds stated on the record of the proceeding and shall advise the person disciplined of the right to appeal pursuant to paragraph (c)(3) of this section.
A suspension which is ordered for a longer period shall be in writing, shall state the grounds on which it is based, and shall advise the person suspended of the right to appeal and to request a stay pursuant to paragraphs _ c(3) and c(4) of this subsection. A proceeding may be stayed for a reasonable time in order for an affected party to obtain other representation if this would be necessary to prevent injustice.
. (3) Anyone suspended-frem-part4e4 pat 4en-4n-a-part4ewlar-pre-eeed4ag-fer-4enger-than-ene-day disciplined pursuant to this section may within ten (10) days after issuance of the order file an appeal with the Atomic Safety and Licensing Appeal Board or the Commission, as appropriate. The appeal shall be in writing and state concisely, with supporting argument, why the order was erroneous either as a matter of fact or law. The Appeal Board or Commission, as appropriate, shall w4th4n-ten-flG)-days-after th e-f 444 ng -ef-th e-a p pe al,-e4 th e r-44 f t-th e-s u s pe ns 4 en-er-e en-s4 der-the-matter-en-4ts, consider each appeal on the merits, including appeals in cases in which the suspension period has already run.
If necessary for a full and fai.r consideration of the facts, the Appeal Board or Commission, as appropriate, may conduct further evidentiary hearings or may refer the matter to another presiding officer for development of a record.
In sweh the latter event, the officer before whom the matter is to be heard shall determine the procedure to be followed and who shall present evidence.
Such hearing shall commance as soon as possible af ter expiration of the ten day period.
In the case of an attorney, if no appeal is taken of a suspension, or, if the suspension is upheld at the conclusion of the appeal, the presiding officer, the Appeal Board, or the Commission shall notify the state bar(s) to which the attorney is admitted.
Such notification she.11 include copies of the order of suspension, and, if an acceal was taken, briefs of parties, and the decision of the Appeal Board or Commission.
. (4) A suspension exceeding 1 day shall not be effective for 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> from the date the suspension order is issued. Within this time a suspended individual may request a stay of the sanction from the appropriate reviewing tribunal pending appeal.
No responses to the stay request from other parties will be entertained.
If a timely stay request is filed, the suspension shall be stayed until the reviewing tribunal rules on the motion. The stay request shall be in writing and contain the information specified in sections 2.788(b)(1), (2) and (4) of this pa rt.
The Appeal Board or Commission, as appropriate, shall rule on the stay request within 10 days after the filing of the motion. The Appeal Board or Commission shall consider the factors specified in sections 2.788(e)(1) and (e)(2) of this part in determining whether to grant or deny a stay application.
fo Attachment C
Dear Mr. Chairman:
Enclosed for your infomation are copies of a final rule of the Nuclear Regulatory Commission, amending its Rules of Practice for Domestic Licensing Proceedings,10 CFR Part 2, to be published in the Federal Register.
The rule amends the Rules of Practice governing discipline in adjudicatory proceedings and is designed to:
(1) reiterate the standard of conduct expected of participants in proceedings; (2) clarify who may appear before NRC in a representative capacity; (3) clarify and bolster the authority of the presiding officer, Appeal Board, and Commission to suspend any party or representative of a party from participation in a particular proceeding where, as a result of the party's or representative's conduct, this is necessary for the orderly conduct of the proceeding; and (4) specify special interlocutory appeal procedures governing suspensions fran participation.
Notice of proposed rulemaking was published in the Federal Register.
Four letters of public comment were received.
For the reasons stated in the enclosed notice, the Commission concluded that no changes to the proposed rule were warranted based on the comment letters, but two clarifications recommended by the regulatory staff were desirable.
In addition, the process for appealing disciplinary sanctions was revised and broadened.
2-The final rule will become effective thirty (30) days after publication in the Federal Register.
Sincerely, Howard K. Shapar Executive Legal Director
Enclosure:
Notice of Rulemaking cc: Rep. Steven Symms 6
W
The Honorable Morris K. Udall, Chainnan Subcommittee on Energy and the Environment Committee on Interior and Insular Affairs United States House of Representatives Washington, D.C.
20515 cc:
Rep. Steven Synms The Honorable Gary Hart, Chairmman Subcommittee on Nuclear Regulation Committee on Environment and Public Works United States Senate Washington, D.C.
20510 cc:
Sen. Alan Simpson The Honorable John C. Dingell, Chairman Subcoranittee on Energy and Power Committee on Interstate and Foreign Commerce United States House of Representatives Washington, D.C.
20515 cc:
Rep. Clarence J. Brown The Honorable Toby Moffett, Chairman Subcommittee on Environment, Energy and Natural Resources Comnittee on Government Operations United States House of Representatives Washington, D.C.
20515 cc:
Rep. Paul McCloskey