ML20214G273
| ML20214G273 | |
| Person / Time | |
|---|---|
| Issue date: | 10/06/1986 |
| From: | Cho J NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | Rosenthal A NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20213F620 | List:
|
| References | |
| FRN-50FR21072, RULE-PR-2 AB78-1-098, AB78-1-98, NUDOCS 8705260482 | |
| Download: ML20214G273 (6) | |
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% 3 ;j ATOMIC SAFETY AND LICENSING APPEAL PANEL WASHINGTON, D.C. 20555 October 6, 1986 To: Alan Rosenthal FROM: John Cho Re: Relationship Between Investigations / Inspections and Adjudicators - Final Rule Establishing Procedures for Resolving Conflicts Concerning the Disclosure or Nondisclosure of Information Per your request, I have looked over the draft papers on the subject rule forwarded to you by Bill Olmstead for review and comment. My comments follow:
- 1. I agree, in general, with Chris Kohl's comments set forth in her October 3, 1986 memorandum to you. I especially endorse her first substantive comment (page 1 of her memorandum) and her recommendation that motions for protective order should be required to be in writing - (page 4 of.her memorandum).
- 2. I found the discussion in the Statement of Consideration of the proposed rule somewhat difficult to follow because of the lack of a clear description of the proposed rule in the Statement of Consideration. Such a description at the outset in the Statement of-Consideration would give context to the discussion in the statement and help to its understanding.
- 3. The Statement of Consideration beginning at page 22 attempts to justify the proposed rule, in part, by equating.it to existing Section 2.744 of the Commission's Rules of Practice. I don't think the two situations are quite the same. Although Section 2.744 provides for ex parte consideration of documents by the Presiding Officer or Board,.
the documents are made available to all the parties if the Presiding Officer or Board decides that the documents are' relevant (although possibly under protective order). Under the proposed rule,
' the information may be withheld by-the Commission even if found to be relevant and material to an issue in the proceeding and thus kept from the parties.
8705260482 B70520 POR i PR 2 50FR21072 PDR t_a l
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%....J October 3, 1986 To: Alan Rosenthal From: Christine Kohl (JC-Re: Relationship Between Investigations / Inspections and Adjudicators - Final Rule Establishing Procedures for Resolving Conflicts Concerning the Disclosure or l Nondisclosure of Information In response to your request for my views on the OGC 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 the proposed rule under the Atomic Energy Act and APA begs i
the question somewhat. 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 availabic to the parties (at least through a protective order). The problems lie in the timing of the determination of relevance and materiality and in the fact that the proposed rule will rarely, if ever, be invoked. Because the initiation and existence of an ongoing inspection / investigation.(even concerning " issues in controversy") is not reportable under the new Board Notification policy (see SC, pp. 17-18), the adjudicatory
, process may well be completed and may have culminated in license issuance before the inspection / investigation is terminated. If the subsequent conclusion of the 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 litigate such matters before license issuance. It is thus rather disingenuous to state that "[t]he Commission-will not allcw licensing decisions to be made on the basis of a record which is inadequate and incomplete." The record is, l of course, " incomplete" until the pending inspection / 1 investigation is terminated, irrespective of its outcome. I i
I In my view, it would be better and more forthcoming for l the proposed Statement of Consideration to rely on the i recent decision in Oystershell Alliance (D.C. Cir. Sept. 9, 1986), to rebut the
- v. NRC, No. 85-1182 charges that the
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proposed rules violate the. Atomic Energy Act and APA. There j 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 approved 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 gnd, to a lesser extent, proposed sections 2.795a to 2.795k.
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, " [s] trictly 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 is 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 par.te and separation of I
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.
1 It is important to note, however, that in Oystershell
- Alliance the parties and board were informed of the initiation and existence -- if not the total substance -- of a pending investigation. There is nothing in the court's opinion suggesting approval of a policy that officially 4
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 difiicult 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 sentence!!!
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 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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4 SC, p. 41, S 2.795b - add "through staff counsel" after 2
" office" in line 8.
1 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 i reasons. The Board Notification prompting such a motion will be in writing. The five categories of information required _by S 2.795c(b) will be difficult
, to convey orally. Further, because of the sensitive issues any such motion would raise, a board 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 j orally "on the record during the hearing"; i.e., a-transcript must exist.for the board's use and l subsequent appellate review.)
7 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 j of" as redundant of "whether and to what' extent."
SC, p. 47, S 2.795h(a) - This provision-(one unbroken ll3-word sentence) is incomprehensible._ I believe it intends to state something like the following:
"The NRC office seeking a protective. order shall a
notify the presiding officer or the Commission, as dppropriate, 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 inspection or investigation."
, SC, p. 48, S 2.795i(a) " deemed" in line'4 is 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 t
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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) ,
(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, 1
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