ML20196B292
| ML20196B292 | |
| Person / Time | |
|---|---|
| Issue date: | 11/08/1988 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-53FR45768, RULE-PR-19 AD06-1-02, AD6-1-2, PR-881108, NUDOCS 8812060238 | |
| Download: ML20196B292 (13) | |
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[7590-01)
NUCLEAR REGULATORY COMMISSION 10 CFR Part 19 Seouestration of Witnesses interviewed Under Subpcena AGENCY:
Nucle.ar Regulatory Comission.
ACTION:
Proposed rule.
SUMMARY
- The huclear Regulatory Comission (NRC) is proposing to amend its regulations to provide that all persons compelled to appear before NRC representatives under subpoena in connection with an agency investigation (and their counsel, if any) shall, unless otherwise authorized by the NRC official conducting the investigation, be sequestered frem other interviewees in the same investigation.
The proposed action is necessary because the NRC has encountered difficulties in conducting investigative interviews in an atmosphere free of outside influences.
The proposed rule is intended to clarify and delineate the rights and responsibilities of the agency, interviewees and licensees during the conduct of agency investigations and inspections. The proposed amendments are not expected to have any economic impact on the NRC or its licensees.
DATES: Comment period expires January 10, 1989.
Cossnents received after this date will be considered if it is practical to do so, but the 8812060230 001108 PDR VR 19 53FR45768 PDR D.5 / J
[7590-01) 2-Comission can only assure consideration of those coments received on or before that date.
ADDRESSES:
Mail written cements to:
Secretary, U.S. Nuclear Regulatory Comission, Washington, DC 20555, Attention: Docketing and Service Branch.
Deliver comments to:
2120 L Street, N.W., Washington, DC between 7:30 a.m. and 4: 15 p.m., Monday through Friday.
Coments received may be examinee at:
the NRC Public Docuinent Room at 2120 L Street N.W., Washington, DC.
FOR FURTHER INFORMATION CONTACT:
Carolyn F. Evans, Office of the General Counsel, U.S. Nuclear Regulatory Comission, Washington, DC 20555, telephone:
(301)492-1632.
SUPPLEMENTARY Ihf0RMATION:
The Comission is aware of the confusion that has arisen regarding who can attend investigative interviews of individuals which are conducted by NRC inspectors or investigators.
See,ed., Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), LBP 82-348, 15 NRC 918, 990-93 (1982) (discusses the question of whether an interviewee may have a representative of company management present during investigative interview).
As a general matter, a person has a right to be accompanied by counsel or any other individual the person desires during a voluntary interview by hRC representatives.
Id.
The investigator ray either
[7590-01)
-3 t.ccept the irdividual's conditions for submitting to the veluntary interview or decline the interview. However, absent a subpoena, no person is required to submit to an NRC interview.
Thus, to the extent the existence and scope of one's right to be accompanied by counsel or other representative becocus an issue, it is in the context of an interview compellen by administrative subpoena issued pursuant to 42 U.S.C. 2201(c).
In these cases. Section 6(a) of the Administrative Procedure Act (APA), 5 U.S.C. 555(b), provides that the interviewee "is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative."
Questions concerning the scope of an interviewee's right to be accompanied by counsel or others, born out of the absence of clear Cornission policy on the issue and the lack of clearly oeveloped judicial guidelines, have been raised in essentially three ways.
First, in several instances, an interviewee's employer has sought to arrange for a management representative to attend NRC interviews of its tmployees.
Second, the employer has provided corporate counsel, either unilaterally or with the agreement of the emoloyee, to represent all erployees during an NRC interview.
Third, an employer has offered to provide its employees, free of charge, non-corporate counsel initially selected by r.anagement or independently retained by the individual employee.
Where the interviewee is a mercer of the employer's corporate control group, the presence of corporate counsel at an NRC interview is, except in extraordinary circumstances, not objectionable. Similarly, the fact that an employer has agreed to pay the fees of employee selected, non corporate counsel should generally be of no concern to the investigative staff unless the fee
l' i
[7590-01]
-4 reimbursement agreement, on its face or in operation, acts as an improper restraint on the employee's potential candor.
However, where corporate counsel i
seeks to represent non-management employees during an NRC investigation, or where the employer ef fectively selects the employee's non-corporate counsel, the potential for conflicts of interest among counsel's multiple clients in l
responding fully and candidly to the inquiries of the agency and the potential irpairment to the efficacy of the NRC investigation become a paramount concern.
In most cases, attempts to interject a corporate presence into investigative interviews of the non-managerent employees of a licensee or applicant have been satisfactorily resolved through negotiation between company management and NRC staff.
However, such ad hoc negotiations have led to unnecessary delay in completing NRC investigations.
In order to clearly delineate the rights of indivicual interviewees, the legitimate interests of the company or licensee, and the responsibilities of the NRC to ensure the public health and safety, the Ccmission believes it appropriate to announce general guidance to be followee in this area.
The Comission believes as a matter of policy that investigative interviews should be conducted in an atmosphere free of outside influences.
The Ccmission is aware that ranagement has a legitir. ate interest in NRC inspections and investigations in order to detect and correct any violations of NRC regulations. Moreover, tince the policy of the Comission is to hold the licensee or applicant liable for the acts and omissions of its employees and contractors, the licensee or applicant normally has a corporate or financial interest in the cutcome of the investigation.
Nevertheless, the Comission believes that the purpose of its inspections and investigations (to protect the
(759001) i i
5-i public health and safety by identifying unsafe practices and violations of 5
Comission regulations and the Atraic Energy Act), and its interest in ensuring j
the integrity of the agency's factual findings and regulatory conclusions from such efforts would be better served by excluding all persons from the interview except for the interviewee's counsel.
In cases where dual representation is an issue, the Coestission believes that exclusion of the particular counsel chosen by or for the interviewee might
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be warranted.
Where the person being interviewed chooses to be represented by l
t counsel for the licensee or applicant, an inherent potential for a conflict of
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t interest and impairment of the NRC's investigation exists.
The Comission recognizes, however, that the attorney can ethically represent multiple clients if he or she fully discloses the potential conflict to the clients and they t
individually assent to the multiple representation.
Such disclosure between counsel and client does not always eliminate or reduce the inherent potential that the multiple representation could impair or impede the Cossiission's investigation.
Cual representation of both the interviewee and the licensee or applicant could permit the subject of the investigation to learn, through counsel, the direction and scope of the investigation.
The subject could then take steps to structure the flew of information to the NRC or otherwise impede the investigation.
Indeed, in three recent cases where the company offered its i
own attorney to potential witnesses, the attorney stated prior to any interview that he would relate to the company all that took place in the interviews.
This produces an inherent coercion on the interviewee not to reveal to the NRC l
inforeation that is potentially detrimental to his employer. Moreover, should the agency official conducting the invr "on determine that an offer of r
r I
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[7590-01]
6-confidentiality to an interviewee is warranted, the purpose for confidentiality could be undermined simply by the presence of counsel who represents other interviewees or the subject of the investigation.
For these reasons, the Comission believes that dual representation could 1
prove detrimental to NRC investigatici". Accordingly, the proposed rule provides that where the agency official conducting the investigation determines af ter consultation with the Office of the General Counsel that there is a j
reasonable basis to believe that the attendance of a particular attorney might prejudice, impede, or impair the investigation by reason of that attorney's dual representation of other interests, the particular attorney may be excluded from the interview.
The proposed rule further provides that where an interviewee's counsel is excluded and the interviewee is not given reasonable prior notice of an intent to exclude counsel, the interview may be delayed at the interviewee's option for a reasonable period to permit the retention of other counsel.
The "reasonable prior notice" standard contemplates affording the interviewee sufficient time in advar.ce of his/her interview to retain rew i
j counsel, e.g., one week.
The Comission believes that the interest in ensuring the health and safety of the public through vigorous probing of possible regulatory violations justifies the somewhat minor burden on an individual's j
right to be accompanied by a particular counsel.
Several district courts have upheld an agency's power to exclude a witness' attorney from an investigative interview where that attorney also represented the person under investigation.
See United States v. Steel, 238 F.
l
)
Supp. 575 (S.D.N.Y. 1965); Torras v. Stradley, 103 F. Supp. 737 (N.D. Ga.
I 1952); United States v. Smith, 87 F. Supp. 293 (O. Conn, 1949).
One circuit
[7590-01) court considering this issue however, reversed a district court decision that held the Internal Revenue Service could deny a third party witness the right to i
be accompanied by counsel for the taxpayer under investigation. Backer v.
Comissioners of Internal Revenue, 275 F.2d 141 (5th Cir.1960). That court, 4
however, which indicated that a witness has a right to the counsel of his choice, did not decide whether that right could be limited or otherwise qualified through formal rule-making procedures.
Two other circuit court decisions, involving the Securities and Exchange Ccmission's sequestration rule, have also indicated that the terminology of 5 U.S.C. 555(a) means counsel of one's choice. SEC v. Csapo, 533 F.2d 7 (D.C. Cir.1976); SEC v. Hioashi.
359 F.2d 550 (9th Cir. 1966).
Both of those courts, however, irdiCated that there could be circumstances where an attorney could be barred from the f
interview, although it could not be done under the facts of those cases.
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With this guidance in mind, the Comission realizes that no absolute 1
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criteria can be established for determining when the NRC ray exclude an
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interviewee's attorney W.ere the attorney is also counsel for the licensee, j
applicant, or other organization under investigation.
The Comission believes however, that dual representation of interviewees and licensees should be prevented wherever circumstances require this.
An appropriate rule would grant l'
the NRC office conducting the interview the discretion to determine whether the j
attorney should be allowed to attend the interview. Some factors, which in j
conjunction with other circumstances may justify exclusion includet (1) whether the company under investigation suggested that the witness employ the i
j particular counsel and is paying the fee; (2) whether there might be a divergence of interest between the witaess and the company unknown to the I
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[7590-01]
8-witness such that the witness might not want the attorney to be present if he were aware of the divergency of interest; (3) whether the investigation could be orejudiced if the attorney is allowed to attend the interview, the greater the potential prejudice the greater the case for excluding.
The factors to consider in favor of allowing the attorney to be present incluce:
(1)whether there is little or no diversity of interest between the witress and the entity being investigated so that an interview of the witness would in effect practically be an interview of t a person or company under investigation; (2) whether the nature of the case rl.kes it unreasonable to irsist that the witness have separate counsel; and (3) whether there has been any showing of potential prejudice to the investigation by allowing the attorney to be present.
i ENVIRONMENTAL IMPACT:
CATEGORICAL EXCLUSION The NRC has determined that this proposeo rule is the type of action describedincategoricalexclusion10C.F.R.51.22(c)(1).
Therefore, neither an environmental impact staterent nor an environmental assessrent has been prepared for this proposed rule.
PAPERWORK REDUCTION ACT STATEMENT This proposed rule contains no information collectie requirements and therefore is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 g sec.)
REGULATORY / ANALYSIS The APA affords individuals compelled to submit to agency inquiry under subpoena the right to be accorpanied by counsel or other representative of
i D59001) choice.
5 U.S.f;. 555(b).
L w lens cencerning the scope of this right have l
arisen in the r.ontext of hRC investigative interviews of licensee employees and the presence cf outside influences which uften undermine the process.
These l
outside influences have essentially arisen in one of three ways.
First, an i
interviewee's employer has sought to arrange for a management representative to attend agency interviews of its employees. Second, an employer has provided corporate counsel, either unilaterally or with the agreement of employees, to represent all erployees during NRC interviews.
Third, an employer has offered l
i to previce its erployees free of charge, non-corporate counsel, either selected t
by the erployer or individually retained by the employee.
Where licensee provices corporate counsel or selects the interviewees' non-corporate counsel, the potential for conflicts of interest among counsel's multiple clients in responding fully and candidly to agency inquiry become a major concern.
Guidance is required in this area because attempts to resolve multiple representation issues on an ad hoc basis have led to unnecessary celays in I
completing investigations.
The foregoing discussion constitutes the regulatory analysts for this proposed rule.
REGULATORY FLEXIBILITY CERTIFICATION In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
l 605(b), the Comission hereby certifies that this rule, if promulgated, would I
not have a significant economic impact on a substantial number of small entities. The proposed rule, which simply sets forth the rights of licensee erployees and other individuals who are ccmpelled to appear before NRC l
t f
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[759001) representatives unoer subpoena, would have no significant economic impe:t on a substantial nuster of small entities.
BACKFIT ANAL.YSIS The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this proposed rule.
Therefore, a backfit analysis is not required because these amendmens do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a)(1).
LIST OF SUBJECTS !!! 10 CFR PART 19 Environmental protection, ?!uclear materials, Nuclear power plants and reactors, Occupational safety anc health Penalty, Radiation protection, Reporting and recordkeeping requirements, Sex discrimination.
For the reasons set cut in the preartle 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. 552 and 553, the NRC is proposing to adopt the follcwing amencuents to 10 CFR Part 19.
PART 19 -HOTICES. INSTRUCTIONS AND REPORTS TO WORKER $i INSPECTIONS 1.
The authority citation for Part 19 continues to read as follows:
AUTHORITY:
Secs. 53, 63. 81, 103, 104, 161, 186, 68 Stat. 930, 933, 935, 936, 937, 948, 955 as amended, sec. 234.83 Stat. 444 as amended (42 U.S.C. 2073, 2093, 2111, 2133, 2134, 2201, 2236, 2282); sec.,201, 84 Stat.1242, as amended (42 U.S.C. 5841); Pub. L.95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851).
For the il 19.11(a),(purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273);
c),(d), and (e) and 19.12 are issued under sec.161b, 68 Stat.
948, as amended (42 U.S.C. 2211(b));(42 U.S.C. 2201(o))
ano il 19.13 and 19.14(a) are issued under sec. 161o, 68 Stat. 950, as arended 2.
The title of Part 19 is revised to read as follows:
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[759001)
-11 I
PART 19 -- NOTICES. INSTRUCT!CHS AND REPORTS TO WORKERS; INSPECTIONS AND INVESTIGATIONS 3.
Section 19.1 is revised to read as follows:
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l 19.1 Purpose.
l The regulations in this part establish requirements for notices, instructions, and reports by licensees to individuals participating in licensed activities and options available to these individuals in connection with l
Comission inspections of licensees to ascertain compliance with the provisions l
of the Atomic Energy Act of 1954, as amended, Title !! of the Energy
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l Reorganization Act c : 1974, and regulations, orders, and licenses thereunder
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regarding radiological working conditions.
The regulations in this part also
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estabitsh the rights and responsibilities of the Coamission and individuals during interviews compelled as part of agency inspections er investigations pursuant to Section 161c of the Atomic Energy Act of 1954, as amended, on any matter within the Comission's jurisdiction.
4 Section 19.2 is revised to read as follows:
i 19.2 Scope.
The regulations in this part apply to all persons who receive, possess, use, or transfer material licensed by the Nuclear Regulatory Cosmission pursuant to the regulations in Parts 30 through 35, 40, 60, 61, 70 or Part 72 of this chapter, including persons licensed to operate a preduction or utilization facility pursvant to Part 50 of this chapter and persons licensed to possess power reactor spent fuel in an independent spent fuel storage installation (ISFSI) pus. ent to Part 72 of this chapter.
The regulations regarding investigative intetviews of individuals apply to all investigations I
[759001] within the jurisdiction of the Nuclear Regulatory Corsnission other than those involving NRC employees or NRC contractors.
5.
In i 19.3, remove the alphabetical designators, rearrsnge definitions in alphabetical order, and insert the definition for sequestration in the alphabetical sequence to read as follows:
1 19.3 Definitions.
"Sequestration" means the separation of multiple witnesses from each other during the conduct of investigative interviews, and the exclusion of counsel who (1) represents one witress from the interviews of other witnesses or who (2) represents the employing entity of the witness or manager:ent personnel from the interview of that witness, when such representation cbstructs, irpairs, or impedes an agency investigation.
6.
New i 19.18 is added to read as follows:
I 19,18 Sequestration of Witnesses and Counsel.
(a) Any person compelled to appear in person at an interview during an agency investigation may be accorpanied, represented, ano advisto by counsel of his or her choice; provided, however, that all witnesses shall be secuestered, and unless pernitted in the discretion of the official conducting the investigation, no witness or counsel accompanying the witness (including counsel who also represents the person or employing entity that is the subject of the investigation) shall be permitted to be present during the examination of any other witness called in such proceeding.
(b) When the agency official conducting the investigation determines, af ter consultation with the Office of the Gereral Counsel, that a reasonable basis exists to believe that the investigation ciay be obstructed, irpeded or
1 D590 01)
.n.
i impaired, either directly or indirectly by an attorney's representation of more than one witness or by an attorney's representation of a witness and the e+=loying entity of the witness, the agency official may prohibit that attorney from being present during the interview of any witness other than the witness on whose behalf counsel first appeared in the investigatory proceeding.
To the extent practicable and consistent with the integrity of the investigation, the attorney will be advised of the reasons supporting the decision to prohibit his or her representation of enore than one interviewtw during the investigation.
(c) Where a person's counsel is excluded under paragraph (b) of this section from his or her interview and the person is not provided reasonable prior notice of an intent to exclude counsel, the interview shall, at the person's request, be delayed for a reasonable period of tise to permit the retention of new counsel.
I W
Dated at Rockville, Marylano this.
day of a tL Da v 1988.
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for,the Nuclear Regulatory Comission.
l lw A m _'c t -
5AMULL w Secretary of e Cemission. ]
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