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{{#Wiki_filter:- c f 9j* IDENTICAL LETTER SENT TO: NT IBUTION Alan K. Simpson, Chai rman MAY 16 MB5 JMape Subcommittee on Nuclear Regulation + ms' tea C Committee on Environment and Public Works HCunningham cc: Senator Gary Hart fj/ p Edward J. Markey, Chairman Regs File Subcommittee on Energy Conservation and Power Central File Committee on Energy and Commerce OGC Norry Y n cc: Carlos Moorhead The Honorable Morris K. Udall, Chairman ED0 Besaw Subcommittee on Energy and the Environment OPE Shelton Committee on Interior and Insular Affairs R&P Regions I-V United States House of Representatives R&P R/F Minogue Washington, DC 20515 Denton Roe Davis Stello
Dear Mr. Chairman:
Kerr, SP Rehm Taylor Enclosed amendments for to thethe information Comission's of Rules the Subcommittee of Practice (10areCFR copies ofwhich Part 2 p)roposed are to be published in the Federal Register. The proposed amendments implement the Comission's directions in its Statement of Policy on Investigations, Inspections and Adjudicatory Proceedings, published in the Federal Register on September 13, 1984 (49 FR 36032-36034, copy enclosed.) As proposed, the amendments would establish special procedures, including ex parte in camera presentations, to be used by NRC offices and staff in limEed circiiiistances for the purpose of resolving conflicts concerning the disclosure or nondisclosure of information relating to an NRC investigation or inspection not yet concluded or which would reveal the identity of a confidential informant and deemed relevant and material to an adjudication. The special procedures may not be used by applicants, licensees, intervenors and others to protect or withhold their information from disclosure. The Comission is issuing the proposed amendments for a sixty-day public coment period. Sincerely, Original signed by Guy H. Cunningharn, Ill Guy H. Cunningham, III Executive Legal Director
Enclosures:
- 1. Federal Register Notice of Proposed Rulemaking
- 2. Commission Statement of Policy cc: Rep. Manuel Lujan p_
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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 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 in camera presentations and implement the Commission's directions in its 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.
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? ADDRESSES: Interested persons are invited to send written comments or suggestions to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, Attention: Docketing and Service Branch. Comments may also be delivered to Room 1121, 1717 H Street, NW.,
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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, 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. SUPPLEMENTARY INFORMATION: On September 13, 1984, the Commission published a Statement of Policy on Inves.tigations, 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]Il 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 1984. the proceeding."
At the same time, the Commission recognized the need in certain circumstances to limit disclosure to avoid compromising an NRC inspection or investigation
or to protect a confidential informant. In some instances, these conflicting concerns can be reconciled by placing restrictions on the manner in which the information is disclosed, such as, for example, rescheduling consideration of 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 I 1 its Statement of Policy, the Comission expressed the view that in these situations the NPC 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 board, (49 FR 3603Tat 36034, September 13,1984.) l The Comission also noted that ,
"because this procedure represents a departure from normal i Comission procedure, it is the Comission's view that the I decision should be implemented by rulemaking." (49FR 36032 at 36033 September 13,1984.)
The proposed rule establishes procedures, not currently included in the Commission's Rules of Practice, which may be used by all NRC offices to request the withholding of information from disclosure or the imposition of conditions under which information may be disclosed. The procedures may not be used by applicants, licensees, intervenors and others to protect or withhold their information from disclosure. These special procedures are applicable in those limited circumstances in which an NRC office is under a 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
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the presiding officer, and it is determined that disclosure of the information without a protective order would prejudice 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 conditionsondiscjosureortowithholddisclosureoftheinformation. The factors to be considered in determining whether information is eligible for a protective order imposing conditions upon or withholding disclosure of the information are set out in 5 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 inspection or investigation, or if it can be shown that the information 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 basis of which the NRC may determine whether to initiate an inspection or investigation. After the conflict between the obligation to disclose a particular item of infonna-tion 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.
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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 otherwi'se 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 (F0!A) 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,
l 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 impase 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
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. both relevant and material to the pending-adjudication, the presiding officer will decide, in light of the Coninission 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 officer shall l issue a protective order as requested. 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 request of the intent to order disclosure. The notice of intent to order disclosure shall specify the l
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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 Commission for ex x parte 3 camera review. 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. 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 hb been certified to the Connission 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 9 2.795f, the NRC of fice er any other party to the adjudication may file a timely brief with t' * ' .ssion. 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, anh 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 shall consider any matter certified to it for review under these procedures in camera without parties other than the NRC staff present. The record for Commission review shall consist of the information provided to the pra-Ming 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 in camera oral presentation, the presiding officer's notic.c 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 informat,fon 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 affirm, 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 camera record on which the order is based shall be deemed sealed pending ,
.'urther order.
The Comission does not intend these special procedures to be used to shield information properly subject to disclosure under the Freedom of InformationAct(F0!A). Upon receipt of an F0!A request for release of f infonnation deemed sealed by reason of a protective order, the presiding L
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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 offic6 at whose request the presiding officer or the Comission 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 c!1 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 infonnation 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 office 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 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 certain specific limitations, the presiding officer or the Comission, as appropriate, is required to order the ex parte in camera record, including the verbatim transcript of any e3 parte in camera oral presentation, included in the public record of the pending adjudication.
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I~ This requirement is subject to the prohibition against inclusion in the public record of the adjudication of any part of the ex parte h camera record containing information pertaining to the identity of a confidential informant except pursuant to Commission 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 ll 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 pending adjudication unless all parties to the pending adjudication have been accorded access to the information and given an appropriate opportunity to address that information. Once all parties to the pending adjudication have been given 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 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 officer from relying on that information in reaching a decision. A presiding officer is under no obligation by reason of these special pr'ocedures to l accord parties to a pending adjudication unconditional access to all informa-l tion. Once the opportunity for conditional access has been provided and notwithstanding the fact that it may have been declined, the presiding l t I
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officer may use the information in making a decision in the pending adjudicatory proceeding. Minor conforming amendments to 10 CFR li 2.730, 2.740 and 2.780 are also proposed. ENVIRONMENTAL IMPACT - CATEGORICAL EXCLUSION The proposed amendments would amend the Commission's Rules of Practice codified in 10 CFR Part 2 and therefore meet the eligibility criteria for
.thecategorical'exclusionsetforthin10CFRi51.22(c)(1). Accordingly, pursuant 10 CFR i 51.22(b), no environmental impact statement or environ-l mental assessment need be prepared in connection with the issuance of the proposed amendments.
l l PAPERWORK REDUCTION ACT STATEMENT The proposed rule is not subject to the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. Il 3501 et seq.) because it does not l contain any information collection requirements within the meaning of I i, 63502(4) of that Act. REGULATORY FLEXIBILITY ACT CERTIFICATION As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Comission certifies that this rule, if adopted, will not have a signi-
ficant economic impact upon a substantial number of small entities and that therefore a regulatory flexibility analysis need not be prepared. Procedural in nature, the proposed amendments provide a mechanism for the orderly resolution of conflicts respecting the obligation of NRC offices to 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 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. l
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 Comission is proposing
'to adopt the following amendments to 10 CFR Part 2.
PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS,
- 1. The authority citation for Part 2 is revised to read as follows:
Authority: Sections 161, 181, 68 Stat. 948, 953, asamended(42U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615,76 Stat.409(42U.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, asamended(42U.S'.C.2073, 2092, 2093, 2111, 2133, 2134, 2135); sec.102, Pub. L. 91-190, 83 Stat. 853,asamended(42U.S.C.4332);sec.301,88 Stat.1248(42U.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, asamended(42U.S.C. 2132,2133,2134,2135,2233,2239). Section 2.105 also issued under Pub. L. 97-415,96 Stat.2073(42U.S.C.2239). Sections 2.200-2.206 also issued under secs. 186,234,68 Stat.955,83 Stat.444,asamended(42U.S.C.2236, 2282);sec.206,88 Stat.1246(42U.S.C.5846). Sections 2.300 2.309 also issued under Pub. L. 97-415,96 Stat.2071(42U.S.C.2133). Sections
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2.600-2.606 also 1ssued under sec. 102, Pub. L. 91-190, 83 Stat. 853 as amended (42U.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 (42V.S.C.2133)and5U.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,asamended(42U.S.C.2039). Appendix A also issued under sec. 6 Pub. L. 91-580, 84 Stat. 1473 (42 U.S.C. 2135). I
- 2. In i 2.730, a new paragraph (i) is added to read as follows:
6 2.730 Motions. (1) Theprovisionsofi2.730(a)through(h)arenotapplicable to motions filed pursuant to il 2.795a through 2.795k.
- 3. Ini2.740, paragraph (b)(1)isrevisedtoreadasfollows:
i 2.740 General provisions governing di_scovery. (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 l party, including the existence, description, nature, custody, condition, i and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable ' matter. For the purposes of this section, privileged matter includes information subject to a protective order issued under the special . l procedures in il 2.795a through 2.795k. In a proceeding on an applica-l t l I
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tion for I construction permit or an operating license for a production or utilization facility, discovery shall begin only after the prehearing conference provided for in i 2.751a and shall relate only to those matters in controversy which have been identified by the Commission 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 i 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 appears reasonably calculated to lead to the discovery of admissible evidence.
- 4. In i 2.780, paragraph (a) is revised to read as follows:
i 2.780 Ex parte communications. (a) Except as provided under the special procedures in il 2.795a through2.795korinparagraph(e)ofthissection,neither(1) Commissioners, members of tneir 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 exceptfromeachother,nor(2)anypartytoaproceedingforthe issuance, denial, amendment, transfer, renewal, modification, suspen-sion, 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 Commissioners or such 8
e 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, modifica-tion, suspension, or revocation of a license or 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 this part.
- 5. In Subpart G, immediately following i 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 l 2.795a Applicability of special procedures; official file. (a) Sections 2.795a through 2.795k specify procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an investigation or inspection or to the identity of a confidential informant and detmed relevant and material to a pending adjudication. These procedures apply to all NRC offices. The procedures are to be used whenever I 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 l 1 l
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l l I the information without a protective order would prejudice an investigation or inspection or reveal the identity of a confidential informant. (b) As used in 19 2.795a through 2.795k, the tenn " presiding officer" includes an administrative judge, an administrative law judge, an Atomic Safety and Licensing Board, and an Atomic Safety and Licensing Appeal Board. (c) Unless and until publicly released, all documents required by or relating to the special procedures in 55 2.795a through 2.795k shall bear the docket number and title of the proceeding, be marked "Not For Public Disclosure - Protected Under 10 CFR 95 2,795a - 2.795k," and transmitted to the Secretary in sealed double envelopes for deposit in the protected section of the official docket file. 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 information 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.
9 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 Administration, U.S. Nuclear Regulatory Commission, 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 esttuated 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 conditions 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 Considerition of motion by presiding officer; procedure. (a) A motion from an NRC office for a protective order to impose conditions on or to withhold disclosure of information shall be considered by the presiding officer in camera without parties other than the NRC staff present. (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 presentatfori 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 parties to a pending adjudication when any ex parte in camera oral presentation will be hel d. 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 verbatimtranscriptshallbemade. i (
9 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 Comission policy favoring full disclosure, whether disclosure of the information without a protective order could adversely 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 Commission for review. Pending Commission review, the order of the presiding officer shall be 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
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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 su.bmit 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 presiding officer shall promptly certify the objection, the ruling disallowing the objection and the accompanying record required by 9 2.795f to the Commission 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 Regulatcry 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 3 camera review. A notice of certification shall state the reason for the certification, the certification date, and that, in accordance with 9 2.795f, any party to the adjudication may file a timely brief with the Comission. L -_ __
f . 5 2.795f Record for Commission review; briefs. (a) Every information disclosure ruling certified to the Comission for ex parte in camera review pursuant to 6 2.795e will be 1ccompanied by a record which shall consist of the information provided to the oresiding officer ex parte in camera, all documents filed with the presidi.1g 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 3 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 issues an order certifying an information disclosure ruling to the Comission for ex parte M 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. 9 2.795g Commission 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 M 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 Commission
f ' may conduct an ex parte in camera oral presentation on any matter certified to it for review under 6 2.795e. (b) After review of the certified information disclosure ruling, the accompanying record and any briefs, the Comission shall decide whether to affirm, reverse, or amend the ruling. The Comission order may include any terms or conditions deemed necessary or appropriate.
% 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 informatio'n 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 con'fidential informant or unless the Comission has ordered otherwise. The identity of a confidential informant may only be released by order of the Comission.
5 2.7951 Ex parte in camera record deemed sealed pending further order. (a) Whenever the presiding officer under 6 2.795e, or the Commission under 5 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'shhll 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 Commission 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 9s 9.5, 9.61 or 9.95 of this chapter, the presiding officer or the Comission, as appropriate, shall order the ex parte in camera record included in the public' record of the pending adjudication.
5 2.795j F0IA recuest for release of protected information; release determination review. (a) The Director, Division of Rules and Records, Office of Administration, U.S. Nuclear Regulatory Commission, upon notice by an NRC office that information subject to an F0IA request is also subject to a
. . - a r.e.
protective order issued under 9 2.795e or 6 2.795g, shall promptly notify the presiding officer or the Commission, as appropriate. (b) Upon notification of an FOIA 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 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.
@ 2.795k Prohibition against use of information subject to protective order.
Information subject to a protective order to withhold disclosure may notbeusedbythepresidingofficerinmakiEganydecisioninthepending 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. 1
)
l t Samuel J. Chilk Secretary of the Commission ! I I
- 36032 Federal Register / Vol. 49. No.179 / Thursday, September 13, 1984 f Notices _ .
filed mth the Department by the Trust. conflicts between the NRC's guidelines for disclosure ofinformation ' St.ch plan is not required to include in responsibility to disclose information to concerninginvestigations and e ' the annual report any information adjudicatory boards and parties, and the inspections should apply to all NRC 3 concerning indnidual transactions of NRC's need to protect insestigative offices.Those recommendations have ' th Trust. I material from premature public been incorporated in this Statement. ' (c) Reporting Information Relating to disclosure. " Statement of Policy- In addition, two comments were I the Trust to be Aled with the Insestigations and Adjudicatory submitted by members of the public. - Department of tabor. The following Proceedings." 48 FR 36358 (August 20 One cornmenter stated that the information regarding the Trust must be 1983). withholding of information from public ' reprted for the fiscal year of the Trust Those interim procedures called for disclosure should be confined to the the NRC staff or Office ofIrnestigations minimum essential to avoid ' ending with or within the plan year for I which a Participating Plan's annual (01) when it felt disclosure of compromising enforcement actions, and ' report is made: information 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 inspection or investigation, to present ' (2) A hst of all Participating Plans in comero proceeding except in the most
- insesti g in the Trust identified by plan the information and its concerns about exceptional cases.
disclosure to the board in comero, ' name. pian number. and name and EIN The other commenter nr.sintained that without disclosure of the substance of ' cf the p!an sponsor as they appear on an in comero presentation to the board the annual return / report, and each the information to the other parties. A with only one party present is ' plan's percentage interest in the Trust as board decision to disclose the undesirable and violates the ex parte
- ef the beginning and endmg of the fiscal inforroation to the parties was rule.That commenter suggested an year of the Trust; appealable to the Commission, and the alternative of having the attorneys or (3) A statement of assets and board was not to order disclosure until authorized representatives of parties :
liabihties of the Trust; the Commission addressed the matter. ' who have signed a protective agreement (4) A statement ofincome and That Statement of Policy was,t . present at any in comero presentation. expenses of theTrust; remain in effect until the Commisst n with appropriate sanction (5) The assets held for investment received and took action on the ge protective agrument.,s for violating (includmg the acquisitiens and recommendations of aninternalNRu The Commission, after considering dispositions during the fiscal year of the task force established to develop these comments and the report of the Trust) leases and obhgations in default, guidelines for reconciling these conflicts Task Force. has decided that it would be and compensation pard by the Trust for in individual cases. The Commission in appr priate in order to better explam services in the manner required by the that Statement also requested public the Commission a policy in this area, to instructions to the annual return / report comments on the propriety and provide the followmg explanation of the Form 5500; desirabihty of ex porte in comero conflict between the duty to disclose (6) A report of anindependent presentation of information to a board, i $P " f and suggestions for any better - quahfied pubhc accountant regarding the statements and schedules desenbed alternatives. js gatio" ,d: ar dP d$ai in subparagraphs (:) through (5) above The Task Force submitted its report to to protect that information:
^!! parties in NRC adjudicatory which meets the requirements of 29 CFR the Commission on December 30.1983.
A copy of that report will be placed in proceedings, including the NRC staff. 2520103-1(b)(5). have a duty to, disclose to the boards The Trust shall file the information the Commission's Public Document Room.The Task Force appros ed the and other parties all new information described in this paragraph (c) with the they acquire which is considered Department by mailing it to: Office of principles discussed in the Commission's earlier Statement of material and relevant to any issue in Reports and Disclosure. Office of Policy, and made several controversy in the proceeding. Such Pension and Welfare Benefit Programs. U.S. Department of I abor. 200 recommendations intended to denne disclosure is required to allow full specifically the responsibilities of the resolution of all issues in the proceeding. Constw;on As enue. NW. Washirgton, boards, the staff, and Olin present.ng The Commission expects all NRC offices D C.2u:10. Attention: Texas Commerce disclosure issues for resolution. to utilize procedures which will assure Trust Co. Alternatise .\fethod of Compliance. The Task Force recommended that the prompt and appropriate action to fulfill final Policy Statement explain that full this responsibility. , , Signed at Washington. D C.. this 8th day of disclosure of materialinformation to However, the Commission recognizes Septemt:er adjudicatory boards and the part!es is that there may be conflicts between this R;bert A~G' Monk' responsibility to provide the boards and the general rule, but that some confhets A dmmst.otor. Ouzce offe:rsion and Welf:re between the duty to disclose and the parties with information and an
" **#' need to protect information will be investigating or inspecting off!ce's need (Mt Dec es-rem rw e u-as s es em) It' evitable. The Task Force further to avoid public disclosure for either or
' " *' ' N recommended that issues regarding both of two reasons:(1)To avoid
- disclosure to the parties be initia'ly determined by the adjudicalory boards a soth commen+e eteo included suseeinons NUCLEAR REGULATORY with provision for expedited appellate "8"d'8 58""' beyond the . cope or inie pohcy l
COMMISSI" review, and that procedares for the '""' ' hh " '"'
- d "'Y *'h estat' shins a procedare to hand le con!Lcts i Statement of Policy; Investigations, resolution of such confhets be bemeen the dur s to di.ct4 , .ntormeiion to the
! Inspeetior's,and Adjud:catory established by rule. Fmally. the Task boa-de ar.d re nes and the need to proteciisei Force sug;;ested that existing board tafomaSon For monce unussmon mee that j Prictedings ***""**"""8"'""dd'" notification procedures should remain On August 5.1983, the Commission set unaffected by the Policy Statement, and no$ticle'n EYl[e',*r7, ,7m"e'nj,'l$,'thNC firth intenm procedures for handling that those procedures and Commission impro*e the q.ish:3 of as in*msu.or.e L
S'3 - rr Federal Register / Vol. 49. No.179 / Thursday. September 13, 1984 / Notices '36033 $
#s, These procedures are designedjo a!!ow a of each indiviilual case However, the .
compromising an ongoing investigation Commission does note that as a ganeral the boards to determine the relevance of 1S cr mspection: and (?) to protect material to the adjudication, and confidential sources. The importance of rule it favors full disclosure to the whether that information must be . M protecting information for either qi these boards and parties, that information reasons can a appropriate should be protected only when disclosed to the parties, and. if D necessary. and that any limits on disclosure is required. to provide a circumstances be as great as the mechanism for case management both j importance of disclosing the information disclcsure to the parties should be b. to the boards and parties. limited in both scope and duration to the to protect investigations and inspections minimum necessary to achieve the and to allow for die timely provision of With regard to the first reason. ,-{* cv:iding compromise of an investigatien purposes of the non-disclosure policy. material and relevant information to the
.The purpose of this Policy Statement parties. As such these procedures are b rr inspection. It is important to informed analogous to the procedures for licensing decisions that NRC inspections is to establish a procedure by which the cnd investigations are conducted so that conflicts can be resolved. The Policy
- resolving disputes regarding discovery, f, J
Statement takes over once a see, e g.10 CFR 2540(c). and do not
;a cil relwant information is gathered for - determination has been made, under violate the prohibition in to CFR 2J00 F-cppropriate evaluation. Release of established board notification against ex parte discussion of investigatis e rnaterial to the subject of -
cn investigation before the completion procedures, that information should be substantive matters at issue. ' ef the investigation could adsersely disclosed to the boards and public. but In accord with the above discussion. cffect the NRC's ability to complete that O! or staff believes that the information the Commission has decided that the [4 investigation fully and adequately.The should be protected. In those cases the procedures to be followed, where there *
,g subject. upon discoving what esidence Commission has decided that the only is a ecnflict between the need for [
workable solution to protect both disclosure to the board and parties and the NRC had already acquired and the directi:n being taken by the NRC . interests is to pioside for an in comem the need to protect an investigation or investigation might attempt to alter or presentation to the board by the NRC inspection, willinclude in comero , staff or OI. with no party present. Any presentations by the staff or 01. limit the direction or the nature or However.because this procedure oailability of further statements or other procedure could defeat the cvidence and prevent NRC from purpose of non-disclosure and might represents a departure from normal actually inhibit the acquisition of Commission procedure,it is the " teamir's the facts.The failure to Commission's view that the decision tscerta;n all relevant facts could itself information critical to decisions-result in the NRC rr.aking an uninformed Allowing the other parties or their shculd be implemented by rdemaking. licensinF decision. Howeser, the need to representatives to be present in all Accordingly, the Commission directs the NRC staff to commence a rulemaking on r protect information deseleped in casts. even under a protective order. could breach promises of confidentiality the matter. I insestigations or inspections usually j ends once the insestgation or or allow the subject of an investigation Until completion of the rulemaking, inspection is completed and es aluated to pren.aturely acquire information . the following will control the procedures f for possible enforcement action. about the investigation. We note m this to be followed in resching confhets The second reason for not disclosing regard the difficulties of attempting t between the duty te disclose to bnards investigative material-to protect prevent a party's representative from and the need to protect information ' talking to his client about the relevance developed in investigation or inspection: confidential sources-has a different of the mformation and how to respond , basis. Individuals scraetimes present 1. Established board notification to it. es en under a protective order. procedurcs should be used by staff or OI i safety cencerns to the NRC only after being assured that their individual The Commission believes that the to deterrnine whether information in idintity will be kept confidential. Th,si boards. using the procedures established their possesrion is patentia!!y relevant d: sire for conf;dentially 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.8 The general ruie is that all possibility of harassment and they have been adsised of the nature of informatien warranting disclosure to the retahation. Conf:dential sourges are a the mformation involved, the status of boards and parties. including I ) teluable asset to NRC mspections and the inspection or investigation. and the information that is the subject of im estigations. Rc! easing names to the projected time for its completion. In ongoing im estigatiens or inspections, parties in an adjudication after many of the cases when the procedures should be disclosed. except as provided promising confidentially to sources in this Policy Statement are triggered by h'#U"' would be detrimental to the NRC's a concern for premature public 2. When staff or'OI believes that it cverill inspection and investigation disclosure. it may be possible for boards has a dutyin a particular case to , Cctiuties because other indiuduals may to provide for the timelv consideration provide an adjudicatsr) board with be reluctant to bring information to the of relevant matters denied from information concerning an inspection or ERC. Hown er, the need to protect investigations and inspections through invest:gation, or when a board requests c;nfidential sources does not end when the deferral or rescheduling ofissues for such information. staff or OI should , the investigation or inspection is hearing. In other instances. the beards provide the information to the board and completed and es aluated for possible may be able to resolve the conflict by parities unless it belies es that enforcement action. placing limitations on the scope of unrestricted disclosure would prejudice disclosure to the parties. or by using an ongomg mspection or im estigation. 5. By this Policy Statement. the Ccmrnission is not attempting to resolve protective orders. or reveal conf dential sources. lf staff or the conflict that may arise in each case The Commission wishes to emphasize 01 behes es unrestricted disclosure between the duty to disclose that these procedures do not abrogate information to the boards and parties the well.estabhshed principle of a wb le th.s Statetent refers o .!> to s'aff er:d O! I Cnd the need to protect that information adm;mstrative law that a board mcy not who a v the repr:.ut.c .s pen.!3 imohed the use er porte information presented m ca e nett w!: arfy to any ohr of%s of the Crits source.The resclution of actual comero in making licensing decisions. Cwrnhon mhd rea) haie the roblem conflicts must be decided on the merits i. l . t r
..d
y 36034 Federal Register / Vol. 49. No.179 / Thursday. Septernber 13, 1984 / Notices s would hase these adverse results. It brief, shall be kept in camero to the Pennsylvania. The !! cense 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!c protective orders and other The Commission recognizes that no Nuclear Regulatory Commission (the I restrictions, unless such restricted other party may be in a position disc!csure would also defeat the Commission) now and hereafterin effectively to respond to staff or Ol's effect. purpose behind non-disclesure. If staff brief because the proceedings have been er 01 believes that any disclosure, conducted in comera. However. in those gg , howeser 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 to the board. in camera, without other features of nuclear power plants (45 FR and, as appropriate, the Commission. if 76602). The revised section 50.48 and parties precent. A verbatim transcript of the objection to disclosure to the parties Appendix R became effective on the in comero proceeding will be made.' of previously withheld information. or ; February 17.1981. Section 111 of All parties should be adsised by the any portion ofit is withdrawn. Unless i board of the conduct and purpose of the Appendix R contains fdteen i the Commission has directed otherwise, subsections. lettered A through 0, each in camera proceeding but should not be such information-with the exception of of which specifies requirements for a ) informed of the substance of the information presented. lf, after such in the identities of confidential sources- particular aspect of the fire protection rnay then be disclosed without further features at a nuclear power p!snt. One camera presentation, a board finds that Commission order. of those fifteen subsections !II.G.is the disclosure to other parties under
- 4. When a board or the Commission subject of this exemption.
protecta e order or otherwise is required determines that information concerning Subsection III.C specifies detailed (e q;. withholding information may a pending investigation or impection preiudice one or more parties or requirements for fire protection of the jeopardize timely completion of the should not be disclosed to the parties. equipment used for safe shutdown by the record of anyin comera proceeding means of separation and barriers proceedings, or the board disagrees that conducted shall be deemed sealed [UI.G.2). lf the requirements for release will prejudice the ins estigation). pending further order.That record will it shall notify staff or O! ofits intent to separation and barriers cannot be met in crder 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 O! of the information involved, whichever in response to previous requests from shall proside the board within a is earlier, subject to any privileges that the licensee, the Commission granted an rezsonable period of time. to be set by may validly be claimed under the exemption to requirements of subsection Commission's regulations, including Ill.G and !!! L on h! arch 14.1983. By tha board, a statement of objections o,r concurrence. lf the board disagrees with protecton of the identify of a letter dated December 16.1983 and any objection and the disagreement confidential source. Only the supplemented by letter dated hlay 30.
$ha Commission can order release of the 19S4. Duquesne Light Company p c ptly cer f r cord th, j,1 identify of a confidential source. requested additional exemptions from camero proceeding to the Commission Cated a~t Washington D.C. this 7th day of the requirements of Subsection Ill.G of for resolution of the d;sclosure dispute. September.1964 Appendix R.
cnd so inform the other parties. Any Nuclear Regulatory Commission. III licensing board decision to order samuell. chilk. disclosure of the identify of a Secretory ofrAe Commission. We have reviewed the licensee's confidential source shall be certified to exemption requests and evaluation of
% a g u , % ,** **=1 the Commission for review regardless of ew,.c coos neo-oi-as these requests is as follows:
whether 01 and staff concur in the 1. FixedSuppression ondDetection disclosure
- The board's decision shall Systems be sta> ed perding a Commission [ Docket No. 50-3341 gg Co sie al e nsist of he Duquesne Ught Co., et al. (Beaver is requested from Section Ill.G.3 to the transcript, 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 Strff or 01. Staff or 01 may file a brief I fire area for which s!!ernative shutdcwn with the Commission within ten days of has been provided. ,
filmg a statement of objections with the The Duquesne Light Company. Ohio Primary Auxiliary Building (PA-1A). board.The record before the Edison Company and Pennsylvania Elev. 768
- Commission. including staff or OI s Power Company (the licensees). are the holder of Facility Operating License No. Control Room HVAC Equ!; ment Room 8 No a th Sa ment prohibits staff on 01 D a o a (CR-2). Elev. 713 p Emer ncy witchgeat Rooms (ES-1 &
- The Cerr%ss.on has decided to renew any No.1 (the facility) at steady. state power I- -
licens.n3 board dec s.cn ordenng disclosure of the l edentify of a centden'ist sourte because cf the jeyels not in excess of 2652 megawatts Process Instrument Room (CR-4). Elev.
' "' thermal. The facility is a pressurized 733 Es"*g%'d*[l c I f ect.sIheIdenu"yof water reactor (pWR)loca'ed at the Communications Equipment & Relay cent.deau.i sources licensee's site in Beaver County, Panel Room (CR-3). Elev. 713
a
. > 21072 Fedml Register / Vol. 50, No. 99 / Wednesday, May 22, 1985 / Proposed Rules 9 .
It is not anticipated that the adoption suggestions to the Secretary of the for each culture at intervals of no less . of the proposal would have any than 7 days, and that the last of the sets Commission, U.S. Nuclear Regulatory t significant effect on the cost of testing of specimens was collected within 30 Commission Washington. D.C. 20555, horses imported into the United States j days of the date of exportation; and Attention: Docketing and Service -
' from countries in which CEM exists or + + + +
+
Branch. Comments may also be on the number of such horses imported delivered to Rooni 1121,171711 Street,
' (iv) + + + ,
i into the Unites States. NW., Washington. D.C. between 8:15 Under these circumstances, the (C) The last of the'three sets of specimens collected in paragraph aan. and 5:00 p.m. Copies of any , Administrator of the Animal and Plant comments received may be examined at
- llealth Inspection Service has (i)(2)(iv)(B) was collected and cultured flegative within 30 days of the date of. the NRC Public Document Room,171711 determined that this action would not export of the stallion described on the . Street, NW., Washington, D.C. 20555.
have a significant economic impact on a ( certificate: and Fon FURTHER INFORMATION CONTACT: ( substantial number of small entitles. . ,. . . . Jane R. Mapes, Senior Regulations l List of Subjects in 9 CFR Part 92 Done at Washington, D.C., this 17th day of Attorney, Regulations Division. Office of hiay 1985. the Executive Legal Director U.S. Animal diseases, Canada, Imports
- mchtner, uclear hgulatory Conumion.
Mexico, Quarantine, Poultry & poultry Transportation products' Wildlife . ActingDeperyAdministmtor, veterinary Washington, D.C. 20555: Telephone: Services. (301) 492-8695. PART 92-lMPORTATION OF CERTAIN [FR Doc. 85-12324 Filed M1-85: 8.45 am) sUPFt.EMENTARY INFoRMATION:On . ANIMALS AND POULTRY AND sumo coos sue.ss.a September 13.1984, the Commission CERTAIN ANIMALS AND POULTRY __ published a Statement of Policy on PRODUCTS; INSPECTION AND OTHER Investigations. Inspections and REQUIREMENTS FOR CERTAIN NUCLEAR REGULATORY Adjudicatory Proceedings (49 FR 36032- ' MEANS OF CONVEYANCE AND COMMISSION 36034, September 13,1984.)In that SHIPPING CONTAINERS THEREON Statement of Policy, the Commission re-10 CFR Part 2 emphasized the importance and need for Accordingly,9 CFR Part 92 would be amended as follows: full disclosure ofinformation in an
- 1. The authority citation for i 92.2 Adjudications; Special Procedures for , adjudication so that all issues may be Resolving ConflJcts Concerning th* fully resolved and stated that:
would be revised to read: Disclosure Nondisclosure of Authority:21 USC.102-105,111,134a, [A]Il parties,in NRC adjudicatory b.1 c, and 134f: 7 CFR 2.17,2.51, and Information ' 'Of proceedings, including the NRC staff. have a
- - AGENCY: Nuclear Regulatory duty to disclose to the boards and other Commission
- parties all new information they acquire
- 2. In 8 92.2, paragraphs (i)(2)(iii)(B). which is considered material and relevant to (i)(2)(iii)(C), and (i)(2)(iv)(C) would'be ACTI N: Proposed rule, any issue in controversy in the proceeding.
revised as follows: 69 M2. eptemk 13. W sUMMAny:The Nuclear Regulatory
' $ 92.2 General proNtWtions; exceptions. Commission is considering amending its , At the same time, the Commission
. . . . . rules of practice to provide special recognized the need in certain
... procedures for resolving conflicts circumstances to limit disclosure to J concerning the disclosure or
'... avoid compromising an NRC inspection d ... nondisclosure of information relating to or investigation or to protect a ~ '
b
' - (D) For female horses over 731 days of an NRC investigation or inspection not confidentialinformant. In some age, that negative cultures for CEM were yet concluded or which would reveal the instances, these conflicting concerns can # conducted from one set of specimens identity of a confidentialinformant and be reconciled by placing restrictions on Y collected during estrus consisting of one deemed relevant and material to an the manner in which the information is $O specimen from the endometrium. one specimen from the mucosal surface of adjudication. Prepared at the express disclosed, such as, for example, rescheduling consideration of certain -2 direction of the Commission and the urethra, one specimen from the intended for the sole use of NRC offices issues during the course of a hearing or C mucosal surface of the clitoral fossa
- and staff, the proposed amendments specifying the manner, time, place, or E and one specimen from the mucosal apply to all NRC offices that have Persons to whom the information may-i=lN surface of the cervix, and that negative inf rmation relevant and material to an be disclosed.There are, however, 2, cultures for CEM were conducted from adjudication. The proposed amendments certeln situations in which any s two additional sets of specimens provide for expartein camera disclosure ofinformation, however Y consisting of one specimen from the presentations and implement the restricted, could affect the conduct of an f mucosal surface of the urethra, one Commission's directions in its recent inspection or investigation. In its ,
V specimen from tire mucosal surface of statement of policy on investigations, Statement of Policy, the Commission 5F the clitoral fossa, and one specien from in8pections and adjudicatory expressed the view that in these the mucosal surface of the cervix: that proceedings. situations the NRC staff should be d T the sets of specimens were collected at DATES: Comments must be received on MqulMd to: intervals of no less than 7 days: and that or before July 22,1985. Comments Provide the board with an explas.ation of R the last of these sets of specimens was received after this date will be the basis ofits concern about disclosure and U collected within 30 days of exportation, considered ifit is practical to do so, but present the information to the board. In g __~ (C) For stallions over 731 days of age, that three negative cultures were assurance of consideration cannot be C ""; W ",p sp nt. 69 FR given except as to comments received , W conducted from specimens collected on or before this date. The Commission also noted that: from each of the surfaces of the urethral ADDRESSES: Interested persons are Because this procedure represents a fossa, the urethra, and the penile sheath invited to send written comments or departure from normal Commission
=
h . . .. _..
*F , .
y l,
,_,, Federal Register / Vol. 50, No. 99 / Wednesday l Miy 22,1985 f Propos' ell Rules E1973
; procedure, it is the Commission's view that '
of that information has become may be expected.ne' substantive f the decision should be implemented by apparent, the NRC office having - content of the information shall not be 5, rulemaking. (49 FR 36032 at 36033, September posssession of or access to the disclosed.To provide a record, a
"* information would use the puyosed verbatim transcript will be made of each
%e propossd rule establishes special procedures as necessary to ex parte in comem oral presentation.
( procedures, not currently induded in the resolve the conilict. ~ After consideration of a motion to Commission's Rules of Practice, which Under the special procedures, the impose conditions upon or to withhold g may be used by all NRC offices to appropriate NRC office may move the disclosure of information. including any gg request the withholding of information presiding officer of the pending expartein comem oral presentation, from disclosure or the imposition of adjudication to grant relief from the - and after finding that the information conditions under which information may disclosure requirement either by subject to the motion is both relevant be disclosed.%e procedures may not ordering information disclosed subject and material to the pending be used by applicants, licensees, to conditions or by ordering information adjudication, the presiding officer will a of intervenors and others to protect or withheld fmm disclosure. For the decide,inlight of the Commission policy withhold their information from purposes of these procedures, the term favoring full disclosure,whether disclosure.nese special procedures are " presiding officer ** includes an - disclosure of the information without a applicable in those limited administratis e judge. an administrative protective order could adversely affect circumstances in which an NRC office is law judge, an Atomm Safety and the NRC's ability to. conduct an under a duty to disclose relevant and investigation or inspection fully and materialinformation to a boani and/or ' and Licensing LicensingBoard, an'd an Atomic Safety ' udequately or to protectid Appeal Board.%e parties in an ongoing adjudication, for motion.which may be made orally or in otherwise preserve the anonymity of a example, under established board writing, must contain a brief description confidentialinformant and whether and 52- notification procedures, in response to a of the nature of the information subject to what extentall or part of the l discovery request, or as otherwise~ to the request and explain the relevance information should be withheld from
- re- directed by the presiding officer, and it of the information to the pending disclosure or only disclosed subject to
.for is determined that disclosure of the adjudication.He motion must also state conditions.
information without a protective order why and to what extent disclosure of If the presiding officer grants the a would prejudice an inspection or the information without a pmtective motion, the presiding officer shall issue investigation or reveal the identity or order will compromise or impede the a protective order as requested.If the otherwise compromise a confidential conduct of an NRC investigation or presiding officer determines that the . ,a informant. Once these findings have inspection, or reveal the identity or motion should be denied in whole or in been made, the proposed special otherwise compromise a confidential part, the presiding officer shall notify the procedures would be used by the NRC information. At the time the motion is NRC office submitting the request of the ta office having the information to request made, the NRC office must notify all intent to order disclosure. %e notice of the imposition of conditions on parties to the pending adjudication that intent to order disclosure shall specify disclosure or to withhold disclosure of the imposition of conditions on or the the nature of theinformation to be the information. withholding of disclosure of the
- distcosed, the terms and conditions of The factors to be considered in infonnation has been requested. any proposed order and the basis for the determining whether information is flowever, the information subject to the conclusion that prompt disclosure is hn eligible for a protective order imposing motion shall not be revealed.Re NRC required. %e notice of intent shall state conditions upon or withholding office must also notify the Director, a reasonable time by whic'. the NRC disclosure of the information are set out Division of Rules and Records, NRC office must submit e or tement of
'an in i 2.795e of the proposed rule and Office of Administration, who is the objection or concurn a.e. If the NRC track the standards enunciated in the agency official responsible for office concurs in the discloture specified Statement of Policy. A protectiveorder processing Freedom ofInformation Act in the notice ofintent and if the may either impose conditions on the (FOIA) requests. disclosure does nor reveal the identify l manner in which the information may be ~ Upon receipt of a motion fmm an NRC of a confidentialinformant,the p disclosed or withhold disclosure of the office to impose conditions upon or to presiding officer shall issue the order information. In general, a protective withhold disclosure of information, the proposed. If the NRC office objects to
. order will be appropriate if it can be presiding officer, without parties other the disclosure specified in the nctice of i
l shown .that the information relates to an
- than NRC staff present, may either rule intent and any such objection is l inspection or investigation and that on the motion on the basis of the disallowed, the presiding officer shall j disclosure of the information without a information provided, conduct an ex promptly certify the objection, the ruling a protective order would be detrimental to partein comem oral presentation, or disallowing the objection and the l
the effective conduct of the inspection or request further information. Under the accompanying record to the Commission 1 investigation, or if it can be shown that proposed amendments, the presiding for exporte in comem review. Every l the information would reveal the officer is authorized to conduct an ex ruling requiring disclosure of the identify identity or otherwise compromise a parte in comem oral presentation at any of a confidentialinformant must be confidential informant. ne information time on his or her own initiative.%e certified to the Commission for review. need not relate solely to an ongoing presiding officer must notify all parties Concurrence in such a ruling by an NRC
,, inspection or investigation but may also to the pending adjudication whenever office does not change this letter include information on the basis of an ex parte in comem oral presentation requirement.
which the NRC may determine whether is to be held.%e notice shall state the ne presiding officer shall promptly Io imtlate an inspection or investigati6n. purpose, time, and place of the ex parte notify all parties to the pending After the conflict between the obligation in comem oral presentation and the adjudication and the Director, Division to disc lose a particularitem of appmximate date a ruling concerning of Rules and Records, NRC Office of informadon and the need to impose the disclosure or nondisclosure of the Administration whenever a ruling conditions upon or withhold disclosure information subject to the presentation relating to the disclosure or l i 1 I
- - - - ~ - - - - - - - - - --- -- - - -- -
_ 21074 Fed:rtl Registrr / Vol. 50, No; 99 / Wednesday, May 22, 1985 / Proposed Rdss
~
nondisclosure of information has been or part of the information should be officer may use the information in -' issued or has been certified to the released. - reaching a decision. When information Commission for ex parte in comem The NRC offica at whose request the
- - is made available only under specified review. A notice of certification shall presiding officer or the Commission has conditions, a party may be unwilling to state the reason for the certification, the issued a protective order respecting the
- - certification date, and that. in examine the information because the disclosure of information shall notify the party does not wish to accept the accordance witii i 2.795f, the NRC office presiding officer or the Commission, as conditions under which it is proffered.
^ or any other party to the adjudication appropriate, and the Director, Division The fact that a party does not choose to may file a timely brief with the of Rules and Records, NRC Office of availitself ofinformation to which Commission. The NRC office must notify Administration when its objection to access is permitted but only under all parties to the adjudication whenever disclosure to the parties to the pending specified conditions cannot be used to 7 an NRC brief is filed. Ilowever, the NRC adjudication of all or any portion of the bar the presiding officer from relying on brief need not be served on the parties if information subject to the order is that information in reaching a decision.
} to do so would reveal any of the withdrawn, when the inspection or A presiding officer is under no withheld information. Within seven ,
investigation to which all or any portion obligation by reason of these special L days after service of the notice of filing of the information subject to the order procedures to accord parties to a of the NRC brief, any other party to the relates is completed, or whtn it teams of pending adjudication unconditional adjudication may file a brief with the any other change in the status of the access to allinformation. Once the Commission. The order of the presiding protected informatioh. Unless the opportunity for conditional access has officer shall be stayed pending information relates to the identity of a been provided and notwithstanding the Commission review. ~ confidentialinfonnant or unless the fact that it may have been declined, the 7 The Commission shall consider any Commission orders otherwise, presiding officer may use the matter certified to it for review under infonnation which an NRC office has - information in making a decision in the these precedures in comem without consented to release may be disclosed pending adjudicatory proceeding. parties other than the NRC staff present. to the parties and placed in the public Minor conforming amendments to to The record for Commisson review shall record of the pending adjudication CFR 2.730,2.740 and 2.780 are also consist of the information provided to without further order. The identity of a - proposed. the presiding officer ex porta and in confidentialinformant may only be comem, all documents filed with the released by order of the Commission. EnvironmentalImpact-Categorical - presiding officer by the NRC office Under the proposed procedures, after " *
- requesting a protective order, including notice by the appropriate NRC office The proposed amendments would
,~ any statements of concurrence or that an inspection or investigation has objection, the transcript of any exparte amend the Commission's Rules of been completed or that objection to the Practice codified in 10 CFR Part 2 and in camera oral presentation, the presiding officer's notice ofintent to disclosuro ofinformation has been therefore meet the eligibility criteria for withdrawn, whichever is earlier, and the categorical exclusion set forth in 10 require disclosure and the presiding subject to certain specific limitations, CFR 51.22(c)(1). Accordingly, pursuant officer's order. Upon its own initiative or the presiding officer or the Commission, 10 CFR 51.22(b), no environmental upon request by the NRC office as appropriate, is required to order the impact statement or environmental requesting the imposi ion of conditions expartein camera record. Including the assessment need be prepared in .
upon the disclosure d ulormation or the verbatim transcript of any exportein connection with the issuance of the withholding ofinformaticn from camera oral presenta tion, included in proposed amendments. a disclosure, the Commission may conduct the public record of the pending an ex parte in camera oral presentation adjudication. This requirement is subject Paperwork Reduction Act Statement on any matter certified to it for review - to the prohibition against inclusion in The proposed rule is not subject to the under 4 2.795e. After completing its the public record of the adjudication of review, the Commission will decide provisions of the Paperwork Reduction any part of the ex partein comem Act of 1980 (44 U.S.C. 3501 et seq.) whether ruling.' to affirm, reverse, or amend the record containing information pertaining because it does not contain any to the identity of a confidential information collection requirements Whenever the presiding officer or the informant except pursuant to Commission issues an orderimposing within the meaning of section 3502(4) of - Commission order. This requirement is that Act. conditions upon or withholding also subject to any other exemptions disclosure of information, the ex parte e,n from mandatory public disclosure that Regulatory Flexibility Act Certification E camero record on which the orderis may validly be claimed under the-based shall be deemed sealed pending As required by the Regulatory further order. Commission's regulations, including any Flexibility Act of 1980,5 U.S.C. 605(b), , exemptions that may be available under the Commission certifies that this rule,if "- The Commission does not intend 10 CFR 2.790,9.5. 9.61 or 9.95. adopted, will not have a significant ' these special procedures to be used to U,nder the proposed procedures, a economic impact upon a substantial shield information properly subject to presiding officer may not use = number of small entities and that - disclosure under the Freedom of information subject to a protective order therefore a regulatory flexibility - Information Act (FOIA). Upon receipt of in making any decision in the pending analysis need not be prepared. an FOIA request for release of adjudication unless all parties to the r Proceduralin nature, the proposed information deemed sealed by reason of pending adjudication have been amendments provide a mechanism for a protective order, the presiding officer p accorded acess to the information and the orderly resolution of conflicts or the Commission, as appropriate, will given an appropriate opportunity to =- again review the nature and status of respecting the obligation of NRC offices address that information. Once all to disclose information deemed relevant r the information to determine or part of the information should whether all parties to the pending adjudication have and material to a pending adjudication been given such an opportunity, either and the need by those same offices to continue to be protected or whether all with or without conditions, the presiding protect information relating to an NRC s_
- F yw.gg,_Ww ww .r ,_= mh N *' ~
~- ,
s 21975 Federal Register / Vil 50, Nr. 99 / Wednesday,'May 22,1$85 / Pmposed Rules ~ ' investigation or inspection or which Stat. 938, as arsended (42 UAC 2133) and s 7 795k or in paragraph (e) of this section, would reveal the identity of a USC 552. Sees. taco and 2.aos mise issued neither (1) r%=Woners, members of under 5 UAC 553.Sec.2.aos also tuned their Immadiate staffs,or other NRC confidentialinformant.The proposed rule does not impose any obligations on under 5 UAC 553 and sec.2s. Pub. L A officials and employees who advise the entitles regulated by the NRC, including ',di A al 1. Commissioners in the exercise of their
- ed er s. Pu quasi-judicial functions will mquest or any regulated entities that may fall 91-580, se Stat.1473142 UAC 2135). ,
entertain off the reconiexceptimm within the definition of "small entitles,,,
- 2. In l 2.730, a new paragraph (1)la M oth not (2) any party k a as set forth in section 601(3) of the added to read as follows:
Regulatory Flexibility Act, or within the , proceedmg for the issuance, denial, amendment, transfer, renswal, definition of "small business" as found 32.730 teseena, modiCcation, suspension, or revoca tion in section 3 of the Small Business Act.15 . . . . .. U.S.C. 632, or within the Small Business of a license or permit, or any ofScer. (i)ne provisions of f 2.730(a) employee, representative, or any other Size Standards in regulations issued by through (h) are not applicable to motions Person directly or indirectly acting in the Small Business Administration and f led " '" ant to il 2.795a through behalf thereof, shall submit off the codified in 13 CFR Part 121.Since the 2.79 impact of the proposed rule is conf record to Commissioners or such staff 3.In i 2.740, paragraph (b)(t)is members, officials, and employees, any to the NRC, the proposed rule doesla revised to read as follows: within the purview of the Regulatory evidence, explanation, analysis, or
$ 2.740 General,,. A r.; gowwning advice, whether written or oral.
Flexibility Act. 8scovwy. regardmg any substantive matter at list of Subjects in 10 CFR Part 2 * * * *
- issue in a proceeding on the record then Administrative practice and (b) Scope of efiscovery. *.*
- pending before the NRC for thp issuanoe, denial, amendment, transfer, procedure. Antitrust, Byproduct it) Cernetul. Parties may obtain renewal, snodification, suspension, or material.Classifiedinformation. - discovery regarding any matter,not revocaBon of a license or permit. For the Environmental protection. Nuclear privileged, which is relevant to the - s' material. Nuclear power plants and subject matterinvolvedin the - purposes of this section, the term reactors, Penalty. Sex discr=inm' inn: proceeding, whether it relates to the " proceeding on the record then pending Source material, special nuclear , ,
claim or defense of the party seeking . - before the NRC" shallinclnde any material, Waste treatment and disposal discovery or to the claim or defense of app!! cation or matter which has been noticed for hearing or sncerning which For the reasons set out in the any other party, including the existence, description, nature, custody, condition, a hearing has been requested pursuant preamble and under the authority of the to this part. Atomic Energy Act of1954, as amended, andlocation of any books, documents, . * * * . the Energy Reorganir.ation Act of1974 or other tangible things and the identity - as amended and 5 U.S.C. 553, the and location of persons having 5. In Subpart G. Immediately foBowing Nuclear Regulatory Commission is knowledge of any discoverable matter. I 2.790, a new centerheading and new For the purposes of this section, sections 2.795a through 2.795k are added proposing to adopt the following amendments to10 CFR Part 2. privileged matter includes information to read as follows: subject to a protective order issued under the specialprocedure* in Special Procedures for Resolving PART 2-RULES OF PRACTICE FOR Conflicts Concerning the Disclosure or DOMESTIC t.lCENSING PROCEEDINGS li 2.795a through 2.795k.In a Nondisclosure of Information Relating to proceeding on an application for a
- 1. The authority citation for Part 2 is construction permit or an operating an NRC Investigation or Inspection or to revised to read as follows.' license for a production or utilization the Identity of a ConfidentialInformant Authority: Secs.181.181. ea Stat. 94a- facility, discovery shall begin only after and Deemed Relevant and Material to a the prehearing conference provided for Pending Adjudication i
91 amended, bLahet 7 hat.4$42 N* N C matt in vers ch a , i d d (4 , 5841 5 identified by the Commission or the Sec. 2.101 also issued under secs. 53,82,83, (a) Sections 2.795a through 2.795k i 81.103.104.105,88 Stat. 930L 932. 933. 935, . presiding officer in the preheadng order l specify procedures for resolving ' 936. 937. 93a. de amended (42 USC 2073, entered at the conclusion of that conflicts concerning the disclosure or 2092. 2093. 2111. 2133,2134,2135h sec.102, prehearing conference.In such a nondisclosure ofinformation relating to Pub. L 91-190,83 Stat. 853. as amended (42 proceeding. no discovery shall be had an investigation or inspection or to the U.S.C 4332h sec. 301,88 Stat.1248 (42 U.S.C after the beginning of the prehearing 5871). Secs. 2.lo2. 2.lo3, 2.104. 2.1o5,2.721 also conference held pursuant to i 2.752 identity of a confidentialinformant and except upon leave of the presiding deemed relevant and material to a l Nat. 9 95 s e ed 2 officer upon good cause shown. It is not pending adjudication. Rese procedures l USC 2132. 2133, 2134. 2135, 2233, 2239). Sec. ground for objection that the apply to all NRC offices.ne procedures 2.105 also issued under Pub. L 97-415,9e are to be used whenever an NRC office information sought will be inadmissible l' Stat. 2073 (42 UAC 2239). Sees. 2.20s-2. sos at the hearing if the laformation sought may be required to produce information also issued umier secs.188. 234, sa Stat. 955, l appears reasonably calculated to lead to in a pending adjudication and the NRC 83 Sa t. 444. as amended (42 USC 223e* office having the information believes ' 2282k sec. 20s, sa Stat.1246 (42 USC aseek the discovery of artWW evidence.
- Seca,2.300-2.309 also issued under Pub. L . . . . . that disclosure of theinformation
- 4. In i 2.780 paragraph (a)is sevised ap ectiv o de w d 2.000 e o su und sec.1 h t$.L to read as follows.
91-190. 83 Stat. 853 as amended (42 USC or reveal the identity of a confidential 4332k Secs. 2.7 eon. 2.71s, and 2.7ssk also $ 2.700 Es parte communications. Informant.
. issued under 5 USC 564. Secs. 2554. 2.7ecL (b) As used in Ii 2.795a through 2.770 also leeued under 5 UAC 557. Sea.
(a) Except as provided under the special procedures in ll 2.795a thmugh 2.795k, the term " presiding officer" 2390 and 2.795j also issued under sec.103,04 l l i { '
. ' 21076 Fed;r-1 Regist:r / Vol. 50, No. 99 IWednesdzy,"May 22, i985 / Pro' po[ed Ru'les includes an administrative judge, an .
administrative law judge, an Atomic inspection or investigation, including the adequately or to protect the identity of a estimated time of completion; confidentialinformant and whether and Safety and I.icensing Board, and an (4) A statement that theinformation to what extent all or part of the Atomic Safety and Licensing Appeals reveals the identity of a confidential Board. Informant; information should be withheld from (c) Unless and until publicly released. (5) An explanation of the ba'is disclosure or only disclosed subject to s of the all documents required by or relating to conditions.. motion for a protective order to impose . the special procedures in il 2.795a (b) Every ruling requiring disclosure of conditions on or to withhold disclosure through 2.795k shall bear he docket of the information, including a brief the identity of a confidentialinformant
) number and title of the pr(eceeding, explanation be why and to what extent . shall be certifigd to the Commission for
' marked "Not For Public Disclosure- disclosure of the information without a review. Pending Commission review, the Protected Under to CFR ll 2.795a- protective order will compromise or order of the presiding officer shall be 2.795k," and transmitted to the Secretary impede the conduct of an investigation stayed.
in sealed double envelopes for deposit or inspection, or reveal the identity or in the protected section of the official (c)(1)If the presiding officer grants the otherwise compromise a confidential motion, the presiding officer shall issue docket file. informant; a protective order withholding
$ 2.795b Requirement to disclose relevant closure o e infonnadon or and matertalInformation. $ 2.7tr5d Consideration of motion try conditioning its release, as requested.
Information relatint 'o an presiding officer; procedure. (2)If the presiding officer determines investigation or inspection or to the (a) A motion from an NRC office for a that the motion should be denied in identity of a confidentialinformant and protective order to impose conditions on whole or in part, the presiding officer deemed relevant and material to a or to withhold disclosure of informatiop pending adjudication shall be disclosed shall notify the NRC office submitting shall be considered by the presiding the motion of the intent to order 4 to the parties to the adjudication by the officerin camem without parties other NRC office having the information than the NRC staff present. disclosure. The notice ofintent to order unless that NRC office requests the disclosure shall specify the nature of the (b) The presiding officer may require information to be disclosed, the terms presiding officer by motion to issue a or permit the NRC office making the protective order imposing conditions and conditions of any proposed order motion to make an ex parte in comem upon the manner in which the oral presentation. Attendance at an ex and the basis for the conclusion that information is disclosed or withholding . parte in comem oral presentation shall prompt disclosure is required.The the information from disclosure because be lir e i exclusively to the presiding notice of intent shall state a reasonable time by which the NRC office must disclosure without a protective order office: o appropriate NRC personnel would prejudice an inspection or and to any witness appearing at the submit a statement of objection or investigation or reveal the identity of a request of the NRC office or the concurrence
- confidentialinformant. presiding officer. The presiding officer (3)If the NRC office concurs in the sc w protecwe wdw; shall promptly notify all parties to a disclosure specified in the notice of S, pending adjudication when any exparte intent and if the disclosure does not (a) A motion for a protective order to in come.m oral presentation will be held. reveal the identity of a confidential impose conditions on or to withhold The notice shall state the purpose, time, informant, the presiding officer shall and place of the exportein camem oral issue the order proposed.
disclosure ofinformation shall be addressed to the presiding officer by the presentation and the approximate date a (4)If the NRC office objects to the ruling concerning the disclosure or
' disclosure specified in the notice of e e a mot is rn e ith ut n ndisclosm of the information subject intent and any such objection is revealing the substance of the to the presentation may be expected.
- disallowed, the presiding officer shall information subject to the motion, the NRC office shall notify the parties to the fo$ation shallno bes osed.Ifan promptly certify the objection, the ruling ex parte in comem oral presentation is . a ng 6e Wechn and b adjudication and the Director, Division of Rules and Records, Office of conducted, a verbatim transcript shall accompanying record required by be made* i 2RSf to the Commlulon for expode Administration U.S. Nuclear Regulatory in camem review.The order of the '
Commission, that a protective order to I 2.7sse Determinat!on to grant or deny presiding officer shall be stayed pending impose conditions on or to withhold motion for protective order; requirement ; Commission review. disclosure ofinformation has been for commission review. requested. (d) The presiding officer shall (a) After consideratioh of a motion (b) A motion for a protective order from an NRC office for a protective promptly notify all parties to the . may be made orally or in writing.,may order to impose conditions on or to pending adjudication and the Director, include a request for an ex parte m withhold disclosure of information, Division of Rules and Records Office of comem oral presentation, and shall includina any exparte in comem oral Administration, U.S. Nuclear Regulato'Y include the following information, as presentation, and after finding that the Commission that a ruling relating the appropriate: information subject to the motion is both disclosure or nondisclosure of (1) A brief description of the nature of relevant and material to the pending information has been issued or has been the information subject to the motion; adjudication, the presiding officer shall certified to the Commission for ex parte (2) A brief explanation why the determine,in light of the Commission in camem review. A notice of i
)
information is relevant and material to policy favoring full disclosure, whether certificatton shall state the reason for
- the pending adjudication:
disclosure of the information without a the certification, the certification date, (3) A brief statement indicating how protective order could adversely affect and that. In accordance with I 2.795f, , the information relates to an inspection the ability of the NRC to conduct an orinvestigation'and the status of the any party to the adjudication may file a investigation or inspection fully and timely brief with the Commission. I l:
~g ?
8
~ . .. ~
Federal Register / V:1. 50, Nr. 99 / Wedn;sdry, M:y '22,1985 / Proposed Rules 21077
% i 2.795f Record for Commiselon review; disclosure to the parties to the pending promptly notify the presiding officer or briefs. adjudication of all or any portion of the the Commission, as appropriate.
(a) Every information disclosure ruling information subject tothe order is (b)Upon notification of anFOIA certified to the Commission for ex parte withdrawn, when the inspection or request for release of protected in comem review pursuant to i 2.795e investigation to which all or any portion information, the presiding officer or the will be accompanied by a record which of the information subject to the order Commission as appropriate, shall shall consist of the information provided relates is completed, or when it learns of review the bases for issuance of the to the presiding officer ex parte in any other change in the status of the protective order and determine, in the comem, all documents filed with the protected information. light of any exemptions that may validly presiding officer by the NRC office (b)Information which an NRC office be claimed under the provisions of the making the motign for a protective . has consented to release may be Freedom of Information Act and the order, including an statements of disclosed to the parties and placed in Commission's regulations, whelber the ! ' concurrence or objection, the transcript the public record of the pending information in whole or in pargontinue of any ex parte m comem oral adjudication without further order to be protected or whether and under presentation, the presiding officer's unless the information relates to the what conditions it may be released. notice of intent to require disclosure and identity of a confidentialinformant or $ 2.n5k ProWWn against use of the presiding officer's order. unless the Commission has ordered
- Informahn sumo ProtecWye 2 (b) Within ten days after the presiding otherwise.The identity of a confidential officer issues an order certifying an informant may only be released by Information subject to a protective information disclosure ruling to the order to withhold disclosure may not be order of the Commission.
Commission for ex parte in comem used by the presiding officer in making review, the NRC office may file a brief I 2.7951 Ex parte in comore record , any decision in the pending adjudication with the Commission in support ofits deemed sealed pending further order. unless all parties to the pending objections to disclosure.The NRC office (a) Whenever the presiding officer adjudication have been accorded access shall notify all parties to the under i 2.795e, or the Commission under to the information either with or without adjudication that an NRC brief has been l 2.795g. Issues a protective order to ' conditions. filed,but need not serve a copy of the impose conditions on or to withhold Dated at Washington. D.C., this 17th day of NRC brief on the parties to the pendin8 disclosure of information. the ex parte in May 1985. adjudication. Within seven days after camem record on which the order is - For the Nuclear Regulatory Commission. service of the NRC notice, any party to based shall be deemed sealed pending Samuey.Chuk, th,e pendmg adjudication may file a brief further order. 3,c,,,,,y,f,3, c,,,j,,j,,, with the Commission. (b) No part of any expartein camem [FR Doc. 85-12337 Filed 5-21-85; 8 45 am)
$ 2.795g Commiselon review. record containing information pertaining gn, g (a) Every information disclosure ruling to the identity of a confidential inf rmant may be included in the public certified to the Commission for review corn any g' record an any briefs, a e pubficly a lable in ny o e FEDERAL ELECTION COMMISSION shall be considered by the Commission way except pursuant to Commission 11 CFR Part 111 in comem without parties other than the order. .
NRC staff present.Upon its own (c) After notice by the appropriate (Notice 19ss-51 initiative or upon request by the NRC NRC office that an inspection or office making the motion for a protective investigation has been completed or that Compilance Procedures order, the Commission may conduct an objection to the disclosure of information has been withdrawn. AGENCY: Federal Election Commission. ex parte in comem oral presentation on any matter certified to it for review whichever is earlier, and subject to the Action: Advance notice of proposed requirementJnyaragraph (b) of this. rulemaking. under i 2.795e. (b) After review of the certified i .section and
~
to any otlier exemption from information disclosure ruling, the t mandatory public disclosure that may
SUMMARY
- The Federal Election accompanying record and any briefs, the validly be claimed under the Commission is reviewing its regulations Commission shall decide whether to Commission's regulations. Including any goveming its compliance procedures affirm reverse, or amend the ruling.The exemption that may be available under under the Federal Election Campaign i 2.790 or iI 9.5,9.01 or 9.95 of this Act of 1971,2 U.S.C. 431 et seg. (the
) Commission order may include any terms or conditions deemed necessary chapter, the presiding officer or the "Act" or "FECA"). See 11 CFR Part 111. or appropriate. Commission, as appropriate, shall order As part of its efforts, the Commission the ex partein comem record included requests comments and specific I 2.795h Coneent to disclose informauon; in the public record of the pending suggestions on possible revisions of Part t
"'#C*- adjudication. 111. In addition, the Commission seeks (a) The NRC office upon whose comments on several areas in which it is I motion the presiding officer or the i 2.795l FOIA request for release of considering revising the regulations.
Commission has issued a protective rmadon;rolesee Further information is provided in the order imposing conditions on or supplementary information that follows. ) withholding the disclosure of (a)The Director, Division of Rules and caTas: Comments must be received on information shall notify the presiding Records. Office of Administration. U.S. officer or the Commission, as Nuclear Regulatory Commission, upon or before June 21.1985. appropriate, and the Director, Division notice by an NRC office that information AooResses:Please address comments of Rules and Records. Office of subject to an FOIA request is also la Susan E. Propper, Assistant General Administration. U.S. Nuclear Regulatory subject to a protective order issued Counsel 1325 K Street NW., l ! Commissien when its objection to under i 2.795e or i 2.795g. shall Washington, D.C. 20463.
mmh s f p, . Federal Register / Vol. 50, No.105 / Friday, May 31, 1985 / Proposed Rules 23138 i PART 75-COMMUNICABLE DISEASES approved laboratory notifies the pseudorables negative herd: to provide National Veterinary Services an improved method by which the IN HORSES, ASSES, PONIES, MULES, . Laboratories in Ames. Iowa,in writing, pseudorables disease status of swine in AND ZEBRAS seudorables controlled vaccinated that the laboratory no longer conducts Accordingly,it is proposed to amend erds can be anonhored; to give shippers me Maltest the regulations in 9 CFR Part 75 as Done at Washington. D.C., this 24th day of alternatives means by which swine not follows. vaccinated for pseudorables and not May 1985. 1.The authority citation for Part 75 known to be infected with or exposed to l G. J. Fichtner, would be revised to read as follows: u ' PWy AdminisWron Veten'nory Authoriry: 21 U.S.C.111-113.115.117,120, prov d vestock m kets i 121,123-126; 7 CFR 2.17,2.51, and 371.2(d). quarantined feedlots, feed!ots and 4
- 2. A new paragraph (d) would be [Mt Doc.85-13084 Filed Mo-85 8:45 am] quarantined herds; and to give shippers animo coce subsem alternative means by which swine L added to l 75.4 to read as follows:
- infected with or exposed to 5 75.4 Notice relating to existence of pseudorables can be moved interstate -
equine infectious anemia (swamp fever), 9 CFR Part 85 l for slaughter. of ficial test and conditions of interstate [ Docket No. 85-0551 movement of reactors. ne proposed rule provided for receipt h Pseudorables; Interstate of comments on or before May 31,1965. e An industry representative has ; (d)The Deputy Administrator may Dissemination Prevention Provisions deny approval of any laboratory to requested additional time to review the r. conduct the official test upon a AGENCY: Animal and Plant lleath proposal and offer substantive determination that the laboratory does inspection Service, USDA. - comments. it has been determined that ACrioec Extension of comment period additional time is needed to allow not meet the criteria for approval under 4 this part and at any time may withdraw for proposed rule. Industry representatives and other interested persons adequate time in approval of any laboratory to conduct
SUMMARY
- This document extends the the official test upon a determination which to prepare comments.nerefore, c mment period for a pro osed rule the comment period is extended for an that any of the requirements for approval under this part are not j,pr,a es ati r s. s actioMs additional 30 days. Accordingly, any additional written comments must be complied with. In the case of a denial, needed to allow industry received on or before July 1,1985.
the pperator of the laboratory will be representatives and other interested Done at Washington, D.C., this 28th day of persons adequate time in whi,ch to n , pon reques s all be a fo d d n prepare comments. 8Y 1965. opportunity for a hearing with respect to DATE: Written comments must be J1 Atn!L the merits of validity of such action in received on or before July 1,1985. Deputy Adnums , tmtor. VeterinaryServices. accordance with rules of practice which (FR Doc. 85-13085 Filed 5-30-85; 8:45 am] shall be adopted for the proceeding. In ADDRESS: Written comments should be submitted to nomas O. Cessel, satsso coos s4to-se-u the case of withdrawal, before such r action is taken. the operator of the Director, Regulatory Coordination Staff, Animal and Plant Health Inspection _ ~ ' . . - - laboratory will be informed of the Service, U.S. Department of Agriculture, NUCLEAR REGULATORY reasons for the proposed action and, Room 728, Federal Building. 6505 COMMISSION upon request, shall be afforded and Belcrest Road. Hyattsville, MD 20782. I opportunity for a hearing with respect to Comments should state that they are in 10 CFR Part 2 ' the merits or validity of such action in accordance with rules of practice which response to Docket Number 83-061. Written comments received may be Adjudications; Special Procedures for , shall be adopted for the proceeding. Resolving Conflicts Concerning the t , llowever, such withdrawal shall become inspected at Room 728 of the Federal Building. 8 a.m. to 4:30 p.m Monday Disclosure or Nondisclosure of , effective pending final determination in Information , through Friday, except holidays. , the proceeding when the Deputy t Administrator determines that such FOR FURTHER INFORMATloM CONTACT Correction > g action is necessary to protect the public Dr. L W. Schnurrenberger, Special in FR Doc. 85-12837 beginning on page , health, interest, or safety. Such Diseases Staff, Veterinary Services, 21072 in the issue of Wednesday, May , withdrawal shall be effective upon oral Animal and Plant Health Inspection , 22,1985, make the following corrections: , or written notification, whichever is Service, U.S. Department of Agriculture. 1.On page 21072, second column, the , earlier, to the operator of the laboratory. Room 822, Federal Building,6505 heading should appear as it does above. Belcrest Road, Hyattsville MD 20782, , In the event of oral notification. written 2. On page 21073 second column. first i i confirmation shall be given to the _ 301-43th8407. complete paragraph. line twenty-seven, t operator of the laboratory as promptly SUPPLEMENTARY INFoRMATioet On April , 16,1985, the Department published in "information" should read " informant". as circumstances allow.This 3. On the same page, third column. i withdrawal shall continue in effect the Federal Register (50 FR 14931-14939) a document which proposed to amend second complete paragraph, line eleven. : pending the completion cf the "disicosed" should read " disclosed": in , a proceeding and any judicial review the pseudorables regulations (contgined line twenty "nor" should read "not" and i e thereof, unless otherwise ordered by the in 9 CFR Part 85). It was proposed to I provide an alternative method by which " identify" should read " identity": and in Deputy Administrator. In addition to line thirty-one, " identify" should read
- withdrawal of approval when the a herd of swine can be removed from the "known infected herd" " identity".
requirements for approval are not 4. On page 21074, second column, i complied with, approval will be classification: to provide an alternative method by which a herd of swine can sixth line from the bottom,"acess" 8 automatically withdrawn by the Deptty Administrator when the operator of any attain or regain status as a qualified should read " access". l
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Federal Register / Vol. 50 No.105 / Friday, May 31, 1985 / Proposed Rutas _ 23139 ( P
- 5. On page 21075, first column Ust of the first four months of.1965.%is is A. Background
- Subjects in le CFR Part 2, fifth line, approximately 80 percent higher than ne Consumer Pmduct Safety
" material" should read " materials", and the estimated injuries treated during the ,
Commism has pelinunardy in the seventh line,"special" should same time period in 1984.%e determined that there may be an . read "Special". Commission is primarily concerned unreasonable risk of injury associated about accidents which result from (1) i2.795a [Correctedl with the use of all terrain vehicles. On loss of control of the vehicle:(2) the April 3,1985, the Commission voted to
- 6. On page 21076, first column, fourth vehicle overturning, such as flipping commence a rulemaking proceeding by i line. " Appeals" should read " Appeal". over backward, tipping over forward, or
- 7. On the same page, first column, rolling over sideways; and (3) the rider issuing an ANPR,[1.2) At that time,the paragraph (c), fifth line, " preceeding" Commission also adopted a number of :
being thrown from the ATV after it hits , should read " proceeding". bumps, ditches, and other terrain measures intended to assist it in < 1 obtaining further information on the j II'I I I features' While t his advance notice of proposed hazards associated with ATVs.These ,
- 8. On the same page. third column. rulemaking (ANPR) commences a measures, which will be undertaken by I i 2.795e (d), sixth line, ,to should rulemaking proceeding, the Commission the Commission staff are:
it appear between " relating *, and the,,. , also discusses alternative ways to 1. Conduct surveys of ATV injuries, , and in the eleventh line. *certificatton. address the risk of injury associated and consumer exposure to obtain should read certification,. with ATVs including development of a detailed information on ATVs and voluntary standard; a judicial action prepare a hazard analysis. i 2.795f ICorrectedl undersection12of theConsumer 2. Conduct engineering. human
- 9. On page 21077, first column, t 2.795f Product Safety Act (CPSA),15 U.S.C. factors, and medical analysis of the (a), tenth line,"an" should read "any". 2001, or section 3(e)(2) of the Federal hazards associated with ATVs and their i 2.795) ICorrectedl Hazardous Substances Act (FHSA),15 use. s
- 10. On the same page, third column. U.S.C.1262(e)(2)); an administrative 3. Monitor the development of any paragraph (b) eleventh line,"should" action under section 15 of the CPSA.15 voluntary standards for ATVs, pending U.S.C. 2064, or section 15 of the FHSA, review of future data and industry should appear between "part" and
" continue". 15 U.S.C.1274: the dissemination of activity.
sepeo coos sen.41-u safety related information and a rule ,
- 4. Share information with user groups under section 27(e) of the CPSA 15 and state, local, and federal officials.
U.S.C. 2076(e).The Commission invites 5. Monitor the ATV industry's CONSUMER PRODUCT SAFETY public comment on these alternatives. Finally, the Commission in this notice education and training effort, reserving COMMISSION specifically invites any person to submit the right to assist or strengthen the (1) an existing standard that addresses industry effort. [1.3) I 16 CFR Lh. ll the risk of injury associated with ATVs The Commission has also decided to f All-Terrain Vehicles; Advance Notice as a proposed consumer product safety hold f we public hearings to obtain l of Proposed Rulemaking; Request for standard or (2) a statement of intention safety.related information on ATVs.%e 2: Comments and Data to develop a voluntary standard first hearing will be held in Jackson, ' addressing the risk of injury associated Mississippi on May 30,1985.The second AotNcy: Consumer Product Safety with ATVs, along with a plan to do so. hearing will be held in Dallas. Texas on Commission June 17,1985, and the third in Concord, DATE: Comments and submissions in ActlON: Advance notice of proposed New Hampshire on July 25,1985. The ; response to this ANPR are due no later rulemaking. Commission also plans to hold hearings ; than July 30,1985. 8' suuuAny: Based on available data. the Aoonass: Comments and submissions in Milwaukee Wisconsin, and Los {i Commission has preliminarily should be sent, preferably in five (5) Angeles, California, during the next determined that there may be an copies, to the Office of the Secretary, several months. g unreasonable risk of injury associated Consumer Product Safety Commission. The Commission requests members of with the use of all. terrain vehicles Washington. D.C. 20207; telephone (301) the pblic to participate in these (ATVs) which may be sufficiently 492-6800, hearings.The Commission is page severe to require regulatory action by FoR FURTHER INFORMATION CONTACT: particularly interested in participation the Commission.' The Commission is Nick Marchica. Consumer Product from owners and users of ATVs: ns: aware of at least 161 deaths associated Safety Commission Washington, D.C. persons who have been involved in he with ATVs occurring between January 20207; telephone (301) 492-6554. accidents or who have been infered >v . 1982 and April 1985. Estimates on the , SUPPLEMENTARY INFORMATl0w: while riding an ATV; state and local first number of hospital emergency room Throughout the discussion below there government officials or organizations en, involved with ATV safety and training. ! treated injuries associated with ATVs in are citations to documents in the record it . 1984 was 66.956. This is almost two and of this regulatory proceeding.The state legislation or local ordinances: one. half times the number ofinjuries in citations are numbers placed in persons or organizations involved in the l testing and evaluation of ATVs; and en, 1983 and more than seven times the brackets.He citations refer to the in number in 1982. An estimated 28.000 numbered documents listed at the end of manufacturers. distributors, importers tnd ATV related injuries were treated in this notice.nere are documents not and retailers of ATVs.These1. earings
. in hospital emergency roc ms nationwide in cited in this ANPR which are part of the will specifically focus on hazards d record in this proceeding.These associated with ATVs and ways the
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- on May 20. tens the comminion voted to ime documents are also listed at the end of industry, the Commission, state and
'h's edunce a tice of pr p sed rulemakms en th' this notice. All unrestricted listed local government, or voluntary
" " " " " documents are available from the Office standards organizations can address NwTuNNn"N" tie Ide mwe in the omce of th secimry. of the Secretary. these hazards.
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