ML20127L250
| ML20127L250 | |
| Person / Time | |
|---|---|
| Issue date: | 12/14/1992 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Rogers, Selin I, The Chairman NRC COMMISSION (OCM) |
| Shared Package | |
| ML19341G050 | List: |
| References | |
| FRN-57FR60975, FRN-57FR61780, REF-10CFR9.7, RULE-PR-19 AE11-2-017, AE11-2-17, AE42-2-003, AE42-2-3, NUDOCS 9301270061 | |
| Download: ML20127L250 (29) | |
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December 14, 1992 I_
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1 OFFICE OF THE SfCRETARY MEMORANDUM FOR:
The Chairman Commissioner Rogers Commissioner Curtiss Commissioner Remick Commissioner de Planque
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i' FROM:
Samuel J.
Chilk, Secretary
SUBJECT:
STAFF REQUIREMENTS MEMORANDU
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Attached is the staff requirements memorandum from the meeting held on Tuesday, December 8, 1992, on the subject of
" Affirmation / Discussion and Vote."
In accordance with the Commission's decision, the SRM will be released within three (3) working days which is Thursday, December 17, 1992, unless I hear otherwise.
Attachment:
As stated cc:
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UNITED STATES o
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E IN RESPONSE, PLEASE
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REFER TO:
M921208B OFFICE OF THE SECRETARY
\\Y 9205594 e
MEMORANDUM FOR:
William C.
Parler, General Counsel K
N FROM:
Samuel J.
Chilk, Secretary
SUBJECT:
STAFF REQUIREMENTS - AFFIRMATION /DISCUSSIO)I AND VOTE, 11:30 A.M.,
TUESDAY, DECEMBER Bf 1992, COMMISSIONERS' CONFERENCE ROOM, ONE WHITE FLINT NORTH, ROCKVlLLE, MARYLAND'(OPEN TO PUBLIC ATTENDANCE)
N I.
SECY-92-368 - Final Rule Amendina 10 CFR Part 52
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The Commission (with the Chairman and Commissioners Rogers, Remick, and de Planque* agreeing) approved amendments to 10 CFR Part 52 which conform the rule to the language of the recently enacted " Energy Policy Act of 1992".
Commissioner Curtiss approved in part and disapproved in part; he would seek public comment through a notice and comment rulemaking on whether and how to amend 10 CFR Part 52.97(b) to incorporate the so-called "Sholly authority" for changes to the combined construction and operating licenses.
Commissioner Curtiss' separate views on this matter are attached and will be included in the final rulemaking notice.
The additional views of Commissioners Rogers, Remick, and de Plangue are also included.
The Federal Register Notice should be revised as noted in, reviewed by the Regulatory Publications Branch, ADM, and returned for signature and publication.
(OGC)
(SECY Suspense:
12/31/92)
- Section 201 of the Energy Reorganization Act, 42 U.S.C.
- 55841, provides that action of the commission shall be determined by a
" majority vote of the members present."
Commissioner de Planque was not present when this item was affirmed.
Accordingly, the formal vote of the commission was 3-1 in favor of the decision.
Commissioner de Planque, however, had previously, indicated that she would approve this paper and had she been present should would have affirmed her prior vote.
QS
- 9205518*
II.
SECY-92-376 - Final Rule on Exclusion of Attorneys from Interviews Under Subpoena The Commission, by a 5-0* vote, approved amendments to its regulations to provide for the exclusion of counsel from a subpoenaed interview when that counsel represents multiple interests in the investigation and there is concrete evidence that the counsel's presence at the interview would obstruct and impeded the investigation.
The Federal Register Notice should be reviewed by the Regulatory Publications Branch, ADM, and returned for signature and publication.
(OGC)
(SECY Suspense:
12/31/92)
Attachment:
As stated cc:
The chairman Commissioner Rogers Commissioner Curtiss Commissioner Remick Commissioner de Planque EDO OIG Office Directors, Regions, ACRS, ACNW (via E-Mail)
OP, SDBU/CR, ASLBP (via FAX)
- Section 201 of the Energy Reorganization Act, 42 U.S.C.
- 55841, provides that action of the Commission shall be determined by a
" majority vote of the members present."
Commissioner de Planque s not present when this-item was affirmed.
Accordingly,-the
.armal vote of the Commission was 4-0 in favor of the decision.
Commissioner de Planque, howev r, had previously indicated that she would approve this paper and had she been present should would have affirmed her prior vote.
[7590-01)E NUCLEAR REGULATORY COMMISSION 10 CFR Part 52-RIN 3150-AE42-Combined Construction Permits and Operating Licenses; Conforming Amendments AGENCY:
Nuclear Regulatory Commission.
ACTION:
Final rule.
SUMMARY
The Nuclear Regulatory Commission ("NRC" or.
" Commission") is amending its regulations governing the issuance r
of combined construction permits and operating licenses for 4
nuclear power plants.
The final rule incorporates all the changes to these provisions that are necessary because ofLthe enactment of licensing reform legislation.. The amendments aHmm s E n c e.
n ::::::y to conform the regulations to the provisions of Title XXVIII of Public Law 102-486, the " Energy Policy Act of-1992,"
signed into law on October 24, 1992.
EFFECTIVE DATE: (30. days after publication-in the Federal Register.)
ADDRESSES:
Submit written comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington,.DC 20555, Attn: Docketing and Service Branch.
~
3and. deliver. comments to: 11555 Rockville' Pike, Rockville, Maryland 20852, between 7:45 am and.4:15 pm Federal workdays.
(Telephone 301-504-1966.)
Copies of comments received may be examined at the NRC Public Document Room at 2120 L Street NW,. Washington, DC 20555, in the lower. level of the Gelman Building.
FOR FURTHER INFORMATION CONTACT:
L. Michael Rafky, Officeuof the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555,-telephone: 301-504-1606.
SUPPLEMENTARY INFORMATION:
I.
Background.
II.
Section-by-Section Analysis.
III. Environmental Impact: Categorical Exclusion.
4 IV.
Paperwork Reduction Act Statement.
V.
Regulatory Analysis.
VI.
Backfit Analysis.
I.
Background
Title XXVIII of Public Law 102-486, the " Energy; policy Act of 1992," signed into law on October 24, 1992, amends the Atomic Energy Act to facilitate the standardization of nuclear power plants and to provide explicit authority for the issuance of 2
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combined construction permits and operating licenses.
The -
-legislation largely codifies the Commission's regulations in 10 CFR Part $2.
However, the-legislation also makes-several-changes to the licensing process set forth in those_ regulations.
The purpose of this rule is to make those changes necessary to conform the language of Part 52 to the provisions of the newly enacted Public Law.
Because these changes'are limited to incorporating the language of that statute into the regulations, the NRC finds, pursuant to 5 U.S.C.
553 (b) (B), that there is good cause not to seek public comment on this rule, as such comment is-unnecessary.
The rule will become effective 30 days after the date of publication in the Federal Register.
Nevertheless, any interested member of the public who believes that the Commission has not accurately conformed Part 52 to Title XXVIII of Public Law 102-486, the Energy Policy Act of 1992, is invited to submit comments on this-matter within 60 days of the date of publication-of this rule.
The final rule incorporates all necessary' changes resulting-from enactment of licensing reform legislation.
The significant changes --
(1) Provide that the Commission may authorize a plant to operate during the pendency of a post-construction hearing on a combined construction permit and operating license (combined license) if it makes certain specified safety findings.
3 4. _
Proviously, under Part 52, a post-construction hoaring hcd to b3 completed prior to operation; (2) Provide the Commission with the discretion to order use of either formal or informal procedures for a post-construction hearing on a combined license.
Previously, under Part 52, only formal procedures were permitted; (3) Provide the Commission with the discretion to permit post-construction license amendments to a combined license, notwithstanding the pendency of a hearing request, to become effective if the Commission makes a finding of "no significant hazards considerations."
Previously, Part 52 required that hearings be completed prior to commencement of operation; (4) Eliminate the requirement that there be a pre-operational antitrust review by the Department of Justice of a combined license if there have been significant developments from an antitrust perspective arising since the issuance of the combined license; and (5) Eliminate the requirement that a combined license include the earliest and latest construction completion dates.
The amendments to the rule incorporate these changes as well as other less significant changes to ensure that Part 52 conforms as closely as possible to the statutory language.
In addition, NRC regulation 10 CFR 52.8 is being amended to correct a typographical error and to make revisions of a minor administrative nature, i
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l II. - Section-by-Section Analysis The following analysis of-those sections thht are affected under this final rule provides additional explanatory information.
All references are to Title'10, Chapter I,
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U.S. Code of Federal Regulations.
Section 52.8 Information collection recuirements: OMB aceroval.
This section is revised to correct data provided in accordance with an office of Management and Budget (OMB) regulation regarding the information collection requirements contained in this part.
In paragraph (a),-a typographical error in the OMB approval number is corrected.
In paragraph (b), four sections are added to the list of sections containing approved information collection requirements.
These revisions are of a 4
minor administrative nature and are made to improve the accuracy of the information in this section and to comply with OMB-regulations.
Section 52.79 Contents of aDDlications; technical information.
The language of_this section.provides explicitly that the^-
inspections tests, analyses, and acceptance criteria must include those applicable to-emergency _ planning and that the 5
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d objective of the-inspections,: tests,-analyses, and acceptance criteria'is to_ provide: reasonable assurance that tho'facilityLwas constructed and will operate in conformity with.the combined?
license, the~ Atomic Energy Act, and the Commission's rules'and regulations.
Section 52.83 Aeolicability of Part 50 Drovisions.
This section has been revised to' remove the applicability of certain provisions of Part 50 which are no longer required under the legislation.
These include S 50.55 (a), _ (b) and (d), which had required a construction permit for a nuclear power reactor to-state the earliest and latest dates for the completion:of the facility's construction, and other. conditions thereof; and S 50.58, which had required applications for construction permits or operating licenses to be reviewed by the Advisory committee on.
Reactor Safeguards (ACRS).
A final change to S 52.83 is the substitution of-a reference to "S 52.99" for "5 52.103." This was done because the findings to which 5-52.83 refers.are now contained in 5 52.99.
Section 52.97 Issuance of combined licenses.
This section has been amended with regard to making amendments to a' combined license immediately effective under the 4
6
so-called "Sholly Amendment."
Under the Energy Policy Act, an amendment to a combined license can be made immediately effective if the Commiscion determines there are no significant hazards considerations.
This section of the rule has been revised to incorporate the statutory provisions and-previously issued commission regulations implementing the "Sholly" amendment.
The commission, however, stresses that it will not look with favor upon license amendments to a combined license filed shortly before planned operation that could have the effect of undermining standardization or changing the scope of imminent or pending hearings on conformance issues.
Section 52.99 Inspection durino construction.
Like the other amended sections of Part 52, this section has been changed to track the language of the Energy Policy Act.
In this case, the only change is to require explicitly that, prior to operation under a combined license, the Commission shall find that the prescribed acceptance criteria are met.
Section 52.101 Pre-ocerational antitrust review.
This section, which has been deleted as a result of the new legislation, had provided for a pre-operational antitrust review of a combined license by the Department of Justice if there had 7
boon cignificant antitruct-rolctcd dovolopaonto cricing aftor tha issuance of that license.
Section 52.103 operation under a combined license.
In an effort to adhere as closely as possible to the new statutory requirements of the Energy Policy Act, the NRC has replaced most of its old section S 52.103 with the text of section 2802 of that Act.
Under the revised language, any request for a post-construction hearing must show, prima facie, both that one or more of the acceptance criteria are not or will not be met, and those specific operational consequences of nonconformance that would be contrary to providing reasonable assurance that the public health and safety will be adequately protected.
The Commission may permit interim operation of a facility pending a hearing if it determines that this assurance exists.
The Commission has the discretion to decide if any post-construction hearing will use formal or informal hearing procedures, and it must state publicly the reasons for choosing either set of procedures.
The Commission must find, prior to operation of the facility, that the acceptance criteria have been met.
The procedures with regard to S 2.206 petitions remain the Additionally, there is now a new paragraph (g), which is a same.
modified version of old S 52.103(c).
The Commission has done nothing in this section other than to incorporate the language of the Energy Policy Act into its rule.
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Environmental Impact: Categorical Exclusion l
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% >,,o Q The NRC has determined that this final ruIe is the type of action described in categorical exclusion 10 CFR 51.22 (c) (2).
Therefore, neither an environmental assessment nor an environmental impact statement has been prepared for the final regulation.
IV.
Paperwork Reduction Act Statement This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.).
Existing requirements were approved by the office of Management and Budget, approval number 3150-0151.
V.
Regulatory Analysis The Nuclear Regulatory Cornission has made statutorily mandated changes in 10 CFR Part 52 in order to conform it to the language of the Energy Policy Act of 1992.
These changes reflect Congressionally mandated changes to the NRC's licensing process for power reactors.
Only future applicants for combined construction permits and operating licenses will be affected by the changes to the regulations.
9
COMMISSIONER,URTISS' SEPARATE VIEWS ON FINAL RULES AMENDING 10 CFR PART 52 TO INCORPORATE PROVISIONS OF THE ENERGY POLICY ACT:
With ona exception, I approve the above final rulemaking changes to incorporate the provisions of the energy policy act.
The one exception concerns the proposed amendment to 10 CFR 52.97(b) to incorporate the so-called "Sholly" authority.
For the reasons set forth below, I cannot agree with the recommendation to amend-10 CFR 52.97(b) for the purpose of extending the provisions of the "Sholly" ancndment contained in section 189a.(2) of-the Atomic Energy Act to amendments to combined licenses (COLs) prior to authorization to operate.
Indeed, I believe that the adoption of this provision will serve to detract from the overall objective that we have established in Part 52 to achieve and maintain a high degree of standardization.
When section 52.97(b) was originally enacted by the Commission, it was adopted for the sole purpose of ensuring that the level of standardization reflected in a COL, once issued, would not be diluted by subsequent changes that a COL holder might seek during construction.
Recognizing that such changes should not be foreclosed altogether, the approach taken by the ommission in section 52.97(b) was to establish a stringent pro;edural hurdle for the COL holder who wishes to seek a change in its COL, once issued rection 52.97(b) provides that any such changes would be treated as amendments to the COL (thereby requiring a hearing upon request), and that the hearing on any such amendments would have to be completed before operation of the facility.
This approach, the Commission reasoned at the time, would serve to provide yet another strong disincentive against a COL holder seeking changes to a COL, once issued.1 Indeed, it was exactly this point that the Commission emphasized-in its response to a question on this matter from one of our oversight Committees:-
The Commission did not extend Sholly ps a opliev choice because it wanted to discourage late changes to combined licenses or to the ITAAC therein.
Such changes could have-the effect of undermining standardization or changing the scope of imminent or pending hearings on conformance icsues.
Hearing Before the Subcommittee on Nuclear Regulation of the Committee on Environment and public Works, United States Senate, on the Nuclear Licensing Provision in-S.1220, the National Energy-Security Act-of 1991, January 23, 1992 (Committee. Print),
p.- 56 (emphasis added).
1 It should be noted that a COL holder is permitted to make certain changes in its COL, if those changes satisfy the criteria-offthe 50.59-type change procedure.
These 50.59-type changes are-not considered amendments, and hence would not be subject to the requirements of-52.97(b).
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This same point was set forth quite persuasively by ChairmanL i
Selin in that same hearings i
The commission specifically did not put (the "Sholly" provision) into part 52.
We are not interested in encouraging design changes, particularly in the standardization area.
We want to discourage changes -- random changes -- even if they don't, in themselves, have a health _and safety impact, because we believe the totality of the configuration has a health and safety impact.
- so we consciously did not put that in part 52.
Remarks of Chairman Selin, id, p. 22.
In my view, the fundamental policy of section 52.97(b) remains
)
equally sound today.
Hence, the only question that remains, in my judgment, is whether the recently-enacted Energy Policy Act of 1992 dictates a different result.
In this regard, I would note that the Act gives the commission the diagretion to decide whether to modify Part 52 in a manner that would permit' COL l
amendments to be made immediately effective where such amendments-involve no significant hazards considerations.
Of particular note, section 2803 of the Energy Policy Act provides that --
t The Nuclear Regulatory Commission shall' modify part 52~
of title 10, Code of Federal Regulations, to conform With sections 185b. and 189a.(1)(Bi~of the Atomic Eneray Act of 1954, as amended by sections 2801 and 2802 of this Act, not later than 1 year after-the-date of the enactment of this-Act (emphasis added).--
This provision, which enumerates those sections of the Act for which we Engt adopt conforming regulations, is limited by.its terms to sections 2801 and 2802 of the Act.- It does ant-L reference section 2804, the section of-the Act containing the "Sholly" provision.
As'a consequence, I read the Act as giving the commission the discretion to decide whether we wish to' extend the "Sholly" authority to COL amendments.
In light of the discretion thst we have, and based-upon the reasons set forth above, I would'not modify-section 52.97(b), as
- proposed by OGC.2 - In all other respects,-I-approve the-approach-2 In the alternative, ~1f it is the will of-the majority of the Commission-to modify section'52.97(b), I believe-this is n' matter that deserves -- and indeed requires -- public comment. - I say this not only because ofJthe significant poli'cy considerations involved here, but more importantly because, as.a legal ~ natter, if Congress has conferred upon the Commission the 4
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discretion to decide what approach to take in the regulations that we adopt to implement the statute,-the justification for publishino this change as a final rule (i.e. that we are simply adopting-the language of the newly-passed Act) no longer obtains.
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Additional V iews of Can issioners Roaers. Ron ick. and de Planoue:
If the commission were to leave 52.97(b) as it stood before
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enactment of the Energy Policy Act, requiring a prior hearing on every proposed postconstruction amendment to a combined license, our regulations would have been inconsistent with the Act.
This is the view of the Commission's General Counsel, and we adopt it as our own.
It is clear that Congress intended that the Sholly amendment be available for use with each combined license, because Congress did in fact amend Section 189a(2) of the Atomic 1
Energy Act to make the Sholly provisions available for use with each combined license.
Congress thereby gave us the discretion
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in each individual cane to decide, according to the Sholly provisions, whether to nake an amendment immediately effective, but congress did not give us the discretion to write rules which directly contradict the newly amended Sholly provisions.
i Standardization is afforded considerable protection by part'52.
We have no cause to try to protect it further by, in effect, trying to rewrite the newly amended Sho11y provisions.
We would emphasize that the statutory provisions merely give us the discretion to make an amendment to a combined license immediately effective if it satisfies the statutory criteria.
The commission would retain the discretion to require a prior hearing in a specific case.
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VI.
Backfit Analysis The !TRC has determined that the backfit rule, 10 CTR 50.109, does not apply to this final rule and that a backfit analysis is not required for this final rule.
The backfit analysis is not required because these amendmants are required by law and do not require the modification of or additions to systems, structures, components, or design of a facility or the design approval or manufacturing license for a facility or the procedures or organization required to design, construct or operate a facility.
List of subjects Part 52 - Administrative practice and procedure, Antitrust, Backfitting, Combined license, Early site permit, Emergency planning, Fees, Inspection, Limited work authorization, Nuclear power plants and reactors, Probabilistic risk assessment, Prototype, Reactor siting criteria, Redress of site, Reporting and recordkeeping requirements, Standard design, Standard design certification.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, and 5 U.S.C.
552 and 553, the NRC is adopting the following amendments to 10 CFR Part 52.
10
t i-r PART G2-EARLY SITE PERMITS; STANDARD DESIGN CERTIFICATIONS; i
AND COMBINED LICENSES FOR NUCLEAR POWER PLANTS
-i 1.
The authority citation for Part 52 continues to read as follows:
I AUTHORITY:
Secs. 103, 104, 161, 182, 183, 186, 189, 68 Stat. 936,-948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, as amended (42 U.S.C. 2133, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. 5841, 5842, 5846).
2.
Section 52.8 is revised to read as follows:
5 52.8 Information collection requirements: OMB approval.
(a) The Nuclear Regulatory Commission has submitted the information collection requirements-contained in-this part to the office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seg.).
OMB has approved the information collection requirements I
f contained in this part under control number 3150-0151.
(b) The approved information collection requirements contained in this part appear in $$ 52.15, 52.17, 52.29, 52.35, 52.45, 52.47, 52.57, 52.63, 52.75, 52.77, 52.79, 52.91 and 52.103.
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3.
In 5 52.79 paragraph (c) is revised to read as follows:
S 52.79 Contents of applications; technical information.
e (c) The application for a combined license must include the proposed inspections, tests and analyses, including those applicable to emergency planning, which the licensee shall perform and the acceptance criteria therefor which are necessary and sufficient to provide reasonable assurance that, if the inspections, tests and analyses are performed and the acceptance criteria met, the facility has been constructed and will operate in conformity with the combined license, the provisions of the Ato=ic Energy Act, and the NRC's regulations.
Where the application references a certified standard design, the inspections, tests, analyses and acceptance criteria contained in the certified design must apply to those portions of the facility design which are covered by the design certification.
4.
Section 52.83 is revised to read as follows:
5 52.83 Applicability of part 50 provisions.
Unless otherwise specifically provided for in this subpart, all provisions of 10 CFR Part 50 and its appendices applicable to holders of construction permits for nuclear power reactors also apply to holders of combined licenses issued under this subpart.
12
Similarly, all provisions of 10 CFR Part 50 and its appendices applicable to holders of operating licenses also apply to holders of combined licenses issued under this subpart, once the Commission has made the findings required under S 52.99, provided that, as applied to a combined license, 10 CTR 50.51 must require that the initial duration of the license may not exceed 40 years from the date on which the Commission makes the findings required under S 52.99.
However, any limitations contained in Part 50 regarding applicability of the provisions to certain classes of facilities continue to apply.
Provisions of 10 CFR Part 50 that do not apply to holders of combined licenses issued under this subpart include SS 50.55(a), (b) and (d), and 50.58, 5.
In 5 52.97 paragraph (b) is revised to read as follows:
5 52.97 Issuance of combined licenses.
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(b) (1) The Commission shall, identify within the combined construction and operating license the inspections, tests and analyses, including those applicable to emergency planning, that the licensee shall perform, and the acceptance criteria that, if met, are necessary and sufficient to provide reasonable assurance that the facility has been constructed and will be operated in conformity wi.th the license, the provisions of the Atomic Energy Act, and the Commission's rules and regulations.
(2) (i) Any modification to, addition to, or deletion from the terms of a combined construction and operating license, including any modification to, addition to, or deletion from the inspections, tests, analyses, or related inspection criteria contained in such license is a proposed amendment to such license.
There shall be an opportunity for a hearing on such amendments.
13 4
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k (ii) The Commission may issue and make immediately effective any amendment to a combined construction and operating license upon a determination.by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
Such amendment may be issued and made immediately effective in advance of the holding and completion of any required hearing.
Such amendment will be processed in accordance with the procedures specified in 10 CFR 50.91.
6.
Section 52.99 is revised to read as follows:
5 52.99 Inspection during construction.
After issuance of a combined license, the Commission shall ensure that the required inspections, tests, and analyses are performed and, prior to operation of the facility, shall find that the prescribed acceptance criteria are met.
Holders of combined licenses shall comply with the provisions of 10 CFR 50.70 and 50.71.
At appropriate intervals during construction, the NRC staff shall publish in the Federal Register notices of the successful completion of inspections, tests, and analyses.
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Section 52.101 10 rcuoved.
S 52.101 (F.emoved) 8.
Section 52.103 is revised to read as follows:
$ 52.103 operation under a combined license.
(a) Not less than one hundred and eighty days before the date scheduled for initial loading of fuel into a plant by a licensee that has been issued a combined construction permit and operating license under subpart C of this part, the Commission shall publish in the Federal Register notice of intended operation.
That notice shall provide that any person whose interest may be affected by operation of the plant, may within sixty days request the Commission to hold a hearing on whether the facility as constructed complies, or on completion will comply, with the acceptance criteria of the license.
(b) A request for hearing under paragraph (a) of this section shall show, prima facie, that --
(1) One or more of the acceptance criteria in the combined license have not been, or will not be met; and (2) The specific operational consequences of nonconformance that would be contrary to providing reasonable assurance of adequate protection of the public health and safety.
(c) After receiving a request for a hearing, the Commission expeditiously shall either deny or grant the request.
If the request is granted, the Commission shall determine, after considering petitioners' prima facie showing and any answers 15 l'
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thereto, whether during a period of interim operation, there will be reasonable assurance of adequate protection of the public health and safety.
If the commission determinas that there is such reasonable assurance, it shall allow operanion during an interin period under the combined license.
(d) The Commission, in its discretion, shall determine appropriate hearing procedures, whether informal or formal adjudicatory, for any hearing under paragraph (a) of this section, and shall state its reasons therefor.
(e) The Commission shall, to the maximum possible extent, render a decision on issues raised by the hearing request within one hundred and eighty days of the publication of the notice provided by paragraph (a) of this section or the anticipated date for initial loading of fuel into the reactor, whichever is later.
(f) A petition to modify the terms and conditions of the combined license will be processed as a request for action in accord with 10 CFR 2.206.
The petitioner shall file the petition with the Secretary of the Commission.
Before the licensed activity allegedly affected by the petition (fuel loading, low power testing, etc.) commences, the Commission shall determine whether any immediate action is required.
If the petition is granted, than an appropriate order will be issued.
Puel loading and operation under the combined license will not be affected by the granting of the petition unless the order is made immediately effective.
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1 (g) Prior to. operation of the facility,-the Commission shall find that the acceptance criteria in the combined license are r
met.
If the combined license is for a modular design, each reactor module may require a separate finding as construction proceeds.
Dated at Rockville, Maryland this day of 1992.
For the Nuclear Regulatory Commission, SAMUEL J. CHILK Secretary of the Commission.
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[7590-01 RC NUCLEAR REGULATORY COMMISSION
'grj gg 10 CFR Part 19 i:rt e 3 g RIN:
3150-AE11
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\\ G' Exclusion Of Attorneys From i
Interviews Under Subpoena AGENCY:
Nuclear-Regulatory-Commission.
ACTION:
Final rule.
SUMMARY
The Nuclear Regulatory Commission (NRC) is amending _ itsL regulations to provide for the exclusion of counsel from a-subpoenaed interview when that counsel represents multiple interests in the investigation and there is concrete evidence that the counsel's presence at the interview would obstruct and impede the investigation.
These amendments are designed to ensure the integrity and efficacy lof-the investigative-and inspection process.
These, amendments provide a standard and.
procedures for making and effectuating the decision to exclude
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EFFECTIVE DATE:
(Insert date 60 days after date of publication-in the-Federal Register)
FOR FURTHER INFORMATION CONTACT:
Roger K. Davis, Office of the-General Counsel, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, telephone:
(301) 492-1606.
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s SUPPLEMENTARY INFORMATION:
Contents I.
Background
1 II.
Response to Public Comments on the Proposed Rule I.
Background
On December 19, 1991 (56 FR 65949), the Nuclear Regulatory-Commission (NRC) published proposed amendments to its regulations found at 10 CFR Part 19.
The proposed amendments provided for the exclusion of counsel from subpoenaed interviews in connection with an NRC investigation-when that counsel represents multiple interests in the investigation and there is concrete evidence that such representation would obstruct and impede the investigation.
The proposed amendments also provided procedures to be followed by the NRC and individual witnesses in connection with the NRC's exercise of its authority to exclude counsel.-
The Commission had pu.olished a final rule on the same subject on January 4, 1990 (55 FR 243).
That rule provided, inter alia, for the exclusion of counsel for a subpoenaed witness when that counsel represented multiple interests-and there existed'a reasonable basis to believe that-such representation
-would prejudice, impede, or-impair the integrity of the inquiry.
Upon legal challenge, the United States court of Appeals for the District of Columbia Circuit. struck-down the portion of the final rule on attorney exclusion.
Professional Reactor Operator 2
f i
i Society v. Nuclear Reculatory Commission, 939 F.2d 1047,'1052 (D.C. Cir. 1991) (hereafter "EEQS").
Specifically, the Court of Appeals ruled that the NRC must apply the same standard for attorney exclusion that the Court had previously required of the' Securities & Exchange Commission by virtue of the Court's interpretation of the right-to-counsel guarantee of the Administrative Procedure Act-(APA), 5 U.S.C.
555(b).
The Court stated that to exclude counsel "the agency must come forward with ' concrete evidence' that the counsel's presence would impede its investigation."
PROS, 939 F.2d at 1049 (citina SEC v. Csaco, 533 F.2d 7,- 11 (D.C. Cir. 1976)).
- Thus, the Court vacated the attorney exclusion portion of the rule, since its " rational basis" standard was less rigorous than the
" concrete evidence" requirement.
On December 19, 1991 (56-FR 65948), the Commission responded to the appeals court decision by publishing notice in the Federal Register of the Commission's revocation of its rule on attorney exclusion, i e.,
the definition of " exclusion" appearing in 10 CFR 19.3 and the standard and procedures for attorney exclusion appearing in 10 CFR 19.18(b)-(e).
On December 19, 1991 (56 FR 65949), the Commission also published the proposed amendments in the Federal Register that would conform the NRC's attorney exclusion requirements to the Court's ruling.
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4 II.
Responses to Public Comments on the Proposed Rule The Commission received nine comments on the proposed December 19, 1991 rule.
The commenters included one individual, the Nuclear Utility Management and Resources Council (NUMARC),
three utilities endorsing NUMARC's comments, the Professional Reactor Operators Society (PROS), a law firm commenting on behalf of PROS as well as seven utilities and a major engineering firm, a law firm commenting on behalf of six utilities, and a law firm that represents utilities and individuals holding NRC licensees.
All commenters opposed adoption of the proposed rule.
The comments are available for inspection and copying in the agency's Public Document Room, 2120 L Street NW. (Lower Level),
Washington, DC.
The Commission has considered the comments received, but is not persuaded that the proposed amendments should be withdrawn or modified in substantial ways as some commenters requested.
However, the Commission has clarified its description of the standard for exclusion by stating the threshold requirement as
" concrete evidence that the presence of an attorney representing multiple interests would obstruct and impede the investigation or inspection...."
A similar change was made in the definition of
"[e]xclusion."
The commission-has deleted the phrase "directly.
or indirectly" from the standard for exclusion of counsel.
The Commission has also revised the rule to provide that the interview shall not be rescheduled to a date that precedes the 1
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expiration of the time-provided under 10 CFR 19.18(d) for appeal of exclusion of counsel, unless the witness consents to an i
earlier date.
In-addition, the final rule requires that the written notice of the grounds for counsel's exclusion also r
describe the right to appeal the exclusion to the Commission and thereby obtain an automatic stay of the effectiveness of-the subpoena pending the Commission's decision.
j Because these changes are logical outgrowths of the proposed amendments and no other modifications are made,-the Commission concludes that the final rule should become effective without further notice and comment.
The Commissior's responses to the o
I concerns of the commenters are set forth telow.
A.
Need for the Rule i
One commenter argued that the expected rarity of application of the rule demonstrated the absence of a need for the rule.
The commission does expect that the rule will be invoked only in rare and compelling cases.
However, the Commission continues to believe'that the rule should further expeditious and satisfactory resolution of some investigations and that this is important to the Commission's fulfillment of its statutory mission.
By
- providing to witnesses, counsel, and agency staff both a general
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standard for determining whether disqualification is appropriate and procedures for implementing and challenging these determinations, the final rule should reduce delay, uncertainty i
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t and confusion associated with consideration of the exclusion of I
counsel.
Although several commenters emphasized the circumstances in which courts have found insufficient grounds for exclusion of counsel by the Securities and Exchange Commission (SEC), the same courts have explicitly recognized the propriety and utility of this type of rule.
In Csano, the United States Court of Appeals for the District of Columbia Circuit stated (533 F.2d at 11) with regard to the SEC's sequestration rule that --
We do not question its utility in preserving the integrity of an investigation and recognize its practical necessity in certain circumstances.
533 F.2d at 11.
In SEC v. Hiagghi, the Ninth Circuit said that
"[t]he reason for and purpose of the (SEC's) sequestration rule are clear and there can be no question as to its necessity and general propriety" (359 F.2d 550, 552 (9th Cir. 1966) ).
For reasons akin to those motivating the SEC rule, the NRC proposed and now finalizes its attorney exclusion rule.
The NRC's investigation of unsafe practices and potential violations of the Atomic Energy _Act and NRC regulations is an important means of ensuring public health and safety in opsration of nuclear power plants and other uses of nuclear material (ER2 10 CFR Part 19; 10 CFR 1.36).
NRC investigators often interview licensees, their officials and employees, and other individuals having possible knowledge of matters under' investigation.
In many cases, investigating officials conduct extensive'and j
difficult inquirier to determine whether violations were willful 6
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t and/or whether licensee's management engaged in wrongdoing.
- Yet, offective identification and correction of unsafe practices or regulatory violations through an investigative or inspection process can depend upon the willingness of individuals having knowledge of the practicos or violations to disclose that information to interviewing officials.
Therefore, as specified in 10 CFR 19.2, the rule would apply to all interviews under subpoena within the jurisdiction of the Nuclear Regulatory Commission other than those which focus on NRC employees or its contractors.
While the purposes of the rule relate primarily to interviews conducted under subpoena by the NRC's Office of Investigations, the NRC's predominant user of investigative subpoenas, the final rule would also apply to NRC inspections and investigations conducted under subpoena by other NRC officials.
The rule does not apply, however, to subpoenas
!ssued pursuant to 10 CFR 2.726, which applies to subpoenas requested in hearings.
Several commenters argued that there is no need for the rule because of the availability of other means for ensuring proper conduct by counsel (gtg., investigation and prosecution under Federal criminal statutes or investigation and disciplinary action or disqualification under standards of professional conduct for lawyers).
In some cases, the causes of inpairment of the investigation may justify consideration of criminal or other proceedings.
However, the Commission's objectives, standard for action, burden of proof, and remedy, i.e.,
exclusion of-counsel 7
from particular interviews, may differ widely from those associhted with criminal statutes or rules of conduct.
Therefore, the possibility of collateral or future actions addressing misconduct in some cases pursuant to other authority is an insufficient basis to ignore the potential need for a direct determination of whether the counsel representing multiple interests should be excluded from an interview.
As noted in the supplementary information included in the notice of the proposed rule (56 FR 65949, 65950; December 19, 1991), questions regarding impairment of investigation as a result of multiple representation have arisen in como cases in the past.
Several of the commenters argued that the cited cases did not involve any grounds for disqualification of counsel and that any concern about multiple representation in those cases was improper.
The Commission believes that the final rule will facilitate resolution of this type of question when it arises in the future.
As the Commission has stated (56 FR 65949, 65950; December 19, 1991, the justification for this rule is not premised on whether any prior case actually involved " concrete evidence" that the investigation would be impeded.
NUMARC and another commenter indicated that adoption of the proposed rule would be inconsistent with the Commission's efforts to eliminate unnecessary regulatory burdens (see, e.a.,
57 FR 4166; February 4, 1992 and 57 FR 39353; August 31, 1992).
The Commission disagrees with the suggestion that the rule fails to strike a fair and reasonable balance between the right to counsel 8
e and the need for information in investigations.
In this case, the Comm ss on is expressly adopting the judicial resolution of i
i that issue.
That resolution does not involve a highly prescriptive standard.
Rather, it involves a demanding general standard that is expected to have very limited application in a fraction of NRC interviews under subpoena.
NUMARC stated that the rule was unnecessary because NRC rules currently in effect (10 CFR Part 2) provide a mechanism for imposing sanctions for attorney misconduct in various contexts.
The existing provisions directly relating to standards of practico (10 CFR 2.713) concern appearance and practice in adjudicatory proceedings.
By this final rule, however, the Commission intends to provide specific direction for expeditious resolution of decisions to exclude counsel because of obstruction or impediment of investigative interviews resulting from multiple representation.
Thorofore, the final rule serves purposes-that_
are not met by the general 10 CFR Part 2 - Rules of practice for domestic licensing proceedings and issuance of orders.
B.
Attorney Misconduct Most commenters indicated that the proposed standard for exclusion of counseltwas deficient because it did not require a -
showing of misconduct or wrongdoing by_the attorney representing multiple parties.
These conmenters generally concede that unethical or illegal. conduct by counsel, such as encouraging or 9
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condoning perjury or engaging in a pattern of overt disruption of the interview, would supply grounds for exclusion.
Concrete evidence that such conduct is obstructing and impeding an investigation could lead to exclusion under the rule.
- However, the Commission does not find as a matter of logic or law that there is no possibility of a finding of concrete evidence of impairmont on grounds other than misconduct or wrongdoing by counsel.
For instance, the Commission does not find it necessary to rule out application of the rule to a caso presenting concrete evidence of nondisclosure of information by a witness as a result of the presence of counsel representing multiple interests even though the counsel has not engaged in misconduct.
- Moreover, whether or not an investigation will be impeded could be irrelevant in c pure misconduct case.
The Commission also does not interpret the legal precedent as permitting disqualification only for misconduct, wrongdoing, or active obstruction by counsel.
Indeed, in stating the standard to which the Commission must adhere, the court in Pros did not mandate " concrete evidence" of wrongdoing but rather
"$ concrete evidence' that counsel's presence would impede (the agency's) investigation."
Pros, 939 F.2d 1049 (citina SEC v.
Csapo, 533 F.2d at 11).
The commenters insisting on the necessity of misconduct or wrongdoing as the essential substantive element for disqualification point to Csaco, in which the Court of Appeals 10 a:.-.
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agreed with the lower court's finding that the SEC had failed to produce any " concrete evidence" of misconduct (533 F.2d at 8).
While that opinion clearly affirmed an evidentiary threshold of "concreto evidence" in relation to the alleged misconduct, the Court of Appeals also found that the record failed to disclose "any reason for barring counsel selected" by the witness (ig.)
(emphasis added).
And, the Court's specific direction was that "before the SEC may exclude an attorney from its-proceedings, it must come forth... with ' concrete evidence' that (counsel's]
presence would obstruct and impede its investigation."
Id.
at 11.
Therefore, the Commission does not interpret Csaco as limiting the grounds for exclusion of counsel to " misconduct."
C.
Application of the Rule Most commenters expressed or endorsed the view that the supplementary information in the notice of the proposed rule (56 FR 65949-65950; Decembtr 19, 1991) shows that the intended application of the rule is inconsistent with judicial direction.
They suggest that the Commission's identification of concerns motivating the rule and of some of the potentially relevant evidence displaces the " concrete evidence" standard.
While " concrete evidence" was not defined expressly in the cases referenced above, the discussion and application of that standard indicates the courts require more than speculation or even reasonable concern about potential impairment.
- Rather, 11
exclusion of counsel requires real or tangible evidence demonstrating that the investigation would be impeded as a result of the multiple representation.
Thus, the Commission recognizes that neither multiple representation nor speculation about a potential for obstruction of an investigation by, for example, the mere sharing of information provided by an interviewee to a subsequent interviewee, is a sufficient basis to exclude counsel.
The Commission cannot predict in any significant detail what set of circumstances will arise in particular investigations that will lead to application of the exclusion rule.
In the proposed rule, however, the Commission did endeavor to identify some of the factual circumstances which would tend to support invocation of the rule.
For instance, it seems clear that t he Commission's interests in the integrity and effectiveness of its investigation may outweigh a witnesses' choice of counsel for multiple interests where there is reliable, factual evidence that a witness is withholding, or will withhold, information critical to the investigation because the information will be shared with the witnesses' employer or supervisor by virtue of multiple representation.
Thus, the Commission continues to believe that evidence that the employee had a concern that his employment would be jeopardized by transmittal of information from the interview to the licensee would be relevant.
The Commission believes that evidence that the multiple representation would lead to disclosure of the substance of an interview to a future 12 L_
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interviewee or subject in the investigation would also be relevant although not sufficient unless there were also concrete evidence that the disclosure would obstruct and impede the investigation.
However, the Commission expects that it will be a rare case in which there is actual proof that the multiple representation will seriously obstruct and impede the investigation, nig., critical information is being or will be withheld.
Some commenters misunderstood the Commission's statement that concerns arise about inhibition of the candor of witnesses where the interviewee is represented by counsel who is paid by the licensee and also represents the licensee or licensee's officials under investigation, particularly where the matter at 1
issue is wh9ther the licensee's employees have been, or are being, harassed or intimidated for raising safety issues (56 FR 65949; December 19, 1991).
These commenters viewed these statements as examples of cases in which the Commission would deem exclusion to be appropriate.
The Commission recognizes that these circumstances do not necessarily lead to non-disclosure of critical information or other serious impairment of the investigation.
Exclusion of counsel under the rule is warranted only when there is also concrete evidence, not just mere concern or speculation, that~the investigation will be obstructed and impeded as a result of the presence of-the counsel representing multiple interests.
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,1 Several commenters expressed concern that the Commission would find obstruction and impediment to the investigation where minor inconvenience results from such traditional activities of counsel as endeavoring to learn more about the investigation or to advise clients to testify truthfully but cautiously.
The Commission recognizes that these types of activities do not establish real obstructien and impediment to the investigation.
Indeed, these traditional activities of counsel are common to legal representation of any witness.
Some commenters fault the proposed rule's statement that disqualification may be based on concrete evidence that multiple representation will "directly or indirectly" impede the investigation.
Several commenters state that the Commission's use of these modifiers unjustifiably lessens and obscures the "concreto evidence" standard.
The commission recognizes that the court in Pros and Csapo did not use the modifiers "directly or indirectly" in referring to the requirement of concrete evidence of impediment to the investigation.
However, the Commission notes that the same modifiers were present in the final rule published on January 4, 1990 (55 FR 243), and that the court of appeals did not comment on their presence in that rule.
The key requirement-is " concrete evidence" of obstruction-and impediment.
Whether the causation is described as direct or indirect, the question in a particular case will be whether there is concrete evidence that the presence.of counsel representing 14
4 multiple interests would obstruct and impede the investigation.
It is the effects of multiple representation, not multiple representation standing alone, that may in some cases impede the investigation.
For instance, if there were concrete evidence that a present or future witness will not answer questions or provide evidence because his attorney's representation of multiple interests will necessarily result in the sharing of-the witness' testimony or evidence with a represented target, invocation of the rule could be warranted whether the cause of the impairment is described as direct or indirect.
Clearly, a mere chain of inferences and speculation would not constitute
" concrete evidence."
Nonethelers, the " concrete evidence" requirement does not preclude a showing of obstruction and impediment through indirect effects, but rather implicitly embraces the possibility of such a showing.
Therefore, the Commission has decided to delete the phrase "directly or indirectly" from the rule as unnecessary.
i For increased clarity, the Commission has also revised the standard for exclusion by stating the threshold requirement in S 19.10(b) as " concrete evidence that the presence of an attorney representing multiple interests would obstruct and impede the investigation or inspection...."
In the proposed 5 19.18 (b),
the requirement was described
" concrete evidence that the v
investigation or inspection will be obstructed and impeded, directly or indirectly, by an attorney's representation of multiple interests."
A similar change was made in the definition 15 l
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of "(e)xclusion" in S 19.3.
The revised language tracks more precisely the judicial articulation of the threshold requirement.
Thus the revisions further affirm and clarify the Commission's intent to follow the judicial guidance.
D.
Adequacy of the Procedures NUMARC and another commenter stated that " consultation" by the investigating official with the office of the General Counsel before a decision to exclude counsel is ineffectual without the requirement of consent by the Office of the General Counsel.
Another commenter recommended that the investigator be required to obtain a written opinion from the Office of the General Counsel that the standard of " concrete evidence" has been met.
The Commission disagrees because it has already added numerous safeguards which it considers to be sufficient, including the
" consultation" requirement, to guide agency officials and prevent arbitrary action in the exclusion process.
The rule requires that the interviewing official provide a written statement of reasons for the exclusion to the witness whose attorney has been excluded and to the excluded attorney.
The interviewing official must consult with the Office of the General Counsel prior to invoking the exclusion rule.
The witness whose counsel has been excluded may appeal the decision to the Commission and automatically obtain a stay of the effectiveness of that decision pending decision by the Commission.
16
Of course, the Commission may also quash or modify the subpoena if it finds that the exclusion of counsel decision is not based upon concrete evidence or if the subpoena is otherwise unreasonable, or requires evidence not relevant to any matter in issue.
Moreover, the Commission (like the SEC) must still prevail in court in a subpoena enforcement proceeding if the person under subpoena declines to comply.
A court in which the basis for the exclusion is litigated may also conduct an evidentiary hearing if the factual issues require it.
SEC v.
Csano, 533 F.2d at 12.
NUMARC recommended that S 19,18(d) be revised to provide the
=
witness and the witness' counsel an opportunity to appear before the Commission in the course of the Commission's evaluation of s
the appeal of an interviewing official's decision.
The purpose would be to ensure that the adversely affected parties had a right to be heard.
The Commission believes that the procedure in the final rule, providing a statement of reasons for exclusion and pernitting the filing of a motion to quash, provides a reasonable mechanism for presentation of the views of affected parties.
However, nothing in the rule prevents the witness moving to quash the subpoena from requesting an opportunity for an oral presentation in connection with the motion and stating the reasons supporting the need for oral presentation.
The comments of PROS included the suggestion that the rule, if issued, be amended to require that the witness be advised of the right to counsel at the time of an exclusion of counsel and 17 1
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i, prior to any subsequent interview.
NUMARC recommended that internal procedures to implecent the rule should be amended to direct NRC investigators to advise witnesses of the right to counsel including a right to consent to multiple representation, and of the provisions of S 19.18, including the right to appeal any exclusion of counsel.
As a practical matter, a witness who is already represented-by counsel can be expected to consult with counsel about such issues as the right to counsel, consent to multiple representation and witnesses' rights under this final rule.
Thus, while an investigator may reasonably inquire about issues of consent to multiple representation in connection with an investjgative interview, it does not seem necessary to require that an investigator provide general direction or advice on rights and limitations regarding an attorney's representation of multiple interests to a witness already represented-by counsel.
Moreover, the Commission was asked'to require that investigators advise witnesses of the right to consent to multiple representation, although even under standar'ds of professional conduct for lawyers such consent is subject to various conditions and exceptions.
- Egg, e.a.,
Wheat v. United States, 486 U.S.
153
-(1988) (district court may refuse waiver of' conflicts of. interest in cases where a potential for conflict exists); FTC v.
- Exxon, 636 F.2d 1336, 1342-(D.C. Cir. 1980) (district court's order to retain separate counsel.because of potential conflict violated neither due process nor the APA).
However, in order to ensure 18
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that the witness is aware of the Commission's procedures for appeal of the exclusion decision, the Commission has revised the text of the proposed S 19.18(c) to require that the written notice of the reasons for exclusion include a description of the rights provided in S 19.18(d), regarding the right to appeal the exclusion decision.
NUhARC recommended that proposed 10 CFR 19.18(e) be clarified to assure that a witness' interview is delayed automatically to at least the date of the receipt of the written statement of basis for exclusion.
An automatic delay is clearly unnecessary, however, if the witness chooses to proceed without counsel or with new counsel at an earlier time.
Moreover, the proposed provision already permits the witness to request a reasonable period of time to obtain new counsel, and the witness may even obtain an automatic stay of the subpoena during an appeal of the exclusion decision to the Commission.
Nonetheless, the Commission would not expect that an interviewing official would proceed with the interview of the witness until more than five days after the receipt by the witness and the counsel of the written statement of reasons for exclusion, unless the witness requests that the interview proceed without counsel or with new counsel at an earlier date.
Therefore, the Commission has revised the text of the proposed 10 CFR 19.18(e) to provide that the interview shall not be rescheduled to a date that precedes the expiration of the time 19
1 i
e provided under 10 CFR 19.18(d) for appeal of the exclusion of counsel, unless the witness consents to an earlier date.
Aside from this minimum delay, however, what corstitutes a reasonable period of time for the continuation of an interview after exclusion of counsel must be determined on a case-by-cese basis, with the interviewing official taking into account the relevant circumstances, including the availability of substitute counsel, the complexity of the case and the grounds for exclusion, the date of actual notice to the witness and excluded counsel of the grounds for exclusion, and the Commission's need to complete the investigation promptly in order to protect public health and safety.
PROS recommended that the witness whose counsel has been excluded be presented " concrete evidence" that the new counsel has a previous record of accomplishment in, and knowledge of, the nuclear industry that is on the same level as the excluded counsel.
The Commission disagrees that it should have the burden of initiating an investigation and making a finding on this question.
The witness, not the Commission, would choose new counsel.
Many counsel and law firms appear in connection with Commission proceedings and investigations.
Moreover, the commission has already provided that a witness may either proceed without counsel or request a delay for a reasonable period of time to permit retention of new counsel.
20 v-
-e Environmental Impact-Categorical Exclusion The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c) (1).
Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.
Paperwork Reduction Act Statemenc This final rule does not contain a new or amended inforn.ation collection requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.).
Existing requirements were approved by the Office of Management and Budget approval number 3150-0044.
l Regulatory Analysis The APA affords individuals compelled to submit to agency inquiry under subpoena the right to be accompanied by counsel-or other representative of choice (5 U.S.C. 555(b)).
This right to
~
counsel guarantee is not absolute and may be circumscribed within permissible limits when justice requires.
An exception has been recognized for cases in which there is concrete evidence that the-presence of counsel representing multiple interests during an
~
investigative interview would impede and obstruct the agency's investigation.
21
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Questions.concerning the scope of the right to counsel have arisen in the context of NRC investigative interviews of licensee employees when the employee is represented by counsel who also represents the licensee or other witnesses or parties in the invastigation.
This arrangement is not improper as a general ~
matter.
This final rule provides, however, that counsel representing multiple interests may be excluded frcm a subpoenaed interview if there is concreto evidence that counsel's presence would obstruct and impede the investigation.
This final rule also delineates responsibilities of NRC officials and rights of interviewees in connection with the exercise of the-authority to exclude counsel.
Thus, the rule is intended to further expeditious and satisfactory resolution of NRC's inquiry into matters concerning public health and safety.
Guidance in this area should reduce delay and uncertainty in the completion of an investigation when questions of multiple-representation arise.
The foregoing discussion constitutes the regulatory analysis for this final rule.
Regulatory Flexibility Certification In accordance with the Regulatory' Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission hereby certifies that this final rule would not have a significant impact on a substantial number of small entities.
The final rule concerns an attorney's appearance at a subpoenaed interview of a licensee's employee or 22
)
other individual during an NRC investigation or' inspection in circumstances where there is concrete evidence that the attorney's representation of multiple interests would obstruct and impede the investigation or inspection.
It provides procedures for exercise of the authority to exclude that attorney from the interview in these limited circumstances and for challenge of a decision to exclude tne attorney.
Backfit Analysis 9
The NRC has. determined that a backfit analysis is not required because these amendments do not involve any provisions which would impose backfits as defined in 10 CFR 50.109 (a) (1).
List of Subjects in 10 CFR Part 19 Criminal penalties, Environmental protection, Nuclear materials, Nuclear power plants and reactors, occupational safety and health, Radiation protection, Reporting and recordkeeping requirements, Sex discrimination.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and-5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR Part 19.
23 l
PART 19 -- NOTICES, INSTRUCTIONSLAND REPORTS TO WORKERS:
INSPECTION AND INVESTIGATIONS 1.
The authority citation for Part 19 continues to read-as follows:
Authority: Secs. 53, 63, 81, 103, 104, 161, 186, 68 Stat.
930, 933, 935, 936, 937, 948, 955, as amended, sec. 234, 83 Stat.
444, as amended (42 U.S.C.
2073, 2093, 2111, 2133, 2134, 2201, 2236, 2282); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.
5841).
Pub.
L.95-601,, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851).
2.
In S 19.3, the definition of " Exclusion" is added to read as follows:
S 19.3 Definitions.
Exclusion means the removal of counsel representing multiple interests from an interview whenever the NRC official conducting the interview has concrete evidence that the precence of the counsel would obstruct and impede the particular investigation or inspection.
3.
In S 19.18, paragraphs (b)-(e) are added to read as follows:
S 19.18 Sequestration of witnesses and exclusions of counsel in interviews conducted under subpoena.
(b) Any witness compelled by subpoena to appear at an interview during an agency inquiry-may be accompanied, 24
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represented, and advised by counsel of his or her choice.
However, when the agency official conducting the inquiry determines, after consultation with the office of the General Counsel, that the agency has concrete evidence that the presence of an attorney representing multiple interests would obstruct and impede the investigation or inspection, the agency official may prohibit that counsel from being present during the interview.
(c) The interviewing official is to provide a witness whose counsel has been excluded under paragraph (b) of this section and the witness's counsel a written statement of the reasons supporting the decision to exclude.
This statement, which must be provided no later than five working days after exclusion, must explain the basis for the counsel's exclusion.
This statement must also advise the witness of the witness' right to appeal the exclusion decision and obtain an automatic stay of the effectiveness of the subpoena by filing a motion to quash the subpoena with the Commission within five days of receipt of this written statement.
(d) Within five days after receipt of the written notification required in paragraph-(c) of this section, a witness whose counsel has been excluded may appeal the exclusion decision by filing a motion to quash the subpoena with the Commission.
The filing of the motion to quash will stay the effectiveness of the subpoena pending the Commission's decision on the motion.
(c) If a witness' counsel is excluded under paragraph (b) of this section, the interview may, at the witness' request, alther 25
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proceed without counsel or be delayed for a reasonable period of time to permit the retention of new counsel.
The interview may also be rescheduled to a subsequent date established by the NRC, although the interview shall not be rescheduled by the NRC to a date that precedes the expiration of the time provided under S 19.18(d) for appeal of the exclusion of counsel, unless the witness consents to an earlier date.
Dated at Rockville, Maryland this 18th day of December 1992.
For the Nuclear Regulatory Commission, O
fh\\
c jSamuel J.
Chi k, Secretary of e Commission l
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