ML20055C475
| ML20055C475 | |
| Person / Time | |
|---|---|
| Issue date: | 05/10/1990 |
| From: | Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| FRN-55FR27645, TASK-RINV, TASK-SE AD60-1-10, SECY-90-074A, SECY-90-74A, NUDOCS 9005140008 | |
| Download: ML20055C475 (28) | |
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................indis RULEMAKING ISSUE (Notation Vote)
May 10, 1990 SECY-90-074A EDI:
The Commissioners From:
William C.
Parler General Counsel Subiect:
REVISION TO RULES OF PRACTICE (10 C.F.R.
PART 2,
SUBPART B)
Purpose:
To obtain Commission approval for changes to the Rules of Dractice to provide for (1) expedited hearings in connection with immediately effective orders, (2) challenges to the immediate effectiveness of such orders, and (3) delays in the conduct of such hearings when necessary, e.g.,
to allow the Department of Justice to complete criminal investigation of the circumstances giving rise to the subject order.
Backe:round :
In SECY-89-321, we proposed revisions to the Commission's procedures for issuing orders (10 CFR Part 2, Subpart B).
The proposed revisions essentially were designed:
(1) to amend 10 C.F.R.
$$ 2.202 and 2.204 to put procedural mechanism in place for the Commission to issue orders, not only to licensees, but also to persons not licensed by the commission but who are otherwise subject to the commission's jurisdiction; and (2) to make clear that hearing rights attach only to orders and not to "show cause" orders that demand information only.
Subsequent to the Commission's approval of SECY-89-321 (with suggested changes) but before the
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designated date for publication of that proposed rule in the Federal Register, we submitted to the Commission, in SECY-90-074, a proposal for further changes to section 2.202.
These changes were designed to establish procedures, on the one hand, for the expeditious conduct of hearings involving immediately effective orders, including special procedures for disposing of challenges to the immediate effectiveness of orders, and, on the other, for delay in the merits nearing on such orders under certain circumstances, e.g. when a need for further investigation by the.NRC, or by the Department of Justico for possible criminal
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violation, warrants holding the adjudicatory proceeding in-abeyance.
Developments in several enforcement proceedings before the Licensing and Appeal Boards (e.g., Safety Liaht and rinlav) suggested the need for inclusion of such provisions in the rule dealing with immediately effective orders.
While we had originally hoped that the changes proposed in SECY-90-074 would receive Commission approval in time to be published in the Federal Register with the changes proposed in SECY-89-321 as a consolidated proposed rule, comments' submitted by the chairmen of the Licensing and Appeal Panels on the SECY-90-074 proposed changes made it apparent that additional explanatory text, as well as certain refinements to those changes, would be in order. As a consequence, the rule change proposed in SECY-89-321 was published separately in accordance with the Staff Requirements Memorandum on SECY-89-321.
This supplement to SECY-90-074 addresses the comments of the panel chairmen.
Discussion:
SECY-90-074 proposed essentially three additions to the rule changes proposed in subpart B by SECY-89-321.
The additions, which pertained to immediately effective orders, consisted of changes to section 2.202 to provide:
(1) for the expeditious conduct of hearings involving immediately effective orders, (2) special provisions for dealing with challenges to the immediate effectiveness of such orders, and (3) delays
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in the conduct of the merits proceeding on such orders in certain circumstances. The first and third of these proposed rule changes did not evoke any comments from the panel chairmen.
Both chairmen, however, l
raised questions concerning aspects of the second proposed rule change.
SECY-90-074 proposed that any challenge to j
the immediate effectiveness of an order would have to be disposed of on an accelerated basis, and set a target of 15 days.
In addition, it proposed the establishment of an
" adequate evidence" test to determine at the outset whether sufficient grounds existed to support immediate effectiveness.
Both chairmen, however, disagreed with the practicability of the 15 day limit.
7 Additionally, both chairmen expressed doubt over the workability of the adequate evidence test in certain respects.
We consider these comments in order.
In their comments on the 15-day period, both panel chairmen explained tnct the times specified in the existing procedural rules for filing of motions and responses would consume most, if not a?,1, of the 15-day period.
In addition, the need in some cases to resolve antecedent questions of standing or jurisdiction would render meeting that time period in those cases exceedingly difficult, if not impossible.
When we selected the 15-day period for resolving challenges to immediate effectiveness, we realized that the times normally allowed by the existing procedural rules for the filing of the various submissions would make achievement of that 1
objective unrealistic.
We expected, however,-
l that the presiding officers would interpret l
the clear expression in the proposed rule for expedition as a direction to exercise their broad powers to shorten those periods as necessary.
Both licensing and appeal boards have in the past shortened filing times and ordered the use of rapid delivery means for service of papers when circumstances called i
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for such action.
We believed it was better to leave the rule general in this respect to allow presiding officers to adjust to the circumstances of each case. We also recognized that there could be instances, albeit infrequent, in which questions such as those of standing or jurisdiction would have to be resolved beforehand as well, adding to the time problem.
Thus, we set the 15-day period not as an absolute requirement in the rule itself but in the explanatory section as a strong expression of the Commission's intent that the mandate for rapid resolution of any challenge to immediate effectiveness be carried out by the presiding officers by judicious use of the powere conferred them by the Rules of Practice.
In view of the comments of the panel chairmen, however, we have revised the proposed rule to specify some of these details in the rule itself.
We have alno expanded on the explanation of these proposed a
rule changes.
The rule now establishes the precise time when a. motion to set aside the immediate effectiveness of an order may be filed and sets a five day period for a response.
In addition, it specifically directs presiding officers to exercise their powers to regulate proceedings to set shortened times for various filings.
This includes specifying use of rapid means of service of papers.
The proposed rule also directs that a motion to set aside immediate effectiveness will be decided expeditiously before other matters not required to be decided prior to a decision on the motion.
Thus, when a question of jurisdiction can be deferred for later resolution, it need not hold up disposition of the motion.
Finally, the l
15-day period, set out (as before) in the explanatory section rather than in the rule itself, remains a goal and not an absolute requirement that must be met.
Turning to the comments on the adequate l
evidence standard for deciding the question 1
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of immediate effectiveness, it is significant that neither panel chairman questioned the legal adequacy of the test.
Rather, their comments essentially were concerned with the relative merits of the adequate evidence test and the traditional test for determining stay requests.
Their principal arguments against the adequate evidence test were thatt the test is novel to NRC practice and is therefore susceptible to causing greater delay at least during a learning period; it does not provide for balancing of the public and private interests by including in its equation the factor of irreparable harm to the recipient of the order (one of the elements of the stay criteria).
In drafting the proposed rule, our overriding concern was the protection of the public health, safety, and interest.
With that in mind, we searched for a test that would preserve to the maximum the Comaission's flexibility in deciding what actions to order in any given situation and at the same time would provide the subject of an-immediately effective order protection against having to comply with unwarranted action prior to a hearing on the order.
We considered the stay criteria but concluded that, as the panel chairmen themselves recognized, all four elements of the criteria are not suitable to the situation at hand.1 Moreover, it was our view that those criteria would bring into the decision-making equation factors that, at bottom, are not relevant to a determination of how best to protect the public health, safety, or interest.
Where action must be taken to protect the public health, safety or interest, possible injury to private interest 1These factors are:
(1)
Whether the moving party has made a strong showing that it is likely to prevail on the merits; (2)
Whether the party will be irreparably injured unless a stay is granted; (3)
Whether the granting of a stay would harm other parties; and (4) Where the public interest lies.
10 C.F.R. 5 2.788.
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and other like factors cannot be allowed to interfere with the government's ability to deal appropriately with the situation.
In contrast, the adequate evidence test considers only the situation at hand that calls for the order involved.
At the same time it provides protection against inadequately based decisions by the staff for making orders immediately effective by requiring it to make a reasonable demonstration at the threshold stage of a proceeding, upon challenge, that its decision is warranted. If the evidence is adequate, the order _ remains immediately effective while the proceeding continues.
The burden is on the staff to show adequate evidence.
No balancing of ;'blic and private interests is required.
While novel to NRC practice, the concept of adequate evidence is not.new to civil proceedings.
It has been utilized in connection with government procurement actions.
In this regard, its use has received judicial endorsement where an agency has applied it.to disbar, on evidence of fraud, a government contractor from bidding on future government contracts prior to a hearing. See e.g.,
Transco security Inc.. v.
Freeman, 639 F.
2d 318 (6th Cir. 1981), cert.
denied, 454 U.S. 820 (1981).
The rule proposed herein has also been revised in other respects in response to other comments made by the panel chairmen.
For example, the rule has been revised to specify the procedure governing the filing of appeals from presiding officer decisions on immediate effectiveness.
The proposed rule now specifies that a presiding officer's decision upholding immediate effectiveness will be final agency action on immediate j
effectiveness.
A decision setting aside immediate effectiveness, however, must be referred to the Commission itself and does not take effect pending further order of the Commission.
The purpose'of these provisions I
is to minimize internal agency review of decisions on immediate effectiveness consistent with maintaining the Commission's 1
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ability to take necessary action to protect the public health, safety and interest.
The proposed rule also includes other revisions of a clarifying nature.
Recommendation That the Commissions 1.
Acorove the revision to 10 C.F.R.
$ 2.202 as proposed herein.
(Enclosure A.)
2.
lip _te i
a.
That the rule proposed herein will be published in the Federh1 Register as a proposed rule.
Assuming commission approval.of the changes proposed herein, these changes and those already approved by the Commission in SECY-89-321 will be consolidated when published in the Federal Register as a final rule.
b.
That the cognizant Congressional Committees will be notified of the publication of this proposed rule by a letter such as that attached.
(Enclosure B.)
Wh Mp William C.
Parler l'
General Counsel
Enclosures:
A.
Federal Register Draft B.
Draft Letter
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commissioners' comments or consent should be provided directly to the Office of the Secretary by COB Wednesday, May 23, 1990.
Commission Staff Office comments, if any, should bensubmitted to_the Commissioners NLT Friday, May 18, 1990, with an infor-mation_ copy.to.the Office of the Secretary.
If the paper is
'loffruch a nature.that.it requires additional time for analytical review and comment, the Commissioners and the Secretaraiat should
- be apprised of when. comments may be expected.
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L Enclosure A NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 Revisions to Procedures To 1ssue Orders AGENCY:
Nuclear Regulatory Commission.
ACTION:
Proposed rule.
SUMMARY
- The Nuclear Regulatory Commission (hRC) proposes to revise its rule governing orders to provide f or the expeditious consideration of challenges to orders that are made immediately effective. The proposed amendaents specifically allow challenges to the immediate effectiveness of an order to be made at the outset of a proceeding and provide procedures for the expedited consideration and disposition of such challenges. The proposed amendments also require that challenges to the merits of an immediately effective order be heard expeditiously, except where good cause exists for delay.
DATES:
The comment period expires on (60 days after publication in the Federal Register). Comments received af ter 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 er before this date.
ADDRESSES:
Send written comments to the Secretary of the Connission, U.S. Nuclear Regulatory Commission, Washington, UC 20555, Attention:
Docketing and Service Eranch. Comments may also be delivered to the Office of the Secretary, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, between 7:30 a.m. and 4:15 p.m.
i weekdays. Copies of any comments received may be examined ano copied f or a f
tee at the NRC Public Document Room, 2120 L Street, N.W., Washington, DC between the hours of 7:45 a.m. and 4: 15 p.m. weekdays.
FOR FURTHER INFORMATION CONTACT: John Cho; Office of the General Counsel, l
U.S. Nuclear Regulatory Counission, Washington. 0.C.
20555, Telephone:
301-492-lb8b.
SUPPLEMENTARY INFORMATION:
1 Background
On April 3, 1990, the Commission published in the Federal Register, 55 FR 12370, proposed changes to 10 CFR Part 2, Subpart B.
The proposed changes, if adopted, wculd make clear that the provisions governing the issuance of croers include within their scope all persons subject to the jurisdiction of the Commission, licensees as well as non-licensees.
As it exists now, except for orders imposing civil penalties, subpart D addresses issuance of orders only'to licensees.
Other changes were also proposed to clarify that hearing rights attach only to orders, in contrast to demands to show cause; e.g., demands for explanation or other information. Upon further consideration, the Commission has decided that additional changes should be madt to subpart B. These aeditional changes pertain to orders that are made imniediately effuctive.
Under current subpart D, as well as under the April 3 proposed changes, orders can be made immediately effective when required to protect the public 2
health, saf ety, or interest or when there has been willful misconduct.
l There are no provisions, however, under the existing rule or under the proposed changes, that specifically require that challenges to such orders, including challenges to the immediate effectiveness of such orders, be heard expeditiously. The revisions proposed herein address this and other related matters.
As the rule is structured, currently and under the April 3 proposal, i
the recipient of an order may answer it by consenting to the order or by challenging it by demanding a hearing. Where the hearing demand concerns an order that is immediately effective, the person or persons to whom the order is issued are nevertheless required to comply with its provisions pending f
the completion of the hearing.
The imposition of this requirenient is i
necessary to enable the Commission to carry out its responsibility for protecting the public health, safety and interest.
The public health, i
saf ety and interest must be held paramount over any conflicting private interests.
At the same time, fairness considerations dictate that the interests of the recipients be accoinnodated, to the extent it can be done without impediment to the Commission's exercise of its responsibility.
To this end, the Commission is proposing further changes to section 2.202, in addition to those published on April 3.
The Commission believes that a proper balance between the private and governrrertal interests involved is achieved by a hearing cos.lucted on an accelerated basis. The revisions proposed herein add a provisan to the earlier proposed section 2.202 directing that any requested hearing on an immediately effective order will be conducted expeditiously, giving due consiceration to the rights of the parties. Another added provision allows 3
challenges to be made at the outset on the need for immediate effectiveness.
Such a challenge can be initiated by a motion by the recipient of the order i
i to set aside the immediate effectiveness of the order.
A motion to set eside immediate effectiveness must be based on one or j
both of the following grounds:
the willful misconduct charged is unfounded or the public health, safety or interest does not require the order to be I
made immediately effective. No other ground for challenge is permitted inasmuch as no other ground is relevant. The motion must set out specifically its supporting reasons and must be accompanied by any necessary affidavits providing the factual basis for the request.
The added provision also specifies that a motion to set aside the immediate effectiveness of an order will be decided promptly by the presiding officer (an atomic safety and licensing bobrd or an administrative 1
law judge as designated by the Comission) before the presiding of ficer takes up any other matter not necessary to the rtsolution of that request.
To assure prompt decision, the provision establishes rapid times for action by the parties as well as by the presiding officer.
It is expected that the presiding officer normally will decide the question of 1mmediate effectiveness solely on the basis of the order and other iilings in the recoro. The presiding officer may cell for oral argument. However, en evidentiary hearing is to be held only it the presiding of ficer finds the e
record is ine.dequate to reach a proper cecision on immediate effectiveness, such a situation is expected to occur only rarely.
In deciding the question of immediate effectiveness under section 2.202 as proposed herein, the presiding officer will apply an adequate evidence standard. This standard is analogous to the evioence necessary to fino 4
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probable cause to make an arrest, to obtain a search warrant, or to obtain a preliminary hearing on a criminal inatter.
In a criminal enforcement context, "[pJrobable cause is deemed to exist where facts and circumstances within aftient's knowledge, and of which he has reasonably trustworthy information, are sof t cient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed."
l'nitedStatesv. Hill,500T.2d315,317(5thCir.1974).
In the context of the proposed rule, adequate evidence is deemed to exist when facts and circumstances within the NFC staff's knowledge of which it has reasonably trustworthy information are sufficient to warrant a person of reasonable ceution to believe that the charges of willful misconduct, if any, contained In the order are true and/or that the action specified in the order is necessary to protect the public health, safety or interest.
The Commission believes that the " probable cause" standard, adapted as the adequate evidence standard for use in the Commission's proceedings involving challenges to the immediate effectiveness of orders, serves the public interest. Con, mission orders of ten oeal with willful misconduct or other circumstances thet threaten harm to the public health, safety or interest.
In sore instances, the threat may be iminent.
In other instances, while no violation may be involved, information available to the Commission may indicate the need for certain immediate action to provide reasonable assurance that the public health, safety, and interest will be protected.
In all cases, it is inperative that the Comission be able to take whatever measures that may be necessery to protect the public health, safety, and interest. The adequate evidence standard for deciding questions of immedlete effectiveness entbles the Comission to proceed with necessary
protective action on the basis of reasonably trustworthy information without i
having to await the completion of a tuli hearing on the merits of the order.
'At the same time, it provides the af fected parties a measure of protection against' forced compliance, before a hearing, with an order that is insubstant1611y founded. The adequate evidence standard has been applied to allow an agency to suspend persons f rom bidding on government contracts (and thus allowing the suspension to remain in effect f or a reasonable period without a hearing), where significant governmental interests are involveo and the risk of erroneous deprivation of an individual's interest is slight.
B See Transco Security Inc. v. Freeman, 639 f.2d 318 (6th Cir.1981), cert.
denied, 454 U.S. 820 (1981); Horne Brothers. Inc. v. Laird, 463 f.2d 1268, (D.C.Cir.'t' lhose same considerations support adoption of the r cace rule here.
adequate e' The following example illustrates how the Commission intends that the adequate evidence standard will be applied. A common type of order directs a licensee to take or desist from taking certain action because of an asserted willtul violation of a license or regulation. An affidavit by a cognizant NRC of ficial that sets forth f 6 cts sufficient to lead a reasonably cautious persor, to believe that the asserted willful violation did occur is sutticient to sustain the immeolate effectiveness of the order. As another example, an order directs a licensee to take certain action because the Commission is in possession of information indicating that the ordered action is necessary to protect the public health, safety or interest.
Similarly, an affidavit by a cognizant NRC ottic1al that sets forth sufficient informat1cn to lead a reasonably cautious person to believe that the ordered ection is necessary to protect the public health, saf ety, or 6
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interest is sufficient to $Ust61n the immediate effectiveness of the order.
This standard doec not require evidence by persons with first hand knowledge i
of the facts of the sort that would be required at the full adjudicatory hearing. Nor does it call for a balancing of evidence between that provided by the NRC staf f and that provided by the person seeking to set aside immediate effectiveness.
It is not a preponderance of the evidence test.
Rather, if the staff's evidence is sufficient to cause a person of reasonable caution to believe that the orcer is properly founded, the presiding officer is required to uphold the immediate effectiveness of the order.
In this regard, the presiding officer must view the evidence presented in a light most f avorable to the staff and resnive all inferences in the staff's favor.
The Commission intends that a motion to set aside the immediate effectiveress of an order will be the only mechanism for challenging imediate effectiveness. In the circumstance, a presiding officer will not entertain any motion to stay the irrmediate effectiver.ess of an order; nor will e presiding officer issue sua sponte such a stay.
In general, the Commission expects that a motion to set aside immediate effectiveness will be decided within fifteen (15) days of the date of the Commission order designating the time and place of hearing.
l A presiding officer's order uphciding the imediate effectiveness of an order will constitute the final agency action on immediate effectiveness. A presiding officer's order setting aside immediate effectiveness will be referred prorrptly to the Commission for review and will not be effective pending furth nrder of the Comission.
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i The Commission's authority under section 2.202 to issue immediately effective orders includes the authority to issue amendatory or supplemental orders that are immediately effective. Section 2.202 will remain the same in this respect.
If such an order is issued by the staff after a hearing has been ordered, the licensee or other person affected may move that the immediate effectiveness of the amendatory or supplemental order be set aside pending completion of the hearing on the merits. Such a motion will be given expedited consideration by the presiding officer and decided on the basis described above.
Notwithstanding the f actors that call for expedited resolution of disputes arising out of immediately effective orders, there may be instances
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when overriding public interest considerations require delay in the proceeding on the merits. The revisions proposed herein to the earlier proposed section 2.202 include a provision allowing reasonable delays in the conduct of the proceedings on the merits where good cause exists. As an example of the kind of good cause warranting delay, there may be a need for further investipation by the Commission or the U.S. Department of Justice.
In such instances, to allow the Commission to investigate further into the natter or the Department of Justice to undertake criminal investigation without prejudice to possible prosecution of any dis: overed crime, it may be necessary to hold the hearing on the immediately effective order in abeyonce for a reasonable perind of time. The proposed revision to section 2.202 allows the Commission, either on motion by the staff or any other party, to delay the hearing in such cases, for such periods as may be appropriate in the circumstences.
The proposed revision, however, does not authorize delay in the proceeding on a motion to set esiae immediate effectiveness. The 8
9 length of a delay in the proceeding on the merits should be based on a f
balance of the competing interests involved. See Loganv.ZimmermanBrushCo.,455U.S.422,434(1982).
Such a motion will i
be expeditiously heard and decided.
Environmental Impact:
Categorical Exclusion The NRC has determined that this proposed rule is the type of action describedincategoricalexclusion10CFR651.22(c)(1). Therefore neither an environmental impact statement nor en environmental assessment has been f
preparea for this proposed rule.
Paperwork Reduction Act Statement This proposeo rule contains no information collection requirements and therefore is not subject to the requirer,ents of the Paperwork Reduction Act of-1980 (44 U.S.C. 3501 et seq.).
Regulatory Analysis The existing regulations in 10 CFR i 2.202 authorize the NRC, through its designated otticials, to institute a proceeding to modify, suspend, or revote 6 license by service of an order to show cause on a licensee. The regulations, as currently written, do not provide procedures for the NRC to take direct action against unlicensed persons whose willful misconduct causes a licensee to violate Commission requirements or places in question reasonable assurance of adequate protection of the public health and safety, 9
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although such action is author 12ad by the Atomic Energy Act of 1954, as a'nended.
s On April 3,1990 (55 FR 1234), the Comission proposed amendments to r
make the Commission's Rules of Practice more consistent with the Commission's existing statutory aut'iority and to provide the Commission with the appropriate procedural framework to take action, in appropriate cases.
in order to protect the public health and safety. The proposed amendinents also were to make clear the distinctio'1 between orders - e.g., directions to take or desist f rom taking certain actions - and demanas for information.
Only orders were proposed to be made Imrudiately effective and subject to hearing, consistent with existing regulations. Neither the existing regulations nor the proposed emendments, however, contained provisions requiring that any such hearing be conducted expeditiously.
The amendments proposed by this rulemaking supplement the eerlier proposal by adding provisions directing the expeditious conduct of any hearing on an immeciately effective order but allowing delays in the conduct of such hearings in certain circumstances where good caute for delay is shown, and establishing a separate, informal procedure for dealing rapidly with challenges to the immediate ettectiveness of such order.
The proposed rule constitutes the preferred course of action and the cost involved in its promulgation and application is necessary and appropriate. The foregoing discussion constitutes the regulatory analysis for this proposed rule.
Regulatory Flexibility Certification 10
i 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 on a substantial number of small entities.
The proposed rule establishes the procedural mechanism for dealing with orders that are made immediately effective. The proposed rule, by itself, does not impose any obligations on entities including any regulated entities l
that may f all within 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 Business Act, 15 U.S.C. 632, or within the Small Business Size Standards found in 13 CFR Part 121. Such obligations would not be created until an order is issued, at which time the person subject to the order would have a right to a hearing J
in accordance with the regulations, Backfit Analysis This proposed rule does not involve any new provisions which would impose backtits as defined in 10 CFR 6 50.109(a)(1).
Accordingly no backfit analysis pursuant to 10 CFR i 50.109(c) is required for this proposed rule.
4 List of Subjects in 10 CFR Part 2 l
Administrative practice and procedure, Antitrust, Cyproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear materiel, Waste treatment and disposal.
For the reasons set cut in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 11
1974, as amended, and 5 U.S.C. 553, the NRC is proposing to adopt the following amendments to 10 CFR Part 2.
Part 2 -- Rules of Practice for Domestic Licensing Proctedings 1.
The authority citation for Part 2 is revised to read as f ollows:
Authority:
Sees.161,181, 68 Stat. 948, 953, asamended(42U.S.C.
2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.
2241): sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
Sec. 2.101 elso issutd under secs. 53, 62,. 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, asamended(42U.S.C.2073,2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. L.97-475, 96 Stat. 2213, (42 U.S.C. 10134(t)); sec. 102, Pub. L.91-190, 83 Stat. 853 as amended (42 U.S.C. 4332); sec. 301, 88 Stet. 1248 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 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 1ssued under Pub. L.97-415, 96 Stat.2073(42U.S.C.2239). Sections 2.200-2.206 also issued under secs.
161b, i, o,162,186, 234, 68 Stat. 948-S51, 955, 83 Stat. 444, as amended (42 U.S.C. 2201(b)), (i), (o), 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C.5846). Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190,83 Stat.853,asamended(42U.S.C.4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554 Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557.
Section 2.764 and Tabic 1A of Appendix C are also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 61so issued under sec.103, 58 Stat.
12
1 a
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 amended (42 U.S.C. 2039).
r Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 90 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued undersec.189,68 Stat.955(42U.S.C.2239).
Appendix A also issued under sec. 6 Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135). Appendix B also issuedundersec.10, Pub.L.99-240,99 Stat.1842(42U.S.C.2021 bet seq.).
2.
Section 2.202 is revised to read as follows:
i 9 2.202 Order.
t (a) The Comission may institute a proceeding to modify, suspend, or revoke a license or to take such other action as may be proper by serving on the licensee or other person subject to the jurisdiction of the Commission an order that will:
(1) Allege the violations with which the licensee or other person subject to the Commission's jurisciction is charged, or the potentially hazardous conditions or other facts deemed to be sufficient ground for the proposed action, and specify the action proposed; 13
(2) Provide that the licensee or other person must file a written
)
answer to the order under oath or affirmation within twenty (20) days of its 1
date, or such other time as may be specified in the order; l
(3)
Inform the licensee or other person of his or her right, within j
twenty (20) deys of the date of the order, or such other time as may be specified in the order, to demand a hearing on all or part of the order, except in a case where the licensee or other person has consented in writing to the order; (4) Specify the issues for hearing; (5) State the effective date of the order, and (6) Provide, for stated reasons, that the proposed action be immediately effective, penoing further order, where the Commission finds that the public health, safety or interest so requires or that the violation or conduct causino the violation is willful, (b) The licensee or other person to whom the Commission has issued an order under subsection (a) must respond to the order by filing a written answer under oath or af tirmation. The answer shall specificilly admit or deny each allegation or charge made in the order, and shall set forth the matters of fact and lew cn which the licensee or other person relies, and, if the order is not consented to, the reasons as to why the order should not 14
have been issued. Exceptasprovidedin(d)below,theanswermayincludea demand for a hearing.
(c)(1)
ItLtheanswerdemands]ahearingisdemanded,theCommission will issue an order designating the time and place of hearing. If a hearing is demanded with respect to an immediately effective order, the hearing will be conducted expeditiously, giving due consideration to the rights of the parties.
(2) The licensee or other person to whom the Commission has issued an order may, in addition to demanding a hearing, move to set eside the immediate ettectiveness of the order. The niotion shall state with particularity the reasons why the immediate effectiveness of the order should be set aside and shall be accompanied by affidavits or other evidence relied on. The Commission staff sh611 respond within (5) days of the filing of the motion. The motion shall be decided by the presiding officer expeditiously before any other matter unnecessary to the disposition of the motion. The presiding officer shall exercise its powers to regulate the conduct of the proceeding, including reducing the times specified in subpart G for particular actions, to assure expeditious consideration and disposition of the motion. During the pendency of the motion or at any other tine, the presiding officer shall not stay the 1mmediate effectiveness of the order, either on its own motion, or upon motion of the licensee or other person. The presiding officer sheli uphold the immediate effectiveness of the order if it finas that there is adeouate evidence to support irriediate effectiveness.
15 1
l
An order uph'olding-immediate effectiveness will constitute the final agency action on immediate effectiveness. An order setting aside immediate effectiveness will be referred promptly to the Commission itself and will not be effective pending further order of the Consission.
(3) Except as provided in (E) above, the Commission may, on motion by the staft or any other party to the proceeding, wbre good cause exists, m,
celay the hear F y n the immediately effective order at any time for such periods as-are consistent with the due process rights of the licensee and other affected parties.
l (d) An answer may consent to the entry of an order in substantially the form proposed in the order with respect to all or some of the actions proposed in the order. The consent of the licensee or other person to whom the order has been issued to the entry of'a consent order shall constitute a waiver by the licensee or other person of a hearing, findings of fact end j
conclusions of law, and of all right to seek Commission and judicial review
- \\
or to contest the validity of the order in any forum as to those matters I
which have been consented to or agreed to or on which a hearing has not been requested. The consent order shall have the same force and effect as an order made after hearing by a presiding officer or the Commission, and shall be effective as provided in the order, j
16
l(e)
If.the order involves-the modification of a Part 50 licensee and is a backfit, the requirenents of i 50.109 of this chapter shall be-followed, unless the licensee has consented to-the action required.
Dated at Rockville, Maryland, this day of 1990.
For the Consnission 4
SAMUEL J. Chilk Secretary of the Consnission i
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o UNITED STATES
.' 8" I,,o NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20666
~q g.....,f Enclosure B The Honorable John B. Breaux, Chairman Subcomittee on Nuclear Regulation Comittee on Environment and Public Works United-States Senate
-Washington, DC 20510
Dear Mr. Chairman:
1 Enclosed for your information are copies of a proposed rule to be published in the F.ederal Register.
' On-April 3,1990, the Comission published in the Federal Register a proposed rule to revise the Comission's procedures in 10 C.F.R. Part 2, Subpart B, for issuing orders to include persons not licensed by the Comission.but who are otherwise subject to the Commission's jurisdiction.
The rulemaking was initiated to reflect more fully the Comission's existing statutory authority to issue orders then is presently the case, and to
- clarify the' types of Comission orders to which hearing rights attach.
The current rulemaking supplements the earlier proposed changes by proposing
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additional amendments to Subpart B.
These amendments are designed to expedite the conduct of hearings involving immediately effective orders.
Sincerely, H
William C. Parler General Counsel L
Enclosure:
As stated cc:- The Honorable Alan K. Simpson i
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