ML20058G616
| ML20058G616 | |
| Person / Time | |
|---|---|
| Issue date: | 11/07/1990 |
| From: | Lessler L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM) |
| Shared Package | |
| ML19330F723 | List: |
| References | |
| FRN-54FR17961, FRN-55FR36801, REF-10CFR9.7, RULE-PR-2 AD17-2-01, AD17-2-1, NUDOCS 9011130311 | |
| Download: ML20058G616 (7) | |
Text
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UNITED STATES
- t NUCLEAR REGULATORY COMMISSION j
i wA sHINGT ON, D. C. 20555 E
- <,g *****y November 7, 1990 MEMORANDUM FOR:
NUDOCS Document Control Desk P1 White Flint FROM:
Linda Lessler b
Office of the General Counsel
SUBJECT:
DOCUMENTS COMPRISING REGULATORY HISTORY AD17-2 The enclosed documents comprise the regulatory history of final rule 55 FR 36801, and have been separated for placement in the PDR and Central Files.
Documents 1 through 6 are to be placed in the PDR.
Documents 7 through 15 are to be placed in Central Files Only.
If there are any questions about these documents, please feel free to contact me on extension 21612.
Thank you for your assistance.
Enclosure:
As stated 1
6 i
1 01107 9
901gif0M1 ppg i
W p%eab*t i
' Abn-2 asoci RQ!as and Regulations r -> =+i-Vol. 58. No. tre Friday, September 7,198o Tres secean of the FEDERAL REGISTER amendments provide for the use of the No. 65-40402 (Comm. Aug. 7,1987). In con', ems re9ulatory documents having formal adjudicato procedures set forth the wake of NRC's adoption of subpart l
'i general appicatmy and le9a! eflect, most in 10 Cm part 2, su part G,in any (February 28,1987. 54 FR 8209), the Of ***Ch 8's ufed to ams codifed in reactor operator licensing proceeding Commission decided that the the Code of Federal Regulatons, e is that is initiated by a nouce of hearing Commission's regulations should reflect o
8 "P
"II S. 510 under 6 2.104, a notice of proposed the practice followed in the individual The Code of Federal Regulahone le sold action under $ 2.105, or a request for orders.
ty the superintenderd of Documents.
hearing under subpart B of10 CFR rt 2 II. Public Comments and Commission 5
Prices of new books are hated in the ou an order to show cause, en ord for fret FEDERAL REGISTER issue of each modifica tion of license cr e civil penalty.
"E""
- **k-On July 10.1989 (54 FR 28822). the NRC
%e Commission received seven -
extended the date for submission of comments representing a broad comments on the proposed amendments spectrum of interested persons.
NUCLE.AR REOULATORY to August 10,1989.
Commenters included three utilities, a COMMISSION Section 189a of the Atomic Energy Act law firrn representing five utilities, the s
'10 CFR Port 3 of 1954 (AEA)(42 U.S.C. 2239(a)1 Nuclear Management and Resources provides that in any proceeding for the Council (NUhlARC), a licensed senior
'I RtN 3166-AD1T '
granting, suspending, rtvoking. or reactor operator and a law firm amending of any license, the NRC shan representing the Professional Reactor InformalHearing Procedures for grant a hearing upon the uest of any Operator Society (PROS). All comments Nuclear Reactor Operator Licensin0 person whose interest may affected are available for inspection and copying
. Adjudications by the proceeding. Among the licenses in the agency's Public Document Room.
Assucv: Nuclear Regulatory issued by the NRC are those for 2120 L Street NW. (Lower Leve!),
Commission. -
operators and senior operators of Washington, DC.
nuclear reactors (AEA section 107. 42 One utility and a law firm ACMosc Final rule.-
U.S.C. 2137; to CFR part 65).
representing five utilities expressed 1
- suestsAny:%e Nuclear Regulatory The Commission's rules of practice general support for specification of the Commisalon (NRC)is amending Ita enerally provide for two types of '
informal adjudicatory procedures that regulations to provide rules of rocedu: e earing pmcedures for licensing will apply in reactor operefor license for the conduct ofinformal adj dicator'.-
proceedings-formal and informal.
proceedings, but decmed it necessary or hearings in nuclear reactor operator Under 10 CFR part 2, subpart C, those desirable that the amendments J
' bcensing pmceedings.De Atomic requesting a hearing with respect to a explicidy grant applicants and licensecs M
Energy Act of1954 uires that the ;
reac*or licensing action or any agency access to formal adjudication upon a ARC,in any proceedi g for the granting, enforcement activit affecting a license showing of good cause or special l suspending, revoking or amending of -
are generally provi ed a formal, trial.
circumstances. NUMARC affirmed the any license afford en interested person, type hearing conducted in accordance '.
rationale for the proposed amendments, i
' upon request. a " hearing." his final rule with the provisions of the -
but nonethless deemed desirab:e the Administrative Procedure Act.8 U.S.C.-
. application of subpart G to hearings
!t
- would include reactor operator licensing ' $54-557 and 10 CFR part 2, subpart G.
p
- proceedings under the informal hearing concerning the dental of an initial or l3 procedures already established for On the other hand, a request for a renewal application. nese commenters L
materials licensing proceedings.
. hearing regarding an NRC materials also suggested certain changes in 3
BPPECTIVE DATs: October 9,1990.
licensing action generally enddes an provisions of the existing, informal interested person to aninformal,"
adpdicatory rules under subpart L l.,
_ foger Davis, Senior Attorney, Office of legislative-type hearing in accordance insofar as they would apply to reactor PURmeR HermusAnow towfACT:
e General Counsel, U.S. Nuclear with to CFR part 2. subpart L operator licensing proceedings. One NRC regulations currently do not utility found the NRC's Statement of gulatory Commission Washington.
,pecify the of hearing to be.
Consideration inadequate and urged 20555, telephone (301) 492-1600.
affortied in e event that an interested renouce either just ing the
- 8UPPtsesserf Amy lesposesAfseet.
person, including an applicant for a amendments more early or proposing L Background reactor operator license or a licensee, adoption of formal procedures for au
- requests a hearing with regard to agency opera tor license proceedings. Two other
- ' On A il 26,1900 (64 FR 17961), the -
action concerni a reactor operator
. commenters, a senior reactor operator y#
- NRC p lished in the Federal Register license, Previou. the Commission has. and the law firm representing PROS,-
- proposed amendments to its Rules of declared in individual orders responding opposed the amendmmts as contrary to Practice at 10 CFR tt2.The to o erstor hearing requests that an,
the due process rights of licensed
. amendments make informal app icant for en operator license whose reactor operators. Or.e utility wholly -
ediudicatory procedures set forth in 10 application is denied is entitled only to endorsed the proposed amendments.
CFR part 2, subpart 1. applicable in an informal hearing in accordance with After considering all comments, the roceedi faensee.ngs for the granting, renewal or procedures like those now embodied inCommission, with one exception,is Inidated amendment of a subpart L Es., David W. Held (Senior issuing the amendments as proposed. in tractor o retor or senior reactor Operator Lloense for Beaver Valley response to the commenta, the operator icense.Ilowever,the Nuclear Power Stadon, Unit 1). Docket Commission has explicidy extended to m
o
___m 6
lc i
.'36002 Feder:1 Regleier / Vcl. 65, No.174 / Friday. September 7.1990 / Ruhe end Rutulatitna e.
the' initial or renewal applicant who is formal adjudication in proceedings that procedures for resolution of the typical L
ipsued a notice of proposed denial or a would involve revocation, suspension, inquiries in the proceedings to be held notice of denial permission to include in or modification of a license; and 2.
under subpart L: and 4. the opportunity i
l his or her request for hearing a request subpart L already authorizes a presiding to obtain other procedures when they i
that the presiding officer recommend officer's recommendation that the are necessary for a fair resolution of l
I authorization of other procedures for the Commission approve other procedures critical factualissues.
i proceeding. This request must include a in a particular proceeding otherwise The Commission recognizes that statement of the specialfactual conducted under subpart L procedures.
substantisi personal interests may be circumstances or fesues supporting other The law firm representing PROS affected by the decision to grant or deny hearing procedures, argued that the informal procedures are - en app!' cation for a reactor operator At the outset,it is useful to note some insufficient for actions that could license. However, the natme of the of the highlights o'" ' Commission's deprive an operator of his or her affected interest is limited by virtue of informal adjudicatory procedures.
property interest in the continued the fact that reactor operator license Within thirty days after a presiding validity of the license or his or her applicants are subject to broad l
officer's entry of an order granting a
. liberty interest in pursuit of a career as Commission powers to grant or deny, request for a hearing,"C files in the reactor operator. PROS would support and operator licenses permit docket a hearing file c.leisting of the the amendments only if they were performance of the licensed functions l.,
application and any relevant NRC report modified to make informal procedures only in a specific facility (10 CFR -
and correspondence between the available as an option to an operator in 55.53(b)-(c)), where the licensee of the applicant and the NRC (10 CFR 2.1231).
lieu of formalproceedings. Another facility has certified to the need for the Thereafter, the parties are afforded an commenter, NUMARC, believed that the position and requested examination of opportunity to submit written codification and use ofinformal hearing the applicant for a license (10 CFR
, presentations of their arguments and procedures for the granting. renewal or 55.31(a)(3H4)). The interest at issue is supporting written evidence (10 CFR licensee. initiated amendment of a also somewhat limited by the fact that 1
2.1233(a)).These presentations are to be reactor operator license would provide reactor operator licenses expire six made under oath or affirmation. ld. In fair, efficient, and effective adjudication, years afterissuance with no guaranteed' additlon, the presiding officer is Nonetheless. NUMARC suggested that it right to renewal (10 CFR 55.55).
empowered to submit written questions would be desirable for the NRC to apply Moreover, the applicant for initial to the parties to be answered in writing, subpart G to proceedings concerning the issuance of an operator or ownlor
/d., and to issue subpoenas for dental of an initial or renewal operator license does not face a attendance and testimony at hearings application because of the significance deprivation of a vested or existing and for production of documents or of this denial for the operator. The position or status. An individual seeking
' things (10 CFR 2.1209(h)). Upon Commission believes that these renewal of an existing license may feel y
determining that it is necessary to create commenters similarly fall to give that he or she has been deprived of a
, an adequate record for decision, the sufficient consideration or weight to the vested or existing position or status, but presiding officer may also allow or specification of circumstances in which there is no guaranteed right of renewal.
require oral presentations. inclwing formal procedures will apply and to the Therefore, it is not certain that protected testimony by witnesses, under oath and authorization of the presiding officer to interests are always or generally at stenographically recorded (10 CFR recommend other than informal stake in proceedings concerning the 2.1235 (a)-(b)). The prestding officer procedures in appropriate cases.
Issuance or renewal of a part 55 license.
conducts examination of the witnesses Moreover, these commenters do not However, the Commission will and may allow the parties to propose scrutinize closely the type of affected nonetheless assume for purposes of questions for posing to the witnesses./d. Individualinterests or the general types further discussion that they are.
Finally, the presiding officer may ofinquiries in the adverse actions at The key question remains as to recommend to the Commission that issue.
whethat the Commission is providing.
procedures other than the specified A party's entitlement to a hearing is less procedure than due process requires informal procedures be used in the determined by the balancing of three under the circumstances.The i
proceeding (10 CFR 2.1209(k)).
factors: 1. The private interest affected Commission is providing a hearing. And, A. General Comments by official action: 2. the probable value it is clear that due process does not of additional or different procedures:
require full trial. type procedures in
- 1. Formal Hearings Are Required for and 3. the Government's interest, every case. "The fundamental-LicenseesIf 8tequested including the function involved and the requirement of d e process is the Two commenters opposed the fiscal and administrative burdens of opportunity to be heard 'at a meaningful
- proposed amendments on the groad additional or different procedural time and in a meaningfull manner.'"
that licensed operators are entitled to requiremen ts. Mothews, v, Eldridge, 424 Mothews v.Eldridge,424 U.S. at 333 '
trial. type hearings under the U.S. M9,335 (1976). After reviewing and (quoting Armstrong v. Manzo,380 U.S.
Constitutiton. The licented senior weighing these factors, the Commission 545,552 (1965)). The Supreme Court has reactor operator viewed the proposed remains convinced that the informal repeatedly emphasized that "'id process,' unlike some legal rules,jue amendments as both permitting the adjudicatory procedures set forth in is not a revocation of a license for any reason or subpart L are appropriate for the reactor technical conception with a fixed whlm and eliminating the right to a -
operator licensing proceedings to be content unrelated to time, place and formal hearing.The commenter covered by this rule. This conclusion circumstances." /d. at 334 (quoting apparently overlooked the specific follows from a number of observations Cafeterio Workers v.McElroy,367 U.S.
etendards in 10 CFR part 55 under which and f' dings. but in particular the 886, 895 (1961)). Thus, " '(djue process is m
licenses are issued. renewed, modified, following:1.The nature of the interests flexible and calls for such procedural suspended, or revoked. The commenter at stake; 2. the Commission's provision protections as the particular situation also ones not seem to appreciate that:1.
of a meaningful hearing at a meaningful demands.' " /d. (quoting Morrissey v.
The proposed amendments provide for time: 3. the appropriateness of informal Brewer, 406 U.S. 471, 482 (1972)).
, mar.
- siiL M
~
Federal Register / Vol. 55, No.174 / priday, September 7.1990 / Rules and Regulations 86803 ne nature of the relevant inquiry is both, rney reapply two months after the from needs for court reporters, central to the evaluation of the falmese d.te of denial, and make successive transcripts, rent for hearing facilities,8 and reliability of the existing procedures applications at other intervals thereafter and travel expenses for necessary and the probable value,if any, of (to CFR 55.35). nue opportunities for agency personnel. Moreover, the additional safeguards (ld. at 343).
reapplication in and of themselves may commenter conceded that it is difficult Arguing that the Commission should satisfy the purposes of a hearing if one to generalir.e from the figures, bolster initial and renewal applicants' is otherwise required. See 7pler v.
considering the fact that the access to formal adjudication, or,e Pickery, 517 F.2d 1089 (5th Circ.1975).
Commission did issue 798 part 55 commenter emphasized that the For the renewal applicant, the risk of licenses and processed 1,750 renewals requirements for e part $5 license error and the need for other procedures during 1987 necessitate subjective evaluations on is also reduced by the fact that the such issues as health, and Commission will rmit the linensed
- 2. Duferences Between Challenges to administration of the written operator to take t e NRC requalification P(d d b j.
d examination and o ereting test. See examinstion three times before denying nge Crantirg Section Il-B-2 e o this notice.The the renewal application on the basis of or Rmwal og a Ucenn Commission does believe that the the licensee's failure of the NRC One commenting utility requested typicalissues in reactor operator requalification examination.s further justification of the Comt.ilesion's proceedmgs for the granttr.g or renewal Recommendation and approval of decision to grant fonnal hearings in of licenses are hkely to concem other procedures such as cross-proceedings resulting from proposed performance on a written examination examination may occur, for example, enforcement action, but informal or an operating test. As set forth in part where resolution of substantial factual hearings in proceedmgs concerning the SS, howeser, these examinations test knowledge, skills and abilities issues invtilving witness credibility, bias denial of the issuance or renewel o! a or veracity is essential to the license,it has been a long. standing pertaining to specific technical and determination of a license renewal.
Commission policy to provide the scientihc matters (10 CFR 55.41(b).
}iowever, the Commission expects that opportunity for formal adjudication 55 43(b). 55.45,55.57 and 55.59(e)). In ad,htion, the Commission has issued the broad powers of a presiding officer regarding the Commission's enforcement standards for examination and grading in subpart L proceedings will permit fair, actions affecting licenses. This should of the tests.See NUREG-10213 While correct and efficient decision making in not come as a surprise in bght of the some parts of these examinations may typical reactor operator licensing severity and potent.al stigma of be less amenable to " objective" proceedings. In any event, the Commission-initiated action for evaluation thsn other parts, e g., short Commission need not provide formal revocation or suspension of a license, or answer as opposed to multiple choice adjudication for all hearings requested a civil penalty, as well as the propriety questions, the subject matter still falls by initial or renewal applicants simply of formal procedures for adrudication of within the Cominission a special because some hypothetical cases not wh underlying issues as a rnaterial espertise and juogment. Even when before the Commission arguably may false statement and willful violation of a suostantial factualissues arise require the use of fonnel pmcedures.
rule or regulation (see to CFR 55.61). As regarding performance on a question or See FD1C v. Mollen. 486 U.S. 230, 247-48 noted above, the Commission does not problem concerning technical or (1988).
contemplate that the typical grounds of The Commission's conclusion that denial of an inttial or renewal
',Cf,'g"l
"',"h"I subpart L pmcedures are sufficient for application will generally involve these "O" '
O "
g p,
required. See Kerr McGee Corp. (West pm M n conmnW tk nung and ypn ofissun.
Chicago Rate Earths Facility). CLl-82-2, 7,7,*ered e e pYasfs o o e B. Comments Relofing to Specific 15,(NRC 232. 259-60 (1982). Offd sub nom.
0 8
F.2d commenter,i e law firm representing Provisions of Subpart 1 f,7 88,0 five utihties, on the rarity of hearings
- 1. proposed i 2.1201-Scope of Sebpart d
therstn. Indeed, it$,hese types of cases,
,,g"a ylye a erv t
'he right to cross examination may serse ef rt The law firm representing PROS 1.ttle or no purpose, and result only in licenses as compared to material declared that it was not possible to futility or de.sy. See Buttrey v. United licenses. Despite the history of a small d!scern the circumstances to which the States. 690 F.2d 1170,1182 (5th Cir.1982). number of reactor operator licensing proposed rule would and would not The possibility or existence of hearings, reduced cost and delay while apply. In particular, this commenter felt professional disagreement over an maintaining fair procedures should that proposed i 2.1201(b) was extremely opphcant s health, for example does not remain important objectives for both the vague. Other commenters did not appear suffice to create a specter or Commission and the parties in addition, to have this difficulty. The Commission questionable credibility or veracity.See the cost of one or more formal hearings sees no need for any change in the Muthews v. Eldridge, 424 U.S. at f44.
in reactor operatorlicensing cases could Proposed amendments, but will explam, Moreover, an applicant who is desied a in fact provide substantial. In each briefly the application of the license because of failure to pasa the formal proceeding. e three. member amendments. Section 11201[a) clearly written examination or operating test, or liceosing board or en administrative law provides that the rules of subpart L will judge roust be appointed, and with that govern procedures in an adjudication would also generally follow the costa of initiated by a request for a bearing in a
' Capose of NURECS aney te pursi d fram the formal discovery, prefiled testimony and proceeding for the granting. renewal, of b.O
- M a trial-type hearing with oral tastimony license-initisted amendment of an s
es nee axna-rte: Copies are else seenebne from the of the witnesses and cross examination.
houonal Tedescal lnlormatias serwoe. sees pori For instanoe, real costs associated with 8 Purouant to NRC pahey. the trial 4evel Royal Roa:L Sprutsfiehl V A 22161. A appy to else
{ormal, trial type adjudications arise Pmceediass conducted se formal subpart C evousble for aespnttom end/or copyins at the NRC Pubhc Document Room 2120 L Street Nw. (1swer adiudicahaos are usuaDy held near the applacent or hcensee mvolved. and this ehen requires renums a inelk Weekestnet DC.
- NUREC tort Rev s. ES-eo6(June 1.1980L botel coMerence room or siirliar facHity.
l l
. ~
I
. I s
3680..
Federal Regleter / V21. 66, No.174 / Friday, Sepi:mber 7.1990 / Rules and Regulati:ns >
' operator or senior operator license. On due process as warranting trial-tyne either subpart L or subpart G, will be
(*
the other hand, the proposed proceedings in many ca.ee particularly very high. The Coininission shares the amendment of I 2.1201(b) provides that for renewal applicants. %e Commission concern that intervention not be g
the formal procedures of subpart G will has responded to many of this indiscriminate, such as for the purpose govern an adjudication regarding an commenter's views on due process in of creating unnecessary delay. However, g
operator or senior operator license that section Il-A-1, above. While the the Commission believes that the arises from a request for hearing under Commission differs with some of the existing procedures and judicial subpart B of10 CFR part 2 on an order commenter's views on the standards for standing will provide fair to show cause, an order for modification circumstances which are likely to and sufficient scrutiny of petitions for of license, or a civil penalty. An order to warrant use of other procedures, explicit intervention (See to CFR 2.1205). Under show cause under subpart B is the -
authorization of an early vehicle for the subpart L. for example, the petitioner for mechanism by which the Commission applicant's identification of case-intervention must show how its interests w uld genarelly act to revoke or specific need. for other procedures is will be effected by the proceeding and suspend a ^ ense.Thus. the desirable. Thus, the final rule amends identify the concerns of the petitioner Commission contemplates that the -
l 2.1205(b) so as to authorize the (10 CFR 2.1205 (d). (j)). The presiding formal procedures of subpart G will applicant to request, within the request officer must determine that the specified govern proceedings to revoke or for a hearing. "that the presiding officer areas of concern are germane to the suspend an operator or senior operator recommend to the Commission that subject matter of the proceeding, and license subject to part 55. ne proposed procedures other than those authorized that the petition is timely and meets the
,r amendment of I 2.1201(b) also would under this subpart be used in the ludicial standards for standing (10 CMt make the fonnel procedures set forth in proceeding, provided that the applicant-2.1205 (g). (j)(3)). Indiscriminate subpart G applicable to an adjudication identifies the special factual intervention is, in fact, likely to be initiated by a notice of hearing issued circumstance 6 or issues which support difficult under the present standards under i 2.104. or a notice of proposed
. the use of other procedures."
inasmuch as the proceedings will
. action under i 2.105. The Commission's Under 6 2.1209, the presiding officer generally focus on issues peculiar to the I
construction of Il 2.104 and 2.105 is set already "has the dnty to conduct a fair applicant's or operator's qualifications forth in West Ch/coso 15 NRC at 244-and impartial hearing according to law" for the position.
. 46. Application of these provisions to and "has all pwer necessary to those in promulgating subpart L the I-reactor operator licensing under part 55 ends,includt a the power to * *
- Commission indicated that the " distance would arise if the Commission (djispose of procedural requests or standard" established by NRC case law determined that the public interest similar matters." Nothing in subpart L for standing in nuclear reactor licensing required a formal hearing on a particular ressly prohibits the applicant who is proceedings,whereb persons residing L
application for, or amendment to, a exbject to subpart L procedures from within about fifty mifes of a facility f
su 4
reactor operator or senior operator asking the request for hearing, or generally are considered to have.
license. Of course, this rulemaking g;
record indicates that the Commission separately, that the presiding officer standing was not applicable to material j
_ does not expect that it will be making exercise the power to "(r)ecommend to licensing proceedings (February 28,1989; the Commission that[under (subpart L) take this opportunity to clarify that the rocedures other 54 FR at 8272).The Commission will the requisite determinations under than those authorise il 2.104 and 2.105 with re ard to reactor operator licensing procee ings.
be used in (the) proceeding" (See to CFR " distance standard"is not automatically '
2.1209(k)). Nonetheless, explicit applicable to reactor operator license
- 2. Existing i 2.1205-Request for a recognition of an opportunity under proceedings.The standing of a petitioner i
. Hearing: Petition for IAave To Intervene subpart L for applicants to request other in each case should be determined upon a.Aequests for formol odjudication.
Procedures within their request for the basis of the circumstances of that One utility and the law firm hearing clarifies the procedural scheme case as they relate to the factors set i
representing five utilities urged that the and thereby enhances the applicant's forth in i 2.1205(g).
[
L Commission add a provision that
' access to other procedures where
- c. Appeo/ of the denialof a ivguest for explicitly permits an operator to request appropriate.he Commission is not hearing. Section 2.1205(n) of subpart L formal adjudication upon a showing of altering, however, the necessity of the currently permits appeal of an order good cause or special circumstances, Com:nlosion's authorization of the use of denying a request for a hearing (or The latter commenter recommended other procedures.Thus, the new petition for intervention) in its entirety
'specifically an amendment of existing provision only authorizes the applicant within ten days of the service of the
. l 2.1205(b) so as to provide explicitly to - to request that the presiding officer order. The law firm representing five the part 55 license applicant "who is _
make the necessary recommendation to utilit!es requested that the Commission K
issued a notice of proposed dental or a the Commission.
amend axleting i 2.1205(n) so as to notice of denial" the opportunity to b.Standingfor /ntervention. One permit an immediate appeal of a include in his or her request for hearing utility urged the specification of a strict presiding officer's denial of a request for a specific request for formal test for standing for intervention in a formal hearing. As discussed below, adjudication.The amendment would
- operator license proceedings.
this commenter also recommended that 3
l require that the applicant include with
' Specifically, the commenter suggested the Commission give the presiding L
the request an explanation of the that persons other than the operator officer the power to grant a request for a l
- circumstances requiring such formal licensee or applicant be required to formal hearing.The Commission procedures as discovery and cross.
demonstrate that it will present declines to adopt this recommendation examination of witnesses.This evidence that would materially alter the for the following reasons. The existing commenter conceded that the outcome of the NRC hearing deciolon.
procedure for an immediate appeal 13 procedures in subpart L are generally NUMARC also recommended a premised upon the denial of any hearing appropriate for hearings on part 55 clarification that the threshold of as a final bar to adjudication.This is a
?
licenses, but analyzed the balancing standing for intervention in reactor far different circumstance for appeal factors for determining administrative operator licensing adjudications, under than a mere dental of a request in use EI ME EMEM
i m
v e
.o Federal Resister / Vol. 55, No.174 / Friday September 7.1990 / Rules and Regulations
$6805 formal procedures for a hearing that is Commission clarify that nonparties By codifying the procedures, the in fact granted. Indeed, completion of should not be able to useindividual Commission will avoid the expenditure the informal adjudication may resolve operator license proceedings to address of time and resources necessary to the requestor's concerns. Additionally, an issue othat than an issue that is the prepare the individual orders that the Commission sees no reason to carve subject of the hearing.The Commission previously have been used to designate out for reactor operator hecting notes that i 2.1211 already states that those procedures. This final rule is the questions a special exception to its
"(t)he presiding officer maypermit a preferred alternative and the cost existing procedures on interlocutory person who is not a party to make a entailed in its promulgation and appeal and review, limited appearance in order to state his application is necessary and
- 3. Existing i 2.1209-Presiding Officer's or her views on the issues"(10 CFR appropriate. The foregoing discussion
' Powers '
2.1211[a) (emphasis added)). The rule constitutes the regulatory analysis for j
The law firm representing five utilities also requires that the request for this final rule.
recommended that the Commission governmental participation " state with amend existing i 2.1209(k) so as to reasonable specificity the requestor's Regulatory Flexibility Certification areas of concern about thelicensing As required by the Regulatory authorlie the presiding officer in a part activity that is the sub/ect matter of the Flexibility Act (5 U.S.C. 605(b)), the NRC 55 hearing to grant a request to use other adjudicatory procedures. Cunently, the proceeding"(10 CFR 2.1211(b)(emphasis hereby certifies that this final rule does added)). Although the nonparty not have a significant economic impact presiding officer's power under participant may not be required to take upon a substantial number of small i 2.1209(k)is limited to a a position on the issues, the views to be entitles. Many operatorlicense recommendation that the Commission expressed must relate to the issues that applicants or operator licensees fall authorize the use of other procedures for are properly subject to challenge in this 4
within the de'inition of small businesses a particular proceeding.The type of proceeding. As with the found in section 34 of the Sme!! Dusiness recommended change might slightly -
consideration of a petition for Act.15 U.S.C. 632, or the Small Business expdate decisionmaking on a request intervention, the presiding officer may for more formal adjudication. flowever, determine that the views to be Size Standards set out in regulations
. the Commission believes that the small expressed are not germane to the Administration at 13 CFR part 121. or issued by the Small Business potential benefits of the change are -
proceeding and therefore may deny the the NRC's size standards published i
outweighed by the benefits ofits
. retention of the ultimate determination.
request for nonpsrty participation. For December 9,1985 (50 FR 50241). The these reasons, the Commission sees no For instance, a deciolon by the need for other clarification of the limits final rule should reduce the litigation Commission serves the interests of cost burden upon applicants or licensees uniformity of decisionmaking. full on nonparty par'icipation. '
because of the informal nature of the consideration of the potential EnvironmentalImpact: Categorical hearing, although submission of filings commitment of costs and resources, and Exclusion and documentary information detailing administrative fmally.
The NRC has determined that this contesad legal and factual lasues is still This commenter also recommended final rule is the type of action described required. Cost reduction in comparison l-amendment of l 2.1209 so as to in categorical exclusion 10 CFR to the cost of articipating in a formal
, authorize the presiding officer to 51.22(c}(t).Therefore, neither an adjudicatory eating can be anticipat.:d, entertain a specific request for a formal envirGnmental impact statement nor an although it cannot be estimated with 1
adjudication or for certain formal" environmental assessment has been certainty whether that reduction as a
. procedures in the course of the hearing prepared for this final rule, whole will be significant. It is clear that I [,"l[IO use of infonnal hearing 0[
'0 pmcyicer Paparwork Reduction Act Statement d
- should notincrease the brocedures
,;dingof urdens of a I:
however, already has authority to.
This final rule contains no information hearing upon an applicant or licensee.
l' entertain these types of requests during collection requirements and therefore is Backllt Analysis l
the cou se of an irformal hearing, not subject to the requirements of the Nothing in subpart L prohibits any party Paperwork Reduction Act of1960 (44
.Ihe NRC has determined that the from presenti thist e of motion to U.S.C. 3501 et seg )'
backfit rule.10 CFR 50.109, does not the presiding o cet uring an informal apply to this final rule and, therefore.
Regulatory Analysis that a backfit snelysis is not required ov Cc slo ne dnot and
' The Atomic Energy Act affords because these amendments do not probably could not specify all or even interested persons the right to a hearing involve any visi n htw most types of procedural motions and regarding a reactor operator licensing po
. supporting circumstances that could be proceeding. As the Commission 50.109(aX1).
i presented during the course of an previously indicated in its decision in IJet of Subjects in to CFR Part 2 L
' informal hearing.
West Chicago,15 NRC at 241, the use of t
8 Administrative practice and I
- 4. Exis'ing i 2.1211-Nonparty h", #*ft fnd la for5e rtle an)*
procedure, Antitrust, Byproduct o
. Participation -
the Commission than the use of formal.
material, Classified information, NUMAM expressed concern about trial. type procedures, the principal other Environmental protection, Nuclear the a plication of I 2.1211 of subpart 1.
procedural alternative. Also, procedures materials, Nuclear power plants and whic provides for oartici ation in a '
hearing b a person' not admitted as a must be in place to allow for the orderly reactors, Penalty, Sex discrimination, conduct of those adjudications.
80",rce nf,cle bsposd a n c
party,Inc uding a representative of an Codifying the informal hearing d
. Interested State county, municipality or procedures for operator licensing For the reasons set out in the -
agency thereol. Section 2.715 of subpart proceedings is preferable to the present preamble and under the authority of the G contains similar provisions. The practice of establishing the procedures Atomic Energy Act of1954, as amended, commenter recommends that the to be followed on a case by case basis.
the Energy Reorganization Act of1974,'
-r r
l q
[ja">'*i36806 lj Federal Resister f Vol. 55, No.174 / Frkley. Sopu ber 7.1990 / Rules and R:guhtlons m
l l<
i n es amended, and 6 US.C. 852 and 863, through 85. 30,40, or 79 of this chapten ethics laws and regulations. The inter.
. the NRC is adopting the following or American Foundationhas determined 4
P arnendments to 10 CPR part 2:
(21%e grant, tenewal,or boenseet that publication of these regulations in initiated amendment of an operator nr the Code of Federal Regulations is
(
PART t-Rut.E8 OF PRACTICE FOR senior operator license subject to part 55 necewary for the effective discharge of DOMESTIC LICENSING PROCEEDINGS ' of this chapter, its functions and activities.%e intended 1.The auth'orit citation for part 2 (b) Any adjudication regard.ng a result of this action is to avoid employee continues torea as follows:
rr.alertals license subject to parts 30,32 conflitis of interest and to assure through 85,39,40, of 70, or en operator impertialitUn the partof employees.
s 4
t RFractive OATS: October 9,1990.
l
$ fs[a"t E
as em I
.C 1)sec1 as y s o ic f ad POR NmmER immesAmm CoenAct x*~
- amended. Pub. L 97-415. 7e St et. 400 (42 luued ader i 22, a notice f U S C 224th eec. 201. as Bist.1242. as Adolfo A. Franco,703-641-3894.
amended 142 U.S.C na41t 5 U.S.C 662.
pf0 Posed action under i 2.105,or s l
Section 2.101 also ins ed under seco. 63. et, reques' ror hearing under subpart B of 10 supeLatasmy esopons4Afl0ec The
- 63. 81.103.1n 106. e6 8tet. e30. 932. e33. 936, CFR part 2 on an order to show cause, Inter. Amer.n.a f oundation is revising
- sie, est, saa as ame.ded (42 U.S C. 20?3.
en order for modification of liccme, or a. Its current Employee Responsibilities l
tos2. 2003. 2111. 2133. 22n 2135t sec.114(fL civil penalty,is to be conducted in and Condact regulations to conform 7
' Pub. L 97-428. en Stat 2213. se amended 42 accordance with the procedures set
. with the requirements of E.O 11222 (3 l
US C.10134(f)l: sec.102. Pub L 91-190. 83 forth in subpart G to 10 CFR art 2.
CFR 1964-1965 Comp 5 CFR 735.104):
8 'h*U7,"I U
c i u'
- 4. In i 2.1205, paragraph (b is revised Title 18, U.S.C. 202, 205, 207, 206, 209. -
y, 3j.
- 2.102.2.103.2.104, 2.105. 2.721 also luued to read as follows:
and title 11 of the Ethics in Government Act of 1978, aa amended (Pub. L 96-19 under secs.102.303.104,105.183 too, e6 8 tat.
6 8.m5 Wet k a hearing;geon and 90-28).The intended result of this p
om 937.936.954. 065, as amended (42 U.S.C.
- '**'I"'*"***
action ts to evold employee conflicte of '
2132. 2133. 21n 21n 233. 2239). Section 2.105 oleo luued under Pub. L 97-415. so Interest and to assure impartiality on the Stat. 2073 (42 U.S.C 2239). Sectione 12an.
(b) An applicant for a license, a part of employees by doing the
,2.20s also inued ur' der secs. naa. 2n se Stat license amendment, a license transfer.
following-I 955,83 Stat. 444 as amended (42 U.S C 224 or a license renewal who le issued a
- 1. Clarifying existin;iegulallons 2282k sec. an to Stat.1246 (42 US C. 6446).
r.otice of proposed denial or a notice of regarding the starwards of conduct 02, bL 90,a S et 853 aYe ebed,
d'UI8I 8Dd Wh0 dIt'8 8 h*8tlD8 8h8II required of Government employees and L
file the request for the hearing within special Govermant employees I
(42 U.S C. 4332). Sectione 2.toon. 2.71s also
+
. Issued under 8 U.S.C. SM. Sect 6ons 2.7M.
the time specified in i 2.103 in all cases.
associated with Foundstion contractors i
2.7e0. 2.776. 2.700 also leeued under 6 U.S C.
An applicant may melude in the request or potential contractors.
s 557. Section 2.?M and Table 1A of Appendix - for hearing a request that the presiding
- 2. Establishing regulations to guide C eleo leeued under secs.135.141, Pub L 97-officer recommend to the Commission employees in determining whether it is -
- 425. 90 Stat 2232. 2241 (42 US.C 101E that procedures other than those Permissible for them to participate in i
tolelk Section 2.790 also lesued under sec.
authorized under this subpart be used in c n rences t 8e eP 8 peaking i
I
- 103. 88 Sist. 936. as amended 142 US.C. 2133) J the Proceedin8 Provided that the -
engagements.
and 6 U.S.C. 652. Sections 2.s00 and 2.aos also.
applicant identifies the special factual
- 3. Establishing regulations which luued under 8 US.C. 6S3. I ertion 2.000 also.
Issued under 5 U.S.C. SH and sec.2s. Pub L ' cin:umstances or issues which support specif cally prohibit certain economic
- k; eS-2m 71 Stat. 870, as amended (42 U.S.C.
the use of other procedures.
and financial activities of employees
- 2n39). Subpart K also leeued under sec. tee, f
abroad. '
e a 31st day of
- 4. Establishing regulations prohibiting L
, se St L 42 M')
Au u 1 T
Subpart L alou teaue under sec.180, se Stat.
For the Nuclearit'8ulato'Y ommlulon.
Foundation against any other employee C
- 953 (42 US C. 2239). Appendix A steo leeued.
K
? under sec,6. Pub. L 91-neo, se Stat. 3472 (42 Samuell. ChE or applicant due to reca, political U.S.C. 2136. Appendix B also issued under
- Seemiary ofdhe Commiasion. i affilialion, or religious belief.
F J sec.10. Pub). L sew 240. 90 Stat.1M2 (42 U.S.C.., (F1t Doc. so-21081 Filed 94 mot a.46 am)
- 5. Establishing regulations modifying o
U g"
302 A et seqf
,w,,,,,,,,,,,, pas and enlarging the number of employees 12.The heading of subpart L of part 2 h'; __ &
required to submit Execuuve Personnel i
n Financial Disclosum Reports.
m
= revlud to nad as follows:
o 4tfTER AMERICAN POONDAYlON
- 6. Estab!!shing regulations requiring
~
1
'Q Subpart L--4nformat Headng the President of his or her designee to Procedures for Adjudioetionsin i t CFR Part 1001 follow the adreinistrative ec/wenwat IWlateriale and Operator 8 M4 procedures set forth in 8 CFR /37.27 in Proceedinge Employee Responelbilities and
- the event that the Foundation receives Conduct information that there has been a
= -.
3J Bection 2.1*
as mvised to read as ' Aaseecv:1nter-American Found stion.
possible violation of restrictions against follows:
AcTeoer. Final rule.
Post. employment activities contained in section 207 (a), (b), or (c) of title 18, 93.13C1 'Jeope of subpan-SussesAny:This finalrule amends and United States Code.
. (a) Tne general rules of ihls subpart clarifles the inter-Amedoan The rule is pattemed after similar govern procedure in any adjudication Foundation's Employee Responsibilities ethics regulations adopted by other initiated by a requut for a hearing in a and Conduct.The Inter-American federal agencies following enactment of L
proceeding for--
Foundation is taking this action so that the Ethics in Government 8 ct in 1978.
h 0)The grant transfer.tenews',or employees of the Foundation will have a 'Ihe rule is patterned most ce-ly after licensee Inlilated amendment c'a clect understanding of their the rule implementtd in1986 by the materials license subject to parts 30,32 responsibilities with respect to federal African Development Foundation (ADF).
i
- v