ML20040E541
| ML20040E541 | |
| Person / Time | |
|---|---|
| Issue date: | 09/04/1981 |
| From: | Palladino N NRC COMMISSION (OCM) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20040E530 | List: |
| References | |
| FOIA-81-397 NUDOCS 8202050061 | |
| Download: ML20040E541 (6) | |
Text
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RESiiONSE'SHE5T
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SAMUELJ.CHILK,SECRETARYOFTHECOMMISSION FROM:
CHAIRf1AN PALLADIN0
SUBJECT:
SECY-A-80-168 - RULEMAKING TO INCORPORATE IN 10 CFR PART 2 AP MILITARY AND FOREIGN AFFAIRS EXCEPTION" TO ADJUDICATIONS APPROVED I/ M ROVED ABSTAIN' NOT PARTICIPATING ~
. REQUEST DISCUSSION COMMENTS:
1.
I approve the recommendation of A-80-168 to publish the Federal Register Notice, as modified to make it current (see attached).
- 2. I request that Commissioner Bradford apprise the othdr Commissioners of the time he will need to prepare his separate views.
)A kY12 W (f %16NAluRE
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8202050061 811105 b0$Shd^-397 PDR SECRETARIAT NOTE:
PLEASE.ALSO. RESPOND TO.AND/OR COMMENT ON.0GC/0PE MEMORANDUM IF ONE HAS BEEN ISSUED ON TH,IS PAPER.
NRC-SECY FORM DEC. 80
(7590-01)
NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 AMENDMENT TO PROVIDE EXCEPTIOF FROM PROCEDURAL ROLES FOR ADJUDICATIONS INVOLVING CONDUCT OF MILITARY OR FOREIGN AFFAIRS FUNCTIONS AGENCY:
U.S. Nuclear Regulatory Commission.
ACTION:
Reconsideration of Rule.
SUMMARY
The Commission is reconsidering that part of its " Rules.
of General Applicability" for the conduct of adjudicatory proceed-ings in 10 CFR Part 2 which provides an exception frora those rules for adjudications involving the conduct of military or foreign affairs functions.
The rule under reconsideration permits the Commission to exercise greater flexibility within due process limits in fashioning procedures for proceedings involving military or foreign affairs functions.
DATES:
Comments are due on or before (45 days after publication in the Federal Register. )
ADDRESSES:
Written comments concerning the reconsidered rule should be submitted to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, D.C.
20555, Attention Docketing and Service Branch.
FOR FURTHER INFORMATION CONTACT:
Marjorie S.
Nordlinger, Office o f the General Counsel, ' U.S.
Nuclear Regulatory Commission, Washington, D.C.
20555; phone 202-634-3214.
[7590-01) 2 SUPPLEMENTARY INFORMATION:
The Commission is reconsidering that part of its rules governing procedures for adjudications in subpart G of 10 CFR Part 2 which provides an exception from those procedures for proceedings to the extent that there is involved the conduct of military or foreign affairs functions.
.On June 26, 1980 the Commission by a 3-2 vote adopted such an exception as an immediately effective rule without public notice and opportunity for comment.
See 45 Fed. Reg. 45253 (July 3, 1980).
It then by the same majority applied the rule to a proceeding on a proposed amendment to the specici nuclear material license of the Nuclear Fuel Service's facility at Erwin, Tennessee (NRC Docket no.70-143). Anticipating that the proceeding would involve highly sensitive materials and policy decisions involving the military function of the United States, the Commission wished to have more flexibility in establishing hearing procedures.
See Memorandum and Order CLI-8-27, 11 NRC 799 (1980).
Natural Reso6rces Defense Council, a participant in the NFS Erwin matter, sought review in the United States Court of Appeals for the District of Columbia of the Commission's decisions to issue the rule without notice and comment and to apply it to the NFS Erwin proceeding.
(D.C. Circuit Docket nos. 80-1863 and 1864)
On'
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September 29, 1980 the court enjoined the effectiveness of the amendment and the Commission decisions applying it to the NFS Erwin proceeding until further order.
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3 Subsequent to the Commission's June 26 decisions the terms of two members of the 3-2 majority on the Erwin decision expired and new members were appointed in their place.
The Commission now wishes to reconsider. its decision to (1) adopt a military functions exception to the Commission's procedural rules, and ( 2 )
apply that rule change in the NFS proceeding.
Most particularly comment is sought on the issue of whether the rule if adhered to should only be applied prospectively or whether it should also be applied to a matter where a hearing has already been requested, i.e., to the NFS Erwin proceeding.
"'hc purpccc c# 'ha p*qcccd.cic ic tc.ccc..miau. Uie
-Gommiesion'c ccrlier decici'.nr in thic rcprd - end tc --L ea.cdy the n
possihl o dafar+ that thech-rlierruM'raradept^'withcu t
ac tic; -
g.nMcef NW AccansI&d)sm,
emi-eemmeny If tdhcr e d tc{the rule would conform ~the NRC's
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procedural rules to the exception stated in the Administrative Procedure Act (APA) at 5 U.S.C. 554(a)(4) in order to provide some measure of flexibility in fashioning procedures where mili-tary or foreign affairs functions are involved.
The military and i
1 1
foreign affairs exception would serve the same purposes in our rules as it does in the APA.
It would ensure that delays often associated with the adjudicatory process will not encumber the military or foreign affairs functions of the United States.
It would also serve better to protect the highly sensitive informa-tion associated with both mili.tary and foreign aff airs functions.
Finally, it would enable the Commission to reserve to itself 1
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4 consideration of military and foreign policy issues which only it can resolve and to approach such matters in an informal procedural framework suited to consideration of these issues.,
In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission hereby certifies that this rule change would not have a significant economic impact on a substan-tial number of small entities.
The rule change would affect the Commission's procedures by permitting informal procedures where military functions of the United States are involved.
Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorgan-ization Act of 1974, as amended, and Sections 552, 553, and 554 of Title 5 of the United States Code, notice is hereby given that the Commission is reconsidering its now stayed adoption of the following amendment to Title 10, Chapter 1, Code of Federal Regulations, Part 2.
PART 2 - RDLES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS 1.
The authority. citation for proposed S 2.700a reads as follows:
Authority:
Sec. 161p, Pub.L.83-703, 68 Stat. 948 I
(42 U.S.C.
220lp); 5 U S.C.
554, Pub.L.89-554, Sept. 6, 1966, 80 Stat. 384.
2.
A new section S 2.700a is proposed as follows:
l l
5 S 2.700a Exceptions Consistent with due process requirements the Commission may provide alternative procedures in adjudications to the extent that there is involved the conduct of military or foreign affairs functions.
This rule shall apply to proceedings in progress where hearings have already been requested or ordered.
OR IN THE ALTERNATIVE S 2.700a Exceptions Consistent with due process requirements the Commission may provide alternative procedures in adjudications to the extent that there is involved the conduct of military or foreign affairs functions.
This rule shall not apply to proceedings in progress where hearings have already bee'n requested or ordered.
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Dated at Washington, D.C.
this day of
, 1981.
For the Nuclear Regulatory Commission.
Samuel J. Chilk Secretary of the Commission e
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