ML20195E997

Proposed Rules 10CFR0 & 2, Rev to Ex Parte & Separation of Functional Rules Applicable to Formal Adjudicatory Proceedings

ML20195E997
Person / Time
Issue date:	03/26/1986
From:	NRC
To:
References
FRN-51FR10393, RULE-PR, RULE-PR-0, RULE-PR-2 PR-860326, NUDOCS 8606090322
Download: ML20195E997 (10)

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N % r5ff C71 Y 8 i TNs secton of the FEDERAL REGISTER Exakine comments rece The reports suggested that a loosening of the contains nonces to the put*c of the NRC PublidDocument R ' 7 H St existing prohibitions. whole basic proposed issuance of ru6es and NW., Was ' ' 'nl @l restrictions were embodied in the 1979 reguiabons. The purpose d these nonces FOft FURTHER I C0ff7ACT: proposed rule, was in order.

(*' in,",yi, Paul Bollwerk. Attorney. Office of General Counsel. U.S. Nuclear A second circumstance that indicated the need for further modifications to the making prior to sie adopeon, of the nnal nh Regulatory Commission. Washington. proposed rule was the completion by the D.C. 20555. Telephone: (202) 634-3224. Office of the General Counsel (OGC) of suPPLanseff7ARY lesP0ftssATIOff; its own study of the agency's separation NUCLEAR REGULATORY - of functions and ex parte rules Begun at COMMISSION I. Introduction the request of the Commission in On March 1.1979, the Commission February 1979, before the HredMile 10 CFR Porta 0 and 2 Island accident, this study was designed proposed certain amendments to its to determine what,if any, substantive Revlalon to Ex Parte and Seperation of existing rules.10 CFR 2.719 and 2.780, dealing with ex parte communications changes could be made in the NRC's runctions Rules Applicable to Formal existing rules to facilitate Adjudicatory Proceedings and the separation of adjudicatory and nonadjudicatory functions.These communications between the Aoasscv: Nuclear Regulatory revisions were intended to incorporate Commission and the NRC staffin order _

Commission. the requirements imposed on all to afford the Commission greater access agencies by amendments to the to staff expertise.In this study NUREG-AcTiose: Proposed rule. 0670.8 after reviewing the historical Government in the Sunshine Act (5 U.S.C. 551(14) 556(d). 557(d)). They were development of the Commission's ex suasesanty:ne Nuclear Regulatory parte and separation of functions rules n t proposed to effect any other Commission proposes to amend its and analyzing the applicable substantive changes in the regujatiuns desjing with ex parte Commission's existing rules. The requirements of the Administrative communicatic as and separation of revisions were offered for public Procedure Act (APA) and constitutional adjudicatory and nonadjudicatory comment in the Federal Register on due process. OCC presented several rule functions in fonnal adjudicatory March 7.1979 (44 FR 12428), and all change options for Commission

" consideration.

c mments were due by April 23.1979.

rule acts and o nco ra Only one comment on the proposed rule Additionally. in the course ofits requirements imposed by the was received. Since this proposed rule review of NRC licensing procedures, the Government in the Sunshine Act. supersedes the March 1979 proposed agency's Regulatory Reform Task Force Changes are proposed in both the fonn rule this notice addresses the comment also considered the need to change the and the substance of the existing rules received on the 1979 rule and also agency's existing ex parte and to clarify their meaning and to aid withdraws that proposed rule. separation of functions rules. In its agency adjudicatory officials in Developments occurring subsequent November 1982 Draft Report. the Task maintaining effective communications to the notice of proposed rulemaking Force suggested revisions to the rules.'

with NRC staff personnel and persons raised considerable doubt about the In light of these various outside the agency while at the same efficacy of the proposed rule as it then recommendations

• and reports

• time ensuring that proceedings will be was drawn.One of these was the conducted fairly and impartially. This accident at Three Mile Island. Unit 2. In proposed rule supersedes a prior March 1979. As a direct result of that ST,$**,*,No".*"$""(l,,^,D,#

proposed rule entitled. Ex Parte incident, the Commission's operating Nuclear Regulatory Comause6an Adjudicahons for Communications and Separation of procedures, including its ex parte and Domanc tacen=ns. NUREG-oe70 (March 1984 Adjudicatory and Non-Adjudicatory separation'of functions requirements. NURWwin npons nfennced in 62 docununt Functions." published March 7.1979 (44 FR 12428), and this notice serves to were the subject ofintense scrutiny. 'M*f* c Several different reports issued after the Nw. wuhinston. D C. These reports may be R n. Ser e("'"

withdraw the prior proposed rule. accident concluded that the agency's purchaud from the u.i Government Pristins OfBce by c.

DATE: Comment period expires May 27 separation of functions requirements 9 27 y y9 u e,2q o ,ce 1986. Comments received after this date generally were to stringent, impeding the dse may be purcheaed fressi ee Neuand Technica will be considered if it is practicable to agency's abihty to protect the public inform uon service. u.s Department or commerce do so, but assurance of consideration health and safety by unnecessarily 5285 Port Royal Road, Spruisfield. VA 221:1.

isolating the Commission from staff Retorin T..it can be given only for comments filed or fgi pgortegResut.

or before that date. knowledge and expertise. %ese a um -he d m l

Aponesses: Submit written comments to: Secretary.*U.S. Nuclear Regulatory i Rewt d h Preddet h. ewe $ ' " M s) na"n*Y a eb" adopted a resolution calhns on the comum 6an to Accidene esinese ude taand si tociobw te sl:

Commission. Washington DC 20555. Report d e. omce at the chief counni of the === its en perte and wpennon d funcnone I ATIM Docketing and Service Branch. Pnudenra Comadu6on on the Nuctur Regulatory rulet i comm>=me es (October 1s781 Nuclew Regulatwy e Snida the OCC etudy. ee tone wwe iiand dallver comments to: Room 1121' Commissise spedal Inquiry Croup Three btile considered in properins this proposed  : 2 K.

171711 Street. NW., Washington. DC. sei a. 3 n.,e,t to one commise6onere and is se o.ei ,Mirum,.couee un rnoom e ismsts between 4:15 a.m. and 5:00 p.m. Pubhs m Ummary tasol cam ==d

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1 10394' Federal Register / Vol. 51 N . 58 / Wedn sd:y. March 28, 1986 / Proposed Rul:s regarding separation of functions and ex parte communicatiohs and those considered to act either as .

parte contracts, further changes in the prohibited ca separation of functions decisionmakers or as the private 1979 proposed rule are considered grounds, both the present rule and the advisors to decisionmakers.This 1 appropriate. Because these 1979 proposed rule include private NRC paragraph is in substance il 2.719(a) modifications can be deemed both staff communications with and 2.780(a) of the 1979 proposed rule. It substantial and substantive in relation decisionmakers as within the "ex parte" has been expanded. however, to include to both the existing NRC regulations and restriction.To avoid any further several additional types of adjudicatory the 1979 proposed mle. another uncertainty or confusion, all references employees, including administrative law proposed rule is being published to to staff /decisionmaker communications judges, their staff, and special allow additional public comment. as ex parte have been deleted from the assistants.

II. Proposed Rule on Restricted currently proposed rule for ex parte Also added as paragraph (9) for this lj communications, thereby relegating the definition is a prosision to include as Communicahm regulation of such contacts to those adjudicatory employees those NRC staff in 10 CFR Part 2. Subpart G the prohibitions on intraagency officers or employees who are appointed Commission has established procedures communications found in the proposed by the Commission to be involved in the designed to be compatible with the APA rule of practice for separation of Commission's decisional process in a requirements in 5 U.S.C. 554. 556, and functions. particular proceeding. This addition is in 557 governing the conduct of formal. An additional major organizational conjunction with the major revision to trial. type adjudicatory proceedings. The change is the proposed consolidation of the separation of functions rule whereby proposed rule on restricted what are now two separate the separation of functions prohibition ngu a no-10 GR 2m and N on communkanons we adju&catory p ed ngs c nd c e r e ormal into c nsecutive secti no-l$ 2.780 and employees would apply only to those hearing procedures set forth in Subpart 2.781-that shan certain common tenns staff members performing investigative G' or litigating functions regarding the As classified by Congress in the APA. defined in 6 2.4. This association is wholly consistent with the nature of the particular proceeding. As subsequently restrictions on communications relative will be explamed in more detail, unlike restrictions sought to be imposed.

to formal agency adjudicatory existing restrictions this would allow Although each stricture involves a proceeding fallinto two ca!gories:(1) some agency staff personnel to become different communicator / recipient Private, ex parte contacts between

' mvolved in the adjudicatory persons outside the agency and relationship, both have similar limitations-no private communications decisionmaking process as advisors to

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decisionmakers. 5 U.S.C. 557(b), and (2) private, interangency contacts between with decisionmakers-and similar the Commission itself.

those performing decisionmaking remedies-public disclosure of With regard to this paragraph (9). It functions and other agency members pr hibited comr-mirations.The should be noted that in the event an who perform investigative or proposed rules thus seek to make the NRC staff employee is to be used as an prosecuting functions relative to a restrictions involved more adjudicatory advisor on a continuing proceedings. id. 553(d). While these two understandable by placing them basis, a public designation to that effect types of restricted communications have t gether and using common terminology must be inade by the Commis.,lon. 'ntis a different focus in terms of the persons whenever possible. serves several purposes. The involved. the aim of both isio preserve designation of a staff employee as an A CeneralDefinitions Provision advisor may make him acevailable for the integrity of formal adjudicatory

proceedings by banning private contacts Certain tenna relevant to the revised use by the NRC staffin its litigation of a that would expose decisioamakers to ex parte and separation of functions licensing proceeding. Thus, it is biased viewpoints or off.the-record restrictions have been added to i 2.4 contemplated by the Commission. that l'

. facts. Yet, in seeking to protect the which contains the definitions for words the use of staff employees in an probity of the agency's adjudicatory and phrases analin 10 CFR Part 2. advisory capacity would be subject to process, care must be taken not to Along with adding definitions to this . internal controls to ensure that NRC construct unnecessary barriers to section. it is further being revised by staff management has some communication that ultimately will removing the alphabetical paragraph administrative input into the process of impede the adfudicator's abihty to designators and alphabetizing all terms designation of such employees.The render effective. informed decisons. It is defined in that section,inclwfing the designation by the Commission will be with these goals in mind that the ex three additions. This revision should the culmination of this internal process.

parte and separation of functions rules facilitate referencing definitions and in addition, designation will put have been icvised. revising the section in the future. interested persons outside the agency on While the major substantive changes With regard to the particular notice of the person's status as a in the rules are explained in a more provisions proposed to be added to i 2.4: Commission adjudicatory employee for detailed secheehy-section analysis, we 1. The ex parte and separation of the purpose of avoiding ex parte note inMially the two majoe functions provisions of the ApA act to communications. A similar procedure is organizational changes that are under restrict communications both with those endorsed in the legislative history of the consideration.Mrst, despite the APA's agency officers and employees who are Sunshine Act. II.R. Rep. No. 880 pt.1.

clear distinction between prohibited ex responsible for deciding forreal 94th Cong.,2d Sess. 20 (1970) (report of adjudicatory proceedings and with those Committee on Government Operations):

who provide confidential advice and li.R. Rep. No. 880 pt. 2,94th Cong.,2d itoset sid Ii17s to 1sta(2d ed.1980t assistance to such decisionmakers to aid Sess.19 (1976) (report of Committee on Asimow. Whea the Curforn rolls Sepomtion of functions m redemt Admmistmeiee Agencies, et them in arriving at a determination. The the judiciary): S. Rep. No. 354,94th Colum. L Rev. 75e (1981t Pedersen. The Decime of proposed paragraph for i2.4 that Cong.1st Sess. 36 (1975).

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defines Commission adjudicatory This definition also indicates that I.7t rumtmnen$"$,

h Amarticensins Adimricarmns.sev'[E"tmYsNm^nQ

employeesis intended to specify those **

designation as a Commission rWFW Dame law. 3st (1981). NRC officers and employees who are adjudicatcr7 employee is necessary only

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Federal Register / Vol. St. No. Se / Wzdn:sdry. Much 20, 1986 / Proposed Rules 10395 if the staff employees will be providing 2.The second proposed paragraph for " prosecuting" has been the subject of advice to the Cn==kelos on a i 2.4 defines the term "ex parte some controversy. As was fully "continamg basis " As as detaaed in the coas==nration." With regard to that discussed in the OCC study, the original l

deEnition, mention should be made of APA framework arguably was designed ILC1infm. an othermsenaninvolved staff member's off.the-record the sole comment received concerning to impose a separation of functions communications with those members of the rules as proposed in 1979. In that prohibition only in accusatory the NRC staff performing investigative comment, the law firm of Isham.1.incoln proceedings. i.e., those in which the or litigating functions or interested and Beale argued among other things primary concern is the lawfulness of persons outside the agency will not that the definition of "ex parte past conduct, as opposed to those necessarily preclude him ar her from communication" then suggested in nonaccusatory proceedings, such as acting at some other time as a private i 2.780(b) was " confusing and poorly rulemakings or initial licensing, in which adjudicatory advisor. l.ikewise, an . drafted" because (1) it allegedly would it can be asserted that the decision is otherwise uninvolved staff member who require that all communications be reached typically on the basis of mostly provides private information or advice made on the record, thus interfering legislative facts and general policy to an adjudicator is not locked into the with " conference calls and other considerations. NUREG-0670, at 54-57.

role of an adjudicatory advisor until the informal conferences where th* While the use of the term " prosecutor" proceeding ends. Accordingly, the Lmensing Board and all parties are is consistent with this construct. after Commission believes that so long as represented but no public record of it is careful consideration the Commission care is taken to ensure that the staff kept"; and (2)it referred to "all has decided that it will not adopt a member to be contacted has not participants"--rather than "all parties" narrow reading of the separation of assumed the role of an investigator or in a proceeding-thus leaving open the functions requirement to limit it only to litigator la a proceeding, it is p.ssibility that persons who make accusatory cases and those persons unnecessary to go through the process of limited appearances under 10 CFR 2.715 involved in " prosecuting" functions.

designating a staff employee as a would be included. Doing so would require the application .

Commission adjudicatory employee. As to the commenter's example of of subtle and difficult distinctions which would place continuing -

confersace calls and other infortaal between those licensing cases that are restrictions upon the employee,a ability conferences, the Corn-ia= ion believes nd 6 to speak with persons outside the that the proposed definition does not *7,[,*somewTafb g, ade rm agency or investigators or litigators give cause of concern.The language litigating"is incorporated with the term Inside the agency. in instances when it used by the Commission comes from the " investigative and is intended to is anticipated that contacts with the Sunshine Act itself. & U.S.C. 551(14). no h te thwe personnd innW in employee will be very limited in legislative history makes it clear that a educacy funedons in boe accusatory number, duration, and substantive " communication is Jeot ex parte if either, and nonaccusatory proceedings.

content.This is especially so since staff (1) the person ==hy it plaud it on the public record at the same time it was ne term " investigative of litigating advisors ase precluded from acting as conduits for otherwise restricted made, or (2) all parties to the proceeding function: is defined under this proposed had reasonable advance notics. If a rule to include planning, condu,cting or communications under 12.781(e) and since any contact with the staff commnntention falls into e/ther one of supervision an investigation and employee that results in the these two categories, it is not ex parte." planning, developics or presenting, or communication of new information that HJt. Rep. No. eso pt.1. supra, at 22 supervising the planning development becomes part of an initial or final (empinesis added): H.R. Rep. No soo pt. or presentation ot testimony, argument decision will, under i 2.781(f) of the 2. supm, at 21 (same):S. Rep. No. 354, or strategy in a proceeding. His proposed rule, require that the perties be supna et 38 (same). Obviously, the definition would continue to encompass slauntiene discussed in the ramment NRC staff members involved in litigating afforded some opportunity to respond.

Fina!1y.the definition of Commission would be perfectly proper under the rule a particular licensing proceeding.

adjudicatory employee in paragraph (9) F*oposed ooth in 1979 and presently. Including staff attorneys involved in would allow nonpublic staff As to the matter of the 1979 proposed presenting the case, those staff members communications only to the Commission rule's reference to " participants." the performing technical reviews of an itself. The various reports that question Commission has decided to substitute application that is the subject of an the agency's present restrictions on the term " parties." thereby conforming adjudicatory proceeding. and staff cu-maication with the NRC staff the rule to the language of the Sunshine employees who are witnesses or indicate that the Commission and its Act and avoiding the possibility that perform similar supportive functions at immediate advisors need greater access persons making limited appearances the proceeding. It does not. f fowever, to staff expertise.ne Cemmission has under le CFR 1715(a) would be include all staff members as under the no evidence that such access is required included. present NRC restriction on separation of by members of the Atomic Safety and 3.ne third proposed paragraph for functions. For instance, supervisors and Licensing Board Panel or the Atomic I 2.4 defines the term " investigative or subordinates of those involved in Safety and Licensing Appeal Panelin litigation function." nat term is used in investigative or litigating functions who the performance of their adjudicatory the separation of functions rule to have not themselves assumed such a functions. Accordingly,it is the specify those functions performed by role or research personnel who are not Commismon's intent that private staff members of the NRC staffin a particular involved in the particular proceeding ammunications should be permitted proceeding that will mandate which would not be included under this only with the Comuniasioners, their staff members will not be allowed to definition.This will give the assistants, and those offices, such as the advise any adjudicatory employee about Commission and its adjudicatory Offsce of Policy Evaluation of OGC. that how to decide that case. Although the advisors increased access to staff act as the Commission's principal APA in section 554(d) refers to advice and expertise that is not now confidential advlaars on adjudicatory " investigative or prosecuting functions." available without conducting sublic ma tters. the exact meaning of the term proceedinga.

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19396 Feder:I Regi:ter / Vol. 51. No. 58 / W:dn;sd;y. March 28. 1988 / Proposed Rul;s B. Ex Putte Communications Pmvision public as a whole may have." H.R. Rep. 4. Proposed paragraph (d) of i 2.780, No. 880 pt. l. supm. at 19. H.R. Rep. No. which sets forth the additional sanctions

1. Paragraph (a) of the revised i 2.780

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is ceseritially paragraph {c) of I 2.780 of . Bro pt. 2 supm, at 19-20; S. Rep. No. 354 that can be imposed for knowing supm, at 36.%us. interested persons violations of the ex parte prohibition,is the 1979 proposed rule dnd incorporatea into the rule the language of APA need not have a nionetary interest in the derived from APA ! 557(d)(1)(D) and i 557(d)(1)[A). It has, however, been proceeding or base the status of a party essentially tracks i 2.780(h) of the 1979 rephrased to delete the reference to or intervenor. The term would include proposed rule.

NRC staff employees th?t was contained parties, participants under 10 CFR 5. Paragraph (e) of the proposed in the 1979 proposed rule, thereby 2.715(a) other public officials. 5 2.780, which is similar to i 2.780(i) of competitors, and nonproft or pubb.e the 1979 proposed rule, implements APA implementing the distir.ction between the coverage of the ex pr. rte and interest organizations and associations i 557(d)(1)(E)'s provision that dictates separation of functions restrictions, as with a specialinterest in the proceeding. the ex parte prohibition will begin to was described earlier. The term would not include a member of apply "no later than the time at which a Several additional points concerning the public at large who makes a casual proceeding is noticed for hearing unless paragraph (a) should be made. With or general expression of opinion abcut a . the person responsible for the regard to the phrase " relevant to the pending proceeding. communication has knowledge that it merits c,f the proceeding." the legislative 2. Paragraph (d) of 6 2.780 of the 1979 will be noticed. in which case the historyof the Sunshine Actladicates proposed rtale form the basis for prohibitions shall apply beginning at the that this term is "to be construed paragraph,[b) of l ' e.780 of this proposed time of the acquisition of such broadly and to include more than the rule. Bestaes being rephrased to delete knowledge." Paragraph (elis somewhat ,

phrase fact in issue'" used in the APA's the reference to I'aC staff personnel, an less restrictive than the parallel separation of fuitctions restriction. H.R. addition to the rune admonishes provision of existing i 2.780(a) which F Rep. No. 880 pt. I. cupm, at 20; li.R. Rep. Commission adjudicatory employees not provides for application of ex parte No. 880 pL Y, supm. at 20: S. Rep. No. to , request or entertain

• ex parte restrictions when a notice of hearing is 354, supm, at 231. As the legislative communications. This language makes published or when a hearing tequest is history also points out, this language is clear the affirmative duty of each f led. In light of the language of APA intended to exclude status report employees both to refrain front section 557(d)(1)(E), which speaks only requests and communications regarding instigating ex parte communications and in terms of theissuance of a notice of j to halt or avoid those that others puts t general background. ld. These hearing, the existing rule's application of t exclusions are made explicit in this rule before them. ex parte prohibitions when a hearing m paragraph (f) of i 2.730. as is 3. Paragraph (c) of 6 2.780 is request is received appears overbroad explained in more detail subsequently. essentially paragraph (f) of the 1979 and is not retained. Further, in line with An outstanding issue is whether this proposed E 2.780 and is intended t the statutory language. the proposed t phrase can be iraerpreted to exempt incorporate the requirementr of APA v e ha I certain issues relating to a proceeding 1557(d)(1)(C) pertaining to disposition of ex parte communications received by y[]g gl become app icable upon that are not contested bv the parties to

~ the issuance of a notice of hearing rather the proceeding. For exarnple, there are adjudicatory officials. In this regard. it than at the issuance of notice of often uncontested issues in mandatory should be noted that the Commission opp rtunity for hearing that sometimes

' construction permit proceedings, has dropped the requirement foun f in ,

is published prior to the notice of Similarly. in operating license i 2.780(e) of the 1979 proposed rule that hearing in NRC proceedings under 10 i proceedings, the presiding officer or the all communications identified as ex CFR Part 2. Subpart G.

' parte be referred for action to the Corr. mission may be interested in Executive Director for Operations. Upon Paragraph (e)(2)'s provision

- certain matters that are relevant to implementing the Sunshine Act's public health and safety or the further reflection, the Commission has decided that this process would directive that the ex parte prohibition particular facility, but that have not will app!y when an interested person or been raised as issues in the proceeding unnecessar@ complicate and delay appropriate corrective action regarding Commission adjudicatory employee by any party. He Commission believes knows that hearing will be noticed also that the phrase " relevant to the merits of the communication. Instead the official receiving the communication or a requires additional explanation. AEA

. the proceeding" should be read to section 189a. 42 U.S.C. 2239(a), requires inclade only issues contested by the designee is given the responsibility for seeing that the communication and any that a hearing be noticed and held on parties to the proceeding.he Commission is interested in receiving responses are placed in the public any application for a permit to construct record and in line with the legislative a nuclear reactor. Because this statatory comments on this interpretation.

history of the Sunshine Act. H.R. Rep. hearing requirement puts everyone on Commenters are asked to address not -

No. 880 pt. I, supm at 21: H.R. Rep. No. notice that a hearing definitely will be only the applicability of 5 U.S.C. 557(d).

but also 5 U.S C. 556(d) and any relevant 880 pt. 2. supm, at 20:S. Rep. No. 354, held, a broad rcading of the Sunshine case law.See, e.g., Shulman Sepamtion supm at 232, served upon the par *ies to Act's "knowleJge" proviso could make

, ofIbnctions in formalLicensing the proceeding.s ex parte prohibitions applicable,if not Adjudications. 56 Notre Dame I.aw. 351, from the moment an applicant 379 n.120 (1981).

• The APA requires that ex parte communications

~17:e legislative history of the Sunshine be placed on the P& record of the proceedms." proceedins. itR. Rep. No. sao pt. l. 94th Cons. 2d s Usc. ss7tditt)(c). The les*tive history makee Sess. 22 (197e): nn. Rep. No. saa pt. 2. e4ih cons..

Act also makes clear thet the term H clar eat de tenn "puWc nc@ is not what is 2d Sess. 21 (1976):S. Rep. No 354. 94th Cong.,1st l

" interested person" used f the APA and normally thought of as the racord that forms the Sess. 3s (19*S). Thus. while the particular I

. paragraph (a) of i 2.780 is mtended "to basis of the asency declaions. Instead. it means "the commencation and ar.y naponses to it may well be be a wide, inclusive term covering any docket or other pubhc file containins all the part of the "pubhc record" of a proceedins. they

• • "*3 *e Proceedinss. It t may not be part of de "endentiary record" absent individual or other person whose mchidu . ". I'."m"a'teHal est hu bnn accepted u some appropdate asency action, either sua sponte interest in the agency proceedin8 is endence in the proceedins, and the pubhc file of or at the request of the parties to the proceedins. to greater than the generalinterest the nia.ed matters not accepted as evidence in the incorporate them as such.

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Federal Register / V:1. 51. N:. 58 / W:dn;sd y. March 28, 1986 / Proposed Rules 18397 considesed fdlag for a constnsation circumventing the adpmiscatory greones" preclude unsolicited caetects from pesadt.anns be4mse the 90 sag efa fornmal and that the Casamission "uilted to falling mthm the exetapeion.

heneing sosics is evan * ' " in a ensure abat een useis limited to nemators C Sepamtion ofrunctions Pmrision particularm--N Such aise- that asee(samede rather them limited One of the ma}or questions facing the rearidng application of the ex perte rule concess"(44 FR at 1242M. He could damage severely the flexibility of Counmission believes, bowever, that it is Commission in revising its separation of the Commission's licensing process by functions rule is whether the agency helpful to adopt more explicit language should invoke the APA's initiallicensing precluding NRC adjudicatory employees to emphasize that such communications from any prhete consultations with may not be " associated"-either by the exemption. 5 U.S.C. 554(d)( A), so as to NRC staff members prior to the noticing interested person or the adjudicatory

• make the separation of functions of a hearing for fear of bamng those employee "with the resolution of any prohibition applicable only to same staffisembers from subsequeady on.the.eecord proceeding pending before accusatory proceedings. As was  :

I consulting informally with others the NRC"; such proceedings are to be explained earlier the APA's separation outside the agency.The Commission of functions provision can be interpreted resolved solely on the basis of the believes such an expansive factual record and applicable law and as being based on the distinction interpretation of the statute is not between accusatory and nonaccusatory po;;cy' compelled by either its language or its .

proceedings.He initiallicensing legislative history. See NUREG-0670, at exemption seemingly is based on this bro de th p se tion by same esdnchon. Cegress 75 n.142. Accordingly, this paragraph as allowing communications on generic mtended to provide that knowledge that #"

matters with those outside the agency. licensing-i8 a proceeding involving a a statute or regulation thatisquires a As set out in the 1979 Proposed rule, formal hearing at an andeterminate time license application or a licensee-12.7a0(b)(5)11mited the exemption t requested modification-usually is a without some knowledge of when the

" communications between the nonaccusatory proceeding based on hearing in the particular proceeding in ~

question is to be noticed will not be Commission,and staff regarding generic technical expertise and policy considered knowledge that the matter issues . . . . He commentu on the determinations rather than any will be noticed for a forrnal, on-the. 1979 proposed rule suggested that the extensive consideration of the exemption be extended to include applicant's past conduct as it relates to record hearing so as to cause the ex parte prohibitions of i 2.780 to apply, communications from those outside the violations of statutory or regulatory agency. Section 2.781(b)(1)(iii) of this requirements. NUREG-0670, at 57.

& Exceptions to the ex parte proposed rule now provides for this After careful consideration. the prohibition are set forth in proposed exemption as it relates to staff contacts. Commission has decided not to revise paragraph (f) of $ 2.780. The first three exemptions-status reports, while $ 2.780(c)(1)(iv) establishes such its separation of functions rub in a way communications permitted by statute or an exemption for Commission contacts that critically depends on the use of the with interested persona outside the nitiallicensing exemption because of regulation (eg.,10 CFR i 2.720). and communications to members of the agency. Also, other adjudicatory the great legal uncertainty that General Counsel's Office regarding employees who are advising the surrounds the use of the exemption. See litigation or matters before other Coramission on a particular proceedm.g. NUREG-0870, at 156-158 & n.23SA.

such as members of the Office of Policy Asimow. When the Curtoin Fo#st agencies-are incorporated from i 2.780(b) of the 1979 proposed rule. Evaluation or perhaps the Director of Sepamtion ofFunctions in &deml An additional exemption provision the Office of Nuclear Reactar Administmtive Agencies. 81 Cohun. L allows communications to adjudicatory Regulation. sae paragraphs (6) and (9) of Rev. 759. 777-78 (1981): Shulman. supro.

employees regarding generic matters. the definition of " Commission 58 Notre Dame Law. at 358-64. 380-404 Under existing i 2.780(d)(2), adjudicatory employee"in proposed Moreover, the use of the initiallicensing communications requested by the $ 2.4 may need to co, tact the sMif or exemption would require reintroduction Commission regarding " general health outsiders concerning related generic of the unworkable distinction between and safety problems and responsibilities issues. Accordingly, the scope of this accusatory and nonaccusatory of the Commission" are not considered provision and i 2.781(b)(1)(iii) relating to proceedings because the legislative -

to be in violation of the ex parte staff communications has been history of the APA indicates the prohibition. In the 1979 proposed rule, broadened to include other adjudicatory exemption is not intended for use in this was broadened to include ernployees. accusatory proceedings. United States communications relating to the Finally, this proposed rule addresses a Dep't of justice. Attorney Cenem/'s Commission's statutory responsibilities. suggestion by the commenter on the Manuolon the Administmtive This expansion is retained in this 1979 proposed rule that there should be Procedure Act 50-52 (1947) (hereinafter proposed rule, with the addition of no restriction on outsiders

• initiation of cited as Attorney Geneml's Manool].

several examples. contacts with adjudicatory emnployees Accordmgly, the rule as proposed would The Commission also proposes about those matters which, although apply separation of functions related to a pending adjudication, also restrictions in all formal, on-the-record several revisions to this provision regarding generic mattera.The 1979 are of genericinterest to the agency. proceedings conducted by the agency proposed rule statal that the This proposed rule does not have the without regard to whether such matters communicationsinvolved in the restrictive language contained in the would otherwise be classified as initial exemption were not to be "specifically existing rule that al&ows only for licensing or as accusatory or related to any panicular proceeding "communie=*==, regnestadby the nonaccusatory.

pending before the Commission." he Commisslea concerning. . .(gleseral Another unsettled, controversial 1979 notice of proposed rulemaking healik and safety problems and question in the area of separation of notes that this clause embodies the responsibilities of the Ceansmission." to functions prohibitions is whether swch

. Comasiasise's escogantion that "this CFR 2.780(d)(2) (emphasis supplied). restrictions should be impa==8 to bar provision cannot be used as a means of hus, the rule as proposed would not higher-level adjudicators from i

t

w

. j t i '

G.

.. 18398 Federal Register / Vd. 51. Nr. 58 / Wednisd:y. Mitch 26, 1986 / Proposed Rul:s I' communicating privately with lower- ex parte rule on the question of advisors.' may communicate with staff ,

level adjudicators.Present agency uncontesled issues. See II.B.1. supra. Investigators about various matters that

i. practice. . embodied in i 2.719(c) and Part - One additional change of note in might otherwise bring thm into conflict '

2. App. A. 5 IX(c). precludes such 6 2.781(a) is in paragraphs (a)(2) and with the APA's separation of functions consultations between Atomic Safety (a)(3), which are intended to indicate, as restrictions on communications. In the and Licensing Board members assigned is suggested in the APA's separation of case of investigations, which is covered to a proceeding and Atomic Safety and functions provision, see 5 U.S.C. 554(d); under paragraph (i), it has been Licensing Appeal Panel members on any Attorney General's Afonual at 58, that recognized that if agency heads are to fact in issue in the proceeding. His proper public disclosure of the fulfill their responsibility for the conduct proposed rule would not change this communications between adjudicatory of investigations or the initiation of practice.%e Commission. however, employees and staff members will avoid enforcement proceedings. they may be invites comments on whether this or cure any separation of functions involved in discussions of factual j existing limitation is necessary or violations. matters also at issue in ongoing appropirate. See Shulman. supra. 56 Finally. in describing those adjudicatory proceedings. Attorney Notre Dame Law. at 401-04,490-11. proceedings to which separation of General's Manual at 58.* Similarly, as is Compare LegalTimes of Wash.,Dec.15. functions should apply, the Commission indicated in paragraphs (ii) and (iii). of 1980, at 4 (after debate. Administrative has retained the term " factually 6 2.781(b). Although supervisory Conference of United States tables related." which is derived from the APA. determinations about staff resources or recommendations to allow consultation 5 U.S.C. 554(d)(2), and has been used in about staff compliance with agency between lower-level adjudicators and both the existing rule and the 1979 policies may require some discussion or agency heads) with Pederson. The proposed regulation. To be " factually consideration of matters at issue in a Decline of Separation of Ebnctions in related." proceedings must arise out of particular proceeding Commissioner Regulatory Agencies. 64 Va. L Rev. 991. the same or a connected set of facts that contacts with investigator or litigators to l 1001 (1978) (lower-level adjudicators a " common nucleus of operative facts" resolve resources and policy compliance -

should be considered evidence- exists rather than simply a similar questions should not be barred.

gatherers who prepare agency records pattern of facts. See Ciambanco v. INS. Para a h (iv) of i 2.781(b)(2) and, a such, should be able to consult 531 F.2d 141.150 n.4 (3d Cir.1976) - recogn es that, apart from a staff with agency heads). (Gibbons. J., dissenting); Shulman. n1em e . e pe h rd i Finally. I 554(d) of the APA, as well supra. 58 Notre Dame Law. at 365 n.59.  ; , g a p rt cula case he or

as the exising 10 CFR 2.719(a) and the nua. while a license suspension she may be investigating or litigating, he

? 1979 proposed rule, i 2.719(b), all require proceeding and a cml penalty or she also may be an expert in one or

- that adjudicatory officials not be proceeding arising out of the s,ame more technical areas about which the responsible to or subject to the violation would be considered , factually Commission may need general.

supervision or direction of the related generally a reactor back8round information. In the event prosecuting or investigative staff of the construction permit proceeding and a that the particular regulatory, scienti7;c agency. Analytically, this requirement proceeding for the issuance of a reactor r engineering principles about which also implements the principle of operating license would not, unless the Commission wishes to be informed separation of functions. Because the there is the need to relitigate a factual are not somehow at issue m, the delegations of authority and the issue specifically litigated and decided

' institutional arrangements embodied in in the construction permit proceeding.

' It has been recognized that the " agency head" the NRC's rules of practice and 2. Paragraph (b) of 6 2.781 sets forth " ' " "

procedures are adequate to implement certain communications that, either in ',"(([,"'hou1d,y,, app n Iad r as o this requirement. it is not specifically set and of themselves or when presented to tons a they remam advisory role cmher. lac. v.

forth in this proposed rule. certain adjudicatory employees. are not nr. ets r 2d iris.1::o.19th Cir.1982): Asmow.

suPro, s1 Colum. L Rev. at 766. Given the NRC's Concerning the particular provisions precluded by the rule.He of proposed i 2.781: communications set forth under 3,["[*,yf "'Njc"e[e'r's C ne [n ce

1. Paragraph (a) of this proposed rule paragraph (b)(1)-etatus reports. matters of pohcy Evaluat:on are cons >Jered " Commission-specifically permitted by statute or levet" omces that have a pnmary responsibihty for is similar to i 2.719(c) of the 1979 advisms the commission itself on techmcal. lesal.

proposed rule and serves as the basic regulation, other litigation outside the '

statement of the scope of the separation agency, and generic matters-are the c,"jff'F,"*',"R,'y***llp"

, ",('pI',"'"P*" '*

of functions restriction.There have been same as those set forth under proposed . support for ihis particular e=emption also may several changes from the 1979 proposed i 2.780(f) relating to ex parte be found in Phiigburn v. CAB. 311 F.2d 349 (1st Cir.

1962). After an airplane accident, the CAB members rule, however. In place of the term communications and can be made to d

" prosecuting" used in the 1979 proposed any adjudicatory employee. In contrast. ',"'y*d ntl' dpP rpruci a

, ,jd ppm en, nwjugation , of the rule to describe one of the staff paragraph (b)(2) lists ccmmunications Congress. cricurrently, the t iB members functions that will trigger a separation that can be made to the Commissioners adjudicated wNether to suspend the license of the pilot mvolv. the accident. The factualissues in of functions question, the term themselves and to certain Commission. d 'h

" litigating" has been substituted. As was level employees because of the status of y'l,"8lby";,d[,""'*I' p','l'"lj'due explained previously, this revison is in such individuals as admmistrators and proc,,s arguments ihai the CAB was precluded line with the rejection of the accusatory / policymakers or the advisors to those from pursuma concurrenity its investinatory and administrators and policymakers. adi udaaiory activit es. The court further nonaccusatory distinction. By using the h more expansive term " litigating" the The communications provided for in g(l,'Q','d $PA , S U,g n )[ry out its Commission seeks to include those staff - paragraphs (b)(2)(i) through (iii) of invesii,aio,y and ediudicaiory mandates ai the 6 2.781 are based on the ApA's " agency same nme; the remedy for ehmmatmg potential employees who undertake an advocacy unfairness is simply to preclude agency staff role. Also, by stating that the restriction head" exemption to its separation of applies only to " disputed issue [s]." the functions provision. 5 U.S.C. 554(d)(C). "'"j['l7,7,,'l8'jd y"E'Z[jo%, embers in Commission gives this provision an whereby the person or body that the same or a factually related ediudication. see governs the agency, and any immediate also nc v. Cement tastaute. 333 u s. saa (1948).

interpretation that parallels that of the J

AlKr b  !

Federal Register / Vol. St. No. 58 / Wrdnisdty. Mzrch 28, 1986 / Proposed Rules 10399 l 1

proceeding. this paragraph will allow is first noticed for a hearing.This must be made public and subjected to  !

the rammission to obtain this reflects the Commission's belief that comments by the parties ifit is to be l information from a particular. prior to this time the staff's knowledge used as the basis for any initial or final investigator or litigator. . .

about and position on a given matter is decision.

Paragraph (v) of i 2.781(b)(2)is too tentative and unsettled to cause A related question. and one that is not proposed to be added as a consequence concern about biased advice or off-the- directly addressed in the provisions of of the United States Court of Appeals record facts.This provision strikes the this proposed rule. is whether a staff for the District of Columbia Circuit's proper balance between the agency's employee, once becoming an advisor to decision in EnvimnmentalDefense need for efficient and effective a decisionmaker in a particular Fund. Inc. v. EPA. 548 F.2d 998 (D.C. Cir. communications and the public's proceeding. can ever again assume a 1978), cert. denied. 431 U.S. 925 (1977). In interest in fair, unbiased proceedings. role as an agency investigator or EDF. Inc., the court stated that agency See RSR Corp. 856 F.2d at 722-24 litigatorin that proceeding. Arguably, prosecutors could consult privately with (neither APA nor due process requires the separation of functions restriction an agency head regarding broadening a imposition of separation of functions only applies to preclude investigators or suspension proceeding by adding ban during agency consideration of litigators from being involved as changes. ld. at 1008 n.20. The addition of motion to reopen proceeding because no adjudicators or their advisors and not paragraph (v) would allow private adjudication yet involved). the converse. If an individual advising consultations between the Commission 5. Proposed paragraph (e) of I 2.781 an adjudicatory employee has and investigators or litigators after an advises all NRC personnel that developed a bias against one of the initial decision concerning any request communications with adjudicatory parties in a proceeding. then allowing to broaden the adjudicatory proceeding employees now permitted by i 2.781 are that advisor to become a litigator by adding issues. not to become the instrument for seemingly does not hurt the party since ne Commission proposes to add communications with persons outside t w 11 have a full opportunity to defend paragraph (vi) of i 2.781(b)(2) on the the agency otherwise prohibited by itself and its positions. On the other basis of the District of Columbia 5 2.780 or with investigators or litigators hand. if an advisor develops a bias in Circuit's decision in ESR Corp. v. FTC. otherwise prohibited by 6 2.781.The favor of a particular party, that party 858 F.2d 718 (D.C. Cir.1981) (per legislative history of the Sunshine Act seemingly is not harmed in any way by curiam). In RSR Corp. the court declared notes that "ex parte contacts by staff the advisor assuming a role as a that neither the APA nor due process acting as agents for interested persons litigator. The Commission requests imposeJ a separation of functions outside the agency are clearly within the comments on the propriety of including prohibition applicable to agency scope of the prohibitions." li.R. Rep. No. a provision allowing such contacts.

consideration of a motion to reopen a 880 pt.1. supra, at 20; II.R. Rep. No. 880 8. He possibility for increased -

proceeding after a final agency decision pt. 2. supra, at 19; S. Rep. No. 354, supra. consultation by NRC adjudicators with in an admuustrative proceeding. ld. at at 30. A smular concern existrwith 722-24. regard to communicat;ons between staff the. NRC staff that would result under this proposed rule may cause concern

%e final paragraph (b)(3) of $ 2.781. members not involved in a proceeding ,

among some participants in NRC is intended to incidate that none of the and investigators or litigators. Civen the adjudicatory proceedings, particularly exemptions can be used to circumvent increased possibility for staff input into given the almost complete separation of the protections provided by the the decisional process that is allowed NRC staff from adjudicators that has -

adjudicatory process. No Commission under this proposed rule, the explicit existed previously. As Professor Davis adjudicatory employee or staff warning in section 2.781(e) appears has noted. however. for those agencies employee performing investigative or appropriate.

His is not to say, however, that the such as NRC that regulate in areas litigating functions is to associate any of these types of communications explicitly mere exposure of a staff employee to involving complex technical questions, or implicitly with the resolution of any communications that arguably would be the choice between consulting and not ,

on.the-record proceeding; such prohibited prior to that person's consulting staff experts is "a choice,3 proceedings should be resolved solely involvement in the decisionmaking between knowledge and ignorance.

on the basis of the factual record and process will automatically disqualify K. Davis. Administrative Low Treaties applicable law and policy. Further, as that person from later acting as an i 17.10 at 310 (2d ed.1980). As such, required by statute, no Commission adjudicatory employee. In fact,if the Professor Davis has expressed his ,

employee who performs investigative or employee has not otherwise performed support of such consultations, with the litigating functions subsequently will an investigative or litigating function. caveat that the agencies should seek to perform adjudicatory duties in the same then such exposure to off.the. record minimize any harmful effects by strivmg or a factually related proceeding. 5 information does not make him or her an to ensure. among other things. "that the U.S.C. 554(d). advocate. Asimow, supra. 81 parties have an opportunity to meet in .

3. Paragraph (c) of I 2.781 is similar to Colum.LRev. at 782. 771-72; see appropriate fashion whatever i 2.780(c) of this proposed rule and Shulman. supra. 56 Notre Dame Law, at extrarecord facts are introduced through describes the measures that are to be '337-80. But see Crolier. Inc. v. ETC. 815 consultation" and "that the parties have taken to ensure that if such a prohibited F.2d 1215 (9th Cir.1980). Thus, a chance to respond to new ideas that communication is received, it is properly communications by a staff employee may be decisive."Id. at 312. Paragraph disclosed to avoid any prejudice to the with outsiders or staff investigators or (f) of proposed i 2.781 has been added parties. litigators prior to communicating with to make clear that the increased

4. Paragraph (d) of I 2.781 is a new the Commission or other adjudicatory possibility of consultation does not in addition that specifies when the employees as a decisionmaking advisor any way change the agency's legal duty separation of functions probibition is to will not. in and of itself, disqualify the or commitment to ensure that the be applied. Like the proposed ex parte staff employee. Of course, any off.the- decisive elements of its deterninations provisions in i 2.780(g), the separation record information about any matter in are based upon a public record that the of functions provisions are made controversy that is imparted to a parties have ha i an opportunity to effective only at the time the proceeding decisionmaker by such a staff advisor address.

. Ii k

e

" / p 16 FedemalJteglster / VII.-51, No 58 / Wednesday March 28, 1988 / Prapa==el Rules ,,

i IIL Qumdesusing Osages I a Parts e and 2 Regulatory Analysis fall within the deBnition of sma8 i, Im'a3sillion to the revision of tlk ex , businesses found in i M of the Smell Under the APA. 5 U.S.C. 554(d).

557(d).in formal adjudicatory Businen Act.15 U.S.C eB2. in the Smell

. parte and sparation of functEns rules businen Size Standards set oufin of practica the-calves, the ihmminaion proceedings. restrictions apply to y an as r.lso proposes conforming changes to communications between adjudicators and agency employees performing

{iya ,l l

several other regulatory provisions. One the NRC's size standards published 1 cf these is a change in 10J35-48 cf 10 investigative or litigating functions or

'" ' " Al o in e n ub t the 1 tion w e e re s i the p pos d ex part rule will conform the language of the provision on ex parte communications existence of restrictions on likely would fall within the pertinent agency's present regulations more communications resulting hem the ex Small Business Act definition.the closely to the Sunshine Act's provisions  ;

parte and separation of functions rules restricting communications with persons proposed ex parte rule,if adopted. j m 10 CFR Part 2. De proposed revision outside the agency. This rule change will would not reduce or increase the would update existing references to not affect the substantive restrictions on litigation burden of intervenors because l f

it 2J19 and 2J80 in light of the.. outside communications applicable it is substantially the same as the Psoposed changes in thosa provisions- under present regulations. Under the restriction now in effect. Although the l, Similarily. revisions are made to revised separation of functions rule, revised restrictions on intrangency ,

iI VII(cland IX(cl of Appendix A to however, there will be an increased communications found in the sparation. j Part 2. the general statement of policy possibility for adjudicator / staff 'of functions provision might result in )

, and procedure on the conduct of formal communications because those staff some cost reduction in proceedings in j proceedings. Deleted from i Vil(c) as members not involved in an that the increased availability to g

unnecessarily restnctive are provisions investigative or litigating function in a adjudicators of steff expertise may ,

! limiting consultations between members particular proceeding can advise shorten the proceedings, that reduction of a particularlicensingBoard and decisionmakers on matters at issue in probably willbe negligible.nus,in Licensing Board Panel members, other that proceeding. The potential for accordance with the Regulatory than the Chairman or the Vice increased information to adjudicators Flexiability Act. 5 U.S.C. 605(b). the Chairman. Finally, as previously was makes this rule change preferable to NRC hereby certifies that this rule. if noted. the existing restriction on existing requirements. While other promulgated, will not have a significant consultation between the Licensing possible rule change options exist, economic impact upon a substantial i number of small entities. ,

> Board members assigned to a particular notably invocation of the " initial proceeding and any Appeal Panel licensing" exemption in the APA or Ilst of Subjects in le CFR Part e member is retained in Appendix A. reading the section 554(d) restriction to

- A separate but related issue raised by apply only to " prosecutors" rather than Conflict ofinterest. Penalty.

" litigators " serious questions about the the need to conform other NRC list of Subjecta in le CFR Part 2 regulations to any revised separation of legality of these particular revisions make them unacceptable both in terms Administrative practice and

! functions and ex parte rules is the need to retain a reference to those rules in of agency resources to defend such rules procedure. Antitrust. Byproduct l and the possibility of judicial reversal of material. Classified information.

12.305.nis section is a provision of licensing actions based on the Subpart C of Part 2, which sets forth the Environmental pmtection. Nuclear application of such rules.The proposed materials. Nuclear power plants and procedures for issuing temporary operatinglicenses under $192 of the rule thus is the preferred alternatgve and reactors. Penalty. Sex discrinunation.

g the cost involved in its promulgation Source material.Special nuclear s 4 Atomic Energy Act of 1954 42 U.S.C. and application is necesary and 2242. Since the Commissiohs authority material. Weste treatment and disposal

,5 appropriate. The foregoing discussion ' ' ' * * " " * * "'"

to issue temporary operating licenses constitutes the regulatory analysis for expired on December 31.1983, there is preamble and under the authority of the the proposed rule

• Atomic Energy Act of 1954. as amended. I no reason to conform the section or.

indeed. to retain Subpart C. Backfit Analysis the Energy Reorganization Act of1974.

as amended, and 5 U.S.C. 553, the NRC

. Accordingly, that subpart would be His proposed rule does not modify or add to systems, structures, components is proposing to adopt the following removed under the proposed rule. 3 amendments to 10 CFR parts o and 2.

or design of a facility: the design Enhtal W F -

r M approvasi or manufacturing license for a PART 0-CONOUCT OF EMPLOYEES EM A facility; or the procedures or ne NRC has determined that this organization required to design. 1. The authority citation for Part 0 is proposed regulation is the type of action construct or operate a facility. revised to read as follows:

described in categorial exclusion to CFR Accordingly. no backfit analysis 25 . s a, 51.22(c)(1).nerefore. neither an pursuant to 10 CFR 50.109(c) is required , g se" environa.entalimpact sta'sment nor an for this proposed rule. Stat.12 2 se amended (42 U.S.C.5enl:EO.

environmental assessment has been Regulatory Flexibility Certification 11222,30 FR 6480. 3 CFR 1964-1965 COMP p.

prepared for this proposed regulation. 308; 5 CFR 735.104.

The proposed rule will not have a Sections o.735-21 and 0.735-2s also issued Paperwork Reduction Review under 5 U.S.C. 552. 553. Section 0.735-36 also significant economic impact upon a issued under secs. 501,502. Pub. I.,95-621,92 ne information collection substantial number of small entities. Stat.1864. tss7. se amended by secs. t. 2 requirements -M in this propcsed Most entities seeking or holding rule are exempt from the reyairemente construction permits on Coramission 2a. 93 Stat. 7s. 77 (la m m of the Paperwork Reduction Act of1980 licenses that would be subject to the 2. Section 0.736-48 is revised to reed

, (44 U.S.C. 3518(c)(1)). revised ex parte provisions would not as follows:

i n

its ,

5 K Federal Register / Vcl. 51. No. 58 / Wedn;sdIy M;rch 26. 1986 / Proposed R:les 10401

.D.,

[. l_o.735-4a neeeristed communicecons. (6) The General Counsel and employees of the Office of the General outside the agency, any ex parte communication relevant to the merits of E. -

Certain employ communications are h

prohibitedin forinal adjudicatory proceedinge under il 2.780 and 2.781 of Counsel:

(7) The Director of the Office of Policy the proceeding.

(c) Any Commission adjudicatory this chapter. . :n s Evaluation and employees of that office; employee who receives. makes or

. . (8)he Secretary and employees of knowingly causes to be made a PART 2-RULES OF PRACTICE FOR the Office of the Secretary

and communication prohibited by this DOMESTIC LICENSING PROCEEDINGS (9) Any other Commission officer or section shall ensure that it and any employee who is appointed by the responses thereto promptly are served

3. He authority citation for Part 2 is Commission to participate or advise in '

on the parties and placed in the public revised to read as follows: the Commission's consideration of an record of the proceedin8. In the case of Authority: Secs.181.181. 88 Stat. 948. 953, initial or final decision. Any such other oral communications, a written as amended (42 USC 2201,2231h sec.191 as Commission officer or employee who, as summary shall be served and placed in 201.88 tat.1242, as a e ed permitted by i 2.781. participates or the public record of the proceeding.

4th advises in the Commission s g3g 33g g3g 333 (d) Upon receipt of a communication Section 2.101 also issued under secs. 53,62.

consideration of an trutialor final knowingly made or knowingly caused to

83. 81.103.104.105. 88 Stat. 930. 932,933. 938.

decision on a continuing basis must be be made by a party in violation of this 937. 938, as amended (42 USQ. 2073,2001 appointed as a Commission section, the Commission or other 2003. 2111. 2133,2134. 2135); sec.102. Pub.L adjudicatory employee under this adjudicatory employee presiding in a 91-190. 83 Stat. 853, as amended (42 USC paragraph and the parties to the proceeding may, to the extent consistent 4332h sec. 301,88 Stat.1248 (42 USC 5871). proceeding must be given written notice with the interests of justice and the Sections 2.102. 2.103. 2.104. 2.105. 2.721 also of such appointment. policy of the underlying statutes, require issued under secs.102,103,104,105,120,189 .

88 Stat. 938 S37. 93a6 954. 955, as amended (42 o the party to show cause why its claim or USC. 21312133, 2134. 2135, 2233. 2239). ,,Ex parte communication means an interest in the proceeding should not be Oral or written communication not on Section 2.105 also issued under Pub.L 97-415. dismissed. denied. disregarded or 98 Stat. 2073 (42 USC 2239). Sections 2.200- the public record with respect to which otherwise adversely affected on account 2.208 also issued under secs.186,234. 88 Stat. reasonable prior notice to all parties is of such violation.

955. 83 Stat. 444, as amended (81 U.S.C 2238. not given. (e) The prohibitions of this section are 2282h sec. 208. 88 Stat.1248 (42 USC 5848). . . . . .

applicable (1) when a notice of hearing Sections 2.300-2.309 also issued under Pub.L investigative or litigating function or other comparable order is issued in 97-415. 98 Stat. 2071 (42 U.S.C 2133). Sections 2.800-2.808 also issued under sec.102. Pub.L means- accordance with il 2.1M(a). 2.105(e)(2). ,91-190. 83 Stat. 853 as amended (42 USC (1) Personal participation in planning. 2.202(c) or 2.703, or (2) whenever the 4332) Sections 2.700a. 2.781 also issued under conducting or supervising an interested person or Commission 5 U.S C 554. Sections 2.754. 2.780. 2.770. 2.780 investigation; or adjudicatory employee responsible for also issued under 5 USC 557. Section 2.790 (2) personal participation in planning- the communication has knowledge that devel ping or presenting. or supervisin8 a notice of hearing or other comparable

[d 4 U$ 2133 and 5 U.'S 552. the planning. development or Sections 2.000 and 2.808 also issued under 5 order will be issued in accordance with USC 553. Section 2.809 also issued under 5 presentation of testimony, argument or il 2.104(a) 2.105(e)(2). 2.202(c), or 2.703.

USC 553 and sec. 29. Pub.L 85-258. 71 Stat. strategy in a proceeding. (f) The prohibitions in this section do 579, as amended (42 USC 2039). Subpart K * * * *

• not apply to -

also issued under Sec.189. 88 Stat. 955 (42 (1) Requests for and the provision of USC 2239k sec.134. Pub.L 97-425. 98 Stat. Subpart C-[ Removed] ,

42 UAC ^ 5. Part 2 is amended by removing C munications specifically

_dr l{ Subpart C (il 2.300-2.309). permitted by statute or regulation:

1473 (42 USC 2135).

5 2.71s (nemoveel (3) Communications made to or by

4. Section 2.4 is revised by removing members of the Office of the Ceneral the alphabetical paragraph designators. 6. Section 2.719 is removed.

Counsel regarding matters pending alphabetizing all words defined, and 7. Part 2 is amended by revising the undesignated centerhead immediately before a court or another agency; and adding three new definitions to read as follows: preceding i 2.780 to read as follows: . (4) Communications regarding generic issues involving public health and safety 92.4 Definitione. Restricted Communications or other statutory responsibilities of the

8. Section 2.780 is revised to read as agency (e.g., rulemakings, congressional

• • Commission adjudicatory employee" follows: hearings on legislation, budgetary means- planning) not associated by the 62.7s0 Ex parte communications. Commission adjudicatory employee or (1) The Commissioners and members r of their personal staffs: In any proceeding under this the interested person with the resolution (2) ne members of the Atomic Safety subpart- of any proceeding under this subpart and Licensing Appeal Panel and staff (a) Interested persons outside the pending before the NRC.

assistants to the Panel: agency may not make or knowingly 9. New I 2.781 is added to read as (3)The members of the Atomic Safety cause to be made to any Commission follows:

and Licensing Board Panel and staff adjudicatory ernployee, any ex parte assistants to the Paneh communicatie1 relevant to the merits of g 2.78 Separapon of functions.

(4) A presiding officer appointed the proceeding. (a)In any proceeding under this under i 2.704, including an (b) Commission adjudicatory. subpart, any NRC officer or employee administrative law judge, and staff employees may not request or entertain engaged in the performance of any assistants to a presiding officer. from any interested person outside the investigative or litigating function in that (5) Special assistants (as defined in agency or make or knowingly cause to proceeding or in a factually related i 2.7;'2): be madt to any interested person proceeding may not participate in or l

\

]I Y&.~ / Federal Register / Vcl. 51. No. 58 / Wednesd:y, Mtrch 26, 1986 / Proposed Rules ~

.k. 19 mat i

> advise a h=aaien adjudicatory . investigative or litigating functions with members of b panel from which the . '

the resolution of any proceeding under members of the board are drawn.

1' n, about the initial ce final . (2)1h provisions of I L781 restricting h Alecision on any disputed issas istthat this subpart pending before the NRC. intraagency comultations and proceediasexceps- - 4 ". (c) Any Commission adjudica*ory c mmunicat n8 are n f *pplicable to matters

D) Asartiness or counselin the employee who receives a certified to the Commission or to the Atomic proceedm.g: ,

communication under paragraph (a) of Safety and Ucensing Appeal Panel under the (2)Rrough a written communication this section shall ensure that it and any Commission rules in ll 2.720th) and 2.744(e) served rm all parties and made on the responses thereto are placed in the since thoee matters are not deemed to record of the proceedings; or public record of the proceeding and involve substantive matiers at inue in a (3) Through an oral communication served on the parties. In the case of oral proceedmg on the record, made both with' reasonable prior notice communications, a written summary 11.In iIX of Appendix A to Part 2 ta all parties and with reasonable shall be served and placed in the public paragraph (c)is revised to read as opportunity for all parties to respond. record of the proceeding. follows. '

,(b) He prohibition in pcragraph (a) of (d) The prohibitions in this section are a ucemins Mrs SuMacno this section does not apply to-.- applicable (1) when a notice of hearing A Ppellate Jurisdiction of Atomic Safety and (1) Communications to or from any or other comparable order is issued in Cutun anon adjud'catory employee accordance with Il 2.104(a). 2.105(e)(2).

2.202(ch or 2J03, or (2) Wever an N. ,

i) The alus of a proceedin . (c) Comultation between members of the NRC officer or employee who is or has Atomic Safety and ucensing Appeal Board (ii) Matters with regard to w ich such reasonable cause to believe he or she for a particular proceeding and the staff is communications specifically are will be engaged in the performance of an permitted on the condition specified in to permitted by statute or regulation: investigative or litigating function or a Cm 2.7st.However, members of the atomic (lil) Agency participation in matters Commission adjudicatory employee has safety and liceming boards for particular pending before a court or another knowledge that a notice of hearing or proceedmse shall not consult on any fact in '

other comparable order will be issued in inue in those promedings with members of iv deneric issues involving public accordance with I 2.104(a). 2.105(e)(2), the Appeal health and safety or other statutory cations to, from, and Dated at Washington. DC, this 21st day of slo I ea gs on o ru ema con between Commission adjudicatory March 1986.

legislation, budgetary planning) not For the Nuclear Regulatory Commission.

a.ssociated by the Commission employees not prohibited by this section may not serve as a conduit for a samuel E Chilk.

adjudicatory employee or the NRC communication that otherwise would be Secretary of the Commission.

officee or employee preforming investigative orlitigating fonctions with prohibited by this section or for an ex (FR Doc. 8S-6063 Filed b25-as; 8:45 em) the resolution of any proceeding under parte conununication that otherwise sumo coot riemei-as this subpart pending before the NRC. would be prohibited by 6 2380.

(2) Communications to or from (f)If an initial or final decision is Commissioners, members of their stated to rest in whole or in part on fact ARTMENT OF TRAMSPORTATI personal staffs, the General Counse1 and or opinion as a result of a employees of the Office of the Genera) communication authorized by this F Avietlon Administration Counsel, the Director of the Office of section, the substance of the 14 Part 21 Policy Evaluation and employees of that communication must be specified in the record of the proceeding and every party office, and the Secretary and employees must be afforded an opportunity to et Mm Notice No b t

of the Office of the Secretary,

, regarding--. controvert the fact or opinion. lf the g parties have not had an opportunity to Special Co liions; n Aviation i (i) Initiation or direction of an investigation or initiation of an controvert the fact or opinion prior to industries R ngined tStar Model l enforcement proceeding: the filing of the decision, a party maF 1329 Series ane I (ii) Supervision of agency staff to controvert the fact or opinion by filing  !

an appeal from an initial decision or a AGENCY: Federal v tiorr J cnsure compliance with the general ), DOT.

policies and procedures of the agency: petition for reconsideration of a final Administration (F ,

(iii) Staff priorities and schedules or decision that clearly and concisely sets Action: Notice of r osed special i the allocation of agency resources: forth the information or argument relied conditions. i (iv) General regulatory, scientific or on to show the contrary. If appropriate,  ;

engineering prindples that are useful for a party may be afforded the opportunity

SUMMARY

This otice pr oses special j an understanding of the issues in a for cross-examination or to present conditions for e Ameri Aviation > ;

proceeding and are not contested in the rebuttal evidence. Industries ( )reengining ithe Model  !

10. In i VIII of Appendix A to Part 2, 1329 series lane.Thea' e will proceeding:

paragraph (c)is revised to read as have novel r unusual design atures (v)ne need to add issues to a proceeding after rendition of the initial follows: associate with an automatic t eoff decision: or thrust trol system (ATTCS) f which *

(vi) The need to reopen a proceeding '"', , ,

the app cable airworthiness reg tions l after rendition of the initiaj or final do no ontain adequate or approp ' ate (c)(1) secti n 2.781 specifies when safet standards.This notice cont '

decision. * "

b5 nthe the fety standards which the (3) None of the communications ta s.b e nd, A inistrator finds necessary, beca permitted by paragraph (b)(2) of this other hand. is permitted in licensins section is to be associated by the proceedmas conducted under sobpart G. of hese design features, to establish a CommW adjudicatory employee or Section 2.781 also permits a board, in the I el of safety equivalent to that the NRC.o!Ilcer or employee performing same type of proceeding. to consult with tablished in the regulations.

.