ML20136F531
| ML20136F531 | |
| Person / Time | |
|---|---|
| Issue date: | 10/22/1984 |
| From: | Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Harold Denton, Deyoung R, Perkins K NRC OFFICE OF INSPECTION & ENFORCEMENT (IE), Office of Nuclear Reactor Regulation |
| Shared Package | |
| ML19310G510 | List:
|
| References | |
| FRN-48FR36358, RULE-PR-2 AB78-1-006, AB78-1-6, NUDOCS 8411270426 | |
| Download: ML20136F531 (25) | |
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NUCLEAR REGULATORY COMMISSION b
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= MEMORANDUM FOR: .-Addressees on Attached List .0Ci 2 21984
- FROM: , ; William J. Olmstead-
~ Director and Chief Counsel Regulations Division Office of. the Executive Legal Director
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SUBJECT:
NRC STATEMENT OF POLICY-ON INVESTIGATIONS, INSPECTIONS
- AND ADJUDICATORY PROCEEDINGS -. INITIATION OF RULEMAKING -
TO ESTABLISH SPECIAL PROCEDURES FOR RESOLVING-CONFLICTS
~CONCERNING.THE. DISCLOSURE OR NONDISCLOSURE OF'INFORMATION Attached for.your review and. comment'is a draft Federal Register notice of proposed rulemaking containing proposed amendments'to 10 CFR Part 2.-
' Prepared in response to'theLCommission's instructions in its recent
, Statement of Policy- on Investigations, Inspections and Adjudicatory Proceedings:(49lFR36032-36034, September.13, 1984,' copy attached) the
- proposed amendments would ' establish procedures for resolving conflicts
- concerning the' disclosure or..' nondisclosure' of information relating to an NRC.
investigation or. inspection or provided by a' confidential source. and deemed ,
relevant and. material to an adjudication. Since the Commission plans to '
' publish the proposed amendments for public comment by December. 15, 1984'at the latest, we-need to. receive any comments which you may have on or before
' November 9, 1984. ;
JIf-you have specific questions'or concerns, please do not hesitate to call.
me (ext. 27203) or' Jane R. Mapes-(ext. 28695) of my staff.
WilA L OL z u William J. Olm tead Director and Chief Counsel Regulations Division Offi_ce of.the Executive Legal Director iAttachments:
.As stated O
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MEMORANDUM FOR: Addressees on Attached List SCT .2 21984 FROM: William J. Olmstead Director and Chief Counsel Regulations Division Office of the Executive Legal Director 4
SUBJECT:
NRC STATEMENT OF POLICY ON INVESTIGATIONS, INSPECTIONS AND ADJUDICATORY PROCEEDINGS - INITIATION OF RULEMAKING TO ESTABLISH SPECIAL PROCEDURES FOR RESOLVING CONFLICTS CONCERNING THE DISCLOSURE OR NONDISCLOSURE OF INFORMATION Attached for your review and coment is a draft Federal Register notice of proposed rulemaking containing proposed amendments to 10 CFR Part 2.
Prepared in response to the Comission's instructions in its recent Statement of Policy on Investigations, Inspections and Adjudicatory Proceedings (49 FR 36032-36034, September 13, 1984, copy attached) the proposed amendments would establish procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an NRC investigation or inspection or provided by a confidential source and deemed relevant and material to an adjudication. Since the Comission plans to publish the proposed amendments for public coment by December 15,1984 at the latest, we need to receive any coments which you may have on or before November 9, 1984.
If you have specific questions or concerns, please do nat hesitate to call me (ext. 27203) or Jane R. Mapes (ext. 28695) of my staff.
William J. Olmstead Director and Chief Counsel Regulations Division Office of the Executive Legal Director Attachments:
As stated 0FC :0 ELD :0 ELD r
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NAME tJ apes /jh W -. _____:.__...__..__:.
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- 10ffY84 : : : :
DATE :10/3/84
ADDRESSEES TO MEMORANDUM DATED: JbCT 2 21984 Harold R. Denton, Dir., NRR
. John G. Davis, 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., 01A G. Wayne-Kerr, Dir., SP Patricia G. Norry, Dir., Adm.
Joseph M. Felton, Dir., DRR John D. Philips, 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 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. 11 James G. Keppler, Rgn. III Bruce Berson, Rgn. III Robert Martin, Rgn. IV William Brown, Rgn. IV John B. Martin, Rgn. V Lewis Sho11enberger, Jr., Rgn. V
m OCT 2 21984 NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 Adjudications - Special Procedures for Resolving Conflicts Concerning the Disclosure or Nondisclosure of Information
-AGENCY: - Nuclear Regulatory Comission.
ACTION: Proposed rule.
SUMMARY
- The Nuclear Regulatory Comission 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 source and deemed relevant and material to an adjudication. Prepared at the express direction of the
' Comission, the proposed amendments apply to all NRC offices that have
~information relevant and material to an adjudication. The proposed amend-ments require i_n n camera presentations and follow guidance contained in the Comission's recent statement of policy on investigations, inspections and adjudicatory proceedings.
DATES: Comments 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 coments received on or before this date.
- Insert date,60 days after date of publication in Federal Register.
ADDRESSES: Interested persons are invited to send written comments or suggestions to the Secretary of the Commission, U.S. Nuclear Regulatory .
Commission, Washington, D.C. 20555, Attention: Docketing and Service Branch. Comments may also be delivered to Room 1121, 1717 H Street, N.W.,
Washington, D.C. between 8:15 a.m. and 5:00 p.m. Copies of any comments received may be. examined at the NRC Public Document Room, 1717 H Street, N.W., Washington, D.C. 20555.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION: On September 13, 1984, the Commission 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]ll 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)in 1984. the proceeding."
At the same time, the Commission recognized the need in certain circumstances to protect information against public disclosure to avoid compromising an NRC inspection or investigation or to protect a confidential source. In most instances, these conflicting concerns can be reconciled by placing restric-tions, which may include suitable protective orders, upon the disclosure of
information. There are, however, certain situations in which any disclosure of information, however restricted, would defeat the purpose of nondisclosure.
In its Statement of Policy, the Commission 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 the board, in, camera, without other parties present."
(49 FR 36032 at 36034, September 13,1984.)
The Commission also noted that "because this procedure represents a departure from normal Commission procedure, it is the Commission's view that the decision should be implemented by rulemaking." (49 FR 36032 at 36033, September 13,1984.)
This rulemaking proceeding is initiated in response to that directive.
These special procedures are applicable to and intended to be used by all NRC offices. The procedures are applicable in those limited circum-stances in which an NRC office is under a duty to disclose information to a board and/or parties 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 under protective order or other appropriate restrictions would not achieve and might well defeat the objectives sought through nondisclosure. Once these findings have been made, the proposed special procedures may be used to determine the requisite degree of protection or disclosure that may be necessary.
The criteria to be used to determine whether a particular item of information is eligible for protection from disclosure are set out in 6 2.7959 of the proposed rule and track the standards enunciated in the
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- i In general, information will be eligible for protec-Statement of Policy.
tion from disclosure if it can be shown that the information relates to -
an inspection or investigation and that disclosure of the information even under restriction or protective order would be detrimental to the effective conduct of the inspection or investigation. The information need not relate solely to an ongoing inspection or investigation but may also include infor-mation on the basis of which the NRC may determine whether to initiate an inspection or investigation. Information will also be eligible for protec-tion from disclosure if it can be shown that the information would reveal the identity or otherwise compromise a confidential source. After the con-flict between the obligation to disclose and the need to protect a particular item of information has become apparent, the NRC office possessing the information may use the proposed special procedures to resolve the conflict.
Under the special procedures, the appropriate NRC office must submit a written request for relief from the disclosure requirement to the presiding officer of the pending adjudication. The request must transmit the informa-tion for which protection is sought, provide a brief summary of its nature and source, and explain the relevance of the information to the adjudication.
The request must also state why and to what extent disclosure.of the infor-mation even under restriction or protective order will compromise or impede the conduct of an investigation or inspection, or reveal the identity or otherwise compromise a confidential source.
Upon receipt of an NRC request for relief, the presiding officer shall schedule an in, camera presentation which shall have priority over other matters awaiting decision. Under the proposed amendments, the presiding
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officer is also authorized to hold an in camera presentation at any time on his or her own initiative.
Although' attendance at an 3 camera presentation is strictly limited to the presiding officer and to appropriate NRC personnel, all parties to the adjudication must be notified whenever an h camera presentation concerning the disclosure or nondisclosure of information is to be held. The substan-tive content of the information presented h camera may not be disclosed. A verbatin transcript will be made of each h camera presentation.
Upon the conclusion of an h camera presentation and after finding that the information for which protection is sought is both relevant and material to the pending adjudication, the presiding officer will decide, in the light of Commission policy favoring full disclosure, whether the information merits protection against disclosure to enable NRC to conduct an investigation or inspection fully and adequately or to protect the identity or otherwise preserve the integrity of a confidential source, or whether the information must be disclosed. The decision may include any terms and conditions con-sidered necessary and appropriate; a copy shall be served on the NRC office having the information to which the decision relates. Within ten days after service of the decision, the NRC office may file a written statement of concurrence or objection. The decision will become effective twelve days after the date of service unless the decision otherwise provides or is required to be certified to the Commission for review.
Every decision requiring disclosure of the identity or of information relating to the identity or that would otherwise compromise a confidential source and every decision involving an unresolved disagreement between the i
presiding officer and the NRC office having the information to which the decision relates must be certified to the Comission for review. Upon certification, the decision is automatically stayed until the Comission has completed its review and issued a decision. Pending review, the Comission will hold the decision and the accompanying record in camera.
The presiding officer must notify all parties to an adjudication whenever a decision relating to the disclosure or nondisclosure of information is certified to the Comission for review and inform the parties of their right to submit timely in camera briefs. After completing its review in accordance with the standards in 5 2.795g of the proposed rule, the Comission will decide whether to affirm, reverse or modify the decision.
Under the proposed procedures, information required to be protected shall be deemed sealed pending further order of the presiding officer or the Commission, as appropriate, and may not be disclosed in any adjudication or used in making any licensing or related regulatory decision unless and until publicly released.
Any NRC office which possesses protected information, including infor-mation protected from disclosure because it relates to an inspection or investigation, may consent to its release at any time by notifying the presiding officer or the Comission, as appropriate. The information may then be disclosed without further order, unless the information will reveal the ioentity or otherwise compromise a confidential source, in which case a Commission order is required. Upon order of the presiding officer or the Comission, as appropriate, information protected from disclosure because it relates to an investigation or inspection may be released when the
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investigation or inspection is completed. Upon release, the informe! on and the accompanying record, including the verbatim transcript of the in camera presentation, shall be included in the public record of the adjudication.
Environmental Impact - Categorical Exclusion.
The proposed amendments would amend 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 $ 51.22(c)(1). Accordingly, pursuant 10 CFR $ 51.22(b), no environmental impact statement or environ-mental assessment need be prepared in connection with the issuance of the proposed amendments.
Paperwork Reduction Act Statement.
Although the special procedures in the proposed rule would impose a new informatien collection requirement (see, 9 2.795c, Application requesting in camera presentation and relief from requirement to disclose relevant and material information) these procedures are only applicable to adjudications.
In addition, the new information collection requirement is only applicable to NRC, specifically those NRC offices which have information deemed relevant and material to a pending adjudication but also eligible for protection
-against disclosure. Based on the exemption in 6 3518(c)(1)(B)(ii) of the Paperwork Reduction Act of 1980 (44 U.S.C. El 3501 et seq.) and the fact that the information collection requirement contained into the proposed rule would t
affect fewer than ten respondents, the NRC has determined that Office of Management and Budget clearance is not required pursuant to the Paperwork -
Reduction Act of 1980.
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. The primary impact of the proposed rule is on the hRC, not on entities subject to regu-lation by the NRC. Procedural in nature, the proposed amendments provide a nechanism for the orderly resolution of conflicts respecting the obligation to disclose information deemed relevant and material to a pending adjudica-tion and the need to protect information relating to an NRC investigation or inspection or provided by a confidential source. Adjudicatory hearings are not required and are seldom, if ever, conducted in connection with the issu-ance of licenses - for the most part materials licenses - to small entities.
Adjudicatory hearings do, however, constitute the principal regulatory vehicle used by NRC to authorize the construction and operation of nuclear power plants. The companies that own these plants do not 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 the Small Business Size Standards in regulations issued by the Small Business L___-_
Administration and codified in 13 CFR Part 121. For these reasons and because the primary impact of the proposed rule falls on NRC, not on entities regulated by NRC, the Commission has concluded that the proposed rule, if adopted, will not have a significant economic impact upon a substantial number of small entities and that a regulatory flexibility analysis need not be prepared.
List of Subjects in 10 CFR Part 2.
Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and reactors, Penalty, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
For the reasons set out in the preamble and under the authority of the Atomic-Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended and 5 U.S.C. 553, the Nuclear Regulatory Commission is proposing to adopt the following amendments to 10 CFR Part 2.
PAR 1 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS.
- 1. The authority citation for Part 2 continues to read as follows:
Authority: Sections 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C.
'2201, 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C.
2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073,
10 -
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.
l 97-415,'96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 186, 234, 68 Stat 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 85 Stat. 1246 (42 U.S.C. 5846). Sections 2.300-2.309 also issued under Pub. L.97-415, 96 Stat. 2071 (42 U.S.C. 2139). Sections I 2.200-2.206 also issued under secs. 186, 234, 68 Stat 955, 83 Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C.
5846). Sections 2.300-2.309 also issued under Pub. L.97-415, 96 Stat. 2071 (42 U.S.C. 2133). Sections 2.600-2.606 also issued under sec. 102, Pub. L.91-190, 83 Stat. 853 as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760. 2.770 also issued I under 5 U.S.C. 557. Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29. Pub. L.85-256, 71 Stat. 579, as as amended (42 U.S.C. 2039).
Appendix A also issued under sec. 6, Pub. L.91-580, 84 Stat 1473 (42 U.S.C.
2135).
- 2. In Subpart G, immediately following % 2.790, a new center heading and new sections 2.795a - 2.795o are added to read as follows:
\ . .
SPECIAL PROCEDURES FOR RESOLVING CONFLICTS CONCERNING THE DISCLOSURE OR N0NDISCLOSURE OF INFORMATION RELATING TO AN NRC-INVESTIGATION OR INSPECTION OR PROVIDED BY A CONFIDENTIAL SOURCE AND' DEEMED RELEVANT AND MATERIAL TO A PENDING ADJUDICATION 6 2.795a Purpose and Scope.
Sections 2.795a - 2.795o specify procedures for resolving conflicts concerning the disclosure or nondisclosure of information relating to an investigation or inspection or provided by a confidential source and deemed relevant and material to a pending adjudication. These procedures apply to all NRC offices. The procedures are to be used whenever an NRC office may be required to produce information in a pending adjudication and the NRC _
office having the information believes that disclosure of the information even under restriction or protective order would compromise or impede the conduct of an investigation or inspection or reveal the identity or otherwise compromise a confidential source.
5 2.795b Requirement to disclose relevant and material information; request for j_n n camera presentation and relief.
Information relating to an investigation or inspection or obtained from a confidential source and found to be relevant and material to a pending adjudication shall be disclosed by the NRC office having the information unless (1) the person responsible for releasing the information believes that disclosure of the information even under restriction or protective order would compromise or impede the conduct of an inspection or investigation or l l
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reveal the identity or otherwise compromise a confidential source and submits.a written request to the presiding officer for an M camera presen-tation and appropriate relief; or (2) the presiding officer upon his or her own initiative and in the absence of any written request directs that an jn, camera presentation be held in order to resolve a potential conflict between the requirement to disclose and the need to protect the information.
6 2.795c Application requesting in camera presentation and relief from requirement to disclose relevant and material information.
Each NRC application requesting an in camera presentation and relief from the requirement to disclose relevant and material information shall be submitted in writing by or on behalf of the NRC office having the informa-tion, shall be signed by or on behalf of the person responsible for releasing information from that NRC office, shall be marked "For jn, camera presentation only" and shall include the following information, as appropriate:
- 1. The information subject to the request, together with a brief sumary of its nature and source;
- 2. A brief explanation why the information is relevant and material to the pending adjudication;
- 3. A brief statement indicating how the information relates to an inspection or investigation and the status of the inspection or investigation, including the estimated time of completion;
- 4. The confidential nature of the source from which the information was obtained; a.
- 5. A brief explanation why and to what extent disclosure of the information even under restriction or protective order will comprotise
- or impede the conduct of an investigation or inspection, or reveal the identity or otherwise compromise a confidential source;
- 6. The proposed relief requested.
5 2.795d Request for relief; priority.
In any pending adjudication, an NRC request for relief from the requirement to disclose relevant and material information shall have priority over other matters to be decided by the presiding officer.
6 2.795e Notice of in, camera presentation.
The presiding officer shall promptly notify all parties to a pending adjudication that an M camera presentation will be held. A notice in response to an NRC application requesting h camera presentation and relief from the requirement to disclose relevant and material information shall be issued no later than five days after the request has been received. The notice shall state the purpose, time and place of the h camera presentation and the approximate date a decision concerning the disclosure or nondisclo-sure of the information subject to the presentation may be expected. The substantive content of the information shall not be disclosed. -
6 2.795f In camera presentation; procedure.
(a) An M camera presentation shall be held no later than five days after issuance of the notice required by 6 2.795e.
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_ 14 (b) Attendance at an jn camera presentation shall be limited exclu-sively to the presiding officer and to appropriate NRC personnel.
(c) A verbatim transcript will be made of each jn camera presentation.
6 2.795g Decision to require full or partial disclosure or to protect information; service.
(a) After j_n, n camera presentation and review of an NRC request for relief from the disclosure requirement in 5 2.795b and upon finding that the information subject to the request and presented jn camera is both relevant and material to' the cending adjudication, the presiding officer shall decide, consistent with Comission policy favoring full disclosure, whether the information merits protection to enable NRC to conduct an investigation or inspection fully and adequately or to protect the identity or otherwise preserve the integrity of a confidential source or whether the information must be disclosed. The decision may include any terms or conditions or be accompanied by any protective orders deemed necessary or appropriate to protect the information, including but not limited to rescheduling or
. deferral of issues for hearing, specifying the manner, time, place or persons to whom the information may be disclosed, or prohibiting _ disclosure of all or part of the information. A decision to require disclosure shall specify the information to be provided, the conditions, if any, under which the information is to be disclosed, and the reasons why prompt disclosure is required.
(b) Every decision requiring disclosure of the identity of a confiden-tial source or disclosure of information which could reveal the identity
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or otherwise compromise a confidential source shall be certified to the Commission for review and shall state that the identity of a confidential source or information relating to the identity or that would otherwise compromise a confidential source may only be released by Commission order.
(c) The presiding officer shall serve a copy of the decision on the NRC office having the information to which the decision relates.
6 2.795h NRC statement of concurrence or objection; effective date of decision.
Within ten days after service of the decision, the NRC office may file a written statement of concurrence or objection to the decision. The decision shall become effective twelve days after the date of service, unless the decision discloses the identity or information relating to the identity or that would otherwise compromise a confidential source, has been certified to the Commission for review, or otherwise provides.
5 2.795i Requirement to certify decision to Comission for review; automatic stay; notice of certification.
(a) Every decision requiring disclosure of the identity or disclosure of information relating to the identity or that would otherwise compromise a confidential source shall be certified to the Comission for review. Every decision involving an unresolved disagreement between the presiding officer and the NRC office having the information to which the decision relates shall be certified to the Commission for review, b
k
(b) Every decision certified to the Comission for review is automatically stayed until the Comission has completed its review and issued a decision.
(c) The presiding officer shall promptly notify all parties to a pending adjudication that a decision relating to the disclosure or nondis-closure of information has been certified to the Comission for review. The notice shall state the reason for the certification, the certification date, and that, in accordance with 5 2.795k, any party to the pending adjudication may file a timely jn_ camera brief with the Comission.
6 2.795j Certification ree.ord.
(a) Every decision certified to the Comission for review will be accompanied by a record which shall include, as appropriate, the NRC applica-tion requesting relief from the disclosure requirement, including the information subject to the request, the verbatim transcript of the in, camera
. presentation, and any NRC statement of concurrence or objection. As provided in 9 2.795k, the record may be supplemented by jn_ camera briefs.
(b) Pending review, the Comission will keep the decision certified for review and the record relating thereto in camera.
$ 2.795k In_ camera briefs.
(a) Within ten days after the certification date, the NRC office having the infonnation to which the certified decision relates may file an jn camera brief with the Comission. At the time the in camera brief is
n-filed, the NRC office shall notify the other parties to the pending adjudi-cation that an in camera brief has been submitted.
(b) Within seven days after the filing date of the NRC jn camera brief, any party to the pending adjudication may file an in, camera reply brief with the Comission.
6 2.7951 Commission review of certified decision.
(a) Upon its own initiative or upon request by or on behalf of the NRC office having the information, the Comission may conduct an jn camera presentation on any matter certified to it for review under 6 2.7951.
(b) After review of the certified decision, the accompanying record and any jn camera briefs, the Comission shall decide, in accordance with the standards in % 2.795g, whether to affirm, reverse or amend the decision.
As provided in % 2.795g, the decision may include any terms or conditions or be accompanied by any protective orders deemed necessary or appropriate to protect the information.
9 2.795m Protected information and related records sealed.
Unless and until publicly released, information protected from disclosure by a decision issued under 55 2.795g or 2.7951, together with the record of the jn camera presentation relating thereto, shall be deemed sealed pt.nding further order by the presiding officer or the Comission, as appropriate.
6 2.795n Release of protected information with NRC office consent or upon completion of investigation or inspection.
(a) Any NRC office having protected information may withdraw its objection and consent to the release of the protected information at any time by notifying the presiding officer or the Commission, as appropriate.
Upon notification of NRC office consent and except to the extent that disclosure may be prohibited by paragraph (b) of this section, the informa-tion may be released and included in the public record of the pending adjudication without further order.
(b) Information protected from disclosure because it relates to an investigation or inspection, together with the record of the in, camera presentation relating thereto, shall, upon order of the presiding officer or the Commission, as appropriate, or without order as provided in paragraph (a) of this section, be released and included in the public record of the pending adjudication upon completion of the investigation or inspection or at the time the NRC office having the information consents to its release, whichever is earlier, unless (1) the decision authorizing protection of the informationotherwiseprovides;(2)disclosureoftheinformationwill reveal the identity or otherwise compromise a confidential source; or (3) the information is exempt from public disclosure under 5 2.790 or 10 C.F.R.
ll 9.5, 9.61, or 9.95.
5 2.7950 Prohibition against disclosure and use of protected information.
Unless and until publicly released, information considered during (1) review of an NRC request for relief from the disclosure requirement in
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6 2.795b, (2) Comission review of a certified matter, or (3) any jn camera presentation relating thereto, may not be disclosed in any adjudication and may not be used in making any licensing or related regulatory decision.
Dated at Washington, D.C., this day of 19 _.
For the Nuclear Regulatory Commission.
Samuel J. Chilk Secretary of the Comission
e me o .
36032 reder:1 Regist:r / W1. 49, No.179 / Thursday, September 13, 1984 / Notices filed with the Department by the Trust. conflicts between the NRC's guidelines for disclosure ofinformation Such plan is not required to include in responsibility to disclose information to '
concerning investigations and the annual report any information adjudicatory boards and parties, and the inspections should apply to all NRC concerning individual transactions of NRC's need to protect insestigative offices. Those recommendations have I the Trust. material from premature public ! een incorporated in this Statement.
(c) Reporting Information Relating to disclosure. " Statement of Policy- '
In addition, two comments were the Trust to be Filed with the I Investigations and Adjudicatory submitted by members of the public.
Department ofLabor. The following Proceedings," 48 FR 36358 (August to, '
One commenter stated that the information regarding the Trust must be 1983). withholding of information from public reported for the fiscal year of the Trust Those interim procedures called for '
disclosure should be confined to the '
cnding with or within the plan year for the NRC staff or Office of Insestigations minimum essential to avoid which a Participating Plan's annual (OI), when it felt disclosure of compromising enforcement actions, and I
r port is made: information to an adjudicatory board '
that appropriate representatives of each (1) Name, address and employer was required but that unrestricted party should be allowed to participate Identification number (EIN) of the Trust; disclosure could compromise an under suitable protective orders in any I (2) A list of all Participating Plans inspection or investigation, to present '
in camera proceeding except in the most investirg in the Trust identified by plan the information and its concerns about '
exceptional cases.
nime, plan number, and name and EIN disclosure to the board in comera, '
The other commenter maintained that cf the plan sponsor as they appear on without disclosure of the substance of an in comera presentation to the board i th2 annual return / report. and each the information to the other parties. A '
with only one party present is plin's percentage interest in the Trust as board decision to disclose the '
undesirable and viol.tes the ex parte cf the beginning and ending of the fiscal inforroation to the parties was '
rule.That commenter suggested an y;arof the Trust; appealable to the Commission, and the alternative of having the attorneys or I (3) A statement of assets and board was not to order disclosure until '
li bilities of the Trust; the Commission addressed the matter, authorized representatives of parties I
who have signed a protective agreement (4) A statement ofincome and That Statement of Policy was to '
expenses of the Trust; present at any in camera presentation, remain in effect until the Commission '
(5) The assets held for investment received and took action on the with appropriate sanction,s for violating I (including the acquisitions and the pmtectin agrument.
recommendations of an internal NRC ,
dispositions during the fiscal year of the task force established to develop '
Trust), leases and obligations in default, guidelines for reconciling these conflicts these c mm ts and t e re ort of t e !
and compensation paid by the Trust for in individual cases. The Commission in
' " '* h ' dh it would be 3
services in the manner required by the that Statement also requested ubhc priate, in o to be instructions to the annual return / report comments on the propriety an the Commission's policy in this area, to '
desirability of exparte m camera provide the followin8' explanation of the Form 5500:
presentation ofinformation to a board, C (6) A report of an independent qualified pubhc accountant regarding and suggestions for any better in est at o ori pec lon nf at on the statements and schedules described alternatives. to the boards and Parties and the need in subparagraphs (2) through (5) above The Task Force submitted its report to 10 protect that information:
which meets the requirements of 29 CFR the Commission on December 30,1983. All parties in NRC adjudicatory 2520.103-1(b)(5). A copy of that report will be placed in Proceedings, including the NRC staff.
The Trust shall file the information the Commiss:on's Public Document have a duty to disclose to the boards described in this paragraph (c) with the Room.The Task Force approved the and other parties all new information Department by mailing it to: Office of principles discussed in the they acquire which is considered RIports and Disclosure, Office of Commission's earlier Statement of material and relevant to any issue in Pension and Welfare Denefit Programs, Policy, and made several controversy in the proceeding. Such U.S. Department of Labor,200 recommendations intended to define disclosure is required to allow full Constitution Avenue, NW, Wa shington, specifically the responsibilities of the resolution of allissues in the proceeding.
D C. 20210, Attention: Texas Commerce boards, the staff, and 01 in presenting The Commission expects all NRC offices Trust Co. Alternative hfethod of disclosure issues for resolution. to utilize procedures which will assure C:mpliance. The Task Force recommended that the prompt and appropriate action to fulfill final Policy Statement explain that full this responsibility, S gngd at Washington D C., this ath day of disclosure of materialinformation to flowever, the Commission recognizes adjudicatory boards and the part!es is that there may be conflicts between this
" ** the general rule, but that some conflicts responsibility to provide the boards and Administmtor. Office of/'ension ond it'e/fon between the duty to disclose and the parties with information and an
"' 8"#"
need to protect information will be investigating or inspecting office's need in Da u.24mo nint &ta-a4 s es **l inevitable.The Task Force further to avoid public disclosure for either or
'"8 C *' '* 3* "
recommended that issues regarding both of two reasons:(1)To avoid disclosure to the parties be initially determined by the adjudicatory boards 8 Both commen's sloo induded sussesHons NUCLEAR REGULATORY usadne matters beyor o the . cope or ihie policy COMMISSION with provision for expedited appellate
"' h '"'*
review, and that procedures for the N,'hEsa'r pe) "er o han$#ce"$te Statement of Policy;investiCations, resolution of such conflicts be between me duty to disti.iie informanon to ne inspections, and Adjud'estory established by rule. Finally, the Task boards and parties and the need ia proteci that Proceedin s Force sug;;ested that existing board infomauca Fo' ta*ac' *a' 'veshon *** **'
notification procedures should remain **""'P'""""8'"*"d*'d'"
On August 5,1983, the Commission set unaffected by the Policy Statement, and $rNo'nNo7[r"r'ec'2m",'j,$t
. ihYdc forth Interim procedures for handling that those procedures and Commission tmprese the go.his ofits m=estisai.ons-6 e )
i
-- g b.t d
3 Feder:l Regist;r / Vol. 49. N: 179 / Thursday. Septemb;r 13.19M / Notic:s 36033 Yj
~*
compromising an ongoing ins estigation of each individual case. Iloweser, the . These procedures are designed to allow 1
' t inspection; and [2] to protect Commission does note that as a general the boards to determine the relevance of J d
confidential sources. The importance of rule it favors full disclosure to the material to the adjudication, and protecting information for either of these boards and parties, that information re: sons can in appropriate should be protected only when whether that information must be disclosed to the parties, and, il pg circumstances be as great as the necessary, and that any limits on disclosure is required, to provide a 2-importance of disclosing the information disc!csure to the parties should be mechanism for case management both to th] boards and parties. limited in both scope and duration to the to protect investigations and inspections %,j minimum necessary to achieve the and to allow for .he time!y provision of With regard to the first reason,
~
material and relevant Information to the fd 4
cv:lding cornpromise of an imestigatien purposes of the non-disclosure policy.
or inspection. It is important to informed The purpose of this Policy Statement parties. As such these procedures are lic;nsing decisions that NRC inspections is to establish a procedure by which the analogous to the procedures for cnd investigations are conducted so that confhcts can be resolved. The Policy ill r: levant information is gathered for Statement takes over once a resching disputcs regarding discos ery.
see, eg.10 CFR 2.740(c), and do not
%s
.D appropriate evaluation. Release of determination has been made, under violate the prohibition in 10 CFR 2J00 a inv:stigative material to the subject of established board notification against ex parte discussion of G cn investigation before the completion procedures, that information should be substantise matters at issue. t cf th3 investigation could adsersely disclosed to the boards and publ:c. but in accord with the above discussion. 'l e ffect the NRC's abihty to complete that O! or staff believes that the information the Commission has decided that the L4 investigation fully and adequately.The should be protected. In those cases the procedures to be followed, where there )g subj:ct. upon discoving what esidence Commission has decided that the only is a conflict between the need for r
th] NRC had already acquired and the workable solution to protect both disclosure to the board and parties and direction being taken by the NRC interests is to piodde for anin camera the need to protect an insestigation or investigation. might attempt to alter or presentation to the board by the NRC inspection, willinclude in comero -
limit the direction or the nature or staff or 01, with no party present. Any presentations by the staff or 01. !
cuitability of further statements or other procedure could defeat the liowever, because this procedure evid:nce, and prevent NRC from purpose of non. disclosure and might represents a departure from normal 1:arning the facts.The failure to actually inhibit the acquisition of Commission procedure it is the "
c scertain all relevant facts could itself information critical to decisions. Commission's view that the decision result in the NRC making on un i nformed Allowing the other parties or their should be implemented by rulemaking.
licensing decision. Ilowever, the need to representatives to be present in all Accordingly, the Commission directs the protect information deseloped in cases. even under a protective order. NRC staff to commence a rulemaking on t mvestigations or inspections usually could breach promises of confidentiality the matter. l ends once the investigation or or allow the subject of an investigation Untd completion of the rulemaking.
insp:ction is completed and es atuated to prematurely acquire information the following will control the procedures for posable enforcement action. about the investigation. We note in this to be fo: lowed in resching conflicts The second reason for not disclosing regard the difficulties of attempting t between the duty to disclose to baards .
Investigative material-to protect prevent a party a representative from and the need to protect information confidential sources-has a different talking to his client about the reles ance developed in invest!gation or inspection: -
b: sis. Individuals sometimes present of the information and how to respond l to it, even under a protective order. 1. Established board notification safety concems to the NRC only after Procedures should be used by staff or O!
being assured that their Individual The Commission belieses that the etern ne he i go at n identity will be kept confidential. This boards, using the procedures established p , p ant I deslie for confidential! may arise for a in this Policy Statement, can resolve and material to a pending adjudicatory number of reasons. inc uding the most potential disclosure conflicts once proceeding 8 The general rule is that all possibility of harassment and they have been adsised of the nature of information warranting disclosure to the /
retaliation. Confidential sources are a the information insched, the status of boards and part:es, including >
s alu:ble asset to NRC inspections and the inspection or investigation, and the information that is the subject of int:stigations. Releasing names to the projected time for its completion. In ongoing inseitigations or inspections, p:rties in an adjudication after many of the cases when the procedures should be disclosed, except as prosided .
promising confidentially to sources in this Policy Statement are triggered by h'I'I"'
w:uld be detrimental to the NRC's a concern for premature public disclosure,it may be possible for boards 2. When staff ct O! belies es that it cv:rall inspection and investigation has a duty in a particular case to ,
c ctivities because other individuals may to provide for the timely consideration pr side an adjudicatory board with i b2 reluctant to bring information to the of relevant matters derived from infortnation concern,ng an inspection or .
NRC. Iloweser, the need to protect nections through c nfidential sources does not end when ins the estigations deferral or and resche insduling of issues for investigation, or when a board requests,.
such information, staff or 01 should ,
th2 investigation or inspection is hearing. In other Instances, the boards provide the information to the board and completed and evaluated for possible may be able to resolve the conflict by parttles unless it belies es that cnforcement action. placing limitations on the scope of unrestricted disclosure would prejudice fly this Policy Statement, the disclosure to the parties, or by using an ongoing inspution or inseitigation, ,
Comrnission is not attempting to resohe protective orders.
The Commission wishre to emphasize or reveal e nfidential sources. If staff or the cor.flict that may arise in each case 01 beheves unrestricted disclosure between the duty to disclose that these procedures do not abrogate ,
information to the boards and arties the well established principle of cnd the need to protect that in ormation administrative law that a board may not A aah ete de this si.wrent refers ont to e it ud 01 esmet rM Weeue 'a or its source.The resciution of actual use et porte information presented m ,q.,w ,un,ppi,m,ny e ,ntb., ore,
- comera in making licensing decisions. c=rm..ma wha m y h.i ire pmblem conflicts must be decided on the merits n
I e
M
7
- e **
36034 Feder;l Register / Vol. 49, NA 179 / Thursd:y. Septemb;r 13,19M / Notices
" would have these adverse results. it brief, shall be kept /n comem to the Pennsylvania. The license provides, should propose to the board and parties extent necessary to protect the purposes among other things, that it is subject to that the information be disclosed under of non. disclosure. all rules, regulations and Orders of the suitable protective orders and other The Commission recognizes that no restrictions, unless such restricted Nuclear Regulatory Commission (the other party may be in a position Commission) now and hereafter in disclosure would also defeat the effectively to respond to staff or Ol's purpose behind non. disclosure. lf staff effect.
brief because the proceedings have been orO!believe thatanydisclosure, conducted in comera. Ilowever, in those H however restricted, would defeat the cases where another party feels that it is On November 19,1980, the purpose behind non. disclosure,it shall in a position to file a brief it may do so CommisPn published a revised section provide the board with an explanation within seven days after staff or O! files of the basis ofits concern about 10 CFR 50.48 and a new Appendix R to disclosure and present the information its brief with the Commission. 10 CFR 50 regarding fire protection to the board. in comcm, without other 3. Staff or O! shall notify the board features of nuclear power plants (45 FR and, as appropriate , the Comm!ssion. If 76002).The revised section 50.48 and parties precent. A verbatim transcript of the objection to disclosure to the parties Appen % R became effective on the in comem proceeding will be made.' of previously withheld information, or All parties should be advised by the Februar, ;7,1981. Section 111 of any portion of it,is withdrawn. Unless Appendix R contains fifteen board of the conduct and purpose of the the Commission has directed otherwise, subsections. lettered A through 0, each
/n comem proceeding but should not be informed of the substance of the such information-with the exception of of which specifies requirements for a information presented. lf, after such In the identitles of confidential sources- particular aspect of the fire protection may then be disclosed without further features at a nuclear power plant. One comem presentation, a board finds that disclosure to other parties under Commission order. of those fifteen subsections,!!!.G,is the
- 4. When a board or the Commission subject of this exemption.
protectne order or otherwise is required determines that information concerning Subsection !!! G specifies detailed (e.g., withholding information may prejudice one or more parties or a pending investigation or inspection requirements for fire protection of the jeopardize timely completion of the should not be disclosed to the parties, equipment used for safe shutdown by proceedings, or the board disagrees that the record of any /n comem proceeding means of separation and barriers release will prejudice the ins estigation), conducted shall be deemed sealed (Ill.G.2).lf the requirements for it shall notify staff or O! of its intent to pending further order. That record will separation and barriers canr.ot be met in crder disclosure, specifying the be ordered included in the public record an area, a!!ernative safe shutdown information to be provided, the terms of of the adjudicatory proceeding upon capability, independent of that area and any protective order proposed, and the completion of the inspection or equipment in that area is required basis for its conclusion that prompt investigation, or upon public disclosure -
(III.G.3).
disclosure is required.ne staff or Of of the information involved, whichever In response to previous requests from shall provide the board within a is earlier, subject to any privileges that the licensee, the Commission granted an reasonable period of time, to be set by may validly be claimed under the esemption to requirements of subsection the board. a statement of objections or Commission's regulations, including 111 C and til L on hfarch 14.1983. Dy concurrence.If the board disagrees with protection of theidentify of a letter dated December 16,1983 and any objection and the disagreement confidential source. Only the supplemented by letter dated hiay 30, be d he b a a Commission can order release of the 1934. Du esne Light Comparty C',"yp 'd, p , , 9f identify of a confidential source. requestefadditional exernptions from comem proceeding to the Commission Dated at Washington. D C. this 7th day of the requirements of Subsection III.G of for resolution of the disclosure dispute, September, mi. Appendix R.
and so inform the other parties. Any Nudear Regulatory Commission.
licensing board decision to order III Samuell. Chilk' disclosure of theidentify of a Secretaryoftbe Commission. We have reviewed the licensee's confidential source shall be certified to exemption requests and evaluation of the Commission for review regardless of p %g u,m ... ,q g g g, ,,gg; g auma coes me et-se whether Of and staff concur in the
- 1. FixedSuppression andDetection disclosure.* %e board's decision shall Systems -
be sta> cd pending a Commission (Docket No.60-334)
Co Ion s al consist of hs Duquesne Ught Co., et al. (Beaver is requested from Section Ill.G.3 to the tr:nscript, the board's Notice of Intent to VaPey Power Station Unit No.1); extent it requires fised su pression and
' require disclosure and the objections of Eaemption detection to be rovided roughout a Staff or 01. Staff or O! may file a brief g b ana 6 a with the Commission within ten days of has been providedyhh M,m filing a statement of objections with the %e Duquesne I.lght Company. Ohio Primary Auxiliary Building (PA-1 A),
board. %e record before the Edison Company and Pennsylvania Elev,768 C:mmission, including staff or Ol's Power Company (the licensees), are the holder of Facility Operating IJcense No. Control Room ilVAC Equipment Room No es in this Sta ement prohibits staff on 01 N h '" " (CR-2). Elev. 713 D r alley P S( lo Un Emergency Switchgear Rooms (ES-1 &
- The commtselon hee decided to revtew an No.1 (the facility) at ateady stato power 2), Elev,713 lic:netes board decision orderms disclosure levelso[thenot in excess of 2032 megawatts Process Instrument Room (CR-4), Elev.
6denury of a conndentist some becovee of the
" thermal.The facility is a pressurized 713 6NeIs pr sf.7e r$e" sSe enu y of water reactor (pWR) located at the Communications Equipment & Relay eenr. dental sources. .
licensee's site in Denver County, Panel Room (CR-3), Elev. 713
._