ML20203N409

Provides Comments on Proposed Amend to 10CFR2 Re Establishing Special Ex Parte in Camera Procedures for Resolving Conflicts Concerning Disclosure & Nondisclosure of Info

ML20203N409
Person / Time
Issue date:	12/11/1984
From:	Fitzgerald J NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Cunningham G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
Shared Package
ML20203N408	List: ML20203N406 ML20203N409 ML20203N412 ML20203N414 ML20203N416 ML20203N419
References
FRN-48FR36358, RULE-PR-2 AB78-1-054, AB78-1-54, NUDOCS 8610080252
Download: ML20203N409 (30)

Text

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UNITED STATES NUCLEAR REGULATORY COMMISSION

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8 WASHINGTON, D. C. 20656 l

, December 11, 1984 MEMORANDUM FOR: Guy H. Cunningham, III Executive Legal Director FROM: James A. Fitzgeraldj f ,

Assistant General Co'uns 1

SUBJECT:

NRC STATEMENT OF POLICY ON INVESTIGATIONS, INSPECTIONS AND ADJUDICATORY PROCEEDINGS --

PROPOSED AMENDMENTS TO 10 CFR PART 2 .

ESTABLISHING SPECIAL EX PARTE IN CAMERA '

PROCEDURES FOR RESOLVING CONFLICTS CONCERNING ,

, THE DISCLOSURE OR NONDISCLOSURE OF

. . . , INFORMATION

- - i Pursuant to your request, we are providing conwnants on the -

above-captioned proposed rulemaking. Our comments are provided. .

in the attached marked-up copy of the proposed rule. The --

comments primarily are of a clarifying nature and are largely ~ ~

self-explanatory. ~

We have one general comment on the proposed rule. Consideration 9 ."-

s'hould be given to whether the rule allows sufficient. interplay ~ C.i T -

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between the office with the information (frequently OI) and the V e office which can determine whether the information is material

. .- and relevant . (usually staff) . - The rule'seems to indicate that if"'!

OI has the information it should make all the determinations on its own, and that OI must comply with the procedural steps such -

as notifying the parties when a brief is filed. The proposed -

l' rule should be clarified, if it is'not implicitly understood, to-note that the NRC office which originates the information need not be the one to follow all the required procedures if another office acts on its behalf.

8610080252 860930 PDR PR 2 48FR36358 PDR Wetheredorewillonlybrieflymentiontwopointswhichare.

1 covered by conforming suggested changes in the attached markup.

First, Section 2.795e of the proposed rule does not contain

" criteria" for determining whether information should be -

released. Rather, it discusses factors which should be considered by the Board in making its decision. Second, the limits on disclosure do not apply to all in. formation."provided

, by" a confidential source, but rather to information which would l reveal-the identity of a confidential source.

Contact:

Richard P. Levi, OGC, 41465

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.. 2 Finally, we are~still reviewing the proposed changes to Part 0, and we expect to be providing comments on those proposed changes shortly. ,

cc: Jane Mapes J

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,The Comissioners c.) %

From: -

William J. Dircks l

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Executive Director for Operations

Subject:

RELATIONSH.It BETWEEN INVESTIGATIONS / INSPECTIONS AND ADJUDICATIONS (SECY-84-276/276A) - PROPOSED AMINDMENTS TO' ' '

10 CFR PART 2 ESTABLISHING SPECIAL EX PARTE IN CAMERA -

PROCEDURES FOR RESOLVING CONFLICTS EUN'ERRTN5'THE

. DISCLOSURE OR NONDISCLOSURE OF INFORMATION. .

On September 12, 1984 Purpo_se:< 1, the Comission directed the "'

,- Executive Director for perations to prepare a proposed rule which would implement those provisions of the "

Comission's Statement of Policy on Investigations, Inspections, and Adjudicatory Proceedings which call for the establishment of special procedures for resolving conflicts respecting the obligation of the NRC staff to disclose information deemed relevant and material to a pending adjudication and the need of the NRC staff to -

withhold that information from disclosure because it relate.s to an NRC investigation or inspection or was t

provided by a confidential source.. This proposed . rule (Enclosure 1) was drafted in response to that direction. .:..

In addition to providing procedures which an NRC office -

may use to request a presiding officer, by motion, to withhold information from disclosure, the proposed rule also provides procedures, not currently included in the -

m Comission's Rules of Practice, which an NRC office may use to request the presiding officer to impose conditions. -

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on the manner in which information may be disclosed.

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.r The proposed rule tracks the provisions of the Policy Statement as closely as possible. The obligation to I i disclose information is paramount and can only be limited F8 o 7.b y (t f the eritecia specified 6 5 2 395e-of the peeposed

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e-ere sathrfied. However, information which would M e. '.

jv8- ,,,,, J reveal the identity of a confidential informant may only be released by Comission order. Objections to the 1/ Staff requirements memorandum for William J. Difcks, Executive Director for Operations from Samuel J. Chilk, Secretary. September 12, 1964, re SECY-84-276/276A. ,

Contact:

Jane R. Mapes, OELD '

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disclosure of information advanced by MRC offices and .

disallowed by the presiding officer are also subject to-^gi -

Comission review. . ..

LU nder the special procedures, a motion for a protective i

order to impose conditions on or to withhold disclosure of information must be considered i.,n, camera without other l parties present and may include an ex parte in camera oral presentation. The rule also pWrides tFat the ex parte in camera record on which a protective order is Eised shaU be deemed sealed pending further order. Two l

conforming amendments have been to the Commission's l regulations relating to the Conduct of Employees.10 CFR Part 0, to make it unlawful for NRC employees and special ~

. . < Government employees to knowingly disclose -information .

' ' ' deemed sealed under this provision. Subject to the strictures imposed on the release of information that would reveal the identity of a confidential source and the assertion of any privileges that may validly be claimed under the Comission's regulations, the special procedures permit information subject to a protective order to be

. placed in the public record of the pending adjudication

and disclosed to the parties when the NRC office which obtained the protective order notifies the presiding

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officer or the Comission, as appropriate, that its objection to disclosure of the information is withdrawn

- or that the ' inspection or investigation to which all or I?. .

- any portion of the information subject to the order relates is completed. Information subject to a protective order to withhold disclosure may not be used in making any licensing or related regulatory decision 1

' unless and until disclosed, with or without conditions, to.

all parties to the pending adjudication.

- 1

. Recomendation: That the Commission: .

1. Approve the notice of proposed rulemaking (Enclosure l

1) that would make conforming amendments to 10 CFR Part 0 and add special procedures to 10 CFR Part 2 f for resolving conflicts concerning the disclosure or non-disclosure of information in accordance with the

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i l guidance contained in the Conunission's Sta.tement of

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i Policy on Investigations, Inspections, and

• Adjudicatory Proceedings.

2. Certify that the proposed rule will not have a significant econon'ic impact on a substantial number of small entities, in order to satisfy requirements of the Regulatory Flexibility Act 5 U.S.C. 605(b).

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q The proposed rule does not ' impose any obligations on' ."..".

entities regulated by the NRC; the impact of the m.+:'l proposed rule is confined .to the NRC. . _ . ,.._. i 1

,3 . Note: ,

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a. The notice of proposed rulemaking would be published in Federal Register for a 60-day

, , p,ublic coment period.

- b. The proposed amendments to 10 CFR Part 0 and i . . Part 2 meet the eligibility criteria for  !

l ' categorical exclusion in 10 CFR 51.22(c)(1),

'. therefore pursuant to 10 CFR 51.22(b). no .

environmental impact statement or environmental . - '

• assessment need be prepared in connection with

.- the issuance of the proposed amendments.

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c. The proposed rule is not subject to the  ;

provisions of the Paperwork Reduction Act of '

1980 (44 U.S.C. $$ 3501 et seq.) because it d does not contain any information collection requirements within the meaning of 5 3502(4) of that Act. -

d. The appropriate Congressional Comittees wi1k be informed. -

. E:

e. The Office of Public Affairs concurs that a -

public announcement is not needed.

f. Copies of the Federal Register notice of - -

1 proposed rulemaking will be distributed to all  !

persons currently listed on NRC service lists  !

for all pending licensing proceedings. The l notice will be sent to other interested persons

. I

, upon request.

Scheduling: *

- If scheduled on the Comission agenda, recommend

.. , . this paper be considered at an open meeting. No specific circumstance is known to staff which would i

require Comission action by any particular date in the near term. -

t William J. 6f rcks Executive Director for Operations

Enclosure:

1. Federal Register Notice of .

Proposed Rulemaking -

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Enclosure 1. -

Federal Register Notice of Proposed Rulemaking t

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i NUCLEAR REGULATORY COMMISSION "- v .. . -Map-,

10 CFR Part 2 - -- -

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Adjudications - Special Procedures for Resolving Conflicts Concern?ng the Disclosure or Nondisclosure of Information AGENCY: Nuc1' e ar Regulatory Comission.

ACTION: .

Pro osed rule. . .

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SU%RYJ The Nuclear Regulatory Comission is considering amending its rules of pra'ctice to provide special procedures for resolving conflicts concerning .

ost re of nformation relati an NRC investiga-the disclosure or ondisc' noi yet conlu yv *cn wou (Wd /fs (M.

tion or inspection}or[peevided-br a confidential infonnant and deemed relevant

- and material to an adjudication. Prepared at the express direction of the .

Comission, the proposed amendments apply to all NRC offices that have information relevant and material to an adjudication. The proposed amend- [,

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ments provide for ex parte jn camera presentations and implement 'the ~

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Commission's direction in its recent statement of policy on investigations, ,

inspections and adjudicatory proceedings.

DATES: Coments must be received on or before ,

Coments receive,d.'after this date will be considered if it is practical to

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dc so, but assurance of consideration cannot be given except as to comments received on or before this date.

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

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ADDRESSES: Interested persons are invited to send written coments or -.

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suggestions to the Secretary of the Comission, U.S. Nuclear Regulatory - - j-i'. ..

Comission, ' Washington, D.C. 2b555, Attention: Docketing and Service Branch. Coments may also be delivered to Room 1121, 1717 H Street NW.,

Washington, D.C. between 8:15 a.m. and 5:00 p.m. Copies of any coments ,

received may be examined a't the NRC Public Document Room,1717 H Street. .

NW., Washington, D.C. 20555.

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FOR FURTHER INFORMATION CONTACT: Jane R. Mapes, Senior Regulations Attorney, Regulations Division, Office of the Exe~cutive Legal Director U.S.

- Nuclear Regulatory Comission, Washington, D.C. 20555; Telephone: (301) .

492-8695.

. SUPPLEMENTARY INFORMATION:

On' September 13, 1984, the Comnission published. s a Statement of Policy on Investigations, Inspections and Adjudicatory Proceed-ings (49 FR 36032-36034, September 13,1984.) In that Statement of Policy, the Comission re-emphasized the importance and need for full disclosure of

.information in an adjudication so that .all issues may be fully resolved and stated that  ;

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. "[a]11 parties in NRC adjudicatory proceedings, including the NRC Jtaff, have a duty to disclose to the boards and

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other parties all new information they acquire which is considered material and relevant to any issue in contro .*

(49FR36032, September 13, versy)intheproceeding."

1984.

At the same time, the Comission recognized the need in certain circumstances l Lit to pr.otect-infermetion agains.t pub 44c disclosure to avoid compromising an NRC l l

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inspection or investigation or to protect a confidential informant. In mest.~ .

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instances, these conflicting concerns can be reconciled by placing restric ;- ? -

l tions on the manner,in which the infomation is disclosed, such as, for l example, rescheduling consideration of certain issues during the course of a hearing or specifying the manner, ,

time, place, or persons to whom the information may.be disclosed. There are, however, certain situations in which C.

any disclosure of inforination, however restricted, )fould affect the conduct i.

of an inspection or investigation. In its Stat ent of Policy, thgCosmission ,

expN'sh;N the view that in these situation t RC taff s be required to

" provide the board with an explanation,of the basis of its 1 concern about disclosure and present the information to j in camera, without other parties present."  ;

the board, (49FR3603 Tat 36034, September 13,1984.) '

The Comission also noted that .

"because this procedure represents a departure from nomal Comission procedure, it is the Comission's view that the )

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decision should be implemented by rulemaking." (49 FR ' '

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- 36032 at 36033, September 13,1984.)

f The proposed rule establishes procedures, not currently includea in i

the Comission's Rules of Practice, which NRC offices may use to request the

, withholding of in' formation from disclosure or the impoisition of conditions i i

under which information may be disclosed. These special procedures are J

applicable to and intended to be used by all NRC offices. The procedures are

.y applicable in thqfe limited circumstances in which an NRC office is under a j duty to disclose relevant,and material infomation to a board and/or parties l in an ongoing adjudication,'for exampl'e, under established board notification procedures, in response to a discovery request, or as otherwise directed by the presiding officer, and it is deterinined that disclosure of the information i

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..l without a protective order would prejudice an inspection or investigation or,-;fg ,._ .. . . . . . .

reveal the identity or otherwise compromise a confidential informant. Once ..

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these findings h' ave been made,' the proposed special procedures may be used by the NRC office having the infomation to request the imposition of conditions -

on disclosure or to withhold disclosure of the information. '

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. The teria to be fed to.determinfHthether information is eligible for a protectiveIrder imposing conditions upon or withholding disclosure of the information are set out in i 2.795e of the proposed rule and track the 'Y'I' standards enunciated in the Statement of Policy. A' protective order may either impose conditions on the manner in which the information may be disclosed q- or withhold disclosure of the information. In general, a-protective order will be appropriate if it can be shown that the information relates to an inspection or investigatiert and that disclosure of the information without a -

. protective order would be detrirdental to the effective conduct of the ' ,

inspection or investigation, or if it can be shown that the information would reveal the identity or otherwise compromise a confidential informant.  ;

The information need not relate solely to an ongoing inspection or

. investigation but may also include information on the basis of which the NRC may determine whether to initiate an inspection or investigation.

- After the conflict.between

• the obligation to disclose a particular item of a .

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information and t'he need to impose conditions upon or withhold disclosure of

'that information has become apparent, the NRC office having possess' ion of or access to the information may use the proposed special procedures to

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resolve the conflict. - -

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Under the special procedures, the appropriate NRC office may move -

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the presiding officer of the pending adjudication to grant relief from the ---

disclosure r'equirement either by ordering information disclosed subject to s

conditions or by ordering information withheld from disclosure. The motion, j which may be made orally or in writing, must contain a brief description of a_

the nature of the information subject to the request and explain the relevance 4 of the information to the pending adjudication. The motion must also state why and t,o what extent disclosdre of the information without a protective = r-order will compromise or impede the conduct of an NRC investigation or I

inspection, or reveal the identity or otherwise compromise a confidential l

informant. At the time the motion is made, the NRC office' must notify all parties to the pending adjudication that the imposition of conditions on or l

. - the withholding of disclosure of the informatio h en que d H v ,

J the information subject to the motion shall not be reveal The NRC. office 1

must also notify the Director, Division of Rules and Records, NRC' Office of Administration, who is the agency official responsible for processing Freedom ,

ofInformationAct(FOIA)reques.ts. '

Upon receipt of a motion from an NRC office to impose conditions upon 4

or to withhold disclosurg,of information, the presiding officer, without e%tt non he htC .sb1r

, etherparties)presept,mayeitherruleonthemotiononthebasisofthe 1 c. . .

-o informatigp pr'ovi8e reguest %4he ,%pw& irs,gonduct an ex parte in camera oral presenta

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Under the proposed amendments, the presiding officer is ahe authorized to l

conduct an ex parte in camera oral presentation at any time on his or her own initiative. The presiding officer must notify all parties .to the .

pending adjudication whenever an g, parte 3 camera oral presentation is to e

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be held. The notice shall state the purpose, time, and place of the ex

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parte jn camera oral presentation and the approximate date a ruling . , , , , . , ,_

concerning the disclosure or nondisclosu're of the information subject to the presentation may be expected. The substantive content of the information shall not be disclosed. To provide a record, a verbatim transcript will be made of each ex parte in camera oral presentation.

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After consideration of a motion to impose conditions upon' or to '

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with, hold, disclosure of information, including any ex parte' in ca; sera oral "~' ..t l '

presentation, and after finding that the infomation subject to the motion '

is both relevant and material to the pending adjddication, the presiding officer will decide, in light of the Comission policy favoring full disclosure, whether disclosure of the information without a protective order could advarsely affect the NRC's ability to conduct an investigation or

. inspection fully and adequately or to protect the identity or otherwise a nom.AY T-preserve the ietegefty/of a confidential informant and whether and to what

! extent all or part of the information should be withheld from disclosure or '

only disclosed subject to conditions. -

. If the presiding officer gran'ts the motion, the presiding officer. shall issue a protective order as requested. If the presiding officer determines

- that the motion shou'Id

• be denied in whole or in part, the presiding officer O.

' sha'11 notify the 5RC office submitting the request of the intent to order disclosure. The notice of intent to order disclosure shall specify"the l

! information to be disclosed, the terms and conditions of any proposed order and the basis for the conclusion that~ prompt disclosure is required. The notice of intent shall state a reasonable time by which the NRC office must i l

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submit a statement of objection or concurrence. If the NRC office concurs.=.--~+y .. .

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. in the disclosure specified in the notice of intent and if the disclosure _ -

does not reveal the-identity of a confidential informant, the presiding officer shall iss'Je the order proposed. If the NRC office objects to the disclosure specified in the not4ce of intent and any such objection is disallowed, the presiding officer shall promptly certify the objection. the ,

ruling disallowing the objection and the accompanying record to the .

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Every ruling requiring disclosure C--~

Coninissjon t for ex, parte in camera review.

of the identify' of a confidential informant must be certified to the .

Comission for review. Concurrence in such a ruling by an NRC office does not change this latter requirement.

The presiding officer shall promptly notify all parties to the pending ,

adjudication and the Director, Division of Rules and Records. NRC Office of e

- . Administration whenever a ruling relating to the discTosure or nondisclosure , ,,

of information has been issued or has been certified to the Comission for ex parte in camera review. A notice of certification shall state the reason.

for the certification, the certification date, and that, in accordance with

- 5 '2.795f, the NRC office or any other party to the adjudication may file a .

timely brief with the Comission. The NRC office must notify all parties to the adjudication wh'enever an NRC brief is filed. However, the NRC br ef need

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not,be served on the partie . Within seven days after service of th n o+,ce d 4.'I. y 41*-

C k' notice, r.'et any other party to t adjudication may file a brief with th'e Comission. The order of e presiding officer shall be stayed pending Comission review.

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The Comission shall consider any matter+I,.. certified k Mactoshd+ it for review wit .T -

o+ku under these procedures 3 camera without other parties}present. The record ;-- .;5 ,:. ; :

for Comission review shall co'nsist of the infomation provided to the presiding officer ex parte and in camera, all documents filed with the presiding officer by the NRC office requesting a protective order, including any statement (;of concurrence or objection, the transcript of any ex parte 3 camera orah presentation, the presiding officer's notice of intent to - ~

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regu, ire. disclosure and the presiding officer's order. Upon its own initia'tive or upon request by the NRC office requesting the imposition of conditions upon the disclosure of information or'the withholding of information from disclosure, the Comission may conduct an y parte in camera oral presentation on any matter certified to it for review under 5 2.795e. ,

After completing its review, the Comission will decide whether to affirm, reverse, or amend the ruling. .

Whenever the presiding officer or the Comission issues an order imposing .

conditions upon or withholding disclosure of information, the g parte in camera record on which the order is based.shall be deemed sealed pending

.further order.

The NRC office at whose request the presiding officer or the Comission has issued a protective order respecting the disclosure of infonnation f shalll icso., im

,' wd n + dsh & L&1 - M l notify the presiding officer or t UgtMfsion,asappropriate,}itheniis L.* omi W ,,,h objection to disclosure to the parties to the pending adjudication 'o'f all or any portion of the information subject to the order is withdrawn or when the inspection or investigation to which all or any p.ortion of the information subject to the order relates is completed. Unless the information relates

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to the identity of a confidential infomant or un1'ess the Comission orders #-

otherwise, infomation which an NRC office has consented to release may be '

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disclosed to the par, ties and placed in the public record of the pending adjudication with,out further order. The identity of a confidential

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infomant may only be released ,by order of the Comission.

Under the proposed proced'ures, after notice by the appropriate' NRC l office that an inspection ~ or investigation has been completed or that

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I objection to the disclosure of infomation has been withdrawn, whichever is -;. l

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earlie,r., and subject to certain. specific limitations, the presiding officer y

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or the Comission, as appropriate, is required to order the g parte h I

camera record, including the verbatim transcript of any ex_ parte h camera oral presentation, included in the public record of the pending adjudication. This requirement is subject to the prohibition against

. inclusion in the public record of the adjudication of any part of the .

ex- parte jn, camera record containing information pertaining to the identity of a confidential informant except pursuant to Comission order. This requirement is also subject to any privilege that may validly be claimed .

under the Comission's regulations, including any privilege that may be available under 10 CFR' il 2.790, 9.5, 9.61 or 9.95.

The proposed procedures prohibit using infomation which has been

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withheld from disilosure in making any licensing or related regulatory decision unless and until that information is disclosed, with or without conditions, to all parties to the pending adjudication.

The proposed rule would also make two conforming amendments to 10 CFR i Part 0 of the Comission's regulations to make it unlawful for NRC employees e

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i and special government employees to knowingly disclose information deemed

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sealed as g parte jn camera material under i 2.7951.

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ENVIRONMENTAL IMPACT - CATEGORICAL EXCLUSION The proposed amendments would amend the Comission's rules relating to the Conduct of: Employees codified in 10 CFR Part 0 and the Commission's Rules of Practice codified in 10 CFR Part 2 and therefore meet the eligibility

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. criter.f. . <

a,for the c*.tegorical exclusion set forth in 10 CFR 5 51.22(c)(1).. - r .

Accordingly, pursuant 10 CFR 5 51.22(b), no environmental impact statement or environmental ~ assessment need be prepared in connection with 'the issuance of

. the proposed amendments. .

PAPERWORK REDUCTION ACT STATEMENT .c The' proposed rule is not subject to the provisions of the Paperwork '

Reduction Act of 1980(44U.S.C.553501 et seq.) because it does not contain any information collection requirements within the jneaning of

,f 3502(4) of that'Act. , ,

l, REGULATORY FLEXIBILITY ACT CERTIFICATION

[ l- , .

As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the C'o mission certifies that this rule, if adopted, will not have a significant economic impact upon a substantial number of small entities and that there-I fore a regulatory flexibility analysis need not be prepared. Frocedural in e

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11

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nature, the-proposed amendments provide a mechanism for the orderly resolution r . y. ., . Q , .

of conflicts respecting the obligation of NRC offices to disclose information~~O~~~- -

. deemed relevant and material to a pending adjudication and the need by those' ~Y

~

same offices to p,rotect infomation relating to an NRC investigation or

- inspection or provided by a confidential informant. The proposed rule does not impose any obliga,tions on entities regulated by the NRC, including any regulated entities that may fall within the definition of "small entities " as

' 1- -

_ set'fo,rth in section '601(3) of the Regulatory Flexibility Act, or within the,-3..; -: --

definition of "small business" as found in Section 3 of the Small Business Act, 15 U.S.C. 632, or within the Small Business Size, Standards in regulations -

issued by the Small Bu.siness Administration and codified in 13 CFR Part 121.

Since the impact of the proposed rule is confined to the NRC, the proposeo '

rule does not fall within the purview of the Regulatory Flexibility Act. .

. . ~

'~-

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LIST OF SUBJECTS ,

10 CFR Part 0 Conflict of ' interest, Penalty.

10 CFR Part 2 Administrative, practice and procedure Antitrust, Byproduct material, 4 Clatsified inform [ tion Environmental protection, Nuclear materials. Nuclear power plants and reactors, Penalty, Sex discrimination. Source mater.fal, Special nuclear material, Waste treatment and disposal.

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For the reasons set out in the preamble and under the authority of'the 7

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Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of .. . ' .i . ~.

1974, as ame'nded and 5 U.S.C. 553, the Nuclear Regulatory Commission is pro-posing to adopt the following amendments to 10 CFR Part 0 and 10 CFR Part 2. .

PART 0 - CONDUCT OF EMPLOYEES

1. The authority citation for Part 0 continues to read as follows: .._.__.,., . ,

• ~

Authority: The provisions of this Part 0 issued under E.O. 11222, May 8,1965, 3 CFR 1964-1965 Comp.'at pp. 306-311; 5 CFR 735.104; Sec. 201(f), Pub. L.93-438, 88 Stat.1243 (42 U.S.C. 5841(f). Sec. 0.735-26 ilso issued under Title V of the Ethics in Government Act of 1978, as amended,

~ secs. 501 and 502, Pub. L.95-521, 92 Stat. 1864-1867, as amended by secs. 1 and 2, Pub. L. 96-28, 93 Stat. 76-77 (18 U.S.C. 207).

,' l I

2. In 5 0.735-41, the existing text, including the quotation, is design'ated as paragraph (a) and a new paragraph (b) is added to read as follows: -

5 0.735-41 Misuse of information.

(a) .

• Y* * * *

(b) No NRC employee shall knowingly disclose information deemed sealed as e_x_ parte in, camera material under 5 2.795i of this chapter.

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3. In f 0.730-51, a new paragraph (c) is added to read as follows: ,' " _.,,'.

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i 5 0.735-51 Use of inside information.

(c) No. special Government employee shall knowingly disclose information deemed sealed as ex parte ,in camera material under 5 2.7951 ,

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.of this chapter. .

l PART 2 - RULES OF PRA'CTICE FOR DOMESTIC LICENSING PROCEEDINGS.

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4. The authority citation for Part 2 is revised to read as follows:

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

1 2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C. ;

2241); sec. 201, 88 Stat.1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, .

. 68 Stat. 930, 932, 933, 93'5, 936, 937, 938, as amended,(42 U.S.C. 2073, ...

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

653, as amended (42 U.S.C. 4332); sec. 301, 88 Ste.t.1248 (42 U.S.C. 5871).

Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103,

- . 104,105,183,189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C.

) 2132,2133,2134,2135,2233,2239). Section 2.105 also issued under Pub. L.97-415, 96 Stat. 207.3 (42 U.S.C. 2239). Sections 2.200-2.206 also issued

"~

unde'r secs. 186, $4, 68 Stat. 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 5846).- Sections 2.300-2.309 also issued under Pub. L.97-415, 96 Stat. 2071 (42 U.S.C. 2133). ~ Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853 as amended (42 U.S.C. 4332). Sections 2.700a, 2.719, and 2.795j also issued under 4

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5 U.S.C. 5 4. Sections 2.754, 2.760. 2.770 also issued under"5 . S.C. 557.

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Section 2.790 also issued under sec.103, 68 Stat. 936, as amended (42 U.S.DEdGE '

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2133)and5U.S.C.552. Sections 2.800 and 2.808 also issued under 5 U.S.' C .T Y

.553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29. Pub. L.

~

85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Appendix A also issued under sec. 6, Fub. L.91-580, 84 Stat 1473 (42 U.S.C. 2135).

5. In i 2.730', a new paragraph (i)'is added to read as follows: -

~

f,2.730 Motions.

(i) The provisions of i 2.730(a) through (h) are not applicable f to motions filed pursuant to il 2.795a through 2.795j.

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6. In i 2.740, paragraph (b)(1) is revised to read as follows:

~'

l i 2.740 General provisions governing discovery.

(b) Scope of discovery. * .

. (1) In ' general . Parties may obtain discovery regarding any

. matter, not privileged or not withheld from disclosure or subject to conditions respecting disclosure under the special procedures in.

.." , 'il 2.795a through 2.795j, which is relevant to the subject matter -

involved in the proceeding, whether it relates to the claim or. defense I

. of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody,, ,

condition, and location of any books, documents, or other tangible  !

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things and the identity a.nd location of persons having knowledge of any

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discoverable matter. In a proceeding on an application for a . '. . '."'

constrdction pemit or an operating license for a production or -

utilization facility.-discovery shall begin only after the prehearin'g conference provided for in.i 2.751a and shall relate only to those matters in controversy which have been identified by the Comission or I the presiding officer in the prehearing order entered at the conclusion

,4 f,that prehearing conference. In such a proceeding, no disco'very

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shh11 be had after the beginning of the prehearing conference held pursuant to i 2.752 except upon leave of the presiding officer upon

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good cause shown.' It is not ground for objection that the infonmation sought will be inadmissible at the hearing if the information sought .

. . appears reasonably calculated to lead to the discovery of admissible evidence. - - .-

7. In i 2.780, paragraph (a) is revised to read as.follous:

~'

i . I 2.780 Ex parte communications. .

(a) Except as provided under the special procedures in il 2.795a through 2.795j.'or in paragraph (e) of this section, neither (1)

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Comissionerls, members of their immediate staffs, or other NRC .

officials and employees who advise the Comissioners in the ex'eYcise of their quasi-judicia1' functions will request or entertain off the record except from each other, nor (2) any party to aIproceeding for the issuance, denial, amendment, transfer, renewal, modification.

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suspension, or revocation of a license or permit, or,any officer. . .<.t,

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- employee, representative, or any other person directly or indirectly

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acting 'in behalf thereof, shall submit off the record to Consissioners -

or such staff members, officials, and employees, any evidence.

explanation, analysis, or advice, whether written or oral, regarding any substantive matter at issue in a proceeding on the record then

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pending'before th'e NRC for the issuance, denial, amendment, transfer. -

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. .re,newal, modification, suspension, or revocation of a license or- .--:_.. . . . . .

p'ermit. For the purposes of this section, the tem " proceeding on the i

record then pending before the NRC" shall include any application or

- matter which has been noticed for hearing or concerning which a hearing has been requested pursuant to this part.

8. In Subpart G, immediately following i 2.790, a new center heading and new sections 2.795a through 2.795j are added to read as follows:

. SPECIhLPROCEDURESFORRESOLVINGCONFLICTSCONCERNING THE DISCLOSURE OR NONDISCLOSURE OF INFORMATION RELATING TO T01*ht' IWW377 Of AN NRC INVESTIGAUCN '

OR INSPECTION OR PROYtDED-BY A CONFIDENTIAL INFORMANT -

AND DEEMED RELEVANT AND MATERIAL TO A PENDING ADJUDICATION i 2.795a Applicability of special procedures.

Sections 2.795a through 2.795j specify procedures for resolving conflicts

-concerning the disclosure or nondisclosure of information relating to an

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! investigation or inspection)or, prov4ded by a confidential infonnant and deemed -.. ,

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, relevant and material to a pending adjudication. These procedures apply to ;:%g.g.  ;- ~;

_ all NRC offi~ces. The procedures are to be used whenever an NRC office may-be required to produce information in a pending adjudication and the NRC office having the information believes that disclosure of the information

. ~

without a protective order would prejudice an investigation or inspection or reveal the identity $f a confidential informant. '

I 2.795b. Requirement to disclose relevant and material information., -

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Information relating to an investigation or' inspection or.prov4ded4y a confidential informant and deemed relevant and material to a pending adjudication shall be disclosed to the parties to the adjudication by the ,

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4 NRC office having the information unless that NRC office requests the presiding officer by motion"to issue a protective order imposing conditions

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upon the manner in which the information is disclosed or withholding the information from disclosure because disclosure without a protective order ,

would prejudice an inspection or investigation or reveal the identity of a

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. confidential informant.

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5 2.795c Motion for protective order; notice of motion.

(a) A motion ,for a protective order to impose conditions on or to

- wit'hhold disclosure of information shall be addressed to.the presiding officer by the NRC office having the information. At the time a mo'tlon is.

made and without revealing the substance of the information subject to the motion, the NPC office shall notify the parties.'to the adjudication and the Director, Division of Rules and Records, Office of Administration, U.S.

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Nuclear Regulatory Comission, that a protective order to impose conditions .

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on or to withhold' disclosure of information has been requested.

(b) A motion for a protective order may be made orally or in writing Y'.~~ .

may include a' request for an ex parte jn camera oral presentation,' and shall t

i include the following information, as appropriate:

(1) lA brief description of the nature of the information subject to the mo' tion;

. ,.,., , (2)l A brief explanation why the information is relevant and . . ..

ma'terial to the pending adjudication; (3)' A brief statement in'dicating how the infomation relates

. to an inspection or inves'tigation and the status of the inspection or investigation, including the estimated time of c ion-tVeals i as (4) A statement that the information (was-peov4ded a

- confidential informant; 2..

.(5) An explanation of the basis of the motion for a protective order to impose conditions on or to withhold disclosure of the information, including a brief explanation why and to what extent l disclosure of the information without a protective order will ,

compromise or impede the conduct of an investigation or inspection, or

. reveal the identity or otherwise compromise a confidential informant;

.. . '+ .

(6) The proposed relief requested.

9 2.795d Consideration of motion by presiding officer; procedure.

(a) A motion from an NRC office for a protective order to impose conditions on or to withhold disclosuie of information shall be considered by

.the presiding officer in camera without.o4her partie present.

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L (b) The presiding officer may require or pemit the HRC office 7 .

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-. making the motion to make an ex parte in camera oral presentation... . _ . .

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Attendance at an ex-parte 3 camera oral presentation shall be limited  ;

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. exclusively to th's presiding officer and to appropriate NRC personnel. The ~ l i

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presiding officer shall promptly notify all parties to a pending - ,

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I adjudication when any ex parte in camera oral presentation will be held.

The notice shall state the purpose, time, and place of the ex parte ja, camera pral presentation and the approximate date a ruling concerning the .. s l i-disclos'ure or nondisclosure of the information subject to the presentation

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may'be expected. The substantive content of the'information shall not be disclosed. If an ex siarte in camera oral presentation is conducted a j verbatim transcript shall be made. ,

I 2.795e Determination t[i grant or deny motion for protective order- -

5.

requirement for Comission review.

(a) After consideration of a motion from an NRC office for a ,

protective order to impose conditions on or to withhold disclosure of

, . 3

. information, including any ex parte jn.n camera oral presentation. ~and after finding that the information subject to the motion is both relevant and

. material to the pending adjudication, the presiding officer shall determine,

" '. in' light of the Comission policy favoring full disclosure, whether-disclosure of the information without a protective order could adveYsely affect the ability of the NRC to conduct an investigation or inspection i fully and adequately or to protect the identity of a confidential informant 1

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and whether and to what extent all or part of the information should be ~

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j. withheld from disclosure or only disclosed subject to conditions. - ---.-;,.--

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(b) Ev'ery ruling requiring disclosure of the identity of a # '

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- confidential informant shall be certified to the Comission for review. -

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Pending Comission review, the order of the presiding officer shall be . .

stayed.

(c)(1)~ If the presidipg officer grants the motion, the presiding isne W pae0V6 pfficer shalljorder disclosure of the information w&thhe4d or -

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3 co'ndition'e as requested. I ik niew (2) If the presiding officer detennines that the motion should be denied in whole or in part, the presiding officer shall notify the NRC office submitting the motion of the intent to order disc are. The

. ndbn C notice of intent to order disclosure shall specify the}i formation to -

. 1

. be disclosed, the terms and conditions of any proposed order and the -

l basis for the conclusion that prompt disclosure is required. The notice of intent shall state a reasonable time by which the NRC office must submit a statement of objection or concurrence. -

(3) If the NRC office concurs in the disclosure specified in the notice of intent and if the disclosure does not reveal the identity of a confidential* ' informant, the presiding officer shall issue the order

o. * -

proposed.

(4) If the NRC office objects to the disclosure specified in the i notice of intent and any such objection is disallowed, the presiding officer shall promptly certify the objection, tile ruling disallowing the objection and the accompanying record. required by 5 2.795f to the

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Comission for ex parte in camera review. The order of the presiding 5-I:.

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officer shall be stayed pending Comission review. .

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(d) Th'e presiding officer shall promptly notify all parties to the .

.., fpending adju'dication and the Director, Division of Rules and Records. . l

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I h_2 Office of Administration, U.S. Nuclear Regulatory Commission that a l

ruling relating 'to the disclosure or nondisclosure of information has I

i been issued or has been, certified to the Comission for ex parte .

..jn, camera review. A notice of certification shall state the reason'for y

i the certification, the certification date, and that, in accordance with .

i 5 2.795f, any party to the adjudication may' file a timely brief with j the Comission.

l

5.2.795f Record for Comission review; briefs.

f~. . (a) Every information' disclosure ruling certifie'd to the Comission t

~ for g parte j,n camera review pursuant to i 2.795e will be accompanied by a -

record which shall consist of the information provided to the presiding .

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..jofficer ex parte in camera, all documents filed with the presiding officer

. . ' Ithe b NRC office maki,ng the motion for a protective order, including i

.2ny statements of concurrence or objection, the transcript of any n parte

'E camera oral presentation, the presiding officer's notice of intent to

,- o' E require disclosure and the presiding officer's order. -

(b) Within ten days after the presiding officer issues an ordIr .

i certifying an information disclosure ruling to the Comission for g parte

jn camera review, the NRC office may file a brief with the Commission in support of its objections to disclosure. The NRC office need not serve the

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ef on the parties to the,pending adjudication but shall notify .

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.;.T:. parties to the adjudication that an NRC brief has been filed. Within seven td-Etii ..

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~4ays after service of the NRC notice, any party to the pending adjudication ~ ~

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may file a brief with the Comission. , ,

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.l 2.7950 Comission review. ..

(a). Ever'y information disclosure ruling certified to the Comission o for. review under 9 2.795e, together with the accompanying recor$ and any -

m an

• besit briefs', shall be considered by the Comission in camera ~

thout other ch<a4%.O UM 6 5 .

)* partiesJpresent. Upon its own initiative or upon request by the NRC off,1ce a

making the motion for a protective order, the Comission may conduct an ex parte in camera oral presentation on any matter certified to it for

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review under i 2.795e.

(b) After review of the certified information disclosure ruling,' the' .

accompanying record and any briefs, the Comission shall decide whether to affirm, reverse, or amend the ruling. The Comission order may include any 5erms or condition.s deemed necessary or appropriate.

.x.

1 .

i 2.795h Consent to disclose information; notice. .

(a) The NRC* office upon whose motion the presiding officer or the -

a. ,

3 Comission has issued.a protective order imposing conditions on or 1

withholding the disclosure of information shall notify the presiding officer i

or the Comission, as appropriate, when its objection to disclosure to the parties to the pending adjudication of all or any p[rtion of tiie infor'mation subject to the order is withdrawn, or when the. inspection or investigation t

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the information subject to the order relates din! --. . ... ..

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(b) Information which an NRC office has consented to release may be disclosed to the marties and placed in the public record of the pending

, ~ ~ %' . '

.~Jadjudication without further. order unless the information relates to the

. . . .. identity of a confidential informant or unless the Comission has ordered otherwise. The identity of a confidential informant may only be released by .

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!' order of the Comission. .

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6 2.7951- Ex parte in camera record deemed sealed pending further order.

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(a) Whenever the presiding officer under i 2.795e, or the Comunission

under i 2.795g, issues a protective order to impose conditions on or to withhold disclosure of information, the ex parte in camera record on which ,

the order is based shall Se deemed sealed pending further order.

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-(b) No part of any ex parte in camera record containing information pertaining to the identity of a confidential informant say be included in .

l the public record of a pending adjudication or be made publicly available in i

- any other way excspt pursuant to Commission order.

(c) After notice" by the appropriate NRC office that an inspection or investigation has tpen completed or that objection to the disclosure of A information has bleen withdrawn, whichever is earlier, and subject to the I requirement in paragraph (b) and to any privilege that may validly be claimed under the Comission's regulations, including any privilege that may be available under i 2.790 or il 9.5, 9.61 or 9.95.of this chapter, the presiding officer or the Comission, as appropriate, shall order the g i

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parte in camera record included in the public record of the pending . k. : .

adjudication.

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5 2.795j Prohibition aoainst use of information subject to protective ~ order. .

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Infomation subject to a protective order to withhcid disclosure may not be used in; making any' licensing or related regulatory decision unless and until disclosed, with or without conditions, to all parties to the pending adjudication. "

Dated at Washington, D.C., this day of '

19 _.'

For the Nuclear Regulatory Comission.

.- ,2 Samuel J. Chilk Secretary of the Comission.

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