ML20235A605
| ML20235A605 | |
| Person / Time | |
|---|---|
| Issue date: | 08/12/1982 |
| From: | Abrams N NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Cunningham G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| Shared Package | |
| ML20235A568 | List: |
| References | |
| FOIA-87-577 NUDOCS 8709230355 | |
| Download: ML20235A605 (7) | |
Text
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/
. UNITED STATES...
.-[
8 ol N
EAR REGUL'ATORY C'OMMISSION. >
'{
WASHINGTON. D. C. 20555
-[.
b0450 August 12, 1982 MEMORANDUM FOR:
Guy Cunningham, Executive Legal Director FROM:
Neal E. Abrams, Patent Attorney
. Operations and Administration Division, OELD
SUBJECT:
. del.EGATION OF SUBPOENA AUTHORITY 3
The following changes should be made to implement!'on the record the,
Commission's decisicn to, delegate to the EDO the authority.to issue q
i subpoenas during the course of investigations or inspections, and the redelegation of that authority by the ED0 to the Regional Administrators.
'By copies of this memo, Joe Felton and Suzanne Bachrach are requested to take the steps necessary to iniert these changes in the NRC Manual and 10 C.F.R.
A.
Manual Chapter 0103 -
1.
Insert the following new paragraph under section 0103-02 l.
Functions:
?
"0214 Issuing subpoenas under Section 161c of the Atomic Energy Act of 1954, as amended, where necessary or appropriate for the conduct of inspections or investigations."
2.
Insert the following new paragraph under sdction 01C3-03 Authorities:
'0311 The function delegated to the EDO under paragraph 0?.14 of this Chapter may be redelegated only to the Director of the Office of Inspection and Enforcement and, to the Regional Administrators. The issuance of any subpoena will require the concurrence of the Office of the Executive Legal Director and consultation with the Office of Investigations."
B.
Manual Chapter 0128 i
1.
In section 0128-02 Eunctions, amend paragraph 029 as foliows:
In line 1, after " affirmations", insert "and issue subpoenas where necessary or appropriate".
!!!]gp-snozone PI A !Th L
s voy 3 (o Y
6)
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=-
O O.
' 2.
Insert the following new paragraph in section 0128-03 Delegation of Authority:
"034 The issuance of any subpoena under paragraph 0128-029 of this Chapter requires the concurrence of the Office of the Executive Legal Director and consu'ltation with the Office of Investigations."
C.
Insert the following new paragraph under Part 1.40 Office of the Executive Director for Operations:
"(a) Issue subpoenas under Section 161c of the Atomic Energy Act of 1954, as amended, where necessary or i
appropriate for the conduct of inspections or l
investigations."/
/ / k n / 6 b r +- r V <'
kkh Neal E. Abrams, Patent Counsel Operations and Administration Division Office of the Executive Legal Director cc: Josbfh'Felton, ADM Suzanne Bachrach, MPA 4
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I ti ns
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Federal Register / Vcl. 50, No. 63 / Tuesdry. April 2,1985 / Rules a d R
~
exception. After recelving this 13006 comment, the NRC had among other additionalbriefing, the Court on 2
. (i) Jpercent when the median things, violated Commission regulations. December 5,1983 denied without h:us; hold income of the service area is %is holding was based on language in opinion the Commission's motion toa below the poverty line.
10 CFR 2.804 which the Court read, explanation or clarification ofitsholdin (ii) 2.0 percent when the median contrary to the Commission's household income of the service area is interpretation, as a requirement for prior f
nt in above the poverty line but not more than
. notice and opportunity or comme shouldissue, all Commission rulemakings.ne Court in the Supplementary Information to 85 percent of the State's noametropolitan median household concluded that the NRC had divested the proposed rule,the Commission itself of whatever discretion applicable notedits view that any reading of statutes might allow for dispensing withSecti'on 189a which interferes with the income.
e Commission's ability to take immediate 17 U.S.C.1989; 7 CFR 2.23; 7 CFR 2.7o) notice and comment.
in response, the Commission issued aaction affecting the activities of NRC D: tid. February 28,1985.
proposed rule to clarifyits re licensees, whether by individual order lations Dwight O. Calhoun, so as toleave no doubt that or by rulemaking, when safety requires e
Actins Associate Administrator.rarmersCommission does assert, to the extent it, is contrary to the intent of Congress Home Administration.
allowable,its discretion under Section 4 and is an erroneous interpre+ation of the
' m Fued g a W of the AdministrativeProcedure Act Atomic Energy Act. Alimitation en use enm coos sum-"
(ApA),5 U.S.C. 553(b), to make of the APA " good cause" exception
~
7 excepuons to,the general requirements clearly has the potential for such for notice anc opportunity for comment interference and therefore should be NUCLEAR REGULATORY in informal rulemaking (49 FR13043, interpreted narrowly.
April L1984).Insnaking this COMMISSION Under these circumstances, itis clarification, however, the Commission reasonable to interpret the court's also noted that the D.C. Circuit in UCS
' opinion no broader than the language 10 CFR Par 12 s
Exceptions to Notice and Comment v.NRC had called into question the and the context require. Accordingly, extent to which the Commission can the Commission interprets the language Ralemaking Procedures lawfully claim discretion to invoke the in UCS v.NRCrelevant to the Nuclear Regulatory ApA exceptions to notice and comment rulemaking. As an alternative reason for avadability of the " good caus AoINcy:
exception to apply only to the Commission.
vacating the rule under review, the D.C. rulemaking under review in that case, Action: Final rule.
Circuit held that the notice and hearing f.e., amendments of specific reactor The final nde amends the requirements in Section 189a of the licenses requiring prior notice by Commission's ru!cs of practice by.
Atomic Energy Act of 1954, as amended'
SUMMARY
statute,while leaving unaffected the revising Commission rulemaking 42 U.S.C. 2239a, prevented the Commission's authority under the APA procedures contained in to CFR 2.804 Commission from relying on the APA to make other kinds of rules effective' and 2.805 to clarify the Commission's
' good cause" exception in the lune 30.without prior notice and comment when'
(
use of the exceptions to notice and 1982. rulemaking. In the Commission's : there is good cause, la response to the comment rulemaking contained in view, however, the Court's explanation D.C. Circuit's opinion in USC v. NRC, section 4 of the Administrative of this holding left unclear whether the the Commission proposed to include in Procedure Act 5 U.S.C.553(b).ThisCourt saw Section 189a as a ge,neral bar10 CFR 2.804 language providing that the clarification is necessary in light of the touse of the APA"goodcause APA exceptions to notice and comment U.S. Court of Appeals for the District ofexceptionin any NRC rulemaking rulemaking will apply only where notice affecting the activities of licensees, or as dred by Cdumbia decision in Union of ConcernedScientists v.Nucleor a less sweeping restriction that would and comment are not re l
Regulatory Commission,711 F. 2d 370 only apply to rulemakings which statute.
The proposed ruleleft intact for the pecihcally amend reactor licenses.1 lonmovd most part the Commission's l
(D.C. Cir.1983).
s
,hC
,f.
EFFECTIVE DATE:May 3,1985.
n
. longstanding and consistent p
interpretation of its statutory au FOR FURTHEA INFORMATION CONT ACT:
fp' inn' o
i dt
((t Francis X.Osmeron, Office of the Court that tha discussion of the relation in10 CFR Part 2. Subpart H, that the -
Executive legal Director U.S. Nuclear Regulatory Commission Washington, between&ction189a and the APA CommisslDn could Sv8tI ftself of the good cause" exception was exceptions to notice and comment _
DC 20555. Telephone: 30M92-8689.
unnecessary to the result of the case, rulemaking contained in the APA for-raised issues which had not been SUPPLEMENT ARY INFORMATION:
- Interpretative rules, general briefed, was ambiguous in its scope, and could,if read broadly, interfere severely -statements of policy, or rules of agen
'Ihe U.S. Court of Appeals for the with the Commission's ab!!ity to act organizatiw. procedure,orpractice 5 -
District of Columbia,in its decision in promptly in the interest of public health U.S.C. 553(b){A): or -
Union of Concerned Scientists v.
and safety.The Court then called for
- When the agency '.'or good cause l,
Nuclear Regulatory Commission. 711 F.simultaneous briefing by the parties on finds that notice and comment are Im, practicable, unnecessary, or contrary 2d 370 (D.C. Cir.1983) ("UCS v. NRC*).
the availability of the APA " good cause" vacated the Commission's rule of June exception in Commission rulemaking.
to th e public interest,5 U.S.C. 553(b)(B).
30,1982, which amended operating The Commission filed a brief whichTo ensure that the regulation licenses by removing the deadline for maintained that Section 189a does not unambiguously reflected the the environmental qualification of restrict use of the " good cause" Commission's intentions, the proposed electric equipment (47 FR 283B3, June 30,exception.The Union of Concerned r9e amended 10 CFR 2.804 and 2.805 1982).The D.C. Circuit held that by Scientists argued that there was a provide explicitly for Commission making the rule immediately effective virtually total bar to use of the instead of providing for notice and ora-e M TT
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O 9and Regulations
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'13007 Federr.1 Regist:r / Vol. 50, No. 63 / Tuesday, April 2,1985 / Rule
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A third commenter, the Union of 83-2 stated that experience has Concerned Scientists (UCS), asserted discretion to invoke in appropriate confirmed the need for a " good cause" that Section189a of the Atomic Energy 1 4 situations the APA exceptions to notice exception from the ApA's notice and Act requires the Commission to provide U!
cnd c:mment rulemaking cited above, comment requirements. However, a notice and opportunity for comment ^
l cs permitted b) law. Under the -
post promulgation comment opportunity with respect to any rulemaking l
"will give interested persons a chance to roceeding dealing with the activities of proposed rule, notice and comment would not be mandatory in Comminion expose any errors or oversights that icensees and consequently prohibits the lN L
< rulemaking within the scope of section '
occurred in the formulation of the rule Commission from restricting the i
r l
u 668 of the U.S. Code, when they invo ve and to present policy arguments for limitation on the dse of the APA interpretative rules, general statements '
changing the rule " Id. at 158. The post.
! "4 exceptions to notice and comment rulemaking to rulemakings which amend IF promulgation comment opportunityshould not extend to rules for wh reactor licenses. Section 189a(1) of the of policy, or rules of agency -
organization, procedum, or practice, or e where the Commission for good cause :
agency determines public notice and AtomicEnergy Actprovides,amcas 4
finds that notice and comment are -
comment to be unnecessary" because other things, that:
- 1 practicable, unnecessary or contrary '
such rules have been found by the in any proceeding under this chapter.for I
,13the public interest.
courts to be minor or merely technical the granting, suspending, revoking. or amendments in which the public has amending of any license or construction IL Comments permit, or application to transfer control, and ittle interest.
Ths Commission received five The Commisslun agrees in principle m anyproceeding for the issuance or 4
h ed I ki with the recommendation of the ACUS.
modification of rules and ergulations dealing wo of ee ere f o the uc ear industry (Yankee Atomic Electric Accordingly, the final rule incorporates - with the activities oflicensees, and in any Comptny, Comment 2: Middle South a new provision, to CFR 2.804[e), to,
proceeding for the payment of compensation.
Services, Comment 4), one from a provide for post. promulgation c,ommentan award or royalties under sections 2183.
2187,2236(c) or 2238 of this title, the on rules when the" good cause privata citizen (M.L Lewis, Comment 1),
Commissi n hol/ grant a hearing upon the one from a public interest group (Union exception is invoked when prior notice request of any person whose interest may be 4
of Concerned Scientists, Comment 5),
a..nd comment is " impracticable".or e
affected by the proceeding. (Emphasis added) g cnd one from a Federal agency con a o p"g UCS argues that this provision nts,th m
(Administrative Conference of thewill publish a statement in the Federal constitutes a statutory bar to,the use of 7,ce n of t es'e co ente (M.L Inis) Register which provides an evaluation the ApA exceptions from notice and f any significant issues raised by the comment rulemaking. These exceptions expressed the opinion that the proposed are normally available. "except when,,
public comments, as well as anyrevisions to the rule that have resu notice or hearing is required by statute.
rula was an attempt to remove the ublic's right to (.omment on a rule efore it becomes effective.The from the staff evaluation of the public 5 U.S.C. 553(b). According to the commenter, this proposition was proposed rule simply incorporates into comments.
In addition, the ACUS recommended affirrned in UCS v. NRC where the D.C.
ths Commission's regulations, the exceptions to notice and comment that the Commission should normally Circmt held that "[ Jhether providedin the APA.These statutory use notice and comment when adopting characterized as a icense amendment or a rulemaking. the Commission's exceptions, generally available to all interpretative ;ules or general policy egencies, are a congressional statements that are likely to have a action runs afoul of the express terms of recognition that in some situations the substantial impact on the public, or at Section 189(a) which unequivocally requires notice and opportunity to, ss."
normal public participation procedures least to provide a post promulgation comment for both types of proceedm should not be required in advance of comment opportunity if there has been taking the action.Public comment.
no notice and comment prior to the Supro at 380. Therefore, the commenter however, will be rought post.
adoption of such rules or statements.
argues, the Commission cannot limit the This corresponds to ACUS decision in UCS v.EC to the specific promulgation pursuant to new Section2.804(e) where it is necessary because of Recomm type of rule at issue in that case,i.e.
(1984).The Commission normally rules which specifica!!y amend reactor public interest in the rule.The Cornmission's normal practice. In provides for notice and opportunity forlicenses. Furthermore, the commenter keeping with Section 4 of the APA,is to comment on policy statements and does not believe that the Commission interpretative rules, and will continue to needs the APA " good cause" exception provide for public participation in Commission rulemakings.
do so in the future. In order to retain the to take immediate action when safety Another commenter, the flexibility provided by the exception in requires it: In support, the commenter Administrative Conference of the United Section 4 of the APA, the Commissioncited the Commission's ability to issue States (ACUS). recommended that the has not adopted the ACUS an "immediately effective license final rule provide an opportunity for recommendation completely. The arr adment" when no significant
" post promulgation" comment whenever Commission, in 10 CFR 2.804(e),
hazards are involved or to issue en the good cause exception of Section 4 of provides for a post promulgation "immediately effective order."
the APA was invoked because prior comment opportunity for interpretative in response, the Commission first rules or general statements of policy reiterates its earlier statement that it is notice and comment was
" impracticable" or " contrary to the Issued without prior notice and reasonable to give the Court'a opinion in public interest." However, such post-comment, except when the Commission UCS v.NRC an interpretation no more promulgation comment need not be finds that post-promulgation commer.t restrictive than the language and would " serve no public interest or context appear to require. As noted provided when the good cause exception was invoked because prior would be so burdensome se to outweigh earlier, the Court's explanation of its notice and comment are " unnecessary." any forseeable gain." This latter holdir.g left unclear whether the Court This corresponds to Administrative provisionreflects ACUS saw section189a of the Atomic Energy Conference Recommendation 83-2,1 Recommendation 76-5. Id.
CFR 305. 83-2 (1984). Recommendation i
.. ~ _
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=
April 2,1985 / Rules and R guhtiotts Federal Register / Vol. 50 No. 63 / Tuesday.
f OI action runs afoul of the~ express terms o C-section189a which unequivocallyrequi
$3308 The interpretation on which UCS k
h insists cannot be reconciled with t e.
P types of proceedings." supro at 380.
Act as a generalbar to the use of the Nuclear Regulatory Commission's clear J
must be read in the context of t APA " good cause" exception in anyNRC rulemaking affecting the activities responsibility to act swiftly to protect I
publichealth and safety when it AtomicEnergy Act 42U.S.C.2237.
of licensee,or as a less sweeping Section 187 explicitly provides that perceives that a regulated activity 6
restriction. which would only apply torulemakings which specifically amend l
i presents an undue risk.Under the h
regulatory framework estabitsbed by t e
(
be subject to amendment. revision. or uld
, reactor licenses.The Commission wo Atomic Energy Act, the Commission's d
5 modification.... by reason of rules an primary means of responding to hazardsis by suspend note that Section 181 of the Atomic I
regulations issued in accordance with l Energy Act etates that "lt]he provisions l
the terms of this Act." As the Court of the Administrative Procedure Act..
licenses.The notice and bearing shall apply to all agency action taken requirements for such actions are set out noted:
we express no opinion on the arguments of under this Act," 42 U.S.C. 2231.11isin Section 189a[1] of the Act in the same the parties on the question whether these well established that 'Nmmission langucge that applies to rulemaking dication rulemakingis gove' uby the APArequirements for informal rulemalmg.
amendrnents anust be made by adju dealms with the activities of licensees.
f or whether they fall within that category o Accordingly,if Congress intended thelanguage of Sectio licensa amendments that may be made by set out in 5 U.S.C. 533, in which the rule under section 187 of the Atomic Energy exceptions to notice and comment as the commentor would read it, as an Act. 42 U.S.C. I 2:37 (Hrre) Mat la a matter appear.8 Unless the APA exceptions are absolute bar on the Commission's the for the NRC to determine in the first instance withdrawn by language elsewhere inability to promulgate regulationswithout delay even when there is on remand. We merely hold here t! at notice d
Atomic Energy Act. It should be and an opportunity to comment must be presumed the Congress intended the cause for doing so, the same bar provided whatever administrative route is apparently would apply to immediate exceptions to be available.The b t rms taken. Section 187 provides that "(ti e e Commission does not believe that thelanguage of Section 189a.or any other d
action by the Commission to suspen er bject and conditions of all heenses shati be su revoke licenses in circumstances where d
to amendment...by reason of rules an language in the Atomic Energy Act,delay could have grave consequences-h regulations issuedin accordonce with t e This cannot have been Congress' compels a finding that Congress
- 37 tenus of this chapterIsic]." 42 U.S.C. I 2 intended to deprive the Commission ofthe rulemaking flexibility permitted by intention.Even the commentorrecognizes that such a restriction (emphasis added).Since section189(s) h requires a hearing"in any proceedin the APA. Nothing in the language of be fundamentally at odds with theCommission's responsi Section 189a or the legislative history I2239(a),
with the activities of beensees." id.
specifies that in rulemaking the Commission therefore rejects theira license amendment effected pursu Commission is to be limited by theconstraints of the APA.but denied the t
interpretation of Section 189(a) as ith the overriding the APA good causeexception and requiring prior no would not be " issued in accordance w opportunity to use the flexibility comment in all Commission licensing.
terms of this chapter? M.
provided by the APA.The Commission's In order to comply with the Court's f
interpretation of the AtomicEnergy Actas not prohibiting the promulgation of a and rulemaking activities, regardless o provides for prior notice and comment l
rule without notice and opportunity to circumstances.The language the commenter cites whenever a rulemaking would comment when APA " good caInse"from UCS v. NRC that "[w)hethercharacterized specifically amend reactor licenJes.
requirements have been met has been However, as noted earlier, theComm consistent and longstanding, and isor a rulemaking, the Commission's reflected in Commission practice.s d
give the Court's opinion anintMpMtation t
Prm.edures for Power F eactor Construction Perm! s ber 15.
> sec. e# rerowns Fuer & her %cr corp and Operstmg tiernses 47 m 40535 (Septem the languag'e and context regmres.
cy 1M2): Filmg of Copies of Chesages to EmergenPlans and Proced Any reading of Section 189a. which
[
- v. A71DC.435ttS Sto(19 e)i tanceswhere 8 For eaample see the following ns Interferes with the Cornmission's ability t ns to i
the Comminum has invoked the APA excep m i ha s The Union of Concemed Scicausts states n 1
to to take immediate action affecti notice and commer.t rulenwLing-Amesdment 1982L h it t Def'm6 hon of Production Facihty 26 FR 4989 Onne s.
comments that the Commission retains aut or y tly ltd 1901).Silmg of Reprocesemg1%nts and Re a eWaste Management Facilitees. 36 FR 5411 (M take immediate oefety action. kmt apparen; nheves that language in S order or by rulemaking, when safefy g
i t of dments that d
teNuires it,is contra 7 o the inten 23.197th Prohibitmn of bite Prepstation anMd ately affective hcense amen
" gives t
Related Actmtws at FR 5745(Mart:b 21.1972t inui e "no significant basarda considersuon Congress. Alimitation on use o
?
mediately t fsempimn br Fauhues Procesamg trradiated the " immission its sole power to act imset safety.Thes langruage was no l d d in Md'erals Cantamins nuted ouannues of spect u
Nudear Matermis.391R 48'1(Februar) s.19"4L potential to interfere with theComm the 1954 statute and dad not appear un h, that Appiustmn of Certain Cust Benefit Andysis emendmenia Ttius. ocs. approach imp eprior to 1m2 the Comm t all to Requirements of Appendis I to Certain Neclear therefore should be interpretedn Power anta. 40 rR emw (september 4. anL take immediate safety action affecting c n rmly Codes end Standards for Nudcar Power Planta. 41 that after 19tm Cong cos allowed such actio venif a mechanisms cited by the comme Dt 23831 ilune 14.1M). Revocatnon of CertainReporting Requirements. 43 FR 4srt's (O through the device of amen &ns beenees.e b ore temporary bcense sunpeasson would e am r to the appropriate This approach is contradicts y 19?at Amendment to Definitian of Basic act quichly in the event of a safety t
Componenta. 43 FR 4521 (October la 19*CL emphasis on safety and flesthihty apparen emergency is not a sufficient ra;ionale to and DomesticIksnsingProceedmgi ModifiedAdjudmetory Procedures.44 FR B5050(Wrember thronghout the Act, hs legislative brstory. deny the Commission the availability of A
longstandmg Comasission practke prior to 1962more reaso s
h on lfr all mechanisms provided by law, soc 19'9h Packaging of Radsoacttve Materia s o b
adopts. ts that Consress intended from t 8begmning that the AP Trartsport and Transportatsen of RadicadsveMaterials under Certem Condeteens. 44 FR fuM as the use of the APA exceptions to 3
i effertne action obnuld be available to t eCommisamn and were no notice and comment rulemaking.
h thember z. to-9) rhysical Pr otection of 44 f1t s4466{}tme frradiated 'teactor Fuel tn Transit.
d s for 15.19'9L fherpenry Planning and Prepare nesProdachon and l'ashratwn F aabnes. 46 FR sertion we (necember an.1 Mil Commemon Review
3 O
O 13009
" Federal Register / Vol. 50 No. 63 / Tuesday, April 2,1985 / Rules and Regulations On a separate matter, UCS also Mota v. Secretary of Labor, focused on comment was " impracticable" or an application of the APA exception
" contrary to the public interest." Section 1
1 objected to a provision currently in 10 J
CFR 2.804 which allows the Commission from notice and comment rulemaking for 2.804(e) will also provide a pos to use means of providing notice of-interpretative rules. The issue in the promulgation comment opportunity for l
case was whether the particular rule policy statements and interpretative rules that are issued without prior notice g
proposed rulemaking other than
. publication n t e e eral Register.
was a " substantive" rule or an and comment. However, this c
i hFd
" interpretative" rule.The phrase cited Section 2.804(a) provides that:
by the commenter was made in the opportunity for post-promulgation j;j when the Commission proposes to adopt, context of determining whether the rule comment on interpretive rules and l
N amend, or repeal a regulation it will cause to was a " substantive" rule, i.e., whether it policy statement is not required if the 0
be published in the Federal Register a notice
" changes existing rights and Commission finds that such procedures
. l
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subject to the notice are named and either obligations." In applying the exemptions. would serve no public interest or would W
of proposed rulemaking unless att persons persona!!y served or otherwise have actual contained in Section 4 of the APA. the be so burdensome as to outweigh any notice in accordance with law.
Commission will follow all applicable forseeable gain.
E; 4 law, including judicial decisions, in Section 2.804(f).This section provides According to the commenter, Section determinmg whether a rule is an for a Commission evaluation of all h
h 189a of the Atomic Energy Act requires interpretative rule or a substantive rule g
f the Commission to provide a notice and as a part of its determination concerning comments received under the post.
y comment hearing to any person whose what rulemaking procedures are promulgation procedures of i 2.804(ej.
c interest may be affected by the 8pplicable, Section 2.805(a). This section has been g
proceeding. Because this could include Finally, one co nmenter (Middle South revised to reflect the revisions made to
+
all members of the public affected by Services), although supporting the rule, the proceeding, the commenter argues uc mmended that 10 CFR 2.805 be i 2.804.
that it is misleading to suggest that the amended to ensure that public Con > mission could avoid Federal participation in Commission rulemaking EnvimnmentalImpact: Categorical Register publication by attempting Is o mey s
. e Exclusion personal service of all affected members C9 The NRC has determined that this.
of the public. In addition, the commenter to amend Section 2.805 to final rule is the type of action described necessa asserts that the provision would be include t e word " timely." Each in categorical exchsion 10 CFR j
illegalif the Commission intends to Commission r& making establishes appmpriate requirements for timely 51.22(c)(1). Therefore r elther an
{(l environmental impact statement nor an e ic nsees gove ne pa t cu a Participation.
environmental assessment has been rules.
1his provision is within the IIL Final Rule prepared for this final rule.
4 permissible scope of 5 U.S.C. 552(a),is Section 2.804(d).This section provides
}
not an issue that was addressed in USC for Commission discretion to invoke,in Paperwork Reduction Act Statement v, NRC, and does not fall within the appropriate situations, the APA This final rule contains no information I
ambit of this rulemaking.Therefore, this exceptions to notice and comment provision is unaffected by this rulemsking as permitted by law. Under collection requirements and therefore is 4
rulemaking and is retained as pnrt of the final rule. notice and comment not subject to the requirements of the l
Commission regulations, would not be mandatory in Commission Paperw rk Reduction Aet of1980(44 Another commenter (Yankee Atomic) rulemaking within the scope of section U'8
- #' 'M writing in support of the rule, stated that 553 of the U.S. Code, when they involve the notice and comment requirements of interpretative rules, general statements ~
Regulatory Flexibility Certificat.ion 3
Section 4 of the Administrative of policy,or rules of agency Procedure Act must be followed organization, procedure, or practice, or' As required by the Regulatory whenever a Commission rulemaking where the Commission for good cause Flexibility Act of 1980,5 U.S.C. 605(b),
... changes existing rights and finds that notice and comment are '
the Commission certifies that this rule
'I obligations.. for licensees. The bas,s impracticable, unnecessary or contrary will not have a significant economic
.1 i
for this statement, and the source of the to the public interest. llowever, the use impact upon a s6stadal number of j
quoted material,is the decision in of such exceptions is not available when small entities. It merely clarifies and g
Lewis-Moto v. Secretary of Lobot, 409 notice and comment are required by afnrms existing Commission practice on p
F.2d 478, 482 [2d. Cir.1972). In response.
statute.The Commission interprets the utih,zmg the statutory exceptions to
,p the Commission reiterates that any UCS v. NRC case as establishing such a notice and comment rulemaking y
limitations on the use of the APA limitation pn the use of the APA contained in Section 4 of the
-(
exceptions from notice and comment exceptions only for rules which Administrative Procedure Act 5 U.S.C.
j
)
inferred from UCS v.NRC only apply to specifically amend reactor licenses.The 553.
the kind of rulemaking under review in exceptions to notice and comment will
-]
that case, i.e. rules that specifically be available for use,in appropriate 5
amend reactor licenses. Under the final situations for all other rules, including Llst of Subjects in 10 CFR Part 2
'j rule. the Commission can availitself of those that deal with the activities of Administrative practice and the APA exemptions.If the requisite licensees.
Section 2.804(e). This section provides procedure, Antitrust. Byproduct material, Classified information.
.I criteria are met, for any other rulemakings even if they do affect the for post. promulgation comment for all Environmental protection, Nuclear
" rights and obligation" of licensees. The rules issued on the basis of the good materials. Nuclear power plants and case cited by the commenter Lewis-cause exception when prior notice and l'
4 1
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85 / Rul:s L ) Regulations Federal Rbglster / Vol. 50. No. 63 / Tuesdzy, April 2.19 FEDERALRESERVE SYSTEU s
18018 (b), and (c) of this section will not be 12 CFR Parts 204,200, and 217 rasctors. Penalty. Sex discrimination,required to be applied-IDocketNo R-05421 (1)To interpretative rules, generalRegulations D, H, and 0; Repurchase Source materist.Special nuclearmzterial, Waste treatment and disposal-statements of policy, or rules of agency Agreement invoMng Sharoo of a 01 organization, procedure, or Practice:(2)When the Commis
\\ Money MarketMutualFund Whose For the reasons set out in the Portfolio Consists Wholly of United preamble and under the authority of theAtomic Energy Act of 1954, as ame cause f'mds that notice and pubhc StatesTreasury and Federal Agency Securities; State Member BankMoney Market comment are impracticable, the Energy Reorganization Act of1974, unnecessary, or contrary to the pubh.Interen.Jmd. AIRE c
RC Es emended, and 5 U.S.C. 553. the N P
is cdopting the following amendments to This finding, and the reasons therefor' t
ent f r go d 5wit out no i e nd o Board of Governors of the PART 2-RULES OF PRACTICE FOR AGENCY:
DOMESTIC LICENSING PROCEEDINGS (e)The Commission shall provide for Federal Reserve System.
Qause.
a 30 day post-promulj;ation comment Finalinterpretation.
AcnoN:
Sutsport H--RutemeWng 1.The authority citation for Part 2 P.eriod for-The Board of Governors has continues to read as follows:
(1) Any rule adopted without noticeissued an interpretation of the definition SUMMArty:
of depositinRegulationD-Reserve 181.181. 08 Stat. 948. 053.and comment under the good cause Requirements of Depository Institutions es amended (42 U.S C 22o1,2231); sec.191. as exception on paragraph (d)(2) of this Authority: Secs (12 CFR Part 204) and Regulat re th b i is that notice aminded. Pub. L 87-615.76 Stat. 409 (42 and commentis,9 as impracticable, or w
se I
" contrary to the public Interest."
exclude from the definition of the term
.C 1 5 U S.C 552.
Section 2.101 also issued under secs. 53.,
(4
" deposit" repurchase agreements (2) Any interpretative rule, or general
- 63. 81.103.104,105,68 Stat. 930. 932. 933,9 involving shares of a money market statement of policy adopted without 93C 937.938, as amended (42 U.S.C 2073.
mutual fund whose portfolio constats notice and comment under paragraph 2002. 2093. 2111,2133, 2134. 2135); sec.102.
wholly of United States Treas (d)(1) of this section,except for thosecases for which the Pub. L 91-190. 83 Stat. 853, as amended (42U.S.C 43321; sec. 301, as Stat.1248 i,
Governors has also issued an that such procedures would serve no interpretation to Regulation H-s 102 1
'.1 1
83.
public interest. or would be so Membership of State Banking aa is u n er 189. 68 Stat,936,937.938. 954,955 as burdensome as to outweigh any Institutions in the Federal Reserve amended (42 U.S.C 2132. 2133. 2134,2135, System (12 CFR Part 208) to permit state 2233. 2239). Section 2.105 also issued underPub. L 97-415,96 Stat. 2073 (42 U.S foreseeable gain.
member banks to purchase shares in a
@ For any post. promulgation comments received under paragraph (e)
Section 2.200-2.200 also issued under secs.180. 234. 68 Stat. 955, 83 Stat. 444. as a money market mutdal fund whose of this section, the Commission shallportfolio consists entirely of assets that
.L (42 U.S C 2238,2282) sec. 206. 88 Stat.1246 publish a statement in the FederalRegister containin EmCME DAMhe reserve the bank may purchase directly.
(42 U.S.C 5846). Sections 2.300-2.309 alsolasued under Pub. L 9 significant comments and any revisions l i ed
. U.S.C 2133) Sections 2 000-2.606 a so ssuunder sec.102. Pub. L 91-190. 83 Stat. 853 of the rule or policy statement made as a computation p amended (42 U.S.C 4332). Sections 2.700a.
t 1981 2.719 also issued under 5 U.S.C 554. Sections resu;t of the comments and then.
J. Virgil Mattingly. Associste General 2.754,2.760, 2.770 also issued under 5 U.S.C.
evaluation.
557. Sections 2.790 also issued under sec.103,
- 3. In i 2.805, paragraph (a) is revised Counsel (202/4t,2-3430), or l>
<I.
GB Stat. 936, as amended (42 U.S C. 2133) and to read as follows.'
1 Division. Board of Governors of the 511 S C 552. Sections 2.a00 and 2.808 also
.f lasued under 5 U.S C 553. Section 2.809 alsolasued under 5 I 2.805 Participating try Interested Federal Reserve System. Washington, Bb256. ?1 blat. 579, as amended (42 U.S C.
D.C. 20551 persons.
(a)In all rulemaking proceedings SUPPL.EMENT ARY INFORMADON:
2039) Appendix A also issued under sec.e, Pub. L 91-580. 84 Stat.1437 (42 U.S l
conducted under the provisions of
- 2. In i 2.804, paragraph (a) is revised i 2.804(a), the Commission will afford lJst of Subjects i
interested persons an opportunity to 12 CFR Port 204 and new paragraphs (d). (e), and (f) are participate through the submission ofsWemmts, Reserve System. Penalties. Reporting Banks, banking. Currency. Federal added to read as follows:
G Notice of proposed rulemakin9 n Uce.The Commission may grant requirements.
(a) Except as provided by paragraph additional reasonable opportunity for If CTR Port 208 f 2.404 Id) of this section. when the Commission the subnussion of comments.
Banks, banking. Federal Reserve proposes to adopt, amend or repeal aregulation,it will cause to be pub System; Reporting requirements, ti of Securities.
in the Federal Register a no ce proposed rulemaking, unless all persons Detr d at W ashington, D.C., this 28th day of
/
72 CFR Port 217 l
Advertising. Banks banking. Federal subject to the notice are named and March 1985.
cither are personally served or For the Nuclear Regulatory Commission.
lieserve System. Foreign banking.
i
~
otherwise have actual notice in Pursuant to its authority under t
accordance withlaw.
John C Hoyle, sections 9 and 19 of the Federal R Actmg Secretory of the Commission.
IFR Doc. 8b7848 Filed 4-1-85: R:45 am)
Act (12 U.S.C. 321 et seg. and 461 et I
(dJ The notice and comment sn.uwa coot new provisions contained in paragraphs (a),
1
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