ML19291C345
| ML19291C345 | |
| Person / Time | |
|---|---|
| Issue date: | 01/05/1980 |
| From: | Cunningham G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Mattson R Office of Nuclear Reactor Regulation |
| Shared Package | |
| ML19260C771 | List: |
| References | |
| REF-10CFR9.7 NUDOCS 8001240258 | |
| Download: ML19291C345 (2) | |
Text
January 5, 1980 MEMORANDUM FOR:
Roger Mattson FROM:
Guy Cunningham
SUBJECT:
TMI ACTION PLAN - PREREQUISITES FOR RESUMPTION OF LICENSING At their meeting on January 4, the office directors were unanimously agreed that Commission approval of the recomendations of this papar should be obtained before their full implementation. There was disagreement, however, as to whether that approval should be in the form of a general statement of policy or one or more rules (made immediately effective as appropriate).
OELD believes that the difference between the approaches should be highlighted and the consequences of the choice made clear.
A good discussion of this subject is presented in Pacific Gas and Electric Co. v. FK (D.C. Cir. 1974) 506 F.2d 33.
In part, tne Court said:
The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronounce-ments have in subsequent administrative proceedings.
A properly adopted cubstantive rule establishes a standard of conduct which has the force of law.
In subsequent administrative proceedings involving a substantive rule, the issues are whether the adjudicated facts conform to the rule and whether the rule should be waived or applied in that particular instance.
The underlying policy embodied in the rule is not generally subfect to challenge before the agency.
A general statement of policy, on the other hand, does not establish a
" binding norm."
It is not finally determinative of the issues or rights to which it is addressed.
The agency cannot apply or rely upon a general statement of policy as law because a general statement of policy only announces what the agency seeks to establish as policy.
A policy statement announces the agency's tentative intentions for the future.
When the agency applies the policy in a particular situation, it must be prepared
'to support the policy just as if the policy statement had never been issued.
An agency cannot escape its responsibility to present evidence and reasoning supporting its substantive rules by announcing binding precedent in the_.
form of a general statement of pol!cy.
(Citations and footnotes omitted.)
In the present situation, utilization of a policy statement to announce the agency's intention to require implementation of the recom endations of this paper will mean that the proposed requirement will be a proper subject for litigation in every contested case before the issuance of any permit or license.
OELD believes that immediately effective rules can be promulgated in the same 1795 08'8 ttachment 2 8001240 i
2 period of time as a general statement of policy.
Moreover, to the extent that the rules are merely " interpretive" of present regulations, they may be promul-gated, as may a general statement of policy, without following APA rulemaking procedures.
mM/ / a uy H. Cunningham, M Chief Regulations Counsel, OELD e
O 179508E