ML20136B221

Advises That NRC Statement on Policy in Investigations, Insps & Adjudicatory Proceedings Is Good Beginning on Difficult issue.Marked-up Statement Encl

ML20136B221
Person / Time
Issue date:	11/08/1984
From:	Lieberman J NRC
To:	Olmstead B NRC
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References
FRN-48FR36358, RULE-PR-2 AB78-1-012, AB78-1-12, NUDOCS 8511200158
Download: ML20136B221 (1)

Text

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November 8, 1984

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Note to Bill Olmstead This is a good beginning on a difficult issue. I've enclosed a marked up copy which I would like to discuss with you.

I have sent a copy to Jim Sniezak in-view of his interest in confidentiality. This may be an opportunity to indicate tnat 0I will be represented by staff counsel in NRC W proceedings.

2 James Lieberman c.

6 8511200158 851115 48F 36358 PDR

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i UNITED STATES p ' M )p ly NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 3,Q; %Af c'y s NEMORANDUM FOR:

Addressees on Attached List DCT 2 21984

-FROM:

William J. Olmstead Director and Chief Counsel Regulations Division Office of the Executive Legal Director

SUBJECT:

NRC STATEMENT OF POLICY ON INVESTIGATIONS, INSPECTIONS AND ADJUDICATORY PROCEEDINGS - INITIATION OF RULEMAKING TO ESTABLISH SPECIAL PROCEDURES FOR RESOLVING CONFLICTS CONCERNING THE DISCLOSURE OR NONDISCLOSURE OF INFORMATION

' Attached for your review and coment is a draft Federal Register notice of proposed rulemaking containing proposed amendments to 10 CFR Part 2.

Prepared in response to the Comission's instructions in its recent Statement of Policy on Investigations, Inspections and Adjudicatory Proceedings ~(49 FR 36032-36034, September 13, 1984, copy attached) the proposed amendments would establish procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an NRC investigation or inspection or provided by a confidential source and deemed relevant and material to an adjudication. Since the Comission plans to publish the proposed amendments for public coment by December 15, 1984 at the latest, we need to receive any comments which you may have on or before November 9, 1984.

2 If you have specific questions or concerns, please do not hesitate to call me (ext. 27203) or Jane R. Mapes (ext. 28695) of my staff.

udL OLzu William J. Olm tead Director and Chief Counsel Regulations Division Office of the Executive Legal Director Attachments:

As stated bm YY ?: l k.) D f S

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ADDRESSEES TO MEMORANDUM DATED:

lll7[. 2 2. lg84

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Harold R. Denton, Dir., NRR John G. Davis, Dir., HMSS

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' Robert B. Minogue, Dir., RES Richard C. DeYoung Dir., IE Kenneth E. Perkins, Jr., IE Ben B. Hayes, Dir., 01 Roger Fortuna, 01 William J. Ward, 01 Sharon Connelly, Dir., 01A G. Wayne Kerr, Dir., SP Patricia G. Norry, Dir., Adm.

Joseph M. Felton, Dir., DRR John D. Philips, Chief, RPB Joseph J. Fouchard, Dir., PA Alan S. Rosenthal, Chm., ASLAP Gary J. Edles, ASLAP B. Paul Cotter, Jr., Chm., ASLBP Robert M. Lazo, ASLBP David L. Prestemon, ASLBP Ivan.J. Smith, ASLBP Herzel H.E. Plaine, GC Martin G. Malsch, GC James A. Fitzgerald, GC Richard P. Levi, GC Edward S. Christenbury, ELD Joseph Scinto, ELD Lawrence Chandler, ELD Stuart Treby, ELD Joseph Rutberg, ELD Edwin Reis. ELD Joseph Gray, ELD Hudson Ragan, ELD Edward Shomaker, ELD James:LiebermbhDELD?

Thomas E. Murley, Rgn. I Jay Gutierrez, Rgn. I James P. O'Reilly, Rgn. II Bradley Jones, Rgn. II James G. Keppler, Rgn. III Bruce Berson, Rgn. III Robert Martin, Rgn. IV William Brown, Rgn. IV John B. Martin, Rgn. V Lewis Sho11enberger, Jr., Rgn. V

OCT 2 21984 NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 Adjudications - Special Procedures for Resolving Conflicts Concerning the Disclosure or Nondisclosure of Information AGENCY:

Nuclear Regulatory Commission.

ACTION:

Proposed rule.

SUMMARY

The Nuclear Regulatory Commission is considering amending its rules of practice to provide special procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an NRC investiga-tion or inspection or provided by a confidential source and deemed relevant and material to an adjudication. Prepared at the express direction of the Commission, the proposed amendments apply to all NRC offices that have information relevant and material to an adjudication. The proposed amend-ments require jot camera presentations and follow guidance contained in the Commission's recent statement of policy on investigations, inspections and adjudicatory proceedings.

DATES:

Comments must be received on or before Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.

• Insert date 60 days after date of publication in Federal Register.

ADDRESSES:

Interested persons are invited to send written comments or suggestions to the Secretary of the Commission, U.S. Nuclear Regulatory s

Commission, Washington, D.C. 20555, Attention: Docketing and Service Branch. Comments may also be delivered to Room 1121, 1717 H Street, N.W.,

Washington, D.C. between 8:15 a.m. and 5:00 p.m.

Copies of any comments received may be examined at the NRC Public Document Room, 1717 H Street, N.W., Washington, D.C. 20555.

FOR FURTHER INFORMATION CONTACT:

SUFFLEMENTARY INFORMATION:

On September 13, 1984, the Commission published a Statement of Policy on Investigations, Inspections and Adjudicatory Proceed-ings (49 FR 36032-36034, September 13,1984.)

In that Statement of Policy, the Commission re-emphasized the importance and need for full disclosure of information in an adjudication so that all issues may be fully resolved and stated that

"[a]ll parties in NRC adjudicatory proceedings, including the NRC staff, have a duty to disclose to the boards and other parties all new information they acquire which is considered material and relevant to any issue in contro-(49 FR 36032, September 13, versy)in the proceeding."

1984.

At the same time, the Connission recognized the need in certain circumstances j

to protect information against public disclosure to avoid compromising an NRC inspection or investigation or to protect a confidential source.

In most instances, these conflicting concerns can be reconciled by placing restric-l tions, which may include suitable protective orders, upon the disclosure of l

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information. There are, however, certain situations in which any disclosure of informiltion, however restricted, would defeat the purpose of nondisclosure.

In its Statement of Policy, the Commission expressed the view that in these situations the NRC staff should be required to

" provide the board with ait explanation of the basis of its concern about disclosure and present the information to the board, in camera, without other parties present."

(49 FR 36032 at 36034, September 13,1984.)

The Commission also noted that "because this procedure represents a departure from normal Commission procedure, it is the Commission's view that the decision should be implemented by rulemaking."

(49 FR 36032 at 36033, September 13,1984.)

This rulemaking proceeding is initiated in response to that directive.

These special procedures are applicable to and intended to be used by all NRC offices. The procedures are applicable in those limited circum-stances in which an NRC office is under a duty to disclose information to a board and/or parties in an ongoing adjudication, for example, under established board notification procedures, in response to a discovery request, or as otherwise directed by the presiding officer, and it is determined that disclosure of the information under protective order or other appropriate restrictions would not achieve and might well defeat the objectivessoughtthroughnondisclosyre..Oncethesefindingshavebeenmade, s ve "to theproposedspecialprocedures{magbeusedtodeterminetherequisitedegree of protection or disclosure thatTnay be necessary.

The criteria to be used to determine whether a particular item of information is eligible for protection from disclosure are set out in i

% 2.7959 of the proposed rule and track the standards enunciated in the i

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Statement of Policy.

In general, information will be eligible for protec-tion from disclosure if it can be shown that the information relates to 0

an inspection or investigation and that disclosure of the information even under restriction or protective order would be detrimental to the effective conduct of the inspection or investigation. The information need not relate solely to an ongoing inspection or investigation but may also include infor-mation on the basis of which the NRC may determine whether to initiate an inspection or investigation.

Information will also be eligible for protec-tion from disclosure if it can be shown that the information would reveal the identity or otherwise compromise a confidential source. After the con-flict between the obligation to disclose and the need to protect a particular 9

,J item of information has become apparent, the NRC office possessing the j / j j/

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information myy use the proposed special procedures to resolve the conflict.

Under.the special procedures, the appropriate NRC office must submit a lh. I written request for relief from the disclosure requirement to the presiding 9

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Wf officer of the pending adjudication. The request must transmit the informa-tion for which protection is sought, provide a brief summary of its nature and source, and explain the relevance of the information to the adjudication.

The request must also state why and to what extent disclosure of the infor-mation even under restriction or protective order will compromise or impede the conduct of an investigation or inspection, or reveal the identity or otherwise compromise a confidential source.

Upon receipt of an NRC request for relief, the presiding officer shall scheduleanin_camerapresentationhchshallhavepriorityoverothe,r /

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matters awaiting decisio Under the proposed amendments, the presiding k,s6xd n%e

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officer is also authorized to hold an 3 camera presentation at any time on his or hey own initiative.

Although attendance at an in camera presentation is strictly limited to Lthe presiding officer and to appropriate NRC personnel, all parties to the adjudication must be notified whenever an h camera presentation concerning the disclosure or nondisclosure of information is to be held. The substan-tive content of the information presented h camera may not be disclosed. A verbatin transcript will be made of each h camera presentation.

p Upon the conclusion of an h camera presentation and after finding that I

the inforn.ation for which protection is sought is both relevant and material, tj$(h W I

to the pending adjudication, the presiding officer will decide, in the light I

'jW of Commission policy favoring full disclosure, whether the information merits

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f-protection against disclosure to enable NRC to conduct an investigation or p

i inspection fully and adequately or to protect the identity or otherwise

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[h; preserve the integrity of a confidential source, or whether the information

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must be disclosed. The decision may include any terms and conditions con-p 't(s.

A'5 sidered necessary and appropriate; a copy shall be served on the NRC office 9

having the information to which the decision relates. Within ten days after y

b-service of the decision, the NRC office may file a written statement of { i9 g

f concurrence or objection. The decision will become effective twelve days afterthedateofserviceunlessthedecisionotherwiseprovidesoris}G,'ff7 f wk.f i, & nJa> *}L Us & e.

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/1 required to be certified to the Commission for review.

t.very decision requiring disclosure of the identity or of information relating to the identity or that would otherwise compromise a confidential source and every decision involving an unresolved disagreement between the

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presiding officer and the NRC office having the info tion to which the decision Felates must be certified to the Comiss on for review.

Upon certification, the decision is automatically tayed until the Comission has completed its review and issued a decisi Pending review, the Comission will hold the decision and the accoinp ying record in camera.

The presiding officer must n ify all parties to an adjudication whenever a decision relating to the dis osure or nondisclosure of information is certified to the Comissi review and inform the parties of their right p to submit tim jn camery s.

After completing its review in accordance with the standards in 5 2.7959 of the proposed rule, the Comission will ydQ decide whether to affirm, reverse or modify the decision.

Under the proposed procedures, information required to be protected shall be deemed sealed pending further order of the presiding officer or the Comr.ission, as appropriate, and may not be disclosed in any adjudication or used in making any licensing or related regulatory decision unless and until publicly released.

Any NRC office which possesses protected information, including infor-k

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mation protected from disclosure because it relates to an inspection or f

investigation, may consent to its release at any time by notifying the

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presiding officer or the Comission, as appropriate. The information may then be disclosed without further order, unless the information will reveal I

the toentity or otherwise compromise a confidential source, in which case a Commission order is required. Upon order of the presiding officer or the Comnission, as appropriate, information protected from disclosure because it relates to an investigation or inspection may be released when the 53hri A N

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investigation or inspection is completed. Upon release, the information and theaccomkanyingrecord,includingtheverbatimtranscriptoftheincamera i

presentation, shall be included in the public record of the adjudication.

Environmental Impact - Categorical Exclusion.

The proposed amendments would amend the Comission's rules of practice codified in 10 CFR Part 2 and therefore meet the eligibility criteria for the categorical exclusion set forth in 10 CFR $ 51.22(c)(1). Accordingly, pursuant 10 CFR % 51.22(b), no environmental impact statement or environ-mental assessment need be prepared in connection with the issuance of the f-proposed amendments.

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Paperwork Reduction Act Statement.

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Although the special procedures in the proposed rule would impose a new @

information collection requirement (see % 2.795c, Application requesting

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t in camera presentation and relief from requirement to disclose relevant and material infcrmation) these procedures are only applicable to adjudications.

In addition, the new information collection requirement is only applicable to NRC, specifically those NRC offices which have information deemed relevant and material to a pending adjudication but also eligible for protection against disclosure. Based on the exemption in % 3518(c)(1)(B)(ii) of the Paperwork Reduction Act of 1980 (44 U.S.C. %5 3501 et seq.) and the fact that the information collection requirement contained into the proposed rule would

affect fewer than ten respondents, the NRC has determined that Office of Management and Budget clearance is not required pursuant to the Paperwork Reduction Act of 1980.

Regulatory Flexibility Act Certification.

As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this rule, if adopted, will not have a significant economic impact upon a substantial number of small entities and that there-fore a regulatory flexibility analysis need not be prepared. The primary irrpact of the proposed rule is on the hRC, not on entities subject to regu-lation by the NRC. Procedural in nature, the proposed amendments provide a nechanism for the orderly resolution of conflicts respecting the obligation to disclose information deemed relevant and material to a pending adjudica-tion and the need to protect information relating to an NRC investigation or insp vided by a confidential source. Adjudicatory hearings arc

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not ; w.,cd an are seldom, if ever, conducted in connection with the issu-g ance of licenses - for the most part materials licenses - to small entities.

Adjudicatory hearings do, however, constitute the principal regulatory vehicle used by NRC to authorize the constructior,and operation of nuclear

-power plants.

The companies that own these plants do not fall within the definition of "small entities," as set forth in section 601(3) of the Regulatory Flexibility Act, or within the definition of "small business" as found in Section 3 of the Small Business Act, 15 U.S.C. 632, or the Small Business Size Standards in regulations issued by the Small Business

.g-Administration and codified in 13 CFR Part 121.

For these reasons and because the primary impact of the proposed rule falls ~on NRC, not on entities

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regulated by NRC, the Commission has concluded that the proposed rule, if adopted, will not have a significant economic impact upon a substantial 1

number of small entities and that a' regulatory flexibility analysis need not be prepared.

List of Subjects in 10 CFR Part 2.

Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatment und disposal.

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. 553, the Nuclear Regulatory Commission is proposing to adopt the following amendments to 10 CFR Part 2.

PAR 1 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS.

1.

The authority citation for Part 2 continues to read as follows:

Authority: Sections 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.

2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.

E241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073,

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2092, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L.91-190, 83 Stat.

653,asaNended(42U.S.C.4332);sec.301,88 Stat.1248(42U.S.C.5871).

l Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936 937, 938, 954, 955, as amended (42 U.S.C.

2132,2133,2134,2135,2233,2239)'. Section 2.105 also issued under Pub. L.

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97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 85 Stat. 1246 (42 U.S.C. 5846). Sections 2.300-2.309 also issued under Pub. L.97-415, 96 Stat. 2071 (42 U.S.C. 2139). Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C.

5846). Sections 2.300-2.309 also issued under Pub. L.97-415, 96 Stat. 2071

.(42 U.S.C. 2133). Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853 as amended (42 U.S.C. 4332).

Sections 2.700a, 2.719 also issued under 5 U.S.C. 554.

Sections 2.754, 2.760. 2.770 also issued under 5 U.S.C. 557. Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553.

Section 2.809 also issued under 5 U.S.C. 553 and sec. 29. Pub. L.85-256, 71 Stat. 579, as as amended (42 U.S.C. 2039).

Appendix A also issued under sec. 6, Pub. L.91-580, 84 Stat 1473 (42 U.S.C.

2135).

2.

In Subpart G, immediately following % 2.790, a new center heading and new sections 2.795a - 2.7950 are added to read as follows:

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SPECIAL PROCEDURES FOR RESOLVING CONFLICTS CONCERNING YHE DISCLOSURE OR NONDISCLOSURE OF INFORMATION RELATING TO AN NRC INVESTIGATION OR INSPECTION OR PROVIDED BY A CONFIDENTIAL SOURCE AND DEEMED RELEVANT AND MATERIAL TO A PENDING ADJUDICATION 6 2.795a Purpose and Scope.

Sections 2.795a - 2.7950 specify procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an investigation or inspection or provided by a confidential source and deemed relevant and material to a pending adjudication. These procedures apply to all NRC offices. The procedures are to be used whenever an NRC office may be required to produce information in a pending' adjudication and the NRC office having the information believes that disclosure of the information even under restriction or protective order would compromise or impede the conduct of an investigation or inspection or reveal the identity or otherwise compromise a confidential source.

% 2.795b Requirement to disclose relevant and material information; request for in, camera presentation and relief.

Information relating to an investigation or inspection or obtained from a confidential source and found to be relevant and material to a pending adjudication shall be disclosed by (the NRC office having the inforpjtion H

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erso Irespons.fcu e J unible for releasing the informbtion befieves unless (1) the that disclosu e of the information even under restriction or protective order would compr mise or impede the conduct of an inspection or investigation or y w,, enLA n ' W " * '

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reveal tne identity or otherwise compromise a confidential source and submits a" written request to the presiding officer for an g camera presen-tation and appropriate relief; or (2) the presiding officer upon his or her own initiative and in the absence of any written request directs that an M camera presentation be held in o'rder to resolve a potential conflict between the requirement to disclose and the need to protect the information.

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$ 2.795c Application requesting 3 camera presentation and relief from yy requirement to disclose relevant and material information.

#J Each NRC application requesting an M camera presentation and relief g

}gf from the requirement to disclose relevant and material information shall be p/

7 submitted in writing by or on behalf of the NRC office havin othe d rma-pp A 7 tion, shall be signed by or on behalf of the responsible for releasing information from that NRC office, shall be marked "For M camera presentation only" and shall include the following information, as appropriate:

1.

The information subject to the request, together with a brief summary of its nature and source; 2.

A brief explanation why the information is relevant and n.aterial to the pending adjudication; 3.

A brief statement indicating hcw the information relates to an inspection or investigation and the status of the inspection or investigation, including the estimated time of completion; 4.

The confidential nature of the source from which the information was obtained; e

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A brief explanation why and to what extent disclosure of the

' info'5 nation even under restriction or protective order will compromise r

or impede the conduct of an investigation or inspection, or reveal the identity or otherwise compromise a confidential source; 6.

The proposed relief requested.

% 2.795d Request for relief; priority.

hv In any pending adjudication, an NRC request for relief from the Ud f'

requirement to disclose relevant and material information shall have

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priority over other matters to be decided by the presiding officer.

% 2.795e Notice of in camera presentation.

The presiding officer shall promptly notify all parties to a pending adjudication that an. M camera presentation will be held. A notice in response to an NRC application requesting in camera presentation and relief from the requirement to disclose relevant and material information shall be issued no later than five days after the request has been received. The notice shall state the purpose, time and place of the jn camera presentation and the approximate date a decision concerning the disclosure or nondisclo-sure of the information subject to the presentation may be expected. The substantive content of the information shall not be disclosed.

6 2.795f g camera presentation; procedure.

(a) An h camera presentation shall be held no later than five ' days after issuance of the notice required by 6 2.795e.

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(b) Attendance at an in, camera pr.sentatio shall be limited exclu-n 1

sively to the presiding officer and to RC personnel.

(c) A verbatim transcript will be made of each 3, camera presentation.

$ 2.7959 Decision to require full or partial disclosure or to protect information; service.

(a) After in camera presentation and review of an NRC request for relief from the disclosure requirement in 5 2.795b and upon finding that the information subject to the request and presented 3 camera is both relevant and material to the pending adjudication, the presiding officer shall decide, consistent with Comission policy favoring full disclosure, whether the information merits protection to enable NRC to conduct an investigation or inspection fully and adequately or to protect the identity or otherwise preserve the integrity of a confidential source or whether the information must be disclosed. The decision may include any terms or conditions or be accompanied by any protective. orders deemed r.ccessary or appropriate to protect the information, including but not limited to rescheduling or deferral of issues for hearing, specifying the manner, time, place or persons to whom the information may be disclosed, or prohibiting disclosure o'f all or part of the information. A decision to require disclosure shall specify p pb M Q w'.

7 fg the information to be provided, the conditions, if any, under which the

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information is to be disclosed, and the reasons why prompt disclosure is N

required.

(b) Every decision requiring disclosure of the identity of a confiden-tial source or disclosure of information which could reveal the identity

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or otherwise compromise a confidential source shall be certified to the Commissioil for review and shall state that the identity of a confidential

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source or information relating to the identity or that would otherwise

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con. promise a confidential source may only be released by Comission order,.'

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(c) The presiding officer shall serve a copy of the decision on the

't-NRC office having the information to which the decision relates A

gg c, 27y/W. Tle. Ac to disclose information to the St:tement of Policy; investigations inspections,and Adjud:catory established by rule. Finally, the Task boards and parties and the nred to protect that Proceedin9s Force sug;ested that existing board infor nation. For instance. one saggestion w as that the ac unpon a rnon stneset standard in notification procedures should remain On August 5.1983, the Commission set unaffected by the Policy Statement, and

$r do'nN*((e[r"e"c'e'0me'$e"[tN'ihINc forth interim procedures for handling that those procedurer and Commission improse the goaht> ofits iniestisat.ons s

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F;d;r:1 Registir / Vol. 49. N3.179 / Thursday. September 13, 1984 / Notic:s 36033 Mf

' compromising an ongoing insestigation of each individual case. However. the.

These procedures are designed to allow y

. or inspection; and (2) to protect Commission does note that as a ganeral the boards to determine the relevance of W

confidential sources. The importance of rule it favors full disclosure to the material to the adjudication, and N

protecting information for either of these boards and parties. that information whether that information must be M

reasons can in appropriate should be protected only when disclosed to the parties, and. if h

circumstances be as great as the necessary, and that any limits on disclosure is required. to provide a E

importance of disclosing the information disc!csure to the parties should be mechanism for case management both W

to the boards and parties.

limited in both scope and duration to the to protect investigations and inspections y/

With regard to the first reason, minimum necessary to achieve the and to a!!ow for ihe timely provision of cvoiding compromise of an investigation purposes of the non-disclosure policy, material and relevant information to the f'.

er inspection, it is important to informed The purpose of this Policy Statement parties. As such these procedures are b

licensing decisions that NRC inspections is to establish a procedure by which the analogous to the procedures for and investigations are conducted so that conflicts can be resolved. The Policy resolving disputes regarding discovery, p/.

til relevant information is gathered for Statement takes over once a see. eg.10 CFR 2J40(c) and do not appropriate evaluation. Release of determination has been made, under violate the prohibition in 10 CFR 2J80 I'

investigative material to the subject of established board notification against ex parte discussion of an investigation before the completion procedures, that information should be substantive matters at issue.

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cf th2 investigation could adversely disclosed to the boards and public, but in accord with the above discussion.

affect the NRC's ability to complete that 01 or staff believes that the information the Commission has decided that the L

• investigation fully and adequately.The should be protected. In those cases the procedures to be followed, where there

y subject, upon discoving what esidence Commission has decided that the only is a conflict between the need for

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the NRC had already acquired and the workable solution to protect both disclosure to the board and parties and direction being taken by the NRC interests is to ptodde for an in camera the need to protect an investigation or investigation, might attempt to alter or presentation to the board by the NRC inspection willincludein camera limit the direction or the nature or staff or OI. with no party present. Any presentations by the staff or OI.

csailability of further statements or other procedure could defeat the flowever, because this procedure evidence, and prevent NRC from purpose of non-disclosure and might represents a departure from normal learning the facts.The failure to actually inhibit the acquisition of Commission procedure,it is the cscertain all relevant facts could itself information critical to decisions.

Commission's view that the decision result in the NRC making an uninformed Allowing the other parties or their should be implemented by rulemaking.

licensing decision. llowever, the need to representatives to be present in all Accordingly, the Commission directs the protect information developed in casts. even under a protective order.

NRC staff to commence a rulemaking on I

investigations or inspections usually could breach promises of confidentiality the matter.

I ends once the investigation or or allow the subject of an investigation Until completion of the rulemaking, j

inspection is completed and es aluated to prematurely acquire information the following will control the procedures f

for possible enforcement actiort about the investigation. We note m this to be followed in resolving conflicts Th7 second reason for not disclosing regard the difficulties of attempting t between the duty to disclose to boards inve:tigative material-to protect prevent a party's representative from and the need to protect information f

confidential sources-has a different talking to his client about the relev'ance developed in investigation or inspection:

i bisis. Individuals sornetimes present of the information and how to respond

1. Established board notification r

s qety concerns t i the NRC only after to it. even under a protective order.

procedures should be used by staff or 01 i

bemg assured that their individual The Commiss:on believes that the to determine whether information in identity will be kept confidential. Th,s boards, using the procedures established their possession is patentially relevant i

desire for confidentially may arise for a in this Policy Statement, can resolve and material to a pending adjudicatory I

number of reasons, including the most potential disclosure conflicts once proceeding 8 The general rule is that all possibility of harassment and they have been advised of the nature of information warranting disclosure to the retaliation. Conf:dential sourges are a the mformation ms olved. the status of valuable asset to N7C inspections and the inspection or investigation, and the fnforma iont1s t' Id

' d I

subject of mvestigations. Re:e tsing names to the projected time for its completion. In ongoing ins estigations or inspections, parties in an adjudic ation after many of the cases when the procedures should be disclosed. except as provided promising confidenti.lly to sources in this Policy Statement are triggered by berein.

t would be detrimental to the NRC%

a concern for premature public

2. When staff or O! believes that it overill inspection and investigation disclosure. It may be possible for boards has a duty in a particular case to r

cctivities because other individuals may to provide for the timely consideration provide an adjudicator > board with i

be reluctant to bring information to the of relevant matters derived from informaticn concerning an inspection or NRC. Ilowever, the need to protect investigations and inspections through mvestigation. or when a board requests c nfidential sources does not end when the deferral or rescheduling ofissues for such information. staff or 01 should the investigation or inspection is hearing. In other instances. the boards provide the information to the board and completed and evaluated for possible may be able to resolve the conflict by enforcement action.

placing limitations on the scope of parities unless it belies es that unrestricted disclosure would prejudice By this Policy Statement, the disclosure to the parties, or by using an ongomg mspection or insestigation.

u Commission is not attempting to resolve protective orders.

or reveal confidential sources. If staff or the conflict that may arise in each case The Commission wishes to emphasize 01 believes unrestricted disclosure between the duty to disclose that these procedures do not abrogate information to the boards and parties the well-established principle of a sv te th s siatement refers on!> ta s aff and or cnd the need to protect that information adm:nistrative law that a board mcy not go,, gou, pg.y imoh ed. the crits source.The resclution of actual use et porte information presented in

,,cercei w.n app!y to any o+n ofr.as of the conflicts must be decided on the merits camero in making licensing decisions.

Comsmn wheay hm the protJem.

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I W

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36034 IOd;rzl Rjgistg/ Vol. 49, Nr.179 / Thursday, September 13, 1984 / Notices would have these adverse results. It brief, shall be keptin camera to the Pennsylvania. The license provides, should propose to the board and parties extent necessary to protect the purposes among other things, that it is subject to that the information be disclosed under of non-disclosure.

all rales, regulations and Orders of the suitable protective orders and other The Commission recognizes that no Nuclear Regulatory Commission (the restrictions, unless such restricted other party may be in a position Commission) now and hereafterin disclosure would also defeat the effectively to respond to staff or Ors effect.

purpose behind non-disclosure. If staff brief because the proceedings have been e r 01 believes that;any disclosure.

conducted in camera. However, in those g however restricted, would defeat the cases where another party feels that it is On November 19,1980, the purpose behind non. disclosure, it shall in a position to file a brief,it may do so Commission published a revised section provide the board with an explanation within seven days after staff or 01 files 10 CFR 50.48 and a new Appendix R to cf the basis ofits concern about its brief with the Commission.

10 CFR 50 regarding fire protection disclosure and present the information

3. Staff or O! shall notify the board features of nuclear power plants (45 FR to the board,in camera, without other and, as appropriate, the Commission,if 76602). The revised section 50.48 and parties present. A verbatim transcript of the objection to disclosure to the parties Appendix R became effective on the in camera proceeding will be made.'

of previously withheld information, or February 17,1981.Section III of All parties should be advised by the board of the conduct and purpose of the any portion of it. is withdrawn. Unless Appendix R contains fifteen in camera proceeding but should not be the Commission has directed otherwise, subsections. lettered A through O, each informed of the substance of the such information-with the exception of of which specifies requirements for a information presented. lf, after such in the identities of confidential sources-particular aspect of the fire protection may then be disclosed without further features at a nuclear power plant. One camera presentation, a board finds that Commission order, of those fifteen subsections,Ill.G is the disclosure to other parties under

4. When a board or the Commission subject of this exemption.

protectae order or otherwise is required (e.q;. withholding information may determines that information concerning Subsection III.G specifies detailed prejudice one or more parties or a pending investigation or inspection requirements for fire protection of the hopardize timely completion of the should not be disclosed to the parties, equipment used for safe shutdown by proceedings, or the board disagrees that the record of anyin camera proceeding means of separation and barriers release will prejudice the insestigation),

conducted shall be deemed sealed (III.G.2). ;f the requirements for it shall notify staff or O! of its intent to pending further order.That record will separation and barriers cant.ot be met in order disclosure specifying the be ordered included in the public record an area, alternative safe shutdown information to be provided, the terms of of the adjudicatory proceeding upon capability, independent of that area and any protective order proposed. and the completion of theinspection or equipment in that area is required basis for its conclusion that prompt investigation, or upon public disclosure (III.G.3).

disclosure is required. 'lhe staff or O!

of the information involved. whichever In response to previous requests from shall provide the board within a is earlier, subject to any privileges that the licensee, the Commission granted an reasonable period of time, to be set by may validly be claimed under the exemption to requirements of subsection the board, a statement of objections or Commission's regulations, including III.G and III.L on Afarch 14.1983. By concurrence. lf the board disagrees with protection of theidentify of a letter dated December 18.1983 and any objection and the disagreement confidential source. Only the supplemented by letter dated hfay 30, Commission can order release of the pc ptly cer fy th record thef identify of a confidential source.

1984. Duquesne Light Company requested additional exemptions from camera proceeding to the Commission Dated at Washington. D.C. this 7th day of the requirements of Subsection III G of for resolution of the disclosure dispute, September.1984.

Appendix R.

and so inform the other parties. Any Nuclear Regulatory Commission.

III licensing board decision to order Samuel l. Chilk, disclosure of the identify of a Secretaryof the Commission.

We have reviewed the licensee's conficential source shall be certified to the Commission for review regardless of p ws u,%. 5 M exerr.ption requests and evaluation of these requests is as follows:

ew.,o coot ri,o.ei whethet 01 and staif concur in the disclosure

• The board's decision shall

1. FixedSuppression andDetection Systems b2 stayed pending a Commission (Docket No. 50-334]

Co si n e a consis of he Duquesne Ught Co., et al. (Beaver is requested from Section III.G.3 transcript, the board's Notice of Intent to Va"cy Power Station Unit No.1);

extent it requires fixed suppress,to the ion and

• require disclosure and the objections of Exemption detection to be provided throughout a Staff o- 01. Staff or O! may file a brief Em ma b M abak hh I

with the Commission within ten days of has ken prom filing a statement of objections with the The Duquesne I.ight Company. Ohio board. The record before the Edison Company and Pennsylvania Primary Auxiliary Building (PA-1A),

Elev.768 Commission, including staff or Ol's Power Company (the licensees), are the holder of Facility Operating IJcense No.

Control Room HVAC Equipment Room (CR-2), Elev. 713

• Noth n n this Statement prohibits staff on O!

a o o

g

}{ pg t

Emergency Switchgear Rooms (ES-1 &

• The commission has decided to renew any No.1 (the facility) at steady-state power 2), Elev. 713 licensins board deosion ordenns diadosure of the levels not in excess of 2652 megawatts Process Instrument Room (CR-4). Elev.

6dentify of a conf;dential source because of the b

thermal.The facility is a pressurized 713 EEsIsYoIpYe's.$n*$)Ne"cIra denUor water reactor (pWR) located at the Communications Equipment & Relay F

cont.dennai naurces.

licensee's site in Deaver County, Panel Room (CR-3). Elev. 713

% Groe - 8676-]

MbW "f'7 p.

sur 8,

UNITED STATES gy y

(

NUCLEAR REGULATORY COMMISSION o

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1,E WASHINGTON, D. C. 20555,

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NEMORANDUM FOR:

Addressees on Attached List

- OCT 2 21984 FROM:

William J. Olmstead Director and Chief Counsel Regulations Divis' ion Office of the Executive Legal Director

SUBJECT:

NRC STATEMENT OF POLICY ON INVESTIGATIONS, INSPECTIONS AND ADJUDICATORY PROCEEDINGS - INITIATION OF RULEMAKING TO ESTABLISH SPECIAL PROCEDURES FOR RESOLVING CONFLICTS CONCERNING THE DISCLOSURE OR NONDISCLOSURE OF INFORMATION Attached for your review and comment is a draft Federal Register notice of proposed rulemaking containing proposed amendments to 10 CFR Part 2.

Prepared ~in response to the Comission's instructions in its recent Statement of Policy on Investigations, Inspections and Adjudicatory Proceedings (49 FR 36032-36034, September 13, 1984, copy attached) the proposed amendments would establish procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an NRC investigation or inspection or provided by a confidential source and deemed relevant and material to an adjudication. Since the Comission plans to publish the proposed amendments for public comment by December 15, 1984 at u.c iawm we need to receive any comments which you may have on or before g

6vember 9, 198 If you have specific questions or concerns, please do not hesitate to call me (ext. 27203) or Jane R. Mapes (ext. 28695) of my staff.

W AA L OL.x =l William J. Olm tead Director and Chief Counsel Regulations Division Office of the Executive Legal Director Attachments:

As stated D

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ADDRESSEES TO MEFORANDUM DATED:

Ig-2 21984 Harold R. Denton, Dir., NRR John G. Davis, Dir., HMSS Robert B. Minogue, Dir., RES Richard C. DeYoung, Dir., IE Kenneth E. Perkins, Jr., IE Ben B. Hayes, Dir., 01 Roger Fortuna, 01 William J. Ward, 01 Sharon Connelly, Dir., OIA G. Wayne Kerr, Dir., SP Patricia G. Norry, Dir., Adm.

Joseph M. Felton, Dir., DRR John D. Philips, Chief, RPB Joseph J. Fouchard, Dir., PA Alan S. Rosenthal, Chm., ASLAP Gary J. Edles, ASLAP B. Paul Cotter, Jr., Chm., ASLBP Robert M. Lazo, ASLBP David L. Prestemon, ASLBP

.Ivan J. Smith, ASLBP Herzel H.E. Plaine, GC Martin G. Malsch, GC James A. Fitzgerald, GC Richard P. Levi, GC Edward S. Christenbury, ELD Joseph Scinto, ELD Lawrence Chandler, ELD Stuart Treby, ELD Joseph Rutberg, ELD Edwin Reis, ELD Joseph': Gray;: ELD 3 Hudson Ragan, ELD Edward Shomaker, ELD James Lieberman, ELD Thomas E. Murley, Rgn. I Jay Gutierrez, Rgn. I James P. O'Reilly, Rgn. II Bradley Jones, Rgn. II James G. Keppler, Rgn. III Bruce Berson, Rgn. III RobertEMartin, Rgn. IV William Brown, Rgn. IV John B. Martin, Rgn. V Lewis Shollenberger, Jr., Rgn. V

-)

OCT 2 21984 NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 Adjudications - Special Procedures for Resolving Conflicts Concerning the Disclosure or Nondisclosure of Information AGENCY:

Nuclear Regulatory Connission.

LACTION:

Proposed rule.

SUMMARY

The Nuclear Regulatory Commission is considering amending its rules of practice to provide special procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an NRC investiga-i tion or inspection or provided by a confidential source and deemed relevant and material to an adjudication. Prepared at the express direction of the Commission, the proposed amendments apply to all NRC offices that have information relevant and n.aterial to an adjudication. The proposed amend-ments require irtcamera presentations and follow guidance contained in the Commission's recent statement of policy on investigations, inspections and adjudicatory proceedings.

DATES:

Comments must be received on or before Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.

• Insert date 60 days after date of publication in Federal Register.

ADDRESSES:

Interested persons are invited to send written comments or suggestions to the Secretary of the Comission, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, Attention: Docketing and Service Branch. Coments may also be delivered to Room 1121, 1717 H Street, N.W.,

Washington, D.C. between 8:15 a.m. and 5:00 p.m.

Copies of any coments received may be examined at the NRC Public Document Room, 1717 H Street, N.W., Washington, D.C. 20555.

FOR FURTHER It; FORMATION CONTACT:

SUPPLEMENTARY INFORMAT10ti:

On September 13, 1984, the Comission published a Statement of Policy on Investigations, Inspections and Adjudicatory Proceed-ings (49 FR 36032-36034, September 13,1984.)

In that Statement of Policy, the Commissioh re-emphasized the importance and need for full disclosure of information in an adjudication so that all issues may be fully resolved and stated that

"[a]11 parties in NRC adjudicatory proceedings, including the NRC staff, have a duty to disclose to the boards and other parties all new information they acquire which is considered material and relevant to any issue in contro-(49 FR 36032, September 13, versy)in the proceeding."

1984.

At the same time, the Comission recognized the need in certain circumstances to protect information against public disclosure to avoid compromising an NRC inspection or investigation or to protect a confidential source.

In most instances, these conflicting concerns can be reconciled by placing restric-tions, which may include suitable protective orders, upon the disclosure of

n information. There are, however, certain situations in which any disclosure of inform / tion, however restricted, would defeat the purpose of nondisclosure.

In its Statement of Policy, the Commission expressed the view that in these situations the NRC staff should be required to

" provide the board with an explanation of the basis of its concern about disclosure and present the information to the board, M camera, without other parties present."

(49 FR 36032 at 36034, September 13,1984.)

The Commission also noted that "because this procedure represents a departure from normal Commission procedure, it is the Commission's view that the decision should be implemented by rulemaking."

(49 FR 36032 at 36033, September 13,1984.)

This rulemaking proceeding is initiated in response to that directive.

These specini procedures are applicable to and intended to be used by all NRC officer. The procedures are applicable in those limited circum-stances in which an NRC office is under a duty to disclose information to a board and/or parties in an ongoing adjudication, for example, under established board notification procedures, in response to a discovery request, or as otherwise directed by the presiding officer, and it is determined that disclosure cf the information under protective order or other appropriate restrictions would not achieve ano might we f defeat the objectives sought through nondisclosure. Once these findings have been made, the proposed special procedures may be used to determine the requisite degree of protection or disclosure that may be necessary.

The criteria to be used to determine whether a particular item of information is eligible for protec', ion from disclosure are set out in

%2.595goftheproposedruleandtrackthestandardsenunciatedinthe

Statement of Policy.

In general, information will be eligible for protec-tion from: disclosure if it can be shown that the information relates to an inspection or investigation and that disclosure of the information even under restriction or protective order would be detrimental to the effective conduct of the inspection or investigation. The information need not relate solely to an ongoing inspection or investigation but may also include infor-mation on the basis of which the NRC may determine whether to initiate an inspection or investigation.

Information will also be eligible for protec-tion from disclosure if it can be shown that the information would reveal the identity or otherwise compromise a confidential source. After the con-flict between the obligation to disclose and the need to protect a particular item of information has become apparent, the NRC office possessing the information may use the proposed special procedures to resolve the conflict.

Under the special procedures, the appropriate NRC office must submit a written request for relief from the disclosure requirement to the presiding officer of the pending adjudication.

The request must transmit the informa-tion for which protection is sought, provide a brief summary of its nature and source, and explain the relevance of the information to the adjudication.

The request must also state why and to what extent disclosure of the infor-mation even under restriction or protective order will compromise or impede the conduct of an investigation or inspection, or reveal the identity or otherwise compromise a confidential source.

7 k

Upon receipt of an NRC request for relief, the presiding officer schedule an in camera presentation which shall have priority over other hjg. l

~

matters awaiting decision. Under the proposed amendments, the presiding

i officer is also authorized to hold an jn camera presentation at any time on hisorheNowninitiative.

Although attendance at an jn_ camera presentation is strictly limited to the presiding officer and to appropriate NRC personnel, all parties to the adjudication must be notified whenever an jn_ camera presentation concerning the disclosure or nondisclosure of information is to be held. The substan-tive content of the information presented jn camera may not be disclosed. A verbatin transcript will be made of each jn camera presentation.

Upon the conclusion of an jn camera presentation and after finding that the inforn.ation for which protection is sought is both relevant and material to the pending adjudication, the presiding officer will decide, in the light of Commission policy favoring full disclosure, whether the information merits protection against disclosure to enable NRC to conduct an investigation or inspection fully and adequately or to protect the identity or otherwise preserve the integrity of a confidential source, or whether the information must be disclosed. The decision may include any terms and conditions cor-

"Ih W" y *,

46cv54c sidered necessary and appropriate; a copy shall be served on the NRC office having the information to which the decision relates. Within ten days after I

/

""a service of the decision, the NRC office may file a written statement of 4tinded..

concurrence or objection. The decision will become effective twelve days after the date of service unless the decision otherwise provides or is N os j

S k

u e w y<ese2 56,v., ,g f,< n % F Each NRC [ application-requesting-an-h-camera presentation-and-relief 3 ~ from the requirement to disclose relevant and material information'shall be -tc.h Fe" J 9 g4,0-submitted)in-writ 4ng-by'or on behalf of the NRC office having the informa-pu e r q s u f W u b D ih. m P re4 EGth tion, sha4 q v nt m g (,tcl & A.be-signed-by-or-on-behal.f of the person responsible-m% be m.A c<,u, or mwW3 d adj in f o rma tior,-4 rom-t h a t-NRC-o f f-i c e gLhg.Jna rked_ 'lfor.--M-came ra-p resentittji o n l 4 -only 'and-shall include the following information, as appropriate: 1. The information subject to the request, together with a brief summary of its nature and source; 2. A brief explanation why the information is relevant and n.aterial to the pending adjudication; 3. A brief statement indicating hcw the information relates to l an inspection or investigation and the status of the inspection or investigation, including the estimated time of completion; 4. The confidential nature of the source from which the information was obtained; 13 - 5. A brief explanation why and to what extent disclosure of the infoNnation even under restriction or protective order will compromise or impede the conduct of an investigation or inspection, or reveal the identity or otherwise compromise a confidential source; 6. The proposed relief requested. I r2.795d Request for relief; priority. ~x p_ _ InanypendingTdjudicati5n,anNRCrequestforrelieffromthe ,y ~~s requirement tc' disclose relevant and material ~information shall have './ x. _prio'rity over other matters to be decided by the presiding officerr - 9 2.795e ht4ce-of h camera presentationj npNej proc d vre. The presiding officer shall promptly notify all parties to a pending ~b YMAl wkw bro adjudication that-an h camera presentation will be held. A-notice-in 4-(844@ip

• M response to an~NRC applif Rion~ req 0esting ig camera present ion-and-relief.f % g.

W M4, 7 -from-the requirement ~t0~ disc 16se relevant'and~ material-informatl shal-1-be e,q, ~ Nk 4uved no-latfr-~tEan five days after the requesf h'as~been' received The b M2t, notice shall state the purpose, time and place of the h camera presentation b Mg and the approximate date a decision concerning the disclosure or nondisclo W 2'?9tc sure of the information subject to the presentation may be expected. The %g substantive content of the information shall not be disclosed. 6 2.795f 3 camera presentation; procedure. (a) -An in, camera presentatio shall e held no later than five days n after issuance of the notice requir y 9 2.795e. gQ - ),w.h f~h N a * ~ "a s W ~n.?/( / g-t A\\ M ' j\\)4 r$ "#S zu an., s a y it, s,Q.f,nhS!-O - 14 !e4DL umW f/c ,r 4 y /,1 JN>wf JT w k M*% gg (b) Attendance at an in camera presentation shall be limited exclu-r u u d".?y -ne gau < 9rm*Ly m utL p>ay b 1Lt sively to the presiding officer)and to :ppropriate "RC aarennnehg,g/H]h pi,./, h c r a r.o hn kn) kxW < -~4I hN#p, o J.9 w vtar (c) g wt sA verbatim transcript will be made of each in camera presentation.

1. %l^l_

Ikg. M :p 9 9<3,Q e m s 2.7959 Decision to require full or partial disclosure or to protect information; service, ce nt!B u &.. o (a) After in camera presentation and. ce4% o&]t. f k ews ' V vus~%%, review of an NRC request for =~ relieffromthedisclosurerequirementin62.795panduponfindingthatthe information subject to the request and nresented ja e mara is both relevant and material to the pending adjudication, the presiding officer shall decide, consistent with Commission policy favoring full disclosure, whether the information merits protection to enable NRC to conduct an investigation or inspection fully and adequately or to protect the identity or otherwise preserve tne integrity of a confidential source or whether the information must.be disclosed. The decision may include any terms or conditions or be accompanied by any protective orders deemed necessary or appropriate to protect the information, including but not limited to rescheduling or deferral of issues for hearing, specifying the manner, time, place or persons to whom the information may be disclosed, or prohibiting disclosure of all or part of the information. A decision to require disclosure shall specify the information to be provided, the conditions, if any, under which the information is to be disclosed, and the reasons why prompt disclosure is required. (b) Every decision requiring disclosure of the identity of a confiden-tial source or disclosure of information which could reveal the identity

or otherwise compromise a confidential source shall be certified to the i

Commissioti for review and shall state that the identity of a confidential source or information relating to the identity or that would otherwise compromise a confidential source may only be released by Commission order. (c) The presiding officer shall serve a copy of the decision on the NRC of~fice having the information to which the decision relates, t 2.795h NRC statement of concurrence or objection; effective date of d"

• ,g/ 0 decision.

7N /r

yy g;,.Withintendaysafterser(Iceofthedecision,theNRCofficemay.

p w' file a written statement of concurrence or objection to the decision. The g }$ jll s* *% decision shall become effective twelve days after the date of service, unless the decision, discloses the identity or information relating to the identity 'l' 4 t.7 gf or that would otherwise compromise a confidential source as been certified to the Commission for review, or otherwise provides. b i 2.7951 Requirement to certify decision to Comission for review; automatic stay; notice of certification. (a)l Every decision requiring disclosure of the identity or disclosure of inforr.ation relating to the identity or that would otherwise compromise a confidential source shall be certified to the Commission for review.# Every decision involving an unresolved disagreement between the presiding officer and the NRC office having the information to which the decision relates shall be certified to the Commission for review. (b) Every decision certified to the Comission for review is ^ automatically stayed until the Comission has completed its review and issued a decision. (c) The presiding officer shall promptly notify all parties to a pending adjudication that a decision relating to the disclosure or nondis-closure of information has been certified to the Comission for review. The notice shall state the reason for the certification, the certification date, and that, in accordance with 6 2.795k, any party to the pending adjudication may file a timely in camera brief with the Commission. $ 2.795j Certification record. (a) Every decision certified to the Comission for review will be accortpanied by a record which shall include, as appropriate, the NRC applica-tion requesting relief from the disclosure requirement, including the information subject to the request, the verbatim transcript of the jn, camera presentation, and any NRC statement of concurrence or objection. As provided in 6 2.795k, the record may be supplemented by jn_ camera briefs. (b) Pending review, the Comission wiM keep the decision certified for review and the record relating thereto jn camera. $ 2.795k In camera briefs. (a) Within ten days after the certification date, the NRC office having the information to which the certified decision relates may file an jn camera brief with the Comission. At the time the j_n, camera brief is n l- b ND M% Jo los-4Lt*<<L ? T$w &nMI ? j ~ l' ~ cw filed, the NRC office shall notify the other parties to the pending adjudi-cationthhtanhcamerabriefhasbeensubmitted. ' k f. (b) Within seven days after the filing date of the NRC h camera

1. #JJM umht brief, any party to the pending adjudication may file an in camer brief with the Comission.

) 5 2.7951 Commission review of certified decision. (a) Upon its own initiative or upon request by or on behalf of the NRC office having the information, the Comission may conduct en 3 camera presentation on any matter certified to it for review under i 2.7951. (b) After review of the_ certified decision, the accompanying record and any h camera briefs, the Commission shall decide, in accordance with the standards in 5 2.795g, whether to affirm, reverse or amend the decision. As provided in 5 2.795g, the decision may include any terms or conditions or be accompanied by any protective orders deemed necessary or appropriate to protect the information. l 2.795m Protected information and related records sealed. Unless and until publicly released, information protected from disclosure by a decision issued under 55 2.7959 or 2.7951, together with -the record of the i_n, camera presentation relating thereto, shall be deemed n sealed pending further order by the presiding officer or the Comission, as appropriate. T l t 6 2.795n Release of protected information with NRC office consent or upon completion of investigation or inspection. (a) Any NRC office having protected information may withdraw its objection and consent to the release of the protected information at any, time by notifying the presiding off'icer or the Commission, as appropriate. Upon notification of NRC office consent and except to the extent that disclosure may be prohibited by paragraph (b) of this section, the informa-tion may be released and included in the public record of the pending adjudication without further order. (b) Information protected from disclosure because it relates to an investigation or inspection, together with the record of the in camera presentation relating tnereto, shall, upon order of the presiding officer or the Commission, as appropriate, or without order as provided in paragraph (a) of this section, be released and included in the public record of the pending adjudication upon completion of the investigation or inspection or at the time the NRC office having the information consents to its release, whichever is earlier, unless (1) the decision authorizing protection of the information otherwise provides; (2) disclosure of the information will reveal the identity or otherwise compromise a confidential source; or (3) the information is exempt from public disclosure under i 2.790 or 10 C.F.R. he il 9.5, 9.61, or 9.95. p N ~ ,Wp p l 2.7950 Prohibition against disc 6sure and use of protected information. Unless and unti publicly r 1 ased, information considered during (1) review of an NRC request for relief from the disclosure requirement in y-. 6 19 _ i ! 2.795b, (2) Comission review of a certified matter, or (3) any M camera presentatl'on relating thereto, may not be disclosed in any adjudication and may not be used in making any. licensing or related regulatory decision. Dated at Washington, D.C., this day of 19 _. For the Nuclear Regulatory Comission. Samuel J. Chilk Secretary of the Comission 2 - _ _ ~ 3f032 Federal Register / Vol. 49, No.179 / Thursday, September 13, 1984 / Notices t fded with the Department by the Trust. conflicts between the NRC's guidelines for disclosure of information Such plan is not required to include in responsibility to disclose information to concerning investigations and the annual report any information adjudicatory boards and parties, and the inspections should apply to all NRC concerning individual transactions of NRC's need to protect insestigative offices.Those recommendations have I' th; Trust. material from premature public been incorporated in this Statement. (c) Reporting Information Relating to disclosure. "S:atement of Policy-In addition, two comments were th? Trust to be Fi/ed with the Investigations and Adjudicatory submitted by members of the public. - I Department oflabor. The following Proceedings," 48 FR 36358 (August 10 One commenter stated that the information regarding the Trust must be 1983). withholding of information from public reported for the fiscal year of the Trust Those interim procedures called for disclosure should be confined to the cnding with or within the plan year for the NRC staff or Office of Investigations minimum essential to avoid I which a Participating Plan's annual (01), when it felt disclosure of compromising enforcement actions, and report is made: Informstion to an adjudicatory board that appropriate representatives of each (1) Name, address and employer was required but that unrestricted party should be allowed to participate identification number (EIN) of the Trust: disclosure could compromise an under suitable protective orders in any (2) A list of all Participating Plans inspection or investigation, to present in camera proceeding except in the most investi g in the Trust identified by plan the information and its concems about exceptional cases. nime. plan number, and name and EIN d;sclosure to the board in camero, The other commenter maintair.ed that ef the plan sponsor as they appear on without disclosure of the substance of an in camera presentation to the board the annual return / report, and each the infortnation to the other parties. A with only one party present is plan a percentage interest in the Trust as board decision to disclose the undesirable and vio!.tes the ex porte cf the beginning and ending of the fiscal inforroation to the parties was rule.That commenter suggested an year of the Trust; appealable to the Commiss.on, and the alternative of having the attorneys or (3) A statement of assets and board was not to order disc.losure until authorized representatives of parties liabilities of the Trust: the Comrmssion addressed the matter. evho have signed a protective agreement (4) A statement ofincome and That Statement of Policy was to. cxpenses of the Trust; remain in effect until the Commission present at any in comero presen'stion, with appropriate sanctions for violating (5) The assets held for investment received and took action on the the protective agreement.' (including the acquisitions and recommendations of an internal NRC dispositio is during the fiscal year of the task force estabbshed to develop The Commission, after considering h d th Trust), leases and obligations in default, guidelines for reconciling these conflicts Task orIe has eeide would be cnd compensation paid by the Trust for in individual cases. The Commission in services in the manner required by the that Statement also requested ubhc appropriate, in order to better explain instructions to the annual return / report comments on the propriety an the Commission's policy in this area, to Form 5500; desirability of ex porte en comera provide the following explanation of the con e d o (6) A report of an independent presentation of information to a board, {n gy quahfied pubhc accountant regarding and suggestions for any better the statements and schedules described alternatives. to the boards and parties and the need in subparagraphs (2) through (5) above The Task Force submitted its report to to protect that information: which meets the requirements of 29 CFR the Commission on December 30,1983. All parties in NRC adjudicatory 2520.103-1(b)(5). A copy of that report will be placed in proceedings, including the NRC staff, The Trust shall file the information the CommissioTs Public Document have a duty to disclose to the boards described in this paragraph (c) with tht. Room.The Task Force appros ed the and other parties all new information Department by mailing it to: Office of principles discussed in the they acquire which is considered Reports and Disclosure. Office of Commission's earlier Statement of material and relevant to any issue in Pension and Welfare Dcnefit Programs, Policy, and made several controversyin the proceeding Such U.S. Department of I. abor,200 recommendations intended to define disclosure is required to allow full Constitution Avenue, NW, Washington, specifica!!y the responsibilities of the resolution of allissues in the proceeding. D.C.20210, Attention: Texas Commerce boards, the staff, and O! in presenting The Commission expects all NRC offices Trust Co. Alternative Afethod of disclosure issues for resolution. to utilize procedures which will assure Compliance. The Task Force recommended that the prompt and appropriate action to fulfill final Policy Statement explain that full this responsibdity, Signed at Wa shington. D C., this eth day of disclosure of materialinformatiori to h However, t e Commission recognizes adjudicatory boards and the parties is that there may be conflicts between this Robert A.G. Monks. the general rule, but that some conflicts responsibility to provide the boards and Admtmstrator. O%ce of reasion and We/fue between the duty to disclose and the parties with infonnation and an Bene /it Pmsroms. need to protect information will be investigating or inspecting office's need in on u-:m raed e-in-u s es."1 inevitable. The Task Force further to avoid public disclosure for either or ' " C00'

• recommended that Issues regarding both of two reasons:(1) To avoid

- disclosure to the parties be initially determined by the adjudicatory boards e Both cornmen's atso included evas*stions NUCLEAR REGULATORY with provision for expedited a pellate "s*'d es rnatters beyond the scope of ihis Polgy COMMISSION revfew, and that procedures f the swennt which ie co,cerned only weh ,,,,3!.,hins e prxedare to hand'e conthces St:tement of Poticy; investigations, resolution of such conflicts be ben.een me duty to diectose informanon to the Inspections,and Adjud:catory established by rule. Finally, the Task boerde anJ parties end the need to protect that P #"d "I' Force suggested that existing board inf"'"ahon For in'ience onnassnoon *n est notification procedures should remain

• lc$(('l'3,,,,"f.,',',"l,sg sl,;d.rd ".ed a,, td On August 5,1983. the Commission set unaffected by the Policy Statement, and nont.c non. Amher rnommended thai ne ut forth interim procedures for handling that those procedures and Commission anprove the gashty etits inseinsat.ons i

i I O re w.. icd;rrt R;gi:tir /__W1. 49. Na 179 / Thursday Sept;mb:r 13,1984 /. -N: tic:s 36033 S of each individual case. liowever, the. These procedures are designed to allow '. comp omising an ongoing investigation Commission does note that as a ganeral the boards to determine the relevance of (., cr inspection; and (2) to protect confidential scurces. The importance of rule it fasors fu'l disclosure to the material to the adjudication, and p protecting information for either of these boards and parties, that information whether that information must be O reasons can in appropriate should be protected only when disclosed to the parties, and. if circumstances be as great as the necessary, and that any limits on disclosure is required, to provide a o irnp rtance of disclosing the information disclcsure to the parties should be mechanism for case management both ts the boards and parties. limited in both scope and duration to the to protect investigations and inspections b With regard to the first reason, minimum necessary to achieve the and to a!!ow for die timely provision of p cv:iding cornpromise of an investigation purposes of the non. disclosure policy. material and relevant information to the or inspection. It is irnportant to informed The purpose of this Policy Statement parties. As such these procedares are licensing decisions that NRC inspections is to establish a procedure by which the analogous to the procedures for u. end investigations are conducted so that conflicts can be resolved. The Policy resching disputes regarding discovery, f'. all relesant information is gathered for Statement takes over once a see. eg.10 CFR 2.740(c), and do not appropriate evaluation. Release of determination has been made, under violate the prohibition in to CFR 2J00 ~. I inv:stigative material to the subject of i tablished board netification against ex parte discussion of en investigation before the completion prrcedures that information should be substantive matters at issue. cf the investigation could ad6ersely dit chsed to the boards and public. but in accord with the above discussion. cffect the NRC's ability to complete that On or staff believes that the information the Commission has decided that the [. investigation fully and adequately.The should be protected. In those cases the procedures to be followed. where there y subi:ct. iipon discoving what esidence Commission has decided that the onlY is a ecnflict between the need for r the NRC had already acquired and the workable solution to protect both disclosure to the board and parties and direction being taken by the NRC interests is to prodde for an it' camera the need to protect an investigation or ins e;tigation, might atteinpt to alter or presentation to the board by the NRC inspection, willinclude in camera I limit the directic.a or the nature or staff or 01 with no party present. Any presentations by the staff or 01. csail:bility of farther statements or other procedure could defeat the flowcver, because this procedure cvid;nce. ar.d prevent NRC from purpose of non. disclosure and might represents a departure from normal Larning the facts.The failure to actually inhibit the acquisition of Commission procedure. It is the cscertain all relevant facts coiM itself information critical to decisions. Commission's view that the decision result in the NRC making on uninformed Allowing the other parties or their shculd be implemented by ru!cmaking. lic nsing decision. llowever. the need to representatives to be present in all Accordingly, the Commission directs the prot;ct information descloped in casts even under a protective order. NRC staff to commence a rulemaking on f inv:stigations or inspections usually could breach promises of confidentiality the matter. I cnds once the inustigation or or allow the subject of an investigation Until completion of the rulemaking, inspection is completed and es atuated to pren.aturely acquire information. the followinF will co-trol the procedures i:r possible enforcement action. about the investigation. We note in this to be fo: lowed in reaching conflicts The second reason for not disclosing regard the difficulties of attempting t between the duty te dintose to boards L investiFative material-to protect pres ent a party's representative from and the need to protect information confidential sources-has a different talking to his client about the relevance developed in invesugation or irspection: b: sis. Individuals snmetimes present of the information and how to respund

1. Established board notification r

s fety concerns to the NRC only after to it even under a protective order. The Commission belieses that the [,*det t 1 eing assured tliat their individual i her rfor t n id;ntity will be kept confidential. This boards using the procedures established their possession is patentially relevant desire for confidentially may arise for a in this Policy Statement, can resolve and material to a pending adjudicatory number of reasons. including the most potential disclosure conflicts once proceeding

• The general rule is that all i

possibility of harassment and they hase been adsised of the nature of informatien war. ranting disclosure to the retahation. Conf:dential sources are a the information ins olved, the stati,a of tj,s c ng ar san vclu bie asset to NRC inspections and the inspection or investigation. and the gg g l eet of insestigations. Rc! easing names to the projected time for its com letion. ! ongoing ins estigatiens or inspections, p:rties in an adjudication after many of the cases when t e procedares should be disclosed. except as pruided promising confidentially to sources in this Policy Statement are triggered by herein. t w;uld be detrimental to the NRC's a concern for premature public

2. When staff or 01 believes that it a erall inspection and investigation disclosure,it may be possible for boards cctivities because other indisiduals may to provide for the timely consideration has a duty in a particular case to b; reluctant to bring information to the of relevant mattus derised from proside an adjudicator) board with i

inktmadon concern;ng an inspection or NRC.ifoweser the need to protect investigations and inspections through invest!;ation. or when a board requests c:nfidential sources does not end when the deferral or rescheduling of issues for such information. staff or 01 should r the inscstigation or inspection is hearing. In other instances. the boards provide the information to the board and completed and es aluated for possible may be able to resolve the conflict by cntrcement action. placing limitations on the scope of parities unless it belieses that unrestricted disclosure would prejudite Dy this policy Statement, the disclosure to the parties, or by using an ongoing inspection or ins est.gation, u Ccmmission is not attempting to resolve protective orders. or reveal confidential sources. Il staff or th2 cor.flict that may arise in each case The Commission wishes to emphasite 01 belies es unrestricted disclosure b; tween the duty to disclose that these procedures do not abrogate information to the boards and parties the well estabbshed principle of j a((.,[,$',$'Z'".,%')b(eslor the' ' ','ff,' and the need to protect that information administrative law that a board mcy not cr its source.The resolution of actual use et parte information presented in ....,mt n.ppy io n e,cr conflicts must be decided on the merits comero in making licensing decisions. cemiswa.wh may haie tre p*otAem L t t .m s v NO34 l'ed;ral Registjr / Vol. 49. Nj.179 / Thursday. Sept;mb;r 13.1984 / N; tic;s i would hase these adverse results. It brief, shall be keptin camera to the Pennsylvania. The license provides. should propose to the board and parties extent necessary to protect the purposes among other things, that it is subject to ~* that the information be disclosed under of non disclosure. all rules. regulations and Orders of the suitab!e protective orders and other The Commission recognizes that no Nuclear Regulatory Commission (the restrictions. unless such restricted other party may be in a position Commission) now and hereafterin disclosure would also defeat the effectively to respond to staff or Ol's effect. purpose behind non. disclosure. If staff brief because the proceedings have been or 01 believes thatany disclosure. conducted in comera. However, in those gy however restricted; would defeat the cases where another party feels that it is On November 19.1980, the purpose behind non. disclosure.11 shall in a position to file a brief,it may do so Commission published a revised section provide the board with an explanation within seven days after staff or 01 files to CFR 50.48 and a new Appendix R to cf the basis ofits concern about its brief with the Commission. 10 CFR 50 regarding fire protection disclosure and present the informat!an

3. Staff or 01 shall notify the board features of nuclear power plants (45 FR to the board,in comero, without other and, as appropriate, the Commission, if 76602).The revised section 50.48 and parties present. A verbatim transcript of the objection to disclosure to the parties Appendix R became effective on the in comera procee ling will be made.s of previously withheld information or February 17.1981. Section 111 of All parties should t e advised by the any portion ofit. is withdrawn. Unless Appendix R contains fifteen board of the conduct and purpose of the the Commission has directed otherwise, subsections. lettered A through O. each in camera proceedag but should not be such information-with the exception of of which specifies requirements for a l

informed of the substance of the information presented. If after such in the identities of confidential sources-particular aspect of the fire protection may then be disclosed without further features at a nuclear power plant. One camere presentation. a board finds that Commission order, of those fifteen subsections. llt.G. is the disclos are to other parties under

4. When a board or the Commission subject of this exemption.

protects.e order or otherwise is required determines that information concerning Subsection I!!.G specifies detailed (i.q., wit. holding information may a pending investigation or inspection requirements for fire protection of the prejudice one or more parties or Dopardize timely cornpletion of the should not be disclosed to the parties, equipment used for safe shutdown by proceedings. or the board disagrees that the record of any in comero proceeding means of separation and barriers release will prejudice the ins estigation), conducted sha!! be deemed sealed (III.G.2). If the requirements for it sha!! notify staff or 01 ofits intent to pending further order.~1 hat record will separation and barriers cannot be met in erder disclosure, specifying the be ordered included in the public record an area. alternative safe shutdown information to be provided, the terms of of the adjudicatory proceeding upon capability. independent of that area and any protective order proposed, and the completion of the inspection or equipment in that area is required basis for its conclusion that prompt investigation, or upon public disclosure (III.G.3). disclosure is required. The staff or 01 of the information involved. whichever in response to presious requests from shall provide the board within a is earlier, subject to any privileges that the licensee, the Commission granted an reasonable period of time, to be set by may val dly be claimed under the exemption to requirements of subsection the board, a statement of objections or Commission's regulations, including Ill.G and 111 L on March 14.1983. By concurrence.If the board disagrees with protection of the identify of a letter dated December 16.1983 and any objection and the disagreement confidential source. Only the supplemented by letter dated May 30. bo Commission can order release of the p o. ptly certffy h r co,d $haj. Identify of a confidential source. requested additional exemptions from 19M. Duquesne Light Company h, camera proceeding to the Commission Dated at Washington. D.C. this 7th day of the requirements of Subsection !!!.G of for resolution of the disclosure dispute, September.1984. Appendix R. tnd so inform the other parties. Any Nuclear Regulatory Coramission. til licensing board decision to order samuelI. chilk. disclosure of the identify of a Secretary of the Commission. We have reviewed the licensee's confidential source shall be certified to exemption requests and evaluation of the Commission for review regardless of in w as r e w eisal these requests is as follows: s o.o coos n e m whether 01 and staff concur in the disclosure.* The board's decision shall

1. FixedSuppression andDetection Systems be stayed pending a Commission IDocket No. 50-3341 bi daYc nsis of he Duquesne Ught Co., et al. (Beaver is requested from Section Ill.G.3 to the trrnscript, the board's Notice ofIntent to Va"cy Power Station Unit No.1);

extent it requires fixed suppression and ' require disclosure and the objections of Exemption detection to be provided throughout a Staff or 01. Staff or Oi may file a brief En ama bM aham My g with the Commissinn within ten days of has been provided: filing a statement of objections with the The Duquesne Light Company. Ohio board.The record before the Edison Company and Pennsylvania Primary Auxiliary Building (PA-1A), Elev. 768 Commission. including staff or Ol's Power Company (the licensees), are the holder of Facility Operating License No. Control Room HVAC Equ!pment Room (CR-2) Elev' 713 D " "' P

• [oj; i(this statement prohibits staff on 01 Emergency Switchgear Rooms (ES-1 &

7, B v a ley P er Sta io n e n. con.mi.. ion h.e decided ia review ny licensms board decision orderirig disclosure of the No.1 (the facilityl at steady-state power 2). Elev. 713 6dentify of a confidential source because of the leye]s not in excess of 2632 megawatts Process Instrument Room (CR-4). Elev. thermal.The facility is a pressurized 713 NiS'sYoIpN.m7fNecNr"sTe$d nutfofwater reactor (PWR) located at the Communications Equipment & Relay contdenttet sources. licensee's site in Beaver County, Panel Room (CR-3). Elev. 713 _