ML20136F589
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4' DEC 5 1984 MEMORANDUM FOR: Addressees on Attached List ,
FROM: Guy H. Cunningham, III . .-
Executive Legal Director
SUBJECT:
NRC STATEMENT OF POLICY ON INVESTIGATIONS. INSPECTION AND ADJUDICATORY PROCEEDINGS - PROPOSED AMEhDMENTS TO-10 CFR PART 2 ESTABLISHING SPECIAL EX PARTE IN CAMERA PROCEDURES FOR RESOLVING CONFLICTS CUNCERNING7HE DISCLOSURE OR NONDISCLOSURE OF INFORMATION.
The attached revision of the subject Federal Register notice of proposed rulemaking to amend 10 CFR Part 2 reflects comments received from NRC staff offices in response to William Olmstead's memorandum of October 22, 1984. A draft Connission paper transmitting the Federal Register notice of proposed rulemaking to the Commission is also attached.
Since this rulemaking matter is on a very fast track, your final review and concurrence by c.o.b. December 12, 1984 would be greatly appreciated.
If you have specific questions or concerns, please do not hesitate to call William Olmstead (ext. 27203) or Jane R. Mapes (ext. 28695) of my staff.
Originalsigned by ,
Guy H. Cunningham,111 Guy H. Cunningham, III Executive Legal Director Attachments: As stated DISTRIBUTION:
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DATE :12/ - /84 :12/h/84 :12/ f /84 : : : :
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e ADDRESSEES TO MEMORANDUM DATED: . _
Harold R. Denton, Dir., NRR --- .-
John G. D&vfs, Dir., NMSS Robert B. Minogue, Dir., RES Richard C. DeYoung, Dir.. IE -
Kenneth E. Perkins, Jr. IE Ben B. Hayes, Dir., 01 Roger Fortuna, 01 William J. Ward, 01 Sharon Connelly, Dir., OIA Ronald M. Smith, OIA G. Wayne Kerr, Dir., SP Patricia G. Norry, Dir., Adm.
Joseph M. Felton, Dir., DRR John D. Phillips, Chief, RPB Joseph J. Fouchard, Dir., PA Alan S. Rosenthal, Chm., ASLAP Gary J. Edles, ASLAP B. Paul Cotter, Jr. , Chm. , ASLBP Robert M. Lazo, ASLBP David L. Prestemon, ASLBP Ivan J. Smith, ASLBP Herzel H.E. Plaine, GC Martin G. Malsch, GC James A. Fitzgerald, GC Richard P. Levi, GC .
7 Irwin B. Rothschild, III, GC Edward S. Christenbury, ELD Joseph Scinto, ELD Lawrence Chandler, ELD Stuart Treby, ELD Joseph Rutberg, ELD Edwin Reis. ELD Joseph Gray, ELD Hudson Ragan, ELD Edward Shomaker, ELD James Lieberman, ELD Thomas E. Murley, Rgn. I Jay Gutierrez, Rgn. I James P. O'Reilly, Rgn. II Bradley Jones, Rgn. II .
James G. Keppler, Rgn. III ,
Bruce Berson, Rgn. III Robert Martin, Rgn. IV William Brown, Rgn. IV John B. Martin, Rgn. V Lewis Shollenberger, Jr., Rgn. V
For: The Comissioners From: William J. Dircks Executive Director for Operations
Subject:
RELATIONSHIP BETWEEN INVESTIGATIONS / INSPECTIONS AND ADJUDICATIONS (SECY-84-276/276A) - PROPOSED AMENDMENTS TO 10 CFR PART 2 ESTABLISHING SPECIAL EX PARTE IN CAMERA PROCEDURES FOR RESOLVING CONFLICTS EUNEEERTNTTHE DISCL iSURE OR NONDISCLOSURE OF INFORMATION.
Purpose:
On September 12, 1984 1/, the Comission directed the Executive Director for Uperations to prepare a proposed rule which would implement those provisions of the Comission's Statement of Policy on Investigations, Inspections, and Adjudicatory Proceedings which call for the establishment of special procedures for resolving conflicts respecting the obligation of the NRC staff to disclose information deemed relevant and material to a pending adjudication and the need of the NRC staff to withhold that information from disclosure because it relates to an NRC investigation or inspection or was provided by a confidential source. This proposed rule (Enclosure 1) was drafted in response to that direction.
In addition to providing procedures which an NRC office may use to request a presiding officer, by motion, to withhold information from disclosure, the proposed rule aisc provides procedures, not currently included in the Comission's Rules of Practice, which an NRC office may use to request the presiding officer to impose conditions on the manner in which information may be disclosed.
The proposed rule tracks the provisions of the Policy Statement as closely as possible. The obligation to disclose information is paramount and can only be limited if the criteria specified in 6 2.795e of the proposed rule are satisfied. However, information which would reveal the identity of a confidential informant may-only be released by Comission order. Objections to the
-1/ Staff requirements memorandum for William J. Dircks, Executive Director -
for Operations from Samuel J. Chilk, Secretary, September 12, 1984, re SECY-84-276/276A.
Contact:
Jane R. Mapes, OELD 28695
disclosure of infonnation advanced by NRC offices and disallowed by the presiding officer are also subject to - -
Comission review. . . _ .
. s -
Under the special procedures, a motion for a protective order to impose conditions on or to withhold disclosure of information must be considered in cenera without other parties present and may include an ex parte in camera oral presentation. The rule also pr6vides t E t the ex parte in camera record on which a protective order is E sed shaTT be deemed sealed pending further order. Two conforming amendments have been to the Comission's regulations relating to the Conduct of Employees, 10 CFR Part 0, to make it unlawful for NRC employees and special Government employees to knowingly disclose information _
deemed sealed under this provision. Subject to the strictures imposed on the release of information that would reveal the identity of a confidential source and the assertion of any privileges that may validly be claimed under the Comission's regulations, the special procedures pen..it information subject to a protective order to be placed in the public record of the pending adjudication and disclosed to the parties when the NRC office which obtained tN protective ~ order notifies the presiding officer or :he Comission, as appropriate, that its object. ion to disclosure of the information is withdrawn or that the inspection or investigation to which all or any portion of the information subject to the order relates is completed. Information subject to a protective order to withhold disclosure may not be used in making any licensing or related regulatory decision unless and until disclosed, with or without conditions, to all parties to the pending adjudication.
Recommendation: That the Comission:
- 1. Approve the notice of proposed rulemaking (Enclosure
- 1) that would make conforming amendments to 10 CFR Part 0 and add special procedures to 10 CFR Part 2 for resolving conflicts concerning the disclosure or non-disclosure of information in accordance with the guidance contained in the Comission's Stateme.nt of Policy on Investigations, Inspections, and Adjudicatory Proceedings. '
- 2. Certify that the proposed rule will not have a significant economic impact on a substantial number of small entities, in order to satisfy requirements of the Regulatory Flexibility Act, 5 U.S.C. 605(b).
e e The proposed rule does not impose any obligations on ,
entities regulated by the NRC; the impact of the proposed rule is confined to the NRC. - ---
- 3. Note:
- a. The notice of proposed rulemaking would be published in Federal Register for a 60-day public comment period.
- b. The proposed amendments to 10 CFR Part 0 and Part 2 meet the eligibility criteria for categorical exclusion in 10 CFR 51.22(c)(1),
therefore pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental-assessment need be prepared in connection with the issuance of the proposed amendments.
- c. The proposed rule is not subject to the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 95 3501 et seq.) because it does not contain any information collection requirements within the meaning of 53502(4)of that Act.
- d. The appropriate Congressional Comittees with be informed. 4
- e. The Office of Public Affairs concurs that a public announcement is not needed.
- f. Copies of the Federal Register notice of proposed rulemaking will be distributed to all persons currently listed on NRC service lists for all pending licensing proceedings. The notice will be sent to other interested persons upon request.
Scheduling: If scheduled on the Commission agenda, recommend this paper be considered at an open meeting. No specific circumstance is known to staff which would require Commission action by any particular date in the near term. ,
William J. Dircks Executive Director for Operations
Enclosure:
- 1. Federal Register Notice of Proposed Rulemaking
d Enclosure 1.
Federal Register Notice of Proposed Rulemaking
- =
NUCLEAR REGULATORY COMMISSION ,
Adjudications - Special Procedures for Resolving Conflicts Concerning the Disclosure or Nondisclosure of Information AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
SUMMARY
- The Nuclear Regulatory Cor. mission is considering amending its rules of practice to provide special procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an NRC investiga-tion or inspection or provided by a confidential informant and deemed relevant and material to an adjudication. Prepared at the express direction of the Commission, the proposed amendments apply to all NRC offices that have information relevant and material to an adjudication. The proposed amend-ments provide for ex parte in camera presentations and implement the Commission's direction in its recent statement of policy on investigations, inspections and adjudicatory proceedings.
DATES: Coaments must be received on or before Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before th.is date.
- Insert date 60 days after date of publication in Federal Register.
mu ADDRESSES: Interested persons are invited to send written coments or .
suggestions to the Secretary of the Commission, U.S. Nuclear Regulatory _ . .._
Commission, Washington, D.C. 20555, Attention: Docketing and Service Branch. Coments may also be delivered to Room 1121, 1717 H Street, NW.,
Washington, D.C. between 8:15 a.m. and 5:00 p.m. Copies of aay comments received may be examined at the NRC Public Document Room, 1717 H Street, NW., Washington, D.C. 20555.
FOR FURTHER INFORMATION CONTACT: Jane R. Mapes, Senior Regulations Attorney, Regulations Division, Office of the Executive Legal Director, U.S.
Nuclear Regulatory Commission Washington, D.C. 20555; Telephone: (301) 492-8695.
SUPPLEMENTARY INFORMATION: On September 13, 1984, the Comission published ,-
a Statement of Policy on Investigations, Inspections and Adjudicatory Proceed-ings (49 FR 36032-36034, September 13,1984.) In that Statement of Policy, the Commission re-emphasized the importance and need for full disclosure of information in an adjudication so that all issues may be fully resolved and stated that
"[a]Il parties in NRC adjudicatory proceedings, including the NRC staff, have a duty to disclose to the boards and other parties all new information they acquire which is considered material and relevant to any issue in contro-(49 FR 36032, September 13, versy)intheproceeding."
1984.
At the same time, the Commission recognized the need in certain circumstances to protect information against public disclosure to avoid compromising an NRC
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inspection or investigation or to protect a confidential informant. In most instances, these conflicting concerns can be reconciled by placing restric __ .
tions on the manner in which the information is disclosed, such as, for example, rescheduling consideration of 'certain issues during the course of a hearing or specifying the manner, time, place, or persons to whom the information may be disclosed. There are, however, certain situations in which. ~
any disclosure of information, however restricted, would affect the conduct of an inspection or investigation. In its Statement of Policy, the Comission expressed the view that in these situations the NRC staff should be required to
" provide the board with an explanation of the basis of its concern about disclosure and present the information to in camera, without other parties present."
the board, (49 FR 3603 Tat 36034, September 13,1984.)
The Comission also noted that "because this procedure represents a departure from normal Comission procedure, it is the Comission's view that the decision should be implemented by rulemaking." (49 FR 36032 at 36033, September 13,1984.)
The proposed rule establishes procedures, not currently included in the Comission's Rules of Practice, which NRC offices may use to request the withholding of information from disclosure or the imposition of conditions under which information may be disclosed. These special procedures are applicable to and intended to be used by all NRC offices. The procedures are applicable in those limited circumstances in which an NRC office is under a duty to disclose relevant and material infonnation to a board and/or pa'rties in an ongoing adjudication, for example, under established board notification procedures, in response to a discovery request, or as otherwise directed by the presiding officer, and it is determined that disclosure of the information
without a. protective order would prejudice an inspection or investigation or reveal the identity or otherwise compromise a confidential informant. Once r - -
these findings have been made, the proposed special procedures may be used by the NRC office having the information to request the imposition of conditions on disclosure or to withhold disclosure of the information.
The criteria to be used to determine whether information is eligible for a protective order imposing conditions upon or withholding disclosure of the information are set out in 5 2.795e of the proposed rule and track the --
standards enunciated in the Statement of Policy. A protective order may either impose conditions on the manner in which the information may be disclosed or withhold disclosure of the information. In general, a protective order will be appropriate if it can be shown that the information relates to an inspection or investigation and that disclosure of the information without a protective order would be detrimental to the effective conduct of the ~
inspection or investigation, or if it can be shown that the information
-would reveal the identity or otherwise compromise a confidential informant.
The information need not relate solely to an ongoing inspection or investigation but may also include information on the basis of which the NRC may determine whether to initiate an inspection or investigation.
After the conflict between the obligation to disclose a particular item of information and the need to impose conditions upon or withhold disclosure of that information has become apparent, the NRC office having possession of.or access to the information may use the proposed special procedures to resolve the conflict.
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Under the special procedures, the appropriate NRC office may move the presiding ,
officer of the pending adjudication to grant relief from the _._
disclosure requirement either by ordering information disclosed subject to conditions or by ordering information withheld from disclosure. The motion, which may be made orally or in writing, must contain a brief description of the nature of the information subject to the request and explain the relevance of the information to the pending adjudication. The motion must also state why and to what extent disclosure of the information without a protective order will compromise or impede the conduct of an NRC investigation or inspection, or reveal the identity or otherwise compromise a confidential informant. At the time the motion is made, the NRC office must notify all parties to the pending adjudication that the imposition of conditions on or
- the withholding of disclosure of the information has been requested. However, the information subject to the motion shall not be revealed. The NRC office must also notify the Director, Division of Rules and Records, NRC Office of Administration, who is the agency official responsible for processing Freedom of Information Act (F0IA) requests.
Upon receipt of a motion from an NRC office to impose conditions upon or to withhold disclosure of information, the presiding officer, without other parties present, may either rule on the motion on the basis of the information provided or conduct an ex parte in camera oral presentation.
Under the proposed amendments, the presiding officer is also authorized' to conduct an ex parte in camera oral presentation at any time on his or her own initiative. The presiding officer must notify all parties to the pending adjudication whenever an ex parte in camera oral presentation is to
be held. The notice shall state the purpose, time, and place of the e_x_
parte inn camera oral presentation and the approximate date a ruling _
concerning the disclosure or nondisclosure of the information subject to the presentation may be expected. The substantive content of the information shall not be disclosed. To provide a record, a verbatim transcript will be made of each ex parte in camera oral presentation.
After consideration of a motion to impose conditions upon or to withhold disclosure of information, including any g parte h camera oral presentation, and after finding that the information subject to the motion is both relevant and material to the pending adjudication, the presiding officer will decide, in light of the Commission policy favoring full disclosure, whether disclosure of the information without a protective order could adversely affect the NRC's ability to conduct an investigation or inspection fully and adequately or to protect the identity or otherwise preserve the integrity of a confidential informant and whether and to' what extent all or part of the information should be withheld from disclosure or only disclosed subject to conditions.
If the presiding officer grants the motion, the presiding officer shall issue a protective order as requested. If the presiding officer determines that the motion should be denied in whole or in part, the presiding officer shall notify the NRC office submitting the request of the intent to order disclosure. The notice of intent to order disclosure shall specify the information to be disclosed, the terms and conditions of any proposed order and the basis for the conclusion that prompt disclosure is required. The notice of intent shall state a reasonable time by which the NRC office must
submit a statement of objection or concurrence. If the NRC office concurs - ;+: -
in the disclosure specified in the notice of intent and if the disclosure does not reveal the identity of a confidential informant, the presiding officer shall issue the order proposed. If the NRC office objects to the disclosure specified in the notice of intent and any such objection is disallowed, the presiding officer shall promptly certify the objection, the ruling disallowing the objection and the accompanying record to the Comission for ex parte in camera review. Every ruling requiring disclosure of the identify of a confidential informant must be certified to the Commission for review. Concurrence in such a ruling by an NRC office does not change this latter requirement.
The presiding officer shall promptly notify all parties to the pending adjudication and the Director, Division of Rules and Records, NRC Office of Administration whenever a ruling relating to the disclosure or nondisclosure of information has been issued or has been certified to the Commission for ex parte in camera review. A notice of certification shall state the reason for the certification, the certification date, and that, in accordance with 6 2.795f, the NRC office or any other party to the adjudication may file a timely brief with the Commission. The NRC office must notify all parties to the adjudication whenever an NRC brief is filed. However, the NRC brief need not be served on the parties. Within seven days after service of the NRC notice, any other party to the adjudication may file a brief with the .
Commission. The order of the presiding officer shall be stayed pending Commission review.
i
The Comission shall consider any matter certified to it for review .
under these_,
procedures h camera without other parties present. The record .
for Comission review shall consist of the information provided to the presiding officer ex_ parte and h camera, all documents filed with the presiding officer by the NRC office requesting a protective order, including any statements of concurrence or objection, the transcript of any ex parte h camera oral presentation, the presiding officer's notice of intent to require disclosure and the presiding officer's order. Upon its own initiative or upon request by the NRC office requesting the imposition of conditions upon the disclosure of information or the withholding of information from disclosure, the Comission may conduct an ex parte in camera oral presentation on any matter certified to it for review under 5 2.795e.
After completing its review, the Comission will decide whether to affirm, reverse, or amend the ruling.
Whenever the presiding officer or the Comission issues an order imposing conditions upon or withholding disclosure of information, the ex parte in camera record on which the order is based shall be deemed sealed pending further order.
The NRC office at whose request the presiding officer or the Comission has issued a protective order respecting the disclosure of information shall notify the presiding officer or the Comission, as appropriate, when its objection to disclosure to the parties to the pending adjudication of a'll or any portion of the information subject to the order is withdrawn or when the inspection or investigation to which all or any portion of the information subject to the order relates is completed. Unless the information relates
- ~
_g.
to the identity of a confidential informant or unless the Comission orders otherwise, kfonnation which an NRC office has consented to release may be disclosed to the parties and placed in the public record of the pending adjudication without further order. The identity of a confidential informant may only be released by order of the Commission.
Under the proposed procedures, after notice by the appropriate NRC office that an inspection or investigation has been completed or that objection to the disclosure of information has been withdrawn, whichever is earlier, and subject to certain specific limitations, the presiding officer or the Comission, as appropriate, is required to order the ex parte in camera record, including the verbatim transcript of any ex parte in camera oral presentation, included in the public record of the pending adjudication. This requirement is subject to the prohibition against inclusion in the public record of the adjudication of any part of the ex parte in camera record containing information pertaining to the identity of a confidential informant except pursuant to Comission order. This requirement is also subject to any privilege that may validly be claimed under the Commission's regulations, including any privilege that may be available under 10 CFR ll 2.790, 9.5, 9.61 or 9.95.
The proposed procedures prohibit using information which has been withheld from disclosure in making any licensing or related regulatory decision unless and until that information is disclosed, with or without -
conditions, to all parties to the pending adjudication.
The proposed rule would also make two conforming amendments to 10 CFR Part 0 of the Commission's regulations to make it unlawful for NRC employees
and special government employees to knowingly disclose information deemed ,
sealed as,ej parte in camera material under i 2.7951.
ENVIRONMENTAL IMPACT - CATEGORICAL EXCLUSION The proposed amendments would amend the Commission's rules relating to the Conduct of Employees codified in 10 CFR Part 0 and the Commission's Rules of Practice codified in 10 CFR Part 2 and therefore meet the eligibility criteria for the categorical exclusion set forth in 10 CFR 6 51.22(c)(1).
Accordingly, pursuant 10 CFR 9 51.22(b), no environmental impact statement or environmental assessment need be prepared in connection with the issuance of the proposed amendments.
PAPERWORK REDUCTION ACT STATEMENT The proposed rule is not subject to the provisions of the Paperwork Reduction Act of 1980(44U.S.C.il3501etseq.)becauseitdoesnot contain any information collection requirements within the meaning of 63502(4) of that Act.
REGULATORY FLEXIBILITY ACT CERTIFICATION As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this rule, if adopted, will not have a significant economic impact upon a substantial number of small entities and that there-fore a regulatory flexibility analysis need not be prepared. Procedural in
nature, the proposed amendments provide a mechanism for the orderly resolution of conflicts respecting the obligation of NRC offices to disclose information ,
deemed relevant and material to a pending adjudication and the need by those same offices to protect information relating to an NRC investigation or inspection or provided by a confidential informant. The proposed rule does not impose any obligations on entities regulated by the NRC, including any regulated entities that may fall within the definition of "small entities," as set forth in section 601(3) of the Regulatory Flexibility Act, or within the definition of "small business" as found in Section 3 of the Small Business Act, 15 U.S.C. 632, or within the Small Business Size Standards in regulations issued by the Small Business Administration and codified in 13 CFR Part 121.
Since the impact of the proposed rule is confined to the NRC, the proposed rule does not fall within the purview of the Regulatory Flexibility Act.
LIST OF SUBJECTS 10 CFR Part 0 Conflict of interest, Penalty.
10 CFR Part 2 Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors Penalty, Sex discrimination, Source material', .
Special nuclear material, Waste treatment and disposal.
For the reasons set out in the preamble and under the authority of the .
Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of - -
1974, as amended and 5 U.S.C. 553, the Nuclear Regulatory Commission is pro-posing to adopt the following amendments to 10 CFR Part 0 and 10 CFR Part 2.
PART 0 - CONDUCT OF EMPLOYEES
- 1. The authority citation for Part 0 continues to read as follows: -
Authority: The provisions of this Part 0 issued under E.O.11222, May 8, 1965, 3 CFR 1964-1965 Comp. at pp. 306-311; 5 CFR 735.104; Sec. 201(f), Pub.L.93-438,88 Stat.1243(42U.S.C.5841(f).Sec.0.735-26also issued under Title V of the Ethics in Government Act of 1978, as amended, secs. 501 and 502, Pub. L.95-521, 92 Stat. 1864-1867, as amended by secs. I and 2, Pub. L. 96-28, 93 Stat. 76-77 (18 U.S.C. 207).
- 2. In 6 0.735-41, the existing text, including the quotation, is designatedasparagraph(a)andanewparagraph(b)isaddedtoreadas follows:
9 0.735-41 Misuse of information.
(a)
(b) No NRC employee shall knowingly disclose information deemed sealed as ex parte in camera material under 9 2.7951 of this chapter.
F
- 3. In 5 0.735-51, a new paragraph (c) .is added to read as follows:
6 0.735-51 Use of inside information.
(c) No special Government employee shall knowingly disclose information deemed sealed as ex parte jn camera material under i 2.7951 of this chapter.
'~
PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS.
- 4. The authority citation for Part 2 is revised to read as follows:
Authority: Sections 161, 181, 68 Stat. 948, 953, asamended(42U.S.C.
2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.
2241);sec.201,88 Stat.1242,asamended(42U.S.C.5841);5U.S.C.552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, asamended(42U.S.C.2073, 2092,2093,2111,2133,2134,2135);sec.102, Pub.L.91-190,83 Stat.
653, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 936, 937, 938, 954, 955, asamended(42U.S.C.
2132,2133,2134,2135,2233,2239). Section 2.105 also issued under Pub. L.97-415,96 Stat.2073(42U.S.C.2239). Sections 2.200-2.206 also issued under secs. 186,234,68 Stat.955,83 Stat.444,asamended(42U.S.C.2236, 2282);sec.206,88 Stat.124C(42U.S.C.5846). Sections 2.300-2.309 also issued under Pub. L.97-415,96 Stat.2071(42U.S.C.2133). Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853 as amended (42U.S.C.4332). Sections 2.700a, 2.719, and 2.795j also issued under
5 U.S.C. 554. Sections 2.754, 2.760. 2.770 also issued under 5 U.S.C. 557. ,
Section2.79,0alsoissuedundersec.103,68 Stat.936,asamended(42U.S.C.
2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C.
553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29. Pub. L.85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Appendix A also issued undersec.6, Pub.L.91-580,84 Stat 1473(42U.S.C.2135).
- 5. In i 2.730, a new paragraph (1) is added to read as follows:
5 2.730 Motions.
(1) Theprovisionsof62.730(a)through(h)arenotapplicable to motions filed pursuant to il 2.795a through 2.795j.
- 6. In i 2.740, paragraph (b)(1) is revised to read as follows:
5 2.740 General provisions governing discovery.
(b) Scope of discovery. * * *
(1) In general. Parties may obtain discovery regarding any matter, not privileged or not withheld from disclosure or subject to conditions respecting disclosure under the special procedures in il 2.795a through 2.795j, which is relevant to the subject matter involved in the proceeding, whether it relates to the claim or def'ense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible
C i
things and the identity and location of persons having knowledge of any .
discovgrable matter. In a proceeding on an application for a -
construction permit or an operating license for a production or utilization facility, discovery shall begin only after the prehearing conference provided for in i 2.751a and shall relate only to those matters in controversy which have been identified by the Commission or the presiding officer in the prehearing order entered at the conclusion h of that prehearing conference. In such a proceeding, no discovery shall be had after the beginning of the prehearing conference held pursuant to i 2.752 except upon leave of the presiding officer upon good cause shown. It is not ground for objection that the infomation sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
- 7. In i 2.780, paragraph (a) is revised to read as follows:
9 2.780 Ex parte communications.
(a) Except as provided under the special procedures in il 2.795a through 2.795j or in paragraph (e) of this section, neither (1)
Commissioners, members of their immediate staffs, or other NRC officials and employees who advise the Commissioners 'in the exercise.of their quasi-judicial functions will request or entertain off the record except from each other, nor (2) any party to a proceeding for the issuance, denial, amendment, transfer, renewal, modification,
=.
W suspension, or revocation of a license or permit, or any officer, ,
employge, representative, or any other person directly or indirectly - - - -
acting in behalf thereof, shall submit off the record to Commissioners or such staff members, officials, and employees, any evidence, explanation, analysis, or advice, whether written or oral, regarding any substantive matter at issue in a proceeding on the record then pending before the NRC for the issuance, denial, amendment, transfer, renewal, modification, suspension, or revocation of a license or permit. For the purposes of this section, the term " proceeding on the record then pending before the NRC" shall include any application or matter which has been noticed for hearing or concerning which a hearing has been requested pursuant to this part.
- 8. In Subpart G, immediately following 5 2.790, a new center heading and new sections 2.795a through 2.795j are added to read as follows:
SPECIAL PROCEDURES FOR RESOLVING CONFLICTS CONCERNING THE DISCLOSURE OR NONDISCLOSURE OF INFORMATION RELATING TO AN NRC INVESTIGATION OR INSPECTION OR PROVIDED BY A CONFIDENTIAL INFORMANT AND DEEMED RELEVANT AND MATERIAL TO A PENDING ADJUDICATION i 2.795a Applicability of special procedures.
Sections 2.795a through 2.795j specify procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an L_______--_____________________._
- 17 investigation or inspection or provided by a confidential infonnant and deemed relevant an(material to a pending adjudication. These procedures apply to -
all NRC offices. The procedures are to be used whenever an NRC office may be reouired to produce information in a pending adjudication and the NRC office having the information believes that disclosure of the information without a protective order would prejudice an investigation or inspection or reveal the identity of a confidential informant.
5 2.795b Requirement to disclose relevant and material information.
Information relating to an investigation or inspection or provided by a confidential informant and deemed relevant and material to a pending adjudication shall be disclosed to the parties to the adjudication by the NRC office having the information unless that NRC office requests the presiding officer by motion to issue a protective order imposing conditions upon the manner in which the information is disclosed or withholding the information from disclosure because disclosure without a protective order would prejudice an inspection or investigation or reveal the identity of a confidential informant.
9 2.795c Motion for protective order; notice of motion.
(a) A motion for a protective order to impose conditions on or to withhold disclosure of information shall be addressed to the presiding officer by the NRC office having the information. At the time a motion is made and without revealing the substance of the information subject to the notion, the NRC office shall notify the parties to the adjudication and the Director Division of Rules and Records, Office of Administration, U.S.
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Nuclear Regulatory Commission, that a protective order to impose conditions .
on or to withhold disclosure of information has been requested. .:- -
(b) A motion for a protective order may be made orally or in writing, may include a request for an ex parte in camera oral presentation, and shall
! include the following information, as appropriate:
(1) A brief description of the nature of the information subject to the motion;
' (2) A brief explanation why the information is relevant and
! material to the pending adjudication; (3) A brief statement indicating how the information relates I
! to an inspection or investigation and the status of the inspection or l investigation, including the estimated time of completion; (4) A statement that the information was provided by a confidential informan't; (5) An explanation of the basis of the motion for a protective I order to impose conditions on or to withhold disclosure of the
! information, including a brief explanation why and to what extent I disclosure of the information without a protective order will 1
I compromise or impede the conduct of an investigation or inspection, or reveal the identity or otherwise compromise a confidential informant; (6) The proposed relief requested.
i 2.795d Consideration of motion by presiding officer; procedure. .
(a) A motion from an NRC office for a protective order to impose l conditions on or to withhold disclosure of information shall be considered by the presiding officer in, camera without other parties present.
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(b) .The presiding officer may require or permit the NRC office ,
making the agotion to make an ex parte in camera oral presentation. - -
Attendance at an ex parte in camera oral presentation shall be limited exclusively to the presiding officer and to appropriate NRC personnel. The presiding officer shall promptly notify all parties to a pending adjudication when any ex parte in camera oral presentation will be held.
The notice shall state the purpose, time, and place of the ex parte in camera oral presentation and the approximate date a ruling concerning the disclosure or nondisclosure of the information subject to the presentation may be expected. The substantive content of the information shall not be disclosed. If an ex parte in camera oral presentation is conducted, a verbatim transcript shall be made.
5 2.795e Determination to grant or deny motion for protective order; requirement for Commission review.
(a) After consideration of a motion from an NRC office for a protective order to impose conditions on cr to withhold disclosure of information, including any ex parte 3 camera oral presentation, and after finding that the information subject to the motion is both relevant and material to the pending adjudication, the presiding officer shall determine, in light of the Comission policy favoring full disclosure, whether disclosure of the information without a protective order could adversel'y ,
affect the ability of the NRC to conduct an investigation or inspection fully and adequately or to protect the identity of a confidential informant ,
, . and whether and to what extent all or part of the information should be ,
withheld frge disclosure or only disclosed subject to conditions. ---
(b) Every ruling requiring disclosure of the identity of a confidential informant shall be certified to the Comission for review.
Pending Comission review, the order of the presiding officer shall be stayed.
(c)(1) If the presiding officer grants the motion, the presiding officer shall order disclosure of the information withheld or conditioned as requested.
(2) If the presiding officer determines that the motion should be
' denied in whole or in part, the presiding officer shall nutify the NRC office submitting the motion of the intent to order disclosure. The notice of intent to order disclosure shall specify the information to be disclosed, the terms and conditions of any proposed order and the basis for the conclusion that prompt disclosure is required. The notice of intent shall state a reasonable time by which the NRC office f must submit a statement of objection or concurrence.
1 (3) If the NRC office concurs in the disclosure specified in the l notice of intent and if the disclosure does not reveal the identity of I a confidential informant, the presiding officer shall issue the order proposed.
r (4) If the NRC office objects to the disclosure specified in the notice of intent and any such objection is disallowed, the presiding officer shall promptly certify the objection, the ruling disallowing the objection and the accompanying record required by 6 2.795f to the l
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Comission for ex parte in camera review. The order of the presiding ,
officer,shall be stayed pending Comission review. -- .
(d) The presiding officer shall promptly notify all parties to the pending adjudication and the Director, Division of Rules and Records, Office of Administration, U.S. Nuclear Regulatory Comission that a ruling relating to the disclosure or nondisclosure of information has been issued or has been certified to the Comission for ex parte jncamerareview. A notice of certification shall state the reason for the certification, the certification date, and that, in accordance with 5 2.795f, any party to the adjudication may file a timely brief with the Comission.
9 2.795f Record for Comission review; briefs.
i (a) Every information disclosure ruling certified to the Comission for ex parte jn camera review pursuant to i 2.795e will be accompanied by a record which shall consist of the information provided to the presiding officer ex, parte jn camera, all documents filed with the presiding officer by the NRC office making the motion for a protective order, including
! any statements of concurrence or objection, the transcript of any e_xx parte jn, camera oral presentation, the presiding officer's notice of intent to require disclosure and the presiding officer's order.
l (b) Within ten days after the presiding officer issues an order ,
certifying an information disclosure ruling to the Comission for ex parte:
jn camera review, the NRC office may file a brief with the Comission in support of its objections to disclosure. The NRC office need not serve the
brief on the parties to the pending adjudication but shall notify all parties to the adjudication that an NRC brief has been filed. Within seven .. .
days after service of the NRC notice, any party to the pending adjudication may file a brief with the Comission.
6 2.795g Comission review.
(a) Every information disclosure ruling certified to the Comission for review under i 2.795e, together with the accompanying record and any _ . _ _ _
briefs, shall be considered by the Comission jn camera without other parties present. Upon its own initiative or upon request by the NRC office making the motion for a protective order, the Commission may conduct an ex parte in camera oral presentation on any matter certified to it for review under i 2.795e.
(b) After review of 'the certified information disclosure ruling, the accompanying record and any briefs, the Comission shall decide whether to affirm, reverse, or amend the ruling. The Comission order may include any terms or conditions deemed necessary or appropriate.
i 2.795h Consent to disclose information; notice.
(a) The NRC office upon whose motion the presiding officer or the Comission has issued a protective order imposing conditions on or withholding the disclosure of information shall notify the presiding officer or the Comission, as appropriate, when its objection to disclosure to the.
parties to the pending adjudication of all or any portion of the information subject to the order is withdrawn, or when the inspection or investigation
t to which all or any portion of the information subject to the order relates ,
is completed. .
(b) Information which an NRC office has consented to release may be disclosed to the parties and placed in the public record of the pending adjudication without further order unless the information relates to the identity of a confidential informant or unless the Commission has ordered otherwise. The identity of a confidential informant may only be released by order of the Commission.
1 6 2.7951 Ex_ parte in camera record deemed sealed pending further order.
(a) WhenevEr the presiding officer under i 2.795e, or the Commission under i 2.795g, issues a protective order to impose conditions on or to withhold disclosure of information, the ex parte in camera record on which the crder is based shall be deemed sealed pending further order.
(b) No part of any ex parte in camera record containing information pertaining to the identity of a confidential informant may be included in the public record of a pending adjudication or be made publicly available in any other way except pursuant to Commission order.
(c) After notice by the appropriate NRC office that an inspection or investigation has been completed or that objection to the disclosure of information has been withdrawn, whichever is earlier, and subject to the requirement in paragraph (b) and to any privilege that may validly be ,
claimed under the Commission's regulations, including any privilege that may be available under i 2.790 or il 9.5, 9.61 or 9.95 of this chapter, the presiding officer or the Commission, as appropriate, shall order the ex
parte h camera record included in the public record of the pending .
adjudication. . _ . .
I 2.795j Prohibition aoainst use of information subject to protective order.
Information subject to a protective order to withhold disclosure may not be used in making any licensing or related regulatory decision unless and until disclosed, with or without conditions, to all parties to the pending adjudication.
Dated at Washington, D.C., this day of 19 _ .
For the Nuclear Regulatory Commission.
Samuel J. Chilk Secretary of the Comission
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