ML20206G301
| ML20206G301 | |
| Person / Time | |
|---|---|
| Issue date: | 04/09/1987 |
| From: | Hoyle J NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-50FR21072, RULE-PR-2 AB78-1-003, AB78-1-3, PR-870409, NUDOCS 8704140500 | |
| Download: ML20206G301 (6) | |
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BSCNETED USHRC NUCLEAR REGULATORY COMMISSION 7 APR 10 A10:22 0FFICE CF SECEiTAR y DOCKETPiG A SE6vict' 10 CFF PART 2 BRANCH Adjudications; Special Procedures for Resolving Conflicts Concerning the Disclosure or Nondisclosure of Information AGENCY: Nuclear Regulatory Commission.
ACTION: Withdrawal of proposed rule.
SUMMARY
- The Nuclear Regulatory Commission is withdrawing a proposed .
rule published in the Federal Register on May 22, 1985 (50 FR 21072.) In this rule, tile Commission proposed amending its rules of practice to provide special procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an NRC investigation or inspection not yet concluded or which would reveal the identity of a confidential informant and deemed relevant and material to an adjudication. The Commission has decided that in view of the few remaining licensing proceedings and the consequent limited number of occasions in which the proposed procedures j might be used in those proceedings , an existing policy statement is an i adequate means of resolving these conflicts and thus there is no need at this time to codify the proposed procedures.
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DATE: This withdrawal is effective April 15, 1987.
FOR FURTHER INFORMATION CONTACT: Jane R. Mapes, Senior Attorney, Rulemaking and Fuel Cycle , Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555; Telephone: (301) 492-8695.
SUPPLEMENTARY INFORMATION: In its Statement of Policy on Investiga-tions , Inspections and Adjudicatory Proceedings published in the Federal Register on September 13, 1984 (49 FR 36032-36034) the Commission reemphasized the importance and need for full disclosure of information in an adjudication so that all issues in controversy in the adjudication may be fully resolved. At the same time, the Commission recognized the need in certain circumstances to limit disclosure to avoid compromising an NRC inspection or investigation or to protect a confidential informant. In its policy statement, the Commission identified a procedure under which the NRC staff would provide an adjudicatory board with an explanation of the basis for its concern about disclosure and would present the information to the board in camera without other parties present. Recognizing that this procedure would be a departure from normal Commission practice, the Commission directed the staff to initiate a rulemaking proceeding.
Accordingly, on May 22, 1985, a notice of proposed rulemaking was published in the Federal Register (50 FR 21072-21077) proposing amendments to the Commission's rules of practice (10 CFR Part 2) that would provide special
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l ex parte in camera procedures for resolving conflicts concerning the disclosure or nondisclosure of information deemed relevant and material to an adjudication and relating to an NRC investigation or inspection not yet concluded or likely to reveal the identity of a confidential informant. On May 31, 1985 (50 FR 23138-23139) a correction notice was published. On July 26,1985, the date for submitting comments on the proposed amendments 1
was extended to August 23,1985 (50 FR 30446-30447).
The Commission received nine letters of comment expressing the views of interested utilities, professional organizations, private counsel, intervenors and individual members of the nublic. No commenter was satisfied with the text of the rule as proposed. Most of the commenters recognized the Commission's need to withhold or otherwise protect information in order to protect a confidential source or to avoid compromising an ongoing investiga-tion or inspection and the consequent necessity for in camera presentations.
Ilowever , the commenters uniformly opposed using ex parte techniques to achieve that objective. The principal objections voiced by the commenters were that the proposed procedures are illegal, unnecessary, contrary to due process and unfair. One commenter stated that if the Commission's rules of practice were amended as proposed, decisions reached in proceedings in which the proposed procedures were used would be subject to a greatly increased l risk of judicial reversal. In addition, the proposed amendments were faulted l as bad public policy. Several commenters suggested alternative methods, dependent principally upon the use of protective orders, to achieve the objectives sought by the Commission.
O Since publication of the notice of proposed rulemaking in 1985, the Commission has made certain decisions respecting its board notification policy and j
procedures which are expected to reduce significantly the occasions on which the proposed procedures would actually be used. For, as the Commission made clear when it promulgated its Statement of Policy on Investigations, Inspections and Adjudicatory Proceedings, the Statement and any implementing procedures only take over "once a determination has been made, under established board notification procedures, that information should be disclosed to the boards and public but OI [the Office of Investigations] or staff believes that the information should be protected." (49 FR 36032 at 36033, September 13, 1984, emphasis supplied.) ,
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i The Commission's board notification policy and procedures have been in effect I for many years and serve an important purpose--to keep the boards and the Commission advised of matters which may need to be considered in making licensing and other regulatory decisions, particularly matters which present serious safety or environmental issues. Recently, the Commission directed significant changes in the manner in which its board notification policy and procedures are implemented. These changes were first enunciated by the 1 Commission in a Memorandum and Order issued January 30, 1986 in Louisiana Power & Light Company (Waterford Steam Electric Station, Unit 3)
Docket No. 50-382-OL, CLI-86-1, 23 NRC 1, affirmed sub. nom. Oystershell Alliance, et al. v. U.S. Nuclear Regulatory Commission, et al. , No. 85-1182, U.S.C.A.D.C., September 9, 1986, 800 F.2d 1201. Subsequently, at the
- express direction of the Commission, the changes in the manner in which the i
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Commission's board notification policy is being impleraented were formally i
incorporated in NRR Office Letter No. 19, Revision 3, issued May 29, 1986. O On June 3, 1986, the Executive Director for Operations directed other NRC staff offices to revise the impicmentation of their board notification I policy and procedures consistent with Revision 3 of NER Office Letter 19.
Under the Commission's board notification policy and procedures ss now implemented, NRC offices and staff U are only required to notify the boards when they are apprised of allegations and new information not previously submitted to the boards which are relevant and material to the issues in controversy in the proceeding. If the information is not relevant and material, the staff has no obligation to inform the boards. Moreover, under current practice , the facts on which an allegation is based must be substantiated and the implications drawn from those facts must be shown to be valid before any notification is made.
The above-described changes in the implementation of the Commission's board notification policy are expected to have the effect of severely limiting the circumstances in which the proposed procedures would he applicable. These circumstances are further limited by the feet that the number of pending
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This document is available for inspection at the NRC Public Document Room,1717 H Street, N.W. , Washington, D.C.
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As used in this preamble, the term " staff" is intended to refer to all !
NRC offices. !
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licensing adjudicatory proceedings is small and it is unlikely that large numbers of new proceedings will be initiated in the near future.
The Commission has reviewed its Statement of Policy on Investigations, Inspections, and Adjudicatory Proceedings in light of the above-described changes. On the basis of the guidance provided in the Policy Statement, the Commission has concluded that it could, using existing procedures, adequately protect information from disclosure in those very rare instances in which such protection might be needed. In view of the controversial nature of the proposed procedures and because it now appears that such procedures will seldom be used, the Commission has also concluded that codification of the proposed procedures in the Commission's rules of practice is not warranted.
Accordingly, for the foregoing reasons, the Commission hereby withdraws the l 1
notice of proposed rulemaking published on May 22, 1985 (50 FR 21072 -
21077), and terminates this rulemaking proceeding.
Dated at Washington, D.C. , this day of n , 1987.
V For the Nuclear Regulatory Commission I
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JoNn C. H'oyle Acting Secretary of the Commission i
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