ML20055D532

Advises That Commission,W/All Commisioners Agreeing,Approved Proposed Rev to 10CFR2,Subpart B Re Rev to Rules of Practice Subj to Encl Mods

ML20055D532
Person / Time
Issue date:	06/07/1990
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
REF-10CFR9.7 NUDOCS 9007090064
Download: ML20055D532 (3)

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UNITED 5TATES

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NUCLEAR REGULATORY COMMISSION 5

E W ASHIN GTON. O.C. 20556 j RELEASED TO THE PDR

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o MEMORANDUM-FOR:

William C.

Parlar, General Counsel Office of Genera Counsel FROM:

amuel J. Chilk S

ary

SUBJECT:

SECY-90-074A - REVISION TO' RULES OF PRACTICE (10 C.F.R.

PART 2, SUBPART B)

This is to advise you that the Commission (with all Commissioners agreeing) has approved the proposed revision to 10 CFR Part 2, Subpart B subject to the attached modifications.

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The Federal Register Notice should be revised as noted, forwarded to the Regulatory Publications Branch, ADM for review I

to assure consistency.with the requirements of the-Federal.

i Register, and forwarded to SECY for signature and publication.

(OGC)

(SECY Suspense:- 6/29/90)

The Cognizant Congressional Committees should be notified of i

the publication.

(OCA should assure the letters-are addressed:

to the appropriate members in light'of recent Committee assignment charges.)

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Attachment:

I As stated cc:

Chairman Carr Commissioner Roberts Commissioner Rogers Commissioner Curtiss

!l Commissioner Remick EDO GPA ASLBP ASLAP i

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'l NOTE:

TO BE MADE PUBLICLY AVAILABLE WHEN THE FEDERAL REGISTER NOTICE IS PUBLISHED.

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c challenges to be made at the outset on the need for immediate effectiveness.

Such' a challenga can be initiated by 'a motion by the recipient of the order -

to set aside the imediate effectiveness of the order.

A motion to set aside.imediate effectiveness must be based on one-or I

both of the following grounds: 'the willful misconduct charged is unfounded or the public healthresafety or. interest does not require the. order to be*'

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

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affidavits providing the factual basis for the request.

The added provision also specifies that a motion to set aside the

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-imediate effectiveness of an order will be decided prorrptly by the presiding officer (an atomic safety and licensing board-or an administrative law judge as designated by the Comission) before the presiding of ficer takes up any other matter not necessary to the resolution of that request.

sherf hme. Pen 46 To assure prompt decision, the provision establishes q u ti:=4for action by the parties as well as by the presiding-officer. Lit is expected that the presiding officer normally wili decide the question of'.immediate effectiveness solely on the basis of the order and other filings in the record. The presiding of ficer may call for oral argument. However,. an-evidentiary hearing is to be held only it the presiding officer finds. the record is inadequate to reach a proper decision on imediate:ef f ectiveness.

buch a situation is expected to occur only rarely.

In deciding the question of 1 mediate effectiveness under section 2.202_.

'I as proposed herein, the presiding officer will apply an adequate evidence.

standard. This standard is analogous to the evidence necessary to fino i

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O' Tk interest is sufficient to sustain the imme lateWR ve) ness 0FTWorder.i A twd yg

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r This standard does not require evidence by persons with first hand knowleoge kg of the facss,"# !! ;..,. ; U.n ~.M M nWnd 00 i Mi 4.'"::t T hW were S::r' ;7 Nor does it call for a balancing of evidence between that provide ggg by the NRC staff and that provided by the person seeking to set aside It ') V i'tl mwedytt imediate effectiveness.

It is het a preponderance of the evidence test. fil m.Jigt Rather, if the staff's evidence is sufficient to cause a person of p

reasonable caution to believe that t Itc7t's%p'e'rYIoNIie presiding officer is requirec to uphold the immediate eff6ctiveness of the order. In this regard, the presiding officer must view the evidence presented in a light niost favorable to the st6ff and resolve all inferences it the steff's favor.

he Comission intends that a motion to set aside the immediate effectiveress of an order will be the only 6.;chanism for challenging imediate effectiveness. In the circumstance, a presiding officer will not entertain any motion to stay the istinediate effe:tb;er.ess of an order; nor will a presiding officer issue sua sponte such a stay,.

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t. omission expects thega$h Hse,Tikmd eside imme iate ef ectiveness will throd kwd's iin nukah shortenst WK motion to se

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be d e within fifteen 16) days of the date P t i e e a Jt P ) JIM E Yj d % ?' 7' g(,i).'" ^ M rs e p t

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Q t. 1 o C F ft N 'It g ny,jN(Sog officer's order uphciding the imediate effectiveness of an 1

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order will'cotistitute the final agency action on immediate effectiviness. A presiding officer's order setting aside immediate effectiveness will be o

referred protrptly to the Comenission for review and will not be effective pending further order of the Comission.

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