ML20203N419
| ML20203N419 | |
| Person / Time | |
|---|---|
| Issue date: | 12/13/1984 |
| From: | Cotter B Atomic Safety and Licensing Board Panel |
| To: | Cunningham G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| Shared Package | |
| ML20203N408 | List: |
| References | |
| FRN-48FR36358, RULE-PR-2 AB78-1-058, AB78-1-58, AB78-158, NUDOCS 8610080266 | |
| Download: ML20203N419 (2) | |
Text
'
k]W 4 UNITED STATES j j j v' NUCLEAR REGULATORY COMMISSION [VC
- 'e ATOMIC SAFETY AND LICENslNG BOARD PANEL
$, W ASHINGTON. D.C. 20555 December 13, 1984 MEMORANDUM FOR: Guy H. Cunningham, III ExecutiveLegalDirergor FROM:
B.PaulCotter,Jr.dJudge Chief Administrativ
SUBJECT:
PROPOSED REGULATIONS GOVERNING PROCEDURES FOR RESTRICTION 0F DISCLOSURE OF INFORMATION RELATED TO INVESTIGATIONS AND INSPECTIONS We have reviewed the revised Federal Register notice of proposed rulemaking forwarded with your memorandum of December 5, 1984. It appears that the principal substantive concerns we enumerated in response to earlier drafts have been resolved. Accordingly, we have only a few comments.
)
- 1. We continue to feel that the conforming amendments proposed for
% 2.740 and $ 2.780 are unnecessary. This is particularly true witti a
respect to scope of discovery now that the proposed regulations provide specifically for the restriction of disclosure by means of a protective order. Information subject to protective order is clearly not subject to unrestricted discovery under the general provisions of 5 2.740(b)(1).
Similarly, ex parte procedures permitted by regulation are clearly not subject to tFe' general prchibition of 6 2.780. Either the new procedures are lawful, in which case the proposed regulations at 6 2.795 are sufficient, or they are unlawful, in which case the exception inserted in 9 2.780 is useless. Why force users of the regulations to check out cross-references that are going to be inapplicable 95% of the time?
- 2. Section 2.795d(b) continues to restrict ex parte, in camera proceedings to NRC personnel. All that is required is that other parties not be present. There may be occasions when presentation of a non-NRC witness will be essential or desirable to' explain the basis for '
a protective order request.
- 3. Proposed 6 2.795j also appears to be unduly restrictive.
Information not disclosed to the parties to an adjudicatory proceeding cannot be used by the presiding officer in formulating a decision on contested issues. That basic APA due process requirement does not, however, apply to all regulatory action. In the face of a perceived threat to the public health and safety, the NRC can, in effect, act first and ask questions later. It may well be that elements of the GOO 266 860930 2 48FR36358 PDR
i 7 ,
/ December 13, 1984 Guy H. Cunningham, III 2 Commission apart from the adjudicatory process will feel compelled to take action to prevent possible further deterioration of a particular -
situatioh even before an inspection or investigation is complete and the results disclosed. Would that be a prohibited " regulatory decision?"
Section 2.795j should be explicitly limited to the adjuuicatory proceeding itself.
- 4. We continue to feel that the proposed regulation is unnecessarily verbose by at least one order of magnitude. This seems to be due primarily to the decision to split the regulation into 10 sections, a format that requires considerable redundancy in order to permit each section to stand on its own. We again recommend that the new procedures be presented in a single section with paragraphs devoted to standards, request for order, presiding officer action, Commission review, subsequent disclosure and prohibition against use.
cc: Harold R. Denton, Dir. , NRR John G. Davis, Dir., NMSS Robert B. Minogue, Dir., RES Richard C. DeYoung, Dir., IE Kenneth E. Perkins, Jr., IE Ben B. Hayes, Dir., 01 Sharon Connelly, Dir. , 0I A Patricia G. Norry, Dir. , Adm.
Joseph M. Felton, Dir. , DRR John D. Phillips, Chief, RPB Joseph J. Fouchard, Dir., PA l
Alan S. Rosenthal, Chm., ASLAP Gary J. Edles, ASLAP James A. Fitzgerald, GC Richard P. Levi, GC Edward S. Christenbury, ELD Lawrence Chandler, ELD k
-.n .-., . . - - -.