ML19257C417
| ML19257C417 | |
| Person / Time | |
|---|---|
| Issue date: | 01/11/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Ahearne J, Gilinsky V, Kennedy R NRC COMMISSION (OCM) |
| Shared Package | |
| ML19257C410 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8001290087 | |
| Download: ML19257C417 (8) | |
Text
>R MCO UNITED STATES
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NUCLEAR REGULATORY COMMISSION 2
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WASHINGTON. O. C. 20555 JAN 11 E I MEMORANDUM FOR:
Chairman Ahearne Commissioner Gilinsky Commissioner Kennedy Commissioner Hendrie Commissioner Bradford
/
bLeonard Bickwit, FROM:
Jr.
General Counsel
SUBJECT:
PENDING REGULATORY REFORM LEGISLATION This memorandum _ supplements our earlier paper, dated December 3, 1979, on this subject.
That paper identified and discussed the maj or issues associated with the principal, comprehensive regulatory reform bills then pending in the Congress (the Ribicoff bill (S.262);
the Administration bill (S.755); and the Kennedy bill (S.12 91 ) ).
On December 18, 1979, Senator Culver introduced the " Regulatory Flexibility and Administrative Reform Act of 1979" (S.2147),
which incorporates some of the concepts and requirements of S.262, S.755, and S.1291 as well as some new proposals, and which now appears to be the focus of Senate attention on this subject.
The Senate Committee on Governmental Affairs has scheduled a mark-up of S.2147 for January 23, 1980.
In our opinion, the introduction of S.2147 underscores the importance of comprehensive regulatory reform in this Congress and the need for Commission attention to the principal reform issues affecting it.
You have scheduled a meeting on this subj ect for January 16, 1980, for the purpose of developing a collegial position on each significant reform issue.
This paper includes OGC recommendations concerning (a) what issues are of importance to the Commission, and (b) what position the Commission should adopt on each such issue.
We recommend the following approach for your deliberations:
(1) review the recommended Commission position for each issue.
If a Commissioner disagrees with a position, his office would circulate a paper describing die substance of an alternative position.
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2 (2) review the issues on which we recommend NRC not comment.
If a Commissioner believes an issue merits Commission comment, his office would circulate the substance of a proposed Commission position.1/
We strongly recommend that Commissioner proposals be circulated prior to the January 16 meeting, if possible.
We recommend that the Commission support S.214 7 in general, subject to its comments on particular features of the bill.
The following discussion considers each of the principal issues identified and discussed in our December 3, 1979 paper, in light of provisions contained in S.2147 and recommends a Commission position.
(1) Regulatory Analysis.
S.2147 requires an agency to prepare an initial regulatory analysis for each proposed rulemaking on a major rule 2/
and a final regulatory analysis if it adopts the rule.
This requirement parallels the requirements of S.262 and S.755 which are discussed in our earlier memorandum.
However, two aspects of S.2147 should be highlighted here.
First, the agency head may waive the entire initial regulatory analysis requirement and the completion deadline for the final regulatory analysis whenever a final rule is adopted in response to an emergency Snat makes compliance with the requirement impracticable.
Second, the regulatory analysis would not be subject independently to judicial review, but it could be considered by a court in judicial review of the rule.
This provision places the analysis on a par with other documentary materal in a rulemaking record and immunizes it from the more intensive judicial review given to environmental impact statements.
However, the analysis would be subject to congressional and executive branch review on a selective basis.
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Authorization of funding for intervenors and centralization of planning and management functions are the only topics discussed in our earlier paper that have been omitted from S.2147.
If a Commissioner believes these topics should be added to S.2147, his office would circulate die substance of its proposal.
2/
A rule is " major" if it could (i) have an annual economic effect of $100,000,000 or more, (ii) cause a significant change in costs or prices for individual industries, geographic regions, or levels of government, (iii) have a significant impact on employment or competition, or (iv) otherwise have a major impact.
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3 Commission position:
The Commission supports the regulatory analysis requirement as proposed in S.2147.
The sufficiency of the regulatory analysis should not be judicially reviewable.
It is important th a t the regulatory analysis be competently and responsibly done, and independent agencies can be held accountable for this task through periodic, selective review by the Congressional Budget Office.
Judicial revie/ is an unsatisfactory alternative because it would encourage an agency to prepare a litigation document rather than an analysis that was framed according to the specific needs of the agency decisionmaker.
(2) Agencv Regulatory Agenda.
The agenda which S.2147 would require follows the general pattern of S.262 and S.755, but it is a compromise of those two bills in its specifics.
The agenda, which is a kind of early warning system for interasted persons outside the agency, would be published semiannually and would list and describe each rule to be proposed, adopted or reviewed by die agency and each area of regulatory inquiry to be considered by it, for the following year.
However, an agency would not be precluded from acting on any matter not included in the agenda.
S.2147 authorizes the Regulatory Policy Board -- a new executive branch entity which we will discuss later -- to determine whether an agency rule is a major rule.
It is unclear whether the Board could override an agency's determination on the matter.
The practical effect of the Board having such power would be twofold:
(1) the Board could compel an agency to prepare a regulatory analysis for a particular rule; (2) the Board could compel an agency to review an existing rule.
Commission position:
It is unclear whether S.2147 would authorize the Regulatory Policy Board to designate an agency rule as a major rule, over the objection of dhe agency.
S.2147 offers no rationale for giving the Board such power over independent agencies, and NRC would oppose it.
Congress should clarify that the Board would not have such power.
(3) Agency Deadlines.
On this subject, S.2147 adopts the approach of S.262.
As our December 3rd paper notes, the most significant problem in this approach concerns the extent to which the courts will become dhe enforcers of agency deadlines.
Commission position:
If the courts are to be permitted to take account of missed agency deadlines, Congress should be explicit about i'.s intentions.
Courts could foreseeably become die enforcers of agency deadlines, and such an eventuality would have uncertain and not necessarily beneficial effects on the quality of agency decisionmaking.
Thus, Congress should make it clear that (1) a strong judicial role is not intended, and (2) courts may consider agency deadlines but should not accord daem weight beyond that given to other relevant factors, including the agency's justification for its inaction.
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4 (4) Centralization of Acency Planning and Management Functions.
S.2147 does not address dais subject.
(5) Acency Review of Rules.
S.2147 would establish, on a pilot basis for five years, a requirement daat each agency review ten percent of its major rules in each of the next five years.
The review format of S.2147 would parallel that S.755.
No agency action associated with this requirement would be subject to judicial review.
Commission position:
We do not see a need for die Commission to take a position on this issue.
(6) Expedited Hearina Procedures for Licensing.
In requiring agencies to use written procedures for specified classes of adjudication (e.g. formal rulemaking, ratemaking, licensing),
S. 214 7 closely parallels S. 262 and S. 755.
However, S.2147 differs from the earlier bills in that it explicitly exempts "a proceeding before the Nuclear Regulatory Commission" from the mandatory, expedited hearing format. 3/
It is unclear whether S.2147 permits NRC to use the expedited format in its discretion.
The language of the bill is susceptible to such a reading, but the draf ters ' section-by-section analysis seems to preclude it.
Even if NRC were precluded from using the expedited format, some flexibility for procedural reform in NRC licensing proceedings exists under other provisions of the APA.
However, the litigation risks associated with using such provisions are probably greater than the risks associated with proceeding under the more explicitly detailed expedited format.
Commission position:
Congress should clarify the meaning of the exemption of NRC proceedings from the mandatory expedited hearing format, by stating explicitly that it is not intended to prohibit NRC from conducting any of its proceedings under the expedited format or to require NRC to use formal, trial-type hearing procedures of the APA in every NRC adjudication.
3/
According to die draf ters of S.2147, NRC proceedings should be exempt (1) because of their " peculiar importance," and (2) because the Senate Energy and Natural Resources Committee is drafting special procedures for NRC.
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5 (7) Separation of Functions.
S.2147 is not intended to change current separation-of-function rules for formal adjudicatory proceedings.
However, it does so indirectly for NRC proceedings by abolishing the exception in current law for initial licensing proceedings.
As we noted in our December 3rd paper, this change removes one option for liberalizing NRC rules concerning ex parte contacts between the Commission and the staff.
With respect to expedited proceedings, S.2147 adopts the less rigorous separation-of-function rules contained in S.755. The significance of this feature for NRC is clouded by the previously discussed uncertainty over whether NRC may use such procedures as a matter of discretion.
Commission oosition:
S.2147 indirectly results in more restrictive separation-of-function rules for NRC because it abolishes the current exception from such rules for initial licensing proceedings.
The less restrictive rules for expedited proceedings which would ordinarily apply to initial licensing cases will not apply to NRC because NRC proceedings are exempt from the expedited format.
As a consequen 3 of recent experiences in which ex parte constraints on communications between the Commission and its staf f have made the agency's performance of its duties more difficult, the Commission is studying alternative constraints and practices.
Until such time as our study is completed, we would oppose changes in the law which broadened ex parte prohibitions.
Repeal of the current exemption for initial licensing proceedings would have this effect on NRC.
Congress should explicitly recognize in legislative history that special circumstances apply to NRC proceedings, and diat it will await NRC's recommendations on whether special separation-of-functions rules are needed for NRC proceedings.
(8)
Sunpoena Authority.
S.214 7 would add the tool of civil penalties to an agency's arsenal of measures to enforce its subpoenas in Federal courts.
The authority granted by the bill is in addition to authority found in existing law such as Sections 161c and 233 of the Atomic Energy Act.
Commission position:
While NRC would be assisted by the subpoena provisions of S.2147, we see no need for the Commission to separately address d1is issue.
(9)
Acency Review of Decisions.
S.2147 largely adopts the provisions of S.262 and S.755 on this subject.
The draf ters '
section-by-section analysis does not entirely remove the concern expressed in our December 3 paper about the effect of the earlier bills on our Appeal Board review.
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6 Commission oosition:
Congress should amend the bill to make it clear that the grounds for review which are to be specified by the agency under section 557(d)(1)(B) of S.2147 are only those grounds applicable to review by agency heads.
(10)
Administrative Law Judges.
S.
2147 proposes an Admini-strative Law Judge regime which is substantially less comprehensive than the regimes proposed in S.262 and S.755.
Members of the Licensing and Appeal Boards are not required to be ALJs, and current NRC practice with respect to appointments to these boarde would not be affected by S.2147.
Commission position:
We do not believe a Commission position on this issue is necessary.
(11) Funding for Intervenors.
S.2147 does not address dais subject.
(12) Expanded Administrative Conference.
S.2147 adopts less extensive reforms for the Conference than those reforms proposed in S.262 and S.1291.
The independence of the Conference is maintained, and its powers with respect to the generally applicable administrative procedures is limited to proposing non-binding, model uniform rules.
Commission position:
The Commission supports the changes in S.2147, but would oppose amendments which authorized the Conference to adopt binding rules of administrative procedure or which reduced the Conference's independence from the Executive branch.
(13) Informal Rulemaking.
S.2147 adopts a number of the reforms and clarifying changes contained in S.755 and S.1291 with respect to agency procedures for informal rulemaking.
With the exception of the bill's provisions regarding ex parte contacts, none of its procedural requirements departs substantially from the procedures used in NRC rulemakings.
On the subject of ex carte communications, S.2147 incorporates most of Ele provisions of S.1291.
However, a court could not set aside an agency rule on the basis of the agency's failure to comply with ex parte rules unless die communication contained matter which the agency significantly relied upon, and other participants in the rulemaking did not have reasonable notice of it.
Commission position:
We do not see a need for the Commission to comment on this issue.
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7 (14) Review of Regulatory Agencies.
S.2147 contains the so-called "high noon" provisions that were proposed in S.1291.
Th e regulatory functions of NRC would be reviewed, along with other agencies concerned with energy, in the 98th Congress (1983-1985).
Commission position:
We recommend no Commission position on this issue.
S.2147 addresses several topics which were not contained in any of die three bills that were discussed in our December 3 paper.
(15) Regulatorv Policy Board.
S.2147 would establish the Regdlatory Policy Board within the Executive branch, and would consolidate within the Board the regulatory oversight functions of the Regulatory Council, the Regulatory Analysis Review Group and various other agencies.
The Board would be compoced of senior administrative officials appointed by the President.
It would prepare a compendium of agency regulatory agendas, identify areas of regulatory overlap, monitor agency compliance with the management, planning and analytic requirements of S.2147, selectively review regulatory analyses, and collect and disseminate data and information of other Federal agencies.
It would also develop a comprehensive index of Federal administrative rules in collaboration with the agencies, which would classify rules by subject, by agency and by regulated sector.
Commission position:
We do not see the need for the Commission to comment on this feature of S.2147.
(16) Regulatory Flexibility Analysis.
For each agency rulemaking involving public participation, S.2147 would require the agency to prepare an initial and a final written analysis of the adverse economic impacts of the rule on individuals and on small businesses, organizations and government jurisdictions.
The analyses must set forth reasonable alternatives to the rule which would minimize such economic effects, and the final analysis must contain an explanation of why the alternatives were rejected by the agency.
However, S.2147 would not change the substantive standards for agency action, and NRC would continue to act, or refrain from acting, in accordance with its existing substantive mandate.
S.2147 does not provide for a waiver of the regulatory flexibility requirement as it does for the regulatory analysis.
Judicial review of the flexibility analysis would be similar to dhat accorded the regulatory analysis.
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8 Commission oosition:
The substance of the waiver provisions that apply to tne regulatory analysis should also apply to the flexibility analysis so diat an agency may properly defer compliance with the required procedure in the case of an emergency.
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Attachments:
(1) S.2147 (2) Bickwit Memo to Commission, dated December 3, 1979; subject: Pending Regulatory Reform Legislation (w/o attachments.)
pg,,,)y,(gl cc:
Shapar Robert Minogue 1&BS194
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