ML20126J449

Final Rule, Exclusion of Atty from Interviews Under Subpoena. Rule Would Ensure Integrity & Efficacy of Investigative & Insp Process

ML20126J449
Person / Time
Issue date:	12/18/1992
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
References
FRN-56FR65949, FRN-57FR61780, RULE-PR-19 AE11-2-019, AE11-2-19, NUDOCS 9301060155
Download: ML20126J449 (26)

Text

{{#Wiki_filter:_ ,a,,.,. k$,(b _ 2' DOCiGT I!U'.GER d o W;M:!EGBil!.G Y.I b 1 4; f5$.FAiMV9); t7590-01)Nc$ i -NUCLEAR-REGULATORY _ COMMISSION. y -g 10-CFR Part 19 l ~ $U W:n W.ngfgg' ' M. IM i f o m.j-RIN: L 3150-AE11- - Sk t.t,p - -- q Exclusion Of Attorneys From Interviews Under Subpoena AGENCY: Nuclear' Regulatory Commission.- ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission - (NRC) -is amending its _ 4 regulations to provide for the exclusion of counsel from;a ~ subpoenaed. interview when that counsel repre'sents multiple interests'in the investigation and there is-concrete evidence

that the counsel's presence at the interview would obstruct and impede the investigation.

These amendments.'are designed to-ensure the integrity and efficacy-of tho' investigative-and-inspection' process. These amendments provide a' standard and-procedures for making and effectuating the-decision:to exclude + counsel.~ ~~s-+-v sw ...c EFFECTIVE DATE: (Insert date 60. days after date of publication' }

in tho' Federal-Register)

FOR FURTHER INFORMATION. CONTACT: ' Roger K. Davis, office-of;the General Counsel, U.S. Nuclear Regulatory. Commission, Washington,._ DC 20555, telephone: .(3 01) 492-1606.

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_m._ ,. 7 )7 4 4 J 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 the 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 investination. 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 alia, for the exclusion of counsel for a. subpoenaed _ witness when that: counsel represented multiple interests and there existed a reasonable-basic to believe=that such representation would prejudice, impede, or impair the incegrity of_the-inquiry._ Upon legal challenge, the United States Court-of AppealsLfor the-District of Columbia Circuit struck.down the portion of the final rule _on attorney exclusion. Professional Reactor onerator 2'

Society v. Nuclear Reaulatory Commission, 939 F.2d 1047, 1052 (D.C. Cir. 1991) (hereafter " PROS"). L specifically, the-Court of Appeals ruled that the NRC must apply the same standard for attorney exclusion that the Court had-l t previously required of the Securities & Exchango Commission by virtuo of the Court's interpretation of the right-to-counsel I guarantee of the Administrative Procedure Act (APA), 5 U.S.C. 555(b). The Court stated that to excludo counsel "the agency must como forward with 'concreto evidence' that the counsel's presenco would impedo its investigation." ERQS, 939 F.2d at 1049 (citing SEC v. Csang, 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 "concreto evidenco" requirement. On December 19, 1991 (56 FR 65948), the Commission responded to the appeals court decision'by. publishing notico in the Federal Register of the Commission's revocation of its rule on attorney exclusion, 120., the definition of " exclusion" appearing in 10 CFR 19.3 and the standard and procedures for attorney exclusion appearing in 10 CFR.19.18(b)-(e). On December 19, 1991 (56 FR 65949), the e Commission also published:the proposed amendments in the Federal Registor that would conform the NRC's attorney exclusion requirements to the Court's ruling.. 3 .a.s... _.,,,,,_.,.- -.._-_._ -.. _ _.. -.. _. i'

1 II. Responses to Public Comments on the Proposed Rule The Commission received nine comments on the proposed December 19, 1991 rule. The commentors included one individual, the Nuclear Utility Management and Resources Council (NUMARC), three utilities endorsing HUtiARC's comments, the Professional Reactor Operators Society (PROS), a law fira commenting on behalf of PROS as well as savon 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 availablo for inspection and copying in the agoney's Public Document Room, 2120 L Strcot 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 thn threshold requirement as " concrete evidence that the presence of an attorney _ representing multiplo interests would obstruct and impode the investigation or inspection...." A similar change was made in the definition of "(o)xclusion." The Commission han-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

e expiration of the timo provided under 10 CFR 19.18(d) for appeal of exclusion of counsel, unless the witness consents to an earlier date. In addition, the final rule requires that-the I written notice of the grounds for counsel's exclusion also describo the right to appeal tho exclusion to the Commission and thoroby obtain an automatic stay of the offectiveness of the subpoena pending the Commission's decision. Because thoso changos are logical outgrowths of the proposed j amendments and no other modifications are mado, the Commission i concludos that the final rulo should becomo offective without further notico and comment. The Commission's responses to the concerns of the commentors are not forth below. A. Nood for the Rule one commenter argued that the expected rarity of application of the rulo demonstrated the absence of a nood'for the rulo. Tho-Commission does expect that the rule will be invoked only in raro and compelling casos. 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 n providing to witnesses, _ counsel,'and agency staff both a general standard for determining whether disqualification.is appropriato and proceduros for1 implementing and challenging thoso determinations, the final rulo should reduce delay, uncertainty 5 w-- .,,v-.- ,.nn.,,.,----,y r-, ,-ws,,.,,-an, ,,y .-e v. ,,,,-,,a ,,c..,r-. ..,,.i - r,,,,.., .,n., w,-..

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,,ii i J l s l l and confusion associated with considoration of the exclusion of t counsel. l Although several commenters emphasized the circumstances in which courts have found insufficient grounds for exclusion of counsel by the Securitics and Exchango Commission (SEC), the samo courts havo explicitly recognized the propriety and utility of this type of rulo. In Csnoo, the United States Court of Appeals for t.ho District of Columbia Circuit stated (533 F.2d at 11) with regard to the SEC'u sequestration rule that -- Wo do not question its utility in preserving the integrity. of an investigation and recognizo its practical noconsity in cortain circumstancos. 533 F.2d at 11. In SEC v. Ilicashi, the Ninth Circuit said that "[t]ho reason for and purposo of tho (SEC's) sequestration rule are clear and there can bo 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 I violations of the Atomic Energy Act and NRC regulations 1s an ~ important means of ensuring public health and safety in operation of nuclear-power plants and other uses of nuclear _ material-(agn 10 CPR Part 19; 10 CFR 1.36).- NRC investigators often interview' licensons, their' officials and employees, and other individuals - having possible knowledge of matters under investigation. In many casos, investigating officials conduct extensivo and difficult inquirios to datornine whether violations were willful 6 -t y p-yr ie - t-p, a-m or w-wr- --gpc ,o.we-,-.,-,,.v,p, ,, g y,-,. ,,,--g-,c- ,--,,-nnmme. .g-.e -o,m-#4-- --.,M,.mn-,

r and/or whether licensee's managemont engaged in wrongdoing.

Yet, offective identification and correction of unsafo practicos or t

regulatory violations through an investigativo or inspection process can depend upon the willingness of individuals having knowledge of the practicos 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 employees or its contractors. While the purposes of the rulo relato primarily to interviews conducted under subpoena by the-NRC's Offico of Investigations, the NRC's predominant user of investigativo subpoenas, the final rulo-would also apply to NRC. inopoctions and investigations conducted under subpoena by other NRC officials. The ru]o does not apply, however, to subpoenas issued pursuant to 10 CFR 2.720, which applios to subpoenas requestod in hearings. Soveral commenters argued that there is no need for the rule because of the availability of other means for ensuring proper P conduct by counsel (cin., 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 causon'of impairment of-the investigation may justify--consideration-of criminal'or other procoodings. ' However, the Commission's objectives, standard for-action, burden-of proof, and remedy, itg., exclusion of counsel-7 4, .,-.m ,m.. ........J. --e

i { from particular interviews, may diffor widely from those accociated with criminal statutos or rules of conduct. Thorofore, the possibility of collateral or future actions a addressing misconduct in some casos pursuant to other authority t is an insufficient basis to ignore the potential nood for a direct datormination of whether the counsel representing multiple interests should be excluded from an interview. As noted in the supplomontary information included in the notico of the proposed rule (56 FR 65949, 65950; December 19, { 1991), questions regarding impairmont of investigation as a result of multiplo representation have arison in some casos 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 1 improper. The Commission believes that the final rulo will facilitato resolution of this type of question when it arises in the future. As the Commission has stated (56 FR 65949, 65950; December 19, 1991), the justification for this ruloyis not premised on whether any nrior caso actually involved " concrete evidenco" 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 clininate unnecessary regulatory burdens (see, e.a., 57 FR 4166; February 4, 1992 and 57 FR 39353; August 31, 1992). The

h Commission-disagrees with the-suggestion.that the rule fails to

-strike a fair and reasonable balance between the right to counseli 8 -i ..O., e .L:.....,,,-.,, .,,..._,.~.,-wn, y

-and the nood for information in investigations. In this caso, the Commission is expressly adopting the judicial resolution of that issue. That resolution does not involvo a highly [ t .proscriptivo-standard. Rathor, it involves a domanding general standard that is expected to havo very limited application in a fraction of HRC interviews under subpoena. NUMARC stated that the rule was unnecessary because NRC t rules currently in offect (10 CFR Part 2) provido a mechanism for imposing sanctions for attorney misconduct in various contexts. I The existing provisions directly relating to standards of i practico (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 excludo counsel because of obstruction or impediment of investigative interviews resulting-from multiple representation. Thoroforo, the final rule servan purposes that are not mot by the general 10 CFR Part 2 - Rules of practico for domontic licensing procandings and issuance of orders. D. Attorney Misconduct Most commentors indicated that tho; proposed standard for ~ exclusion of counsel was deficient becauso it did not require a. showing of misconduct'or wrongdoing by the-attorney representing multiple-partlos. 'Those commentors generally concado that-unethical or illegal conduct by counsol,-such'as encouraging or 4 9 f , ~.. -~a

4 I condoning perjury or engaging in a pattern of overt disruption of the interview, would supply grounds for exclusion. Concreto evidence that such conduct is obstructing and impeding an l Investigation could load to exclusion under the rule. }towever, the Commission does not find as a matter of logic or law that there is no possibility of a finding of concreto evidence of impairmont on grounds other than misconduct or wrongdoing by counsel. U For instance, the Commission does not find it.nocessary to 4 rulo out application of the rule to a caso presenting concreto ovidenco of nondisclosure of information by a witness as a resultL of-the presence of counsel representing multiple interests even though the counsel has not engaged in misconduct.

Moreover, whether or not an investigation will bo impeded could be irrelevant in a puro misconduct case.

I The Commission also does not interpret the legal procedent as permitting disqualification only for misconduct, wrongdoing, or activo-obstruction by counsel. Indeed, in stating the standard to which the Commission must adhere, the court in Pros did not mandato "concreto evidenco" of wrongdoing but rather 1 "'concreto evidence' that-counsel's prosonce would impede:(the agency's) investigation." Pros, 939 F.2d 1049 (citina SEC v. Coano, 533 F.2d at.11). The commenters insisting on the necessity;of misconduct or-wrongdoing as tholessential substant..ve element for disqualification point to Csano, in 'thich.the court of Appeals 10 u-

agreed with the lower court's finding that the SEC had failed to produce any "concreto evidence" of misconduct (533 F.2d at 8). While that opinion clearly affirmed an evidentiary threshold of "concreto evidence" in relation to the alleged misconduct, the 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'n specific direction was that "before the SEC may exclude an attorney from its proceedings, it ~ must come forth... With $ concrete evidence' that (counsel's) preconce would obstruct and impede its investigation." Id. at 11. Therefore, the Commission does not interpret _qsano 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 (56 FR 65949-65950; December 19, 1991) 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 even reasonable concern about potential impairment.

Rath9r, 11

I oxclusion of counsel requires real or tangible evidenco demonstrating that the investigation would bo impeded as a result q of the multiple representation. Thus, the Commission recognizes j that neither multiple representation nor speculation about a f potential for obstruction of an investigation by, for example, .j the more sharing of information provided by an interviewoo to a j 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 instanco, it seems clear that the commission's interests in the integrity and offectiveness 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 virtuo-of multiple representation, Thus, the Commission continues to believe that evidence that !the employee had a' concern thac his employment would be jeopardized tur transmittal of information from the interviewLto the licensee would_be' relevant, The Commission _ believes that evidence that the multiple representation would. lead to-5 ' disclosure of tho' substance of an interview to a future 12 1 il w : y... - n, v kn,..., .,,--,..J,n ..n... .,-.-.v -,. - - ~. a .n,+-~46,

'~ interviewee or subject in the investigation would also be j i relevant although not_ sufficient unless there were also concrete evidence that the disclosure would obstruct and impede the investigation. However, the Commission expects that it will be a l rare case in which there is actual proof that the. multiple representation will seriously obstruct and impede the i investigation, gig, critical information is being or will be f withheld. Some commenters misunderstood the Commission's statement that concerns arise about inhibition of the candor of witnessos 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 in whether the licensee's employees have been, or are being, harassed or intimidated for raising safety issues (56 FR 65949; December 19, 1991). These commenters viewed these statements as examples of cases in which the Commission would deem-exclusion to be appropriate. The Commission recognizes that these circumstances do not necessarily lead to non-disclosure of critical information or other serious impairment of.the f investigation. Exclusion of' counsel under the rule is warranted-1 only when there is also concreto evidence, not just mere concern or speculation, that the investigation will be obstructed and impeded as a result of the presence of the counsel representing -multiple interests. i-13 1 ?

s$ 4 Soveral commenters expressed concern that the Commission would find obstruction and impediment to the investigation whero minor inconvenience results from such traditional activities of counsel as ondeavoring to learn more about the investigation or J to adviso clients to testify truthfully but cautiously. The l commission recognizes that these types of activities do not establish real obstruction and impediment to the investigation. Indeed, theso 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 concreto evidence that multiple representation will "directly or indirectly" impedo the investigation. Several commenters stato that the commission's q use of these modifiers unjustifiably lessons and obscures the " concrete evidence" standard. The Commission recognizes that the court-in Pros and Csano j did not use the modifiers "directly or indirectly" in referring - to the requirement of concrete evidence of impediment to the investigation. Ilowever, the Commission notes that the samo 3 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 prosence 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 concreto evidence that the presence.of counsel representing; I t 14 1 E T v w -ie' ,y+.yw y.Tr$+Mvwr h-VT'N7Y f'-----w-a-r..ryn-r ys g M VysM+y y,, y rw&---ty w-emy e<wy-- y +yg - +->*--'nat*wmwy 7 9P-v -w WM = -9,9. py-%pyy, rr -w e

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1 I multiple interests would obstruct and impedo the investigation. I It is the offects of multiple reprocentation, not multiple reprocontation standing alone, that may in somo casos impedo the investigation. For instanco, if there were concreto evidenco. that a present or future witness will not anover questions or provido evidence becauco his attornoy's representation of l f multiple interests will necessarily result in the sharing of the l witnesn' testimony or evidenco with a represented target, l invocation of the rule could be warranted whether the cause of j the impairmont is doacribed as direct or indirect. Clearly, a moro chain of inforences and speculation would not constituto "concroto evidenco." Nonetholoss, the "concreto ovidence"- requirement does not precludo a showing of obstruction and impediment through indirect offects, but rather implicitly embraces the possibility of such a showing. Thorofore, the Commission has decided to doloto the phrase "directly or indirectly" from the rulo 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 "concreto evidenco that the presence of an attorney representing multiplo interests would obstruct and impedo.the investigation or inspection...." In the propocod 5 19.18 (b), the requirement 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 chango.was mado in the definition 15 P e- ~ - + + m -er, ,,,me,+,w, n - e es e ne-,,o, e,-n,, -4 y,-w,e-n,,,4,awwm, ,q 3,,,n--e,r-- ,y- -m-vg.,~,,,y-7 +

of "(o)xclusion" in S 19.3. The revised language tracks more precisely the judicial articulation of the threshold requiremont, Thus the revisions further affirm and clarify the Commission's intont to follow the judicial guidanco. D. Adequacy of the Procedures 1 llUMARC and another commentor stated that " consultation" by the investigating official with the offico of the General Counsel-before a decision to exclude counsel is inoffectual without-the requiremont of consent by the Offico of the General Counsel. - Another commentor recommended that the investigator be required to obtain a written opinion from the Office of the General Counsel that the standard of "concreto evidence" has been mot. The Commission disagrees becauce it has already added numerous safeguards which it considers to La sufficient,' including the " consultation" requirement, to guido agency officials and provent arbitrary action in the exclusion process. The rule requiros' that the interviewing official provide a written statement of reasons for the exclusion to the witness whose attorney has-boon excluded and to the excluded attorney.. The interviewing official i must consult with tho' Office of the General Counsel priorLto-e invoking the exclusion rule. The witness whoso counsel has been- - excluded may' appeal tho' decision-;to-tho. Commission and-automatically obtain a-stay of-tho-effectiveness of that decision - pending decision by.the Commission. 16 i l + .,._.m ,_1-..__..

of course, the Commission may also quash or modify the subpoena if it finds that the exclusion of counsel decision is 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 subpoenn 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. Ennpg, 533 F.2d at 12. 11UMARC 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 cource 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 17

? I s prior to any subsequent interview. HUMARC recommended that i internal proceduros to implement the rule should be amended to direct NRC invoutigators 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 mattor, a witness who-is already represented by counsol can be expected to consult with counsol 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 4 of consent to multiple representation in connection with an investigativo interview, it does not soom necessary to requiro that an investigator provide general direction or advice on rights and limitations regsrding an attorney's representation of multiplo interonts 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 lawyors such consent is subject to various conditions' and exceptions. E22, 2A9., Eh. eat v. United States, 486 U.S._153 (1988) (district court may refuse waiver of conflicts of interest; in casos where a'pctential for' conflict exists); FTC v.'

Exxon, 636 F.2d 1336, 1342 (D.C.~Cir. 1980) (district court's order to retain separato counsel because of' potential conflict violated neither due process nor the APA).

However, in order _to ensure 18

I 4 that the witness is aware of the Commission's proceduros for - appeal of the exclusion decision, the Commission has revised the text of the propocod S 19.18(c) to require that the written t notico of the reasons for exclusion include a description of the rights provided in S 19.18(d), regarding the right to appeal the 1 exclusion decision. HUMARC recommended that proposed 10 CFR 19.18(o) bo clarified to assure that a witness' interview is delayed automatically to at least the date of the receipt of the written statomont of basis for exclusion. An automatic delay is clearly _ unnecessary, however, if the witness choonos to proceed without counsel or with now counsel at an earlier time. Moreover, the proposed provision already permits the witness to request a reasonablo period of timo to obtain now counsol, 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 recolpt by the witness and the counsel of the written statement of reasons for - 1 exclusion, unless the witness requests.that the interview proceed without counsel or with now counsel at an earlier'dato. - Thorofore, the Commission has revised the text of the proposed 10 CFR 19.18(e) to provide that the interview shall not be i roscheduled to a date that procedes the expiration lof the time l 19 i .w--.r-,,,--o, e,, we,-.~,,,-4,, ...,,,%..y,,-,w y. ,.v%v.#.rw.,~,,. ,e-....m.~., yco.....,m"ww....-....~..-e. ~~. **...

provided under 10 CFR 19.10(d) for appeal of the exclusion of councol, unless the witneun consents to an earlier date. Anido from thin minimum delay, however, what constitutes a reasonable period of time for the continuation of an interview after exclucion of councul must be determined on a case-by-case basin, with the interviewing official taking into account the relevant circumstances, including the availability of substitute counsel, the complexity of the case and the grounds for exclusion, the dato of actual notico to the witnean and excluded councel of the grounds for exclusion, and the Commicolon's need to complete the investigation promptly in order to protect public health and nafety. PROS recommended that the witness whose councol has boon excluded be presented " concrete evidence" that the new counsel han a previoun record of accomplishment in, and knowledge of, the nuclear inductry that in on the came level au the excluded counsel. The commisolon disagrees that it should have the burden of initiating an investigation and making a finding on thia qu-tion. The witnean, not the Commission, would choose new councol. Many councc1 and law firms appear in connection with Commission proceedings and investigations. Moreover, the Commission han already provided that a witnean may either procood without counsel or requent a delay for a reasonable period of time to permit retention of new counsel. 20

Environmental Impacts categorical Exclusion The llRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(1). Thoroforo, neither an environmental impact statomont nor an environmental assessment has been prepared for this final rule. paporwork Reduction Act Statomont This final rule does not contain a new or amended information collection requiremont subject to the Paporwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). Existing requirements were approved by the of fico of Management and Budget approval number 3150-0044. Regulatory Analysis The APA affords individuals compelled to subm'it to agency inquiry under subpoena the right to be accompanied by counsel or other representative of choice (5 U.S.C. 555(b)). This right to counsel guarantee is not absolute and may be circumscribed within permissible limits when justice requires. An exception has been recognized for casos in which there is.concreto evidence that the presence of councol representing multiplo interests-during an investigative interview'would impede and obstruct the' agency's investigation. L 21 j L.

,a 4 Questions concerning the scopo of the right to counsel have arisen in the context of NRC investigativo interviews of licensoo 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 l mactor. This final rulo providos, however, that counsol representing multiple intorests may be excluded from a subpoenaed intorview if there is concrete evidence that counsol's prosence would obstruct and impedo the investigation. This final rule i also delineaten responsibilities of NRC officials and rights of interviewees in connection with the exercise of tha authority to-excludo counsel. Thus, the rule is intended to further l oxpeditious and satisfactory resolution of HRC's inquiry into -{ matters concerning public health and safety. Guidanco in this area'should reduco delay and un;crtainty in the completion-of an investigation when questions of multiple representation arise. l r The foregoing discussion constitutes _the regulatory analysis for l this final rule. + t itegulatory 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 l - of small entities. The final rule _ concerns an attorney's 1 appearance.at a subpoenaed interview of a-licensee's employee or L 22 h 1 =.

i other individual during an NRC investigation or inspection in circumstances where there is concreto evidence that the attorney's reprosentation of multiple interests would obstruct r and impedo the investigation or inspection. It provides I procedures for exerciso of the authority to exclude that attornoy from the interview in those limitod circumstances and for challenge of a decision to exclude the attorney. l 1 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 recordkooping + requirements, Sox discrimination. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Roorganization 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. ~ f 23 _.. _. a _,a_.._...,----__,__.,.....,_

._.___m.__..___... _ _ _. _ _ _ _ _ _. -. _ _. _ _. _. _ _. ~. _ _. r 4-l PART 19 -- IlOTICES, INSTRUCTIONS AND REPORTS TO WORKERS: INSPECTION AND INVESTIGATIONS -1. The authority citation for Part 19 continues to read as follows: Authority: Socs. 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). l 2. In S 19.3, the definition of " Exclusion" is added to t road as follows: S 19.3 Dofinitions, e Exclusion means the removal of counsel representing multiple i interests from an interview whenever the NIK: official conducting tho interview has concreto evidence that the presence of the counsel would obstruct and impedo the particular investigation or inspection. 3. In S 19.18, paragraphs (b)-(e) are added to read as I follows; g 19.18 Sequestration of witnesses and exclusions of counsel in interviews conducted under subpoena. 1 .s (b)'Any witness compelled by subpoena:to appear at an L interview during an agency inquiry may be accompanied,. 24 u ,.a-x-.-..--,-,

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0 1 i' represented, and advised by counsel of his or her choice. However, when the agency official conducting the inquiry [i determines, after consultation with the office of the General i i Counsel, that the agency has concrete evidence that the presence of an attorney representing multiple interests would obstruct and impedo 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 excludo. 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 i 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-no",ification required in paragraph (c) of this section, a witness I -whose counsel'has been excluded may appeal the_ exclusion decision by filing a motion to_ quash the subpoena with the Commission. The filing of the motion to quash will stay the effectiveness of i i the subpoena pending the Commission's decision on the notion. i I (e) If a witness' counsel is excluded under-paragraph (b) of 'this section, the interview may, at the witness' request, either 25 .__,a -._,_,u._._..._

[ ) i, 1 i i proceed without counsel or be delayed for a reasonable period of timo to permit the retention of new counsel. The interview may also be roscheduled to a subsequent data established by the NRC, although the interview shall not be rescheduled by the NRC to a [ date that procedes the expiration of the tipo previded under i S 19.10(d) for appeal of the exclusion of counsel, unicss the witness consents to an earlier date. 4 Dated at Rockville, Maryland this 18th day of December i 1992. For the Nuclear Regulatory Commission, A i C Samuel J. Chi k, g Socrotary of t e Commission r r 26 s 4----+

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