ML23151A410
| ML23151A410 | |
| Person / Time | |
|---|---|
| Issue date: | 07/05/1990 |
| From: | Chilk S NRC/SECY |
| To: | |
| References | |
| PR-002, 55FR27645 | |
| Download: ML23151A410 (1) | |
Text
DOCUMENT DATE:
TITLE:
CASE
REFERENCE:
KEYWORD:
ADAMS Template: SECY-067 07/05/1990 PR-002 - 55FR27645 - CHALLENGES TO ORDERS THAT ARE MADE IMMEDIATELY EFFECTIVE PR-002 55FR27645 RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete
PAGE 1 OF 2 STATUS OF RULEMAKING RECORD 1 OF 1
PROPOSED RULE:
PR-002 OPEN ITEM (Y/N) N RULE NAME:
CHALLENGES TO ORDERS THAT ARE MADE IMMEDIATELY EFF ECTIVE PROPOSED RULE FED REG CITE:
55FR27645 PROPOSED RULE PUBLICATION DATE:
07/05/90 ORIGINAL DATE FOR COMMENTS: 09/03/90 NUMBER OF COMMENTS:
EXTENSION DATE:
I I
9 FINAL RULE FED. REG. CITE: 57FR20194 FINAL RULE PUBLICATION DATE: 05/12/92 NOTES.ON: SEE INAL RULE: 56 FR 40664 {08/15/91) FOR 1ST TWO RULEMAKINGS; TAT CORRECTION NOTICE PUBLISHED AT 56 FR 54778.
F RULE FILE LOCATED ON P-1.
PRESS PAGE DOWN OR ENTER TO SEE RULE HISTORY OR STAFF CONTACT PRESS ESC TO SEE ADDITIONAL RULES, (E) TO EDIT OR {S) TO STOP DISPLAY PAGE 2 OF 2 HISTORY OF THE RULE PART AFFECTED: PR-002 RULE TITLE:
CHALLENGES TO ORDERS THAT ARE MADE IMMEDIATELY EFF ECTIVE ROPO'SED RULE SECY PAPER: 90-074A FINAL RULE SECY PAPER: 92-089 CONTACTl: JOHN CHO CONTACT2:
PROPOSED RULE SRM DATE:
FINAL RULE SRM DATE:
I I
I I
DATE PROPOSED RULE SIGNED BY SECRETARY:
06/28/90 DATE FINAL RULE SIGNED BY SECRETARY:
05/06/92 STAFF CONTACTS ON THE RULE MAIL STOP: 15-B-18 PHONE: 504-1585 MAIL STOP:
PHONE:
PRESS PAGEUP TO SEE STATUS OF RULEMAKING PRESS ESC TO SEE ADDITIONAL RULES, (E) TO EDIT OR {S) TO STOP DISPLAY
DOCKET NO. PR-002 (55FR27645)
In the Matter of CHALLENGES TO ORDERS THAT ARE MADE IMMEDIATELY EFF ECTIVE DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 08/27/90 08/22/90 COMMENT OF YANKEE ATOMIC ELECTRIC COMPANY (JOHN DEVINCENTIS, VICE PRESIDENT) (
- 1) 09/04/90 09/04/90 COMMENT OF ALABAMA POWER COMPANY (W. G. HAIRSTON, Ill, SR. VICE PRES.) (
- 2) 09/04/90 09/04/90 COMMENT OF GEORGIA POWER COMPANY (W. G. HAIRSTON, Ill, SR. VICE PRES.) (
(NICHOLAS S. REYNOLDS, ESQ.) (
(DEBORAH B. CHARNOFF, ESQ.) (
- 5) 09/05/90 09/04/90 COMMENT OF PHILADELPHIA ELECTRIC COMPANY (G. A. HUNGER, JR.) (
- 6) 09/06/90 09/04/90 COMMENT OF NUMARC (JOE F. COLVIN, EXECUTIVE VICE PRES.) (
- 7) 09/07/90 09/04/90 COMMENT OF FLORIDA POWER AND LIGHT COMPANY (WILLIAM H. BOHLKE, VICE PRESIDENT) (
- 8) 09/17/90 09/07/90 COMMENT OF DUQUESNE LIGHT COMPANY (JOHN D. SIEBER, VICE PRESIDENT) (
- 9) 05/07/92 05/06/92 FEDERAL REGISTER NOTICE - FINAL RULE
AGENCY:
Action:
SUMMARY
NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 RIN 3150 - AD60 Revisions to Procedures To Issue Orders:
"92 HAY -7 A10 :18
- JFF!Ct. OF S[Cr<L fAriY QUCK[TrNG,\\ sr,,v,cr BRANCH Challenges To Orders That Are Made Immediately Effective Nuclear Regulatory Commission.
Final rule.
The Nuclear Regulatory Commission (NRC) is revising its regulations governing orders to provide for the expeditious consideration of challenges to orders that are made immediately effective.
The amendments specifically allow challenges to the immediate effectiveness of an order to be made at the outset of a proceeding and provide procedures for the expedited consideration and disposition of such challenges.
The amendments also require that challenges to the merits of an immediately effective order be heard expeditiously, except where good cause exists for delay.
EFFECTIVE DATE:
[Insert date 30 days after date of publication in the Federal Register. ]
FOR FURTHER INFORMATION CONTACT:
John Cho, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, Telephone:
301-504-1585.
SUPPLEMENTARY INFORMATION:
Background
On July 5, 1990 (55 FR 27645), the Commission published in the Federal Register proposed changes to the Commission's Rules of Practice, 10 CFR Part 2, relating to orders that are made immediately effective. These changes were part of a broader Commission effort to clarify and improve its regulatory enforcement mechanism.
In April 1990, other changes to various parts to 10 CFR Chapter I had been proposed.
These included changes to Part 2 to make clear that unlicensed persons who violate Commission licensing and regulatory requirements may be subject to Commission enforcement action and to identify the types of orders to which hearing rights attach (55 FR 12370; April 3, 1990).
They also included changes to Parts 30, 40, 50, 60, 61, 70, 72, 110 and 150 to put unlicensed persons on notice that they may be subject to Commission enforcement action for willfully causing a licensee to violate any of the Commission's requirements, or for other willful misconduct that arises out of activities within the jurisdiction of the NRC and places in question the NRC's reasonable assurance that licensed activities will be conducted in a manner that provides adequate protection to the public health and safety (55 FR 12374; April 3, 1990).
On August 15, 1991 (56 FR 40664), the Commission published a final rule covering the changes proposed in the April 3 notices.
2
With that rule in place, further consideration by the Commission of the proposed changes to Part 2 relating to the immediate effectiveness of orders is a logical next step.
Part 2 is now further amended to allow early challenges to the immediate effectiveness aspect of immediately effective orders and to establish an expedited procedure for the resolution of such challenges.
Summary of the Proposed Rule The July 5, 1990 notice contained proposed changes to§ 2.202 to provide specifically for challenges to the immediate effectiveness of an order.
Under
§ 2.202 as it now exists, an order can be made immediately effective when required to protect the public health, safety, or interest or for willful violation of Commission requirements or other willful misconduct.
The changes proposed provided that the recipient of an immediately effective order could challenge its immediate effectiveness by filing, at the time an answer to the order is filed, a motion to set aside immediate effectiveness.
Such a motion is required to be heard and decided expeditiously, generally no longer than fifteen days, by the presiding officer.
In the interim, the presiding officer is without power to stay the effectiveness of the order.
The changes also contemplated that the presiding officer, a Licensing Board or Administrative Judge, must uphold immediate effectiveness if, on consideration of the evidence presented by the NRC staff, the presiding officer finds that the evidence is adequate to support the immediate effectiveness of the order (i.e., the existence of facts and circumstances within the staff's knowledge, of which it has reasonably trustworthy information, sufficient to cause a person of reasonable caution to believe that the order is properly founded).
3
The changes also required that the hearing on the merits be conducted on an accelerated basis.
Finally, the changes allowed the presiding officer to delay for good cause the proceeding on the merits.
Public Comments and the Conunission's Response The July 5, 1990 notice resulted in the receipt of convnents from the Nuclear Management and Resources Council (NUMARC); two law firms, each representing several utilities and other entities; and six individual utilities. Generally, the cornrnenters supported the underlying purpose of the
,rule: to provide a procedure for the expedited resolution of challenges to the immediate effectiveness of an order.
The commenters, however, had djsagreements on various aspects of the rule.
The disagreements revolved around four issues. These issues are discussed below.
(1)
Basis for immediate effectiveness.
The commenters generally agreed with the need for the Commission to be able to make an order immediately effective to protect the public health and safety.
Concern was expressed, however, that the rule allows the Commission to make an order immediately effective also for willful misconduct.
In that connection, one commenter noted that where the public health and safety is not threatened, there is no strong governmental interest for immediate effectiveness. Another commenter asserted that a better balance between the government's interests and the private rights of the individual charged, especially where the individual's livelihood may be at stake, would be achieved by permitting stays of immediately effective orders in willfulness cases.
These corranents are deserving of serious consideration.
The Commission, however, believes that inclusion of willful misconduct as a basis for 4
immediately effective orders affords it greater flexibility in dealing with license violations and should be retained in the rule in the form presented.
The NRC relies on the integrity of individuals involved in licensed activities to ensure compliance with NRC requirements.
When an individual willfully violates Commission requirements, that reliance is undermined.
Consequently, immediately effective orders have been used in cases of willfulness where the staff needed to take immediate action in order to restore reasonable assurance that the public health, safety and interest would be protected.
In these cases, the immediately effective order was issued based not solely on a willful violation but also on a concurrent conclusion that the public health, safety and interest also indicated the need for immediately effective action.
Allowing orders to become immediately effective is not new.
It has been an integral part of§ 2.202 since at least 1962 (27 FR 377; January 13, 1962).
Moreover, allowing an order to become immediately effective on the ground of willfulness is consistent with Section 9 of the Administrative Procedure Act, 5 USC 558.
Under that provision, orders may be made immediately effective -
i.e., advance notice of license withdrawal, suspension, revocation or annulment need not be given in cases of willfulness or those in which the public health, safety, or interest so requires.
See Koden v. Department of Justice, 564 F.2d 228 (7th Cir. 1977); Cargill, Inc. v. Hardin, 452 F.2d 1154 (8th Cir. 1971); KWK Radio, Inc. v. FCC, 337 F.2d 540 (D.C. Cir. 1964);
Goodman v. Benson, 286 F.2d 896, 900 (7th Cir. 1961); Air Transport Associates
- v. CAB, 199 F.2d 181, 186 (D.C. Cir. 1952), certiorari denied, 344 U.S. 922 (1953).
The Administrative Procedure Act provision is a manifestation of the well-established principle that the government may, consistent with due 5
process, take prompt action where needed to protect important government interests and provide a hearing a reasonable time afterwards on the merits of its action. See, e.g., Federal Deposit Insurance Corporation v. Mallen, 486 U.S. 230 (1988).
It may be that in certain cases, as one of the commenters suggested, an immediately effective order may cause a person to suffer loss of employment while the order is being adjudicated.
However, the impact on the public health, safety, or interest from effects of violations of Commission health and safety requirements must be given paramount consideration over an individual's right of employment.
The summary destruction of property without prior notice or hearing for the protection of public health has long been constitutionally upheld.
See, e.g., Ewing v. Mytinger & Casselberry. Inc.,
339 U.S. 594, 599-600 (1950).
"It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination."
J..g. at 599 (citing Phillips v. Commissioner. 283 U.S. 589, 596-97 (1936); Bowles v. Willingham, 321 U.S. 503, 520 (1944); Yakus
- v. United States. 321 U.S. 414, 442-43 (1944)).
In this respect, Section 9 of the Administrative Procedure Act does not distinguish between willfulness and public health, safety, or interest in setting them out as grounds for immediately effect.ive orders. With respect to either ground, that act dispenses with the need to provide a licensee with a second chance to comply with the requirements of the agency before the agency may revoke, withdraw, suspend, or annul the license.
See Attorney General's Manual on the Administrative Procedure Act (1947) at 91.
In the same vein, the Commission sees no need to provide different procedures for hearing challenges to such orders depending on the ground upon which the order is founded.
All that is required is that, at some stage, there is an opportunity 6
for a hearing and judicial determination.
The rule adopted herein meets these requirements.
(2)
Adequate Evidence Test.
The responses to the Commission's proposed adoption of the adequate evidence standard for deciding challenges to the immediate effectiveness of orders were mixed, ranging from qualified approval to total disagreement.
One commenter agreed that where the immediate effectiveness of an order was based on public health and safety considerations, the adequate evidence test struck a reasonable balance between the need to protect the public health and safety and the need to provide affected parties a reasonable measure of protection against orders that may lack adequate foundation.
According to that commenter, however, that is not the case where an order is based solely on willfulness.
Another commenter did not object to the use of the adequate evidence test for deciding the question of immediate effectiveness, but found the explanation that accompanied the rule confusing.
According to that commenter, the explanation given to the effect that a presiding officer must decide immediate effectiveness based on the adequacy of the staff's evidence alone is not consistent with the cases cited by the Commission in support of the adequate evidence test, Transco Security. Inc. of Ohio v. Freeman, 639 F.2d 318, 322-23 (6th Cir. 1981); and Horne Brothers. Inc. v. Laird, 463 F.2d 1268, 1270-71 (D.C. Cir. 1972).
Those cases, the commenter asserts, require that persons affected by an immediately effective order be given meaningful opportunity to "present information or argument" while the opportunity provided by the rule is not meaningful.
Along this same line, another commenter suggested that the adequate evidence test denies due process to a person subject to an immediately effective order in circumstances in which the 7
person's employment is at stake. According to the commenter, citing Cleveland Board of Educatjon v. Loudermill. 470 U.S. 532 (1985), due process requires the government to offer such a person some sort of pre-termination hearing as an initial check against mistaken decisions, i.e., at least an opportunity to present evidence, before giving effect to a decision terminating employment.
In the commenter's view, by allowing the presiding officer to uphold immediate effectiveness solely on the basis of NRC staff's evidence, the adequate evidence test does not meet this requirement.
Still another commenter opposed the adequate evidence test altogether and proposed in lieu thereof a preponderance of the evidence standard.
According to that commenter, the adequate evidence test made any challenge of immediate effectiveness a futile gesture since the rule required the presiding officer to uphold immediate effectiveness on the basis of the staff's evidence without having to balance it against the challenger's evidence.
The Commission has reevaluated the proposed adequate evidence test in light of the comments received and continues to believe that the test is warranted, not onl~ to sustain immediate effectiveness for health and safety considerations but for willful violations of Commission requirements and public interest considerations as well.
However, in response to the comments, the proposed rule is clarified in several respects in this final rule.
Under this final rule, the subject of an immediately effective order may move the presiding officer to set aside immediate effectiveness at the time it files an answer to the order or earlier. Such a motion must be founded on the following ground:
the order, including the need for its immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error.
For example, the motion in connection with 8
an immediately effective order suspending license operation could assert that, contrary to the order, immediate effectiveness was not necessary to protect the public health and safety. Another example could be a motion that asserts that immediate effectiveness would adversely affect the public health and safety to a significantly greater degree than allowing operation under the license in question pending final decision on the suspension order.
The motion shall be accompanied by supporting affidavits.
The response by the staff will present evidence supporting the order and its immediate effectiveness.
The presiding officer will then decide, on the basis of the information presented by the parties, whether adequate evidence to support the order and its immediate effectiveness exists warranting the staff's action.
The presiding officer may call for oral argument but is not required to do so.
The Commission expects the presiding officer to hear and decide the motion on an expedited basis, generally within 15 days of its filing.
The filing of the motion will not stay the merits proceeding before the presiding Licensing Board or Administrative Judge.
The adequate evidence test contemplated by the rule is akin to that enunciated by the court in Horne Bros., supra.
The test may be likened to the probable cause necessary for an arrest, a search warrant, or a preliminary hearing.
This is less than must be shown at the trial, but must be more than uncorroborated suspicion or accusation.
436 F.2d at 1271.
"Probable cause is deemed to exist where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed."
United States v. Hill, 500 F.2d 315, 317 (5th Cir. 1974).
Thus, in the context of the rule, adequate 9
evidence is deemed to exist when facts and circumstances within the NRC staff's knowledge, of which it has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to believe that the charges specified in the order are true and that the order is necessary to protect the public health, safety, or interest.
The Colll'f1ission believes that this test for determining immediate effectiveness has sufficient precedent, albeit in different contexts, to be understandable and workable; and that it does not violate due process.
What may not constitute a meaningful notice and opportunity to be heard in one circumstance may suffice in another.
What process is due a person requires a balancing between the government's interest and the person's private interest.
As stated by the Court in Transco:
The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation
.... [C]onsideration of what procedures due process may require under any given circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.
639 F.2d at 322, citing Cafeteria Workers v. McE]roy, 367 U.S. 886 (1960).
Due process does not require a rule that leaves the Commission impotent to act to protect the public health, safety, or interest, while its decision is being challenged by affected parties.
Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264, 299-302 (1981); Ewing v. Mytinger &
Casselberry, Inc., 339 U.S. 594, 599-600 (1950); North American Cold Storage Co. v. Chicago, 211 U.S. 306 (1908).
Due process requires only that an opportunity be granted at a meaningful time and in a meaningful manner for a hearing appropriate to the nature of the case.
Logan v. Zimmerman Brush Co.,
455 U.S. 422, 437 (1982); Mathews v. Eldridge, 424 U.S. 319 (1976).
What is 10
meaningful depends on appropriate accommodation of the competing interests involved. These include the importance of the private interest and the length or finality of the deprivation, the likelihood of governmental error, and the magnitude of the governmental interests involved.
Logan, 455 U.S. at 434.
The Commission believes that the adequate evidence test strikes a reasonable balance between the government and the private interests in the circumstances of the rule.
Where the public health, safety, or interest is threatened, the Commission must have the flexibility to take whatever protective action may be necessary, on as timely a basis as possible, without unnecessary administrative and procedural impediment.
This consideration is paramount and any right to a prior hearing on the governmental action must give way to the government's need to act rapidly and effectively.
In the Commission's judgment, the adequate evidence test meets these requirements.
It provides the Commission with room to deal with threats to the public health, safety, and interest, and in cases of willful misconduct, on a timely basis while it provides protection against-pre-hearing actions that are unsubstantially founded.
As to the suggestion to replace the adequate evidence test with a preponderance of the evidence standard, the Commission believes that the adequate evidence test allows protection of the public health, safety, or interest, while at the same time affords a substantial measure of protection
\\
to the entity that is the subject of the immediately effective order.
As noted in part by another commenter, NUMARC, the preponderance of the evidence test would provide further protection to potentially affected parties, but the additional evidence that may be required to sustain action making an order immediately effective under that test could take additional time to collect 11
and evaluate during which time a threat to the public health and safety could continue to exist and even increase.
As further noted by NUMARC, if public health and safety is threatened, the bar against issuance of a stay during the fifteen-day period contemplated for deciding the challenge to immediate effectiveness is also reasonable.
The adequate evidence test strikes a reasonable balance between the Commission's ability to protect the public health, safety, or interest on the basis of reasonably trustworthy information while still providing affected parties with a measure of protection against arbitrary enforcement action by the Commission.
In closing the discussion of this matter, it bears reminding that the adequate evidence test is not a standard for determining the merits of an immediately effective order.
The test is for use only upon challenge of immediate effectiveness at the outset of the proceeding, to protect the person or persons named in the order against having to comply with arbitrary staff action prior to a hearing on the merits.
In other words, it serves merely as a preliminary procedural safeguard against the NRC staff's taking immediately effective action ~ased on clear error, unreliable evidence, or unfounded allegations.
- 3.
Delays in the merits proceeding.
The provision allowing reasonable delays in the conduct of the proceeding on the merits of an immediately effective order was questioned.
One commenter suggested that allowing such delays on the sole basis of a showing of good cause by the staff did not give adequate consideration to the due process rights of the affected persons.
Adequate consideration of these rights, in the commenter's view, required, at a minimum, a showing of diligence in the investigation process or other proper justification for the delay. According to the commenter, these 12
matters should be resolved by the presiding officer, not by the Commission.
Another commenter questioned the appropriateness of allowing delays in the proceeding as applied to cases involving willfulness.
The commenter suggested it was inappropriate for the Commission to allow an order that is devoid of health and safety considerations to become immediately effective and then to delay the proceeding to conduct further investigations to garner additional evidence in the matter.
The Commission agrees with the thrust of these comments to the effect that a grant of any delay in the proceeding should take into consideration not only the interests of the government but of the persons affected by the order as well.
The rule is premised on that principle. It is contemplated that, under the rule, the presiding officer will grant a delay only if there is an overriding public interest for the delay. A prime example would be the temporary need to halt the proceeding where continuation would interfere with pending criminal investigation or jeopardize prosecution.
The rule also contemplates that the presiding officer will monitor any delay to ensure that good cause continues to exists for the delay.
The rule, as adopted, allows for proper consideration to be given to the public interest as well as the interests of the persons affected by the immediately effective order.
- 4.
Need for specific time limits for reaching decisions.
As noted earlier, § 2.202(c)(2) of the proposed rule authorized a person to whom the Commission has issued an immediately effective order, in addition to demanding a hearing, to move to set aside the immediate effectiveness of the order.
The proposed rule required the staff to respond within five days, after which the presiding Licensing Board or Administrative Judge was required to decide the motion expeditiously.
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One commenter suggested the need for specific time limits for reaching a decision on a motion to set aside immediate effectiveness as well as the decision on the merits.
As part of its deliberation on the proposed rule, the Commission reviewed the practicality of a fifteen-day deadline in the resolution of a motion to set aside immediate effectiveness. It concluded that such an inflexible rule would not be workable.
The Convnission decided instead that the rule should be without a fixed deadline, but that the rule should be accompanied by a strong direction that any motion to set aside immediate effectiveness would be resolved expeditiously, generally within fifteen days.
Upon reconsideration, the Commission adheres to its earlier view.
The Commission believes that the rule without a fixed deadline for decision is necessary to provide presiding officers and the Commission with the necessary time to adjust to the number and complexity of the issues that may arise in the proceeding and that the Commission's expression of the need for expedition should operate to prevent unwarranted delays.
Principally, for this reason, the Commission is leaving the proposed rule unchanged in this respect in this final rule.
In leaving the rule flexible as to the time of decision, the Commission reemphasizes the critical importance for the expedited consideration and decision on immediately effective orders including any motions to set aside immediate effectiveness.
Under 10 CFR 2.718, presiding officers have broad powers for regulating the conduct of proceedings and they are strongly reminded to use those powers to the fullest, with due regard to the rights of the parties, to accomplish the necessary expedition.
In sum, the rule intends that the presiding officers will make every effort, utilizing whatever powers are available, to hear and decide challenges to immediately 14
effective orders, including set aside motions, as expeditiously as possible.
The Commission, will also review and decide presiding officer decisions that set aside illlllediate effectiveness on an expedited basis.
Environmental Impact:
Categorical Exclusion The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(l). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.
Paperwork Reduction Act Statement This final rule contains no information collection requirements and therefore is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
Regulatory Analysis On August 15, 1991 (56 FR 40664), the Commission amended its rules of practice to make them more consistent with the Commissions's existing statutory authority and to provide the Commission with the appropriate procedural framework to take action, in appropriate cases, in order to protect the public health and safety.
The amendments also were to make clear the distinction between orders - e.g., directions to take or desist from taking certain actions - and demands for information.
Only orders were to be made immediately effective and subject to hearing, consistent with existing regulations.
Neither the preexisting regulations nor the amendments, however, contain provisions requiring that any hearing on an immediately effective order be conducted expeditiously. This rulemaking supplements the August 15 amendments by adding provisions directing the expeditious conduct of any hearing on an immediately effective order, but allowing delays in the conduct 15
of such hearings in certain circumstances where good cause for delay is shown, and establishing a separate, informal procedure for dealing rapidly with challenges to the immediate effectiveness of such order.
This rule constitutes the preferred course of action and the cost involved in its promulgation and application is necessary and appropriate.
The foregoing discussion constitutes the regulatory analysis for this rule.
Regulatory Flexibility Certification As required by the Regulatory Flexibility Act of 1980 (5 U.S.C.
605(b)), the Commission certifies that this rule will not have a significant economic impact on a substantial number of small entities.
The rule establishes the procedural mechanism for dealing with orders that are made immediately effective.
The rule, by itself, does not impose any obligations on entities including any regulated entities that may fall within the definition of small entities" as set forth in Section 601(3) of the Regulatory Flexibility Act, or within the definition of "small business" as found in section 3 of the Small Business Act, 15 U.S.C. 632, or within the Small Business Size Standards found in 13 CFR Part 121.
Such obligations would not be created until an order is issued, at which time the person subject to the order would have a right to a hearing in accordance with the regulations.
Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule and, therefore, that a backfit analysis is not required for this final rule, because this rule does not involve any new provisions which would impose backfits as defined in 10 CFR 50.109(a)(l).
16
List of Subjects in 10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is proposing to adopt the following amendments to 10 CFR Part 2.
Part 2 -- Rules of Practice for Domestic Licensing Proceedings and Issuance of Orders
- 1.
The authority citation for Part 2 continues to read as follows:
Authority:
Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.
2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.
2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub, L.97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239).
Section 2.105 also issued under Pub. L.97-415, 96 Stat. 2073 (42 U.S.C. 2239).
Sections 2.200-2.206 also issued under secs.
161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 220l(b), (i), (o), 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C.
17
5846).
Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853, as amended (42 U.S.C. 4332).
Sections 2.700a, 2.719 also issued under 5 U.S.C. 554.
Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557.
Section 2.764 and Table IA of Appendix C also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C.
2133) and 5 U.S.C. 552.
Sections 2.800 and 2.808 also issued under 5 U.S.C.
553.
Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039).
Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L.97-425, 96 Stat.
2230 (42 U.S.C. 10154).
Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239).
Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 1473 (42 U.S.C. 2135).
Appendix B also issued under sec. 10, Pub. L.99-240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).
- 2.
In§ 2.202, paragraph (c) is revised to read as follows:
§ 2.202 Orders.
(c)
If the answer demands a hearing, the Commission will issue an order designating the time and place of hearing.
(1)
If the answer demands a hearing with respect to an immediately effective order, the hearing will be conducted expeditiously, giving due consideration to the rights of the parties.
(2)(i) The licensee or other person to whom the Commission has issued an immediately effective order may, in addition to demanding a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the order on the ground that the order, 18
including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error.
The motion must state with particularity the reasons why th~ order is not based on adequate evidence and must be accompanied by affidavits or other evidence relied on.
The NRC staff shall respond within (5} days of the receipt of the motion.
The motion must be decided by the presiding officer expeditiously.
During the pendency of the motion or at any other time, the presiding officer may not stay the immediate effectiveness of the order, either on its own motion, or upon motion of the licensee or other person.
The presiding officer will uphold the immediate effectiveness of the order if it finds that there is adequate evidence to support immediate effectiveness.
An order upholding immediate effectiveness will constitute the final agency action on immediate effectiveness.
An order setting aside immediate effectiveness will be referred promptly to the Commission itself and will not be effective pending further order of the Commission.
19
(ii) The presiding officer may, on motion by the staff or any other party to the proceeding, where good cause exists, delay the hearing on the immediately effective order at any time for such periods as are consistent with the due process rights of the licensee and other affected parties.
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Dated at Rockville, Maryland, this
'::::::i day of
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' 199 y ulatory Commission.
mmission.
20
DOCKET N1 IMBER PROPOSED RULE PR N V
{__55F£ 27t,'/S C>lJclLeSl'le I ir-1-1+ Company Beaver Valley Power Station
~
II, P.O. Box4 Shippingport, PA 15077-0004 JOHN D. SIEBER Vice President - Nuclear Group Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555
~ OCI\\Li [ D USNHC
- 90 SEP 17 P 4 :Q 7 Attention:
Docketing and Service Branch
Reference:
Proposed Rule - Revisions to Procedures to Issue Orders:
Challenges to Orders That are Made Immediately Effective, 55 FR 27645 Gentlemen:
(412) 393-5255 In response to the Nuclear Regulatory Commission's (NRC) request for
- comments, the Duquesne Light Company (DLC) is submitting these comments for consideration.
The proposed
- rule, "Revisions to Procedures to Issue Orders:
Challenges to Orders That are Made Immediately Effective" (55 FR 27645), would revise the regulations governing orders to provide for the expeditious consideration of challenges to orders that are made immediately effective.
DLC is a member of the Nuclear Management and Resources Council, Inc.
(NUMARC) and we have reviewed the comments that will be submitted to the NRC by NUMARC.
DLC supports the position which NUMARC has chosen.
DLC endorses CFR Part
- 2.
the overall principle of the proposed revisions to 10 In order to protect the public health and safety,
~l1alle1-1ges to the
... validi t~f ar.d appi:*opriat'=:ness of inuncdi~tely effective orders must be resolved as quickly as possible.
- However, with respect to the recently published proposed rule on willful misconduct by unlicensed persons (55 FR 12374) we believe that the interests of the individual must be considered before delaying the proceedings on the merits in order to gather further evidence to support an immediately effective order.
If the public health and safety would not be served by such a
- delay, then it would be inappropriate to utilize the NRC's resources for such an investigation.
EB O 1 1991 Admowtedged by card.. _....... -**--**
U.S. NUCLEAR REGULA TORY COMMISSIO DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Statistics Postmark Date J { ( ':)... ( 0 Copies Received__,_ ______ _
Add'I Copies Reproduced U Special Distribution R I D5, P DR..,
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NSM:4737 Proposed Rule - Revisions to Procedures Page 2 that the comments from NUMARC as well as those described aid the NRC in their consideration of this matter.
Thank opportunity to contribute to the resolution of this DLC hopes above will you for the issue.
Sincerely, Vice President Nuclear Group
Mr. Samuel J. Chilk Secretary PROPOSED RULE l'H Z
~ )
{__55 FR. 27t/5J P.O. Box 14000, Juno Beach, FL 33408-0420 DOCKETED USNHC
- 90 SEP -7 P 3 : l 6
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- .;t\\/.U.>-i SEPTEMBER O 4 1990 L-90-319 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention:
Docketing and Service Branch Ref: Nuclear Regulatory Commission; Proposed Rule -
10 CFR Part 2 Revisions to Procedures to Issue Orders: Challenges to Orders that are made Immediately Effective; 55FR 27645 (July 5, 1990); Request for Comments
Dear Mr. Chilk:
On July 5, 1990, the Nuclear Regulatory Commission (NRC) published for public comment a proposal to revise its regulations governing orders to provide for the expeditious consideration of challenges to orders that are made immediately effective.
These comments are submitted on behalf of the Florida Power & Light Company (FPL).
FPL is an investor-owned utility serving over three (3) million customers in the State of Florida.
FPL is a licensed operator of two nuclear power plant units in Dade County, Florida and two units in st. Lucie County, Florida.
FPL favors the concept of expeditious procedural treatment of a challenge to an order the NRC determines should be made effective immediately.
FPL is pleased that the NRC has taken into account considerations of fairness and the rights of the parties in this proposed revision of 10 CFR § 2.202.
There may be occasions when a person aggrieved by an immediately effective order can make a proper showing that the order should not take effect immediately.
On such occasions, the challenger's motion to set aside immediate effectiveness should be heard and decided as expeditiously as possible.
FPL appreciates the NRC's recognition of the likelihood of these occurrences and the NRC's effort to decide them fairly and promptly.
However, in keeping with the spirit of the proposed rule and the considerations of fairness which inform the proposed rule, FPL suggests that the NRC consider these further revisions to Section 2.202(c)(2):
an FPL Group company fEB ll l 199\\,
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Mr. Samuel J. Chilk Page 2
- 1.
The "adequate evidence" standard should be replaced with a "preponderance of the evidence" standard.
- 2.
The NRC should impose a time limit for the rendering of a decision by the presiding officer after the staff responds to a motion to set aside.
- 3.
The NRC should impose a time 1 imi t to assure the Commission's prompt review of a presiding officer's order granting a motion to set aside.
FPL believes these further revisions will improve the proposed rule for the following reasons:
Evidence Standard The proposed rule states that "[t]he presiding officer shall uphold the immediate effectiveness of the order if it finds that there is adequate evidence to support immediate effectiveness."
Proposed Section 2.202(c) (2), 55 FR 27648.
In the statement of background information, the NRC states that adequate evidence is deemed to exist when facts and circumstances within the NRC staff's knowledge, of which it has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to believe that the charges are true and/or that the action specified... is necessary to protect the public health, safety or interest.
The NRC further states that the "adequate evidence" standard does not require "a balancing of evidence between that provided by the NRC staff and that provided by the person seeking to set aside immediate effectiveness" and that "[i]t is not a preponderance of the evidence test."
FPL believes that the stringency of an immediately effective order compels a more stringent evidence test to affirm such orders.
The staff should bear the burden of persuading the presiding officer that an order should be immediately effective, despite a challenge to the order, by a preponderance of the evidence.
FPL believes that the rule should provide for a balancing of the evidence.
As drafted, the proposed rule requires the presiding officer to decide whether the staff's evidence is "adequate" or "sufficient,"
and if it so finds, "the presiding officer is required to uphold the immediate effectiveness of the order."
55 FR 27646 (emphasis added).
Indeed, the NRC states that the presiding officer "must
Mr. Samuel J. Chilk Page 3 view the evidence presented in a light most favorable to the staff and resolve all inferences in the staff's favor."
- Thus, even though a challenger has an opportunity to present evidence in support of its motion to set aside, it appears that the probable result in most of these proceedings will be a decision against the challenger.
The "adequate" or "sufficient" evidence standard seems to us to make the motion to set aside a futile gesture.
Absent some requirement of deliberation or weighing of the evidence presented by both the staff and the challenger, the presiding officer appears to be encouraged to "rubber stamp" the staff's actions.
We recommend a rewording of the "adequate evidence" sentence in proposed Section 2.202(c) (2):
The presiding officer shall uphold the immediate effectiveness of the order if a preponderance of the evidence supports immediate effectiveness.
Time Limit for Presiding Officer's Decision FPL recommends that the NRC impose a time limit for the rendering of a decision by the presiding officer after the staff responds to a motion to set aside.
The proposed rule requires the staff to respond to a
challenger's motion to set aside immediate effectiveness "within five (5) days of the filing of the motion."
Thereafter, the proposed rule provides only that the motion shall be decided "expeditiously." Although the proposed rule confers on the presiding officer the discretion to compress time schedules "to assure expeditious consideration and disposition of the motion,"
FPL believes that a time limit should also be fixed in the proposed rule for the rendering of the presiding officer's decision.
We suggest a limit of five (5) days after the filing of the staff's response to the motion to set aside.
As it appears that there may be no opportunity for an oral argument or presentation on the motion, and because the proposed rule clearly provides that there shall be no stay of immediate effectiveness "during the pendency of the motion or at any other time," FPL believes that expedited treatment can be better assured by imposing a time limit for the rendering of the presiding officer's decision.
A time limit may also work to lessen the hardship or burden of a challenger's compliance with the order, if the challenger claims a hardship or burden in the circumstances of a particular case.
Mr. Samuel J. Chilk Page 4 Time Limit for commission Review of an Order Granting the Motion to set Aside Similarly, FPL believes that the proposed rule should be revised to impose a time limit on the Commission's review of a presiding officer's order granting a challenger's motion to set aside.
As drafted, the proposed rule provides that such an order "will be referred promptly to the Commission itself" but the order to set aside "will not be effective pending further order of the Commission."
Proposed Section 2.202(c) (2), 55 FR 27648 (emphasis added).
Nothing in the proposed rule indicates how promptly the Commission will act on the order granting the motion to set aside immediate effectiveness.
In its statement of background information, the NRC notes its expectation that the motion to set aside should be decided "within fifteen (15) days of the date the hearing request and accompanying motion are referred to the presiding officer."
FPL proposes to formalize that expectation by fixing a time limit of five (5) days for the Commission's review of orders favoring challengers.
FPL recommends a
revision of the proposed rule to provide for Commission review of the presiding officer's order within five (5) days of the filing of such order.
FPL appreciates having this opportunity to comment on the proposed rule and to offer our suggestions for further revisions to Section 2.202.
We believe that our suggested revisions will improve the rule and will assure fairness, prompt action and due consideration of the rights and interests of private parties, the NRC and its staff, and the public.
We would welcome the opportunity to discuss our comments and concerns with the NRC staff.
Yours very truly, William H. Bohlke Vice President Nuclear Engineering and Licensing
DOCKET NUMBER PR ~
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OOCKUED NUCLEAR MANAGEMENT AND RESOURCES COUNCIL USNRC 1776 Eye Street, NW.
- Suite 300
- Wa shington, DC 20006-2496 r2021 872-1280
- 90 SEP -6 P 2 :O 7 Joe F. Colvin Executive Vice President &
Chief Operating Officer Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention:
Docketing and Service Branch RE:
Proposed Rule - Revisions to Procedures to Issue Orders; Challenges to Orders that are Made Immediately Effective 55 Fed. Reg. 27645 {July 5, 1990)
Request for Comments
Dear Mr. Chilk:
These comments are submitted by of the Nuclear Management and Resources Council, Inc. ("NUMARC") in response to the request of the U.S. Nuclear Regulatory Commission ("NRC") for comments on the proposed rule, "Revisions to Procedures to Issue Orders; Challenges to Orders that are Made Immediately Effective" (55 Fed. Reg. 27645 - July 5, 1990).
NUMARC is the organization of the nuclear power industry that is responsible for coordinating the combined efforts of all utilities licensed by the NRC to construct or operate nuclear power plants, and of other nuclear industry organizations, in all matters involving generic regulatory policy issues and on the regulatory aspects of generic operational and technical issues affecting the nuclear power industry.
Every utility responsible for constructing or operating a commercial nuclear power plant in the United States is a member of NUMARC.
In addition, NUMARC's members include major architect-engineering firms and all of the major nuclear steam supply system vendors.
NUMARC supports the principle that a challenge by the recipient of an immediately effective order should be heard expeditiously and supports modifications to 10 C.F.R. Section 2.202 to accomplish that purpose.
The industry is in accord with the rule's purpose, as articulated in SECY-90-074, to "provide a party adversely affected by an immediately effective enforcement order with due process while allowing the Commission sufficient latitude to protect the public health and safety when immediate action is necessary."
Because any immediately effective order must by necessity require prompt action to protect public health and safety, a challenge by an order's recipient of to the validity and appropriateness of such an order should be resolved promptly.
However, we have concerns that in three areas the proposed rule deviates from that fundamental purpose.
First, as documented in the NUMARC comments filed on June 18, 1990, the nuclear industry has serious reservations about Re o 11991 -..,
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- J.S. NUCLEAR REGULATORY COMMISSION DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Statistics Poslmark Date ct* / 3/4 ( 5 0 Copies Received__.__' _____ _
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Mr. Samuel J. Chilk September 4, 1990 Page 2 the content, approach and implications of the NRC's proposed rules dealing with willful misconduct by unlicensed persons (55 Fed. Reg. 12374 - April 31, 1990) and related revisions to procedures to issue orders (55 Fed. Reg. 12370
- April 3, 1990).
We are concerned about the application of this proposed rule in those contexts.
Second, we believe that the Commission's choice of the "adequate evidence" standard appears to strike a reasonable balance between the Commission's ability to take necessary protective action to protect public health and safety on the basis of reasonably trustworthy information while still providing affected parties with a measure of protection against enforced compliance with an order that is without foundation.
Although the "preponderance of the evidence" test would provide further protection to potentially affected parties, it is conceivable that the additional modicum of evidence required under that test could take additional time to collect and during which time a threat to public health and safety could exist. If public health and safety is truly threatened, it is also reasonable that the effectiveness of an order not be stayed for the fifteen-day period during which the motion to set aside the immediate effectiveness of the order will be decided.
However, in the case of the alleged willful misconduct of an individual which does not threaten public health and safety, the NRC has provided no basis for its decision in the proposed rule that the presiding officer should not be able to issue a stay of the immediate effectiveness of an order pending resolution of the matter on the merits.
In that case, the balance of the governmental interest with a private interest should favor the private interest.
Third, the proposed rule states that the NRC intends to allow a proceeding on the merits to be delayed "where good cause exists," the example cited being to allow for further NRC investigation or for the Department of Justice to undertake a criminal investigation.
55 Fed. Reg. at 27646, third column.
If a matter was of such import that an order had to have been made immediately effective to protect public health and safety, it is difficult to posit a circumstance in which that matter ought not to be brought to speedy resolution.
The prospect that an immediately effective order could be issued against an individual for alleged willful misconduct on the basis of the "adequate evidence" standard, yet the proceeding on the merits be delayed to enable further evidence to be gathered, is not an appropriate exercise of Commission authority. This underscores the inappropriateness of imposing an immediately effective order with regard to alleged willful misconduct without a finding that public health and safety so requires.
Thus, although the nuclear industry agrees with the principle articulated in the proposed amendments to Section 2.202, we do not believe that the aspects of the proposed rule discussed above are a reasonable, appropriate or justifiable exercise of the Commission's authority.
If public health and safety is threatened, there can be no question regarding the Commission's responsibility to take prompt action.
In cases of alleged willful misconduct that does not pose a threat to public health and safety,
Mr. Samuel J. Chilk September 4, 1990 Page 3 however, the issuance of an immediately effective order should be tempered by considerations of an individual's rights to prompt resolution of the matter.
We request that these comments be considered in concert with the comments filed by NUMARC on June 18, 1990, on the NRC's companion proposed rules on willful misconduct and revisions to orders proceedings.
We would appreciate the opportunity to discuss our concerns further as the Commission may deem appropriate.
Sincerely, JFC/RWB:bb rflu-<1-~,
~
F. Colvin
DOCKET NUMBER PR
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PROPOSED RULE..-;..;.;._~---. 1 c-)
( 65 FR z 1IP>r Ej PHILADELPHIA ELECTRIC COMPANY NUCLEAR GROUP HEADQUARTERS 955-65 CH ESTERBROOK BL VD.
WAYNE, PA 19087-5691 (ZI 5) 640-6000 L UL.K[ i E[*
U~NRC
- 90 SEP -5 P 3 :43 September 4, 199 0 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Attn: Docketing and Service Branch Washington, DC 20 55 5
Subject:
Comments Concerning the Nuclear Regulatory Commiss i on' s Proposed Rule 10 CFR 2, "Revisions to Procedures to Issue Orders: Challenges to Orders that are made Immediately Effective" (55 FR 27645, dated July 5, 199 0)
Dear Mr. Chilk:
This letter is being submitted in response to the Nuclea r Regulatory Commission's (NRC's) request for comments regarding the Proposed rule 10 CFR 2, "Revisions to Procedures to I ssue Orders: Challenges to Orders that are Made Immediately Effective," published in the Federal Register (55 FR 27 645, dat ed July 5, 1990).
The Philadelphia Electric Company (PECo) appreciates the opportunity to comment on this proposed rule.
PECo endorses the Nuclear Management and Resources Council's (NUMARC's) position and comments ccncerning this proposed rule.
If you have any questions, please do not hesitate to contact us.
sza.z:;,;
G. A. Hunger, Jr.
Manager Licensing Section Nuclear Engineering and Services
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['OGKEi EO SHAW, PITTMAN, POTTS & TROWBRi~8:fE A PARTNERSH IP INCLUDING PROFESSIONAL CORPORATIONS TELEX/CA BLE 89-2693 (SHAWLAW WSH)
T ELEPHONE (202) 663 -8215 DEBORAH B. CHARNOFF 2300 N STREET, N. W.
WASHINGTON, D. C. 20037 September 4, 1990 Secretary of the Commission United States Nuclear Regulatory Commission Washington, D.C.
20555 At tn:
Docketing and Service Branch
- 90 SEP -5 P 4 :02 Re:
Proposed Rule on Procedure for Challenging Immediately Effective Orders
Dear Mr. Chilk:
VI RGINIA OFFICE 1501 FARM CREDIT DRIVE MCLEAN, VIRGINIA 22102 (703) 790-7900 FACSIM ILE (202) 663*8007 On behalf of Bechtel North American Power Corp., Rosemount, Inc., Union Electric Company, and Wisconsin Electric Power Com-pany we submit the following comments on the proposed rule enti-tled "Revisions to Procedures to Issue Orders that are Made Imme-diately Effective," 55 Fed. Reg. 27645 (July 5, 1990).
We also endorse the comments filed today on this proposal by the Nuclear Management and Resources Council, Inc. ("NUMARC").
In general, we support the proposed rule's purpose of pro-viding the opportunity and the procedures for the expedited con-sideration and disposition of challenges to NRC orders that are made immediately effective.
Our major concerns with the proposal are in the description of the application of the proposal pro-vided in the accompanying Supplementary Information.
We do not oppose the use of an "adequate evidence" standard for deciding the question of immediate effectiveness.
- However, the discussion of the "adequate evidence" standard contained in the Supplementary Information is very confusing.
The Supplementary Information articulates the following def-inition of "adequate evidence," relying on United States v. Hill, 500 F.2d 315, 317 (5th Cir. 1974):
When facts and circumstances within the NRC staff's knowledge, of which it has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to believe that the charges of willful fEB O 1 1991
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SHAW, PITTMAN, POTTS & TRO W BRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Secretary of the Commission September 4, 1990 Page Two misconduct, if any, contained in the order are true and/or that the action specified in the order is necessary to protect the public health, safety or interest.
55 Fed. Reg. at 27646.
This definition, which requires a factual showing by the NRC staff of "reasonably trustworthy" information, seems adequate.
However, its subsequent explanation by the NRC does not.
Specifically, the Supplementary Information states that the proposed standard does not "call for a balancing of evidence between that provided by the NRC staff and that provided by the person seeking to set aside immediate effectiveness."
Id.
In fact, the Supplementary Information states that the presiding officer is required to uphold the immediate effectiveness of an order, irrespective of the evidence established by the recipient of the order, if the NRC staff meets the "adequate evidence" s t andard.
Id.
This is patently wrong.
It also substantially reduces boththe usefulness and the fairness of the process which the proposed rule would establish.
The cases on which the Supplementary Information relies test the adequacy of immediate effectiveness procedures by ascertain-ing whether an opportunity is afforded to the adversely affected party to rebut an adequate evidence finding; that is, the oppor-tunity to "present information or argument" in opposition to the immediately effective action taken by the agency.
Transco Secu-rity Inc. of Ohio v. Freeman, 639 F.2d 318, 322-23 (6th Cir.
1981); see also Home Brothers, Inc. v. Laird, 463 F.2d 1268, 1270-71(0.--r-cir. 1972).
In contrast, the Supplementary Infor-mation suggests that once the NRC staff presents an affidavit supporting the need for an immediately effective order, the recipient of the order apparently is not permitted to overcome that presentation whether by information or argument.
And yet this opportunity is precisely the purpose of a motion to set aside immediate effectiveness.
Without concurring with it, we can appreciate the NRC's decision to not utilize a preponderence standard in immediate effectiveness decisionmaking.
But, as the Court stated in Transco, regulations which take immediate action before providing a full opportunity to challenge must accommodate the "conflicting interests" of the agency and the affected party.
639 F.2d at 322.
This accommodation includes the opportunity to meaningfully challenge the reasons for the immediately effective government action.
Id. at 322-23.
SHAW, PITTMAN, POTTS & TRO WB RIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIO N S Secretary of the Commission September 4, 1990 Page Three Secondly, we find unpersuasive the NRC's stated reason for delaying proceedings on the merits of immediately effective orders, viz., "the need for further investigation by the Commis-sion or the U.S. Department of Justice."
As the U.S. Court of Appeals for the D.C. Circuit observed in Home Brothers, one of the three cases referenced by the NRC in the Supplementary Information:
While we may accept a temporary suspension for a short period, not to exceed one month, without any provisions for according such opportunity [to confront his accusers and to rebut the "adequate evidence" against him].
, that cannot be sustained for a protracted suspension.
463 F.2d 1268, 1270 (D.C. Cir. 1972).l/ While we recognize the need to balance the government and private interests that are involved, the due process rights of an aggrieved party are very substantial in these cases, particularly when an NRC order that adversely affects an individual or company is made immediately effective.
These rights cannot be easily overcome, and certainly are not automatically outweighed by NRC staff delays or exten-s i ons in its investigation process.
At a minimum, resolution of such matters should require a showing of diligence in the inves-t i gation process, as well as reconsideration of the NRC's need to continue to impose the order while the matter is investigated further.
Moreover, these matters should be resolved by an inde-pendent presiding officer; yet neither the proposed rule nor the Supplementary Information contemplates that a presiding officer will rule on a motion to delay the hearing on the merits.
Instead, it is the Commission which will exercise that power.
See 10 C.F.R. § 2.202(c)(3) (as proposed), 55 Fed. Reg. at 27648 and 27646.
In conclusion, we encourage the NRC to provide to those affected by its decisions the opportunity to meaningfully partic-ipate in the decisionmaking process.
We believe that with the l/
We note that the case to which the Supplementary Information refers to support delays in the proceedings on the merits is a case in which the agency was found to have violated the due process rights of an individual by denying him the opportunity to be heard.
See Logan v. Zimmerman Brush Co.,
455 U.S. 422 (1982).
Moreover, in Logan, the Supreme Court stated, "Here of course, we are not concerned with the tim-ing of the required review on the merits."
Id. at 434 n.8.
SHAW, PI T TMA N, POT TS & T ROWBR I DG E A PARTNERS HI P INCLU DING PRO F ESS IONAL CO R PORAT IO N S Secretary of the Commission September 4, 1990 Page Four modifications we have proposed herein, the NRC ' s proposed rule on the procedure for challenging immediately effective orders could be a useful modification to the NRC's rules of practice.
Respectfully submitted, v~._t (5 ~'fl=)
Deborah B. Charnoff
&/262j:s5443. 90
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WASHINGTON, D.C. 20005-3502 (202) 371-5700
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- 1. l'ELE:~ '-'.1-40574 '1NTL'AW Ul TELEC0P16R (202) 371-5950 September 4, 1990 Mr. Samuel J. Chilk Secretary of the Commiss i on U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention:
Docketing and Service Branch Re:
Notice of Proposed Rulemaking:
Revisions to Procedures to Issue Orders -- Challenges to Orders that are Made Immediately Effective 55 Fed. Reg. 27,645 (July 5, 1990)
Dear Mr. Chilk:
In accordance with the above-captioned Notice of Propos ed Rulemaking, we submit the following comments on behalf of Duke Power Company, Entergy Operations, Inc., Niagara Mohawk Power Corp., Northeast Utilities, Rochester Gas & Electric, TU Electric, and Washington Public Power Supply System.
The proposed revision to the NRC's Rules of Practice i n 10 C.F.R. Part 2 would define a process for challenges to the immediate effectiveness of orders.
Such a challenge would be made at the outset of the proceeding and would be entitled to expedited consideration and disposition.
In addition, the proposal would also require that a challenge to the merits of an immediately effective order be heard expeditiously, except where good cause exists for delay.
These comments are intended to supplement our earlier comments (filed June 18, 1990) on the proposed rules concer ning procedures to issue orders (55 Fed. Reg. 12,370 (April 3, 199 0))
and willful misconduct by unlicensed persons (55 Fed. Reg. 12, 374 (April 3, 1990)).
We continue to question the NRC's jurisd iction to issue orders against unlicensed individuals solely because those persons are engaged in conduct that "arise[s] out of activities within the jurisdiction" of the NRC.
In addition, we maintain that as a policy matter, the proposed willful misconduct rule (to be enforced utilizing the proposed rule on order s) could undermine morale at nuclear power plants.
Nevertheless, a ssuming the NRC is determined to go forward with the proposed rule on ifEB O 1 1991 __ ~
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Mr. Samuel J. Chilk September 4, 1990 Page 2 orders, we offer the following comments on the newly-proposed immediate effectiveness aspects.
I.
Summary In general, we agree that the rule on orders should allow for challenges to the immediate effectiveness of an order, and that such challenges should be heard expeditiously.
In addition, hearings on the merits of effective orders should also be expedited.
However, we raise three concerns with respect to the newly-proposed rule.
First, the "adequate evidence" standard that would be used to determine whether an order should be made immediately effective does not allow for a balancing of conflicting evidence or a weighing of the affected interests of the government and those of the person subject to the order.
This standard is especially inappropriate where applied to orders that would prevent an individual from pursuing a livelihood.
Second, any rule permitting immediately effective orders should require a specific finding that the public health, safety, and interest so requires.
The rule, as presently proposed, lacks any standard for immediate effectiveness.
However, the preamble suggests that an allegation of willfulness is alone sufficient to justify immediate effectiveness of an order against an individual.
This standard is not justified, and would offer insufficient opportunity for the targeted individual to be heard prior to effectiveness of the order.
Third, the proposed rule lacks specific time periods in which a hearing requested concerning an immediately effective order must be held and in which a motion challenging the immediate effectiveness of an order must be decided.
Strict time limits for these events should be incorporated into a final rule on immediately effective orders.
II.
Discussion
- 1.
Adequate Evidence Standard Upon a motion to set aside the immediate effectiveness of an order, the proposed rule sets an "adequate evidence" standard for the hearing officer to apply in determining whether the order shall be immediately effective.
The NRC has adapted this standard from government contracts bidding cases.
We believe, however, that the use of an "adequate evidence" standard is inappropriate in this proposed rule, particularly if the rule is applied to deprive an individual of his or her livelihood.
Where
Mr. Samuel J. Chilk September 4, 1990 Page 3 such important individual interests are at stake, some opportunity to be heard, and some weighing of evidence and affected interests, is appropriate.
The NRC's proposed use of the "adequate evidence" standard is described only in the preamble to the proposed rule.
See 55 Fed. Reg. 27,645, at 27,646.
Essentially, the rule -- as described there -- would call for the presiding officer to uphold immediate effectiveness of an order based only on information from the NRC Staff.
There would be no balancing of the evidence provided by the NRC Staff and that offered by the defendant (i.e., the person seeking to set aside immediate effectiveness).
Id. at col. 2.
This amounts to no pre-effectiveness opportunity to challenge the Staff's basis for immediate effectiveness.
The use of an "adequate evidence" standard in the context of an order impacting an individual's employment is especially inappropriate.
Under the proposed standard, the presiding officer could, on the basis of evidence that might be without foundation or effectively contradicted upon presentation of conflicting evidence, prohibit an employee from working at a nuclear power plant.
An employee must be afforded an opportunity to at least informally present evidence that might contradict the evidence presented by the NRC Staff, and the presiding officer must be allowed to weigh that evidence..l/
In the cases cited in support of the "adequate evidence" standard, government contractors were suspended from bidding on government contracts under a standard of "adequate evidence" of improper or unlawful activities.
Transco Security Inc. v.
Freeman, 639 F.2d 318 (6th Cir. 1981); Horne Bros., Inc. v.
Laird, 463 F.2d 1268 (D.C. Cir. 1972).
These cases that applied an "adequate evidence" standard involved the prevention of corporations from bidding on particular government contracts.
In the case of alleged willful misconduct by an employee of an NRC licensee, however, the use of this standard could have an extreme and immediate impact on an individual's ability to earn a living.
We feel that a higher evidentiary standard is warranted.y
.l/
We are not suggesting that the presiding officer needs to reach a formal determination on the merits of the matter.
However, some preliminary consideration of the merits seems appropriate (particularly in a case affecting an individual's livelihood) prior to effectiveness of the order.
In addition, in a case involving an individual, as discussed below, there usually will be no health and safety risk driving the need for an immediately effective order.
y Compare Cleveland Board of Education v. Loudermill, 470 U.S.
532 (1985).
Loudermill, a security guard, had been (Footnote 2 continued on next page.)
Mr. Samuel J. Chilk September 4, 1990 Page 4
- 2.
Standard for Immediate Effectiveness Another deficiency in the proposed revision to the Rules of Practice is the lack of any standard for determining when an order should be immediately effective.
In the original version of proposed Section 2.202, the following paragraph (e) was included:
When the Commission finds that the public health, safety, or interest so requires or that the violation or conduct causing the violation is willful, the order may provide, for stated reasons, that the proposed action be immediately effective pending further order.
55 Fed. Reg. at 12,373 (emphasis added).
This paragraph set out a standard to be met (albeit, one with which we do not agree) by the NRC before making an order immediately effective.
However, in the latest version of the proposed rulemaking, no such standard is included.
The Federal Register notice of the proposed rule gives no explanation for the deletion of formerly proposed Section 2.202(e).
Nevertheless, in the preamble to the proposed rule, the NRC hints that a standard similar to the earlier proposed standard is to be applied:
[A]dequate evidence is deemed to exist when facts and circumstances within the NRC staff's knowledge, of which it has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to believe that the charges of willful misconduct, if any, contained in the order are true and/or that the action specified in the order is necessary to protect the public health, safety, or interest.
(Footnote 2 continued from previous page.)
discharged when it was discovered that he had previously been convicted of a felony.
On his job application he had denied any such conviction.
The Court found that some kind of pre-termination "hearing" was necessary.
Such a hearing "need not definitively resolve the propriety of the discharge," but "should be an initial check against mistaken decisions."
Id.
at 545.
This implies an opportunity to present evidence for the defense.
It also implies more than the "adequate evidence" standard apparently envisioned by the NRC.
Mr. Samuel J. Chilk September 4, 1990 Page 5 55 Fed. Reg. at 27,646.
We believe that this standard is too low
-- any immediately effective order should be supported by a public health and safety need.
Where an individual's livelihood is at stake, due process concerns should be paramount.
The Supreme Court has long supported the notion that in determining what process is due to an individual, a government agency must balance the individual's interest at stake, the risk of erroneous deprivation of the individual's rights under the procedures used, and the government's interest, including cost to the government of providing additional procedures.
Matthews v. Eldridge, 424 U.S.
319 (1976).
Under the proposed revision to the Rules of Practice, an individual could be denied important rights prior to any opportunity for a hearing (that is, if the order is made immediately effective).
We concur that where public health and safety is at stake, the governmental and public interests clearly outweigh the licensee's interest in a hearing before effectiveness.
- However, this is not the case where the order is to an individual and effectiveness is based only on an allegation that the individual's cited behavior was willful.
In this scenario, there is no strong government interest in immediate effectiveness, and the defendant's interests in being heard are substantial.
As currently proposed, the NRC Staff is not required to establish any particular government interest in such a severe action.
Accordingly, we respectfully urge the Commission, if it chooses to promulgate the rule in question, to (1) restore to the rule a clear threshold for what orders should be made immediately effective, and to (2) permit -- in that threshold -- immediate effectiveness only when such effectiveness is required to protect the public health and safety.
- 3.
Timing of the Hearing on Immediate Effectiveness Another area where clarification is warranted concerns the timing of a hearing with respect to an immediately effective order and the timing of a decision on a motion challenging the immediate effectiveness of an order.
Proposed Section 2.202(c) (1) provides the following:
If a hearing is demanded, the Commission will issue an order designating the time and place of the hearing.
If a hearing is demanded with respect to an immediately effective order, the hearing will be conducted
Mr. Samuel J. Chilk September 4, 1990 Page 6 expeditiously, giving due consideration to the rights of the parties.
55 Fed. Reg. at 27,648 (emphasis added).
Similarly, proposed Section 2.202(c) (2) provides that, if a person files a motion challenging the effectiveness of an order pending the outcome of the proceeding, the "motion shall be decided by the presiding officer expeditiously before any other matters unnecessary to the disposition of the motion."
55 Fed.
Reg. at 27,648 (emphasis added).
The use of the term "expeditiously" in both of these contexts is troublesome.
Where a person's livelihood is already suspended and in jeopardy of termination by an immediately effective order, a hearing should be held and motions should indeed be decided expeditiously as a matter of due process.
However, the word "expeditiously" alone in the regulation provides little comfort.
This does not provide a finite time frame within which a motion challenging immediate effectiveness will be heard or within which a hearing concerning an immediately effective order must be held.
If the Commission chooses to promulgate this rule, a fixed time limit should be established for each of these two events.
We suggest that the rule provide for a hearing and decision on immediate effectiveness within 10 days, followed by a 30-day period for a hearing/decision on the merits if immediate effectiveness is granted.
Such a procedure and schedule can be analogized to the process for obtaining injunctive relief in civil litigation.
Moreover, proposed Section 2.202(c) (2) further provides that an order of a presiding officer setting aside immediate effectiveness will not itself become effective pending a further order of the Commission.
While this step might be appropriate where the original order was promulgated by the Commission, the procedure introduces another potentially harmful delay in the process.
We suggest that the presiding officer be delegated authority to overturn immediately effective orders in a time consistent with the discussion above.
III.
conclusion As discussed above, we continue to disagree with the scope of the proposed rule on orders in that it would apply to individuals employed by NRC licensees.
However, assuming this rule is adopted, we concur with the intent of the latest proposed revision insofar as it would provide for early challenges to the immediate effectiveness of orders.
The comments discussed above are intended to further improve this rule -- particularly as it relates to individual non-licensees.
Mr. Samuel J. Chilk September 4, 1990 Page 7 As always, we appreciate this opportunity to comment.
submitted,
- BISHOP,
& REYNOLDS
Georgia Power Company 333 Piedmont Avenue Atlanta, Georgia 30308 Telephone 404 526-3195 Mailing Address 40 Inverness Center Parkway Post Office Box 1295 Birmingham, Alabama 35201 Telephone 205 868-5581 DOCKET NUMBER PROPOSED RULE PR z,,
(55 F,t 27t,'-/-v
{])
the southern electnc system W. G. Hairston, Ill Senior Vice President Nuclear Operations Docket Nos.
50-321 50-366 September 4, 1990 50-424 50-425 Mr. Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTN: Docketing and Service Branch Comments on Proposed Rule "Revisions to Procedures to Issue Orders; Challenges to Orders that are Made Immediately Effective" (55 Federal Register 27645 of July 5, 1990)
Dear Mr. Chilk:
DOCKETED L-12-9~
LSb:no6 ooCKET':-iG &
SERVICE BRANC SECY-NRC Georgia Power Company has reviewed the proposed rule, 10 CFR Part 2, "Revision to Procedures to Issue Orders; Challenges to Orders that are Made Immediately Effective, " published in the Federal Register on July 5, 1990.
In accordance with the request for comments, Georgia Power Company is in total agreement with the NUMARC comments which are to be provided to the NRC.
Should you have any questions, please advise.
Respectfully submitted, lU,v. /~vii-=
W. G. Hairston, III WGH,III/JMG
,f£B O l 1991 AcboMadged
"'cant I 1111 I I hlS!iiillCOUihlft
U.S. NUCLEAR REGULATORY COMMISSION DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Statistics Postmark Date r I '{ 17 0 Co~esReceived._1
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Mr. Samuel J. Chilk Page 2 cc: Georgia Power Company Mr. J. T. Beckham, Jr., Vice President - Nuclear, Plant Hatch Mr. C. K. McCoy, Vice President - Nuclear, Plant Vogtle Mr. G. Bockhold, Jr., General Manager - Plant Vogtle Mr. H. C. Nix, General Manager - Plant Hatch NORMS U. S. Nuclear Regulatory Commission, Washington, DC Mr. L. P. Crocker, Licensing Project Manager - Hatch Mr. T. A. Reed, Licensing Project Manager - Vogtle U. S. Nuclear Regulatory Commission, Region II Mr. S. 0. Ebneter, Region~l Administrator Mr. J. E. Menning, Senior Resident Inspector - Hatch Mr. B. R. Bonser, Senior Resident Inspector - Vogtle
Alabama Power Company 40 Inverness Center Parkway Post Office Box 1295 Birmingham, Alabama 35201 Telephone 205 868-5581 DOCKET NUMBER PROPOSED RULE PR z
(?s t=e 271p4s-.J (i;)
A W. G. Hairston, Ill Senior Vice President Nuclear Operations Alabama Power Docket Nos.
50-348 50-364 Mr. Samuel J. Chilk Secretary of the Commission September 4, 1990 U.S. Nuclear Regulatory Commission Washington, DC 20555 ATTN: Docketing and Service Branch Comments on Proposed Rule the southern electric system DOCKEit:O SEP O 4 ~ eo OCCKETHlG &
SERVICE ORANCH SiiCY*NRG "Revisions to Procedures to Issue Orders; Challenges to Orders that are Made Immediately Effective" (55 Federal Register 27645 of July 5, 1990)
Dear Mr. Chilk:
Alabama Power Company has reviewed the proposed rule, 10 CFR Part 2, "Revision to Procedures to Issue Orders; Challenges to Orders that are Made Immediately Effective," published in the Federal Register on July 5, 1990.
In accordance with the request for comments, Alabama Power Company is in total agreement with the NUMARC comments which are to be provided to the NRC.
Should you have any questions, please advise.
WGH,111/JMG cc: Mr. S. D. Ebneter Mr. S. T. Hoffman Mr. G. F. Maxwell Respectfully submitted, w). ~
W. G. Hairston, III BO
~~\\
Acknowledged by card*""-""""'"............ -
U.S. NUCLEAR REGULAl ORY COMMISSION DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Statistics Postmark Date q f tf / 7* D Copies Received_'_!_ ' ~----
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DOCKET NUMBER R PROPOSED RULE, 2 Tiv h (508) 779 6711 YANKEE ATOMIC ELECTRIC COMPANYfss FR 2 7~1s iw~n~10-3EJ0-16;9 ~ /
~
rocKE1ED
~
GM) 580 Main Street, Bolton, Massachusetts 01 ?,jba-:;:: p 4 :26 August 22, 1990 SPS 90- 139 FYC 90- 015 Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention:
Docketing and Service Branch
References:
(a)
USNRC Proposed Rule, "Revisions to Procedures to Issue Orders:
Challenges to Orders that are Made Immediately Effective" (55FR27645)
Subject:
(b)
USNRC Proposed Rule, "Revisions to Procedures to Issue Orders" (55FR12370)
(c)
Letter, YAEC to USNRC, FYC 90- 011, dated June 18, 1990 Revisions to Procedures to Issue Orders:
Challenges to Orders that are Made Immediately Effective (55FR27645)
Dear Mr. Chilk:
Yankee Atomic Electric Company (YAEC) appreciates the opportunity to comment on the "Revisions to Procedures to Issue Orders:
Challenges to Orders that are Made Immediately Effective," 55FR27645, dated July 5, 1990
[Reference (a)].
YAEC owns and operates a nuclear power plant in Rowe, Massachusetts.
Our Nuclear Services Division (NSD) also provides engineering and licensing services for other nuclear power plants in the Northeast, including Vermont Yankee, Maine Yankee, and Seabrook.
Background
On April 3, 1990, the Commission published in the Federal Register proposed changes to 10CFR, Part 2, Subpart B, revising its procedures to issue orders [Reference (b)].
These revisions were proposed by the Commission to more accurately reflect the NRC's existing statutory authority to issue orders and to specify the type of Commission orders to which hearing rights attach.
By letter dated June 18, 1990 [Reference (c)], YAEC, while agreeing with the Commission's intent behind the proposed rule and acknowledging in principle the concern addressed, stated strong disagreement with the basis, scope, and necessity of the proposed remedy.
In that letter, YAEC urged the Commission not to adopt the proposed regulation.
01 Acknowledged by card.....,, n if!CISS.AfttHNIHWfll
U.S. NUCLEAR REGULATORY COMMISSION DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Statisbcs Postmark Date <i / ~ 3 ( q O Co~esReceived _ _
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U.S. Nuclear Regulatory Commission Attention:
Docketing and Service Branch August 22, 1990 Page 2 Upon further consideration of this proposed regulation, the Commission provided subsequent notice [Reference (a)] of additional changes it felt should be made to Supart B.
The Commission determined that there were no provisions under the existing rule or under the proposed regulation that specifically required that challenges to orders issued under 10CFR2.202, including challenges to the immediate effectiveness of such orders, be heard expeditiously.
These additional proposed changes are the subject of this comment letter.
Comment The stated objectives of the subject proposed rule are to:
(1) provide a vehicle specifically allowing for early and speedy challenge to the immediate effectiveness of an order issued under 10CFR, Part 2.202, and (2) provide that any hearing upon an order made immediately effective be conducted expeditiously. It is the view of YAEC that the rule does accomplish the second objective but, for the reasons set forth below, is deficient with respect to the first.
In a proceeding where the recipient of an order challenges the immediate effectiveness portion at the outset, the proposed rule at Section 2.202(c)(2) provides that:
"The presiding officer shall uphold the immediate effectiveness of the order if it finds that there is adequate evidence to support immediate effectiveness.
An order upholding immediate effectiveness will constitute the final agency action on immediate effectiveness."
(55FR27648)
In the accompanying statement of bases and purpose for the proposed rule, the Commission elaborated upon the standard to be applied as follows:
"This standard does not require evidence by persons with first hand knowledge of the facts.
Nor does it call for a balancing of evidence between that provided by the NRC staff and that provided by the person seeking to set aside immediate effectiveness. It is not a preponderance of the evidence test.
Rather, if the staff's evidence is sufficient to cause a person of reasonable caution to believe that the order is properly founded, that is, the conduct or activities of the person identified in the order present a public health, safety, or interest threat that requires immediate remedial action, the presiding officer is required to uphold the immediate effectiveness of the order.
In this regard the presiding officer must view the evidence in a light most favorable to the staff and resolve all inferences in the staff's favor."
(55FR27646)
U.S. Nuclear Regulatory Commission Attention:
Docketing and Service Branch August 22, 1990 Page 3 In addition, in language set forth in the statement of bases and purpose just preceding that quoted above, it is stated that a single affidavit by a "cognizant NRC official" is, by itself, and apparently even in the face of conflicting evidence or affidavits, sufficient to carry the day and require the presiding officer to uphold the immediate effectiveness aspect of the order.
YAEC respectfully suggests that, in light of the foregoing, the remedy proffered by the proposed regulation is meaningless and useless.
Under the terms proposed in this rule, the staff will always be in a position to supply an affidavit sufficient to meet the threshold required under the proposed rule.
Indeed, one is hard pressed to conclude why the proposed rule calls for a motion to set aside the immediate effectiveness of an order to be accompanied by affidavits at all, inasmuch as the filing of a bare bones affidavit from any "cognizant NRC official" (which could be based entirely on hearsay) requires the presiding officer to sustain the immediate effectiveness portion of the order pending completion of the hearing on the merits.
This accompanied by the fact that the proposed rule entirely precludes the filing of a motion to stay immediate effectiveness (which presumably would be decided under the time-honored Virginia Petroleum Jobbers standard now codified in 10CFR2.788(e)), serves to reduce, rather than enhance, the rights of the object of an order issued pursuant to 10CFR2.202, and made immediately effective.
In light of the foregoing, YAEC believes that any final rule adopted to provide for the early filing of a motion to stay immediate effectiveness and the expedited consideration of same by the presiding officer, should not preclude the application of the 10CFR2. 788 standards thereto.
Any other course of action will result in the denigration of rights currently held by persons who are the object of 10CFR2.202, orders, to no legitimate advantage to the public interest or the agency.
For the reasons stated in our letter of June 18, 1990 [Reference (c)]
commenting upon the original proposed rule [Reference (b)] with respect to the subject matter at issue, it is YAEC's continued position that the entire rulemaking effort should be withdrawn.
Very truly yours,
~!v~.
,~~~e President DWE/dhm/WPP76/152
DOCKET NlJABER PROPOSED RULE c2J
{65 F1<..c::l7r;q-5)
DOCKETED L7t>90 ~
C NUCLEAR REGULATURY COMMISSION *90 JUL _2 p7 :QS 10 CFR Part 2 RIN 3150-AD60 Revisions to Procedures to issue Orders:
Challenges to Orders that are made Tmmediately Effective AGENCY:
Nuclear Regulatory Commission.
ACTION:
Proposed rule.
SUMMAKY:
The Nuclear Regulatory Commission (NRC) proposes to revise its regulations governing orders to provide for the expeditious consideration of challenges to orders that are made immediately effective.
The proposed amendments specifically allow challenges to the immediate effectiveness of an order to be made at the outset of a proceed1ng and provide procedures for the expedited consideration and disposition of such challenges.
The proposed amendments also require that challenges to the merits of an immediately effective order be heard expeditiously, except where good cause exists tor delay.
DATES:
The comment period expires on t60 days after publication in the Federal Register).
Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before th1s date.
U.S. NUCLEAR REGULA 1 'JAY COMMISSIC; l DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Documen Statistics P rtmark Date C
"'S Received_ /
I
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s d Oistributi0I" R! D~ ) Po~R ____ _
t..L
ADDRESSES:
Send written comments to the Secr_etary of the Cormn1ssion, U.S. Nuclear Regulatory Comm1ssion, Washington, DC 20555, Attention:
Docketing and Service Branch.
Co1T111ents may also be delivered to the Office of the Secretary, u.s. Nuclear Regulatory Commission, One White ~lint North, ll5b5 Rockville Pike, Rockvi I le, Maryland, between 7:45 am and 4:15 pm Federal Workdays.
Copies of any colTVJlents received may be examinea and cop1ed for a ~ee at the NRC Public Document Room, 212U L Street, NW (Lower Level), Washington, DC betw~en the hours ot 7:45 am and 4:15 pm Federal Workdays.
FOR FURTHER INFURMAT!ON CONTACT:
John Cno, Uttice of the General Counselj U.S. Nuclear Regulatory Commission, Washington, DC, l0b55, Telephone:
301-492-1580.
SUPPLEMENTARY INFORMATION:
Background
On April 3, 199U (55 ~R 12370), the Commission published in the Federal Reg1ster proposed changes to lU CFR Part 2, Subpart B.
tne proposed changes, if adopted, would make,clear that the provisions*governing the issuance of orders include within their scope all persons subject to the jurisdiction or the Collll1ission, licensees as well as non-licensees.
As it ex1sts now, except for orders imposing civil penalties, subpart B addresses issuance of orders only to licensees. Other changes were also proposed to clarify that hearing rights attach only to orders, in contrast to demands to 2
show cause; e.g., demands for explanation or other information.
Upon turther consideration, the Commission has decided that additional changes should be made to subpart B.
These additional changes pertain to orders that are made ilTlllediately effective.
Under current subpart B, as well as under the amendments proposed on April 3, orders can be made immediately eftective when required to protect the public health, safety, or interest or when there has been willful misconduct.
There are no provisions, however, under the existing rule or under the proposed changes, that specifically require that challenges to such orders, including challenges to the immediate effectiveness ot such orders, be heard expeditiously. The revisions proposed herein address this and other related matters.
As the rule is structured, currently and under the Apri I 3 proposal, the recipient of an order may answer it by consenting to the order or by challenging it by demanaing a hearing.
Where the hearing demand concerns dn order that is irrmediately effective, the person or persons to whom the order is issued are nevertheless required to comply with its provisions pending the completion ot the hearing. The imposition of this requirement is necessary to enable the Conun1ssion to carry out its responsibility for protecting the public health, safety, and interest. The public health, satety, and interest must be held paramount over any conflicting private interests. At the same time, fairness considerations dictate that the interests of the recipients be acconvnodated to the extent it can be done without impediment to the Gommission's exercise ot its responsibility. To 3
this end, the Commission is proposing further changes to§ 2.202, in addition to those published on April 3.
The Commission believes that a proper balance between the private and governmental interests involved is achieved by a hearing conducted on an accelerated basis. The revisions proposed herein add a provision to the earlier proposed§ 2.202 directing that any requested hearing on an i1m1ectiate ly effective order wi 11 be conducted expeditiously, giving due consideration to the rights of the parties. Another added provision allows challenges to be made at the outset on the need for irrrnediate effectiveness.
- ,uch a challenge can be initiated by a mohon by the recipient of the oroer to set aside the irranediate effectiveness ot the order.
A motion to set aside irrmeGiate effectiveness mus~ be based on one or both of the fol lowing grounds:
the wil rtul misconduct charged is unfounded
- or the public health, safety or interest does not require the order to be made 1rraned1ately effective.
No other ground for challenge is permitted inasmuch as no other ground is relevant.
The motion must set out specifically its supporting reasons and must b~ accompanied by any necessary affidavits providing the factual basis for the request.
The added provision also specifies that a motion to set aside the i111T1ediate effectiveness of an order will be decided promptly by the presiding otncer (an atomic safety and licensing board or an admini.strative law judge as designated by the Commission) before the presiding ofticer takes up any other matter not necessary to the resolution of that request.
4
To assure prompt decision, the provision establishes short time periods for action by the parties as well as by the pres1ding officer. It is expected that the presiding officer nonnally will decide the question of inunediate effectiveness solely on the basis ot the order and other filings in the record.
The presidtng officer may call for oral argument.
However, an
~videntiary hearing is to be held only it the presiding officer tinds the record is inadequate to reach a proper decision on immeGiate eftectiveness.
Such a situation is expected to occur only rarely.
In deciding the question of immediate etfectiveness under~ l.202 as proposed herein, the presiding otticer will apply an adequate evidence standard. This standard is analogous to the evidence necessary to find probable cause to make an arrest, to obtain a search warrant, or to obtain a preliminary hearing on a criminal matter.
In a criminal enforcement context, "Lp]robable cause is deemed to exist where facts and circumstances within affiant's knowledge, and of which he has reasonably trustworthy 1ntormation, are. suft1cient unto themselves to warrant a man of reasonable caution to bel1eve that an offense has been or 1s being committed."
\\United States v. Hill, bOO F.2d 315, 317 (5th Cir. 1974)).
In the context ot the proposed rule, adequate evidence is deemed to exist when facts and circumstances within the NRC staff's knowledge, of which it has reasonably trustworthy information, are suft1c1ent to warrant a person of reasonable caution to believe that the charges of willful misconduct, it any, contained in the order are true and/or that the action specified in the order is necessary to protect the public health, safety or interest.
5
The Commission be11eves that the "probable cauS>>e 11 standard, adapted aS>>
the adequate evidence standard tor use in the Commission's proceedingS>>
rnvolving challenges to the immediate ettect*iveness of orders, serves the public interest. Commission orders often deal with willful misconduct or other circumstances that threaten harm to the public health, safety or interest.
ln some instances, the threat may be imminent.
ln other instances, wni le no violation may be involved, information available to the Commission may 1ndicate the need for certa1n irrmediate action to provide reasonable assurance that the public health, safety, and interest will be protected.
In all cases, it is imperative that.the Commission be able to take whatever measures that may be necessary to protect the public health, safety, and interest. The adequate evidence standard tor deciding questions of irrmediate ettectiveness enables the Co1T111ission to proceed with necessary protective action on the basis of reasonably trustworthy information without having to await the completion of a full hearing on the merits of the order.
At the same time, it provides the affected parties a measure of protection against forced compliante, before a hearing, with an order that is insubstantially founded.
The adequate evidence standard has been applied to allow an agency to suspend persons from bidding on government contrdcts (and thus allowing the suspension_ to remain in effect for a reasonable period without a nearing), where sign1t1cant governmental interests are involved and the risk of erroneous deprivation of an individual's interest is slight.
See Transco Security Inc. v. Freeman, 639 F.2d 318 (6th Cir. 1981), cert.
denied, 4b4 U.S. 820 (1981); Horne Hrothers, Inc. v. Laird, 463 F.2d 1268, (D.C. Cir. 1972). Those same considerations support adoption of the adequate evidence rule here.
6
lhe following example 1 I lustrates how the Cormn1ssion intends that the adequate evidence standard will be applied. A common type of order directs a licensee to take or desist from taking certain action because of an asserted willful violation of a license or regulation.
An affiddvit by a cognizant NRC officiar that sets fo~th facts suft1cient to lead a reasonably cautious person to believe that the asserted willful violation did occur is sufficient to sustain the i1T111ediate ettectiveness of the order.
As another example, ~n order directs a licensee to take certain action'because the Corrmission is in possession ot information indicating that the ordered action is necessary to protect the public health, safety or interest.
Similarly, an affidavit by a cognizant NRC official that sets forth sufficient information to lead a reasonably cautious person to believe that the ordered' action is necessary to protect the pub lie health, safety, or interest is sufficient to sustain the immedidte effectiveness of the order.
This standard does not require evidence by persons with first hand knowledge ot the tacts.
Nor does it cal I tor a balancing of evidence between that provided by the NRC st~ff and thdt provided by the person seeking to set aside immediate effectiveness. It is not a preponderance of the evidenc test. Rather, it the staff 1s evidence is sufticient to cause a person of reasonable caution to believe that the order is properly founded, that is, the conduct or activities of the person identified in the order present a public health, satety, or interest threat that requires immed1ate remedial action, the presiding officer is required to uphold the immediate effectiveness ot the order.
In this regard, the presiding officer must view the evidence presented 1n a l1gnt most favorable to the staff and resolve all interences in the staff's tavor.
7
The burden ot going forward on the immediate effectiveness issue is with the party who moves to set aside tne immediate effectiveness provision.
Th'e burden of persuasion on the appropriateness of irrrnediate effectiveness is on the NRC staft.
The ColTITlission intends that a motion to set aside the immediate eftectiveness of an order wi I I be the only mechanism tor challenging immediate effectiveness.
In the circumstance, a presiding oft1cer will not entertain any motion to stay the immediate effectiveness at an order; nor will a presiding officer issue~ sponte such a stay.
In general, the commission expects tnat, through the licensing board's imposition at snortened response periods and expedited filing mechanisms, a motion to set aside immediate effectiveness will be d~cided within tifteen (15) days of the date the hearing request and accompanying motion are referred to the presiding officer.
See lU CFR 2.772(j).
A presiding officer's order upholding the immediate effectivness at an order wi I I constitute the final agency action on immediate effectiveness. A presiding otticer's order setting aside invnediate effectiveness will be referred promptly to the Commission tor review and will not be effective pending further order of the Co1m1issfon.
The Co1T1Tiiss1on's authority under§ 2.2u2 to 1$sue inmediately ettective orders includes the authority to issue amendatory or supplemental orders that are irrmediately effective. Section 2.202 will remain the same in this respect. If such an order is issued by the staff after a hearing has been 8
ordered, the licensee or other person affected may move that the immediate etrectiveness of the amendatory or supplemental order be set aside pending completion of the hearing on the merits. Such a motion will be given expedited consideration by the presiding officer and decided on the basis described above.
Notwithstanding the factors that call for expedited resolution of disputes arising out ot immediately effective orders, there may be instances when overriding public interest considerations require delay in the proceeding on the n~rits.
The revisions proposed herein to th~ earlier proposed§ 2.202 include a provision allowing reasonable deldys in the conduct of the proceedings on the merits where good cause exists.
As an example of the kind of good cause warranting delay, there may be a need for rurther investigation by the Commission or the U.S. Department of Justice.
ln such instances, to al low the Convnission to investigate further into the matter or the Department of Justice to undertake criminal investigation without prejudice to possible prosecution of any discovered crime, it may be necessary to hold the hearing on the immediately effective order in abeyance for a reasonable period ot time.
The proposed revision to§ 2.202 allows the Conunission, either on motion by the statt or any other party, to delay the hearing in such cases, tor such periods as may be appropriate in the circumstances.
The proposed revision, however, does not authorize delay in the proceeding on a motion to set aside inmediate effectiveness. The length of a delay in the proceeding on the merits should be based on a balance of the competing interests involved.
See Logan v. Zi11JT1erman Brush Co., 455 9
U.S. 422, 4J4 (1982).
Such a motion wi 11 be expeditiously heard and decided.
Environmentdl Impact:
Categorical Exclusion The NRC ha5 determined that this proposed rule is the type of action described in categorical exclusion 10 CFR 51.22(cJ(lJ. Therefore neither an environmental impact statement nor an environmental assessment has been prepared for this proposed rule.
Paperwork Reduction Act Statement This proposed rule contains no information collection requirements and therefore is not subject to the requirements ot the Paperwork Reduction Act of 1980 (44 U.s.c. 3501 et seq.).
Regulatory Analysis The existing regulations in 10 CFK ~.~02 authorize the NRC, through its designated officials, to instituted proceeding to mod1ty, suspend, or revoke a license by service of an order to show cause on a licensee. The regulations, as currently written, do not provide procedures for the NRC to take direct action against unlicensed persons whose willful misconduct causes a licensee to violate Commission requirements or places in question reasonable assurance of adequate protection of the public health and safety, 10
althougn such action is author1zed by the Atomic Energy Act of 1954, as amended.
On Apri I 3, 1990 (55 FR 12370), the Commission proposed amendments to make the commission's Rules ot Practice more consistent with the Corranission's existing statutory autnority and to provide the Commission with the appropriate procedural framework to take action, in appropriate cases, in order to protect the public health and safety.
The proposed amendments also were to make clear the distinction between orders - e.g., directions to take or desist tram taking certain actions - and demands for information.
Only orders were proposed to be made immediately effective and subject to hearing, consistent with existing regulations.
Neither the existing regulations nor the proposed amendments, however, contained provisions requiring that any such hearing be conducted expeditiously.
The amendments proposed by this rulemaking supplement the earlier proposal by adding provisions directing the expeaitious conduct ot any hearing on an immediately effective order but allowing delays in the conduct ot such hearings in certain circumstances where good cause tor delay is shown, and establishing d separate, informal procedure tor dealing rapidly with cnal lenges to the immediate effectiveness of sucn order.
The proposed rule constitutes the preferred course of action and the cost involved in its promulgation and application is necessary and appropriate.
The foregoing discussion constitutes tne regulatory analysis for this proposed rule.
11
Regulatory Flexibility Certitication As required by the ~egulatory Flexibility Act of 1980 (5 U.S.C.
b05(b)), the Co111T1ission certifies that this rule, if adopted, will not nave a significant economic impact on a substantial number of small entities.
lhe proposed rule establishes the procedural mechanism for dealing with orders that are made immediately effective. The proposed rule, by 1tself, does not impose any obligations on entities including any regulated entities that may tall within the definition of "small entities" as stt forth in section 601(3) ot the Regulatory Flexibility Act, or within the detinition of "sma 11 business" as found in section 3 of the Sma 11 Husiness Act, 15 U.S.C. 632, or within the Small Business Size Standards found in lJ C~K Part 121.
Such obligations would not be credted unti I an order is issued~ at which time the person subject to the order would have a right to a hearing in accordance with the regulations.
Backfit Analysis This proposed rule does not involve any new provisions which would impose backfits as defined in 10 CFR 50.109(aJ(lJ. Accordingly no backtit analysis pursuant to 10 C~R 5U.109(c) is required tor this proposed rule.
List of Subjects in lU CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material.
Classitied information, Environmental protection. Nuclear materials, Nuc1ear 12
power plants and reactors, Penalty, Sex discrimination, ~ource material, Special nuclear material, Waste treatment and disposal.
For the reasons set out in the preamble and under the authority ot the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, tne NRC is proposing to adopt the following amendments to 10 CFR Part 2.
Part 2 -- Rules of Practice for Domestic Licensing Proceedings
- 1.
The authority citation for Part 2 1s revised to read as tol lows:
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (4, U.S.C.*
2201, 2,31); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.
2241): sec. 2Ul, 88 Stat. 1242, as amended l42 U.S.C. 5841); 5 U.S.C. 552.
Sec. 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2U92, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. L.97-42b, 96 Stat. 2213, as amended (42 u.s.c. 10134(f)); sec. 1U2, Pub. L.91-190, 83 Stat. 853 as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (4, u.s.c. 5871).
Sections 2.102, 2.lu3, 2.104, 2.105, 2.7,1 also issued under secs. 1U2, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C *.
2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued under Pub.
L.97-415, 96 Stat.,073 (42 U.S.C. 2239). sections 2.200-2.20b also issued under secs. 161b, 1, o, 182, 18b, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.~. 220l(b)), (i), (o), 2236, 2282); sec. 206, 88 Stat.
124b l42 U.S.C. 5846).
Sections 2.600-2.606 also issued under sec. 102,
Pub. L.91-190, 83 Stat. 803, as amended (42 u.s.c. 4332). Sections 2./UOa, 2.71Y also issued under 5 U.s.c. 554.
Sections 2.754, 2./60, 2.770, 2.780 also issued under 5 U.S.C. 557. Section 2./b4 ana Table IA of Appendix C also issued under secs. 135, 141, Pub. L.97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat.
936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552.
Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under o U.S.C.
553 and sec. 29~ Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039)
- Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 223YJ; sec. 134, Pub. L. Y/-425, 96 Stat. 223u (4Z u.s.C. 10154). Subpart L also issued under sec. 18Y, 8 Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat. 147j (42 U.S.C. 2135). Appendix B also issued under sec. 10, Pub. L.99-240, 99 Stat. 1842 (42 U.s.c. 2021b et seq.).
- 2.
Section 2.202 is revised to read as follows:
§ 2.202 Urder.
(a) The Commission may institute a proceeding to modify, suspend, or revoke a license or to take such other action as may be proper by serving on the licensee or other person subject to the Jurisdiction of the Co1T111ission an order that will:
{1)
Allege the violations with which the licensee or other person subject to the Co111T1iss1on 1s jurisdiction is charged, or the potentially 14
hazardous conditions or other tacts deemed to be sutt1c1ent ground for the proposed action, and specify the action proposed;
{2J Provide that the licensee or other person must t, le a written answer to the order under oath or affirmation within twenty (20) days ot its date, or such other time as may be specified in the order;
{3)
Inform the licensee or other person of his or her rignt, within twenty (20) days of the date at the order, or such other time as may be specified in the order, to demand a hearing on all or part of the order, except 1n a case where the licensee or other person has consented in writing to the order;
{ 4 J Specify the 1 ssues for hear mg;
{bJ State the effective date ot the order, and (6)
Provide, for stated reasons, that th~ proposed actio~ be immediately effective, pending further order, wnere the Commission f1nds that the public health, satety or interest so requ1res or that the violation or conduct causing the violation is willful.
lb) The licensee or otner person to whom the Commission has issued an order under paragraph (a) of this section AlUSt respond to the order by fi hng a written answer under oath or affirmation.
Tne answer shall specifically admit or deny each allegation or charge made in the order, and 15
shall set forth the matters of fact and law on which the licensee or other person relies, and, if the order is not consented to, the reasons as to why the order should not have been issued.
Except as provided in paragraph ldJ of this section, the answer may include a demand tor a hearing.
(c)(lJ It a hearing is demanded, the Commission will issue an order designating the time and place of hearing.
If a hearing is demanded with respect to an immediately eff~ct1ve order, the hearing wi I I be conducted expeditiously, giving due consideration to the rights ot the parties.
(2)
The licensee or other ptrson to whom the Convnission has issued an order may, in addition to demanding a hearing, move to set aside the irrrnediate effectiveness of the order.
The motion shall state with particularity the reasons why the iRJTiediate etrectiveness of the order should be set aside and shall be accompanied by affidavits or other evidence relied on.
The Cormnssion staff shall respond within (5) days of the filing of the motion.
The motion shal I be decided by the presiding o*fricer expeditiously betore any other matter unnecessdry to the disposition of the motion.
The presiding ott1cer shall exercise its powers to regulate the conduct of the proceeding, including reducing the times specified in subpart u for particular actions, to assure expeditious consideration and disposition of the motion.
During the pendency of the motion or at any other time, the presiding ofticer shall not stay the immediate effectiveness of the order, either on its own motion, or upon motion of the licensee or other person.
The presiding officer shall uphold the immediate effectiveness of the order if it finds that there 16
is adequate evidence to support 1IT111ediate effectiveness.
An order upholding immediate effectiveness will constitute the t1na1 agency action on 1mmediate effectiveness.
An order setting aside ilMlediate effectiveness will be referred promptly to the Co1M1ission itselt and will not be effective pending turther order of the Commission.
t3J Except as provided in paragraph (c)(2) ot this section, the Convn1ssion may, on motion by the staff or any other party to the proceeding, where good cause exists, delay the hearing on the i111T1ediattly effective order at any time for such periods as dre consistent with the due process rights of the licensee and other affected parties.
(d)
An answer may consent to the entry ot an order in substantially the form proposed in the order with respect to all or some of the actions proposed,n the order.
The consent of the licensee or other person to whom the oraer ha~ been issued to the entry of a consent order shall constitute a waiver by th~ licensee or other person of a hearing, findings of fact and conclusions of law, and ot al I right to seek CoIT111iss1on and judicial review or to contest the validity of the order in any torum as to those matters which have been consented to or agreed to or on which a hearing has not been requested.
The consent order shall have the same force and effect as an order made after hearing by a presiding officer or the Co1M11ssion, and shat I be effective as provided in the order.
17
(eJ It the order involves the modification of a Part bu licensee dnd is a backfit, the requirements of§ 50.109 ot this chapter shal I be tollowed unless the licensee has consented to the action required.
uated at Rockv;lle, Maryland, th;s ~-tC:- day of k 1990.
Regulatory Commission
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