ML19310G509
| ML19310G509 | |
| Person / Time | |
|---|---|
| Issue date: | 10/30/1984 |
| From: | Ingram F NRC OFFICE OF PUBLIC AFFAIRS (OPA) |
| To: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| Shared Package | |
| ML19310G510 | List:
|
| References | |
| FRN-48FR36358, RULE-PR-2 AB78-1-010, AB78-1-10, NUDOCS 8412060721 | |
| Download: ML19310G509 (1) | |
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October 30, 1984
' MDIORANDUM FOR: William J. Olmstead Director & Chief Counsel Regulations Division j
Office of the F.xacutive'. Legal Director i
FROM:
Frank Ingram.
j Assistant to the Director Office of Public Affairs j
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SUBJECT:
INITIATION OF RULDMKING TO ESTABLISH PROCEDURES REGARDING i
CONFLICTS CONCERNING THE DISCLOSURE OR NONDISCLOSURE OF
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INFORMATION The Office of Public Affairs has no co:sments on the proposed amendments' to Part 2 which ware transmitted by cover of your October 22 memor'andum.
eMy Frank'Ingram l..
Assistant to the Director Office of Public Affairs l
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er NEMORANDUM FOR:
Addressees on Attached List OCT 2 21984 (g. (
FROM:
William J. Olmstead Director and Chief Counsel Regulations Division Office of the Executive Legal Director r
SUBJECT:
NRC STATEMENT OF POLICY ON INVESTIGATIONS, INSPECTIONS AND ADJUDICATORY PROCEEDINGS - INITIATION OF RULEMAKING TO ESTABLISH SPECIAL PROCEDURES FOR RESOLVING CONFLICTS CONCERNING THE DISCLOSURE dR NONDISCLOSURE OF INFORMATION Attached for your review and comment is a draft Federal Register notice of proposed rulemaking containing proposed amendments to 10 CFR Part 2.
l Prepared in response to the Comission's instructions in its recent Statement of Policy on Investigations, Inspections and Adjudicatory Proceedings (49 FR 36032-36034, September 13, 1984, copy attached) the proposed amendments would establish procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an NRC investigation or inspection or provided by a confidential source and deemed relevant and material to an adjudication. Since the Commission plans to publish the preposed amendments for public comment by December 15, 1984 at the latest, we need to receive any comments which you may have on or before November 9, 1984.
If you have specific questions or concerns, please do not hesitate to call i
me (ext. 27203) or Jane R. Mapes (ext. 28695) of my staff.
WML,O M William J. Olm tead Director and Chief Counsel Regulations Division Office of the Executive Legal Director Attachn ents:
As stated Qc.iS NY ~ ?^
j ADDRESSEES TO MEVORANDUM DATED:
lg. 2 21984 Harold R. Denton, Dir., NRR John G. Davis, Dir., NMSS Robert B. Minogue, Dir., RES Richard C. DeYoung, Dir.
IE Kenneth E. Perkins, Jr., IE ben B. Hayes, Dir., 01 Roger Fortuna, 01 William J. Ward, 01 Sharon Connelly,'Dir., 01A G. Wayne Kerr, Dir., SP Patricia G. Norry, Dir., Adm.
Joseph M. Felton, Dir., DRR RFB John D. Philips, Chief,!..PA7 JosphiJ3iT6uchafdEDir Alan S. Rosenthal, Chm., ASLAP Gary J. Edles, ASLAP B. Paul Cotter, Jr., Chm., ASLBP Robert M. Lazo, ASLBP David L. Prestemon, ASLBP Ivan J. Smith, ASLBP Herzel H.E. Plaine, GC Martin G. Malsch, GC James A. Fitzgerald, GC Richard P. Levi, GC Edward S. Christenbury, ELD Joseph Scinto, ELD Lawrence Chandler, ELD Stuart Treby, ELD Joseph Rutberg, ELD Edwin Reis ELD Joseph Gray, ELD Hudson Ragan, ELD Edward Shomaker, ELD James Lieberman, ELD Thomas E. Murley, Rgn. I Jay Gutierrez, Rgn. I James P. O'Reilly, Egn. 11
' Bradley Jones, Rgn.11 James G. Keppler, Rgn. III Bruce Berson, Rgn. III Robert Martin, Rgn. IV William Brown, Rgn. IV John B. Martin, Rgn. V Lewis Sho11enberger, Jr., Rgn. V
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QCT 2 21984 NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 Adjudications - Special Procedures for Resolving Conflicts Concerning the Disclosure or Nondisclosure of Information -
l AGENCY:
Nuclear Regulatory Commission.
ACTION:
Proposed rule.
SUMMARY
- The Nuclear Regulatory Commission is considering amending its rules of practice to provide special procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an NRC investiga-tion or inspection or provided by a confidential source and deemed relevant and material to an adjudication. Prepared at the express direction of the Commission, the proposed amendments apply to all NRC offices that have information relevant and material to an adjudication. The proposed amend-ments require in_ camera presentations and follow guidance contained in,the Commission's recent statement of policy on investigations, inspections and adjudicatory proceedings.
i DATES:
Comments must be received on or before Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.
- Insert date 60 days after date of publication in Federal Register.
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t ADDRESSES:
. Interested persons are invited to send written comments or suggestions to the Secretary of the Commission U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, Attention: Docketing and Service Branch. Comments may also be delivered to Room 1121, 1717 H Street, N.W.,
Washington, D.C. between 8:15 a.m. and 5:00 p.m.
Copies of any comments received may be examined at the NRC Public Document Room, 1717 H Street, N.W., Washington, D.C. 20555.
FOR FURTHER INFORMATION CONTACT:
SUFFLEMENTARY INFORMATION:
On September 13, 1984, the Commission published a Statement of Policy on Investigations Inspections and Adjudicatory Proceed-ings (49 FR 36032-36034, September 13,1984.) In that Statement of Policy, i
the Commissier. re-emphasized the importance and need for full disclosure of information in an adjudication so that all issues may be fully resolved and stated that
"[a]Il parties in NRC adjudicatory proceedings, including the NRC staff, have a duty to disclose to the boards and other parties all new information they acquire which is considered material and relevant to any issue in contro-(49 FR 36032 September 13, versy)in the proceeding."
1964.
At the same time, the Commission recognized the need in certain circumstances to protect information against public disclosure to avoid compromising an NRC
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inspection or investigation or to protect a confidential source.
In most instances, these conflicting concerns can be reconciled by placing restric-tions, which may include suitable protective orders, upon the disclosure of i
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I information. There are, however, certain situations in which any disclosure of information, however restricted, would defeat the purpose of nondisclosure.
In its Statement of Policy, the Commission expressed the view that in these f
situations the NRC staff should be required to
" provide the board with an explanation of the basis of its concern about disclosure and present the information to the board, in camera, without other parties present."
(49 FR 3603 Tat 36034, September 13,1984.)
The Commission also noted that i
- because this procedure represents a departure from normal Commission procedure, it is the Commission's view that the decision should be implemented by rulemaking."
(49 FR 36032 at 36033 September 13,1984.)
This rulemaking proceeding is initiated in response to that directive.
These special procedures are applicable to and intended to be used by i
all NRC offices. The procedures are applicable in those limited circum-stances in which an KRC office is under a duty to disclose information to a board-and/or parties in an ongoing adjudication, for example, under established board notification procedures, in response to a discovery t
request, or as otherwise directed by the presiding officer, and it is determined that disclosure of the information under protective order or other appropriate restrictions would not achieve and might well defeat the i
objectives sought through nondisclosure. Once these findings have been made, i
the proposed special procedures may be used to determine the requisite degree of protection or disclosure that may be necessary.
The criteria to be used to determine whether a particular item of information is eligible for protection from disclosure are set out in h 2.795g of the proposed rule and track the standards enunciated in the
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In general, information will be eligible for protec-Il I
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tion from disclosure if it can be shown that the information relates to an inspection or investigation and that disclosure of the information even 3
under restriction or protective order would be detrimental to the effective conduct of the inspection or investigation. The information need not relate st.lely to an ongoing inspection or investigation but may also include infor-mation on the basis of which the NRC may determine whether to initiate an inspection or investigation.
Information will also be eligible for protec-tion from disclosure if it can be shown that the information would reveal the identity or otherwise compromise a confidential source. After the con-flict between the obligation to disclose and the need to protect a particular item of information has become apparent, the NRC office possessing the information may use the proposed special procedures to resolve the conflict.
q Under the special procedures, the appropriate NRC office must submit a written request for relief from the disc 1csure requirement to the presiding officer of the pending adjudication. The request must transmit the informa-tion for which protection is sought, provide a brief summary of its nature and source, and explain the relevance of the information to the adjudication.
The request must also state why and to what extent disclosure of the infor-i mation even under restriction or protective order will compromise or impede the conduct of an investigation or inspection, or reveal the identity or otherwise compromise a confidential source.
Upon receipt of an NRC request for relief, the presiding officer shall schedule an in, camera presentation wnich shall have priority over other matters awaiting decision. Under the proposed amendments, the presiding
k 5-officer is also authorized to hold an _in camera presentation at any time on I
his or he~r own initiative.
Although attendance at an h tamera presentation is strictly limited to the presiding officer and to appropriate NRC personnel, all parties to the t
adjudication must be notified whenever an in camera presentation concerning thc disclosure or nondisclosure of informaticn is to be held. The substan-tive content of the information presented in camera may not be disclosed. A verbatin transcript will be made of each in, camera presentation.
Upon the conclusion of an in camera presentation and after finding that the inforn.ation for which protection is sought is both relevant and material r
to the pending adjudication, the presiding officer will decide, in the light of Commission policy favoring full disclosure, whether the information merits protection against disclosure to enable NRC to conduct an investigation or inspection fully and adequately or to protect the identity or otherwise preserve the integrity of a confidential source, or whether the information must be disclosed. The decision may include any terms and conditions con-sidered necessary and appropriate; a copy shall be served on the fiRC office having the information to which the decision relates. Within ten days after service of the decision, the NRC office may file a written statement of concurrence or objection. The decision will become effective twelve days
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after the date of service unless the decision otherwise provides er is i
required to be certified to the Commission for review.
Every decision requiring disclosure of the identity or of information relating to the identity or that would otherwise compromise a confidential source end every decision involving an unresolved disegreement between the
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6-E presiding officer and the NRC office having the information to which the decision ' relates must be certified to the Commission for review. Upon I
certification', the decision is automatically stayed until the Commission has completed its review and issued a decision. Pending review, the Commission will hold the decision and the accompanying record in camera..
2 The presiding officer must artify all parties to an adjudication whenever a decision relating to the disclosure or nondisclosure of information is certified to the Commission for review and inform the parties of their right to submit timely in camera briefs. After completing its review in accordance j
with the standards in i 2.7959 of the proposed rule, the Commission will decide whether to af firm, reverse or modify the decision.
Under the proposed procedures, information required to be protected shall be deemed sealed perding further order of the presiding officer or the Commission, as appropriate, and may not be disclosed in any adjudication or used in making any licensing or related regulatory decision unless and until publicly released.
Any NRC office which possesses protected information, including infor-mation protected from disclosure because it relates to an inspection or investigation, may consent to its release at any time by notifying the presiding officer or the Commission, as appropriate. The information may then be disclosed without further order, unless the information will reveal the icentity or otherwise compromise a confidential source, in which case a Commission order is required. Open order of the presiding officer or the Commission, as appropriate, information protected from disclosure because it relates to an investigation or inspection may be released when the
i investigation or inspection is completed. Upon release, the information and the accompanying record, including the verbatim transcript of the in camera presentation, shall be inclu' ed in the public record of the adjudication.
d Environmental Impact - Categorical Exclusion.
i The proposed amendments would amend the Commission's rules of pidctice i
codified in 10 CFR Part 2 and therefore meet the eligibility criteria for the categorical exclusion set forth in 10 CFR l 51.22(c)(1). Accordingly, pursuant 10 CFR 5 51.22(b), no environmental impact statement or environ-mental assessment need be prepared in connection with the issuance of the proposed amendmer.ts.
Paperwork Reduction Act Statement.
Although the special procedures in the proposed tule would impose a new information collection requirement (see, 9 2.795c, Application requesting irl camera presentation and relief from requirement to disclose relevant and mcterialinfermation)theseproceduresareonlyapplicabictoadjudications.
In addition, the new information collection requiremes.t is only applicable to NRC, specifically those NRC offices which have information deened relevant and material to a pending adjudication but also eligible for protection against disclosure. Based on the exemption in b 3518(c)(1)(B)(ii) of the Paperwork Reduction Act of 1980 (44 U.S.C. 66 3501 et seq.) and the fact that the information collection requirement contained into the proposed rule would l
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i affect. fewer than ten respondents, the NRC has determined that Office of Panagement and Budget clearance is not required pursuant to the Paperwork Reduction Act of 1980.
Regulatory Flexibility Act Certification.
As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this rule, if adopted, will not have a significant economic impact upon a substantial number of small entities and that there-fore a regulatory flexibility analysis need not be prepared. The primary I
impact of the proposed rule is on the hRC, not on entities subject to regu-lation by the NRC. Procedural in nature, the proposed amendments provide a nechanism for the orderly resolution of conflicts respecting the obligation to disclose information deemed relevant and material to a pending adjudica-tion and the. need to protect information relating to an NRC investigation or inspection or provided by a confidential source. Adjudicatory hearings are not required and are seldom, if ever, conducted in connection with the issu-ance of licenses - for the most part materials licenses - to small entities.
Adjudicatory hearings do, however, constitute the principal regulatory vehicle used by NRC to authorize the construction and operation of nuclear power pisnts. The companies that own these plants do not fall withia the definition of "small entities,' as set forth in section 601(3) of the Regulatory Flexibility Act, or within the definition of "small business" as found in Section 3 of the Small Busincss Act,15 U.S.C. 632, or the Small Business Size Standards in regulations issued by the Small Business 4
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9 Administration and codified in 13 CFR Part 121.- For these reasons and because the primary impact of the proposed rule falls on NRC, not on entities regulated by NRC, the Commission has concluded that the proposed rule, if adopted, will not have a significant economic impact upon a substantial r
number of small entities and that a regulatory flexibility analysis need not be preparea.
List of Subjects in 10 CFR Part 2.
1 AdT.inistrative practice and procedure Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plar.ts and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Kaste treatment and disposal.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended and 5 U.S.C. 553, the Nuclear Regulatory Commission is proposing to adopt the following amendments to 10 CFR Part 2.
PAR 1 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS.
1.
The authority citation for Part 2 continues to read as follows:
Authority: Sections 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.
2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.
2141); sec. 201, 88 Stat. 1242, as amended (42 U.C.C. 5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, D5, 68 Stat. 930, 932, 933, 935, 916, 937, 938, as amended (42 U.S.C. 2073,
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2092, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L.91-190, 83 Stat.
653, as cmended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).
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Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 1
104, 105, 183, 189, 68 Stat. 936 937, 938, 954, 955, as amended (42 U.S.C.
2132,2133,2134,2135,2233,2239)'. Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 65 Stat. 1246 (42 U.S.C. 5846). Sections 2.300-2.309 also issued under Pub. L.97-415, 96 Stat. 2071 (42 U.S.C. 2139). Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat 955, 83 Stat. 444, t
as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C.
5846).
Sections 2.300-2.309 also issued under Pub. L.97-415, 96 Stat. 2071 l
(42 U.S.C. 2133). Sections 2.600-2.606 also issued under sec. 102, Pub. L.
j 91-190, 83 Stet. 853 as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760. 2.770 also issued under 5 U.S.C. 557. Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29. Pub. L.85-256, 71 Stat. 579, as as amended (42 U.S.C. 2039).
Appendix A also issued under sec. 6, Pub. L.91-580, 84 Stat 1473 (42 U.S.C.
2135).
2.
In Subpart G, immediately following 6 2.790, a new center heading ar.d new sections 2.795a - 2.7950 are added to read as follows:
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t i SPECIAL PROCEDURES FOR RESOLVING CONFLICTS CONCERNING t
i THE DISCLOSURE OR NONDISCLOSURE OF INFORMATION RELATING TO AN NRC INVESTIGATION OR INSFECTION OR PROVIDED BY A CONFIDENTIAL SOURCE AND DEEMED RELEVANT AND KATERIAL TO A PENDING ADJUDICATION 6 2.795a Pt' pose and Scope.
Sections 2.795a - 2.7950 specify procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an investigation or inspection or provided by a confidential source and deemed relevant and material to a pending adjudication. These procedures apply to I
all NRC offices. The procedures are to be used whenever an NRC office nay.
be required to produce information in a pending adjudication and the NRC office having the information believes that disclosure of the information i
even under restriction or protective order would compromise or impede the conduct of an investigation or inspection or reveal the identity or otherwise compromise a confidential source.
% 2.795b Requirement to disclose relevant and material information; request for in camera presentation and relief.
Information relating to an investigation or inspection or obtained from a confidentiel source and found to be relevant and material to a pending adjudication shall be disclosed by the NRC office having the information unless '(1) the person responsible for releasing the information believes that disclosure of the information even under restriction or protective order would compromise or impede the conduct of an inspection or investigation or 1
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reveal the identity or otherwise compromise a confidential source and submits a' written request to the presiding officer for an in camera presen-tation and appropriate relief; or (2) the presiding officer upon his or her own initiative and in the absence of any written request directs that an in camera presentation be held in order to resolve a potential conflict between the requirement to disclose and the need to protect the information.
Application requesting,i_n camera presentation and reliet from i
% 2.795c n
requirement to disclose relevant and material information.
Each NRC application requesting an in camera presentation and relief from the requirement to disclose relevant and material information shall be submitted in writing by or on behalf of the NRC office having the informa-tion, shall be signed by or on behalf of the person responsible for releasing information from that NRC office, shall be marked "For in camera presentation only" and shall include the following information, as appropriate:
1.
The information subject to the request, together with a brief summary of its nature and tource; 2.
A brief explanation why the information is relevant and material to the pending adjudication; 3.
A brief statement indicating hcw the information relates to an inspection or investigation and the status of the inspection or investigation, including the estimated time of completion; 4.
The confidential nature of the source from which the information was obtained;
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A brief explanation why and to what extent disclosure of the
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'information even under restriction or protective order will compromise or impede the conduct of an investigation or inspection, or reveal the j
identity or otherwise compromise a confidential source; j
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The proposed relief requested.
j 5 2.795d Request for relief; priority.
In any pending adjudication, an NRC request for relief from the requirement to disclose relevant and material information shall have priority over other matters to be decided by the presiding officer.
% 2.795e Notice of in camera presentation.
The presiding officer shall promptly notify all parties to a pending adjudication that an 3 camera presentation will be held. A notice in response to an NRC application requesting M camera presentation and relief from the requirement to disclose relevent and material information shall be issued no later than five days after the request has been received. The notice shall state the purpose, i"me and place of the in camera presentation and the approximate date a decision concerning the disclosure or nondisclo-sure of the information subject to the presentation may be expected. The
. substantive content of the information shall not be disclosed.
5 2.795f in camera presentation; procedure.
.(a) An in camera presentation shall be held no later than five days after issuance of the notice required by 9 2.795e.
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i, (b) ' Attu.J snce at an in camara presentation shall be limited exclu-I#
sively to the presiding officer and to appropriate NRC personnel.
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(c) A verbatim transcript will be made of each h camera presentation.
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J L 2.7959 Decision to rw# ire full or partial disclosure or to protect V
information;' service.
(a) AfterhcamerapresentationandreviewofanNRCrequesthar relief from the" disclosure requirement in 5 2.795b and upon finding that the information subject to the request and presented in, camera is both relevant and r.aterial to the pending adjudication, the presiding officer shall decide, consistent wittj Commission policy favoring full disclosure, whether the s
information merits protection to enable NRC to conduct an investigation or i
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inspection fully and adequately or to protect the identity or otherwise preserve the integrity of a confidential source or whether the infomation must be disclosed. The decision may incit.de any _ terms or conditict.s or be i
accompanied by any protective orders deemed necessary or appropriate to protect the information, including but not limited to reschedulicy or-
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deferral of issues for hearing, specifying the manner, time, place or persons to whom the information may be disclosed, or prohibiting disclosure of all
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or part of the information. A decision to require disclosure shall specify
( j the information to be provided, the conditions, if any, under which the
.s ir. formation is to be disclosed, and the reasons why prompt disclosure is O
required.
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($) Every decision requiring disclosure of the identity of a confiden-f tial source or disclosure of information which could reveal the identity m
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- or otherwise compromise a confidential source shall be certified to the i
Commissioh for review and shall state that the identity of a confidential source or information relating to the identity or that would otherwise con. promise a confidential source may only be released by Commission order.
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(c) The presiding officer sha11 serve a copy of the decision on the NRC of fice having the information to which the decision relates.
l s 2.795h NRC statement of concurrence or objection; eff ective date of i
1 decision.
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Within ten days after service of the decision, the NRC office may file a written statement of concurrence or objectica to the decision. The decision shall become effective twelve days after the date of service, unless the _ decision discloses the identity or information relating to the identity or that would otherwise compromise a confidential source, has been certified to the CoEFission for review, or otherwise provides.
t 2.795i Requirement to certify decision to Commission for review; automatic stay; notice of certification.
(a) Every decision requiring disclosure of the identity or disclosure of information relating to the identity or that would otherwise compromise a r
confidential source shall be certified to the Commission for review. Every decision involving an unresolved disagreement between the presiding officer i
and the NRC office having the information to which the decision relates shall be certified to the Commission for review.
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I (b) Every decision certified to the Commission for review is automatic' ally stayed until the Commission has completed its review and issued a decision.
(c) The presiding officer shall promptly notify all parties to a pending adjuo1 cation that a decision relating to the disclosure or nondis-closure of information has been certified to the Commission for review. The notice shall state the reason for the certification, the certification date, and that, in accordance with 6 2.795k, any party to the pending adjudication may file a timely jrt camera brief with the Commission.
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$ 2.795j Certification record.
(a) Every decision certified to the Commission for review will be accompanied by a record which shall include, as appropriate, the NRC applica-tion requesting relief from the disclosure requirement, including the information subject to the request, the verbatim transcript of the irt camera presentation, and any HRC statement of concurrence or objection. As provided in 5 2.795k, the record may be supplemented by in camera briefs.
(b) Per: ding review, the Consission will keep the decision certified for review and the record relating thereto jr! camera.
5 2.795k jft camera briefs.
(c) k'ithin ten days after the certification date, the ARC office havir.g the information to which the certified decision relates may file an in camera brief witn the Commission. At the time the in camera brief is
i filed, the NRC office shall notify the other parties to the pending adjudi-l 2
cation that an jrt camera brief has been submitted.
(b) Within seven days after the filing dcte of the NRC in camera brief, any party to the pendica adjudication may file an jjl camera reply brief with the Commission, i
t G 2.7951 Commission review of certified decision.
(a) Upon its own initiative or upon request by or on behalf of the NRC office having the information, the Commission may conduct an iil camera j
I presentation on any matter certified to it for review under 6 2.795i.
(b) After review of the certified decision, tne accomp3nying record ano any jn camera briefs, the Commission shall decide, in accordance with the standards in 6 2.7959, whether to affirm, reverse or amend the decision.
As providec in h 2.795g, the decision may include any terms or eq3ditions or be accompanied by any protective orders deemed necessary or appropriate to protect thc information.
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! ?. 795m Protected information and related records sealed.
Unless and until publicly released, information protected from disclosure by a decision issued under Lt 2.795g or 2.7951, together with the record of the irt camera presentation relating thereto, shall be deemed sealed pending further order by the presiding officer or the Commission, as appropriete.
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t 5 2.795n Release of protected information with NRC office consent or
~ upon completion of investigation or inspection.
(a) Any NRC office having protected information may withdraw its objection and consent to the release of the protected information at any time by notifying the presiding officer or the Commission, as appropriate.
Upon notification of NRC office consent and except to the extent that-disclosure may be prohibited by paragraph (b) of this section, the informa-tion may be released and included in the public record of the pending adjudication without further order.
(b) Information protected from disclosure because it relates to an investigation or inspection, together with the record of the irl camera presentation relating thereto, shall, upon order of the presiding officer or the Commission, as appropriate, or without order as provided in paragraph (a) of this section, be released and included in the public record of the pending adjudication upon completion of the investigation or inspection or at the time the NRC office having the information consents to its release, whichever is earlier, unless (1) the decision authorizing protection of the information otherwise prcvides; (2) disclosure of the information will reveal the identity or otherwise compromise a confidential source; or (3) the information is exempt from public disclosure under i 2.790 or 10 C.F.R.
%s 9.5, 9.61, or 9.95.
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% 2.7950 Prohibition against disclosure and use of protected information.
Unless and until publicly released, information considered during (1) review of an NRC request for relief frem the disclosure requirement in l
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9,2.795b (2) Comission review of a certified matter, or (3) any jn camera l
presentation relating thereto, may not be disclosed in-any adjudication and i
i may not be used in making any licensing or related regulatory decision.
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I Dated at Washington, D.C., this day of 19 _.
i For the Nuclear Regulatory Comission..
..I Samuel J. Chilk Secretary of the Comission -
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36032 rederal Register / Vol. 49. No.179 / Thursday. September 13. 1984 / Notices i
filed with the Department by the Trust.
conflicts between the NRC's guidelines for disclosure ofinformation Such plan is not required to include in responsibility to disclose infortnation to concerning investigations and l
the annual report any information adjudicatory boards and parties, and the inspections should apply to all NRC concerning individual transactions of NRC's need to protect in estigative offices.Those recommendations have 3
the Trust.
n.?terial from premature public been incorporated in this Statement.
{c) Reportirg Information Relating to distlosure. " Statement of Policy-In addition. two comments were the Trust to be rized wirA the Invedigations and Adjudicatory submitted by members of the public.
Department ofLobot.The following Procertings." 48 FR 36358 (August 10 One commenter stated that the infarmation regarding the Trust must be 1983).
withholding of information from public reported for the fiscal year of the Trust Those interim procedures called for disclosure should be confined to the ending with or within the plan year for the NRC staff or Office ofInsestigations minimum essential to avoid which a Participating Plan's annual (OI).when it felt disclosure of compromising enforcement actions, and report is made:
informat.cn to an adjudicatory board that appropriate representatives of each (1) Name, address and emp1ger was requaed but that unrestricted party should be allowed to participate identification number (EIN) of the Pust; disclosure could compromise an under suitable protective orders in any (2) A hst of allParticipating Plans inspectior orinvestigation.to present in camem proceeding except in the most investi g in the Trust identified by plo the inforn ation and its concerns about exceptional cases.
name. plan number, and name and El.N d;sclosure. to the board in camera, The other commenter maintained that cf the plan sponsor as they arpear on without disdosure of the substance of an in camera presentation to the board the annual return / report, and each the informatioa to the other parties. A with only one party present is plan a percentage mterest in the Trust as board decision to disclose the undesirable and viol.tes the ex parte cf the beginning and ending of the fiscal information to the parties was rule.That commenter suggested an y=r of the Trust; appealable to the Commission. and the alternatise of having the attorneys or (3) A statement of assets and board was not to order disclosure until authorized representatives of parties li:bilities of the Trust; the Commissen addressed the matter.
who have signed a protective agreement (4) A statement ofincome and That Statement of Policy was,to.
present at any in camera presentation, expenses of theTrust; remain in effect until the Commission with appropriate sanctions for violating (5) The assets held for investment received and took action on the the protective agreement.5 (including the acquisitions and recommendations of aninternalNRC The Commission, after considering dispositions during he fiscalyear of the task force established to develop Trust). leases and c abgations in default. Fuidelines for reconc&g these con'licts these comments and the report of the Task Force. has decided that it would be cnd compensat;a paid by the Trust for in individual cases. The Commission in services in the manner required by h that Statement also requested public appt priate. m order to better explam the Comm:,ssion a policy in this area. to instructions to the annual return / report comments on the propriety and Form 5500; desirability of ex pcriein camera provide the fo!!owmg explanation of the (6) A report of an independent presentation of information to a board, conflict between the duty to disclose quahfied public accountant regarding and suggestions for any better investigation or inspection information the statements and schedules described etternatives.
to the boards and parties and the need in subparag aphs (2) through (5) above The Task Force submitted its report to to protect that information:
which meets the requirements of 29 CFR the Commission on December 30.1983.
All parties m NRC adjudicatory 25 0.103-1[b)(5).
A copy of that report will be placed in proceedings, including the NRC staff.
The Trust shall file the information the Commission's Public Datument have a duty to disclose to the boards described in this paragraph (c) with the Room. rhe Task Force approsed the and other parties allnew m, formation Department by mailing it to: Office of principles discussed in the they a: quire which is considered Reports and Disclosure. Office of Commission's earlier Statement of matenal and reles ant to any issue in Pension and Welfare Benefit Prograrns.
Poliev, and made several controversy in the proceedmg Such U.S. Department of Labor. 200 recommendations intended to define disclosure is reqdred to allow full Constitution Avenue. NW. Wa shington, specifically the responsibilities of the resolution of allissues in the proceeding.
D.C. 20:10. Attention: Texas Commerce boards the staff and 01in presenting The Commission expects all NRC offices Trust Co. Alternative Method of disclosure issues for resolution, to utilize procedures which will assure Compliance.
The Task Force recommended that the prompt and appropriate action to fulfil!
Signed as washmgton. D C this s:h day of Snal NW Raky e$ab dat M h gdM4 disclosure of mMenalinformation to However, the Comm,ss,on recogm,zes i i September Robert Ab' Monks
- adjudicatory boards and the parties is that there may be confhtts between this the general rule, but that some conflicts responsibility to provide the beards and Admmistmtor. Ofere ofTension and it'effere between the duty to disclose and the parties with information and an investi ating or inspecting offi:e's need need to prc 'ct information will be F
fra pne mane rwn-a s es."1 inevitable.The Task Force further to avoid public disclosure for either or c uma coon asio*"
recommended that issues regarding both of two reasons:(1)To avoid disclosure to the parties be initially determined by the adjudicatory boards
' Butt cornmen's also inctoded aussesnons NUCLEAR REGULATORY with provision for expedited appellate nsardms me:ters tryond the scope of this Pohey COMMISSION ta "' *hh **"'""' d ""'* ""h 5,,*'".'hms a prxecire to handie conmet.
review. and that procedures for the resolution of such conflicts be be'-een the dur> to dechse informat on to the St:ttment of Policy; Investigations, inspectior's,and Adjud:catory established by rule. Finally, the Task boards and pa-nes and the need to protect that Proceedings Force sug;ested that existing board intor-mmn ror msunce annuu* sten *n that in oc impm a mm susent saneerd m notification procedures should remain On August 5.1983 the Commission set unaffected by the Policy Statement. and fo[r nY"'$"cr$*o$"e'n$e"d't tIeNc forth ir.terim procedures for handling that those procedure: wnd Commission improse the gashey of its mvestsat.ons
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'6033 0..
fiderzl Register / Vol. 49. N.179 / Thursday. Sept:mber 13.1984 / N; tic s 3
f compromising an ongoing im estigation of each individual case. Howere. the.
These procedures are designed to allow or inspection: and (2) to protect Commission does note that as a general the boards to determine the relevance of L.
confidential sources The importance of rule it favors full disclosure to the materialto the adjudication and y
protecting information for either of the:.e boards and parties. that information whether that information must be M
re: sons can in appropriate should be protected only when disclosed to the parties and. if b
circumstances be as great as the necessary. and that any limits on disclosure is required. 4 provide a imputance of disclosing the information discicsure to the parties should be mechanism for case management both y
to the boards and parties.
limited in both scope and duration to the to protect investigations and inspections With regard to the first reason.
minimum necessary to achieve the and to a!!cw for.he timely provision of p
av:iding cornpromise of an investigatien purposes of the non-disclosure policy.
material and relevant information to the f
er inspection. it is important to informed The purpose of this Policy Statement part:es. As such these procedures are licensing decisions that NRC inspections is to establish a procedt.re by which the ana.ogous to the procedures for k,
and imesti ations are conducted so that conflicts can be resolved. The Policy resching dispatcs reFarding discovery, p'.
F c!! reles ant information is gathered for Statement takes over once s see. eg. 20 CFR :.74Mc), and do not appropri9te evaluation. Release of determination has been made, under violate the prohibition in to CFR 2.700 F
investigative material to the subject of established board notification against exporte discussion of an investigation before the completion procedures, that information should be substantise matters at issue.
of the investigation could ads ersely disclosed to the boards and public.but in accord with the above discussion.
sffect the NRC's ability to complete that 01 or staff believes that the information the Commission has decided that the L,
inv;stigation fully and adequately.The shouid be protected. In those cases the procedures to be followed where there g
subject. upon discoving w hat evidence Commission has decided that the enly is a conflict between the need for
[
thWRC had already acquired and the workable solution to protect both disclosure to the board and partia, and direction being taken by the NRC.
interests is to p:ocide for an in remem the need to protect an investigation or inte:tigation, might attempt to alter or pres ntation to the board by the NRC inspection willincludeincamero limit the direction or the nature or staff "r OI. with no party present. Any presentations by the staff or 01.
asaihbility of further statements or other vocedure could defeat the However because this procedure evidence. and prevent NRC from purpo' e of non-disclosure and might represents a departure from normal learning the facts.The failure to actualp inhibit the acquisition of Commission procedure. it is the escertain all relevant facts could itself information critical to decisions.
Commission's view that the decision result in the NRC msking an uninformeo Allowing the other parties or their should be implemented by rulemaking.
1%ensing decision. How es er. the need to representatives to be present in all Accordmgly, the Commission directs the protect information developed in casts. even under a protective order.
NRC staff to commente a rulemaking on investigations or inspections usually could breach promises of confidentiality the matter.
I ends once the investi;;ation or or allow the subject of an investigation Until com;11etion of the rulemaking.
l mrpection is completed and evaluated to pren.aturth acquire information the followinF will control the procedures f
for possible enforcement action.
about the ms esti;;ation. We note m th.is to be followed in reselving conflicts The second reason for not disclosing regard the difficulties of attemptirg t between the duty te dirclose to boards I
investigative material-to protect prevent a party a representatise from and the need to protect info *mation confidential sources-has a different talking to his client about the reles ance developed in investigation or inspection:
[
basis. Individuals sornetimes present of the infermation and how to respund 1 Established board notification r
safety concerns to the NRC only after to it, even under e protective order.
procedures should be used by staff or 01 i
The Commission believes that the to determine whether information in bemp assured that the:r individual.
boards. using the procedures established their possesrion is patentir.!!y reles ant identity will be kept confidential. This daire for confidentially may arise for a m this Policy Statement. can resolve and material to a pending adjudicatory number of reasons. meluding the most potential disclosure conflicts once proceeding
- The general rule is that all i
possibility of harassment and they have been adused of the nature of information warranting disclosure to the retaliation. Confdential sources are a the mformation ms olved. the status of boards and parties.includmg I
valuable asset to NRC inspections and the inspection or investigatian and the ido.mation that is the subject of imestigations. Re: easing names to the projected time for its completion. In ongoing im est Fations or inspections, p;rties in an adjudication after many of the cases when the procedures should be disclosed.except as provided prom:smg confidentially to sources m this Policy Statement are triggered by herein' w:uld be detrimental to the NRC's a concern for premature public
- 2. When staff or 01 belies es that it crerall inspection and investigation disclosure,it may be possible for boards has a duty in a particular case to ectinties because other individuals may to provide for the timely consideration provide an adjudicatory board with be reluctant to b-ing information to the of relevant matttrs dern ed from information concerning an inspection or NRC. Hown e. the need to protect investigations and inspections through investigation, or when a board requests confidential sources does not end when the deferral or rescheduling ofissues for such information. staff or 01 should the investigation or inspection is hearing. In other instances. the boards provide the information to the board and completed and evaluated fur possible may be able to resche the conflict by parities unless it belies es that enforcement action.
placing limitations on the scope of unrestricted disclosure would prejudice By this Policy Statement, the disclosure to the parties. or by usmg an egoing inspection or im estiFation.
u Commission is not attempting to resolve protective orders.
or reveal confidential sources. !! staff or the conflict that may arise in each case The Commission wishes to emphasize 01 behes es unrestricted disclosure between the duty to disclose that these procedures do not abrogate information to the boards and parties, the w ell-established principle of s wh1, th2e state rent rerers anh to st.rr er.d at I
c.nd the need to protect that information adm:rtistrative law that a board mcy not who a e the cwr..zat.e.s ptry.ty imchei the cr its source.The reselu'. ion of actual use et parte information presented m
,,c, ment.:t: str4 to.n> oe*r erraes of the conflicts must be decided on the merits ccmera in making licensing decisions.
Cwminen m kh m) tme it.c p'otdem.
L.
r ErI
36034 I'ed:rd R{ ggt;r / Vol. 49. NJ.179 / Thursdty. Septtmber 13. 1984 / N:tices would have these ads erse results. it brief shall be keptin camero to the pennsylvania.The license provides, should propose to the board and parties extent necessary to protect the purposes among other things, that it is subject to that the information be disclosed under of non-disclosure.
all rules. regulations and Orders of the suitable protective orders and other The Commission recognizes that no Nuclear Regulatory Commission (the restrictions, unless such restricted other party may be in a position Commission) now and hereafterin disclosure would also dsfeat the effectively to respond to staff or Ors effect.
purpose behind non-disclerure. If staff brief because the proceedings have been cr O! believes that any disclosure.
conducted in comera. However, in those gy however restricted, would defeat the purpose behind non-disclosure.it shall cases where another party feels that it is On November 19.1980 the in a position to file a brief. it may do so Commission published a revised section provide the board with an explanation within seven days after staff or 01 files to CFR 50 48 and a new Appendix R to d the basis ofits concern about its brief with the Commission.
10 CFR 50 regarding Ere protection disclosure and present the information
- 3. Staff or 01 shall notify the board features of nuclear power plants (45 TR to the board, in ecmera, without other and, as appropriate, the Commission, if 76602). The revised section 50.48 and parties precent. A verbatim transcript of the objection to disclosure to the parties Appendix R became effective on the in comero proceeding will be made.*
of previous!y withheld information, or February 17.1981.Section III of All parties should be advised by the any portion ofit. is withdrawn. Unless Appendix R contains fifteen board of the conduct and purpose of the the Commission has directed otherwise.
subsections. lettered A thrnugh O each in ccmera proceeding but should not be such information-with the exception of of which specifies requirements for a informed of the substance of the the identities of confidential sources-particular aspect of the fire protection information presented. lf, after sut? in may then be disclosed without further features at a nuclear power p! ant. One camera presentation, a board finds that Commission order.
disclosure to other parties under of those fifteen subsections.IIIG is the 4.When a board or the Commission subject of this exemption.
protectae order or otherwise is required (e.q.. wit! holding information maY determines that information concerning Subsection III.G specifies detailed prejudite one or more parhes or a pending investigation or inspection requirements for fire protection of the jeopardize timely completion of the should not be disclosed to the parties.
equipment used for safe shutdown by the record of anyin camera proceeding means of separation and barriers proceedings, or the board disagrees that conducted sha!! be deemed sealed (Ill.G.2).If the requirements for release will prejudice the insestiga tion).
it shall notify staff or 01 ofits intent to pending further order.That record will separation and barriers cannot be met in crder disclosure, specifying the be ordered included in the public record an area, alternative safe shutdown information to be provided, the terms of of the adjudicatory proceedmg upon capability. independent of that area and any protective order proposed and the completion of the inspection or equipment in that area is required basis for its conclusion that prompt investigation, or upon public disclosure (III.G.3).
disclosure is required. The staff or 01 of the information invuh ed, whiches er In response to previous requests from shall provide the board within a is earlier, subject to any privileges that the licensee, the Commission granted an r:asonable period of time, to be set by may validly be claimed under the exemption to requirements of subsection the board. a statement of objections or Commission's regulations, including 111 G snd III L on hfarch 14.1983. By concurrence. lf the board disagrees with protection of the identify of a letter dated December 16.1983 and cny objection and the disagreement confidential source. Only ths supplemented by letter dated hlay 30.
Commission can order releast of the 19S4. Duquesne Light Company p o pt! cert f th record tl e identify of a conhdential sourc t requested additional exemptions from camera' proceeding to the Commission Dated at Washington. D C. this rt s day of the requirements of Subsection I!!.G of for resch; tion of the disclosure dispute.
September.1964.
Appendix R.
and so inform the other parties. Any Nuclear Regulatory Commission.
III licensing board decision to order Samuel 1. chia.
disclosure of the identify of a Secnetary of the Commission.
We have reviewed the licensee's confidential source shall be certified i exertption regt.ests and evaluation of the Commission foi review regardless of A e N' N **5'"4 these requests is as follows:
ses coot n=4was whether 01 and staff concur in the disclosure.' The boards decision shall L FixedSuppression andDetect>.on Systems -
be sta3 cd pending a Commission
[ Docket No. 50-334) g o
io e a cons s of e Duquesne Light Co., et al.(Beaver is requested from Section !!! G.3 to the transc ript, the boards Notice ofintent to Va"cy Power Station Unit No.1);
extent it requires fised suppression and
- require disclosure and the objections of Exemption detection to be provided th oughout a Staff or OL Staff or 01 may file a brief fire area for which alternative shutdcwn 3
with the Commission within ten days of has been provided:
filing a statement of objections with the The Duquesne Light Company. Ohio Primary Auxiliary Building (PA-1A),
board.The record before the Edison Company and Pennsylvania Elev.768 C:mmission, including staff or Ors Power Compan3 (the licensees), are the holder of Facihty Operating License No.
Control Room HVAC Equ!; ment Room
. Nothms :n this st temen prohibits it.fr on or DpR-66 which authorizes operation of (CR-2). Elev. 713 from stanns informanon.
the Beaver \\ a!!ey Power Station. Unit Emergency Switchgent Rooms (ES-1 &
- The commm. ion has decided to renew any No.1 (the facility) at steady-state power 2).Elev.n3 licinsmg bosrd decision ordenng disclosure of the jeyg]g not jn excess of 26$2 megawatte Process Instrument Room (CR-4). Elev.
adentafy of a confidentialsou're because of the
.n ed thermal.The facility is a pressurized M3 2,S',%'j,'h',ccm g,c
,,n c
, g nu er water reactor (PWR) located at the Communications Equipr,ent & Relay confidenu.1.ource.
licensee's site in Beaver County, Panel Room (CR-3). Dev. 713