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NUCLEAR REGULATORY COMMISSION
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AUG 14 198I MEMORANDUM FOR:
G.H. Cunningham Office of the Executive Legal Director FROM:
R.M. Bernero, Director Division of Risk Analysis Office of Nuclear Regulatory Research
SUBJECT:
DRAFT REGULATIONS TO IMPLEMENT ANTICIPATED LEGISLATION ON (1) INTERIM OPERATING AUTHORITY AND (2) THE "SHOLLY AMENDMENT" Your routing and transmittal slip dated August 12, 1981 forwarded for cocuent a draf t Commission paper, with four enclosures, on the imple-mentation of anticipated legislation. Due to the short review time allowed, comments due prior to August 15, 1981, I have restricted the review to the portions related to the Sholly amendment., the draf t Federal fugister Notice for no significant hazards determination, p.12 states "A summary of the comments along with a coment analysis is also available for examination and copying for a fee at the Public Document Room." There was no sunriary or analysis attached to the Comission Paper and such documents are not currently in the PDR.
It is recommended that a summary and analysis be attached as an enclosure. p.10 identifies the fact that the proposed rule that was published on March 28, 1980 was in response to a May 7, 1978 petition for rulemaking that was docketed as PRM 50-17.
I reconnend that the preamble portion of Enclosure 3 be revised to include a definitive statement that the action in the Federal Register Notice completes the Commission's action on PRM 50-17.
The attached marked up pages provide editorial and miror comments.
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e-mf R.M. Bernero, Director Division of Risk Analysis Office of Nuclear Regulatory Research
Enclosures:
1.
Marked up pages 2.
CP p.4 3.
Encl. 3, pp.4, 11, 18, 20-24 4.
Encl. 4, pp.3-6, 9, 10 5 20'L 2?.C lM y tuq;p
The Comissioners [1 will subm!t revised regulations to the Conis-
{l sion for approval at an early af firmation j
session.
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ljl'[I Villiam J. Dircks Executive Director for Operations
Enclosures:
1.
Sumary of legislative status.
2.
Rule amending 10 CFR Parts 50 and 2 to implement the interim operating license authority in Pub.i. 97-xxx.
Tab A - Text of h
section 192, as it would be amended
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by S. 1207, as reported, rfg f
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Amendments to 10 CFR Tarts 2 and 50 to implement tne Sholly
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Amendment.
(Criteria for no v
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significant hazards consideration determination.)
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Ameni,ents to 10 UR rarts 2 and
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50 to implerent :.he Sholly dp Amendment (criteria for p;blic notice and procedures for state consultation).
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The following items have been required items in Commission rapers developed by most of the offices.;
You may want to consider modifying the paper.
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It is realind that this is in format an l'iFOTMATION-PAPER but in fact it r.ay be the final ' paper on the i
i subject other than the paper that tells the Comissioners that Cen2ress acted as was espected.
- 1) ne regulations Coordinating Comittee requires that an enclosure addressin'g' the periodic and systematic g'
review be prbpared.* 9 6.,T.r. r
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- 2) The EDO has required in the paper a statteent in regard to resources of the Cc::.-ission and the af fected
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3)
There is no rention of the direct distrit'ution' to f
'the interested persons,in accordance.wlth the current' 4'. " ~ ! ", ' ~
instructions. '. -
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- 4) What alcut a~ press reler.sef Vill'one ~co e latert
- 5) Uhst atuut the Congresstor.als? Will they come later? -
- 6) What about the 'enviorreental trappings"? Statteent, declaraation or what have youf 1
7). What alcat cost /*cr.efit or value/inf act or at Itast a statecent that we don't, have to do one in this case.*
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for a hearing from an interested person.
Pub. L.
also directs NRC to J
promulgate regulations establishing:
1.
Standards for cetemining whether an amendment to a license I
involves no significant hazards consideration; II.
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2.
Criteria for providing or dispensing with prior notice and
[ (n' public comment on such a detemination; and I
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3.
Procedures for consultation on such a detemination with the r,4 '
F State in which the facility of the licensee requesting the
/7 amendrent is located.
It should be noted that Section '301, in pertinent part, separates the standards for detemining whether an amendment involves no significant hazards consideration (now used with respect to prior noticing and oppor-tunity for hearing) from the criteria for providing or dispensing with prf w
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notice and public comment on this detemination.
Lecislation Before the Public L.
Amendments f
~7 Prior to amendment, Section 189a. of the Act provided that upon thirty-days' i
notice published;in the FEDEPAL P,EGISTER, the Commission e.sy issue an oper-
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ating license, or an Eendcent to an operating license, or an amendaent to a construction pemit, for a facility licensed under section 103 or 104b. of
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$1 existing itcenses.
Further, the petitioner proposed that, if the staff l
reaches a negative conclusion as to both of these criteria, the proposed amendment must be considered not to involve a significant hazards l
consideration.
l The Commission sought, in issuing the proposed rule, to improve the licensing process not only as it relates to the granting of amendments to operating licenses, but also to <.5nstruction pemits, by specifying in the regulations criteria with respect to the meaning of "no significant hazards consideration." In the preamble of that rule, the Comission explained that it does not agree with the petitioner's proposed criteria because of the limitation to " major credible reactor accf(ents" and the failure to include accidents of a type different from those previously evaluated.
During the past several years, the Commission's staff has been guided in reaching its deteminations with respect to "no significant hazards considera-tion" by staff criteria and examples of amendments likely to involve, and not likely to involve, significant hazards considerations.
These have proven use-ful to the staff, and the Commission employed them in the proposed rule.
K The notice of proposed rulemaking contained revised crit ria to be incorporated into Part 50, and the rulemaking preamble contained example of amendments to a 5
constructioh permit or operating license that are con idered likely and not likely to involv.e a significant hazards considerat n.
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example, a change resulting frm the application of a small refinement of a previously used calculational model or design method.
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(vii) A change to make a license confom to changes in the regulations.
(viii) An extension of the date, in a construction pemit, for the completion of cc7struction.
(fx) A change to a license to reflect a minor adjustment in oeership shares among co-owners already shown in the license.
i Finally, as directed by the Committee on Environment and Public k'orks, the Connission will provide to it a monthly report on the Cmmission's detemi-nations on no significant hazards consideration.
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I Paperwork Reduction Act 1
This final rule contains no new or amended requirements for recordkeeping, f
g reporting, plans or procedures, applications or any other type of infoma-tion collection.
Regulatory flexibility Certification In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Cor.ission hereby certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This proposed rule affects c
only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of "small entities" set forth in the Regulatory Flexibility' Act or the Small Business Size Standards set out in regulations issued by the S. mall Business Administration at
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In i 2.105, paragraph (a)(3) is revised, paragraphs (a)(4) through[0 2.
(a)(8) are redesignated as paragraphs (a)(5) through (a)(9), and a new para-graph (a)(4) is added to read as follows:M h
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52.105 fictice of proposed action.
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1 (a)
If a hearing is not required by the Act or this Chapter, and if the Cocnission has not found that a hearing is in the public interest, it will prior to acting thereon, cause to be published in the FEDERAL REGISTER a notice of proposed action with respect to an application for:
- p (3) An amendment of a license specified in paragraph a){(1) 'or) (2)
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of this section and which involves a significant hazards consideration,('
(4) An ar.endment to an operating license or to a construction permit for a production or utilization facility licensed under sections 103 nr.104b. of the Act or a testing facility licensed under section 104c.
'< hen the Cor. mission, in its analysis using the criteria in $50.92 of this chapter, deternir.g that there is a significant hazards consideration; or ** *
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(42 U.S.C. 2132-2135, 2233, 2239).
lj Additions to the currently effective regulation are underscored and deletions are within brackets.
Chcnges to the proposed amendments that were published in the Federal Register on thrch 28,198&f45-FR 20491, are indicated with a line in the margin and with arroy-K***)6,- Before publishing in the Federal Register, the arrows, underscores,-brackets, the r.aterial ir. the brackets and within the arrows, and this footnote f
will be deleted.
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PART 50 - 00'iESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES 3.
The authority citation for Part 50 is revised to read as follows:
AUTHORITY:
Secs. 103, 104, 161, 182, 183, 189, 68 Stat. 936, 937, 948, 953, 954, 955,-'956, as amended (42 U.S.C. 2133, 2134, 2201, 2232, 2233, 2239);
secs. 201, 202, 206, 88 Stat.1243,1244,1246 (42 U.S.C., 5841, 5842, 5846),
unless otherwise noted.
Section 50.78 also issued under sec.122, 68 Stat. 939 (42 U.S.C. 2152).
Sections 50.80-50.81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 223 Section 50.92 piso issued under Pub.t..
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U.S.C.
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--- A issued under sec. 185, 68 U.S.C. 955 (42 U.S.C 2236).
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273), 550.54 (1) issued under section 1611, 68 Stat. 949 (42 U.S.C. 2201(1)), 5550.70, 50.71 and 50.78 issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)), and the Laws referred to in the Appendices.
(4)
In i 50.58, paragraph (b) is revised to read as folloe:
650.58 Hearings and report of the Advisory Comittee on Reactor Safeguards, (b) The Cocnission will hold a hearing after at least 30-days' notice and publication once in the FEDERAL REGISTLR on each appilcation for a construction permit for a production or utilization facility which is of 4
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. type described in $50.21(b) or 150.22 or which is a testing facility.
When a a-construction pemit has been issued for such a facility following the holding of a public hearing and an application is made for an operating license or for an amendment to a construction pemit or operating license, the Camission may hold a hearing after at least 30-days' notice and publication once in the FEDERAL REGISTER or, in the absence of a request therefor by any persca-whose interest may be affected, may issue an operating license or an acendment to a construction pemit or operating license without a hearing, upon 30-days' notic.e and publication once in the FEDERAL REGISTER of its intent to do so.
If the Commission finds that no significant hazards consideration is presented by an appJication for an amendment to a con-n
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struction pemit or operating license, using the criteria in 150.92(b);'it
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may dispense with notice and publication and may issue the amendment.
5.
Section 50.91 is redesignated as 150.92 and revised to read as follows:
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5 50.92 ofa5Indment.
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(a) In detemining whether an amendrent to a license or construction permit will be issued to the applicant, the Commission will be guided by c
the considerations which govern the issuance of initial licenses or construc-tion pemits to the extent ' applicable and appropriate.
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(b) The_ Commission will determine _that_a proposed amendment to an e,
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__ operating license or construction pemit involves no significant hazards A.
g consideration, unless it finds that~ operation of the facility in accordance a
a with the proposed amendment would (1) involve a significant increase in the probability or consecuences of an accident _ fro i any accident _previously evaluated, (2) create the possibility of,a new or different Lind of accident from any accident previously evaluated, or (3) involve a_ significant reduc-tion in a margin of safety.
/ + (c) If the Commission detemines that the application involves the q-I material alteration of a licensed facility, it will issue a const ction l
pemit before it issues fwill be issued prior to the issuance of] the s
amendment to the license.
(d) If the Commission detemines that the amendment involves a signifi-l
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. cant hazards consideration. [the Commission) Awill give notice of its a
l preposed action pursuant to i 2.105 of this chapter before acting thereon.
The notice will be issued as soon as practicable after the application has been docketed.
h (b)
In making a detemination that a proposed amendment to a license _
or construftfon pemit involves no significant hazards consideration, the CommissionI, rill. consider whether operation of the facility in accordance g
with the proposed amendment would (1) involve a significant increase in the probability or consequences of an accident previously evaluated, (2) create O
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'the possibility of an accident of a type different from'~a/ny evaluate previously, or (3) involve a significant reduction in a margin of safety.
(c)
If the Commission reaches a negative conclusion on all criteria set 1
forth in (b)(1), (2) and (3) of this section, the proposed a. endment shall be considered to involve no significant' hazards consideration.h k
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< h.'f n.C kh (f involving no significant hazards consideration, and (b) to provide for con-sultation on such a detemination with the State in which the facility is located.
As discussed in the preamble to the fint.1 rule, it is the apparent congres-l sional intent that criteria for prior public notice and corent be separated from the standards for raking the detemination of no significant hazards consideration.
The Committee on Environment and Public Works stated:
The requirement in section 301 that the Commission promulgate criteria for providing or dispensing with prior notice and public corament on a proposed detemination that a license amendment involves no significant hazards consideration reflects the intent of the Committee that, wherever practicable, the Comission should publi:h c.otice of and provide for public comment on, such a proposed detemination.
The Commission has advised the Committee that in some cases the need to issue the proposed amendment will arise quickly, and failur? to act on the a.endment may result in the shut-do,en or derating of the plant. The Committee recognizes that the need to act promptly in such situations ray foreclost the opportunity for prior public notice and coment.
However, in d i other cases, the Co raittee expects the Comission to exercise its authority in a nanner that will provide for prior public notice and com.ent.
(Emphasis added.) g.,atp.15.
The Commission has reviewed its present procedures and the choices presented by the legislation. There are apparently three alternatives for considera-tion.
It can notice for public coment a request for an amendment:
(1) when the application is received, (2) after a determination is rade on no signiff-F h
cant hazards consideration, or (3) after ' finding h made and the amendment 4
issued or the ratter docketed for hearing. Nbticing a request for an amend-ment when it is received is not only simpi but has the added advantages of
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htn allowing the public to comment and providing an opportunity for the staff to analy.e the comments before a determination is r.ade on no significant hazard considera tion. Moreover, it clearly complies with Congress' expres ed intent.
Its two principal disadvantages are the added paperwork burde and the problen that in numerous instances the staff would have to
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await ublic comments before it could rake routine and simple detem
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na-Noticing an amendment request after the no significant hazards conkgation; '
'C has been cade apparently conplies with the congressional intent and allows the p'ublic to see the determination and comment on it.
It has several disadvantages, though. First, it involves a paperwork burden similar to the first choic,e.
Second. and core important, since the determination on no significant hazards consideration ray take time, this period cpupled with the rombs.llW o3 waitingperiodforpubliccommentbeforetf7(u finding on the amend-g ment can be rade, in nu.erous instances could put the staff in the position
.of acting on a request at the lith hour in order to avoid derating or shutting-down the plant, thereby foreclosing reaningful public comment and avoiding the intent of Congress.
Third, this choice suffers from the possi.
mr bility and appearance of a prejudgment about the termination.
Y age The tnird alternative, noticing an amendment request after th inding 4
e is made and the amendrent issued or the matter docketed for hearing, follows the Cocnission's;procedare before Sholly; honeser, it clearly does not comply with Congress' intent Aich specifies public notice and coment on a proposed determination.
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-s-b6 The Commission proposes to couple its present practice of providing notice after issuance of an amendment with the first alternative, noticing for public con.ent on whether a no significant hazards consideration finding should be made when a request for an amendment is received.
It nomally will provide thirty-days' prior public notice for com.:ent by publication in the FEDERAL REGISTER.
If during the period of notice for conment, the Commission receives a request for a hearing or an expression of interest in the subject matter of the pend-ing amendment which is reasonably construed as a request for a hearing, it will follow its present procedures, deferring judgment on t;m request until after it has cade the detemination on no significant hazards consideration.
t-If the person requesting a hearing and intervention meets the provision; for intervention called for in 10 CFR 2.714 the Commission nomally will hold a hearing only after it issues an amendment, unless it determines that a significant hazards consideration is involved. The Comission may also hold a prior hearing if it finds that it is in the public interest to do so.
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If the Comission receives an amendment request where the need to issue the proposed amendment arises quickly, and failure to act on the amendment may result in the shut-do.m or derating of the plant, the sion will not delay its no significa@
ards consideration 'nalys ' U~a it public 4
comments.
In tha.t instance, if it detemines that there is no significant hazards consideration and makes the requisite safety findings, it will issue the amendment but, as discussed above, a hearing ray be held after issuance e#
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of the emendment.
On the other hand, if in that instance the Comission detemines that there is a significant hazards consideration, it will not issue the requested amer.dment ::ithout prior notice, unless it finds that the public health, safety, or interest,,orTe, common defense and security f p +.dia Mv p 3 so requires.
If it cannot mate the f,inding, it will provide thirty-days' prior notice on the requested a.endment for both public coment and opportunity to request a hearing.
The Commission would revise its present procedures in the ways indicated.
State Consultation t,
- Section 301 of the bill also requires the Con.ission to promulgate procedures for consulting with a State in which the relevant facility is located on a determination that an amendment to the facility license involves no sionificant hazards consideration. The Committee on Environment and Public Works stated with respect to this provision that:
The requirement complements the directive in section 202 that the Commission, in detemining whether an amendment involves no significant hazards consideration, shall consult with the situs State.
The Committee expects that the procedures for State consultation will include the following elements:
(1) The State wauld be notif'ed of a licensee's request for c
an amendment; (2) The State wauld be advised of the NRC's evaluation of the amendment request; (3).The NRC's proposed detemtr.ation on whether the license amendment involves no significant hazards consideration would be discussed with the State and the NRC's reasons for making that deternination weald be explained to the State; e
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l secs. 201, 202, 205, 88 Stat.1243,1244,1246 (42 U.S.C., 5841, 5842, 5845), unless otherwise noted.
Section 50.78 also issued under sec.122 68 Stat. 939 (42 U.S.C. 2152).
Sections 50.80-50.81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 50.92 also issued under Pub.L.
Stat.
( _ U.S.C. _ ).
Sections 50.100-50.102 issued under sec.186, 68 U.S.C. 955. (42 U.S.C 2236).
For the purposes of sec. 223, 68 Stat. 958, as ar.iende I (42 U.S.C. 2273),150.54 (1) issued unde.'
section 1611, 68 Stat. 949 (42 U.S.C. 2201(1)), 5550.70, 50.71 and 50.78 c
issued under sec. 1610, 68 Stat. 950, as a:.cnded'(42 0.S.Q201(oP, and the Laws referred to in the Appendices.
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A new 150.91 is proposed to be added _to Part'56 to read as follows:
h 550.91 Public notice and conment; State consultation.
(a) As soon as practicable after receipt of an application for an amendment to an operating license or construction pemit, the Comission shall publi h in the FEDERAL REGISTER a notice of receipt of application.
The notice will identify the plant concerned, briefly describe the requested amendment, and provide a 30-day com. ment period on the question of whether the amendment involves a significant hazards consideration.
If failure to act quickly on the amendment may result in the shut-do.<n or derating of the R
plant, the Ccr:nission may dispense with prior notice and pubite cornment.
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The Corxnission shall consider public cor.cnts, if any, and expeditiously make its deterrination on no significant hazards consideration.
(b) The Com.c.ission sball provide for State consultation as follows:
(1) As soon as practicable after receipt of an application for an I
amendment to a license or construction pemit, the Camission shall notify the State in which the licensee's facility is located of the licensee's request for anyniidtI (2) fter its evaluation of the amendmentlequest) th Co. mission 5
shall discuhh de State-its-resolution of t orents received, g
if any, and its\\, proposed detemination on no significant hazards considera-tion, including ts reasons for making the detemination. The Ccmission shall consider the carents, if any, of the State official designated to I
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consult with it' in its detemination on no significant hazards consideration.
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(3)
If failure to act gaickly on the amendment ray result in the
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shut-down or 'derating of the plant, the Cce. mission may dispense with prior
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State consultation.
(c) /The State consultation procedures in paragraph (b) of this section do not give the State a right:
- 1) To veto the Commission's proposed detemination; (2) To a hearing on the detemination before the amendment becomes e fective; or A
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