ML20126E561
| ML20126E561 | |
| Person / Time | |
|---|---|
| Issue date: | 11/06/1992 |
| From: | Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| FRN-57FR61780 AE11-2-016, AE11-2-16, SECY-92-376, NUDOCS 9212290196 | |
| Download: ML20126E561 (36) | |
Text
. . . .__- _ _-.
e ps uevy ye .
t 3* . .$e 6
- % ses,* $
RULEMAKING ISSUE November 6, 1992 (Affirmation)
SECY-92-376 E2r: The Commissioners From: William C. Parler General Counsel Subiect: Final Rule on Exclusion of Attorneys from Interviews Under Subpoena Purnosq: To obtain Commission approval for publicacion in the Federal Recister of a final rule amending regulations in 10 CFR Part 19.
Backcround: On December 19, 1991 (56 FR 65948), the Commission published a notice of its revocation of its rule on exclusion of attorneys representing multiple interests from subpoenaed interviews during NRC investigations and inspections. That revocation effectuated the ccurt's decision in Professional Reactor Operator Society v. Nuclear Reculatory Commission, 939 F.2d 1047, 1052 (D.C. Cir. 1991)
(hereafter " PROS") which struck down those attorney exclusion provisions. The court found that the " reasonable basis" standard in that rule was an insufficient requirement for limiting the right to counsel guarantee of the Administrative Procedure Act, 5 U.S.C. 556(b)..
On December 19, 1991 (56 FR 65949), the Commission also published proposed amendments to replace the former rule. The proposed amendments follow the guidance of the appeals court decision by replacing the " reasonable basis" standard with the requirement that exclusion be premised on
" concrete evidence" that the investigation will be ob'structed and impeded.
NOTE: TO BE MADE PUBLICLY AVAILABLE
Contact:
WHEN THE FINAL SRM IS MADE Roger K. Davis, OGC AVAILABLE Tel. 504-1606 9212290196 921106 AkO PDR SECY 92-376 PDR ,
2 Discussion: Responses to the proposed amendments were received from one individual, the Nuclear Utility Management and Resources _ Counsel (NUMARC), three utilities endorsing NUMARC's comments, the Professional Reactor Operators Society (PROS), a law firm commenting on behalf of PROS as well as seven utilities and a major engineering firm, a law firm commenting on behalf of six utilities, and a law firm that reprecents individuals and utilities holding NRC licenses. All commenters opposed the proposed amendments, although some recommended changes should the Commission still decide to issue the rule.
The comments generally concern four subjects:
- 1. The need for the rule;
- 2. The necessity of misconduct or wrongdoing by counsel;
- 3. Application of the " concrete evidence" standard; and
- 4. Adequacy of the procedures.
The attached Federal Reaister notice contains a summary of the comments and proposed responses to those comments. The final rule includes three minor changes from the rule as proposed. The reasons for the changes are provided in the
-attached Federal Recister notice.
Coordination: The Executive Director for Operations and the Office of Investigations have reviewed this paper and concur in its-recommendation. A copy was also provided to the Office of the Inspector General.
Recommendation: That the Commission:-
- 1. ADorove for publication in the Federal Reaister the attached final rule notice on exclusion of counsel from interviews under subpoena (Enclosure 1).
- 2. Certify that these amendments will not have a significant economic impact on a substantial number of small entities. This certification is necessary in order to satisfy the requirements of the Regulatory Flexibility Act, 5 U.S.C. S 605(a).
- 3. Note:
- a. That this final rule falls within the scope of the actions described in categorical exclusion 10 CFR 51.22(d). Therefore,
3 neither an environmental impact statement nor an environmental assessment has been prepared for the rule.
- b. That the final rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1980, 44 U.S.C. S 3501, 21 E22
- c. That these amendments do not involve any provision which would impose backfits as defined in 10 CFR 50.109 (a) (1) . Therefore, a backfit analysis is not required for this final rule,
- d. That the Senate Committee on Environment and Public Works (Subcommittee on Nuclear Regulation) , the Senate Committee on Appropriations (Subcommittee on Energy and Water Development), House Committee on Interior and Insular Affairs (Subcommittee on Energy and the Environment), and the House Committee on Energy and Commerce (subcommittee on Energy and Power) will be informed of this rulemaking action (Enclosure 2),
- e. That a public announcement will be issued (Enclosure 3).
- f. That the Chief Counsel for Advocacy of the Small Business Administration will be informed of the certification and reason for it,
- g. That one commenter requested a meeting with the Commissioners for discussion of the proposed amendments. OGC believes, however, that the public comment period provided adequate opportunity for presenta of issues and recommendations.
il iam C. Parler General Counsel
Enclosures:
- 1. Final Rule
- 2. Congressional Letters
- 3. Public Announcement
'I 4 l Commissioners' comments or comment should be provided_directly.
- .to'the Office of the--Secretary by COB Monday, November 23, 1992, 1
Commission 1 staff office comments, if any, should be submitted to the Commissioners NLT Monday, November 16, 1992, with an-information_ copy to the Orfice of the Secretary.- If.the paper. -
is of such a-nature that it requires additional review.and comment, the-Commissioners and the Secretariat ~should be-apprised of when comments may-be expected.
This paper is tentatively scheduled for affirmation at an Open
- Meeting during the Week of-November 23, 1992. Please refer to the appropriate Weekly Commission Schedule, when published, for a specific-date and time.
DISTRIBUTION:
Commissioners OGC-OCAA OIG OCA OPA OPP-EDO .
SECY e
b
_,._4 _ .,
N 4
ENCLOSURE 1
L'
)
[7590-01]
NUCLFAR REGULATORY COMMISSION 10 CFR Part 19 RIN: 3150-AE11 Exclusion Of Attorneys From Interviews Under subpoena AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is amending its regulations to provide for the exclusion of counsel from a subpoenaed interview when that counsel represents multiple interests in the investigation and there is concrete evidence that the counsel's presence at the interview would obstruct 4.d impede the investigation. These amendments are designed to ensure the integrity and efficacy of the investigative and inspection process. These amendments provide a standard and procedures for making and effectuating the decision to exclude counsel.
EFFECTIVE DATE: [ Insert date 60 days after date of publication ,
in the Federal Register)
FOR FURTHER INFORMATION CONTACT: Roger K. Davis, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone: (301) 492-1606.
l
_ _ _ _ _ _ _ _ _ - _ - - _ _ _ _ _ _ _ _ _ _ _ _ - w
SUPPLEMENTARY INFORMATION:
Contents I. Background II. Response to Public Comments on the Proposed Rule I. Background On December 19, 1991 (56 FR 65949), the Nuclear Regulatory Commission (NRC) published proposed amendments to its regulations found at 10 CFR Part 19. The proposed amendments provided for thc exclusion of counsel from subpoenaed interviews in connection with an NRC investigation when that counsel represents multiple interests in the investigation and there is concrete evidence that such representation would obstruct and impede the investigation. The proposed amendments also provided procedures to be followed by the NRC and individual witnesses in-connection with the NRC's exercise of its authority to exclude counsel.
The Commission had published a final rule on the same subject on January 4,-1990 (55 FR 243). That rule provided,'
inter.plia, for.the exclusion of counsel for a subpoenaed witness when that counsel represented multiple interests and there-existed a raasonable basis to believe that such representation'-
would prejudice, impede,'or impair-the integrity of the inquiry.
Upon legal cheslienge, the United States Court of Appeals for the e
L District of Columbia: Circuit struck down the portion of the final rule-on attorney exclusion. Professional Reactor Operator 2
-k Epciety v. Nuclear Reaulatory Commission, 939 F.2d 1047, 1052 4 1
(D.C. Oir. 1991) (hereafter " PROS").
Specifically, the Court of Appeals ruled that the NRC must apply the same standard for attorney exclusion that the Court had previously required of the Securities & Exchange Commission by virtue of the Court's interpretation of the right-to-counsel guarantee of the Administrative Procedure Act (APA), 6 U.S.C.
555(b). The Court stated that to exclude counsel "the agency must come forward with $ concrete evidence' that the counsel's presence would impede its investigation." PROS, 939 F.2d at 1049 (citina SEC v. Cnano, 533 F.2d 7, 11 (D.C. Cir. 1976)). Thus, ,
the Court vacated the attorney exclusion portion of the rule, since its " rational basis" standard was less rigorous than the
" concrete evidence" requirement. On December 19, 1991 (56 FR 65948), the Commission responded to the appeals court decision by publishing notice in the Federal Register of the Commission's revocation of its rule on attorney exclusion, 113., the definition of " exclusion" appearing in 10 CFR 19.3 and the standard and procedures for attorney exclusion appearing in 10 CFR 19.10(b)-(e). On December 19, 1991 (56 FR 65949), the Commission also published the proposed amendments in the Federal Register that would conform the NRC's attorney exclusion requirements to the Court's ruling.
3
+1 -'*r-tas u.-t*,.- 'gmp--,+-. ap,ym y4 ye9 ,_ we, _.- y+%w_,im..-p_ w qq.gw .--. gw,g -.wp.e.g.-eeggy
- vr y
l II. Responses to Public Comments on the Proposed Rulo The Commission received nine comments on the proposed December 19, 1991 rule. The commenters included one individual, the Nuclear Utility Management and Resources Council (NUMARC),
three utilities endorsing NUMARC's comments, the Professional Reactor Operators Society (PROS), a law firm commenting on behalf of PROS a. well as seven utilities and a major engineering firm, a law firm commenting on behalf of six utilities, and a law firm that represents utilities and individuals holding NRC licensees.
All commenters opposed adoption of the proposed rule. The comments are available for inspection and copying in the agency's Public Document Room, 2120 L Street NW. (Lower Level),
Washington, DC.
The Commission has considered the comments received, but is not persuaded that the proposed amendments should be withdrawn or modified in substantial ways as some commenters requested.
However, the Commission has clarified its description of the standard for exclusion by stating the threshold requirement as
" concrete evidence that the preserice of an attorney representing multiple interests would obstruct and impedo the invastigation or inspection ...." A similar change was made in the definition of
"[e)xclusion." The commission has deleted the phrase "directly or indirectly" from the standard for exclusion of counsel. The Commission has also revised the rule to provide that the interview shall not be rescheduled to a date that procedes the 4
1
1 expiration of the time provided under 10 CFR 19.18(d) for appeal of exclusion of counsel, unless the witness consents to an !
l earlier date. In addition, the final rule requires that the l
\
written notice of the grounds for counsel's exclusion also ,
describe the right to appeal the exclusion to the Commission and thereby obtain an automatic stay of the effectiveness of the j subpoena pending the Commission's decision.
Because these changes are logical outgrowths of the proposed ,
amendments and no other modifications are made, the commission concludes that the final rule should become effective without further notice and comment. The Commission's responses to the concerns of the commenters are set forth below.
A. Need for the Rule
- One commenter argued that the expected rarity of application of the rule demonstrated the absence of a need for the rule. The f
Commission does expect that the rule will be invoked only in rare and compelling cases. However,.the Commission continues to believe that the rule should further expeditious and satisfactory resolution of some investigations and that this is important to- ,
the Commission's fulfillment of its statutory mission. By ;
providing to witnesses, counsel, and agency staff both a general standard for determining whether disqualification is appropriate and procedures for implementing and challenging those
-determinations, the final rule should reduce delay, uncertainty ;
5
_ - - - - - _ - ._ - . - .- - - . ~ - - . - --.- - . . - - -
h and confusion associated with consideration of the exclusion of counsel.
Although several commenters emphasized the circumstances in which courts have found insufficient grounds for exclusion of counsel by the Securities and Exchange Commission (SEC), the :same i
courts have explicitly recognized the propriety and utility of this type of rule. In Conno, the United States Court of Appeals for the District of Columbia Circuit stated (533 F.2d at 11) with regard to the SEC's sequestration rule that --
We do not question its utility in preserving the integrity of an investigation and recognize its practical necessity in-certain circumstances.
533 F.2d at 11. In SEC v. Micashi, the Ninth Circuit said that
"[t]he reason for and purpose of the (SEC's) sequestration. rule are clear and there can be no question as to its necessity and general propriety" -(359 F.2d 550, 552 (9th Cir. 1966)). For reasons akin to those-motivating the SEC-rule, the NRC proposed and now finalizes its attorney exclusion rule.
The NRC's investigation of unsafe practicos and potential violations of the Atomic Energy Act and NRC regulations is an important means of ensuring public health and safety in-operation of nuclear power plants and other uses of' nuclear material (ERA 10 CFR Part 19; 10 CFR 1.36). NRC investigators often interview licensees, their officials and employees, and other individuals having possible knowledge of matters 1under investigation. In many cases, investigating officials conduct extensive and difficult inquiries ~to determine whether violations were willful i
l 6
, .,y- - . , - - , . -
~ _ . _ . ____ . _ . _ __. _ __ -. _ . - _ . -
l f
and/or whether licensee's management engaged in wrongdoing. Yet, offective identification and correction of unsafe practices or regulatory violations through an investigative or inspection process can depend upon the willingness of individuals having knowledge of the practices or violations to disclose that information to interviewing officials.
Therefore, as specified in 10 CFR 19.2, the rule would' apply to all interviews under subpoena within the jurisdiction of the Nuclear Regulatory Commission other than those which focus on NRC j employees or its contractors. While the purposes of the rule relate primarily to interviews conducted under subpoena by the NRC's Office of Investigations, the NRC's predominant user of investigative subpoenas, the final rule would also apply to NRC inspections and investigations conducted under subpoena by other NRC officials. The rule does not apply, however, to subpoenas issued pursuant-to 10 CFR 2.720, which applies to-subpoenas- -
requested in hearings.
Several commenters argued that there is no need for the rule because of the availability of other means for ensuring proper conduct by counsel (22g., investigation and prosecution under Federal criminal statutes or investigation _and disciplinary action or disqualification under= standards of professional.
conduct for lawyers). In some cases, the causes of impairment of the investigation-may justify consideration of-criminal or other proceedings. However, the Commission's objectives, standard for action, burden of proof, and remedy, 123., exclusion of counsel 7
~, -+ - g
from particular interviews, may differ widely from those associated with criminal statutes or rules of conduct.
Therefore, the possibility of collateral or future actions addressing misconduct in some cases pursuant to other authority is an insufficient basis to ignore the potential need for a direct determination of whether the counsel representing multiple interests should be excluded from an interview.
As noted in the supplementary information included in the notice of the proposed rule (56 /R 65950), questions regarding impairment of investigation as a result of multiple representation have arisen in some etaes in the past. Several of the commenters argued that the cited cases did not involve any grounds for disqualification of counsel and that any concern about multiple representation in those cases was improper. The Commission believes that the final rule will facilitate resolution of this type of question when it arises in the future.
As the Commission has stated (56 FR 65950), the justification for this rule is not premised on whether any orior case actually involved " concrete evidence" that the investigation would be impeded.
NUMARC and another commenter indicated that adoption of the proposed rule would be inconsistent with the Commission's efforts to eliminate unnecessary regulatory burdens (n22, 2.tg . , 57 FR 4166; February 4, 1992 and 57 FR 39353; August 31, 1992). The Commission disagrees with the suggestion that the rule fails to strike a fair and reasonable balanca between the right to counsel 8
4
and the need for information in investigations. In this case, the Commission is expressly adopting the judicial resolution of that issue. That resolution does not involve a highly prescriptive standard. Rather, it involves a demanding general standard that is expected to have very limited application in a fraction of NRC interviews under subpoena.
HUMARC stated that the rule was unnecessary because NRC rules currently in effect (10 CFR Part 2) provide a mechanism for imposing sanctions for attorney misconduct in various contexts.
The existing provisions directly relating to standards of practice (10 CFR 2.713) concern appearance and practice in adjudicatory proceedings. By this final rule, however, the Commission intends to provide specific direction for expeditious resolution of decisions to exclude counsel because of obstruction or impediment of investigative interviews resulting from multiple representation. Therefore, the final rule serves purposes that are not mot by the general 10 CFR Part 2 -
Rules of practice for domestic licensing proceedings and issuance of orders.
B. Attorney Misconduct .
Most commenters indicated that the proposed standard for exclusion of counsel was deficient because it did not require a showing.of misconduct or wrongdoing by the attorney representing multiple parties. These commenters generally concede that unethical or illegal conduct by counsel, such as encouraging or 9
-- - ~ ~ - - - - - - - -
-e- , , -,e v .w, ,. r - e s.n,, --,., -- .,- , .v
condoning perjury or engaging in a pattern of overt disruption of 5
the interview, would supply grounds for exclusion. Concrete ovidence that such conduct is obstructing and impeding an investigation could lead to exclusion under the rule. However, the commission does not find as a matter of logic or law that there is no possibility of a finding of concrete evidence of impairment on grounds other than misconduct or wrongdoing by counsel.
For instance, the commission does not find it necessary to rule out application of the rule to a case presenting concreto evidence of nondisclosure of information by a witness as a result of the presence of counsel representing multiple interests even though the counsel has not engaged in misconduct. Moreover, I
whether or not an investigation will be impeded could be irrelevant in a pure misconduct case.
The Commission also does not interpret the legal precedent' as permitting disqualification only for misconduct, wrongdoing, or active obstruction by ccansel. Indeed, in stating the standard to which the Commission must adhere, the_ court in Pros did not mandate " concrete evidence" of wrongdoing but rather
"' concrete evidence' that counsel's presence would impede (the agency's) investigation." Pros, 939 F.2d 1049:(citina EEg v.
21229, 533 F.2d 7, 11 (D.C. Cir. 1976)).
The commenters-insisting on the necessity of misconduct or wrongdoing as the essential substantive element for j disqualification point to Csano, in which the Court of Appeals 2
L :
L
i t
agreed with the lower court's finding that the SEC had failed to ,
produce any " concrete evidence" of misconduct (533 F.2d at 8).
While that opinion clearly affirmed an evidentiary threshold of j "concreto evidence" in relation to the alleged misconduct, the i court of Appeals also found that the record failed to disclose "any reason for barring counsel selected" by the witness (id.)
(emphasis added). And, the Court's specific direction was that "before the SEC may exclude an attorney from its proceedings, it -
must come forth ... with ' concrete evidence' that (counsel's) presence would obstruct and impede its investigation." Id.
at 11. Therefore, the Commission does not interpret Cs.AD2 as.
limiting the grounds for exclusion of counsel to " misconduct."
C. Application of the Rule Most commenters expressed or_ endorsed the view that the supplementary information in the notice of the proposed rule s
(56 FR 65949-65950) shows that the intended application of the rule is inconsistent with judicial direction. They suggest that-the Commission's identification of concerns motivating the rule and of some of the potentially relevant evidence displaces the
" concrete evidence" standard.
While " concrete evidence" was not defined' expressly in the cases' referenced above, the discussion and application of that standard indicates _the courts require more than_ speculation or-i even reasonable concern about potential impairment. Rather,
! .11 .
l
exclusion of counsel requires real or tangible evidence demonstrating that the investigation would be impeded as a result of the multiple representation. Thus, the Commission recognizes that neither multiple representation nor speculation about a potential for obstruction of an investigation by, for example, the more sharing of information provided by an interviewee to a subsequent interviewee, is a sufficient basis to exclude counsel.
The Commission cannot predict in any significant detail what set of circumstances will arise in particular investigations that will lead to application of the exclusion rule. In the proposed rule, however, the Commission did endeavor to identify some of the_ factual circumstances which would tend to support invocation of the rule. For instance, it seems clear that the Commission's interests in the integrity and effectiveness of its investigation may outweigh a witnesses' choice of counsel for multiple interests where there is reliable, factual evidence that a witness is withholding, or will withhold, information critical to the investigation because the information will be shared with the witnesses' employer or supervisor by virtue of multiple representation.
Thus, the Commission continues to believe that evidence that the employee had a concern that_his employment would be jeopardized by transmittal of information from the interview to _
the_ licensee would be. relevant. The Commission believes that evidence that the multiple representation would lead to disclosure of the substance of an interview to a future 12
i L
4 interviewee or subject in the investigation would also be relevant although not sufficient unless there were also concrete ovidence that the disclosure would obstruct and impede the investigation. !!owever, the Commission expects that it will be a raro case in which there is actual proof that the multiple representation will seriously obstruct and impede the investigation, 24g., critical information is being or will be withhold.
Somo commenters misunderstood the Commission's statement that concerns arise about inhibition of the candor of witnesses where the interviewee is represented by counsel who is paid by the licensee and also represents the licensee or licensee's officials under investigation, particularly where the matter at issue is whether the licensee's employees have been, or are being, harassed or intimidated for raising safety issues (56 FR 65949). These commenters viewed these statements as examples of casos in which the Commission would deem exclusion to be ,
appropriate. The Commission recognizes that these circumstances
- 4
'do not necessarily lead to non-disclosure of critical information or other serious impairment of the investigation. Exclusion of counsel under the rule is warranted only when there is also -
concrete ovidence, not-just more concern or speculation, that the.
investigation will'be obstructed and impeded as:a result of the-presence of the counsel representing multiple interests.
Several commenters expressed concern that the Commission-would find obstruction and-impediment to the. investigation where 13 gp g- r- ,w,- ,g <-ywe yy- +-
minor inconvenience results from such traditional activities of counsel as endeavoring to learn more about the investigation or to advise clients to testify truthfully but cautiously. The commission recognizes that those types of activities do not establish real obstruction and impediment to the investigation.
Indeed, these traditional activities of counsel are common to legal representation of any witness.
Some commenters fault the proposed rule's statement that disqualification may be based on concrete evidence that multiple representation will "directly or 1.directly" impede the i investigation. Several commenters state that the commission's -
use or these modifiers unjustifiably lessens and obscures the 3
" concrete evidence" standard.
The commission recognizes that-the court in Pros and csano did not use the modifiers "directly or indirectly" in referring to the requirement of concrete evidence of impsdiment to the investigation. Ilowever, the commission notes that the same modifiers were present in the final rule published on January 4, 1990 (55 FR 243), and that the court of appeals did not comment on their presence in that rule.
The key requirement is " concrete evidence" of obstruction and impediment. Whether the causation is described as direct or indirect, the question in a particular case will be whether there is concrete evidence that the presence of counsel representing-multiple interests would obstruct and impede the investigation.
It is the effects of multiple representation, not multiple 14 1
representation standing alone, that may in some cases impede the investigation. For instance, if there were concrete evidence that a present or future witness will not answer questions or provide evidence because his attorney's repiesentation of multiple interests will necessarily result in the sharing of the witness' testimony or evidence with a represented target, invocation of the rule could be warranted whether the cause of the impairment is described as direct or indirect. Clearly, a mero chain of inferences and speculation would not constitute
" concrete evidence." Nonetheless, the " concrete evidence" requirement does not preclude a showing of obstruction and impediment through indirect effects, but rather implicitly embraces the possibility of such a showing. Therefore, the Commission has decided to delete the phrase "directly or indirectly" from the rule as unnecessary.
For increased clarity, the Commission has also revised the standard for exclusion by stating the threshold requirement in S 19.18(b) as " concrete evidence that the presence of an attorney representing multiple interests would obstruct and impede the investigation or inspection ...." In the proposed S 19.18(b),
the req"irement was described as "concreto evidence that the investigation or inspection will be obstructed and impeded, directly or indirectly, by an attorney's representation of multiple interests." A similar change was made in the definition of "(e)xclusion" in S 19.3. The revised language tracks more precisely the judicial articulation of the threshold requirement.
15 1
Thus the revisions further affirm and clarify the Commission's :
intent to follow the judicial guidance.
D. Adequacy of the Procedures f
-?
NUMARC and another commenter stated that " consultation" by the investigating official with the office of the General Counsel before a decision to exclude counsel is ineffectual. without the requirement of consent by the Office of the General Counsel.
Another commenter recommended that the investigator be required to obtain a written opinion from the office of the General Counsel that the standard of " concrete evidence" has been met.
The Commission disagrees because it has already added numerous safeguards which it considers to be sufficient, including the
" consultation" requirement, to guide agency officials and prevent arbitrary action in the exclusion process. The rule requires that the interviewing official provide a written statewent of reasons for the exclusion to the witness whose attorney has been excluded and to the excluded attorney. The interviewing official must consult with the Office of the General Counsel prior to invoking the exclusion rule. The-witness whose counsel has been
! excluded may appeal the decision to the Commission and automatically obtain a stay of-the effectiveness of that decision pending decision by the commission.
of course, the commission may,also quash or modify the subpoena if it finds that the exclusion of counsel decision is 16 l'
,--- + ,.~rm,,-
, - , - ,,-,-- , ,y --c,-,,ys, - ,- , g 4w ,-,
4 not based upon concrete evidence or if the subpoena is otherwise unreasonable, or requires evidence not relevant to any matter in issue. Moreover, the commission (like the SEC) must still prevail in court in a subpoena enforcement proceeding if the person under subpoena declines to comply. A court in which the basis for the exclusion is litigated may also conduct an evidentiary hearing if the factual issues require it. SEC v.
Camp _q , 533 F.2d at 12.
NUMARC recommended that S 19.18(d) be revised to provide the witness and the witness' counsel an opportunity to appear before the Commission in the course of the Commission's evaluation of the appeal of an interviewing official's decision. The purpose would be to ensure that the adversely affected parties had a right to be heard. The Commission believes that the procedure in the final rule, providing a statement of reasons for exclusion and permitting the filing of a motion to quash, provides a reasonable mechanism for presentation of the views of affected parties. However, nothing in the rule prevents the witness moving to quash the subpoena from requesting an opportunity for an oral presentation in connection with the motion and stating the reasons supporting the need for oral presentation.
The comments of PROS included the suggestion that the rule, if issued, be amended to require that the witness be advised of the right to counsel at the time of an exclusion of counsel and prior to any subsequent interview. NUMARC recommended that internal procedures to implement the rule should be amended to 17
i direct NRC investigators to advise witnesses of the right to counsel, including a right to consent to multiple representation, and of the provisions of S 19.18, including the right to appeal any exclusion of counsel.
As a practical matter, a witness who is aircady represented by counsel can be expected to consult with counsel about such issues as the right to counsel, consent to multiple representation and witnesses' rights under this final rule.
Thus, while an investigator may reasonably inquire about issues of consent to multiple representation in connection with an investigative interview, it does seem necessary to require that an investigator provide general direction or advice on rights and limitations regarding an attorney's representation of multiple interests to a witness already represented by counsel. Moreover, the Commission was asked to require that investigators advise witnesses of the right to consent to multiple representation, although even under standards of professional conduct for lawyers such consent is subject to various conditions and exceptions.
E22, gig., Wheat v. United States, 486 U.S. 153 (1988) (district court may refuse waiver of conflicts of interest in cases where a potential for conflict exists); PTC v. Exxon, 636 F.2d 1336, 1342 (D.C. Cir. 1980) (district court's order to retain separate counsel because of potential conflict violated neither due process nor the APA). However, in order to ensure that the witness is aware of the Commission's procedures for appeal of the exclusion decision, the Commission has revised the text of the 18 i
l
proposed S 19.18(c) to require that the written notice of the reasons for exclusion include a description of the rights provided in 5 19.18(d), regarding the right to appeal the exclusion decision.
NUMARC recommended that proposed 10 CFR 19.18(e) be clarified to assure that a witness' interview is delayed automatically to at least the date of the receipt of the written statement of basis for exclusion. An automatic delay is c1carly unnecessary, however, if the witness chooses to proceed without counsol or with new counsel at an earlier time. Moreover, the proposed provision already permits the witness to request a reasonable period of time to obtain new counsel, and-the witness may even obtain an automatic stay of the subpoena during an appeal of the exclusion decision to the Commission.
Nonetheless, the Commission would not expect that an interviewing official would proceed with the interview of the witness until more than five days after the receipt by the witness and the counsel of the written statement of reasons for exclusion, unless the witness requests that the interview proceed without counsel or with new counsel at an earlier date.
Therefore, the Commission has revised the text of the proposed 10 CFR 19.18(e) to provide that the interview shall not be rescheduled to a date that precedes the expiration of the time provided under 10 CFR 19.18(d) for appeal of the exclusion of counsel, unless the witness consents to an earlier date.
19 I
i 9
Aside from this minimum delay, however, what constitutes a reasonabic period of timo for the continuation of an interview after exclusion of counsel must be determined on a case-by-case basis, with the interviewing official taking into account the relevant circumstances, including the availability of substituto counsel, the complexity of the caso and the grounds for exclusion, the date of actual notico to the witness and excluded counsel of the grour.ds for exclusion, and the Commission's nood to complete the investigation promptly in order to protect public health and safety.
PROS recommended that the witness whose counsel has been oxcluded be presented " concrete evidence" that the now counsel has a previous record of accomplishment in, and knowledge of, the nuclear industry that is on the same level as the excluded counsel. The Commission disagroos that it should have the burden of initiating an inv9stigation and making a finding on this question. The witness, not the commission, would choose now counsel. Many counsel and law firms appear in connection with Commission proceedings and investigations. Moreover, the Commission has already provided that a witness may either proceed without counsel or request a delay for a reasonable period of time to permit retention of new counsel.
20 i
l l
_ _ _ . - _ _ _ _ _ - - _ _ . . _ . _ _ _ _ ..__._..__-___...__.-...m.._._._
l I
Environmental Impact: Categorical Exclusion The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22 (c) (1) .
Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.
Paperwork Reduction Act Statement :
This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). Existing requirements were approved by the office of Management and Budget approval number 3150-0044.
Regulatory Analysis The APA affords individuals compelled to submit to agency I inquiry under subpoena the right to be accompanied by counsel or other representative of choice (5 U.S.C. 555(b)). This right to I
counsel guarantee is not absolute and may be circumscribed within l permissible limits when justice requires.- An exception has been recognized for cases in which there is concrete evidence that?the presence of counsel representing multiple interests during an investigative interview would impede and obstruct the agency's investigation.
l 21 j:
I
)
I Questions concerning the scope of the right to counsel have j arisen in the context of NRC investigative interviews of licensee employees when the employee is represented by counsel who also represents the licensee or other witnesses or parties in the investigation. This arrangement is not improper as a general matter. This final rule provides, however, that counsel representing multiple interests may be excluded from a subpoenaed interview if there is concrete evidence that counsel's presence would obstruct and impede the investigation. This final rule ,
also delineates responsibilities of NRC officials and rights of interviewees in connection with the exercise of the authority to exclude counsel. Thus, the rule is intended to further expeditious and satisfactory resolution of NRC's inquiry into.
matters concerning public health and safety. Guidance in this area should reduce delay and uncertainty in the completion of an investigation when questions of multiple representation-arise.
The foregoing discussion constitutes the regulatory analysis for this final rule.
Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act of:1980, 5 U.S.C. 605(b), the Commission hereby certifies that this final rule would not have a significant impact on a substantial number of small entities. The final-rule concerns an attorney's appearance at a. subpoenaed interview of a licensee's employee or-22
'- ~ '
.a , .J .
.. . - - . . . _ - _ _ - ~ . _ . - . _ - _ - _- . - . . - - . . .
. l other individual during an NRC investigation or inspection in circumstances where there is concrete evidence that the :
attorney's representation of multiple interests would obstruct [
and impede the investigation or inspection. It provides procedures for exercise of the authority to exclude that attorney from the interview in these limited circumstances and for challenge of a decision to exclude the assorney.
?
Backfit Analysis The NRC has determined that a backfit analysis is not required because these amendments do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a) (1) .
List of Subjects in 10 CFR Part 19 criminal penalties, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Occupational safety and health, Radiation protection, Reporting and recordkeeping.
requirements, Sex discrimination.
For the reasons set out in the' preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5'U.S.C.-552 and 553, the NRC is adopting the following amendments to 10 CFR Part 19.
23
, . _ , . - , , , ,--.v.~.. --. ..w, . , - . _ =r-.. . ,,' m, .- , -- ,. . . e
-_- - ..-. . . - - -. _=- _ - --- . . - - - - - - - - _._. - - - -
PART 19 -- NOTICES, INSTRUCTIONS AND REPORTS TO WORKERS:
INSPECTION AND INVESTIGATIONS i
- 1. The authority citation for Part 19 continues to read as follows:
Authority: Secs. 53, 63, 81, 103, 104, 161, 186, 68 Stat.
930, 933, 935, 936, 937, 948, 955, as amended, sec. 234, 83 Stat.
444, as amended (42 U.S.C. 2073, 2093, 2111, 2133, 2134, 2201, ,
2236, 2282); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.
5841). Pub. L.95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851).
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273); SS 19.11(a), (c), (d), and (e) and 19.12 are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C.
2201(b)); and SS 19.13 and 19.14(a) are issued under sec. 161o, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
- 2. In S 19.3, the definition of " Exclusion" is added to read as follows:
S 19.3 Definitions.
Exclus12D means the removal of counsel representing multiple interests from an interview whenever the NRC official conducting ,
the interview has concrete evidence that the presence of the counsel would obstruct and impede the particular investigation or inspection. ,
- 3. In S 19.18, paragraphs (b)-(e) are added to read as.
follows:
24 w w- -
-,-....v-. ,,--w.--, . , , , ,7 _ . , , , , . , .p p . . . . , , , ,,m , , , _ . ,
- _- - ._- - - . - - ~ _ _ . _ _ . - _ - - -- - -_ - - . .
4 5 19.18 Sequestration of witnesses and exclusions of counsel in I
interviews conducted under subpoena.
(b) Any witness compelled by subpoena to appear at an interview during an agency inquiry may be accompanied, represented, and advised by counsel of his or her choice.
Ilowever, when the agency official conducting the inquiry ;
determines, after consultation with the office of the General Counsel, that the agency has concreto evidence that the presence of an attorney representing multiple interests would-obstruct and impede the investigation or inspection, the agency official may prohibit that counsel from-being present during the interview.
(c) The interviewing official is to provide a witness whose counsel has been excluded under paragraph (b) of this section and the witness's counsel a written statement of the reasons supporting the decision to exclude. This statement, which must be provided no later than five working days after exclusion, must explain the basis for the counsel's exclusion. This statement must also advise the witness of the witness' right to appeal the exclusion decision and obtain an automatic stay of the effectiveness of the subpoena by filing a motion to quash the .
subpoena with the commission within five days of receipt of this written statement.
(d) Within five days after receipt of the written notification required in paragraph (c) of this-section, a witness
! whose counsel has been excluded may appeal the exclusion decision i
25 1
i by filing a motion to quash the subpoena with the Commission.
The filing of the motion to quash will stay the effectiveness of the subpoena pending the Commission's decision on the motion.
(c) If a witness' counsel is excluded under paragraph (b) of this section, the interview may, at the witness' request, either proceed without counsel or be delayed for a reasonable period of time to permit the rotontion of now counsel. The interview may also be roscheduled to a subsequent dato established by the NRC, -
although the interview shall not be roscheduled by the NRC to a date that precedes thu expiration of the time provided under 5 19.18(d) for appeal of the exclusion or counsel, unless the witness consents to an earlier date.
Dated at Rockville, Maryland this ___ day of ,
1992.
For the Nuclear Regulatory Commission, Samuel J. Chilk, Secretary of the Commission 26
a
-l i
e !
I
' I.
r I
a 6
9 i
t i
a
. 'i I
ENCLOSURE 2 i
3 s
i A
4 e
.1 l
l i
. -,t - = .a = -.
{
The Honorable Philip Sharp, Chairman Subcommittee on Energy and Power Committee on Energy and Commerce United States House of Representatives Washington, D.C. 20515
Dear Mr. Chairman:
The NRC has sont to the Office of the Federal Register for publication the enclosed final rule amending 10 CFR Part 19.
These amendments replace rules on exclusion of counsel from interviews under subpoena which were revoked after they were struck down by the United States Court of Appeals for the District of Columbia Circuit in the case of Professional Reactor Onerator Society v. United States Nuclear Reculatory Commission, 939 F.2d 1047 (D.C. Cir. 1991).
The new amendments follow the guidance of the appeals court by providing that an agency investigator may exclude counsel representing multiple interests in connection with an NRC investigation where the agency investigator has "concreto evidence" that the investigation would be obstructed and impaired by the presence of counsel representing multiple interests at the interview.
Sincerely, Dennis K. Rathbun, Director Office of Congressional Affairs
Enclosures:
as stated cc The Honorable Carlos J. Moorhead Enclosure 2 I
i e !
l l
)
The Honorable Peter H. Kostmayer, Chairman Subcommittee on Energy and the Environment committee on Interior and Insular Affairs United States House of Representatives Washington, D.C. 20515
Dear Mr. Chairman:
The NRC has sent to the office of the Federal Register for publication the enclosed final rule amending 10 CFR Part 19.
These amendments replace rules on exclusion of counsel from interviews under subpoena which were revoked after they were struck down by the United States court of Appeals for the District of Columbia Circuit in the case of Professional iteactor Operator Society v. United States Nuclear Reculatory Commission, 939 F.2d 1047 (D.C. Cir. 1991).
The new amendments follow the guidance of the appeals court by l providing that an agency investigator may exclude counsel representing multiple interests in connection with an NRC investigation where the agency investigator has " concrete evidence" that the investigation would be obstructed and impaired by the presence of counsel representing multiple interests at the interview.
Sincerely, Dennis K. Rathbun, Director Office of Congressional Affairs
Enclosures:
- as stated cc: The Honorable John J. Rhodes y w -
,.9-.9 -er=*
l .
The Honorable Bob Graham, Chairman Subcommittee on Nuclear Regulation committee on Environment and Public Works United States Senate Washington, D.C. 20510
Dear Mr. Chairman:
The NRC has sont to the Office of the Federal Register for publication the enclosed final rule amending 10 CFR Part 19.
These amendments replace rules on exclusion of counsel from interviews under subpoena which were revoked after they were struck down by the United States Court of Appeals for the District of Columbia Circuit in the case of Professional Reactor Operator Society v. United States Nuclear Reaulatory Commission, 939 F.2d 1047 (D.C. Cir. 1991).
The new amendments follow the guidance of the appeals court by providing that an agency investigator may exclude counsel representing multiple interests in connection with an NRC investigation where the agency investigator has " concrete evidence" that the investigation would be obstructed and impaired by the presence of counsel representing multiple interests at the interview.
Sincerely, Dennis K. Rathbun, Director office of Congressional Affairs
Enclosures:
as stated cc: The Honorable Alan K. Simpson
m,s 3 [.$,
"- 1 The Honerable J. Bennett Johnson, Chairman
- Subecisaittee on Energy and Water Development Committee on Appropriations
~ "
United States Senate Washington, D.C. 20510
Dear Mr. Chairman:
The NRC has sent to the Office of the Federal Rt. :.ter for '
publication the enclosed final rule amending 10 .A Part 19.
These amendments replace rules on exclusion of counsel from %
interviews under subpoena which were revoked after they were
, struck down by the United States Court of Appeals for the District of Columbia Circuit in the case of Professional React-Operator Society v. Unite *. States Nuclear Reaulatory Commission,
^'a F :d 1047 (D.C. Cir. 91).
The now amendments follow the guidance of the appeals court by providing that an agency investigator may exclude ccunsel representing multiple interests in connection with an NRC investigation where the agency investigator has " concrete
, evidenca" that th investigation would be cbstructed and impaired by the presence i
- counsel representing multiple interests at the
.aterview.
Sincerely, Dennis K. Rathbun, Director Office of Congressional Affairs
Enclosures:
as r:tated cc: The Honorable Mark O. Hatfield
t l
l The Honorable Tom Bevell, Chairman Subcommittee on Energy and Water Development Committee on Appropriations United States House of Representatives Washington, D.C. 20515 Donr Mr. Chairman:
The NRC has sent to the office of the Federal Register for publication the enclosed final rule amending 10 CFR Part 19.
These amendments replace rules on exclusion of counsel from interviews under subpoena which were revoked after they were struck down by the United States Court of Appeals for the District of Columbia Circuit in the case of Professional Reactor Operator Society v. United States Nuclear Reculatory Commission, 939 F.2d 1047 (D.C. Cir. 1991).
The new amendments follow the guidance of the appeals court by providing that an agency investigator may exclude counsel representing multiple interests in connection with an NRC investigation where the agency investigator has " concrete evidence" that the investigation would be obstructed and impaired by the presence of counsel representing multiple interests at the interview.
Sincerely, Dennis K. Rathbun, Director office of Congressional Affairs
Enclosures:
as stated cc: The Honorable John T. Myers
k 9
ENCLOSURE 3
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _____m___
t NRC ISSUES PROPOSED REQUIREMENTS FOR EXCLUSION OF COUNSEL FROM INTERVIEWS UNDER SUBPOENA The Nuclear Regulatory Commission has amended its regulations to provide for the exclusion of counsel from interviews of a subpoenacd witness when that counsel represents multiple interests in the investigation or inquiry and there is concrete evidence that such representation at the interview would obstruct and impede the investigation. The amendments are designed to ensure the integrity and efficacy of the investigative and inspection process.
In an earlier rule issued on January 4, 1990, the Commission had provided for the exclusion of counsel representing multiple interests from interviews under subpoena when the NRC official conducting the interview had a " reasonable basis" to believe that the investigation might be obstructed, impeded or-impaired. -In a decision on July 23, 1991, however, the United-States Court of Appeals for the District of Columbia Circuit vacated those regulatory provisions as insufficiently rigorous for infringement on the right of a witness to counsel of_ choice. The new rule o follows the guidance c" the appeals court in adopting a " concrete l'
evidence" standard fi.e m yclusion of counsel.
Enclosure 3