NUREG-0670, Discusses Comments on NUREG-0670, Study of Separation of Functions & Ex Parte Rules in NRC Adjudications for Domestic Licensing. Recommends Approval of Encl Draft Ltr to Senators Ribicoff & Culver
| ML19309H573 | |
| Person / Time | |
|---|---|
| Issue date: | 04/10/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19309H562 | List:
|
| References | |
| RTR-NUREG-0670, RTR-NUREG-670, TASK-CA, TASK-SE SECY-80-130A, NUDOCS 8005130515 | |
| Download: ML19309H573 (12) | |
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80 0513 o S/S April 10, 1980 SECY-80-130A COMMISSIONER ACTION For:
The Commissioners From:
Leonard Bickwit, Jr.
General Counsel
Subject:
COMMENTS ON THE SEPARATION OF FUNCTIONS PROVISIONS IN S.
262 AND S.
2147 Discussion:
On April 14, 1980, the Commission will be meeting to consider (1) NUREG-0670, "A Study of the Separa-tion of Functions and Ex Parte Rules in Nuclear Regulatory Commission AIijudications for Domestic Licensing," which was transmitted to the Commis-sion in SECY 80-130 on March 11, 1980; (2) com-ments received on NUEEG-0670; and (3) a proposed letter to Congress concerning legislation which would affect the Commission's ability to change its separation of functions rules.
Although we have not received a large number of comments on NUREG-0670, we have summarized those oral and written comments which we have received (Attachment A).
The written comments are also attached for your examination (Attachment B).
Generally, many of the commenters make good points which are self-explanatory.
Most o* the disagree-ment which has surfaced with NUREG-0670 concerns our due process analysis.
While the majority of commenters support our conclusion, and while some believe that we have not emphasized fairness suf-ficiently, a strong minority viewpoint exists that we have read too much in the way of due process requirements into the court cases which are cited (see particularly the comments of William Pedersen, Deputy General Counsel, EPA).
An examination of the summary of comments will provide you with sufficiently diverse opinions about NUREG-0670 and some of the reasons why the present separation of functions rules should or should not be changed.
E CY NOTE:
This paper, as well as SECY-80-130, will be discussed at a Commission meeting on
Contact:
Monday, Aoril 14, 1980 Please note that t
- rvey J. Shulman, OGC General Counsel has requested that the 1 3288 at Attachment C be approved at the me Response Sheets are being provide responses by meeting time.
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With respect to the pending legislation, on January 23, 1980, Chairman Ahearne, on behalf of the Commission, wrote to Senator Ribicoff (sponsor of S.
262) and Senator Culver (sponsor of S. 2147) with comments on their respective bills to amend the Administrative Procedure Act (APA), 5 U.S.C. S 551 et seq.
At that time, the Commission specifically reserved the option of offering comments on the separation of functions provisions in those bills at a later time, after the Commission's own study on that issue was completed.
NUREG-0670, particularly the conclusions as to the present state of the law, has been helpful in framing our proposed comments on the separation of functions sections in S. 262 and S. 2147 The bills in question are at various stages before the Congress.
S.
262 has recently been reported out of the Senate Governmental Affairs Committee and is referred, for 45 legislative days, to the Senate Judiciary Committee which must act by approximately the beginning of June.
The latter Committee is presently con-sidering S.
2147 and plans to begin marking up that bill around the first week of May.
It appears that the Senate Judiciary Committee will report out some version of S.
2147, which will then have to be reconciled with S.
262 before a vote will be taken on the floor of the Senate.
It should be noted that the Committee may mark up a version of S. 2147 which is different from the bill introduced in December, 1979 However, the only practical option available to the Commission is to comment on the version of S. 2147 that was introduced in December and the version of S. 262 that was reported by the Senate Governmental Affairs Committee.1,/
1/
Within the past couple of weeks a House Judiciary Subcommittee reported out its own version of reform legislation.
Presently there is no publicly available and completed draft of this bill.
In any event, our comments with regard to S. 262 and S.
2147 are equally applicable to the policy issues addressed by the House bill.
If the proposed comments are approved, a similar letter can be drafted for House consumption.
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We have prepared a proposed letter to be sent to Senator Ribicoff and to Senator Culver which addresses the separation of functions provisions in S. 262 and S. 2147.
(Attachment C).
In order that the Commission may better understand the recommendations in these letters, it is useful to first briefly note the conclusions in NUREG-0670 which are most relevant to the important aspects of these bills, and then to describe what changes would be made by both bills.
We have generally taken the view, in drafting the letter, that the Commission is opposed to any changes in the APA which would limit this agency's flexibility to relax its present separation of functions rules.
As NUREG-0670 points out, we do not believe that under the present APA, staff advocates (or litigators, to use the term in the reform bills) would be prevented from privately advis-ing adjudicators in the large majority of the adjudications at the NRC.
In initial licensing cases, the present APA contains an express initial licensing exemption from the separation of functions provisions.
Furthermore, at the NRC, for both initial licensing cases and non-initial licensing cases, it is rare that the staff advocates are performing " investigative or prosecuting functions" within the meaning of the APA restriction that agency employees performing " investigative or prosecuting func-tions" in a case may not participate or advise i
privately in the decision of that case or a factually-related case.
Only in accusatory-type cases, such as civil penalty proceedings or actions to suspend or revoke a license because of statutory or rule violations, would staff advocates come within this terminology.
Of course, the NRC does not take advantage of the initial licensing exemption (except in uncontested cases), nor does it presently allow any staff members to privately participate or advise in the decision of a case.
Although some restrictions on private communications with staff advocates may well be required by constitutional due process principles, much of
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4 the ban imposed by the NRC rules appears to go further than required by the APA or the Consti-tution.
Thus, as NUREG-0670 concludes, the Commission has broad latitude under the present law to relax its separation of functions rules.
As a general proposition, both S. 262 and S.
2147 would substantially reduce the flexibility available to the Commission to change its separation of functions rules.
S.
262 expressly extends separation of functions to agency employees performing " litigating functions,"
which could conceivably include both attorneys and witnesses in all agency adjuaications.
It also abolishes the initia? licensing exemption.
Thus, the two legal avenues open to the NRC for maximizing the relaxation of its present separa-tion of functions rules in non-accusatory cases would be eliminated under S.
262.
Under S.
2147 the results are uncluar, since the termin-ology " investigating and prosecuting functions" is retained, but there is a definition of those terms which could be read to include attorneys and witnesses in non-accusatory cases.
Futher-more, it should be noted that these new, stricter separation of functions rules would apply, under both bills, to full-blown adjudications and to the new expedited licensing procedures (which are available to the NRC under S.
- 262, but which are not available under S. 2147). 2/
One other important provision in both S. 262 and S.
2147 which we feel deserves special comment is the change in section 554(d)(1) of the APA, which presently prevents presiding officers (or licensing boards, in the case of the NRC) from privately consulting any " person or party" on a fact in issue.
As we stated in NUREG-0670, we believe that this provision was intended to reach only persons or parties outside of the agency, and that it does not provide a basis for limiting a presiding officer's private intra-agency communications.
Under S.
2/
Significantly, the version of S.
262 reported by the Senate Governmental Affairs Committee makes use of the expedited pro-cedures discretionary with an agency, and not mandatory as proposed in the original version of that bill.
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5 262, in most adjudications, presiding officers would appear to be barred from privately consult-ing even agency employees not involved in a case, unless the expedited licensing procedures were applicable.
Only in an initial licensing case would presiding officers be able to privately consult staff members, and only if those staff members have not performed " litigating" functions in the case.
Thus, to the extent that the Commission wishes to relax the separation of functions ban now imposed on its licensing boards, S.
262 would significantly restrict possibilities for reform.
Once again, the results under S. 2147 are unclear.
As discussed in the proposed comments, it is possible that the bill can be read to impose increased restric-tions on presiding officers, though not as stringent as those limitations imposed under S.
262.
The proposed comments on this matter would again oppose any Congressional effort to restrict the options available to the NRC under the present law.
Recommendation:
That the Commission approve the attached letter (Attachment C) at the meeting to be held April 14, 1980.
k
- - ~ _.. -
Leonard Bickwit, Jr.
Gencral Counsel Comissioners' coments should be provided directly to the Office of the Secretary by c.o.b. Friday, April 11, 1980.
DISTRIBUTION Comissioners Comission Staff Offices Exec Dir for Operations ASLBP ASLAP ACRS Secretariat
O ATTACM!ENT A j
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Summary of Comments on NUREG-0670 -- Separation of Functions Study -- Which Relate to NRC Comments on APA Reforms 1.
Professor Peter Strauss suggested that additional consideration be given to the different functions performed by the Commissioners, on the one hand, and by the boards, on the other hand, insofar as the necessity for off-the-record communications.
He felt that what is appropriate for the commissioners may not be appropriate for the boards.
2.
Professor Kenneth Davis was generally critical of the study.
Ile took speci-fic issue with a nunber of statements in the due process section, though the examples he cited are inaccurate.
3.
South Carolina Enerqy Research Institute (through Mr. Rusche) stated that the implications of the study go way beyond separation of functions rules to impact under the whole licensing proceus.
He thought that initial licensing cases are not largely policy and legislative facts, but rather mostly techni-cal facts that are amenable to objective resolution.
Contested proceedings arise because of disagreements over the balai. ing of these facts.
He was against increased st. Nt,ry requirements for separations of functions, since commissioners must be at a receive as much information as possible.
4.
Consumer Product Safety Commission (throuch Mr. Schwartz) exprcssed concern that administrative law judges could consult any agency staff member, not otherwise expressly identified, under the study's reading of 554(d)(1).
However, he felt that broader latitude should be given to commissioners to consult such staff members.
He also mentioned the very recent case of Grolier, Inc. v. FTC, No. 78-2159 (9th Cir., Jan. 24, 1980), which extended separation of functions rules to certain advisors to agency adjudicators and which might affect the options available to the NRC.
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5.
Interstate Commerce Commission (through Mr. Dettmar) commented only on the impact of 557(d), expressing concern that persons outside the agency should not be allowed to affect a decision by communicating with agency staff members who advise the decisionmakers, even if the communication related to facts already on the record.
6.
Congressman Toby Moffett commended the Commission for studying the possi-bility of amending its rules, though he also noted that staff habits and practices would have to change as well.
He expressed concern over the separated staff option, suggesting that if it was implemented it might be done so on a case-by-case basis.
Only involved staff members should be separated, because "as a general proposition, fundamental fairness only requires that a staffer not be permitted to communicate his or her views off the record to decisfor:-makers in specific cases where the staff person has that personal vested intarest which springs from work on the case and an adversary stake in its octcome."
7.
Tennessee Valley Authority (through Mr. Sanger) agreed with the general con-clusion that the Commission has conside.able latitude within which to frame its separation of functions rules.
However, TVA contended that the study does not analyze the need for changes in the present rules based upon actual experience.
In particular, TVA stated that the options which go furthest toward permitting private contacts between staff and adjudicctors may have too great an appearance of unfairness.
On the other hand, TVA noted that preventing the staff from taking a position on the issues might further delay the hearing process and inject unnecessary issues.
TVA concluded witn the observation that although the study provides the necessary legal analysis
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that the NRC needs to change its rules, a " careful analysis of the objec-tives of change and how best to balance the competing interests involved" is still necessary.
8.
UNC Naval Products (through Mr. Kirk) wrote that " fair, proper (and opera-tionally safe) decisions can only be made by persons having full access to all information and personnel, and having high standards of individual ethics." He noted that stringent g carte restrictions will not prevent unethical conduct, but could lead to a technically wrong decision.
He favored liberalization of the present rules.
9.
Washington Public Power Supply System (through Mr. Brcm) criticized the accusatory /non-accusatory distinction in the study, as well as the con-tested / uncontested distinction.
He argued that the APA as written is not drawn along those lines, and felt that the real line is between initial licensing and non-initial licensing cases.
He advocated not taking full advantage of the initial licensing exemption, but instead relaxing the NRC rules to conform to other aspects of the APA -- i.e.,
allow adjudicators to consult only non-involved staff.
He criticized the idea of consultations with advocates, witnesses, supervisors and adjudicators on other levels.
He also believes, based on the experience at EPA, that the neutral staff concept is unworkable.
10.
Atomic Safety and Licensing Board Panel (through Mr. Lazo) stated that it would be unwise to relax the present separations rules to permit "the staff" to discuss pending cases with a presiding board.
He commented that allowing the staff to privately advocate its position was " unfair," would further
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exacerbate the disadvantages suffered by intervenors, and would create the appearance of unfairness.
He favored only " general discussions" between licensing board members and other members of the board panel -- i.e.,
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off-the-record discussion of "the specifics of a matter in issue."
In 1
his view, although there would be less unfairness in this situation where specific issues were discussed, he felt that the parties would be unable i
to adequately respond to an expert's private criticism of the content of l
the record.
For similar reasons, he opposed consultations among. commissioners, appeal panel members and licensing board panel members and added that these latter consultations "could permit off-the-record explanations and justiff-cations for particular decisions."
11.
Atomic Safety and Licensing Appeal Panel (throuch Mr. Rosenthal) stated satisfaction with the present rules as applied to communications with outsiders.
As to separation of functions, he made two najor points: (1)
A' strong need has not been shown for liberalizing the present rules.
He felt that the board has not been hindered by being unable to consult pri-vately with the staff.
The board's need for advice and information has been satisfied by written submissions and oral arguments. (2) Fairness problems would emerge if the present ban were relaxed.
As a practical matter, private consultations might well inject facts not on the record and would certainly detract from the appearance of fairness.
As to speci-fic recommendations for changes, Mr. Rosenthal recommended (a) no liberaliza-tion of contacts with the staff; (b) no commissioner consultations with adjud-icatory board members on a substantive issue in an ongoing proceeding; (c) no discussion between licensing board members and appeal board members,
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l though panel members should be able to consult among thc=selves on the same level; and (d) possibly setting aside certain staff members to advise the Cormission on technical matters, as a sort of separated staff.
He was i
skriptical of the " neutral staff" concept.
12.
Environmental Protection Arncy (through Mr. Pedersen) */ disagreed with the due process conclusions reached in the study.
He argued that private con-sultations with staff advocates would probably be found constitutional J
because the licensing exemption to the separation of functions requirements in the APA has yet to be found violative of due process, because the NRC --
like most agencies -- possesses broad discretion to fashion its own pro-cedures, and because the balancing of costs and benefits required by a due j
orecess analysis supports allowing private consultations.
He also disagreed strongly with the recommendation that higher-decisionmakers should not be allowed to turn to lower-decisfur. makers for advice in deciding a case that was previously before the lower-decisionmakers.
In his view, such lower-decisionmakers are much different from staff advocates and thus there are even fewer problems in allowing such consultations and probably more bene-fits.
He questioned whether it is possible to have the " neutral staff" con-cept work in practice.
He stated that nuch of the opposition to relaxed separations rules comes from, in his view, a wrong concept of agencies per-forming purely " judicial" functions in licensing cases.
He agreed with the study's conclusion that non-accusatory licensing decisions should be made by initial licensing procedures even when they are not initial licens-ing.
Finally, he concluded that present efforts to amend the APA appear 1
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- f Mr. Pedersen is Deputy General Counsel of EPA and a well-respected author of a number of law review articles on administrative law, including the Decline of Separation of Functions in Regulatory Agencies, 64 Va. L. Rev. 991 (1978).
We are unsure if Mr. Pedersen was actually commenting for EFA.
6 to be leading to more restrictive separation of functions rules, so that the NRC would have a better chance relaxing its rules by either suggesting anendments to the Atomic Energy Act or by amending the agency rules and prevailing in a court challenge.
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