ML20049H175
| ML20049H175 | |
| Person / Time | |
|---|---|
| Issue date: | 10/20/1980 |
| From: | Eilperin S NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20049A457 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-157, NUDOCS 8110300077 | |
| Download: ML20049H175 (38) | |
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UNITED STATE 5 NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 INFORMATION REPORT DJUDlCATORY[
October 20, 1980_
SECY-A-80-157
,To:
'Ihe Commissioners From:
Stephen F. Eilperin, Solicitor M
Subject:
URDC v. NRC, No. 80-1328 (D.C. Cir.) (part 21)
Purpose:
For information Discussion:
Enclosed for your information is a brief that we filed responding to NRDC's challenge to the Com-mission's January 23, 1980 decision not to modify 10 CFR Part 21.
In'1978 the Commission adopted a rule change which exempted the manufacturers of commercial grade items fron the reporting _ require-ments of Part 21.
Although the rule change was made immediately effective the Commission sought public comments on those amendments.
NRDC argues that the Commission's decision to make the rule change immediately effective violated the Adminis-trative Procedure Act and the decision' to exempt the manufacturers of commercial grade items violates Section 206 of the Energy Reorganiza cion Act..
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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT s;
No. 80-1328 NATURAL RESOURCES DEFENSE COUNCIL, 5
Petitioner, y
v.
i UUCLEAR REGULATORY COMMISSION i
and UNITED STATES OF AMERICA, i
Respondents.
J l
BRIEF FOR RESPONDENTS ffUCLEAR REGULATORY COMMISSION AND UNITED STATES OF AMERICA SANFORD SAGALKIN LEONARD BICKWIT, JR.
i Ac ting Assis tant Attorney General Counsel General STEPEEN F. EILPERIN ANNE S. ALMT Solicitor JAMES C. KILBOURNE Attorneys U.S. Department of Justice IRWIN B. ROTHSCHILD, III Washington, D.C. 20530 RICEARD A. PARRISH Attorneys Office of the General Counsel Nuclear Regulatory Cecoission Washington, D.C. 20555 October 1980 O
1 9
TABLE OF COlr!ENTS DWi I
QUESTIONS PRESENTED.........................................
~
2 RELATED CASES.......................
2 STATEMENT OF TP.E CASE.......................................
2 A.
Na tu r e o f th e Ca s e.................................
3 B.
State =ent of Facts.................................
3 1.
_ Statutory background _...........................
4 2.
Regulatory development.........................
7 3.
Initial implementation of final rule...........
12 4.
Cor:ner c ial gr ad e rul e change...................
ARGUMENT I.
De Ccn ission Did Not Act Arbitrarily Or Con-trary To Section 206 Of The_ Energy Reorganiza-tion Act of 1974, 42 U.S.C.
5846, In Declining To Include Within The Scope Of Its Rule Pertain-ing To The Reporting Of Defects In Sa f e ty-Items Ihat Are In General _
Related Co=ponents, Comerce And Which Have ho Unique Design Require-15 cents Imposed For Nuclear Application.............
Petitioner's Challenge To he Procedures Used II.
Ev The Comission In Ado <> ting The October 19, N W Amendcents To 10 CFs Part 21, Filed 17 fiontl s Atter The Amendments Were Adopted, Is 24 Un t imely And Wi thou t Me r it........................
29 CONCLUSION..................................................
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CITATIONS Page CASES A.
Judicial Decisions A=erican President Lines, Ltd_. v. Federal Maritime Com'n, 114 U.S. App. D.C. 418, 316 F.2d 419 (1963).....
26 Fort Pierce Utilitie~s Authority _ v. Nuclear Regulatory Commissicn, 196 U.S. App D.C.
79, 28 TD6 F.2d 986 (1979)....................................
- Celler v.
F.C.C.,
24,25,26 19 8 U. S. App. D. C. 31, 610 F. 2d 9 7 3 (19 79 ).............
Guardian Federal S&L v. Federal S&L Ins. Corp.,
191 U.S. App. D. C. 130, 589 F.2d 658 (1978)............
26,28 i
- McAdams, B.J., Inc. v. I.C. C.
25,26 351 F.2d 1112 (8th Cir. 1977)..........................
l Microwave Comunications', Inc. v. F. C. C.,
169 U.S. App. D. C. 154, I t.C~T. 2 d 3 8 5 ( 19 7 4 )............
24.
National Tour Brokcrs Ass '.i v.
'd. S.
192 U.S. App. D. C. 287, 507 f.2'd 7 6 (1978)............
26 t
I North Arina Coalition _ v. NRC, 24 l
174 U. S. App. D. C. 4 2 8, 37J F. 2d 6 5 5 (19 7 6 )............
Porter County Chapter of the Izaak Walton League of America v. AEC, 533 F.2d 1011 (7th Cir. 1976), cert.
27 denied, 4 29TS. 9 4 5 ( 19 7 6 )............................
l
- Siegel v. Atomic Energy Commission, T3 0 U. S. App. D. C. 307, 400 F.2d 778 (1968)............
16,24 Sierra Club v. Andrus, 27 44 2 U. S. 3 4 7 (19 7 9 )....................................
Union of Concerned Scientists v. AEC, 24.
l 163 U. S. App. D. C. 64, 499 F. 2d IIT6Y (19 74)............
l 1
Cases chiefly relied upon are marked by asterisks.
11 l
(
MG B.
Administrative Decisions Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-444, 6 NRC 760 (1977).............
27 STATUTES Administrative Orders Review Act 24 28 U.S.C.
2344.................................
Administrative Procedure Act 26 5 U.S.C.
553(b)........................................
Atomic Energy Act 24 42 U.S.C. 2239 (f 189).................................
3 4 2 U.S.C.
2 2 8 2 ( f 23 4 ).................................
s Authorization of Appropriations for Fiscal Year 1980, Pub. L. No. 9 6-29 5, 1206, 94, Stat.
780......................
3 Energy Reorganization Act of 1974 3
42 U.S.C.
5801......................................... passic 42 U.S.C. 5846 ($
206).................................
REGULATIONS 21.............................................. passim 10 CFR Part 6
10 CFR 521.3(a).............................................
9,18 1 0 C FR 5 21. 3 ( a - 1 )...........................................
13 10 CFR 121.3(c-1)............................................
6 10 CFR 521.3(d).............................................
6 1 0 C F R 5 21. 3 ( k ).............................................
27 1 0 C FR 5 21. 4................................................
11 1 0 C FR 1 21. 7................................................
6 10 CFR f21.21...............................................
6 1 0 C FR 1 21. 31...............................................
6-1 0 C FR f 21. 51...............................................
18 10 C FR 5 21. 51 ( b ) ( 2 ).........................................
21,22 10 C FR Pa r t 5 0, App e nd ix B..................................
23 10 CFR 550.55(e)(1).........................................
iii
Pago FEDERAL REGISTE) NOTICES 4
4 0 Fe d. Reg. 8 8 3 2 (Mar ch 3, 19 7 5)...........................
5 4 0 Fed. Re g. 8 8 3 3 (Ma r ch 3, 19 7 5 )...........................
42 Fed. Reg. 28892 (June 6, 1977)...........................
7 4 2 Fed. Reg. 2 8 89 4 (Jun e 6, 19 7 7 )...........................
6 4 2 Fed., Reg. 28895 (June 6, 1977)...........................
-6,11 43 Fed. Reg. 48621 (October 19, 1978).......................
13 45 Fed. Reg. 53834 (August 13, 1980)........................
14 NRC REGULATORY GUIDES
" Reporting of Operating Information -- Appendix A Tec mical Specifications", Regulatory Guide 1.16, 23 Rev. 4 (1975)...............................................
" Quality Assurance Requirements for Control of Pro-of Items and Services for Nuclear Power Plants",
curement Regulatory Guide 1.123, Rev. 1 (July 1977)..................
22
" Remarks Presented (Questions / Answers Discussed) at Public Regional Meetings to Discuss Regulations (10 CFR Part 21) for Reporting of Defects and Noncompliance, July 12 - 2 6, 19 7 7", EREG-0 3 0 2, Rev. 1......................
7, 8, 2 7
" Initial Test Programs for Water-Cooled Nuclear Power Plants", Regulatory Guide 1.68, Rev. 2 (August 1978)........
23 CONGRESSIONAL MATERIALS Fause Conf. Rept. no. 93-1445, 93rd Cong., 2d Sess. 37 (1974)..............................
4,17,19 Hearings on " Investigation of Charges Relating to Nuclear Reactor Safety", before the Joint Co=mittee on Atomic Energy, 94th Cong., 2d Sess.
(1976)...............
21 Oversight Hearings on the " Reactor Safety Study Review",
before the ~ Subcommittee on Energy and the Environment of the House Cocenittee on Interior and Insular Affairs, 21 96th Cong., 1st Sess.
(1979)................................
S. Rep.93-980,' 93rd Cong., 2d Sess.
(1974).................
17 MISCELLANEOUS U.S. Department of Jus tice, Attorney General's Manual on the Administrative Procedure Act (1947)..................
27 iv varmn=x -rwv.:propy,:n gg,wmyyyggegarw>nascqpr;;m.n _..m,;,exp,mer
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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
)
NATURAL RESOUPCES DEFE1:SE COUliCIL,
)
)
Petitioner
)
~
)
)
No. 80-1328 v.
)
UUCLEAR REGULATORY COMl!ISSION and
)
UllITED STATES OF MIERICA,
)
)
Respondents.
)
)
BRIEF FOR RESPCMDEl;TS NUCLEAR REGULATORY COM11ISSIOli AliD UNITED STATES CF Al! ERICA QUESTIONS PRESEUTED 1.
thether the Nuclear Regulatory Com:nission acted arbitrarily or contrary to Section 206 of the Energy Recrgan-1 ation Act of 1974, 42 U.S.C. 5846, in declining to include within the scope of its rule pertaining to the reporting of defects in safety-related components, itens that are available in general coccerce and which have no unique design require-ments imposed for nuclear application.
2.
Whether this Court has jurisdiction to conside:
a challenge to the procedures by which the Commission's October 19, 1978 tecedittely effective rule change was adopted, where the petition for review was filed more than 17 months after the rule change.
_ ~. _
~ ----- -
- -. _,,, _ _ _, n _ - _ -
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RELATED CASES Counsel is not aware of any related case before this court or any other court.
STATEMENT OF THE CASE l
A.
Nature of the Ccse l
The Natural Recources Defense Council, Inc. (NRDC) seeks review of a January 23, 1980 letter from the Cha!rman of 4
that the the Nuclear Regulatory Commission denying its request Concission rescind certain a=endments to 10 CFR Part 21.
(App.
2-3)
The Commission had adopted the amendments on October 19, 1978, without notice and comment, through the issuance of an immediately effective rule clarifying that items that are avai1-able in general commerce and wh4ch have no unique desi.gn require-ments imposed for nuclear application, are not within the scope of the Commission's rule pertaining to the reporting of defects 1
in safety-related components.
The October 19, 1978 Commission order invited public f
cor _ent on the, immediately effective clarification, stating that the Commission would make changes to the rule if warranted, and advising that comments received prior to December 18, 1978 would be particularly useful in evaluating the need for further changes.
NRDC submitted comments on March 2,1979 seeking repeal of the October 19, 1978 amendments.
The Chairman of the Commission denied that request in his January 23, 1980 letter to NRDC.
On March 24, 2
@.75$EWAW$ifdbNd$bMNMINI5NNh7N75WR#FM
1980 NRDC sought judicial review of che denial.
URDC claims th;t-the October 19, 1978 amendments violate Section 206 of the Energy Reorganization Act of 1974, and that the Commission violated th2 Administrative Procedure Act' by promulgating the' amendments without first soliciting public comment.
t B.
Statement of Facts.
t 1.
Statutory background In 1974 Congress enacted the Energy Reorganization Act, 42 U.S.C. 5801, et seq, creating the Nuclear Regulatory Cornis-sion to succeed to the licensing and regulatory responsibilities of the Atomic Energy Commission.
Section 206 of the Energy Reorganization Act requires individual directors and certain corporate officials of firms constructing, operating, owning, or supplying the components of a Commission licensed facility or activity to report to the NRC (a) failures to cocply with regu-latory requirements and (b) " defects" in " basic components" which cay result in a " substantial safety hazard", unless the of ficial has actual knowledge that the Commission has already been inforced i
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of the defect or failure to comply.
Congress authorized a civil 1
I fine of up to $5,000 a day, with a maximum fine of $25,000 in a thirty day period for knowing and conscious violation of the f
t reporting requirement. 1/
f II In 1980 Congress amended Section 234 of the Atomic Energy Act, 42 U.S.C. 2282, to raise the civil penalty limit to
$100,000 per violation.
Authorization of Appropriations
)
for Fiscal Year 1980, Pub.L. No.96-295, f 206, 94 Stat.
J i
780.
i 3
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The primary purpose of Section 206 of the Energy Reorganization Act is to assure that "the Commission has prompt information concerning defects in major components of facilities subject to licensing which could create a substantial safety t
s a
Eouse Conf. Rept. Uo'. 93-1445, 93rd Cong., 2nd Sess. at
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hazard".
37 (1974).
The key statutory terms " basic component", " defect",
and " substantial safety hazard" were lef t by Congress for the Commission to define through rulemaking, the conferees specifica11) noting that "[t]he Commission is required to adopt regulations promptly, with a view to defining the types of defect required to
)
be reported relating to manufacture, assembly, installation, and iL.
operation."
Ibid.
Because the safety related systc us in nuclear power t
I plants are composed of a cultitude of components, and cocponents l-of a multitude of parts, the task of defining the reach of the new section was far from apparent.
This was especially so because
.[
Section 206 was the first statutory provision snacted by Congress i
to impose regulatory requirements on individuals not otherwise i
subject to Commis sion licensing authority.
l i
2.
Regulatory development In.1975, the Commission published a proposed rule that k
would have applied the Section 206 reporting requirements to any entity that was contractually responsible for delivery of a " basic
>A h
component".
40 Fed. R_eg. 883 2 (Mar ch 3, 1975).
( Supp. App. 1-3 ).
l i
A " basic component" was defined as
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any component, structure, system or constituent part thereof, supplied for or utilized in a facility or activity subject to the licensing requirements of Parts 30, 40, 70, or 71 of this chapter (10 CFR Chapter I] in which a defect or failure 'to comply with any applicable regulation in this chapter, orde or license issued by the Commission could create a substantial safety hazard.
- 40. Fed. Reg. 8833,
(March 3, 1975).
(Supp. App. 2)
The Commission received 146 comments.
A substantial numbcD,
including those from Westinghouse Electric, Commonwealth Edison, South Carolina Electric and Gas, lussissippi Power and Light, Combustion Engineering, Duke Power, Arizona Public Service and Con Edison, took issue with this proposed broad definition of basic component, and urged the Commission to adopt a narrower approach.
It was their view that many of the sub-tier suppliers would withdraw from the nuclear market if manufacturers of items not specifically designed for use in nuclear power plants were covered by the reporting requirement.
They explained that suppliers far down the supply chain would be unwilling to be f
subject to the reporting requirements, especially because in many cases the supplier would have no knowledge of the ultimate use of his product, and would be unwilling to subject his entire production to Part 21.
The final rule adopted by the Commission on June 6, 1977 added a new Part 21 to the Commission's regulations and defined " basic component" for nuclear power plants as follows:
a plant structure, system, component or part thereof necessary to assure (1) the integrity of the reactor coolant pressure boundary, (2) the capability to shut down the reactor and maintain it in a safe shut down condition, or (3) the capability to prevent or miti-5
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gate the consequences of accidents which could result in potential offsite exposures comparable to those referred to in [10 CFR 5 100.11).
42 Fed. Reg. 28894, 10 CFR $ 21.3(a).
The final rule also defined the terms " defect" and " substantial safety hazard" and required inter alia that etch contract entered into for the purchase of a facilsoy c: a basic component after January 6,1978 include a clause subjecting the order to 10 CFR Part 21. 2/ Under the regulations if a manufacturer / supplier of a basic component discovers a defect in a product after he has delivered the com-ponent to its purchaser, he is required to attempt to determine whetber tae defect could create a substantial safety hazard and must notify the purchaser.
If he is unable to make that safety determination the purchaser is to be so informed, and the pur-chaser is transferred the responsibility of eveluating the defect.
the 1cuer tier suppliers are unab)g to determine the safety If s.gnificance of the defect the ultimate determination must be made by the licensee.
42 Ped. Reg. 28895, 10 CFR f5 21.21 and 21.51.
Because of the uniqueness of a reporting system applying to thousanda of non-licensees and the lack of agency experience 1:. implementing c reporting regime of that scope, the Statement of Consideration accompanying the rule included the following statement:
See 42 Fed. Reg. 28894-28895,10 CFR f f 21.3(d), 21.3(k),
'/
2 and 21.7TT c
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The Commissioa intends to examine closely the 21 with a view to making implementation of new Part any clarifying or other changes that may be war-ranted in light of experience.
In particular, insufficient experience has been accu =ulated to this the writing of a detailed regulation at permit time that would provide a ?recise correlation of is a all f actors pertinent to the question of what significant safety hazard.
Part 21 is intended in J
this regard as an initial effort to identify a nurber of the factors involved with the question 7
safety hazard.
Further, additional of significant i
guidance in the form of regulatory guides may be j'
developed should experience with the application of Part 21 indicate the need for such guidance.
In this regard, we expect that the implementation 3
efforts of the staff and those subject to the rule, I
~
and the views of interested members of the public, k
should provide the necessary data base for such 42 Fed. R_eg. 2889 2.
e e
further guidance.
3.
Initial implementation of final rule N
a' The definition of " basic component" which the Com:-i s -
~
sion had adopted, see pp. 5-6, supra, uas in terms of the function crved by the component but did not make clear how far doun the 4
supply chain the reporting require =
t was to extend.
Ictidiately jj after publication of the final rule, numerous requests for clarif-f ication cace in from the nuclear industry.
During July of 1977, j
the NRC staf f held five public regional meetinEs to discuss imple-3#
centation of Part 21 and to answer questions about the rule.
One frequently raised question concerned how far down the.icts
[
t of suppliers Part 21 was to be applied.
As noted earlier, supr a
- p. 4, the procure:ent of parts, equipment and supplies needed to 7
(
M These meetings are sue =arized together with clarifying guidance in NUREG-0302, Rev. 1, Recarks Presented at Public Regional P.eetings i
(Questions / Answers Discussed) to Discuss Regulations (10 CFR Part 21) for Reporting of j
Defects and Nncompliance, July 12-26, 1977."
.... ~ _
c- - _
construct and maintain nuclear power plants involves a multi-tier procurement chain.
At the top of the chain is the electrical utility and the utility's major contractors such as the nuclear stean systen supplier. - The next level includes manufacturers who -
produce components specifically designed for nuclear power plants such as reactor pressure vessels, nuclear instrumentation and controls, and eajor piping, pumps, and valves.
These manufacturers in turn procure necessary parts such as resistors, utring, solid state devices, and hardware -- parts used throughout industry and not specifically designed for use in a nuclear power plant from a multitude of sources.
Ultimately, the procurement chain such for such itecs goes back to the supplier of the materials, the as manufacturers of steel and copper, and eventually ends at mines where the necessary ores are procured.
the regional tectings !!RC staff indicated that At
"[t]he entire supply chain involved in the production of a basic component for a power reactor that could create a substantial safety hazard, because of a defect in the coaponent is within the i
scope of Part 21 ** bl Under this approach all suppliers of the to Part 21 parts that cake up a basic cocponent would be subject reporting requirements.
The expansive reach of this approach is illustrated by considering the parts of a valve used in a safety related system in a nucicar power plant.
Valves frequently are made of a nultitude of parts including:
a valve body, a
~
bonnet and associated bolting, a gate, disc or plug, a stem, seats, packing, a packing gland, follower and related bolting, j
I See UUREC-0302 Rev. 1, supra note 3, at 7.
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seal rings, valve yoke for counting of accuator and/or ~and wheel, and an assortment of small parts related to accessur.r.
such as nuts and bolts.
P.any of these parts such as the vel m stem, the packing, and the nuts ~and bolts are not specifical.f J
designed for use in nuclear power plants, have numerous other
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cocoon uses, and may be purchased from a catalog or "off the shelf".
i The staff's interpretation that all tiers of supply of safety-related components were covered by Part 21 created severe problets for the nuclear industry.
The problets parallel in many Vj respects the concerns expressed by the industry in their coc=ents 1
on the Commission's proposed rule.
Some suppliers
.f "coc=ercial I
grade ite=s" El derived auch a small portion of their sales from 5
I) supplying the nuclear industry that they chose to forego the i
business entirely rather than be subject to the stiff civil -
d penalties that a failure to comply with Part 21 could bring.
1 Others, for exacple, canufacturers who sold their entire prcduction y
to a distributor, refused to be subject to Part 21 because they could not identify those co==ercial grade itecs that might have 7
nuclear end uses.
These suppliers refused to subject their entire production to the NRC regulations.
The inclusion of Part 3
i 21 require =ents in procurement contracts for coccercial grade j
1 4
items resulted in some firms being unable to cbtain necessary components, and in other cases having to procure then from f
SI A "co==ercial grade" item is one that is not specifically designated for use in a nuclear power plant, has other com=on uses, and may be purchased from a catalog or "off the j
3 shelf".
10 CFR I 21.3(s-1).
I
?
9
i r
These effects are wall suppliers they considered less dependable.
docueented.
The General Electric Company, which is a major nuclear supplier, a manufacturer of reactors and also a supplier of con =ercial grade items, announced it would no longer accept
{- r to Part
[
orders for commercial grade items that would be subject 21.
In a letter to the NRC it stated:
It has been General Electric's experience as a manu-facturer of products which are applied in nuclear plants (cable, meters, switchgear, transformers, etc.)
that at some point in the procurement chain, and often very early in the chain, a supplier vill conclude that 7
the inconvenience and ecmplexity of com>11ance and E-to 10 CFR resulting risk of accepting an order subject 1-concensurate with the business benefits involved.
As a result of the frequency with which I
21 are not and this has occurred, Ceneral Electric departments, their suppliers, have been unable to accept orders
'~
subject to 10 CFR 21. 6/
Combustion Engineering System, a manuf acturer of reactors, wrote :-
6
+
Combustion Engineering is also encountering refusals by sub-tier vendors to supply components and sarvices subject to Part 21.
. Such responses can e.fec-tively halt our >rocure=ent abQities and will jeopardize our a'>ility to supp ers the construction and operation of nuclear power plants.
Although it may be possible to find alternative vendors who will accept the paperwork and other j
burdens of 10 CFR 21, we are very much concerned j
that our inability ta place prchase orders with proven suppliers may adversely impact component ij quality and reliability. 2/
- i The President of the National Electrical Manufactures e
Association, the principal trade association of the electric
]
letter from James F. Young, Vice President of General Electric, il to Guy A. Arlotto, Director, Division of Engineering Standards,
URC, May 31, 1978, Attachment I at 3.
(App. 80) 3 Manager, Combus tion Letter from A. E. Scherer, LicensinE 7/
Engineering, to Jaees B. Kelley, Acting General Counsel, URC, July 7, 1978.
(Supp. App. 4).
......_...m.
manufceturing industry, cssorted that:
[w] hen orders are placed ' subject to the provisions of 10 CFR 21' at low levels in the supply chain, there simply is no good business reason to accept them.
For this reason it is difficult for contrac-tors producing installations subject to regulation by the Nuclear Replatory Commission to assure tvailability of all component parts needed to -
complete the installation. 8/
The Tennessee Valley Authority, the nation's lary".
nuclear utility, wrote that it had:
crperienced difficulty in procuring cocmercial grade components from many manufacturers who had been servicing the nuclear industry because they refused to supply their products under Part 21.
Since the nuclear business constituted such a small percentage of their total business, these manufacturers were villing to lose this business.
Therefore we had to consider obtaining equipment from a considerably smaller selection of suppliers which eliminated a portion of the competitive market.
Additionally, some of these manufacturers were the only suppliers for certain components needed for nuclear service in TVA's design.-
In those cases we have had to con-sider redesign (usually more expensive or less effi-cient) to allow procurement of different components that could be obtained under Part 21. 9/
Af ter the industry began to discover its difficulties in procuring necessary components because of the interpretation placed on Part 21, the Cocaission started to receive exemption requests from supp1!.ers of commercial grade items.1El In a OI Letter from Bernard H. Falk to Lee V. Gossick, Executive Director for Operations, NRC, July 7,1978.
(Supp. App. D EI Letter from L. H. Mills, Manager Nuclear Regulation and Safety, TVA, to the Secretary of the Commission, dated 6, 1979, (Supp. App. 9)
This letter was written August in response to NRC's request for comments on another TVA sup?orted the rule change and described the matter.
problems it had before the change.
rovide that the Commission may grant exemp-ASI Therefulations 1 if they are " authorized by law and vilj tions rom Part not endanger life or property or the common defense and 42 security and are otherwise in the public interest."
Fed. Reg. 28895,10 CFR { 21.7.
relatively short period of tice the Coccission received approxi-The NRC staff anticipated that ma tely 23 exemption requests.
scores more uould be received in the ensuing conths, and esti-mated, based on experience, that each, exemption request would require approxicately 6 man vecks of professional staff time to See SECY 78-496 (September 8, 1978).
process.
i 4.
Commercial grade rule change, Clarification of the reach of Part 21 was in order, and on September 8, the staff recocmended to the Commission adoption
]
I of amendments to Part 21.
Ib id.
Shortly thereaf ter, on October
}
i the Comnission published an immediately effective rule 19, 1978, which exempted commercial grade items from Part 21 requirements
~
until such item became designated for use as a basic cenponent for a nuclear power plant.
In adopting the amendments the Com-
}
mission stated:
Part 21 defines a " basic component" subject to the reporting and other requirements of the rule.
to inquirics during and subsequent to In resoonse the public regional ceetings relating to ' off-the-shelf" or " catalog" items, the staff provided guidance that such items may be within the scope j
i of 10 CFR Part 21 depending on the circumstances l
at the tice of
>rocurecene.
This guidance has been construed by numerous organizations to mean that the requirecents of 10 CFR Part 21 app y to canufacturers and distributors who are invo ved to any extent in supplying basic components, or parts of basic components, of a facility or activity q
including suppl ing base material or functional assemblies to e e manufacturer of the " basic compo-nent."
This meaning has led to the imposition of f
10 C"R Part 21 at a procurement stage where there are no design or specification requirements that are unique to application of the item at a nuclear facil-icy or activity, e.g., relays.
12
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me-i
~
The use of this meaning of basic components has not improved the quality of such items and, therefore, has Instead it is causing cost not enhanced safety.
increases and inability to obtain needed supalies.
To the extent that the purchaser is unable to obtain a needed item from the most oualified supplier and must turn to other less qualified suppliers, defining batic
~
component to ' include such an item may to some extent from safety.
To relieve the conditions that detract are resulting from the above interpretation and to mits-gate this potential reduction of safety part 21 is bein;-
amended to remove from the scope of 10 CJR Part 21, those items of during specific stages of procurement, a commercial grade, e.g., bearings, relays, a bar stock (1) not subject to design or specification that are requirements unique to facilities or activities licensed by the Commission, (2) used in applications other than al facilities or activities licensed by the Commission, and (3) abic to be ordered from the manufacturer /
distributor on the basis of the manufacturer's published specifications.
At a defined stage of pro-when the item is " dedicated" to a " basic
- curement, component" (see 10 CFR 21.3(c-1)) the item will become subject to the requirements of 10 CFR Part 21.
Id.
Under the amended regulations " dedication" of a. commercial grade item " occurs after receipt when that item is designated for use as a basic component."
10 CFR $ 21.3(c-1)
The Commission also reserved the right to inspect manufacturers / suppliers of commercial grade items where reasonably necessary to aid in the identification of defects and noncompliance reported by licensees and suppliers covered by Part 21.
In choosing to make the rule change Oncediately effec-tive the Commission explained:
Since the amendments are intended, in part, to respond to a number of requests for exemptions from 10 CFR Part 21 which c4y be necessary to insure the continued availability of components for the nuclear industry and since the amendments 13
.--.y___
l narrow the scope cf the regulation thereby relieving a restriction on persons subject to any significant adverse safety it, but withoutthe Commission has found that consequence, good cause exists for omitting notice of pro-posed rulenaking and public procedure thereon as unnecessary.
The Concission, nevertheless, invited public comment on the 21 in order to amendments and other portions of 10 CFR Part evaluate the need for any further change to Part 21, asking for comments by December 18, 1978.
Nineteen comments were sub-Most were requests by suppliers for confirmation that a mitted.
21 until given item was a commercial grade item exempt from Part dedicated for use in a safety-related component.
Only two com-Petitioner NRDC and the menters disagreed with the rule change.
Union of Concerned Scientists (which is not a party to this liti-comments on Parch 2,1979 and urged the gation) submitted joint Commission to repeal the amendment, arguing that the rule change was unnecessary and inconsistent with the intent of Congress.
(App. 9-23)
They also asserted that the Commission should have sought public comments before making the rule change.11/
On January 23, 1980, after evaluating the comments, the Commission the Chairman of the Commission vrote NRDC that 21.
(App.
had decided not to make further amendments to Part 11/
In addition, NRDC and UCS suggested that all proposed NRC regulations be preceded by an advance notice of intentThe Commis to develop a regulation.
After portion of their comments as a rulemaking petition. solic denied the rulemaking petition, 45 Fed. Reg. 53834 ( August The denial of the rulemaking petition is not at 13, 1980).
issue in this proceeding.
14 M M 9F 3T3H M Q W M Q7{7( g g yp'$ g gT g y g g g g
i 2-3)
In rejecting the NRDC position the Commission stated the it:
. did not intend that the original Part 21 would reach to every level of manufacturer / supplier.
Indeed, we do not interpret Section 206 of the Energy all Reorganization Act as requiring regulation at levels.
On March 24, 1980 NRDC sought judicial review of that Commission refusal to rescind the October 17, 1978 amendments.
APGUMENT I.
We Commission Did Not Act Arbitrarily Or Con-trary To Section_ 206 Of The Energy Reorganiza-
- tion Act Of 1974,__42 U.S.C. 5846, In Declining To Include Within The Scope Of Its Rule Fertain-ing To The Reportinz Of Defects In Safety-Related Components, Items _Taat Are In General Commerce And Which Have No Unique Design Requirements Imposed For Nuclear Application he crux of NRDC's argument is that Congress intended the manufacturers / suppliers of all components that would be that used in a safety-related system of a nuclear power plant were to lie be covered by Section 206 of the Energy Reorganization Act.
think such a result is not mandated by the language of Section 206, overlooks the considerable discretion Congress intended the Commission to have in working out this new reporting requirement, is at odds with practical considerations the Commission was empowered to take heed of, and does not noticeably add to nuclear reactor safety.
15 m em werae rremp3yn: egg;yggarefire,iw. swmemwistw.ye.wteggwuwsspre
m.s.
s The text.of Section 206 does not obliga the Commission to extend its coverage, without interruption, to the bottommost tier of the procurement chain.
The pertinent language of the statute reads :
"Sec. 206.
(a) Any individual director, or respon-sible officer of a firm constructing, owning,ity or operat-ing, or supplying the components of any facil activity waich is licensed or otherwise regulated to the Atomic Energy Act of 1954, as amended, pursuant or pursuant - to this Act, who obtains information reasonably indicating that such facility or activity or basic components supplied to such facility or activity --
"(1) fails to comply with the Atomic Energy Act of 1954, as amended, or any applicable rule, regulation, order, or license of the Commission relating to substantial safety hazards, or
"(2) contains a defect which could create a substantial safety hazard, as defined by regula-tions which the Comm1ssion shall promulgate, shall immediately notify the Commission of such failure to comply, or of such defect, unless such person has actual knowledge that the Commission has been adequately informed of such defect or failure to comply.
Imat kinds of #irms should ba considered suppliers of
" basic components" having substantial safety significance to so complex a mechanism a; a nuclear power plant is, as Congress recognized, a matter of informed judgment for the Commission to
- decide, here, as in the Atomic Energy Act, see Siegel_ v. Atomic Energy Commis sion,130 U.S. App. D. C. 307, 400 F.2d 778 (1968),
Congress vested the Commission with discretion to adopt a suit-able regulatory plan.
this.
As The legislative history was explicit about the Conference Report put it:
16 YNhhh
$hhhh4 th
_ m --
--~__-,.
Generally, this section (section 206] is directed toward assuring that the Commission has prompt.
information concerning defects in major components of facilities subject to licensing which could create a substantial safety hazard.
The Commis-sion is_ required to c3 opt regulations promptly, with a view to defining the types of defece recuired to be reported relating to manufacture, ar,sembly, installation, and operation..This pro-vision will enable Commission agents and employees to enter business premises and make such inspec-tions as are necessary under regulations promul-gated by the Commission.
(emphasis added) H. Rep.
93-1445, 93rd Cong., 2d Sess. (1974) at p. 37.
Similarly, the report of the Senate Committee on Government Operations, the committee which added to the Energy Reorganiza-tion Act the provision that became Section 206, explained:
Subsection (a) requires any Director, officer and employee of any licensed nuclear facility, or of any firm constructing or supplying components to such a f acility, to report immediately to the Commission information reasonably indicating (1) failure to comply with the Atomic Energy Act or regulations of the NSLC or (2) any defect nich could cause a sub-stantial safety hazard, unless he actually knows the Commission already has been informed.
The committee intends, and the provision so states, that only
" basic" components are covered by this requirement defects, as distinguished trom incidental to report components unrelated to the safety of a nuclear facility.
(emphasis added)
- 5. Rep.93-980, 93rd Cong., 2d Sess. (1974) at 70.
The Committee's reference to the fact that the nature of the reporting obligation went to the failure to comply with Atomic Energy Act requirements or to defects which could cause a sub-stantial safety hazard to a nuclear power plant, indicates that Congress expected the section to cover chose suppliers of parts who vere aware of the substantial safety function their products served in the workings of a basic component of a nuclear power 17 WMENEFswielutaisaget;gtsergswesssimisswr,eAwspiusu:pien
plcnt.
These the Commission covered by including within tha scope of Part 21 parts whose design or specifications cro unique to a nuclear power plant.
10 CFR $21.3 (a-1).
How much further down the procurement chain the Com-mission should reach was a matter of judgment.
That the Commis-sion did reach further is apparent from 10 CFR $21.51(b)(2) which obligates a covered person, who is not competent to evaluate the significance of a safety defe:t in the product, to pass the information of a defect up the line until it reaches a person competent to assess the defect's significance to nuclear power plant functioning.
But the Commission realistically could not, ard as a matter of prudent safety regulation need not, have stretched the reporting requirements to encompass industry at large no matter how distant or unknowing was the link to a nuclear power plant safety system.
The Com61ssion was obliged to draw a line and it did so at commercial-grade items, parts that by definition were "(1) not subject co design or specification require-ments that are unique to (nuclear power plants)
. and (2) used in applications other than (nuclear power plants) and (3) to be ordered from the manufacturer / supplier on the basis of specifications set forth in the manufacturer's published product description (for example, a catalog)."
10 CFR $ 21.3(a-1).
l (emphasis added) i This was not an unreasonable line to draw given the vast array of parts that go into a nuclear power plant (our valve illustration, supra, pp. 8-9, gives some idea of the
}
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'L dimension of the issue), the self-defeating nature of unin r m1 i [
coverage principle which leads to important parts suppliert k
abandoning the small portion of their business which may have e
,g a nuclear end use, _ supra pp.10-11, and the alternative regula-j tory methods the Commission uses to test the functioning of parts important to nuciear power plant safety.
~
Contrary to 17RDC's claims the legislative history p
does noc establish that Congress intended t. hat manufacturers /
8*
suppliers of bolts, nuts, valve packing, vire and other com-mercial grade items would be subject to Section 206.
The Conference Committee report, the most authoritative source of a
legislative history, states that Section 206 was intended to y
r g
cover " defects in major components of facilities subject to q
O[
licensing which could create a substantial safety hazard"
)
(emphasis added).
H. Rep. !!o. 93-1445, 9 3rd Cong., 2d Sess.
il d
(1974), at p.
37.
Commercial grade items are generally not h.
considered major components.
Major components are items j
specifically designed for use in nuclear power plants.
3 q
So too the interpretation of Section 206 advanced by a
7 petitioner does violence to Congress ' expectation, expressed in the Se na te Cocnnitt ee Repor t, that Section 206 would " benefit electrical utilities" by improving plant reliability and f
reducing costly shutdowns.
Under the approach advocated by j
11RDC, electrical utilities found they were having difficulty f
procuring co=tercial grade items.
In some cases purchasers 1
I were required to procure commercial grade items from suppliers i
I f
19
!R EF M N O F6#5 W5R ESRR Es s fc@stM g m u
=
~. -
that they had not previously dealt with, and had concerns that these substitute suppliers were not as reliable as their previous suppliers.
The Tennessee Valley Authority, the largest electrical utility in the nation, expirienced difficulty in procuring necessa:y commercial grade components because many manufacturers refused to accept orders subject to Part 21.
TVA was forced to conside-redesigning its nucicar power plants to allow procure-ment of different components.
There is nothing in the legisla-tive history to suggest that Congress expected the Connission to adopt a regulatory definition of Section 206's scope that would cause serious problems and reverely harm electrical utilities by impeding their ability to obtain necessary cocponents with the potential undesirable consequences of using unproven suppliers, and reducing plant reliability.
Nor does the Commission's interpretation of Section 206 create a serious regulatory gap.
This last point deserves A
scoe e=phasis because NRDC's position not only is impractical,
, bet it also is founded on the mistaken assumption that Section 206 provides the only regulatory protection against a defective part working its way Lnto a nuclear power plant safety system.
Again the valve illustration is a good one.
V.any of the perts of valves that are used in safety related systems are especially designed for use in nuclear power plants, and accordingly the manufacturers of these parts are subject to Part 21.
With respect to the commercial grade items that are part of i
20 4
~
~;
f l
L' the valve, such as nuts and bolts, the Commission's quality assur-ance regulations, 10 CFR Part 50, Appendix B, provide adequate i;
I' assurance that these parts will perform satisfactorily in service, f.
Together. these two programs satisfy the Congression~al expectation
~~
I that the NRC develop a program which reasonably ensures that I
defects in components used in safety-related systems are dis-ti!'
covered before the parts are installed in nuclear reactors.
The Coc=ission's quality assurance regulations require nuclear power plant licensees to establish an effective quality i
assurance program covering all safety related components --
_=
Y including commercial grade items. 12/
The licensee has the
=,
responsibility for the performance of systems which are needed to maintain the safety of the plant.
ThusSection VIII of 10 CFR part 50, Appendix B calls for measures to be established for l
J the identification and control of materials, parts, and components I
I the use of incorrect or defective material, parts and to prevent components.
The licensee of a power plant must maintain a I
clearly catablished chain of responsibility to assure this j
result.
If one of the organizations in this chain should decide to use a commercial-grade component, it then becomes the respon-t sibility of that organization to make certain that that component will be entirely adequate for the job.
The quality assurance of 12/
Part 50, Appendix B, Introduc tion.
Those quality assurance regulations have been fully explained to Congress.
Hearings on " Investigation of Charges Relating to Nuclear Reactor Safety"2nd Sess. (1976),, before the Joint Committee on Atomic En Cong.,
at pp. 885-912: Oversight Hearings on the " Reactor Safety Study Review", before the Subcommittee on Energ, and the Enviromment of the House Committee on Interior and Insular Affairs, 96th Cong.,1st Sess. (1979),
at 99.
e-
,.m.
~
. ony commercial-grade component in a safety system is t..e user's If a part does not meet its advertised specifi-responsibility.
cations, the quality assurance program of the user should assure it is not accepted and used in a safety-related system.
that To the This is enforced through a variety of means.
extent necessary, procurement documents must require that con-tractors or subcontractors provide a quality assurance program consistent with the Cocmission's quality assurance requirements.
The utility must also 10 CFR Part 50, Appendix B, a;Section IV.
institute a program which ensures that the material purchased In some cases a conforms to the procurement requirements.
producer of a commercial grade item will provide the purchaser with a certificate of conformance indicating that the product In cases where such conforms to the procurement requirements.
supplied, the subcontractor, the contractor, a certificate is not or the licensee must perform inspections or tests to ensure that the component is not defective.
Id. at Section VII.
The utility 5
is required to maintain records of the results of those inspec-the tions and tests and must establish measures which prevent Id. at Section inadvertent installation of a defective component.
The purchaser of components must also evaluate the capability XV.
of a supplier to provide items or services in accordance with the requirements of the procurement documents before placing the order, 11/ and the utility is under a continuing obligation entitled See Regulatory Guide 1.123, Rev.1 (July 1977),
12/
" Quality Assurance Requirements for Control of Procurement of Items and Services for Nuclear tower Plants".
22
--~
s e
throughout the lifetime of the plant to report defects in
.n. t;-
related-components. 14/
The Commission carefully monitors the utility quali:y assurance program.
Before a license is issued the staff nust approve the program.
The staff also periodically conducts' audits i
to ensure that the program is being effectively carried out.
A failure to maintain the required standards subjects the licensee to civil penalties.
Moreover, as part of the quality assurance program, before a nuclear power plant is permitted to operate at full power it must go through an extensive start up test program, the major purpose of which is to make sure that structures, systems and components important to safety are properly designed and free of defects. 11/
In sum, the Commission's Part 21 regulation, and its exclusion of commercial-grade com:7nents from the Section 206 reporting requirements must be viewed against the practicalities of establishing a reporting requiremgnt throughout an extended procurecent chain and the other regulatory requirecents the Comnission uses to ensure that defects in com=ercial grade items which could have substantial safety significance are discovered before a nuclear power plant is permitted to operate.
Cong:ess has vested the Commission with wide latitude to settle upon a 15/
See 10 CFR 550.55(e)(1).
Information regarding the contents of these reports is set forth in Regulatory Guide 1.16. Rev.
4, entitled, " Reporting of O A Technical Specifications" perating Information -- Appendix (1975).
The reporting require-ments are.also contained in the plant's technical specifica-tions which are part of its license requirements.
~
15/
See Reg. Guide 1.68, Rev. 2, entitled " Initial Test Programs for k'a ter-Cooled !!uclear Power Plants" ( Augus t 1978).
23 1
.,. _ _. ~ -.
~
= := waxw =' -- -----
a regulatory program -- a discretion termed " virtually unique" by chis Court.
Siegel v. AE_C, 130 U.S. App. D.C. 307, 400 F.2d 778, E
783 (1968); see also North Anna Coalition v. NRC, 174 U.S. App.
D.C. 428, 533 F.2d 655 (1976); Unicn of Concerned Scientists v.
AEC, 163 U.S. App. D.C. 64, 499 F.2d 1069, 1086 (1974).
The Commission's Part 21 regulations challenged here are well within the permissible range of Consnission discretion.
II.
Petitioner's Challenge To The Procedures Used By 'Ihe Coc: mission In Adopting The October 19_,
19 78 Amendments To 10 CFR Part 21, Filed 17 lionths Af ter 'Ihe Amendments Were Adopted, Is Untimely And Without Merit j
'Ihis court lacks jurisdiction to consider NRDC's argu-ment that the Commission should have sought public coc=ent before promulgating the October 1978 amendments to Part 21.
'Ihe petition for review was filed more than 17 months after the Commission issued its in=ediately effective rule and hence is unti=ely.
Under the Administrative Orders Reviete Act, 28 U.S.C.
- 2344, pecitions for reviev challenging final orders of the Commission issued pursuant to Section 189 of the Atomic Er.ergy Act, 42 U.S.C.
2239, $ must be filed within 60 days af ter the entry of the final order.
The 60-day time limit may not be altered or enlarged by the courts.
Celler v.
F.C.C.,
198 U.S. App. D.C. 31, 610 F.2d 973 (1979): M':rowave Com=unications, In c. v. F. C. C., 169 U.S. App.
b Section 189 covers all rulemakinfs includes petitioner'sproceedings dealing with the activities of licensees.
Th
,i challenge here.
'4 eswme r cyrwun:;rm'%v2xogsr4-sepe---. r-m i
c u.
D.C.154, 515 F. 2d 385 (1974): B.J. McAdams, Inc. v.
I.C.C..
- 5l F. 2d 1112 (8th Cir.1977).
i The case of Celler v. FCC, supra, is directly on peint.
There the Federal Communications Com=ission issued in 1971 a
" Letter of Intent" incorporating a summary of proposals for 'he near-term regulation of cable television.
Subsequently, the three major groups affected by the contemplated rules entered into a consensus agreement proposing modifications of the regula-tions envisioned in the " Letter of Intent".
The FCC in 1972 adopted the rules proposed in the consensus agreement.
In 1974
)
Henry Geller filed a petition with the FCC requestinF it to re-examine and modify the 1972 rules.
In November,1976, the FCC denied his petition and Geller sought judicial review in January 1977.
Celler argued that the Coccission erred when in 1972 it adopted regulations codifying the consensus agreement and also when it denied his 1974 petition.
This court held that it lacked jurisdiction to hear the direct attack on the FCC's 1972 rule because the challenge was filed long after the 60-day period for review established by 28 U.S.C. 2344 had expired.
The court, however, concluded that petitioner's challenge to the 19761 CC order refusing to re-examine and alter the 1972 rules was timely and properly before the court.
In the present case, NRDC's challenge to the procedures used by the Commission in promulgating the October 19,1978 amend-ments was filed seventeen months after the amendment became effec-tive and fifteen monthe after the period for judicial review had 25
~ - -,_... n x - a. u,. =. n _. _ _ _-
i expired.
NRDC apparently decided to await the Commission's response to its March 2, 1979 comments (comments PRDC neverthe-less filed after the time for judicial review had expired) before seeking judicial review.
This is far too late.
Petitioners
~
should either have filed a protective petition for review or at minimum a petition for reconsideration with the Commission within 60 days after isst nce of the amendments.
B.J. McAdams, Inc. v.
I.C.C.,
551 F. 2d 1112,1115 (8th Cir.1977).
See also National Tour Brokers Ass 'n v. U. S., 19 2 U. S. App. D.C.
287, 591 F.2d 896, 899 fn. 7 (1978).
They did neither.
Indeed their comments to the Commission challenging the Co= mission's procedures were not filed until nearly five conths after issuance of the October 1978 amendments.
In short, this court lacks jurisdiction to hear NRDC's procedural claims because the challenge is far out of time. III Even if NRDC's procedural challenge were timely it is without merit.
Section 4(a) of the Administrative Procedure Act, 5 U.S.C. 553(b), provides that the Commission may adopt inter-pretive rules without first solicitfng public coc=ent.
See American Pr e sident Lines, Ltd. v. Federal Maritime Com'n, 114 U.S. App. D.C.
418, 316 F.2d 419, 421, 422 (1963).
This.uurt in Guardian Federal S&L v. Federal S&L Ins. Corp., 191 U.S. App. D.C. 135, 589 F.2d 12/
imDC's substantive claim that the Commission's regulations violate Section 206 of the Energy Reorganization Act is, however, properly before the court.
The celler case makes clear that judicial review of an agency's decision not to modify its regulations may be sought within 60 days af ter issuance of the agency denial.
Here NRDC sought review of the Cocaission s January 23, 1980 decision not to alter 10 CFR Part 21 within the permissible time period.
26 U* WrENEJTU5Y*E M M W 65$ h k5Y M T M fi.QI6%ffiRK M l
n
< +.:
' 658, 664 (1978), explained that cn interpretive rule is "per niy a clarification or (xplanation of an existing statute or rui.
This is consistent with the authoritative Attorney General i Manual on the Administrative Procedure Act which defines in. :-
pretative rules as " rules or statements issued by an agence advise the public of the agency's construction of the statt.
.s and rules which it administers." E The October 19, 1978 amendcents to 10 CFR Part 2] are interpretive rules because they inform the nuclear industry and the public that the Commission does not interpret Section 206 of the Energy Reorganization Act to cover manufacturers of com-mercial grade components.
As explained supra, pp. 5-8, at the time the Commission adopted Part 21 in 1977 it did not specifically address how far down the tiers of supply the regulations extended.
During the 16-month period between adoption of.Part. 21 and promul-gation of the October 19, 1978 amendments, the Commission itself neser addressed the issue. 12/
In adopting the October,1978 10!
U.S. Department of Justice, Attorney General's !knual on the Administrative Procedure Act (1947) at 30.
$E/
During this period the NRC staff issued a regulatory guide, NUREG-0302, Rev.1, supra, fn. 3, which indicated that suppliers of coc=ercial grade items would be used in safety-related systems were covered by Part 21.
Regulatory riides are not regulations and, therefore, are not binding on the industry, the public, or the Consission.
They are to de regarded cerely as the views of the NRC staff which cannot serve as evidence of their own validity and must be sup ported by other sources.
Sierra Club v. Andrus, 442 U.T.
347, 356-357 (1979).
Porter County Chapter of the Izaak
~
Valton League of America v. AEC, 533 F.2d 1011, 1016 (7Ch Cir. 1976), cert. denied, 427 U.S. 945 (1976): Gulf States Utilities Co71ver Bend Station, Units 1 and 2), ALAB-4~44, 6 NRC 760, 772 (1977).
Under the Commission's regulations,
only a written interpretation by the General Counsel is binding on the Commission.
10 CFR I 21.4.
27 wemuwwW%Wemmmsaggmaanwa crewest?JLWWJwym-mwsn,-duq95
t *.
2, emendments thg Commission mado clear chat it was. merely " clarifying the applicability of 10 CFR Part 21."
While
'f the Commission's Statement of Consideration could have been written more precisely, its path may reasonably be discerned.
Fort Pierce Utilities Authority v. "sclear Regulatory Cornission, l
~
196 U.S. App. D.C. 79, 606 F.2d 986,1001 (1979).
It becomes clear that the amendments are interpretive rules when one considers what the effect of a decision by this l
court to vacate the rule for failure to comply with APA notice ff and comment rulemaking would be.
In the absence of the amend-l ments the regulation in force would be the 1977 rule which did ll not specify how far down the tiers of supply Part 21 applied.
Ve do not think the Comission would or should be obliged to read into that 1977 rule an interpretation the Commission repudiated on the first occasion it addressed the issue.
Because the 1978 amendments provided the first clear-cut Commission level l
guidance on the scope of the 1977 Commission regulations, they l
l constituted an interpretive rule change as defined in Guardian Federal S&L.
The Comission therefore was not required to seek f
public comment before promulgating that clarifying guidance.
[
i i
P i
l 28 i
b
~
t %* 1 CONCLUSION 8.
For the foregoing reasons this Court should deny rk petition for review.
Respectfully submitted, f ") $7 t
~
5 LEONARD BICKWIT, JR.
SANFORD SAGALKIN Acting Assistant Attorney Ceneral General C p
STEPHEN F. EILPERIN ANNE S. AllfY JA!!ES C. KILBOURUE Solicitor Attorneys U.S. Department of Justice y ---
N.8*
Washington, D.C. 20530 IRWIN B. ROTHSCHILD, III RICHARD A. PARRISH*
Attorneys Office of the General Counsel Nuclear Regulatory Cornission Washington, D.C. 20555 i
Dated:
October 10, 1980 l
i i
i David Smith, an NP.C law clerk, also assisted in the prepara-tion of this brief.
b
'a 4
e p
0
- l'
. -' f..,
- f 1e
- . en a
f CERTIFICATE OF SERVICE c
I hereby certify that the foregoing "Brief for Respondents r gulatory Commission and United States of America" was Nuclear e
served by hand delivery to the following:
Charles R. Halpern Esq.
)
Richard Icwe, Esq.
1 i
1 Institute for Public Remresentation j
600 New Jersey Avenue, N.W.
Uashington, D.C. 20001 i
i
-( ['_"
\\
\\
IRWIN B. ROTHSCHILD, III Attorney Office of the General Counsel Nuclear Regulatory Cocenission Washington, D.C.
20555 Dated:
October 10, 1980.
4 iWKfiKMFRENfEEERIBEREEEEEE
.