ML20056B459
| ML20056B459 | |
| Person / Time | |
|---|---|
| Issue date: | 08/21/1990 |
| From: | Lessler L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM) |
| Shared Package | |
| ML19336C343 | List: |
| References | |
| FRN-55FR27645, RULE-PR-2 AD60-1-01, AD60-1-1, NUDOCS 9008280310 | |
| Download: ML20056B459 (1) | |
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UNITED STATES 8
g NUCLEAR REGULATORY COMMISSION 5
- p W ASHINGTON, D. C. 20556
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August 21, 1990 MEMORANDUM FOR:
NUDOCS Document Control Desk P1 White Flint FROM:
Linda Lessler
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Office of the neral Counsel
SUBJECT:
DOCUMENTS COMPRISING REGULATORY HISTORY - AD60-1 The enclosed documents comprise the regulatory history of proposed rule 55 FR 27645, and have been separated for placement in the PDR and Central Files.
Documents 1 through 16 are to be placed in the PDR.
Documents 17 through 23 are to be placed in Central Files Only.
If there are any questions about these documents please feel free to contact ne on extension 21612.
Thank you for your assistance.
Enclosures:
l As stated l
i 9008200310 900021
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PDR PR 2 55FR2764D P?R
DOCKET NUMBER h S A*"/
l h, PROPOSED RULEN c2.>
fM (CSFR 27645) 00CKETED f
L7b904WfC NUCLEAR REGULATURY COMMISSION
% JJL -2 P7 :05 10 CFR Part 2 RIN 3150-AD60 Revisions to Procedures to issue Orders: Challenges to Orders that are made Tmediately Eff ective AGENCY:
Nuclear Regulatory Comission.
ACTION:
Proposed rule.
Sur@iANY:
The Nuclear Regulatory Comission (NRC) proposes to rev1se its regulations governing orders to pr6 vide for the expeditious constocrat1on of ch611enges to orders that are made imediately effective.
The proposed amendraents specifically allow challenges to the immeciate ef fectiveness of an orcer 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 reautre that challenges to the merits of an imediately eff ective order be heard expeditiously, except where good cause exists f or delay.
DATES:
The coment period expires on (60 days after publication in the Federal Register). 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 coments received on or before this date.
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c ADDRESSES:
Send written comments to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention:
Docketing and Service Branch. Comments mey also be delivered to the Office of the Secretary, U.S. Nuclear Regulatory Commission, One White Flint North, 115bb Rockville Pike, Rockville, Maryland, between /:45 am and 4:15 pm Federal Workdays. Copies of any comments received ray be examinea and copied f or a fee at the NRC Public Document Room, 2120 L Street, NW (Lower Level), Washington, DC between the hours et 7:45 am and 4:15 pm Federal Wo a kaays.
FOR FURTHER INFORMAL 10N CONTACT:
John Cno, Uttice of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC, 2Vd55, Telephone:
301-492-168b.
SUPPL.EMENTARY INFURMAT10k:
Background
1 i
On April 3, 1990 (bb tR 12370), the Commission published in the Federal Register proposed changes to 10 CFR Part 2 Subpart B.
Ine proposed changes, if adopted, would make clear that the provisions governing the issuance of orders include within their scope all persons subject to the jurisdiction of the Commission, licensees as well as non-licensees. As it ex1sts now, except for orders imposing civil penalties, subpart B addresses issuance of orders only to licensees. Other changes were also proposed to clarify that hehring rights attach only to orders, in contrast to demands to 2
9 show cause; e.g., demands for explanation or other information.
Upon turther consideration, the Con. mission has decided that additional changes shoulo be made to subpart B.
These additional changes pertain to orders that are made immediately effective.
Uncer current subpart B, as well as under the amendments proposed on April 3, orde, can be made immediately ettective when required to protect the public health, safety, or interest or when there has been willful n.isconduct.
There are no provisions, however, under the existing rule or under the proposed changes, that specifically require that challences to such orders, including challenges to the imnediate effectiveness of such orders, be heard expeditiously.
The revisions proposed herein address this and other related matters.
As the rule is structured, currently and unoer the April 3 proposal, the recipient of an order may answer 10 by consenting to the order or by challenging it by demanoing a hearing. Wrere the hearing demand concerns en order that is immediately effective, the pei son or persons to whom the order is issued are nevertheless requ1 red to comply with its provisions pending the co.npletion of the hearing.
The imposition of this requirement is necess6ry te enable the Commission to carry out its responsibility for protecting the public health, safety, and interest.
The public health, safety, 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 accommodated to the extent it can be done without impediment to the Commission's exercise of its responsibility. To 3
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i this end, the Comission is proposing further changes to i 2.202, in addition to those publisned on April 3.
The Commission believes that a proper balance between the private and governmental interests involved is achieved by a hearing conducted on an accelerated basis. The revisions proposed herein add a provision to the earlier proposed i 2.202 directing that c'y requesteo hearing on an imediately ef fective order will be conducted expeditiously, giving due consideration to the rights of the parties. Another added provision allows challenges to be made at the outset on the need for innediate effectiveness, ducn a challenge can be. initiated by a motion by the recipient of the orcer to set aside the immediate ef f ectiveness of the order.
A motion to set aside immeciate effectiveness must be based on one or both of the following grounds:
the w111tui misconduct charged 1s unfounded or the public nealth, safety or interest does not require the order to be mace imediately ef f ective.
No otner ground for challenge 1s permitted inasmuch as no other ground is relevant.
The motion must set rut a
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 otticer (an atomic safety and licensing board or an administrative law judge as designated by the Commission) before the presiding otticer takes up any other matter not necessary to the resolution of that request.
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4 To assure prompt decision, the provision establishes short time periods for bction by the parties es well as by the preslaing officer.
It is expected that the presiding officer normally will decide the question of immediate effectiveness solely on the basis of the orcer and other filings in the record.
The presiding officer may ecl1 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 immeGiete ettectiveness.
j Such a situation is expected to occur only rarely.
In dectoing the question of imn+ciata effectiveness under 9 2.202 as proposed herein, the presiding otticer will apply an adequate evidence standard.
Th1s standard is analogous to the evidence necessary to find probable cause to make an arrest, to obtain a search warrant, or to obtain a preliminary hearing on a crimin61 matter.
In a criminal enforcement context, "[p]robable cause is deemed to exist where facts and circumstances within affiant's knowledge, and of which he has reasen6bly trustworthy inf ormation, are suft1cient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed."
(United States v. Hill, 500 F.2d 315, 317 (5th Cir. 1974)).
In the context of the proposed rule, adequate evidence is deemed to exist when facts and circumstances within the NRC staff's knowledge, of which it has reasonably trustworthy information, are suft1cient to warrant a person of reasonable caution to believe that the charges of willful misconduct, it 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.
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l The Comission believes that the " probable cause" standard, adapted as the adequate evidence standarc for use in the Comission's proceedings i
involving challenges to the immediate ettectiveness of orders, serves the public interest. Commission orders of ten deal with willful misconduct or other circumstances that threaten harm to the public health, safety or Interest.
In some instances, the threat may be imminent.
in other instances, wnile ro violation may be involvec, 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 imperative that the Commission be able to take whatever measures that m6y be necessary to protect the public healtn, safety, and interest.
The adequate evidence standard f or deciding questions of immediate ettectiveness enables the Commission to proceed with necessary protective action on the basis of reasonably trustworthy information without having to await the completion of a full hearing on the nierits of the order.
At the same time, it provides the affected parties a measure of protection against forced compliance, before a hearing, with an order that is insubstantially foundea.
The adequate evidence stana rd has been applied to allow an agency to suspend persons from bidding on governmenc contracts (and thus allowing the suspension to remain in effect for a reasonaDie oeriod without a hearing), where significant governmental interests are involved and the risk of erroneous deprivation of an indiv1 dual's interest is slight.
l See Transco Security Inc. v. Freeman, 639 F.2d 318 (6th Cir. 1981), cert.
denied, 4b4 U.S. 820 (1981); Horne Brothers, Inc. v. Lairo, 463 F.2d 1268, (D.C. Cir. 1972). Those same considerations support adoption of the adequate evidence rule here.
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the f ollowing example illustrates how the Commission intends that the adequate evidence standard will be applied.
A tommon type of order directs a licensee to take or desist fr <m taking certain action because of an asserted willful violation of a license or regulation.
An affidavit by a cognizant NRC official that sets forth facts sutticient to lead a reasonably cauticus person to believe that the asserted willful violation did occur is sufficient to sustain the inmediate ettectiveness 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 official that sets f orth sufficient information to lead a reasonably cautious person to believe that the ordered action is necessary to protect the public health, safety, or interest is sufficient to sustain the immeoiete effectiveness of the order.
lhis standard does not require evidence by persons with first hand knowledge j
of the tacts.
Nor does it ca 11 tor a balancing of evidence between that provided by the NRC staff and that provided by the person seeking to set Y
aside immediate effectiveness.
It is not a preponderance of the evidence l
test. Rather,' It the stoff's evioence is sutticient to cause a person of reasonable caution to believe that the order is properly founded, that is, the conduct or activities of the person identified in the order present a public health, safety, or interest threat that requires immediate remedial action, the presiding officer is required to uphold the immeoiate effectiveness of the order.
In this regard, the presiding officer must view the evidence presented in a 11ght most favorable to the staff and resolve all interences in the staff's f avor.
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4 The burden of going forward on the immediate effectiveness issue is with the party who moves to set aside tne 1mmediate effectiveness provision.
The burden of persuasion on the approprie:cr, css of immediate effectiveness is on the NRC staff.
The Commission intends that a motion to set aside the immediate effectiveness of an order will be the only mechanism for challenging innediate effectiveness.
In the circumstance, a presidino otticer will not entertain any motion to stay the imped 1 ate effectiveness of an order; nor will a presiding officer issue sua sponte such a stay.
In general, the Commission expects that, through the licensing board's imposition of snortened response periods and expedited filing mechanisms, a motion to set aside immediate effectiveness will be decideo within titteen (15) days of the date the I: earing request and accompanying motion are referred to the presiding officer.
See 10 LFR 2.772(j).
A presiding officer's order upholding the immediate effectivness of an order will constitute the final agency action on 1mrediate effectiveness. A presiding otticer's order setting aside immediate effectiveness will be referred promptly to the Commission for review and will not be effective pending further order of the Commission.
The Commission's authority under i 2.202 to issue immediately ettective orders includes the authority to issue amendatory or supplemental orders that are inmediately effective.
Section 2.202 will remain the same in this respect.
If such an order is issued by the staff af ter a hearing has been 8
ordered, the licensee or other person affected may move that the immediate ettectiveness of the amendatory or supplemental order be set aside pending comp'fetion of the hearing on the merits.
Such a motion will be given stxpedited consideration by the presiding officer and decided on the basis describec above.
Notwithstanding the factors thet call for expedited resolution of disputes arising out of immediately effective orders, there may be instances when overriding public interest considerations require delay in the proceeding on the merits.
The revisions proposed herein to the earlier proposed 6 2.202 include a provision allowing reasonable celays in the conduct of the proceedinos 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 investigation by the Commission or the U.S. Department of Justice.
In such instances, to allow the Commission tc investigate further into the metter or the Department of Justice to undertake criminal investigation without prejuoice to possible crosecution of any discovered crime, it ma) be necessary to hold the hearing on the immediately effective oroer in abeyance 1
for a reasonable period of time.
The proposed revis1on to 6 2.202 allows the Commission, either on motion by the statt or any other party, to delay l
the hearing in such cases, for such periods as may be appropriate in the circumstances.
The proposed revision, however, does not author 1ze delay in the proceeding on a motion to set aside immediate effectiveness.
The length of a delay in the proceeoing on the merits should be based on a balance of the competing interests involved.
See Loaan v. Zimmerman Brush Co., 455 9
i U.S. 422, 43? (1982). Such a motion will be expeditiously heard and i
decided.
Environmental Impact:
Categorical Exclusion The NRC has determinec that this proposed rule is the type of action described in categorical exclusion 10 CFR S1.22(c)(1).
Therefore neither an environmental impact statement nor an environmental assessment has been prepared for this proposec rule.
Paperwork Reduction Act Statement 4
This proposed -ule contains no information collection requirements and therefore is not subject to the requirements of the Paperwork Reduct1on Act of 1980 (44 U.S.L. 3501 et seq.).
Reoulatory Analysis l
The existing regulations in 10 CFH 2.202 authorize the NRC, tnrough its designated officials, to institute o proceeding to modity, suspend, or l
revoke a 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 requirenents or places in question reasonaDie assurance of adequate protection of the pub 11c health and safety, 10
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although.JCh actiun is authorized by the Atomic Energy Act of 1954, as amended.
On April 3,1990 (55 FR 12370), the Commission proposed amendments to make the commission's Rules of Practice more consistent with the Commission's existing statutory authority 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 amendments also were to make clear the distinction between orders - e.g., directions to take or desist f rom taking certain actions - and demands for information.
Only orders were proposed to be made immediately effective and subject to hearing, consistent with existing regulations.
Neither the existing regulations nor the proposed amendments, however, containea provisions requiring that any such hearing be conducted expeditiously.
The amendments proposed by this rulemaking supplement the earlier proposal by adding provisions directing the expeoitious conduct of any hearing on an innediately effective order but allowing delays in the conduct of such hearings in certain circumstances where good cause for delay is shown, and establishing a separate, informal procedure for dealing rapidly with challenges to the immediate effectiveness of such order.
l The proposed rule constitutes the preferreo 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.
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Regulatory Flexibility Certification As required by the Hegulatory Flexibility Act of 1980 (5 U.S.C.
bob (b)), the Commission certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small +..tities, 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 that may tall 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 IJ ctk 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 in accordance with the regulations.
Backfit Analysis This proposed rule does not involve any new provisions which would impose backfits as defined in 10 CFR 50.109(a)(1). Accorcingly no backt1t analysis pursuant to 10 CtR 50.109(c) is required f or this proposed rule.
List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classitled information, Environmental protection, Nuclear materials, Nuclear 12
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power plants and reactors, Pena lty, Sex discrimination, Source material, i
Special nuclear material, Waste treatment and disposal.
For the reasons set out in the preamble and under the authority of the i
Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C, 555, tne NRC is proposing to adopt the following amendments to 10 CFR Part 2.
Part 2 -- Rules of Practice for Domestic Licensing Proceedings i
1.
The authority citation for Part 2 15 revised to read as follows:
Authority: becs.161,181, 68 Stat. 9ac, 953, as amended (42 U.S.C.
2201, 2231); sec.191, as amendea, Puu. L.87-615, 70 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 also issued under secs. f 3, 62, 63, 81,103,104,105, 68 l
St6t 930, 932, 933. 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec.114(f), Pub. L.97-426, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102, Pub. L.91-190, 83 Stat. 853 as amended (42 U.S.C. 4332); sec. 301, 88 Stat.1248 (42 U.S.C. 5871).
l Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, l
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. 161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201(b)), (1), (o), 2236, 2282); sec. 206, 88 Stat.
124b (42 U.S.C. 5846).
Sections 2.600-2.606 also issued under sec. 102, 1
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Pub. L.91-190, 83 Stat. 8b3, as amended (42 U.S.C. 4332). Sections 2./u06, 2.719 also issued under 5 U.S.C. 554.
Sections 2.754, 2./60, 2.770, 2.780 also issued under 5 U.S.C. 557.
Section 2./b4 ano Tetde 1A of Appendix C also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). 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 L
also issued under 5 U.S.C. 553.
Section 2.809 also issued under b U.S.C.
553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039).
Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 9/-425, 96 Stat. 2230 (4r U.S.C. 10154). dubpart L also issued under sec.189, CS Stat. 955 (42 U.S.C. 2239).
Appendix A also issued under sec. 6, Pub. L. 91-56', 84 Stat. 147J (42 U.S.C. 2135). Appenaix B also issued under sec. 10, Pub. L.99-240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).
2.
Section 2.202 is revised to read es follows:
5 2.2u2 Urder.
(a) The Commission 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 thr: Jurisdiction of the Commission an order that wi'll:
(1) Allege the violations with which the licensee or other person subject to the Commission's jurisdiction is charged, or the potentially 14
9 hazardous conditions or other tacts deened to be sutticient ground for the proposed action, end specify the action proposed; (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 date, or such other time as may be specified in the order; (3)
Inform the licensee or other person of his or her right, within twenty (20) days of the date o' 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 orcer; (4) Specify the issues for hearing; (b) State the effective date of the order, and (6) Prov de, for stated reasons, that the proposed action be immediately effective, pending further order, where the Commission finds that the public health, saf ety or interest so requires or that the violation or conduct causing the violation is willful.
(b) The licensee or other person to whom the Commission has issued an order under paragraph (a) of this section must respond to the order by filing a written answer under oath or affirmation.
The answer shall specifically admit or deny each allegation or charge made in the order, and 15
w shall set forth the matters of fact and law on which the licensee or other person relies, and, if the order is not consented to, the reasons as to why the order should not have been issued.
Except as provided in paragrepn (d) of this section, the answer may include a demand for a hearing.
(c)(1) It a hearing is demanded, the Commission 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 Comission nas issued an order riay, in addition to demanding a hearing, move to set aside the 1 mediate effectiveness of the order. The motion shall state with particularity the reasons why the imediate ettectiveness of the order should be..t 6 side and shall be accompanied by affiday1ts or other evidence relied on.
The Comission staff shall respond within (5) days of the filing of the motion.
The motion sha ll be decided by the presiding otticer expeditiously before any other matter unnecessery to the disposition of the motion. The presiding otticer shall exercise its powers to regulate the conduct of the proceeding, including reducing thr +.imes specified in subpart G for particular actions, to assure expedit is
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consideration and disposition of the motion.
During the pendency of the motion or at any other time, the presiding officer shall not stay the
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immediate effectiveness of the order, either on its own motion, or upon motion of the licensee or other person.
The presiding officer shall l
uphold the Irvaediate effectiveness of the order if it finds that there 16
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is acequate evidence to support immediate effectiver:ess. An order upholding immediate effectiveness will constitute the t1nal 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 turther order of the Commission.
(3) Except as provided in paragraph (c)(2) of this section, the Commission may, on motion by the staff or any other party to the proceeding, where good cause exists, delay the hearing on the immediately ef fective order at any time for such periods as are consistent with the due process rights of the licensee and other affected parties.
(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 proposea 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 and conclusions of law, and of all right to seek Commission ano judicial review 1
or to contest the val 1dity of the order in any torum as to those matters 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 l
be effective as provided in the order.
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(e)
It the order involves the modification of a Part bu licensee and is a backfit, the requirements of G 50.109 of this chapter shall be followed unless the licensee has consented to the action required.
i vated at Rockville, Maryland, this N day of 1990.
F the Nuclear Regulatory Comission, r
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5 Samuel J. Chilk, Secretary of the Comission.
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