ML20155G972

Responds to 860123 Request to Consider Various Types of Discussion Topics & Provide Advice as to Whether Some or All of Listed Topics Could Legally Be Discussed in non-Sunshine Act Discussions

ML20155G972
Person / Time
Issue date:	04/11/1986
From:	Malsch M NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Palladino NRC COMMISSION (OCM)
Shared Package
ML20150F698	List: ML20151P486 ML20155G972 ML20155G982 ML20155G991 ML20155H000
References
NUDOCS 8605120026
Download: ML20155G972 (58)

Text

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Attachment - Q300 maan UNITED STATES

[

g NUCLEAR REGULATORY COMMISSION E

WASHINGTON, D. C. 20SSS t

i April 11, 1986 i

i 3

MEMORANDUM FOR:

Chairman Palladino FROM:

Martin G. Malsch%

^#

Deputy General Counsel

\\

SUBJECT:

SUNSHINE ACT REGULATIONS t

In your memorandum of January 23, 1986, you asked this office to i

consider various types of discussion topics and to provide advice j

as to whether some or all of the topics listed could legally be j

i discussed in non-Sunshine Act discussions.

Your memo made clear-i that the list was designed to illuminate the legal issues l

involved, not to suggest that Commission discussions should be i

held on the particular topics listed.

l

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For each of the topics listed, we will discuss whether the topic l

l in question can legally be discussed (a) in a " closed" meeting under one of the exemptions to the Sunshine Act, and/or (b) in i

a non-Sunshine Act discussion under the Commission's interim Sunshine Act rule, adopted in May 1985.

Any topic may be l

discussed in a public session under the Sunshine Act.

l 1.

Draft Testimony 4tems to be included in first draft; philosophy discussion / resolution of points of disagreement or comments consideration of related questions and answers l

(a)

There is no exemption that explicitly applies to the l

formulation of draft testimony, but a strong argument exists that Exemption 9(b) (frustration of purpose) applies to most discus-sions of Congressional testimony.

The legislative history of the Sunshine Act contains some discussion of this. point by the bill's i

author, Senator Lawton Chiles.

Just before the final vote in the Senate, a number of Senators asked clarifying questions of Senator Chiles, with the apparent intent of establishing Congress' intent for the legislative history.

One such questioner was Senator Charles Percy of Illinois:

Contact:

Peter Crane, OGC, 41465 8605120026 860422 PDR COMMS NRCC CORRESPONDENCE PDR-

Attachment - Q30D 2

1 Mr. PERCY.

The Federal Reserve is concerned that the bill contains no provision that would enable the Board to deliberate and formulate legislative proposals, presentations, testimony and positions without exposing them to the public prior to their deliverance to Congress.

Under the Board's present procedures, any statement of Board position relating to legislative matters is subjected to Board meeting discussion.

The Board questions whether congressional requests for agency comments on proposed legislation, requests for experienced assistance in stated ccagres-sional efforts, or requests for responses to congres-l sional inquiries are intended to be known by the public before transmission to the Congress.

i Senator Chiles, would such discussions be exempt from the openness provisions of the bill?

3 Mr. CHILES.

If a Congressman or a committee requests in confidence for the views of any agency on any legislative matter, or if it refers to testimony any agency could close a meeting discussing the matter.

The whole content of the agency to provide information to a Congressman or committee in confidence could be y

frustrated,if the discussion was public.

Section l

201(b)(7)(d) (Exemption 9(b) in the final Sunshine Act]

i would permit an agency to close its meeting in this instance where it must respond in confidence to an i

inquiry from Congress or prepare in confidence testi-t mony to be given later before a Committee.

Government i

in the Sunshine Sourcebook, 94th Cong., 2d Sess.

(1976), p. 347 (emphasis added).

l Only a year later, however, when the Chairman of the Federal Reserve Board mentioned in oversight hearings that the Sunshine Act allowed legislative meetings to be closed under Exemption, j

9(b), and suggested that " Congress, in some cases, would prefer to hear from us directly first, rather than after our views have been made public at a sunshine meeting," Senator Chiles took i

a different position-Senator CHILES.

I hate to interrupt your statement, but it seems to me that if the Congress can open up its markup meetings, and does, and finds that works with our problems, so can the Federal Reserve l

Board....

I just find that the hardest thing in the j

i world is, if the Congress can do that, why some agency t

' feels like its fallback positions or its tradeoffs or what it's going to do in coming to the Congress should be done in closed session?

There is some legislative history on this point.

i

Attachment - Q300 3

During the debate I stated on the floor of the Senate in a discussion of this exemption with Senator Percy that 9-B might cover a meeting involving a response to a congressional request for views o~r testimony if the request itself stated that the reply must be kept confidential.

That floor comment was made off the cuff.

It was made just during the debate on a newly presented question.

Now that I have had more time to study it I am not even sure that that kind of request for confidentiality is sufficient to close one of your meetings.

But other than that, certainly as far as the legislative history of it goes, that was the only time during the legisla-tive history that anyone said that they thought such a meeting could be closed.

Excuse me for interrupting you.

In the Common Cause litigation, the NRC drew the attention l

of the D.C. Circuit to the pre-enactment remarks of Senator Chiles.

The court was unimpressed:

"We discount the importance of this statement in interpreting Exemption 9(b) because, as the 1

Supreme Court has recognized, '[t]he remarks of a single legis-lator, even the sponsor, are not controlling in analyzing legis-lative history.'"

[ Citing Chrysler Corp. v. Brown, 441 U.S. 281 (1979).]

However, reference to the Chrysler case shows that the Supreme Court was in fact saying that-in analyzing the legisla-tive history, one must look not only at the sponsor's statements but also at the Reports of the two Houses and the statements of other Congressmen -- all of which, in Chrysler, agreed with the.

sponsor's interpretation of the disputed language.

The restrictive view of Exemption 9(b) taken by the D.C.

Circuit in Common cause indicates that the potential litigation risk is real for closures of testimony discussions under this exemption.

In addition, since 'ongressional oversight committees can obtain even closed Commission transcripts, it is not clear that closing such discussions under a valid exemption would permit free colloquy on whether or not a particular issue should be raised with the Congress.

(b)

Whether under the new NRC Sunshine Act rule, discus-sions of Congressional testimony could be held in non-Sunshine Act discussions, would depend in large part on the subject matter.

If a letter from an oversight committee asked the Commission to address a major unresolved issue in Congressional testimony, and the discussion of that testimony turned out to be the deliberation in which that issue was resolved, then the discussion would clearly constitute a "r.eeting" for Sunshine Act purposes.

At the other extreme, no " meeting" would be involved if the-testimony dealt with an area in which the Commission's-

Attachm:nt - Q300 4

i position was well settled, so that the discussion involved no f

decisionmaking whatever.

[

t j

It might well be that an initial discussion of items to be included in the first draft of. Congressional testimony would not be a " meeting," whereas a subsequent discussion in which that

[

first draft was revised would constitute a " meeting."

The initial discussion would presumably involve some narrowing of i

options, but the legislative history and the Interpretive Guide to the Sunshine Act indicate that exploratory discussions which canvass possible options are not necessarily " meetings" for i

Sunshine Act purposes.

Any discussion of possibilities implies that some discrimination is made between what is and is not possible.

Thus as we read the Act. a preliminary narrowing of options would probably not bring the Act's requirements into play, whereas a selection among the remaining options would constitute a " meeting."

Obviously, common sense must be applied to individual cases.

Hypothetical cases can easily be thought up r

j in which a preliminary narrowing of options would in fact be the i

critical decision, and in such cases the discussion would consti-i j

tute a " meeting."

But the point of the new rule -- and the point of the Sunshine Act, if the Interpretive Guide is correct -- is i

that conscientiousness and common sense be applied to the multi-4 l

tude of situations likely to arise, rather than that j

j a mechanistic " bright line" be applied.

j e

r With regard to questions and answers related to i

Congressional testimony, the same considerations outlined above l

would apply.

The analysis'would consider whether the discussion of questions and answers was merely the restatement of settled

~

l policy or established facts, or rather the forum in which sub-l stantive decisions were being made.

l i

2.

Formulation of guidance where function is assigned to Chairman.

Section 2 of the NRC Reorganization Plan of 1980 designates -

l i

a number of responsibilities as Chairman functions.

These include serving as official spokesman of the Commission, appoint-j ing the Directors and staff of the Office of Public Affairs and l

the Office of Congressional Affairs (in exercising which function he may consult as he deems appropriate with the Commission);

developing policy planning and guidance for consideration by the i

commission; determining the use and expenditure of funds of the Commission; preparing budget estimates for the Commission; and I

declaring and responding to emergencies involving NRC-licensed i

j facilities or materials.

i The Interpretive Guide to the Government in the Sunshine Act (R. Berg and S.

Klitzman, 1978), deals specifically with this i

question:

I i

i l

l

Attachment Q300 5

Where a function has been vested in the agency chairman, as by a delegation from the agency, or in a statute or reorganization plan, a gathering at which the chairman seeks the informal advice of his col-1eagues on the carrying out of that function would not be a meeting.

[ Footnote omitted.]

This conclusion is consistent with the idea expressed above that " official agency business" means a matter which the collegial body is able to act upon.

[ Footnote:

It was suggested in one of the comments on the tentative edition (of the Interpretive Guide) that the deliberations do not constitute " joint conduct" of agency business where the responsibility for the decision is in the Chairman and not in the collegial body.

This seems to us to come to much the same thing, that " official agency business" presupposes a matter which may be the subject of

" joint,"

i.e.,

collegial, action.]

Although as a matter of practice, the NRC has consistently treated such discussions as falling within the Sunshine Act, there is nothing in the Commission's regulations which compels such a result.

Thus under either the old rule or the new rule, such discussions could be treated as outside the Sunshine Act.

The New Sunshine Act rule would not affect whether these discus-sions were considered " meetings."

3.

Budget; Draft Legislation 1

Under either the old or new Sunshine Act rules, closed

" meetings" on the budget are apparently forbidden under the D.C.

Circuit's decision in the Common cause case, cited earlier.

Whether or not Common cause was correctly decided, it remains good law in the D.C.

Circuit, and the Commission would run a very high risk of reversal if it were to hold any budget deliberations in closed " meetings."

The Commission did not argue in Common cause that the discussions were not " meetings," and the court did not reach that question.

See 674 F.2c 921, 190, fn.25.

It observed, however, that "any discussions focused on concrete issues or proposals would fall within the Act's definition of a ' meeting.'"

Id.

Arguably, budget discussions could be held in non-Sunshine Act discussions either if the discussions were in so preliminary a form as not to be focused on concrete issues or proposals, or under the theory described in the answer to Question 2, above.

Discussions of legislation are not covered under any Sunshine Act exemption.

A preliminary " brainstorming" session on i

the subject of the topics to be developed into legislative proposals might well qualify for a non-Sunshine Act discussion.

i Attachment - Q300 6

4.

Discussion of how well the Commission is served i

by its document control system or other internal operating systems or procedures.

Such a discussion might wel.! be closable under Exemption 2 i

as an internal management meeting.

It might also be treated, i

under the Commission's new Sunshine Act rule, as a non-Sunshine 4

Act discussion, if the focus of the discussion were on an evalu-ation of a current system rather than on specific proposals for its alteration.

i i

5.

Five Year Plan i

Whr t should be included in it?

l 4

Na owing alternatives.

There it, no Sunshine Act exemption that on its face seems applicable to such a discussion.

A preliminary discussion of 4

l what should be included in a five-year plan might well be appro-priate for a non-Sunshine Act discussion.

The fact that such i

a discussion implied a narrowing of alternatives would not '

i necessarily mean that the discussion constituted a " meeting" for j

Sunshine Act purposes.

However, by the time that discussion of a five-year plan had proceeded to the point where Commissioners j

were making decisions on a draft plan, the discussion could be i

held only in a Sunshine Act " meeting."

6.

Views on foreign trips involving potentially sensitive information; also sensitive comments of key people j

learned from undisclosed sources and their impact.

1 l'

There is no Sunshine Act exemption that directly applies to:

i i

this situation.

Under the Commission's new Sunshine Act rule, this sort of information could be conveyed in an informal discus-sion, so long as it was not related to any particular decision i

before the Commission.

i i

7.

Brainstorming Generating ideas Evaluating ideas to identify those worthy of in-depth analysis and subsequent consideration.

1 There is no specific exemption which covers brainstorming f

sessions, and if treated as Sunshine Act " meetings," they would

(

have to be open unless a specific Sunshine Act exemption applied.

The legislative history suggests, however, that-Congress did not intend that brainstorming sessions should be treated as

" meetings."

In fact, the then Chairman of the Administrative Law l

4 Section of the American Bar Association spoke highly of the value

{

of " brainstorming" sessions to the functioning of multi-member i

agencies, and urged Congress to assure that its definition of

" meeting" did not include " brainstorming" sessions.

The a

+

AttactmGnt - Q30D 7

i t

Commission's new Sunshine Act regulation makes clear that both the generation and preliminary evaluation of ideas in i

brainstorming sessions would not constitute a " meeting" for Sunshine Act purposes.

8.

Planning Sessions There is no Sunshine Act exemption specifically applicable to planning sessions.

Under the Commission's'new Sunshine Act i

rule, a " big picture" discussion of where the agency is headed, in broad terms, would not constitute a " meeting" for Sunshine Act purposes.

To the extent that " planning" involves specific deci-sions, such discussions would constitute," meetings" for Sunshine Act purposes.

9.

Letter Drafting

[

There is no Sunshine Act exemption that explicitly covers letter drafting.

Under the Commission's new Sunshine Act rule, letter drafting, being focused on a specific proposal, would not be a proper subject for a non-Sunshine Act discussion.

See, however, the discussion under item (2) above, which suggests that where the Chairman is merely soliciting the advice of his col-4 leagues on a letter which it is the Chairman's responsibility to prepare and send, no " meeting" would be involved.

[

.,o 10.

Identifying alternatives worthy of serious consideration at a later date in a Sunshine Act meeting.

i i

There is no Sunshine Act exemption that covers this topic.

Under the Commission's new Sunshine Act rule, such a discussion.

l could be held as a non-Sunshine Act discussion.

See item (7),

[

j above.

j 11.

Organizational Questions Is this or that office performing a useful or necessary function?

What alternatives are there to the office or to j

performance of the functi q?

i Either of these two topics would seem appropriate for an internal management meeting, closed under Exemption 2 of the Sunshine Act.

An informal discussion on these topics would be 4

appropriate for a non-Sunshine Act discussion under the Commission's new rule, provided that discussions were in a prelim-inary phase, and did not predetermine ultimate agency action.

f i

cc:

Commissioner Roberts Commissioner Asselstine Commissioner Bernthal i

Commissioner Zech OPE

[

4 SECY t

m_.

-QUESTION 30 (CONTINUED) (E)

A JANUARY 8, 1986 ARTICLE IN E WASHINGTON POST QUOTES COMMISSIONER ZECH SAYING THAT THE NRC'S OLD SUNSHINE ACT REGULATIONS DISALLOWED EVEN THE MOST CASUAL TALKS AMONG COMMISSIONERS:

"N0 THREE COMMISSIONERS COULD BE ASSEMBLED WITHOUT CALLING IT A MEETING.

THREE OF US CAN'T GET TOGETHER AND HAVE C0FFEE AND TALK ABOUT THE WASHINGTON REDSKINS."

DO THE COMMISSIONERS AND THE GENERAL COUNSEL BELIEVE THAT NRC'S OLD SUNSHINE ACT REGULATIONS PREVENTED A QUORUM 0F THE COMMISSION FROM DISCUSSING NON-AGENCY BUSINESS SUCH AS THE WASHINGTON REDSKINS?

ANSWER:

i LEGALLY, THE COMMISSIONERS CAN OF COURSE TALK ABOUT THE WASHINGTON REDSKINS, EVEN UNDER THE COMMISSION'S OLD SUNSHINE ACT REGULATIONS.

WHAT COMMISSIONER ZECH WAS POINTING OUT WAS THAT UNDER THE COMMISSION'S UNDULY RESTRICTIVE SUNSHINE ACT RULES, AS A? PLIED SINCE 1977, THE COMMISSIONERS SIMPLY NEVER GOT TOGETHER IN GROUPS OF THREE OR MORE EXCEPT IN SUNSHINE ACT " MEETINGS" (OR IN AGENDA PLANNING SESSIONS AS AUTHORIZED BY THE ACT).

ALTHOUGH THE COMMISSION'S OLD SUNSHINE ACT RULES DID EXEMPT

" GATHERINGS OF A SOCIAL OR CEREMONIAL NATURE," THE NOTICE OF

^

RULEMAKING CITED CHRISTMAS PARTIES, LUNCHEONS WITH FOREIGN 1

DIGNITARIES, AND PUBLIC ADDRESSES BY ONE COMMISSIONER ATTENDED BY l

OTHER COMMISSIONERS AS THE TYPE OF GATHERING INTENDED TO BE PERMITTED.

QUESTf0N 30 (CONTINUED) AS A RESULT, THREE OR MORE COMMISSIONERS DO NOT MEET INFORMALLY, TO TALK ABOUT THE REDSKINS OR ANYTHING ELSE.

IN FACT, CONGRESS INTENDED NO SUCH RESULT.

IT WAS NOT CONGRESS' INTENT TO BAR DISCUSSION 5 0F AGENCY BUSINESS IN NON-SUNSHINE ACT DISCUSSIONS, PROVIDED THAT THOSE DISCUSSIONS WERE PRELIMINARY AND EXPLORATORY; STILL LESS DID CONGRESS INTEND TO BAR DISCUSSIONS OF NON-BUSINESS TOPICS.

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s GUESTION 30F, PLEASE PROVIDE THE FOLLOWING INFORMATION:

(1)

THE NUMBER OF OPEN MEETINGS DURING 1985; (2)

THE NUMBER OF CLOSED MEETINGS DURING 1985; (3)

THE NUMBER OF TIMES EACH EXEMPTION TO THE OPEN MEETING REQUIREMENTS OF THE SUNSHINE ACT WAS CLAIMED DURING 1985; (4)

THE NUMBER OF COMMISSION VOTES DURING 1985 THAT TOOK PLACE DURING PUBLIC MEETINGSi

~

(5)

THE NUMBER OF COMMISSION VOTES DURING 1985 THAT TOOK PLACE DURING MEETINGS CLOSED TO THE PUBLIC; AND (6)

A LISTING OF THE NUMBER OF ALL VOTES THAT TOOK PLACE BY NOTATION OR THAT OCCURRED IN A MANNER OTHER THAN AT AN OPEN OR CLOSED MEETING HELD UNDER THE SUNSHINE ACT DURING 1985, INCLUDING THE DATE OF THE VOTE, THE GENERAL SUBJECT AND THE DECISION REACHED.

4 m

b 2-ANSWER F.

(1)

THEPE WERE 130 COMPLETELY OPEN MEETINGS IN 1985.

(2)

THERE WERE 56 TOTALLY CLOSED MEETINGS IN 1985.

THERE

{

WERE ALSO 5 ADDITIONAL MEETINGS IN 1985 THAT WERE PARTIALLY OPEN/ PARTIALLY CLOSED.

(3)

THE FOLLOWING IS A LIST OF THE NUMBER OF TIMES EACH EXEMPTION TO THE SUNSHINE ACT WAS USED TO CLOSE A 4

MEETING.

t EXEMPTION 1 11 TIMES EXEMPTION 2 3 TIMES EXEMPTION 10 5 TIMES EXEMPTIONS 2 AND 6 21 TIMES EXEMPTIONS 5 AND 7 15 TIMES EXEMPTIONS 1, 2 AND 6 1 TIME EXEMPTIONS 5, 7 AND 10 2 TIMES 1

EXEMPTIONS 1, 3, 5 AND 7 1 TIME EXEMPTIONS 2, 5, 6 AND 7 2 TIMES TOTAL 61 (4)

THERE WERE 84 COMMISSION VOTES DURING OPEN MEETINGS IN 1985.

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4 (5)

THERE WERE 15 COMMISSION VOTES DURING CLOSED MEETINGS IN 1985, s

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1 1.

4 (6)

THERE WERE 227 VOTES TAKEN BY THE COMMISSION IN 1985.

s-4 BY NOTATION OR OCCURRING IN A MANNER OTHEP.THAN'AT N

OPEN OR CLOSED MEETING.

THE COMMISSION DID NOT HOLD ANY " GATHERINGS" IN 1985.

THE ATTACHED LIST, INCLUDES THE DATE OF THE DECISION MEMORANDUM,(INDIVIDUAL COMMISSIONERS MAY VOTE ON DIFFERENT DAYS), THE GENERAL SUBJECT MATTER, AND THE DECISION REACHED.

NOT INCLUDED IN THE LIST IS CORRESPONDENCE REVIEWED BY THE COMMISSION IN RESPONSE TO LETTERS RECEIVED.

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DATE OF DECISION GENERAL SUBJECT DECISION REACllED January 4, 1985 Proposed Amendments to 10 CFR Commission approved proposed Parts 30, 40, 50, 51, 70 and rule changes 72 on Decommissioning Criteria January 8, 1985 Technical Assistance on Commission agreed to liigh I.evel Waste solicit bids January 9, 1985 NRC lludget Process Commission agreed to procedures for early Commissioner participation in budget process January 9, 1985 Technical Assistance Contract Commission approved with Mitre Corp.

technical assistance contract January 14, 1985 Coordination with ACRS Commission agreed with new procedures to help provide more effective coordination between Commission and ACRS January 14, 1985 Export Related Approved issuance of license to export nuclear grade graphite to y

various countries m

"i January 14, 1985 Legal Effects of Regulatory Commission agreed to have Actions staff formulate guidance on r3 the use of enforcement 5

orders and licensing y

amendments to accomplish g

safety upgrades 2

January 16, 1985 Classified Commission agreed with staff proposed position January 22, 1985 New Unresolved Safety Commission disagreed with Issue (USI) proposed addition of

" Reactor Coolant Pump Seal Failure" to USI List January 22, 1985 Enforcement Action Commission approved issuing notice of violation

DATE OF DECISION GEllERAL SUBJECT DECISION REACHED January 22, 1985 Policy Statement on Extending Commission agreed that a policy Nuclear Plant Licenses statement should be developed Beyond 40 Years on extending nuclear power plant licenses beyond 49 year operating period January 23, 19115 Public Release of TMI-l The Commission agreed not to (Restart) Documents releano documents January 2.1, 1 9 115 Steam Generator USI commission approved direction to staf f on draf ting of letter to licensees January 23, 1985 Diablo Canyon Transcripts Commission vote not to release the Diablo Canyon Transcripts to the public January 23, 1985 Letter to Advisory Committee The Commission approved a letter on Enforcement Policy to the Advisory Committee for the Review of the Enforcement policy requesting the Committee j

to solicit views from other Federal agencies and individuals s

January 25, 1985 10 CFR 2.764 and Related Commission agreed to ask I

Policy Statement OGC to review need for two policy statements January 30, 1985 General Operating Criteria Commission agreed staff should not' develop general operating criteria at s

this time January 31, 1985 Delegation of Authority to Administer Oaths and Commission approved delegation Affirmations to administer oaths and a ffirmations to the Director, OIA

' January 31, 1985 Price Anderson and Supreme Court Silkwood Decision Commission agreed staff should develop legislative recommendations

! January 31, 1985 TMI-l Restart License Commission agreed with certain Conditions 3

license conditions for GPU in the restart of TMI-l

DATl; OF DECISION GENERAL SUBJECT DECISION REACllED February 4, 1985 He-review of Management Commission agreed on procedures Meetings Ident i fied in regarding a FOIA sequest Hesponse to FOIA-84-61 February 5,

1985 Jurisdiction with Hespect Agreed to allow I.icensing to Part 70 Materials Licenses Boards to continue t.o assert jurisdiction over Part 70 Februar 5'

1985 Licensing Board Commission agreest not to adopt Recommendations on Licensing Boarst's recommendations l

Shoreham to have staff me.nitor LILCO financial position more closely February 7, 1985 than normal Staff Withdrawal of Civil Penal ty Order Commission agreed to request fuller explanation from a

staff on withdrawal of civil penalty February 11, 1985 Export Related Approved license to export flEU February 11' 1985 01 Policies Approved an OI policy with regard to 01 investigaters Fchruary 11, 1985 drawing conclusions OIA Review of the OL Review Process for Powei Heactors Commission agreed on certain procedures that the staff lchruary 13, 1985 should carry out OIA 1985 Audit Plan Approved Audit Plan February 14, 1985 Transfer of NRC Classified and Sensitive Unclassified Commission approved procedures Documents regarding disposition of documents of former Presidential appointees February 15, 1985 Handling of Late Allegations Approved policy statement on handling of late allegations February 15, 1985 DOE Siting Guidelines Agreed no further Commission action was needed on subject

DATE OF lil'C 1 S I ON GENERAI, SUBJECT DECISION REACilED February 19, 1985 Proposed I.egislative Package Approved I.egislative Package on Regulatory Reform M tions to Disqualify Judge Approved Order taking February 19' 19 f!5 Ivan Smith in TMI-l Restart review of decision of Proceeding Judge Smith to deny motions to disqualify himself February 19, 1985 OIA Organization Change The Commission approved the reorganization of OIA February 19, 1985 Increasing Ol's FTE Allocation Commission disapproved increase for FY 1985 in OI FTE's February 21, 1985 ENO Criteria Commission agreed to publish proposed modifications to ENO criteria February 22, 1985 Newrite of Part 2 Rule Commission agreed that a plain English rewrite of 10 CFR Part 2 should be carried out February 22, 1985 Funding of NRC's High Level Commission agreed to delay Waste Management Program Costs Under the Nuclear action on waste management proposal pending staff Waste Policy Act of 1982 -

briefing Use of Nuclear Waste Fund February 25, 19H5 Export Related A{rovedlicense to export February 25, 1 911 5 Reappointment of ACRS Member Commission approved reappointment of ACHS member February 26, 19HS Transcripts Commission agreed to procedures for handling closed transcripts February 28, 1985 Review of ALAB-793 (In the Matter of Commonwealth Agreed not to take review Edison Company) of AI.AB-793

DATE OF IlECISION GENERAL SUB.IECT DECISION REACllED February 2H, 19H5 Iteview of AI.AH-776 (In t lie Agreed not to take Matter of Pacific Gas and review of AI All-776 Electric Company)

February 28, 1985 Proposed Rule on Licenses Approved proposed rule and Radiation Safety Hequirements for Well-Logging Operations (New 10 CFR Part 39)

February 28, 1985 Iteview of ALAB-781 (In the Agreed not to take review Matter of Paci fic Gas and o f ALAB-781 Electric Company)

March 1,

1905 TMT-2 Cleanup Commission agreed to issue Information Notice on clean-up schedule and funding at TMI-2 l

March 1, 1985 Review of ALAB-775 and i

ALAB-775A (In the Matter No review of ALAB-775 and 775A of Pacific Gas and Electric Company,)

March 1, 1985 Order Modi fying License e

Issue letter, notice of (EA 84-98) for Veterans Administration Medical violation, and Order modifying license l

Center, Bronx, New York March 4, 1985 NHC Training in Foreign Countries Commission agreed to further consider the subject

),

March 4, 1985 r Posed Civil Penalty t

Commission agreed to review the enforcement proposals re subject 4

March 6, 1985 Brown and Root, Inc.

v.

Donovan, Adopted three recommendations Scope of Employee Whistleblower of OGC and ELD Protection Under Section 210 of Energy Reorganization Act of 1974

DATE OF DECISION GENERAL SUBJECT DECISION REACllED March 6, 1985 TMI-l Hestart The Commission decided not to address issue of whether TMI hearings were bar to restart of Unit 1 Asked OPE /OGC for analysis of training issues March 7, 1985 Security Measures at Non-Power Reactors Commission agreed that staff should provide draft order and discussion on possible security improvements March 8, 1985 Use of OPM for Security Clearances Commission requested staff paper on clearance process March 8, 1985 Draft Legislative Package Commission approved guidance to OGC on preparation of legislative proposals March 12, 1985 Approval for Cltange in End Approved initiations of Use of U.S.

Origin Material discussions between staff and Executive Branch regarding procedures for approving secondary use of US origin material or equipment March 13, 1985 Inventory Difference Data Approved release of inventory difference data for.L:n-June '84 March 14, 1985 NRC Liaison with the GAO Commission approved transfer of GAO 1 ia i :;< m f unes i.in from OIA to EDO March 15, E985 Enforcement Action Commission approved notice of violation and civil penalty

DATE Ol' Dl:Ci SIon GENERAL SUBJECT DERISION REACllED March 19, 1985 Letters from the Departments Alproved responses to DOE of St(te and Energy Regarding and Department of State NRC's Comments on a Request Involving the Retransfer of IIEU from Canada to West Germany and Return March 20, 1985 NRC/ FEMA Memorandum of Commission approved a proposed Understanding memorandum of understanding related to radiological emergency planning March 21, 1985 NRC Operations Center Data Commission approved letters Acquisition Capability to Congressional Oversite Committees March 26, 19 fl 5 Proposed I.icense to Export Approved issuance of Nuclear Grade Graphite license March 27, 1985 Hetransfer of U.S.-Origin Approved response to DOE IIcavy Water from West Germany and Switzerland to Korea March 29, 1985 Contracts for Technical Commission decided to allow Assistance in Ilydrology:

the staff to issue a Project A - Testing technical assistance Project B - Analysis contract April 1,

1985 Proposed Amendments to Approved a proposed revision 10 CFR 50.12 " Specific to 10 CFR 50.12 Exemptions" April 1,

1985 TMI-2 Operators The Commission decided to allow the staff to continue investigation of TMI-2 operators at other facilities April 5, 1985 Severe Accident Policy Commission approved a policy Statement statement

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D_ ATE OF DECISION GENERAI. SUBJECT DECISION REACHED April 10, 1985 Majority Votes Commission agreed on procedurog for resolving votes April 10, 1985 Implementation of Category B Approved implementation of Requirements for the Category H requirements Continuity of Government Program April 11, 1985 Retransfers for Reprocessing Approved response to DOE on 4

the subject transfer April 11, 1985 FOIA Appeal 85-A-9; ASLAP Denied the Appeal of Ms. Ann Document Withheld Concerning Riley for an POIA request NRC Contract Review for Court Reporter Services 3

April 15, 1985 Petition for Review of Agreed not to take review l

AI,AH-788 (In the Matter of of ALAB-788 f.ong Island Lighting j

Company) ( LII.CO) 4 i

i April 17, 1985 NRC Sunshine Act Regulations Approve publication of rule change for comment April 19, 1985 Commission SECY Paper Commission agreed to revised i

Procedures procedures on submittal of certain issues to the Commission for action i

i' April 22, 1985 Availability of Commission-Disapproved providing legal Provided I,egal Assistance to assistance to NRC employees NRC Employees Involved in in Federal Grand Jury Federal Grand Jury Proceedings Proceedings t

The Commission approved request Stenographic Reporting Services to the EDO on steno services i

April 24, 1985 Contract, Washington, DC Area 3

DATE OF DECISION GENERAL SUBJECT DECISION REACHED April 26, 1985 GPU Nuclear Corporation's (GPU)

Disapproved exemption Request for Exemption from the Fee Requirements of.10 CFR 170 for the Three Mile Island Nuclear Power Plant, Unit No. 2 (TMI-2) e April 29, 1985 Sunshine Act. Regulations Commission decided that the Sunshine Act regulation should be made immediately effective during the comment period April 30, 1985 Improvements in the Performance The Commission approved certain Review Process improvements in the performance revt'ew process 4

i May 2, 1985 Proposed Amendments to 10 CFR Approved publication Part 0 and 2 Establishing of proposed rulemaking Special Ex Parte In Camera i

Procedures for Resolving j

Conflicts l

May 3, 1985 Advance Notice of Proposed Apptoved ANPR Rulemaking on Financial Responsibility Applicable to NRC I.icensees for Cleanup of Accident Releases of Certain Materials May J.

1985

, Delegation of Authority in Commission disapproved Export Related Areas delegation of authority May 3, 1985 Proposed Civil Penalty for Approved Civil Penalty of Sequoyah-1

$112,000 May 3, 1985 UCS Petition for Emergency Approved letter to Ms. Weiss and Remedial Action on i

Environmental Qualification

DATE OF DECISION GENERAL SUBJECT DECISION REACllED

~

1 d

May 3, 1985 Standards for Imposing Commission disapproved a Civil Penalties policy recommendation May 9, 1985 Export Related Approved issuance of a Export 1icense for llEll &

I. Elf May 13, 1985 Export Related Approve license to export deuterium to Canada May 13, 1985 Decision of the Court of Appeals Approved letter to George in General Electric Co.

v.

NRC, L. Edgar (GE)

No. 84-2066, Involving the General Electric Reed Report May 13, 1985 Export Related Commission approved license to export heavy water May 14, 1985 TMI-l Restart Order (CLI-85-2)

Disapproved memo

-- The Commission's Criticism Cl.I-84-18 May 14, 1985 and OI and OIA Referrals to the The Commission approved procedures August 14, 1985 Department of Justice pertaining to OI and OIA referrals to the Department of Justice May 14, 1985 Open Door Policy Meeting with The Commission acted on a Mr. Robert 1.icciardo on proposed letter to February 19, 1985 Regarding Congressman Markey NRC Letter to Congressman Markey dated December 20, 1984 May 21, 1985 Investigation Policy on Rights Approved 3 policy statements of Licensee Employees linder on rights of license Investigation employees z

DATE OF DECISION GENERAL SUBJECT DECISION REACIIED d

May 28, 1985 FOIA Appeal 85-A-1 (Request Approved response denying the for Draft Letter to Congressman appeal Markey May 30, 1985 Differing Professional Approved revision of M nual Chapt er 4125 opinions s

May 31, 1985 Material False Statements Commission agreed to return paper to staff with request for update when Advisory Committee on Enforcement Policy Reports Proposed Ex Parte and Commission decided that the May 31, 1985 Separation of Functions present rule should be changed Rule j

June 4, 1985 Scheduling of Emergency Plan Commission agreed that the Exercise for Sho/ cham staf f should request that FEMA schedule an exercise of the LILCO emergency plan

' Tune 6, 1985 Request for IIcaring by R.

C.

Disapproval of draf t order Arnold and E.

G. Wallace provided direction for redraft June 6, 1985 Suffolk County Legislature The Commission decided to Request for Delay of proceed with vote on Shoreham Vote Shoreham a

A proved letter to Department Executive Branch Policy on June 7, 1985 P

of State Nuclear Exports a

DATE OF DECISION GENERAL SUBJECT DECISION REACllED June 11, 1985 FOIA Appeal 85-A-18C --

Approve letter that (1)

Documents Related to Aamodt released two documents and Motion for Investigation of (2) denies the remainder of Radioactive Releases During the the appeal i

TMI-2 Accident and the Center for Disease (CDC) Review of that Motion (Initial Request FOIA-85-8)

June 11, 1985 Contract Approval Request:

The Commission approved the Technical Assistance in staff contracting for Developing and Implementing services to augment staff Programs and Procedures for:

Personnel on the subject Project A - Reactors projects Requiring Special Inspection Resources and Project B-Inspection of Operating Reactors During Major Outages June 12, 1985 Providing Information to Approved providing Advisory Panel on TMI-2 Cleanup SECY-35-153 to the Advisory Committee on TMI-2 Cleanup for its review and comment j

June 13, 1985 Guidance on Board Notifications Approved development,of a Policy Statement on Board Notifications requirements after the Commission adopts a rule on material false statements June 13, 1985 Status of Efforts to Implement Approved letter to licensees the Low-1.evel Radioactive and Congress Waste Policy Act, and i

Regulatory Implications of Potential Restricted Access to Low-Level Waste Disposal Sites

-l i

i ij

~

DATE OF DECISION GENERAL SUBJECT DECISION REACIIED June 13, 1985 Stenographic Reporting Contract

'The commission approved changes in stenographic contracts for for reporting and stenographic services to be used out of the Washington area i

I Waste Activities June 14' 1985 Proposed Revisions to Approved publication of 10 CPR Part 35 proposed rule I;

June 18, 1985 Proposed Rule to Modify General Approved proposed amendments Design Criterion 4; Interim to GDC-4 Schedular Exemptions I.

June 19, 1985 Export Related Approved license amendment to authorize the export of fuel June 26, 1985 Testimony on Licensing A majority of the Commission Legislation agreed to a modification of the proposed legislation

'i""e 28' 1985 Conclusions of OIA Report on Approved letter to Region II's llandling of Congressman Markey and Grand Gulf Falsification instructions to staff of Operator Quali fications in Response to Congressman Markey's Questions June 28, 1985 Export Related Approved issuance of a license amendment to allow U.S. origin natural uranium to be enriched in EURATOM t

June 28, 1985 Export Related Approved issuance of a license amendment to export additional natural uranium to EURATOM for enrichment purpose

DATE OF DECISION GENERAL SUBJECT DECISION REACilED July 2, 1985 Retransfer of U.S.

Origin Approved response to DOE material July 2, 1985 Diverse SCRAM System for The Commission agreed Westinghouse Reactors rulemaking on subject was not needed July 2' 1985 Five Year Plan The Commission approved development of a comprehensive five year plan 4

July 3, 1985 FOIA-84-A-78C (Appeal of FOIA-Approved release of documents84-795)

July 3, 1985 April 12 UCS I.etter He Sta f f Approved refering the 4/12 Testimony in Restart Proceeding UCS letter on TMI-l to the NRC staff for an appropriate response July 3, 1985 Export Related Approved issuance of an amendment to license the export of nuclear grade graphite to various countries July 3, 1985 Retransfer of U.S.

Origin Approved retransfer of 4

Material irradiated fuel pins July 3, 1985 Appr val f EDO Request to Lease / Purchase Black Fox The Commission approved lease /

Simulator purchase of the Black Fox l

simulator from General Electric July 3, 1985 Severe Accident Policy Commission approved a suggested Statement

?

modification to the policy statement

DATE OF DECISION GENERAL SUBJECT DECISION REACilED Commission decided that July 8, 1985 IAEA Safeguards staff should prepare current assessment of IAEA safeguards n

July 9, 1985 Planning the Review of DOE's Approved staff schedule Project Decision Schedule for the liigh-Level Waste Repository Program July 12, 1985 Export Related Approved a proposed license to export IIEU July 16, 1985 Annual Report to the President Approved the Annual Report to on Domestic Safeguards the President July 17, 1985 Export Related Approved issuance of a license to export ilEU July 18, 1985 Classified Approved Letter i

July 25, 1985 Availability of Commission-Approved " Fact Sheet" con-Provided Legal Assistance to taining general information NRC Employees Involved in on the grand jury process Federal Grand Jury Proceedings July 30, 1985 Export Related Approved license to export nuclear grade graphite July 30, 1985 Export Related Approved issuance of a l

license to export components for use in the MONJU fast breeder reactor in Japan 1

July 31, 1985 Design Basis Threat Letter to NSC approved i

.n

.n

f DATE OF DECISION GENERAL SUBJECT DECISION REACilED August 1, 1985 Contract for ADP Systems Commission approved the EDO Maintenance contracting for ADP system maintenance via the Division of Contracts August 2, 1985 Review of ALAB-799 (In the Approved not taking review Matter of Ilouston Lighting of ALAB-799

& Power Company, et al August 5, 1985 Proposed Enforcement Action -

Agreed sta f f may issue Notice GPU Nuclear Corporation (TMI-l of Violation and Proposed and 2)

Imposition of Civil Penalty to General Public Utilities Nuclear Corporation August 5, 1985 DD-85-9:

Review of Director's Agreed not to take review of Decision in the Matter of DD-85-9 in the Matter Power Company of Catawba Nuclear Station, Units 1 and 2 August 7,

1985 Review of ALAB-782 (In the Agreed not to take review Matter of Pacific Gas and of ALAB-782 Electric Company)

August 7, 1985 Staf f Actions from the March Approved letter to Mayor 7,

1985 Commissioners' Meeting Morris, of Lancaster, Pa.,

with the Advisory Panel on THI-stating that there is no need 2 Cleanup (M850307A) for additional studies on TMI-related health effects, other than those already planned August 7, 1985 ADP Contracts The Commission approved staff I

soliciting for contracts on two ADP systems and for time sharing contracts August 9, 1985 Review of ALAD-807 (In the Agreed not to take review Matter of Metropolitan Edison of ALAB-807 Company mm

DATE OF DECit; ION GENERAL SUBJECT DECISION REACllED August 9, 1985 EDO Rulemaking Authority Commission agreed to delegate additional rulemaking authority to the EDO for minor amendments 1

August 13, 1985 Amendment of Charter of Commission agreed to revise TM1-2 Advisory Panel charter of the Advisory Panel to allow them to provide advice related to the public's reaction i

to plans and results of certain health studies 1

August 14, 1985 Backfit Rule Publication A majority of the commission agreed to delay publication j

of the Backfit Rule I

August 14, 1985 Exercise of EDO Rulemaking Commission amended EDO Authority rulemaking authority August 22, 1985 Criteria on Personnel Dosimeters Approved minimum acceptable for Offsite Emergency Workers criteria for personnel dosi-meters for offsite Emergency Workers August 22, 1985 Certification of Radiographers Approved withdrawal of the advance notice of proposed I

rulemaking regarding certification of I

4 radiographers August 22, 1985 Proposed Technology Transfers Approved response to DOE August 26, 1985 Proposed Rule on Informal llear-Disapproved the notice of ing Procedures for Materials proposed rulemaking Licensing Adjudications l

August 27, 1985 Environmental Qualification Approved issuance of a Program Actions Resulting from generic letter and direction April 2,

1985 Commission Meeting on review of exemption re-quests i

(

j

DATE OF DECISION GENERAL SUBJECT DECISION REACHED I.etter to Congress on The Commission agreed to September 4, 1985 Conversion of Research send letters to Congress Reactors to LEU Fuel on conversion of research reactors to LEU fuel September 9, 1985 Sta f f Requirements Memorandum Commission agreement on on Commission EEO Program EEO matters l

September 10, 1985 Export Related Approved issuance of a i

license to export deuterium

)

oxide

(

o Use of HEU Fuel in Commission approved Order September 13, 1985 Non-Power Reactors to require removal of excess unirradiated HEU from non-power reactor facilities t

I.etter from Dr.Myers on Commission approved of direction September 20, 1985 Region II Report to OIA re Myer's letter i

Proposed Retransfer for Approved response to DOE September 23, 1985 Reprocessing September 24, 1985 Funding of NRC's Costs of Approved seeking licensing j

Licensing DOE High I.evel fees from DOE and amending AEA y

September 24, 1985 Request for Status Report Commission agreed to receive a status report from the i

Executive Branch l

}

September 26, 1985 Approval Under Section 145 b.

Approved access to National of the Atomic Energy Act of 1954, Security Information and 4

as am9nded, for the Employment of Restricted Data i

a Technical Assistant for Access 1

to National Security Information I

DATE OF DECISION GENERAI, SUBJECT DECISION REACllED September 30, 1985 Purchase of Additional 5520s commission agreed that staff has a need for additional l

5520 computer systems l

I September 30, 1985 Updating Policy Statements The Commission agreed that the staff should update certain j

policy statements 4

l October 7' 1985 Withdrawal Notice: Authority for Approved publication of a the Copying of Records and Re-notice withdrawing the tention Periods for Security proposed rule.

Records October 8, 1985 NRC Comments on the Depart'ent Approved letter to DOE m

of Energy's Draft Project Decision Schedule (NWPA Section ll4(e))

Retransfers for Reprocessin9 Approved response to DOE October 9, 1985 I

Closed Commission Meeting Approved release of October 11, 1985 Transcripts: Wolf Creek, 6/3/85 transcripts of the 6/3/85 Commission meeting i

October 11, 1985 Alternative Approaches for Approved keeping the staff's l

Implementing the Sholly Amendment present procedures and cont-j on No Significant Hazards inuing to notice the staff's Considerations proposed determinations 1

October 15, 1985 Consultant on Five Year Plan Commission approved the hiring of a consultant on the development of the five year j

plan 1

I

i DATE OF DECISION GENERAL SUBJECT DECISION REACllED d

October 16, 1985 Proposed Office of Nuclear The Commission disapproved Safety the subject proposal C

October 16, 1985 Timing of the DOE Preliminary A majori ty of the Commission Determination agreed that no change is required re NRC's position on prior concurrence in DOE Siting Guidelines October 16, 1985 Timing of the U.S.

Department Commission agreed that DOE's of Energ's " Preliminary Deter-modified position regarding mination" Required by the NWPA the timing of its preliminary that Three Site are Suitable determination does not for Development as Repositories require any change in NRC's 1.icensing Adjudications prior concurrence in the DOE Siting Guidelines October 16, 1985 Incident Investigation Program Approved plan to improve the existing program for the investigation of significant operational events October 22, 1985 The General Counsel's Memo-A majority of the Commission randum of October 17, 1985 agreed on a personnel matter October 23, 1985 Enforcement Policy on Vendors Approved revised enforce-ment policy on vendors October 24, 1985 Staff Actions in Response to Commission agreed that staff Third Circuit's Stay in should keep the Commission Limerick Commission informed on time sensitive documents October 24, 1985 Role of the ACRS in Reviewing Commission agreed to ask ACRS the Nuclear Waste Management Program to review waste management program

DATE OF DECISION GENERAL SUBJECT DECISION REACIIED October 25, 1985 Providing Information to TMI-2 Commission agreed to procedures Advisory Panel for the staff to provide information to the TMI-2 Advisory Panel October 28, 1985 Environmental Qualification (EO)

Approved the requests from Extension of the 11/30/85 Dead-Niagara Mohawk Power Corp.,

line for Nine Mile Point Nuclear for an extension in the Station, Unit No. I deadline for completion of their equipment qualification program October 28, 1985 Guidelines for Post-Accident Approved of de f erment of developing post-accident recovery guidelines OIA 1986 Audit Plan Approved the OIA 1986 Audit October 29, 1985 Plan OI Investigation Thresholds Commission agreed to request October 29, 1985 and Priorities explanation from OI on subject i

October 30, 1985 Export Related Approved license to export plutonium to Switzerland I

October 31, 1985 Allegations Concerning the Commission agreed to an Operation of the Nuclear investigation of allegations Fuel Services Plant in Erwin, Tennessee

DATE OF DECISION GENERAL SUBJECT DECISION REACilED Further NRC Actions on Commission directed the staff

~

November I,

1985 Davis-Besse to keep Commission informed on Davis-Besse and to form an ad hoc group to review issues concerning the Davis-Ilesse event November 4, 1985 Approval of Technical Assistance Commission approved a Contract technical assistance contract

)

November 5, 1985 Tera Advanced Services Corp.

Approved request that DOJ GSBCA Nos. 6713-NitC appeal the GSBCA decision on the TERA Advanced Services Corp. Contract November 7, 1985 Export Related Approved issuance of a license to export LEU November 7, 1985 Export Related Approved letter to State Department November 8,

1985 Emergency Preparedness Exercise for Shoreham Approved proceeding with the Emergency Preparedness Exercise November 8, 1985 Environmental Qualification (EO)

Approved the request from Extension of the 11/30/85 Dead-Northeast Nuclear Energy line for Millstone Unit 1 Co., for extension in the deadline for completion of their EQ program j

l November 8, 1985 Environmental Qualification Approved sta f f not granting (EQ) Extension Request Post-an extension for envionmental 11/30/85 for the Brunswick qualifications of certain Steam Electric Plant, Unit 2 electrical equipment l

(IISEP-2) i

DATE OF DECISION GENERAL SUBJECT DECISION REACllED November 19, 1985 Proposed Revision of 10 CFR Commission decided not to Part 20, " Standards for delay publication of Protection Against Radiation" proposed rule pending backfit analysis The Commission agreed diat a em ership Vacancy on ACHS November 19' 1985 replacement for an ACRS member should have a back-ground in llLW l

November 22, 1985 Quality Assurance Program Approved letter to Congress Implementation Plan and technical assistance contract b

November 25, 1985 Export Related Approved response to DOE i

on proposed technology j

transfers November 25, 1985 Advisory Committee for Over-Disapproved establishment of seeing thr. liigh-Level Radio-two-level advisory review a

Active Wattte Repository Program process for the NRC lli.W l

i repository program I

November 27, 1985 Report on the Environmental Pro-Approved letter to EPA and 4

tection Agency's Environmental directed the EDO to submit Standards for liigh-Level Radio-to the Commission a active Waste Dispoal rulemaking package i

November 27, 1985 Proposed Revision of 10 CPR Approved publication of Part 20, " Standards for Pro-proposed rule revising 10 l

tection Against Radiation CFR Part 30 I

i

DATE OF DECISION GENERAL SUBJECT DECISION REACllED November 13, 1985 Environmental Qualification (EO)

Approved request from Extension of the 11/30/85 Dead-Wisconsin Electric Power line for Point Beach Nuclear Plant, Corp., for an extension Units Nos. I and 2 for completion of their equipment qualification program November 14, 1985 Environmental Qualification (EQ)

Approved the request from Extension of the 11/30/85 Dead-Indiana and Michigan Electric line for Donal C. Cook Nuclear Co.,

for an extension in the Plant, Unit No. 2 deadline for completion of their EQ program November 14, 1985 Environmental Qualification (EO)

Approved denial of the Extension of the 11/30/85, Dead-request from TVA for an line for the Sequoiah Nuclear extension in the deadline Plant, Units 1 and 2 for completion of their equipment qualification program November 14, 1985 Environmental Qualification (EQ)

Approved the request from I

Extension of the 11/30/85, Dead-Connecticut Yankee Atomic line for the lladdam Neck Plant Power Co,, for an extension in the deadline for completion of their equipment qualification program i

November 18, 1985 l

Environmental Qualification (EQ)

Approved request from the Extension Request Beyond the Arizona Nuclear Power Project i

l 11/30/85 Deadline for 9alo Verde for an extension (to 3/30/86)

)

Nuclear Generating Station, Units for completion of their j

I and 2 equipment qualification program November 19, 1985 S.525 and August 6, 1985 Commission agreed to review Letter'to Senator Roth proposed policy representation j

prior to staff action 1

_,.. _ -._ ~ -

.~_-_-___.;-_,.__..._.__.-,--_--,_..

DATE OF Drr*y !:lff GENERAL SUBJECT DECISION REACHED Deccaber 2, 1985 Workshop on Longet-Term Commission decided to co-Aspects of Nuclear Power sponsor a workshop on subject December 4, 1985 Draft Federal Register Notice Approved guidance to OGC Proposing Revisions to the for rewrite of proposed Commission's Ex Parte and revisions Separation of Functions Rules December 5, 1985 Environmental Qualification (EQ)

Approved issuance of an order Extension Request Post-November 30, 1985 for the Pilgram Nuclear denying a request from Boston Edison Co, to extend the EQ 1

Power Station deadline to 2/3/86 December 6, 1985 Export Related Apprbved license to export U-233 December 6, 1985 Proposed Agreement Between the Approved a proposed agreement State of Iowa and U.S. Nuclear between the State of Iowa Regulatory Commission Pursuant and the NRC to Section 274 of the Atomic Energy Act of 1954, as amended I

Direction sent to staff on General Physics Contracts December 9, 1985 subject with NRC December 11, 1985 Proposed Review of NRC Research Commission decided not to Programs and Policy undertake additional study of research programs and policy beyond ongoing effort i

DATE OF DECISION GENERAL SUBJECT DECISION REACilED j

December 11, 1985 OIA Review of Issues Raised Commission agreed that no by Congressman Markey additional attempts would be made to persuade DOE officials to allow OIA to meet with DOE employees December 11, 1985 Limitation on the Use of Direction to staff on liighly Enriched Uranium proposed rule (llEU) in Research Reactors December 12, 1985 Notice of Violation and Proposed Authorized the Director, Imposition of Civil Penalties OIE to issue Notice of Violation and Proposed Imposition of Civil Penalties in the amount of $58,000 December 13, 1985 Proposed Civil Penalty Action Approved the Proposed Notice of Violation and Civil Penalty December 13, 1985 10 CFR Part 60 -- Definition Agreed that the term of the term "fligh-bevel Radio-

"high-level radioactive active Wastes" -- Advance Notice wastes" requires defining of Proposed Rulemaking and ANPR should be delayed pending Congressional action December 19, 1985 Expenses Incurred by IEEE Commission agreed to direct staff in Preparation for baboratory to prapare letter to GAO Accreditation Program December 19, 1985 Export Related Agreed to response to DOE on proposed technology transfers

DATE OF DECISION GENERAI,SUH. LECT DECISION REACllED December 19, 1985 Public Service Company of New Approved an order on the Mexico's Proposed Sale and application by the Arizona I,caseback of Its Ownership Share Public Service Co.,

for of Palo Verde Unit 1 agreement in a sale and leaseback arrangement for Palo Verde - 1 i

3 December 19, 1985 National Academy of Sciences Approved a grant to the NAS Grant to Conduct a Study of to conduct a study of Commercial Nuclear Power iluman commercial nuclear power Factors Research Needs human factor esearch needs Development of the Five-Year Commission agreed to proceed December 20, 1985 Plan with development of draf t five year plan December 23, 1985 Establishment pf an Ad Iloc Made decisions on Review Group on the Davis-Besse recommendations of Incident SECY-85-365 pertaining to the membership, charter and administrative support for an Ad floc Review Group on the Davis-Bes3e Incident December 24, 1985 Export Related Approved issuance of a license to export nuclear j

grade graphite

{

i Application of Hackfit Rule Commission agreed that backfit December 31, 1985 to Revision of Part 20 analysis of proposed rule should be done l'

I i

1

DATE OF DECISION GENERAT, SUBJECT DECISION REACilED December 31, 1985 Epidemiological Studies of Agreed to reconsider its.

Radiation Effects support of the transfer of authority to conduct epidemiological studies of radiation effects from DOE to ilSS, as proposed in S.525 December 31' 1985 Issuance of Proposed Pule on the Important-to-Sa fety Issue guidance to staff for re-

^"

E #" I 'I"I dra f t December 31, 1985 Stai. ion Blackout, Unresolved Approved proposed rule on Safety Issue (USI) A-44 Station Blackout t

QUESTION 31.

REGARDING THE OFFICE OF INVESTIGATIONS, PLEASE RESPOND TO THE FOLLOWING:

(A)

WHAT IS THE NUMBER OF OPEN AND BACKLOG CASES FOR EACH OF THE PAST THREE YEARS?

ANSWER.

THE NUMBER OF OPEN CASES FOR EACH OF THE PAST THREE YEARS IS AS FOLLOWS:

1985:

164 1984:

145 1983:

91 THE OFFICE OF INVESTIGATIONS (01) DOES NOT DIFFERENTIATE BETWEEN "0 PEN" AND " BACKLOGGED" CASES.

APPROXIMATELY SIX MONTHS AGO, 01 BEGAN TO TRACK THE NUMBER OF CASES THAT ARE OPEN, BUT ARE NOT BEING WORKED ON DUE TO LACK OF RESOURCES.

OF THE CASES CURRENTLY OPEN, 75 CASES ARE NOT ?EING WORKED ON DUE TO LACK OF. RESOURCES AT THE PRESENT TIME.

i

QUESTION 31 (CONTINUED) (B)

PROVIDE A LISTING OF ALL OPEN 01 CASES INDICATING THE DATE THE CASES WAS OPENED.

TITLES AND SUBJECT MATTER OF THESE CASES ARE NOT REQUESTED FOR'THIS PUBLIC LISTING.

ANSWER.

SEE ATTACHED LISTING OF ALL CURRENT OPEN 01 CASES.

I I

CUESTf0N 31(a) ATTACHMENT OI CPEN CASES CASE No, DATE OPENED 1-84-007 05/18/84 1-84-008 05/18/84 1-84-010 09/28/84 1-84-014 09/28/84 01-85-019 08/09/84 1-84-022 09/18/84 01-84-024 09/26/84 1-84-026 09/27/84 1-84-027 10/19/84 01-84-028 10/29/84 1-84-034 11/C6/84 1-85-002 03/22/85 1-85-012 06/14/85 1-85-019 09/20/85 1-85-020 10/07/85 01-85-024 11/20/85 1-85-025 11/20/85 1-86-001 02/07/86 1-86-002 02/10/86 1-86-003 02/21/86 1-86-004 02/21/86 1-86-005 03/03/86 1-86-006 03/10/86 01-86-C07 03/11/86 1-86-008 04/02/86 02-83-036 08/29/83 2-83-040 11/14/84 2-84-003 01/31/84 2-84-009 12/84 Q2-84-014 08/14/84 Q2-84-019 10/19/84 2-85-006 03/06/85 02-85-007 03/29/85 02-85-008 03/28/85 2-85-011 11/04/85 02-85-013 05/20/85 02-85-014 07/03/85 2-85-016 08/30/85 02-85-017 08/14/85 2-85-018 08/27/85 02-85-021 09/09/85 02-85-022 09/19/85 02-85-023 09/20/85 T-85-024 09/24/85 02-85-026 09/30/85 02-85-027 10/07/85 02-85-028 10/07/85 02-85-029 10/07/85

QUESTION 31(B) ATTACHMENT 01 OPEN CASES CASE No, DATE OPENED 02-85-030 10/07/85 Q2-85-031 10/07/85 02-85-032 10/23/85 02-85-035 11/14/85 02-86-001 12/18/86 Q2-86-002 01/15/86 02-86-004 01/15/86 02-86-C05 01/22/86 02-86-0C6 02/05/86 02-86-007 02/14/86 02-86-008 02/14/86 02-86-009 03/07/86 02-86-010 03/06/86 02-86-011 03/07/86 02-86-012 03/07/86 02-86-013 03/31/86 3-82-050 06/30/82 3-82-057 05/03/82 3-83-007 09/08/83 3-83-008 09/30/83 3-83-023 03/23/83 03-83-018 03/18/83 03-83-019 03/18/83 03-83-026 03/24/86 03-83-031 11/29/83 03-83-033 08/03/83 03-83-037 10/18/83 3-84-001 01/19/84 3-84-002 01/31/84 3-84-003 05/31/83 3-84-C05 09/19/83 03-84-008 01/31/84 03-84-009 03/31/84 3-84-010 03/29/84 3-84-011 04/27/84 03-84-012 04/29/84 3-84-013 05/29/84 3-84-014 07/19/84 3-84-015 07/27/84 03-84-017 08/24/84 3-84-022 11/23/84 3-84-023 12/03/84 03-85-001 01/02/85 3-85-002 01/03/85 03-85-004 01/25/85 3-85-005 02/12/85 03-85-006 02/28/85 3-85-007 03/19/85 03-85-008 04/08/85

CUESTTON 31(8) ATTACHMENT 01 CPEN CASES CASE No, DATE OPENED 3-85-010 05/01/85 3-85-012 07/19/85 3-85-013 07/19/85 03-85-014 08/19/85 3-85-015 08/19/85 03-85-016 08/21/85 03-85-017 10/24/85 03-85-018 11/18/85 3-85-019 12/04/85 3-86-001 02/07/86 3-86-002 02/07/86 C3-86-003 02/25/86 03-86-004 03/18/86 4-83-012 07/06/83 4-84-010 02/15/84 4-84-022 03/16/84 4-84-032 06/29/84 4-84-033 07/20/84 4-84-034 07/20/84 4-84-035 07/20/84 04-84-044 10/03/84 4-84-047 10/09/84 4-84-051 11/30/84 4-85-004 05/20/85 4-85-006 06/17/85 4-85-009 06/27/85 4-85-011 07/01/85 C4-85-015 08/06/85 04-85-016 08/13/85 4-85-017 08/13/85 04-85-018 08/20/85 4-85-021 08/30/85 4-85-023 10/07/85 4-86-001 02/10/86 4-86-002 02/10/86 04-86-004 02/24/86 5-83-003 09/27/83 05-83-013 06/14/83 05-83-021 11/04/83 5-83-024 01/25/84 05-84-M1 01/05/85 5-84-008 02/07/84 05-84-034 08/31/84 05-85-003 01/10/85 05-85-006 02/22/85 5-85-009 03/01/85

QUESTION 31(a) ATTACHMENT 01 OPEN CASES CASE No.

DATE OPENED 5-85-032 03/01/85 G-85-043 04/09/85 05-85-044 04/30/85 3-85-047 06/19/85 05-85-049 08/14/85 6-85-050 10/03/85 05-85-052 11/07/85 05-85-053 12/20/85 05-86-001 02/03/86 3-86-CO3 02/26/86 05-86-004 03/17/86

CUESTION 31 (CONTINUED) (C)

WHAT STEPS HAS THE COMMISSION TAKEN TO TRY AND COMPLETE THOSE CASES OPENED BY OI IN ORDER TO REDUCE THE BACKLOG?

ANSWER, IN RESPONSE TO A COMMISSION MANDATE, THE STAFF AND OI WORKED TOGETHER TO DEVISE A SYSTEM OF INVESTIGATIVE THRESHOLDS AND PRIORITIES.

THE THRUST OF THIS SYSTEM IS AS FOLLOWS:

THE STAFF IS REQUIRED TO REQUEST INVESTIGATIVE ASSISTANCE FROM OI FOR ALL MATTERS OF WRONGDOING OF REGULATORY SIGNIFICANCE THAT ARE WITHIN NRC JURISDICTION.

AT THE TIME SUCH REQUESTS ARE MADE, THE REQUESTOR IDENTIFIES THE PUTATIVE VIOLATION, NOTES THE REGULATORY IMPACT OF ANY SIGNIFICANT DELAY.IN INVESTIGATION, AND ASSIGNS ONE OF THREE PRIORITIES TO THE REQUESTED INVESTIGATION - HIGH, NORMAL, OR LOW.

OI PROCEDURES CALL FOR AN ADDITIONAL REVIEW TO DETERMINE THE VALIDITY OF BOTH THE REQUEST AND THE INITIAL PRIORITY ASSIGNED TO IT BY THE STAFF.

OI THEN ATTEMPTS TO ASSIGN INVESTIGATIVE RESOURCES TO THE REQUESTED INVESTIGATIONS IN ACCORDANCE WITH THE PRIORITY OF THE CASE.

AS A RESULT OF THIS NEW SYSTEM, CASES OF THE LOWEST PRIORITY ARE DEFERRED IN FAVOR OF THOSE OF HIGHER PRIORITY WHICH IN TURN GIVES THE STAFF SOME DEGREE,0F ASSURANCE THAT THOSE OF GREATEST IMPORTANCE TO THEIR REGULATORY l

RESPONSIBILITIES ARE DEALT WITH AS QUICKLY AS POSSIBLE GIVEN OI's RESOURCE CONSTRAINTS.

QUESTION 31 (CONTINUED) A SECOND MAJOR FEATURE OF THIS SYSTEM IS THAT CASES THAT LANGUISH FOR SIX MONTHS WITHOUT THE APPLICATION OF INVESTIGATIVE RESOURCES i

BECOME CANDIDATES FOR ADMINISTRATIVE CLOSURE BY THE DIRECTOR, OI, THERE IS ALSO A PROVISION FOR CASES TO BE CLOSED ADMINISTRATIVELY FOR THE SAME REASON IN LESS THAN SIX MONTHS IF IT IS APPARENT TO 01 THAT NO RESOURCES WILL BE ABLE TO BE ASSIGNED TO THE CASE BEFORE THE SIX MONTH DEADLINE.

(THE DECISION AS TO WHICH CASES WILL BE CLOSED IS MADE BY 01),

CASES THAT ARE ADMINISTRATIVELY CLOSED IN THIS FASHION ARE REFERRED BACK TO THE STAFF IN WRITING FOR APPROPRIATE DISPOSITION.

WE EXPECT THE FOREGOING SYSTEM, COUPLED WITH AN ONGOING REVALIDATION OF THE CONTINUING NEED FOR INVESTIGATION OF OLDER CASES IN THE 01 INVENTORY, WILL SERVE TO REDUCE THE BACKLOG OF UNINVESTIGATED CASES AND ALLOW SCARCE 01 RESOURCES TO BE USED WHERE THEY ARE OF THE GREATEST VALUE TO THE NRC.

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QUESTION 31 (CONTINUED) (D)

OI'S STAFF REPRESENTS APPR0XIMATELY ONE AND A QUARTER PERCENT OF THE NRC STAFF (44 FTES OUT OF A TOTAL OF 3491).

DOES THE COMMISSION AND THE DIRECTOR OF OI BELIEVE THAT 01'S STAFFING IS REPRESENTATIVE OF THE IMPORTANCE OF ITS FUNCTIONS TO THE AGENCY?

ANSWER.

THE COMMISSION RECOGNIZES THE IMPORTANCE OF 01'S FUNCTIONS TO THE NRC.

WE WOULD NOT WISH TO IMPLY THAT OI'S CURRENT STAFFING LEVEL IS DIRECTLY INDICATIVE OF OR PROPORTIONAL TO THE COMMISSION'S APPRECIATION OF THESE FUNCTIONS.

IN AN IDEAL WORLD, BOTH THE DIRECTOR, 01 AND THE COMMISSION WOULD LIKE TO SEE 01 STAFFED TO A HIGHER LEVEL, AT LEAST IN THE SHORT TO MID TERM.

ON THE OTHER HAND, WE BELIEVE THAT SUCH A STAFFING INCREASE SHOULD NOT COME AT THE EXPENSE OF OTHER AGENCY PROGRAMS'THAT WE BELIEVE ARE ALSO IMPORTANT TO OUR ABILITY TO PROTECT THE PUBLIC HEALTH AND SAFETY.

THUS, 01 STAFFING LEVELS REPRESENT A REALISTIC BALANCING OF NRC INTERESTS AT A TIME WHEN THE AGENCY IS CONFRONTED WITH THE PROSPECT OF AN OVERALL REDUCTION OF STAFFING AND FUNDING.

COMMISSIONER ASSELSTINE ADDS:

I DO NOT BELIEVE THAT THE STAFFING OF 01 IS SUFFICIENT TO CARRY OUT THE IMPORTANT RESPONSIBILITIES OF THAT OFFICE.

DESPITE REPEATED REQUESTS FOR INCREASED PESOURCES FROM THE DIRECTOR OF 01, A MAJORITY OF THE COMMISSION HAS REFUSED TO PROVIDE i

ADDITIONAL RESOURCES.

FURTHER, THE COMMISSION'S ANSWER TO THIS

QUESTION 31 (CONTINUED) QUESTION LEAVES-ONE WITH THE IMPRESSION THAT THE REASON FOR THIS REFUSAL IS THAT THERE MUST BE A BALANCING OF COMPETING INTERESTS IN A SHRINKING AGENCY.

HOWEVER, SOME COMMISSIONERS HAVE ARGUED SIMPLY THAT 01 HAS ENOUGH RESOURCES TO DO ITS J0B.

I BELIEVE THAT IS INCORRECT.

THE RESULT OF THE COMMISSION'S FAILURE TO PROVIDE ADEOUATE RESOURCES IS A GROWING BACKLOG OF CASES INVOLVING ALLEGED l

WRONGDOING BY LICENSEES WHICH CANNOT BE INVESTIGATED.

IN FACT, GIVEN THE PROCEDURES FOR ADMINISTRATIVELY CLOSING CASES AFTER SIX MONTHS IF 01 CANNOT GET TO THEM, SOME CASES MAY NEVER BE INVESTIGATED.

(SEE ANSWER TO QUESTION 31C).

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QUESTION 31 (CONTINUED) (E)

LIST THE NUMBER OF OI CASES REFERRED TO THE DEFARTMENT OF JUSTICES FOR EACH YEAR SINCE 1982.

ANSWER.

THE NUMBER OF CASES REFERRED TO THE DEPARTMENT OF JUSTICE FOR EACH YEAR SINCE 1982 IS AS FOLLOWS:

1986:

2 1985:

15 1984:

14 1983:

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QUESTION 33.

WHAT IS THAT STATUS OF PROPOSALS TO MERGE THE OFFICE OF INVESTIGATIONS AND OFFICE OF INSPECTOR AND AUDITOR?

ANSWER.

THE COMMISSION HAS BEFORE IT NO PROPOSAL TO MERGE THE OFFICE OF INVESTIGATIONS (OI) AND THE OFFICE OF INSPECTOR AND AUDITOR (0IA).

WE ASSUME THAT THE PROPOSALS REFERRED T0, MAY BE RELATED TO THE QUESTION OF WHETHER THE AGENCY SHOULD HAVE AN INSPECTOR GENERAL.

OUR VIEWS ON THE INSPECTOR GENERAL QUESTION ARE GIVEN IN OUR RESPONSE TO QUESTION 38.

WE VIEW THE MISSIONS OF THE TWO 0FFICES AS MARKEDLY DIFFERENT.

DIA CONDUCTS INTERNAL INVESTIGATIONS INVOLVING WRONGDOING BY COMMISSION EMPLOYEES AND CONTRACTORS AND PRINCIPALLY CONCERNED WITH FRAUD, WASTE AND ABUSE OCCURRING IN THE EXPENDITURE OF THE AGENCY'S RESOURCES.

FURTHER, 0IA PERFORMS REVIEWS OF MANAGEMENT PROCESSES AND PROCEDURES WITHIN THE AGENCY AND MAKES RECOMMENDATIONS TO THE COMMISSION AS TO HOW THESE MAY BE IMPROVED TO GAIN GREATER EFFECTIVENESS AND EFFICIENCY IN CARRYING OUT THE AGENCY'S MISSION.

3I PERFORMS EXTERNAL INVESTIGATIONS OF THE AGdNCY'S LICENSEES AND THE LICENSEES' CONTRACTORS.

SPECIFICALLY, THEY EXAMINE CASES OF POTENTIAL WRONGDOING BY THE LICENSEES AND THEIR AGENTv RELATIVE TO THE COMMISSION'S SAFETY REGULATIONS.

QUESTION 33 (CONTINUED) GIVEN THE DISPARITY IN MISSION BETWEEN THE TWO 0FFICES, WE SEE LITTLE GAIN IN PROGRAMMATIC EFFICIENCY IN COMBINING THEM.

ON THE OTHER HAND, WE SEE SIGNIFICANT DRAWBACKS IN SUCH A COMBINATION.

THE PRIORITIES OF 01 ARE SET LARGELY BY THE COMMISSION'S AND STAFF'S PERCEPTION OF THE RISKS TO PUBLIC HEALTH AND SAFETY OCCASIONED BY THE VIOLATIONS 01 INVESTIGATES.

THE PRIORITIES OF OIA ARE SET BY THE RELATIVE IMPACTS ON THE AGENCY'S EFFICIENCY, EFFECTIVENESS AND INTEGRITY OF THE MATTERS OIA INVESTIGATES.

COMBINING THE TWO OFFICES COULD OCCASION TROUBLESOME CONFLICT BETWEEN THESE PRIORITIES AND WE SEE LITTLE OFFSETTING BENEFIT.

COMMISSIONER ASSELSTINE ADDS:

I BELIEVE THAT, ON BALANCE, IT IS PREFERABLE TO RETAIN OI AND OIA AS SEPARATE OFFICES.

HOWEVER, I BELIEVE THAT THERE ARE SOME ARGUMENTS IN FAVOR OF CONSOLIDATION NOT REFLECTED IN THE COMMISSION'S RESPONSE.

FOR EXAMPLE, BOTH OFFICES CARRY OUT SIMILAR INVESTIGATIVE FUNCTIONS AND THERE MAY BE SOME ADVANTAGE TO ESTABLISHING A CONSOLIDATED, CORE GROUP OF INVESTIGATORS.

THE DIFFICULTIES OF CONSOLIDATION DESCRIBED IN THE COMMISSION'S RESPONSE COULD BE OVERCOME BY CAREFUL MANAGEMENT OF THE OFFICE.

QUESTION 32.

THE HEARING RECORD FROM THE SUBCOMMITTEE'S BUDGET AUTHORIZATION HEARING LAST YEAR INDICATES THAT THE SUBCOMMITTEE CHAIRMAN, THE FULL-COMMITTEE CHAIRMAN, THE CHAIRMAN OF THE INTERIOR COMMITTEE AND THE DEPARTMENT OF JUSTICE EACH OPPOSED A PROPOSAL TO PLACE THE OFFICE OF INVESTIGATION UNDER THE OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS.

THE OFFICE OF.

INVESTIGATIONS WAS CREATED AS A COMMISSION-LEVEL OFFICE.

WHAT IS THE STATUS OF THIS PROPOSAL AND HOW HAS THE COMMISSION TAKEN THE VIEWS CITED ABOVE INTO CONSIDERATION?

ANSWER, AS THE SUBCOMMITTEE IS AWARE, THE COMMISSION HAS RECEIVED CONFLICTING ADVICE FROM A NUMBER OF CONGRESSMEN AND CONGRESSIONAL COMMITTEES AS TO THE RELATIVE MERITS OF THE OFFICE OF INVESTIGATIONS REPORTING TO THE COMMISSION ITSELF OR TO THE EXECUTIVE DIRECTOR FOR OPERATIONS, REASONABLE CASES WERE MADE ON BOTH SIDES OF THE ARGUMENT, AT PRESENT, THE COMMISSION HAS NO PLANS TO RELCCATE 01 AND DOES NOT HAVE THE ISSUE' UNDER ACTIVE CONSIDERATION, AT SOME FUTURE TIME, WITH FULL CONSIDERATION TO THE VIEWS OF OTHER GOVERNMENT ENTITIES, THE COMMISSION MAY RECONSIDER WHETHER OR NOT TO RELOCATE THE OFFICE OF INVESTIGATIONS,

QUESTION 34:

EXPLAIN THE RATIONALE FOR CHANGING THE PROCESS BY WHICH 01 CASES ARE REFERRED TO THE DEPARTMENT OF JUSTICE (DOJ),

PROVIDE A DETAILED DESCRIPTION OF THE PRESENT POLICY AND THE PREVIOUS POLICY, ADDITIONALLY, PLEASE INFORM THE SUBCOMMITTEE OF THE RESULT OF THE OFFICE OF GENERAL COUNSEL'S SURVEY OF PRACTICES OF OTHER FEDERAL AGENCIES IN HANDLING CRIMINAL REFERRALS.

SINCE THE NEW POLICY HAS BEEN IN EFFECT, HAVE THE OFFICE OF GENERAL COUNSEL AND 01 DIFFERED ON THEIR VIEWS ABOUT WHETHER ANY CASES SHOULD BE REFERRED TO D0J?

IF S0, PLEASE PROVIDE A DESCRIPTION CF THE DIFFERENCE IN VIEWS ON EACH SUCH CASE.

ANSWER:

UNDER PREVIOUS POLICY, 0I COULD MAKE CRIMINAL REFERRALS l

WITHOUT CONSULTING THE COMMISSION OR THE OFFICE OF THE GENERAL COUNSEL (0GC).

UNDER CURRENT POLICY, 01 WILL CONSULT WITH THE COMMISSION BEFORE MAKING A REFERRAL (1) IN AN EXCEPTIONAL CASE WHERE IN THE OPINION OF 01 A REFERRAL SHOULD BE MADE ONLY AFTER CONSULTATION WITH THE COMMISSION, (2)WHERE01BELIEVESANALLEGEDMATERIALFALSESTATEME$T

QUESTION 34 (CONTINUED) SHCULD BE REFERRED, AND (3) WHEN A COMMISSIONER REQUESTS REFERRAL OR CONSULTATION.

IF A COMMISSIONER HAS COMMENTS, THOSE COMMENTS WILL BE TRANSMITTED TO THE DEPARTMENT OF JUSTICE WITH THE REFERRAL.

OI UNDER CURRENT POLICY MUST ALSO CONSULT WITH OGC BEFORE MAKING A REFERRAL.

OGC IN ITS CONSULTATIVE ROLE HAS ON OCCASION RAISED QUESTIONS REGARDING THE APPROPRIATENESS OF A REFERRAL AND SUGGESTED THAT ADDITIONAL INFORMATION SHOULD BE PROVIDED TO SUPPORT THE REFERRAL; HOWEVER, 0I AND OGC HAVE NOT DIFFEPED REGARDING WHETHER A CASE SHOULD BE REFERRED SINCE THE NEW POLICY i

WENT INTO EFFECT.

THE AB0VE CHANGES WERE MADE BECAUSE THE AREA 0F l

INVESTIGATIONS AND CRIMINAL REFERRALS IS TOO IMPORTANT FOR THE COMMISSION TO PLAY A PASSIVE ROLE IN ALL CASES.

THE ADOPTED PROCEDURES REASONABLY PROVIDE FOR COMMISSION INVOLVEMENT IN THOSE CASES WHERE COMMISSION OVERSIGHT IS LIKELY TO BE NEEDED, I.E.,

IN SPECIFIC CASES WHERE 01 OR A COMMISSIcNER BELIEVES THE COMMISSION SHOULD BE INVOLVED, AND IN CASES INVOLVING POSSIBLE MATERIAL FALSE STATEMENTS, IN THE AREA 0F MATERIAL FALSE STATEMENTS, THE NRC STAFF MUST CONSULT WITH THE COMMISSION BEFORE TAKING CIVIL ENFORCEMENT ACTION ON THE BASIS OF A POSSIBLE MATERIAL FALSE STATEMENT.

TO ENSURE CONSISTENCY IN THE NRC'S POSITION REGARDING MATERIAL FALSE STATEMENTS, OI WILL NOW ALSO CONSULT WITH THE i

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QUESTION 34 (CONTINUED).

COMMISSION BEFORE REFERRING SUCH CASES TO D0J.

WITH REGARD TO OGC CONSULTATION, SUCH CONSULTATION WILL ENSUPE THAT THERE IS AN ADEQUATE LEGAL BASIS FOR EACH REFERRAL.

THE OFFICE OF GENERAL COUNSEL (OGC) IN DECEMBEP 1985 TELEPHONICALLY CONTACTED SEVERAL AGENCIES TO DETERMINE WHERE THEY PLACE RESPONSIBILITY FOR MAKING CRIMINAL REFERRALS.

OF THOSE CONTACTED, ONLY THE FEDERAL COMMUNICATIONS COMMISSION NORMALLY HAS THE OFFICE OF GENERAL COUNSEL MAKE CRIMINAL REFERRALS.

THE AGENCIES ARE INCONSISTENT AS TO WHETHER THE OFFICE OF GENERAL COUNSEL IS ADVISED WHEN A CRIMINAL REFERRAL IS MADE.

HOWEVER, NO AGENCY INDICATED THAT NOTIFICATION OF THE GENERAL COUNSEL WAS REQUIRED, A

SUMMARY

OF OGC'S CONTACTS IS ATTACHED.

FINALLY, THE OFFICE OF INSPECTOR AND AUDITOR (0IA) CONDUCTED A SURVEY OF PRACTICES OF OTHER FEDERAL AGENCIES IN HANDLING CRIMINAL REFERRALS.

A J

COPY OF THAT SURVEY IS ATTACHED.

Attachment - Q34

1. 1

SUMMARY

OF OGC CONTACTS REGARDING CRIMINAL REFERRALS THE DIRECTOR, 0FFICE OF-ENFORCEMENT AND COMPLIANCE, EPA, MAKES CRIMINAL REFERRALS, AND USUALLY NOTIFIES THE GENERAL COUNSEL'S OFFICE WHEN A REFERRAL IS MADE.

THu 0FFICE OF ENFORCEMENT, ICC, HAS BEEN DELEGATED THE AUTHORITY TO REFER MATTERS TO DOJ, AND ADVISES THE GENERAL COUNSEL OF REFERRALS ONLY IN UNUSUAL CIRCUMSTANCES.

l THE FTC HAS A SPECIAL LIAISON OFFICER IN ITS BUREAU OF COMPLIANCE WHO REFERS MATTERS TO D0J.

NORMALLY THE GENERAL COUNSEL IS ADVISED OF A REFERRAL.

THE OFFICE OF INSPECTOR GENERAL, DIVISION OF INVESTIGATIONS, 1

NASA, MAKES REFERRALS TO D0J THROUGH AN ATTORNEY ON THE INVESTIGATIONS' STAFF WHO ACTS AS A FORMAL LIAISON WITH D0J.

FINALLY, THE CRIMINAL DIVISION, D0J, ADVISED THAT THE MAJORITY OF AGENCY REFERRALS ARE BY THE AGENCIES' INVESTIGATIVE OFFICES, NOT BY GENERAL COUNSELS' 0FFICES, ALTHOUGH THERE ARE A FEW EXCEPTIONS.

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