ML19351F157
| ML19351F157 | |
| Person / Time | |
|---|---|
| Issue date: | 12/10/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Carlstrom R OFFICE OF MANAGEMENT & BUDGET |
| Shared Package | |
| ML19351F158 | List: |
| References | |
| NUDOCS 8101100007 | |
| Download: ML19351F157 (3) | |
Text
s 2 Katog UNITED STATES
(
jo NUCLEAR REGULATORY COMMISSION Cc g
WASHINGTON, D. C. 20555 CQ g
December 10, 1980 x'
Mr. Robert E. Carlstrom Assistant Director for Legislative Reference Office of Management and Budget Washington, DC 20503
Dear Mr. Carlstrom:
This letter responds to your Legislative Referral Memorandum of October 31, 1980, regarding " Judicial review of agency actions, the ' Bumpers Amendment.'"
The Nuclear Regulatory Commission opposes all three versions of the amendment forwarded by your memorandum.
Even as modified, the amend-ment carries the serious risk that useful and well-understood principles of administrative law that govern relationships between the courts, the Congress and the independent regulatory agencies will be swept aside, in turn leading to structural uncertainty and instability.
Our main objections to each of the chief points of the amendment follow:
1.
Scoce of Acency Jurisdiction.
The amendment does not adequately deal with instances in which Congress has already granted broad jurisdiction to an agency in general terms to regulate for the benefit of public health and safety in an area of scientific or technical uncertainty.
In such instances, Congress leaves to l
agency judgment the determination of what is appropriate or necessary regulation.
Problems in need of regulatory attention arise which were totally unforeseen by Congress, and the agency maken its determination on the basis of judgment and experience.
In such instances, it is not clear daat the agency could sustain its burden before a reviewing court of showing a statutory basis for its jurisdiction under the Bumpers amendment.
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Robert E. Carlstrom December 10, 1780 As a concrete example, NRC was faced several years ago with the question whether conditions of potential terrorism and social unrest called for it to require operators of nuclear power plants to protect against possible sabotage.
Congress had not anticipated this question in the Atomic Energy Act of 1954 and, thus, had not explicitly provided for it.
However, Congress i
had granted broad audnority to the agency to regulate nuclear reactors in the interests of the public health and safety and of the common defense and security.
In deciding to requ!-e -rotection against sabotage, the agency was ca!' - upon to make various judgments, including a jnagment about the extent to which the design and equipment of nuclear plants already afforded protection against sabotage.
The amendment language raises questions about whether the agency's assertion of jurisdiction would be sustained by a reviewing court.
Even if, as a general matter, these questions are answered in favor of public protection in individual cases, the uncertainty created could retard legitimate agency efforts that benefit public health and safety.
2.
Agency Interpretations of Law.
As a general proposition, an agency can expect its interpretations of law to receive no greater respect within the regulated sector than they command before the courts.
Under present law, courts customarily accord respect to an agency's interpretation of its own regulations and governing statute.
- See, e.g.
Power Reactor Development Co. v.
Electrical Union, 367 U.S.
396, 408, 6 L.Ed 2d 924, 81 S.Ct. 1529 (1961).
The amendment seemingly eliminates this practice.
Thus, regulated parties will have less l
incentive to comply with regulatory directives with l
which they disagree on legal grounds.
Judicial challenges j
to agency determinations involving questions of law will increase, as will the time, cost and uncertainty t
of administrative regulation.
This result could be l
particularly disruptive for the agency and the public with respect to agency interpretations of its rules and i
regulations which might be argued to be questions of law.
l l
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l
Robert E.
Carlstrom December 10, 1980 3.
" Substantial Support" in Aaency Rulemakings.
Since sponsors of proposed 5 U.S.C.
706(a)(2)(F) are silent on its significance for present law, the provision will likely be a source of serious uncertainty in administrative rulemaking and regulation with its attendant economic and social costs.
No effort is apparently made on the part of the drafters to define critical terms such as
" substantial support" and "rulemaking file."
It is our impression that the courts are already addressing some of the questions to which this portion of the amendment is directed.
E.g.,
Portland Cement Ass'n. v. Ruckelshaus, 486 F.2d 375,,395 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974).
Absent an explicit statement by the draf ters about the amendment's effect on existing law or the meaning of its critical terminology, the amend-ment will jeopardize and possibly negate the understandings that have grown out of these judicial developments.
We appreciate the opportunity to express our views on the above matters.
Sincerely,
{1
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Leonard Bickwit, Jr.
General Counsel 4
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