ML20214F998

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Forwards Fr Notice Withdrawing 850522 Notice of Proposed Rulemaking & Terminating Rulemaking.Codification of Proposed Procedures for Resolving Conflicts Not Warranted
ML20214F998
Person / Time
Issue date: 04/17/1987
From: Parler W
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To: Udall M
HOUSE OF REP., INTERIOR & INSULAR AFFAIRS
Shared Package
ML20213F620 List:
References
FRN-50FR21072, RULE-PR-2 AB78-1-060, AB78-1-60, NUDOCS 8705260377
Download: ML20214F998 (1)
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Text

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i t 9 f[mA 4Q Iog UNITED STATES

,, y 3 ,. g NUCLEAR REGULATORY COMMISSION

/ 5 E WASHINGTON P. C. 20555 APR 17 W

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The Honorable Morris K. Udall, Chairman l Subcommittee on Energy and the Environment j Committee on Interior and Insular Affairs )

United States House of Representatives j

. Washington, D.C. 20515

Dear Mr. Chairman:

Enclosed for the information of the Subcommittee is a copy of a published Federal Register notice withdrawing an earlier notice of proposed rulemaking published May 22, 1985 (50 FR 21072) and terminating that rulemaking -

proceeding.

The origins 1 proposal, now withdrawn, was prepared to implement certain directions in the Commission's Statement of Policy on Investigations, Inspections and Adjudicatory Proceedin,Ts (49 FR 36032, September 13, 1984). These directions related to special procedures to be used by NRC offices and staff for the purpose of resolving conflicts concerning the disclosure or nondisclosure of information deemed relevant and material to an adjudication and which also (1) related to an NRC investigation or inspection not yet concluded or (2) could reveal the identity of a confidential informant. After considering the views of the commenters who were generally dissatisfied with the text of the rule as proposed and the limited number of occasions on which the proposed procedures might be.

used, the Commission has concluded that codification of the proposed procedures in the Commission's Rules of Practice is not warranted. The Commission has also concluded that, based on the guidance in its Policy Statement and using existing procedures, it can ' adequately protect information from disclosure in those rare instances in which such protection might be needed.

Sincerely, c

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'illiam C. Parler General Counsel

Enclosure:

1. Federal Register Notice Withdrawing Proposed Rule cc: Rep. Manuel Lujan, Jr.

IDENTICAL LETTER SENT T0:

Sen. Breaux/cc: Sen. Simpson Rep. Sharp /cc: Rep. Moorhead 8705260377 870520 PDR PR 2 50FR21072 PDR

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l NUCLEAR REGULATORY COMBIISSION 10 CFP PART 2 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, the 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 might be used in those proceedings , an existing policy statement is an adequate means of resolving these conflicts and thus there is no need at this time to codify the proposed procedures, h l-YrY,W, k,.,f,0 } -

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This withdrawal is effective April 15, 1987.

FOR FURTHER INFORMATION CONTACT: Jane R. Mapes, Senior Attorney, i

j. Rulemaking and Fuel Cycle , Office of the General Counsel, U.S. Nuclear t

Regulatory Commission, Washington, D.C. 20555; Telephone: (301) 492-8695.

4 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 3G032-36034) the Commission

! reemphasized the importance and need for full disclosure of information in an j adjudication so that all issues in controverty in the adjudication may be fully i ,

resolved. At the same time, the Commission recognized the need in certain circumstances to limit disclosure to avoid compromising an NRC inspection or I investigation or to protect a confidential informant. In its policy statement, the Commission identified a procedure under which the NRC staff would i

provide an adjudicatory board with an explanation of the basis for its concern j about disclosure and would present the information to the board in camera 4

without other parties present. Recognizing that this procedure would be a l departure from normal Commission practice, the Commission directed the staff i

l to initiate a rulemaking proceeding.

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i j Accordingly, on May 22, 1985, a notice of proposed rulemaking was published j 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 l

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4 Y 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 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, intervenora 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 crder 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 i achieve that objective. The principal objections voiced by the commenters i

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 i

j the proposed procedures were used would be subject to a greatly increased risk of judicial reversal. In addition, the proposed amendments were faulted j

i as bad public policy. Several commenters surgested alternative methods, dependent principally upon the use of protective orders, to achieve the objectives sought by the Commission.

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Since publication of the notice.of proposed rulemaking in 1985, the Commission has made certain decisions respecting its board notification policy and 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 O! [the Office of Investigations) or staff believes that the information should be protected." (49 FR 36032 at 36033, September 13, 1984, emphasis supplied.)

The Commission's board notification policy and procedures have been in effect 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 4

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 1 procedures are implemented. These changes were first enunciated by the Commission in a Memorandum and Order issued Janusry 30, 1986 in i

Louisiana Power a Light Company (Waterford Steam Electric Station, Unit 3) l Docket No. 50-382-OL, CL1-86-1, 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 2

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4 Commission's board notification policy is being implemented were formally incorporated in NRR Office Letter No. 19 Revision 3, issued May 29, 1986. 1 On June 3, 1986, the Executive Director for Operations directed other NRC staff offices te revise the implementation of their board notification policy and procedures consistent with Revision 3 of NER Office Letter 19.

Under the Commission's board notificatfor policy and procedures as now implemented, NRC offices and staff U are only reo,uired 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 fact that the number of pending

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1/ This document is available for inspection at the NRC Public Document Room,1717 H Street, N.W. , Washington, D.C.

-2/ 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 Ifght 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 wit!. draws the 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 A , 1987.

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For the Nuclear Regulatory Commission W $ \

JoMn C. licyle#

AT: ting Secretary of the Commission  !

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IDENTICAL LETTER SENT TO: DISTRIBUTION Morris K. Udall, Chairman JMapas I

5N Ef.iN$2el Eufa"n*,T. and the Environment 3 Philip R. Sharp, Chairman WParler l Subcommittee on Energy and Power OGC R/F l cc: Rep. Carlos J. Moorhead OGC S/F Reg File The Honorable John B. Breaux, Chairman Central File Subcommittee on Nuclear Regulation SECY Committee on Environment and Public Works OCA United States Senate EDO Washington, D.C. 20510 OPE R&P

Dear Mr. Chairman:

R&P R/F Enclosed for the information of the Subcommittee is a copy of a published Federal Register notice withdrawing sn earlier notice of proposed rulemaking published May 22, 1985 (50 FR 21072) and terminating that rulemaking proceeding, i The original proposa?, now withdrawn, was prepared to implement certain directions in the Commission's Statement of Policy on Investigations, Inspections and Adjudicatory Proceedings (49 FR 36032, September 13, 1984). These directions related to spechl procedures to be used by - NRC offices and staff for the purpose of resolving conflicts concerning the disclosure or nondisclosure of information deemed relevant and material to an adjudication and which nIso (1) related to an NRC investigation or inspection not yet concluded or (2) could reveal the identity of a confidential informant. After considering the views of the commenters who were generally dissatisfied with the text of the rule as proposed and the limited number of occasions on which the proposed procedures might be used, the Commission has concluded that codification of t.he proposed procedures in the Commission's Rules of Practice is not warranted. The Commission has also concluded that, based on the guidance in its Policy Statement and using existing procedures, it can adequately protect information from disclosure in those rare instances in which such protection might be needed.

Sincerely, Wil m C. Parler General Counsel

Enclosure:

1. Federal Register NMice Withdrawing Proposed Rule cc: Senator Alan K. apson

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f e 12192 Federal R:gister / Vcl. 52 N:,72 / Wedn:sd!y, April 15, 1987 / Proposed Rul;s ei 3

9 (i)The applicable laws and Rulemaking and Fuel Cycle. Office of voiced by the commenters were that the regulations of the State in which the the General Counsel, U.S. Nuclear yl proposed procedure are illegal. 1  !

flock would be maintained and Regulatory Commission, Washington, unnecessary, contrary to due process 4 (ii) The total cost of Federal and State DC 20555: Telephone:(301) 492-8695, and unfair. One commenter state that if indemnities to be paid if an entire 1 t SUPPLEMENTARY INFORMATION:In its the Commission's rules of practice were J i*

scrapie-exposed flock were to be destroyed versus pr%jected costs for Statement of Policy on Investigations, Inspections and Adjudicatory amended as proposed, decisions reached in proceedings in which the

]4 indemnities if only affected and Proceedinga published in the Federal proposed procedures were used would 4 bloodline animals are destroyed; travel. Register on September 13,1984 (49 FR be subject to a greatly increased risk of d and per diem for the conducting of 36032-36034) the Commission judicial reversal.In addition, the a periodic l'ock inspections by Federal reemphasized the importance and need proposed amendments were faulted as H and State inspectors: resulting disruptions of Federal and State for full disclosure ofinformation in an bad public policy. Several commenters 1

, adjudication so that allissues 6 suggested alternative methods.

  • manpower schedules: and controversy in the adjudication may be dependent principally upon the use of 9

, administrative and paperwork costs, fully resolved. At the same time, the including projected owner protective orders, to achieve the d recordkeeping and reporting Commission recognized the need in objectives sought by the Corrmission. 'I expenditures. certain circumstances to limit disclosure Since publication of the notice of i to avoid compromising a NRC proposed rulemaking in 1985, the Inspection or investigation or to protect 1 Done in Washington DC, this 9th day of Commission has made certain decisions  !

April 1987, a confidential informant, in its policy respecting its board notillcation policy '!

statement, the Commission identified a a.c. Johnson- procedure under which the NRC staff and procedures which are expected to I Acting DeputyAdmm, istmtor, veten, nary . reduce significantly the occasions on 1 would provide an adjudicatory board "

8"c'8- with an explanation of the basis for its which the proposed procedures would

[FR Doc. 87-8392 Filed 4-14-87; 8:45 am] actually be used.For, as the

- coor sm*.m concern present theabout disclosure information andboard to the would in . Commission made clear when it promulgated its Statement of Policy on

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g' camere without other parties present.

Investigations, inspections and

'l NUCLEAR REGULATORY Adjudicatory Proceedings, the COMMISSION ea a ure fro normal mm on Statemer,t and any implementing practice, the Commission directed the 10 CFR Part 2 staff to initiate a rulemaking proceeding. [,j, ,fgo, ,ts been made, under '

Accordingly, on May 22,1985, a nctice Ac'judications; Special Procedures for of proposed rulemaking was published estatishedboardnotification in the Federal Register (50 FR 21072- procedures, that information should be Resolving Conflicts Concerning the j

disclosed to the boards and public but Disclosure or Nondisclosure of 21077) propo, sing amendments to the information Commission s rules of practice (10 CFR 01 [the Office of Investigations) or staff  ;

{ believes th Part 2) that would provide special ex protected.,,at i

AGENCn Nuclear Regulatory . (49 FRthe information 36032 at 36033, should be l Gommission.

parte in comera procedures for resolving

conflicts concerning the disclosure or September 13,1984, emphasis supplied.)

i Acnow: Withdrawal of proposed rule. '

The Commission's board notification -

nondisclosure ofinformation deemed relevant and material to an adjudication policy and procedures have been in sumuAnn ne Nuclear Regulatory and relating to an NRC investigation or effect for many years and serve an Commission is withdrawing a proposed important purpose-to keep the boards rule published in the Federal Register on inspection not yet concluded or likely to reveal the identity of a confidential and the Commission advised of matters

', - May 22,1985 (50 FR 21072). In this rule, informant. On May 31,1985 (50 FR which may need to be considered in the Commission proposed amending its making licensing and other regulatory rules of practice to provide special 23138-23139) a correction notice was published. On July 20,1985, the date for decisions, particularly matters which procedures for resolving conflicts present serious safety or environmental concerning the disclosure or submitting comments on the proposed .

amendments was extended to August issues. Recently, the Commission nondisclosure of information relating to '

23,1985 (50 FR 30446-30447). directed significant changes in the an NRC investigation or inspection not i yet concluded or which would reveal the The Commission received nine letters manner in which its board notification l

! identity of a confidentialinformant and of comment expressing the views of policy and procedures are implemented.

interested utilities, professional These changes were first enunciated by

'! deemed relevant and material to an organizations, private counsel, L; adjudiction.The Commission has the Commission in a Memorandum and intervenors and individual members of Order issued January 30,1986 in -

decided that in view of the few the public. No commenter was satisfied

,:, Louisiana Power & Light Company remaining licensing proceedings and the with the text of the rule as proposed. (Waterford Steam Electric Station. Unit consequent limited number of occasions , ,

Most of the commenters recognized the 3) Docket No. 50-382-01., C1.I-86-1,23

  • l in which the proposed procedures might Commission's need to withhold or NRC 1, affirmed sub. nom. Oystershell

. be use in those proceedings, an existing otherwise protect Information in order Al/ lance, et al. v. U.S. Nuclear -

l

! policy statement is an adequate means

.- to protect a confidential source or to Regulatory Commiss/on, et al., No. 85-of resolving these conflicts an thus there avoid compromising an ongoing '1182. U.S.C.A.D.C., September 9.1986.

is no need at this time to codify the investigation or inspection and the

.. proposed prxedures. 800 F.2d 120L Subguently, at the consequent necessity for in comem express direction of the Commission, the

!l DATE:This withdrawalls effective April presentations. However, the 15,1987, changes in the manner in which the l .i commenters uniformly opposed using ex Commission's board notification policy jf . FOR FURTHER INFORMAMoM CONTACT: parte techniques to achieve that is being implemented were formally g _; Jane R. Mapes, Senior Attorney, objective. The principal objections incorporated in NRR Office I.etter No.

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Fed;r:1 R: gist;r / Vc1. 52 No. 72 / W dnisd:y, April 15, 1987 / Proposed Rul;s 12193 19 Revision 3. Issued May 29,1988.5 On Dated at Washingten. D.C., this 9th day of June 3.193G, the Executive Director for Manager (PM)16 Registrat:on Division -  ;

April,1987.

(T$.767C). Office of Pesticide Programs, Ooerations directed other NRC staff For the Nuclear Regulatory Commission. } i c ffices to revise the implementation of '

Environmental Pro'tection Agency,401 M ,l John C. Hoyle, St., SW., Washington, DC 20400.

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their board notification policy and procedures consiste ActingSecretaryoftheCommission. , .

Office location and telephone number:

ith Revision 3 of [FR Doc. 87-8427 Filed 4-14-47; 8:45 em] Rm. 211, CM #2,1921 Jefferson Davis . I  !

Un er e isslo$'s board somc emw Highway, Arlington, VA 22202 (703- ' i notification policy and procedures as - l 557- W . j <

now implemented. NRC offices and staff 8 are only required to notify the ENVIRONMENTAL PROTECTION sNMMARY INMRMAMC b g {

boards when they are apprised of AGENCY Pacific Northwest Grain and Feed i Association. Inc.,200 SW. Market St.,  ?

allegations and new information not 21 CFR Part 561 Suite 2005 Portland, OR 97201 has I previoucly submitted to the boards

[ OPP-300162; FRL-3186-7] requested that EPA, pursuant to section which are relevant and material to the 409(d) of the Federal Food, Drug, and issues in controversy in the proceeding. .;

Pesticios Tolerances in Antrnal Feeds Cosnietic Act, propose a feed additive if the it formation is not relevant and regulation to cover residues of the material, the staff has no obligation to for Malathion inferm the boards. Moreover, under insecticide malathlon (0,0 dimethyl AGENCY: Environmental Protection dithiophosphate of diethyl current practice, the facts on which an Agency (EPA).

allegation is based must be merceptosuccinate) occurrfng in or on action: proposed rule, the grain dust of the aforementioned substantiated and the implications drawn from those facts must be shown

SUMMARY

This document proposes a grains resulting from postharvest to be valid before any notification is application of the insecticide to these feed additive regulation to permit made, stored grains.

residues of the insecticide malathlonin The above. described changes in the or on the grain dust of barley, corn, oats. The Pacific Northwest Grain and Feed implementation of the Commission's rice, rye, sorghum, and wheat resulting Association. Inc., requested this board notification policy are expected to from postharvest application of the regulation in order to allow disposal of have the effect of severely limiting the insecticide to these stored grains.This these grain dusts as commercial animal circumstances in which the proposed regulation to establish the maximum feed. This dust, which is the fine procedures would be applicable.These permissiblelevelforresidues of the particulate matter formed during the circumstances are further limited by the insecticide was requested by the Pacific handling and shipping of grain. is fact that the number of pending Northwest Crain and Feed Association, normally removed from the grain during licensing adjudicatory proceedings is Inc. transfer operations, such as when grain small and it is unlikely that large DATu Comments, identified by the is being loaded onto a ship.

numbers of new proceedings will be document control number (OPP-300162), Consequently, thousands of tons of this initiated in the near future. should be received by May 15,1987. dust may be enerated at port facilities.

The Commission has reviewed its Statement of Policy on Investigations, AcoREss:By mail, submit written ' The Association supports this request  ;

comments to:Information Services by pointing out that current Federal and Inspections, and Adi udicatory Proceedings in light of the above- Branch, Program Management and State authorities either prohibit or described changes. On the basis of the Support Division (TS-757C), Office of discourage the disposal of grain dust Pesticide Programs Environmental through other means such as in aubbe guidance provided in the Policy Statement, the Commissien has Protection Agency,401 M St., SW., waterways, public landfills, and through Washington, DC 20460. reintroduction of grain dust into grain concluded that it could. using existing procedures, adequately protect In person, bring comments to: Rm. 238, shipments. For these reasons, the '

information from disclosure in those CM sr2,1921 Jefferson Davis Ifighway, Association maintains that the most very rare instances in wnich such Arlington, VA 22202. effective and economically viable means '

protection might be needed. In view of Information submitted as a comment of disposing of the enormous volumes of i the controverstal nature of the proposed concerning this notice may be claimed grain dust has been to feed the material '

procedures and because it now appears confidential by marking any part or all to livestock. The 135 parts per million that such procedures will seldom be of that information as " Confidential (ppm) level was requested because used, the Comnussion has also Business Information" (CBI), several feed items have tolerances for concluded that codification of the Irtformation so marked will not be residues of malathion at this level (40 proposed procedures in the disclosed except in accordance with CFR 180.111), and adding grain dust at procedures set forth in 40 CFR Part 2. A this level would not affect the Commission's rules of practice is not ,

warranted. copy of the comment that does not theoretical exposure oflivestock to i Accordingly, for the foregoing contein CBI must be submitted for malathion.

reasons, the Commission hereby inclusion in the public record. The Administrator agrees with the withdraws the notice of proposed Information not marked confidential Pacific Northwest Grain and Feed rulemaking published on May 22,1985 may be disclosed publicly by EPA Association, Inc. Currently, there ara '

(50 FR 21072-21077), and terminates this without prior notice. All written estab!!shed tolerances of 8.0 ppm for rulemaking proceeding. comments will be available for public residues of malathlon in or on the inspection in Rm. 236 at the address aforementioned grains as raw given above, from 8 a.m. to 4 p.m., agricultural commodities resulting from

' This document is evet!able for inspection et the NP P c Monday through Friday, excluding legal postbarvest application of the ent Room.1717 H 5treet. NW* holidays, {

insecticide on these grains (40 CFR 1

  • As used in this preamble. the term " stat'Is t; tended to refer to all NRC omces.

FOR FURTHER INFORMATION CONTACT: 180.111).Since pesticide residues tend to By math William H. Miller, Product be found on the outer surfeces of the ,

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