ML20136F803
| ML20136F803 | |
| Person / Time | |
|---|---|
| Issue date: | 01/17/1985 |
| From: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| Shared Package | |
| ML19310G510 | List:
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| References | |
| FRN-48FR36358, RULE-PR-2, TASK-RINV, TASK-SE AB78-1-032, AB78-1-32, SECY-85-020, SECY-85-20, NUDOCS 8502280318 | |
| Download: ML20136F803 (35) | |
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January 17, 1985 SECY-85-20 For: The Commissioners From: William J. Dircks Executive Director for Operations
Subject:
RELATIONSHIP BETWEEN INVESTIGATIONS / INSPECTIONS AND ADJUDICATIONS (SECY-84-276/276A) - PROPOSED AMENDMENTS TO
. 10 CFR PARTS 0 AND 2 ESTABLISHING SPECIAL EX PARTE IN CAMERA PROCEDURES FOR RESOLVING CONFLICTS M(CERNTOHE DISCLOSURE OR NONDISCLOSURE OF INFORMATION.
Sumary: On September 12, 1984 1/, the Commission directed the Executive Director for 0perations to prepare a proposed rule which would implement those provisions of the Commission's Statement of Policy on Investigations, Inspections, and Adjudicatory Proceedings which call for the establishment of special procedures for resolving conflicts respecting the obligation of the NRC staff to disclose information deemed relevant and material to a pending adjudication and the need of the NRC staff to withhold that information from disclosure because it relates to an NRC investigation or inspection or would reveal the identity of a confidential informant. This proposed rule (Enclosure 1) was drafted in response to that direction. In addition to providing procedures which an NRC office may use to request a presiding officer, by motion, to withhold information from disclosure, the proposed rule also provides procedures, not currently included in the Commission's Rules of Practice, which an NRC office may use to request the presiding officer to impose conditions on the manner in which information may be disclosed.
Purpose:
To request Commission approval of the proposed rule (Enclosure 1) for publication in the Federal Register and to request Commission consideration and action on the draft staff requirements memorandum (Enclosure 2).
Discussion: The proposed rule tracks the provisions of the Policy Statement as closely as possible. The general obligation 1/ Staff requirements memorandum for William J. Dircks, Executive Director for Operations from Samuel J. Chilk, Secretary, September 12, 1984, re SECY-84-276/276A.
Contact:
Jane R. Mapes, OELD l 492-8695 7 A; '
r to disclose information is paramount and in regard to those matters covered by this Policy Statement, can only be limited if release would prejudice an ongoing investigation or inspection or reveal the identity of a confidential informant. Information which would reveal the_ identity of a confidential informant may only be released by Commission order. Objections to the disclosure of information advanced by NRC offices and disallowed by the presiding officer are also subject to Commission review.
Under the special procedures, a motion for a protective order to impose conditions on or to witahold disclosure of information must be considered in camera without parties other than the NRC staff pTe'sent and may include an ex parte in camera oral presentation. The rule also provides tha T the ex parte in camera record on which a protective order iTbased sliall be deemed sealed pending further order (proposed 6 2.7951(a)).
Conforming amendments to the Commission's regulations relating to the Conduct of Employees,10 CFR 66 0.735-41 and 0.735-51, are proposed to make it a violation of Commission regulations for NRC employees and special Government employees to make unauthorized disclosures of investigatory information sealed under proposed 6 2.7951(a). The proposed amendments would also make it a violation of Commission regulations for NRC employees and special Government employees to make unauthorized disclosure of other information that is subject to a protective order issued by a presiding officer, the Appeal Board, or the Commission. This would include, for example, classified national security information, proprietary information, and safeguards information.
Although NRC has adequate legal authority to impose administrative sanctions against individuals who wrong-fully disclose protected information, NRC regulations do not explicitly authorize the imposition of such sanctions. The proposed amendments to Part 0 would put NRC employees and special Government employees on notice that they will be subject to sanctions for wrongful disclosure of sealed information or of other types of information subject to protective order.
We note that the proposed rule does not provide for sanctions against employees who disclose national security information, proprietary information, or safeguards information that is not the subject of a protective order. We believe that regulations should be
developed which would make clear to individuals who may be affected that administrative sanctions may be imposed for unauthorized disclosures of such information. We believe, however, that this matter should be addressed in a separate rulemaking because o'f the complex consider-ations involved. We have attached a draft memorandum to the staff (Enclosure 2) for the Commission's consideration which would direct the staff to initiate such a rulemaking.
The proposed conforming changes to 10 CFR 66 0.735-41 and 0.735-51 must be approved by the Office of Government Ethics and provided to Chapter 208 of the National Treasury Employees Union (NTEU) for comment prior to promulgation as a final rule. Accordingly, unless otherwise directed by the Commission, we plan to submit the proposed amendments to 10 CFR Part 0 to the Office of Government Ethics and to Chapter 208, NTEU for their review at the time the proposed rule is sent to the Federal Register for publication. We do not expect any added delay as a result of these reviews.
Subject to the strictures imposed on the release of information that would reveal the identity of a confidential informant and the assertion of any other exemptions from mandatory public disclosure that may validly be claimed under the Commission's regulations, the special procedures permit information subject to a protective order to be placed in the public record of the pending adjudication and disclosed to the parties in the following circumstances:
When the NRC office which obtained the protective order notifies the presiding officer or the Commission, as appropriate, (1) that its objection to disclosure of the information is withdrawn; (2) that the inspection or investigation to which all or any portion of the information subject to the order relates is completed; or (3) that it has learned of a change which alters the status of the information as protected information, e.g., the information has been made public hv others.
The rule also provides that a presiding officer may not use information subject to a protective order to withhold disclosure in making any decision unless all parties to the pending adjudication have been accorded access to the information with or without conditions (proposed 5 2.795k.)
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The proposed procedures are not intended to be used to shield information properly subject to disclosure under the Freedom of Information Act (FOIA). To assure that the objectives of the proposed rule and the F0IA are adequately considered and kept in focus, the proposed amendments provide that the Director, Division of Rules and Records, NRC Office of Administration, who is the agency official responsible for processing Freedom of Information Act requests, must be notified of all motions for protective orders, of all protective orders, including all rulings certified to the Commission for review, and of certain changed circumstances which may make continued protection of the information unnecessary (see SS 2.705c(a), 2.795e(d) and 2.795h(a).) Under 6 T795j c' the proposed rule, the Director, Division of Rules and Records, NRC Office of Administration, upon notice by an NRC office that information subject to an FOIA request is also subject to a protective order issued under 6 2.795e or 6 2.795g, must notify the presiding officer or the Comission, as appropriate.
The recipient of this notification, which may be either the presiding officer or the Commission, must then review the bases for issuance of the protective order and determine, in the light of any exemptions that may validly be claimed under the provisions of the F0IA and the Comission's regulations, whether the information, in whole or in part, should continue to be protected or whether and under what conditions it may be released.
Minor conforming amendments have been made to 10 CFR 96 2.730, 2.740 and 2.780.
Recommendation: That the Comission:
- 1. Approve the notice of proposed rulemaking (Enclosure
- 1) that would make conforming amendments to 10 CFR Parts 0 and 2 and add ::pecial procedures to 10 CFR Part 2 for resolving conflicts concerning the disclosure or non-disclosure of information in accordance with the guidance contained in the Comission's Statement of Policy on Investigations, Inspections, and Adjudicatory Proceedings.
- 2. Consider the draft staff requirements memorandum (Enclosure 2) and issue appropriate instructions to the staff.
- 3. Certify that the proposed rule will not have a significant economic impact on a substantiel number of small entities in order to satisfy requirements
of the Regulatory Flexibility Act, 5 U.S.C. 605(b).
The proposed rule does not impose any obligations on entities regulated by the NRC; the impact of the proposed rule is confined to the NRC.
- 4. Note:
- a. The notice of proposed rulemaking will be published in Federal Register for a 60-day public comment period,
- b. The proposed amendments to 10 CFR Part 0 and Part 2 meet the eligibility criteria for categorical exclusion in 10 CFR 51.22(c)(1),
therefore pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared in connection with the issuance of the proposed amendments.
- c. The proposed rule is not subject to the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 99 3501 et seq.) because it does not contain any information collection requirements within the meaning of 93502(4)of that Act.
- d. At the time the proposed rule is published in the Federal Register, copies will he sent to the Office 07 Government Ethics and to Chapter 208 of the National Treasury Employees Union (NTEU) for review.
- e. The appropriate Congressional Committees will be informed.
- f. The Office of Public Affairs concurs that a public announcement is not needed.
- g. Copies of the Federal Register notice of proposed rulemaking will be distributed to all persons currently listed on NRC service lists for all pending Ifcensing proceedings. The notice will be sent to other interested persons upon request.
- h. The proposed rule incorporates or reflects comments received from the Office of Investiga-tions, the Office of Inspector and Auditor and the Office of the General Counsel and has been concurred in by the Office of Investigations and the Office of Inspector and Auditor.
Scheduling: If scheduled on the Comission agenda, recommend this paper be considered at an open meeting. No specific circumstance is known to staff which would require Commission action by any particular date in the near term.
William . Dircks Executive Director for Operations
Enclosure:
- 1. Federal Register Notice of Proposed Rulemaking.
- 2. Draft staff requirements memorandum.
Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Wednesday, February 6, 1985.
Commission Staff Offico comments, if any, should be submitted to the Commissioners NLT Wednesday, January 30, 1985, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional timo for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
DISTRIBUTION:
Commissioners OGC OPE OI OCA OIA OPA REGIONAL OFFICES EDO ELD ACRS ASLDP ASLAP SECY t . - _ - _ - _ _ - - - __ _
f 4
Et4 CLOSURE 1 FederakRegisterfloticeofProposedRulemaking e
r se ,
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NUCLEAR REGULATORY COMMISSION 10 CFR Parts 0 and 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 not yet concluded or which would reveal the identity of a confidential informant and deemed relevant and material to an adjudication.
Prepared at the express direction of the Commission and intended for the sole use of NRC offices and staff, the proposed amendments apply to all NRC offices that have information relevant and material to an adjudication. The proposed amendments provide for ex parte j_nn camera presentations and implement the Commission's directions in its recent statement of policy on investigations, inspections and adjudicatory proceedings. The proposed amendments also provide that administrative sanctions may be imposed against NRC employees and special Government employees who knowingly make unauthorized disclosure of scaled investigatory information or other information subject to a protective order.
DATES: Coments must be received on or before ,
Comments received after this date will be considered if it is practical to
- Insert date 60 days after date of publication in Federal Register.
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2 do so, but assurance of consideration cannot be given except as to coments received on or before this date.
ADDRESSES: Interested persons are invited to send written coments or suggestions to the Secretary of the Comission, U.S. Nuclear Regulatory Comission, Washington, D.C. 20555, Attention: Docketing and Service Branch. Comments may also be delivered to Room 1121, 1717 H Street, NW.,
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, NW.., Washington, D.C. 20555.
FOR FURTHER INFORMATION CONTACT: Jane R. Mapes. Senior Regulations Attorney, Regulations Division Office of the Executive Legal Director, U.S.
Nuclear Regulatory Commission, Washington, D.C. 20555; Telephone (301) 492-8695.
SUPrLEMENTARY INFORW TION: On September 13, 1984, the Comission published a Statement of Policy on Investigations, inspections and Adjudicatory Proceed-ings(49FR36032-36034, September 13,1984.) In that Statement of Policy, the Comission 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]IlpartiesinNRCadjudicatory" 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-(49FR36032, September 13, versy)intheproceeding."
1984.
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At the same time, the Commission recognized the need in certain circumstances l
to limit disclosure to avoid compromising an NRC inspection or investigation or to protect a confidential informant. In some instances, these conf.licting l concerns can be reconciled by placing restrictions on the manner in which the s information is disclosed, such as, for example, rescheduling consideration of l
certain issues during the course of a hearing or specifying the manner, time, place, or persons to whom the information may be disclosed. There are, however, certain situations in which any disclosure of information, however restricted, could affect the conduct of an inspection or investigation. In its Statement of policy, the Comission 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 in camera, without other parties present."
the (49FR3603 Tat 36034, September 13,1984.)
board, TheCommissionalsonothdthat "because this procedure represents a departure from normal Comission procedure, it is the Comission's view that the decision should be implemented by rulemaking." (49FR 36032 at 36033, September 13,1984.)
The proposed rule establishes procedures, not currently included in the Cmnission's Rules of practice, which may be used by all NRC offices to request the withholding of information from disclosure or the imposition of condttions under which information may be disclosed. The sole function of these procedures is to protect NRC information. The procedures may not be used by applicants, licensees, intervenors' and others to protect or .
withhold their information from disclosure. These special procedures are l
i applicable in those limited circumstances in which an NRC office is under a l
-4, duty to disclose relevant and material 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 without a' protective order would prejudics an inspection or investigation or reveal the identity or otherwise compromise a confidential informant. Once these findings have been made, the proposed special procedures would be used by the NRC office having the information to request the imposition of conditions on disclosure or to withhold disclosure of the inf,ormation.
.The factors to be considered in determining whether infonnation is eligible for a protective order imposing conditions upon or withholding disclosure- of the information are set out in 9 2.795e of the proposed rule and track the standards enunciated in the Statement of Policy. -A protective order may either impose conditions on the manner in which the information may be disclosed!or withhold disclosure of the information. In general, a' protective order will be appropriate if it can be shown that the information relates to an inspection or investigation and that disclosure of the information without a protective order would be detrimental to the effective conduct of the'
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inspectionorinvestigation,orifitcanbesh]nthattheinformation would reveal the identity or otherwise compromise a confidential informant.
The information need not relate solely to an ongoing inspection or
, investigation but may also include information on the ba. sis of which the NRC may determine whether to initiate an insp'ection or investigation. ,
After the conflict between the obligation to disclose a particula'r item of information and the need to impose conditions upon or withhold disclosure of
that information has become apparent, the NRC office having possession of or access to the information would use the proposed special procedures as necessary to resolve the conflict.
- Under the special procedures, the appropriate NRC office may move the presiding officer of the pending adjudication to grant relief from the disclosure requirement either by ordering information disclosed subject to conditions or by ordering information withheld from disclosure. For the purposes of these procedures, the term " presiding officer" includes an administrative judge, an administrative law judge, an Atomic Safety and Licensing Board, and an Atomic Safety and Licensing Appeal Board. The motion, which may be made orally or in writing, must contain a brief description of the nature of the information subject to the request and explain the relevance of the information to the pending adjudication. The motion must also state why and to what extent disclosure of the information without a protective order will compromise or impede the conduct of an NRC investigation or inspection, or reveal the identity or otherwise compromise a confidential informant. At the time the motion is made, the NRC office must notify all parties to the pending adjudication that the imposition of conditions on or the withholding of disclosure of the information has been requested. However, the information subject to the motion shall not be revealed. The NRC office must also notify the Director, Division of Rules and Records, NRC Office of Administration, who is the agency official responsible for processing Freedom of Information Act (F0IA) requests. . ,
Upon receipt of a motion from an NRC office to impose conditions upon or to withhold disclosure of information, the presiding officer, without
parties other than NRC staff present, may either rule on the motion on the basis of the information provided, conduct an ex parte in camera oral presentation, or request further information. Under the proposed amendments, the presiding officer is authorized to conduct an ex parte in camera oral presentation at any time on his or her own initiative. The presiding officer must notify all parties to the pending adjudication whenever an ex parte in camera oral presentation is to be held. The notice shall state the purpose, time, and place of the ex parte in camera oral presentation and the approximate date a ruling concerning the disclosure or nondisclosure of the information subject to the presentation may be expected. The substantive content of the information shall not be disclosed. To provide a record, a verbatim transcript will be made of each ex parte in camera oral presentation.
After consideration of a motion to impose conditions upon or to withhold disclosure of information, including any ex parte in camera oral presentation, and after finding that the information subject to the motion is both relevant and material to the pending adjudication, the presiding officer will decide, in light of the Comission policy favoring full disclosure, whether disclosure of the information without a protective order could adversely affect the NRC's ability to conduct an investigation or inspection fully and adequately or to protect the identity or otherwise preserve the anonymity of a confidential informant and whether and to what extent all or part of the information should be withheld from disclosure or only disclosed subject to conditions.
If the presiding officer grants the motion, the presiding of icer shall issue a protective order as requested. If the presiding officer determines
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that the motion should be denied in whole or in part, the presiding officer shall notify the NRC office submitting the request of the intent to order disclosure. The notice of intent to order disclosure shall specify th.e nature of the information to be disclosed, the terms and conditions of any proposed order and the basis for the conclusion that prompt disclosure is required. The notice of intent shall state a reasonable time by which the NRC office must submit a statement of objection or concurrence. If the NRC office concurs in the disclosure specified in the notice of intent and if the disclosure does not reveal the identity of a confidential informant, the presiding officer shall issue the order proposed. If the NRC office objects to the disclosure specified in the notice of intent and any such objection is disallowed, the presiding officer shall promptly certify the objection, the ruling disallowing the objection and the accompanying record to the Commissionforexpartelincamerareview. Every ruling requiring disclosure of the identity of a confidential informant must be certified to the Commission for review. Concurrence in such a ruling by an NRC office does not change this latter requirement.
I The presiding officer shall promptly notify all parties to the pending adjudication and the Director, Division of Rules and Records, NRC Office of Administration whenever a ruling relating to the disclosure or nondisclosure of information has been issued or has been certified to the Commission for ex parte in camera review. A notice of certification shall state the reason
. for the certification, the certification date', and that, in accordance with Q 2.795f, the NRC office or any other party to the adjudication m'ay file a timely brief with the Commission. The NRC office must notify all parties to
the adjudication whenever an NRC brief is filed. However, the NRC brief need not be served on the parties if to do so would reveal any of the withheld information. Within seven days after service of the notice of filing of the NRC brief, any other party to the adjudication may file a brief with the Commission. The order of the presiding officer shall be stayed pending Commission review.
The Commission s!.all consider any matter certified to it for review under these procedures in camera without parties other than the NRC staff present. The record for Comission review shall consist of the information provided to the presiding officer ex parte and in camera, all documents filed with the presiding officer by the NRC office requesting a protective order, including any statements of concurrence or objection, the transcript of any ex parte jn camera oral presentation, the presiding officer's notice of intent to require disclosure and the presiding officer's order. Upon its own initiative or upon request by the NRC office requesting the imposition of conditions upon the disclosure of information or the withholding of information from disclosure, the Commission may conduct an ex parte in camera oral presentation on any matter certified to it for review under 6 2.795e.
After completing its review, the Commission will decide whether to affinn, reverse, or amend the ruling.
Whenever the presiding officer or the Commission issues an order imposing conditions upon or withholding disclosure of information, the ex parte in
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camera record on which the order is based sha11 be deemed sealed pending further order.
The Commission does not intend these special procedures to be used to shield information properly subject to disclosure under the Freedom of Information Act (FOIA). Upon receipt of an FOIA request for release o.f information deemed sealed by reason of a protective order, the presiding officer or the Commission, as appropriate, will again review the nature and status of the information to determine whether all or part of the information should continue to be protected or whether all or part of the information should be released.
The NRC office at whose request the presiding officer or the Commission has issued a protective order respecting the disclosure of information shall notify the presiding officer or the Commission, as appropriate, and the Director, Division of Rules and Records, NRC Office of Administration when its objection to disclosure to the parties to the pending adjudication of all or any portion of the information subject to the order is withdrawn, when the inspection or investigation to which all or any portion of the information subject to the order relates is completed, or when it learns of any other change in the status of the protected information. Unless the information relates to the identity of a confidential informant or unless the Commission orders otherwise, information which an NRC cffice has consented to release may be disclosed to the parties and placed in the public record of the pending adjudication without further order. The identity of a confidential informant may only be released by order of the Commission. .
Under the proposed procedures, after not' ice by the appropriate NRC office that an inspection or investigation has been completed or'that objection to the disclosure of information has been withdrawn, whichever is
earlier, and subject to certain specific limitations, the presiding officer or the Commission, as-appropriate, is required to order the ex parte in camera record, including the verbatim transcript of any ex parte in camera oral presentation, included in the public record of_the pending adjudication.
This requirement is subject to the prohibition against inclusion in the public record of the adjudication of any part of the ex parte in camera record containing'information pertaining to the identity of a confidential informant.except pursuant to Comission order. This requirement is also subject to any other exemptions from mandatory public disclosure that may validly be claimed under the_ Commission's regulations, including any exemptions that may be available under 10 CFR 66 2.790, 9.5, 9.61 or 9.95.
Under the. proposed procedures, a presiding officer may not use information subject to a protective order in making any decision in the
_pendingadjudicationunjessallparties'tothependingadjudicationhave been accorded access to the information and given an appropriate opportunity to address that information. Once all parties to the pending adjudication have been g'ven such an opportunity, either with or without conditions, the presiding officer may use the information in reaching a decision. When
~information is made available only under specified conditions,-a party may l-be unwilling to examine the information because the party does not wish to accept the conditions under which it is proffered. The fact that a party does not choose to avail itself of information to which Access is permitted but only under specified conditions cannot be used to bar the presiding
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officer from relying on that information in reaching a decision. A presiding i
officer is under no obligation by reason of these special procedures to l
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accord parties to a pending adjudication unconditional access to all informa-t tion. Once the opportunity for conditional access has been provided and notwithstanding the fact that it may have been declined, the presiding' officer may use the information in making a decision in the pending adjudicatory proceeding.
Conforming amendments to the Commission's regulations relating to the Conduct of Employees, 10 CFR Part 0, are proposed to make it a violation of Commission regulations for NRC employees and special Government employees to make unauthorized disclosures of investigatory information sealed under s 2.795f(a). The proposed amendments would also make it a violation of Commission regulations for NRC employees and special Government employees to make unauthorized disclosure of other information that is subject to a protective order issued by a presiding officer, the Appeal Board, or the Commission. Thiswould! include,forexample,classifiednationalsecurity information, proprietary information, and safeguards information. Although NRC has adequate legal authority to impose administrative sanctions against individuals who wrongfully disclose protected information, NRC regulations do not explicitly authorize the imposition of such sanctions. For purposes of this regulation, authorized disclosure would include the disclosure to other Federal government officials with a need to have knowledge of the protected information. Unauthorized disclosure would obviously include disclosure of protected information to members of the public.
Minor conforming amendments to 10 CFR 59 2.730, 2.740 and 2.780 are also proposed.
ENVIRONMENTAL IMPACT - CATEGORICAL EXCLUSION The proposed amendments would amend the Comission's rules relating to the Conduct of Employees codified in .10 CFR Part 0 and the Comission's Rules of Practice codified in 10 CFR Part 2 and therefore meet the eligibility criteria for the catego'ical r exclusion set forth in 10 CFR 9 51.22(c)(1).
Accordingly, pursuant 10 CFR 9 51.22(b), no environmental impact statement or environmental assessment need be prepared in connection with'the issuance of the proposed amendments.
t PAPERWORK REDUCTION ACT STATEMENT The proposed rule is not subject to the provisions of the Paperwork ReductionActof1980(A4U.S.C.653501 et seq.) because it does not contain any information collection requirements within the meaning of 5 3502(4) of that Act.
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 signi- ,
ficant economic impact upon a substantial number of smal-1 entities and that therefore a regulatory flexibility analysis need not be prepared...Progedural in nature, the proposed amendments provide a mechanism for the orderly
. resolution of conflicts respecting the obligation of NRC officesIto disclose
information deemed relevant and material to a pending adjudication and the need by those same offices to protect information relating to an NRC investi-gation or inspection or which would reveal the identity of a confidential informant. The proposed rule does not impose any obligations on entities regulated by the NRC, including any regulated entities that may 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 within the Small Business Size Standards in regulations issued by the Small Business Administration and codified in 13 CFR Part 121. Since the impact of the proposed rule is confined to the NRC, the proposed rule does not fall within the purview of the Regulatory Flexibility Act.
LIST OF SUBJECTS 10 CFR Part 0 Conflict of interest, Penalty.
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 and disposal. - -
S
. - - s
For the reasons set out in the preamble and under the authority of the
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Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended and 5 U.S.C. 553, the Nuclear Regulatory Comission is pro-posing to adopt the following amendments to 10 CFR Part 0 and 10 CFR Part 2.
PART 0 - CONDUCT OF EMPLOYEES
- 1. The authority citation for Part 0 continues to read as follows:
Authority: The provisions of this Part 0 issued under E.0. 11222, May 8, 1965, 3 CFR 1964-1965 Comp. at pp. 306-311; 5 CFR 735.104; Sec. 201(f), Pub. L.93-438, 88 Stat. 1243 (42 U.S.C. 5841(f). Sec. 0.735-26 also issued under Title V of the Ethics in Government Act of 1978, as amended, secs. 501 and 502, Pub. L.95-521, 92 Stat.1864-1867, as amended by secs. 1 and 2, Pub. L. 96-28, 93 Stat. 76-77 (18 U.S.C. 207).
- 2. In 6 0.735-41, the existing text, including the quotation, is designated as paragraph (a) and a new paragraph (b) is added to read as follows:
6 0.735-41 Misuse of information.
i j * * *
(a)
(b). No NRC employee shall knowingly make an unauthorized -
disclosure of information deemed sealed as an ex parte i_n camera record under 5 2.795i of this chapter, or of any other information that is
subject to a protective order issued by a presiding officer, an Atomic Safety and Licensing Appeal Board, or the Commission.
- 3. In 5 0.735-51, a new paragraph (c) is added to read as follows:
5 0.735-51 Use of inside infonnation.
(c) No special Government employee shall knowin9 y1 make an unauthorized disclosure of information deemed sealed as an g parte 3 camera record under 5 2.7951 of this chapter, or of any other information that is subject to a protective order issued by a presiding officer, an Atomic Safety and Licensing Appeal Poard, or the Commission.
PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS.
- 4. The authority citation for Part 2 is revised 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.
2241); 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, 2092, 2093, 2111, 2133, 2134, 2135); sec. 102, Pub. L.91-190, 83 Stat.
853, as amended (42 U.S.C. 4332); ::ec. 301, 88 Stat.1248 (42 U.S.C. 5871).
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.97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued E
under sech, 186, 234, 68 Stat. 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat. 12a6 (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, and 2.795k also issued under 5 U.S.C. 554. Sections 2.754: 2.760. 2.770 also issued under 5 U.S.C. 557.
Sections 2.790 and 2.795j 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 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).
- 5. In i 2.730, a new paragraph (i) is added to read as follows:
6 2.730 flotions.
(i) The provisions of 6 2.730(a) through (h) are not applicable to motions filed pursuant to 95 2.795a through 2.795k.
- 6. In 5 2.740, paragraph (b)(1) is revised to read as follows:
9 2.740 General provisions governing discovery.
- / (b) Scope of discovery. * * *
(1) In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter .
involved in the proceeding, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Forthepurposgs_of_this_section.,,grivilgged
.Eattgr_ includes _ informa_ tion subject b to a_protectivg order iss_ugd_undgr thgspe_clalgrgce_dures_in 66_2.79_5a through 2.795k. In a proceeding on an application for a construction permit or an operating license for a production or utilization facility, discovery shall begin only after the prehearing confer'ence provided for in 6 2.751a and shall relate only to those matters in controversy which have been identified by the Comission or the presiding officer in the prehearing order entered at the conclusion of that prehearing conference. In such a proceeding, no discovery shall be had after the beginning of the prehearing conference held pursuant to 6 2.752 except upon leave of the presiding officer upon good cause shown. It is not ground for objection that the information sought will be inadmissible at the hearing if the information sought
- / This paragraph is shown in comparative t' ext. New material is underlined with dashes which will be deleted when the proposed amendmen,ts are-transmitted to the Federal Register for publication. There are no deletions.
appears reasonably calculated to lead to the discovery of admissible evidence.
- 7. In 6 2.780, paragraph (a) is revised to read as follows:
5 2.780 Ex parte communications.
- / (a) Except as provided u_nder the special procedures in 56 2.795a '~
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through_ 2.795k_or in paragraph (e) of this section, neither (1)
Commissioners, members of their immediate staffs, or other NRC officials and employees who advise the Commissioners in the exercise of their quasi-judicial functions will request or entertain off the record except from each other, nor (2) any party to a proceeding for the issuance, denial, amendment, transfer, renewal, modification, suspension, or revocation of a license or permit, or any officer, employee, representative, or any other person directly or indirectly acting in behalf thereof, shall submit off the record to Connissioners or such staff members, officials, and employees, any evidence, explanation, analysis, or advice, whether written or oral, regarding any substantive matter at issue in a proceeding on the record then pending before the NRC for the issuance, denial, amendment, transfer, renewal, modification, suspension, or revocation of a license or
- / This paragraph is shown in comparative text. New material is. underlined with dashes which will be deleted when the proposed amendments are transmitted to the Federal Register for publication. There are no deletions.
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permit. For the purposes of this section, the term " proceeding on the record then pending before the NRC" shall include any application or matter which has been noticed for hearing or concerning which a hearing has been requested pursuant to t.his part.
- 8. In Subpart G, immediately following 9 2.790, a new center heading and new sections 2.795a through 2.795k are added to read as follows:
SPECIAL PROCEDURES FOR RESOLVING CONFLICTS CONCERNING THE DISCLOSURE OR NONDISCLOSURE OF INFORMATION RELATING TO AN NRC INVESTIGATION OR INSPECTION OR TO THE IDENTITY OF A CONFIDENTIAL INFORMANT AND DEEMED RELEVANT AND MATERIAL TO A PENDING ADJUDICATION i 2.795a Applicability of special procedures.
(a) Sections 2.795a through 2.795k specify procedures for resolving conflicts concerning the disclosure or nondisclosure of infomation relating to an investigation or inspection or to the identity of a confidential informant 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 adjudica-tion and the NRC office having the information believes .that disclosure of the information without a protective order wo'uld prejudice an investigation or inspection or reveal the identity of a confidential informant.
(b) As used in 5% 2.795a through 2.795k, the term " presiding officer" includes an administrative judge, an administrative law judge, an Atomic Safety and Licensing Board, and an Atomic Safety and Licensing Appeal Board.
5 2.795b Requirement to disclose relevant and material information.
Information relating to an investigation or inspection or to the identity of a confidential informant and deemed relevant and material to a pending adjudication shall be disclosed to the parties to the adjudication by the NRC office having the infcrmation unless that NRC office requests the presiding officer by motion to issue a protective order imposing conditions upon the manner in which the information is disclosed or withholding the information from disclosure because disclosure without a protective order would prejudice an inspection or investigation or reveal the identity of a confidential informant.,'
5 2.795c Motion for protective order; notice of motion.
(a) A motion for a protective order to impose conditions on or to withhold disclosure of information shall be addressed to.the presiding officer by the NRC office having the information. At the time a motion is made and without revealing the substance of the information subject to the motion, the NRC office shall notify the parties to the adjudication and the Director, Division of Rules and Records, Office of A.dministration,.U.S.
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Nuclear Regulatory Comission, that a protective order to impose conditions on or to withhold disclosure of information has been requested.
(b) A motion for a protective order may be made orally or in writing, may include a request-for an ex parte in camera oral presentation, and shall include the following information, as appropriate:
(1) A brief description of. the nature of the information subject to the motion; (2) A brief explanation why the information is relevant and material to the pending adjudication; (3) A brief statement indicating how the information relates to an inspection or investigation and the status of the inspection or
. investigation, including the estimated time of completion; (4) A statement that the information reveals the identity of a confidential informant; (5) An explanation of the basis of the motion for a protective order to impose coiiditions on or to withhold disclosure of the information, including a brief explanation why and to what extent disclosure of the information without a protective order will compromise or impede the conduct of an investigation or inspection, or reveal the identity or otherwise compromise a confidential informant; (6) The proposed relief requested.
5 2.795d Consideration of motion by presiding officer; procedure.
(a) A motion from an NRC office for a protective order to impose.
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conditions on or to withhold disclosure of information shall be co,nsidered by the presiding officer in camera without parties other than the NR'C staff present.
o
. (b) The presiding officer may require or permit the NRC office making the motion to make an ex parte in camera oral presentation.
Attendance.at an ex parte in camera oral presentation shall be limited exclusively to the presiding officer,.to appropriate NRC personnel and to any witness appearing at the request of the NRC office or the presiding officer. The presiding' officer shall promptly notify all prties to a pending adjudication when any ex parte in camera cral presentation will be held.
The notice shall state the purpose, time, and place of the ex parte in camera oral presentation and the approximate date a ruling concerning the disclosure or nondisclosure of the information subject to -the presentation may be expected. The substantive content of the information shall not be disclosed. If an ex parte in camera oral presentation is conducted, a verbatim transcript shall be made.
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.5 2.795e Determination to grant or deny motion for protective order; requirement for Commission review.
(a) After consideration of a motion from an NRC office for a protective order to impose conditions on or to withhold disclosure of ,
information, including any ex parte in camera oral presentation, and after finding that the information subject to the motion' is both relevant and material to the pending adjudication, the presiding officer shall determine, in light of the Commission policy favoring full disclosure, whether -
disclosure of the information without a protective order could advfrsely affect the ability of the NRC to conduct an investigation or inspection -
fully and adequately or to protect the identity of a confidential informant
and whether and to what extent all or part of the information should be withheld from disclosure or only disclosed subject to conditions.
(b) Every ruling requiring disclosure of the. identity of a
. confidential informant shall be certified to the Consnission for review.
Pending Commission review, the order of the presiding officer shall be l
stayed.
(c)(1) If the presiding officer grants the motion, the presiding officer shall issue a protective order withholding disclosure of the information or conditioning its release, as requested.
.(2) If the presiding officer determines that the motion should be denied in whole or in part, the presiding officer shall notify the NRC office submitting the motion of the intent to order disclosure. The notice of intent to order disclosure shall specify the nature of the information to be disclosed, the terms and conditions of any proposed order and the basis for the conclusion that prompt disclosure is required. The notice of intent shall state a reasonable time by which the NRC office must submit a statement of objection or concurrence.
(3) If the NRC office concurs in the disclosure specified in the notice of intent and if the disclosure does not reveal the identity of a confidential informant, the presiding officer shall issue the order proposed.
(4) If the NRC office objects to the disclosure specified in the-notice of intent and any such objection is disallowed, the presidi,ng officer shall promptly certify the objection, the ruling disallowing the objection and the accompanying record required by 6 2.795f to the
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Comission for ex_ parte M camera review. The order of the presiding officer shall be stayed pending Comission review.
(d) The presiding officer shall promptly notify all parties to the pending adjudication and the Director, Division of Rules and Records, Office of Administration, U.S. Nuclear Regulatory Comission that a ruling relating to the disclosure or nondisclosure of information has been issued or has been certified to the Comission for ex parte M camera review. A notice of certification shall state the reason for the certific tion, the certification date, and that, in accordance with 9 2.795f, any party to the adjudication may file a timely brief with the Commission.
9 2.795f Record for Comission review; briefs.
(a) Every information disclosure ruling certified to the Comission for ex parte in camera review pursuant to 9 2.795e will be accompanied by a record which shall consist of the information provided to the presiding officer ex parte in camera, all documents filed with the presiding officer by the NRC office making the motion for a protective order, including any statements of concurrence or objection, the transcript of any ex_ parte in camera oral presentation, the presiding officer's notice of intent to require disclosure and the presiding officer's order.
(b) Within ten days after the presiding officer is, sues an order certifying an information disclosure ruling t'o the Comission for e parte i_n camera review, the NRC office may file a brief with the Comission in support of its objections to disclosure. The NRC office shall notify all
parties to the adjudication that an NRC brief has been filed, but need not serve a copy of the NRC brief on the parties to the pending adjudication.
Within seven days after service of the NRC notice, any party to the pending adjudication may file a brief with the Comission.
6 2.7959 Comission review.
(a) Every information disclosure ruling certified to the Comission for review under 5 2.795e, together with the accompanying record and any briefs, shall be considered by the Comission in camera without parties other than the NRC staff present. Upon its own initiative or upon request by the NRC office making the motion for a protective order, the Comission may conduct an ex parte in camera oral presentation on any matter certified to it for review under 9 2.795e.
(b) After review of the certified information disclosure ruling, the accompanying record and any briefs, the Comission shall decide wheth'er to affirm, reverse, or amend the ruling. The Comission order may include any terms or conditions deemed necessary or appropriate.
5 2.795h Consent to disclose information; notice.
(a) The NRC office upon whose motion the presiding officer or the Comission has issued a protective order imposing conditions on or withholding the disclosure of information shall notify the presiding officer or the Comission, as appropriate, and the Director, Division of Rules,and Records, Office of Administration, U.S. Nuclear Regulatory Comission when its objection to disclosure to the parties to the pending adjudication of all or
any portion of the information subject to the order is withdrawn, when the inspection or investigation to which all or any portion of the information subject to the order relates is completed, or when it learns of any other change in the status of the protected information.
(b) Information which an NRC office has consented to release may be disclosed to the parties and placed in the public record of the pending adjudication without further order unless the information relates to the identity of a confidential informant or unless the Comission has ordered otherwise. The identity of a confidential informant may only be released by order of the Comission.
6 2.7951 Ex parte in camera record deemed sealed pending further order.
(a) Whenever the presiding officer under 9 2.795e, or the Comission under 9 2.795g, issues a protective order to impose conditions on or to withhold disclosure of information, the ex parte in camera record on which the order is based shall be deemed sealed pending further order.
(b) No part of any ex parte in camera record containing information pertaining to the identity of a confidential informant may be included in the public record of a pending adjudication or be made publicly available in any other way except pursuant to Comission order.
(c) After notice by the appropriate NRC office that an inspection or investigation has been completed or that objection to the disclosure of information has been withdrawn, whichever is earlier, and subject,to the requirement in paragraph (b) and to any other exemption from mandatory public disclosure that may validly be claimed under the Commission's
regulations, including any exemption that may be available under 9 2.790 or 99 9.5, 9.6I or 9.95 of this chapter, the presiding officer or the Commission, as appropriate, shall order the ex parte in camera record included in the public record of the pending adjudication.
9 2.795j F0IA reauest for release of protected information; release determination review.
(a) The Director, Division of Rules and Records, Office of Administration, U.S. Nuclear Regulatory Comission, upon notice by an NRC office that information subject to an F0IA request is also subject to a protective order issued under 9 2.795e or 9 2.7959, shall promptly notify the presiding officer or the Comission, as appropriate.
(b) Upon notification of an F0IA request for release of protected information, the presiding officer or the Commission, as appropriate, shall review the bases for issuance of the protective order and determine, in the light of any exemptions that may validly be claimed under the provisions of the Freedom of Information Act and the Commission's regulations, whether the information in whole or in part should continue to be protected or whether and under what conditions it may be released.
9 2.795k Prohibition against use of information subject to protective order.
Information subject to a protective order to withhold disclosure may not be used by the presiding officer in making any decision in the.pending
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adjudication unless all parties to the pending adjudication have been accorded access to the information either with or without conditions.
Dated at Washington, D.C., this day of 1985.
For the Nuclear Regulatory Comission.
Samuel J. Chilk i
Secretary of the Comission i
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9
EllCLOSURE 2 Draft Staff Requiremer.ts Memorardum e
S a
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a
Draft Staff Requirements Memorandum MEMORANDUM FOR: William J. Dircks .
Executive Director for Operations FROM: Samuel J. Chilk Secretary of the Commission
SUBJECT:
UNAUTHORIZED DISCLOSURE OF INFORMATION The Commission directs the staff to develop for Commission consideration a proposed rule which would permit the imposition of administrative sanctions against NRC employees and special Government employees who knowingly disclose to unauthorized persons investigatory, national security, proprietary and safeguards information that is not the subject of a protective order. The Commission has already approved publication of a proposed rule covering ,
unauthorized disclosure of such information when it is the subject of a t
protective order.
Please submit the proposed rule to the Commission within three months.
e to ,
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