ML20214G089
| ML20214G089 | |
| Person / Time | |
|---|---|
| Issue date: | 10/03/1986 |
| From: | Kohl C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Rosenthal A NRC |
| Shared Package | |
| ML20213F620 | List:
|
| References | |
| FRN-50FR21072, RULE-PR-2 AB78-1-071, AB78-1-71, NUDOCS 8705260412 | |
| Download: ML20214G089 (5) | |
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g NUCLEAR REGULATORY COWMIMilON 3
-l ATOMIC SAFETY AND l.lCENSING APPEAL PANEL wAsmNGTON, D.C. 20565 October 3, 1986 To: Alan Rosenthal l
From:
t Christine Kohl (JC-j Re: Relationship Between Investigations / Inspections and j
Adjudicators - Final-Rule Establishing Procedures ,for i
j Resolving Conflicts Concerning the Disclosure or i Nondisclosure of Information In response to your request for my views on the OGC '
ii draft final rule referenced above, I have only a few comments of a substantive nature.
First, the discussion at pp. 20-21 of the Statement of Consideration ("SC") concerning the alleged illegality of i the question the proposedsomewhat.
rule under the Atomic Energy Act and APA begs To be sure, the proposed rules on their face do not permit licensing action to be taken unless
- all information relevant and material to the issues in controversy is made available to the parties (at least through a protective order). The problems lie in the timing h of the determination of relevance and materiality and in the I fact that the proposed rule will rarely, if ever, be invoked.
! Because the initiation and existence of an ongoing j
inspection / investigation (even concerning " issues in ',
j controversy") is not reportable under the new Board Notification policy (see SC, pp. 17-18), the adjudicatory jl process may well be completed and may have culminated in license issuance before the inspection / investigation is terminated.
4 If the subsequent conclusion of the
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j inspection / investigation discloses information that would
- have been relevant and material to the issues litigated, it is too late to give the parties their opportunity to ,
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- litigate such matters before license issuance. It is thus )
i rather disingenuous to state that "[t]he Commission will'not i i allow licensing decisions to be made on the basis of.a i
record which is inadequate and incomplete." The record is,,
of course, " incomplete" until the pending inspection / '
, investigation is terminated, irrespective of its outcome.
In my view, it would be better and more forthcoming for l
the proposed Statement of Consideration to rely on the j recent decision in Oystershell Alliance v. NRC, No. 85-1182 (D.C. Cir. Sept. 9, 1986), to rebut the charges that the I
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- 2 50FR21072 PDR . o I
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' proposed rules violate the Atomic Energy Act and APA. There the court accepted the Commission's argument that "the mere fact of an investigation proves nothing about the matters under scrutiny." Slip opinion at 12 The court also 3
dpproved the Commission's issuance of a license under its "immediate effectiveness" rules, despite the pendency of motions to reopen. This is analogous to the boards' and Commission's authorization of licensing action, notwithstanding an ongoing inspection / investigation -- the situation clearly contemplated by the new Board Notification policy 2.795k.gnd, to a lesser extent, proposed sections 2.795a to Second, footnote 2 on p. 21 is not quite correct. The APA defines "ex parte communication" as "an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given . . . ."
5 U.S.C. S 551(14). Thus, "(sjtrictly speaking," the proposed rules do raise an ex parte problem. What they do not raise is a prohibited ex parte communication problem:
only interested persons "outside the agency" -- i.e., not the NRC staff -- are precluded by the APA from making such communications. 5 U.S.C. S 557(d) (1) . The footnote correctly notes that a separation of functions problem jji posed by the rule.
See 5 U.S.C. S 554 (d) . It refers, however, to the notice of proposed rulemaking on the revision of the commission's ex parte and separation of functions rules, 51 Fed. Reg. 10,393, 10,394 (1986).
Unfortunately, that notice cites the wrong sections of the APA (5 U.S.C. SS 557(b), 553(d), rather than 5 U.S.C. SS 557 (d) (1) , 554(d)). Lest these errors be perpetuated, I suggest that footnote 2 (i) omit the reference to the other notice of proposed rulemaking, (ii) explain why a separation of functions, instead of a prohibited ex parte, problem is involved in these proposed rules, and (iii) cite the correct sections of the APA.
It is important to note, however, that in Oystershell Alliance the parties and board were informed of the initiation a and existence pending investigation. -- if not the total substance -- of There is nothing in,the court's opinion suggesting approval of a policy that officially '
prohibits or discourages notification to the decisionmakers !
and parties of such pending investigations. '
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My remaining comments on the draft are directed largely to stylistic and editorial matters. For example, a pervasive problem (beginning with the first sentence under
" Background" in the draft Stello cover memorandum) is sentences that are too long and parsimonious in punctuation.
As a consequence, the new regulations will be unnecessarily difficult to understand and apply. Here are some suggested
, changes.
Stello cover memo, p. 4, item 3.g - I assume that copies of this Federal Register notice will be sent to all parties in this rulemaking as well.
SC, p. 3, first full sentence - too long and awkward.
SC, p. 17, first full paragraph - so redundant that the gist of the points repeated is lost.
SC, p. 21, second sentence of second full paragraph -
too long and awkward.
SC, p. 22, first full paragraph, line 9 - add "or she" after "he."
SC, pp. 26-27, second and third sentences of first full paragraph - too long and awkward.
SC, p. 29, first full paragraph - one 107-word i sentencell!
SC, p. 40 - The new heading is much too wordy. I suggest something like " Treatment of Certain Sensitive Information in Licensing Proceedings."
SC, p. 40, S 2.795a(a) - I suggest rewriting the last sentence as: "The procedures are to be used when, in accordance with the Commission's board notification policy or pursuant to a request from a presiding officer, an NRC office may be required to produce information in a pending adjudication, the disclosure .
l of which, without a protective order, would reveal.the !
identity of a confidential informant or prejudice an !
ongoing investigation or inspection."
SC, p. 41, S 2.795a(c) - add "be" after "and" in line 4; add "and service on the appropriate entities" after
" file" in line 6.
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SC, p. 41, S 2.795b - add "through staf f counsel" af ter
" office" in line 8.
SC, p. 42, S 2.795c(a) - omit "by the NRC office having the information" in line 1 as redundant.
SC, p. 42, S 2.795c(b) - Motions for:a protective order should be required to be in writing for several reasons. The Board Notification prompting such a motion will be in writing. The five categories of information required by 5 2.795c(b) will be difficult to convey orally. Further, because of the sensitive issues any such motion would raise, a bocrd will need this information in writing. Any transcript of an oral motion would have to be in camera, raising logistical problems. (It is worth noting, in this connection, that S 2.730 (b) permits ordinary motions to be made orally "on the record during the hearing"; i.e., a transcript must exist for the board's use and subsequent appellate review.)
SC, p. 43, S 2.795d(b) - in line 4, add a comma and omit the "and" following " personnel"; in line 5, change the period to a comma and add "and to a court reporter."
SC, p. 44, S 2.795e(a) - in line 9, omit "all or part of" as redundant of "whether and to what extent."
SC, p. 47, S 2.795h(a) - This provision (one unbroken 1,12-word sentence) is incomprehensible. I believe it intends to state something like the following:
"The NRC office seeking a protectivG order shall notify the presiding officer or the Commission, as appropriate, and the Director of the Division of Rules and Records when (1) it no longer objects to the disclosure of part or all of the information in question, or (2) there is a change in the status of the information, including completion of the- 1 inspection or investigation."
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SC, p. 48, S 2.7951(a) " deemed" in line 4 is 'i unnecessary.
My final comment concerns a' matter only indirectly affecting this particular rulemaking. As far-as I have been able to determine, the Commission's new Board Notification l
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policy, embodied in NRC Office Letter No. 19, Revision 3 (May 29, 1986), has never been published in the Federal Register and thus has not_been made widely available to the public. I believe that the FOIA, 5 U.S.C. SS 552 (a) (1) (B) , .
1 (D), requires such publication. This is particularly so, given the acknowledged relationship between that new policy and the proposed rules here at issue. See SC, pp. 16-17.
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