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 . .. .
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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 ,
q Commission's decisicn to, delegate to the EDO the authority.to issue 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".
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- 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."
- 1. 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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O I ti ns _
Federal Register / Vcl. 50, No. 63 / Tuesdry. April 2,1985 / Rules a d R ~
13006 exception. After recelving this 2 comment, the NRC had among other additionalbriefing, the Court on
. (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 below the poverty line. 10 CFR 2.804 which the Court read, opinion the Commission's motion toa (ii) 2.0 percent when the median contrary to the Commission's household income of the service interpretation, area is as a requirement nt for explanation or clarification ofitsholdin in prior above the poverty line but not more than . notice and opportunity for comme shouldissue, 85 percent of the State's all Commission rulemakings.ne Court in the Supplementary Information to noametropolitan median household concluded that the NRC had divested the proposed rule,the Commission income. itself of whatever discretion applicable notedits view that any reading of
- * * *, e statutes might allow for dispensing withSecti'on 189a which interferes with the Commission's ability to take immediate 17 U.S.C.1989; 7 CFR 2.23; 7 CFR 2.7o) notice and comment.
D: tid. February 28,1985.
in response, the Commission issued aaction affecting the activities of NRC lations proposed rule to clarifyits re e licensees, whether by individual order Dwight O. Calhoun, so as toleave no doubt that or by rulemaking, when safety requires Actins Associate Administrator.rarmers Commission 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-" ~
7 (ApA),5 U.S.C. 553(b), to make of the APA " good cause" exception
- excepuons to,the general requirements clearly has the potential for such for notice anc opportunity for comment NUCLEAR REGULATORY in informal rulemaking (49 FR13043, interference and therefore should be interpreted narrowly.
COMMISSION April L1984).Insnaking this Under these circumstances, itis clarification, however, the Commission reasonable to interpret the court's 10 CFR Par 12 s also noted that the D.C. Circuit 'inopinion UCSno broader than the language v.NRC had called into question the and the context require. Accordingly, Exceptions to Notice and Comment Ralemaking Procedures extent to which the Commission can the Commission interprets the language lawfully claim discretion to invoke the AoINcy: Nuclear Regulatory ApA exceptions to notice and comment in UCS v.NRCrelevant to the Commission.
rulemaking. As an alternative reason for avadability of the " good exception to apply only to the caus 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
SUMMARY
- 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' 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
( and 2.805 to clarify the Commission's ' good cause" exception in the lune 30.to make other kinds of rules effective' 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, of this holding left unclear whether the the Commission proposed to include in section 4 of the Administrative 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 of exceptionin any NRC rulemaking rulemaking will applydred only bywhere notice affecting the activities of licensees, or as Cdumbia decision in Union of a less sweeping restriction that would and comment are not re l ConcernedScientists v.Nucleor statute.
Regulatory Commission,711 F. 2d 370 only apply to rulemakings which The proposed ruleleft intact for the l s pecihcally amend reactor licenses.1 lonmovd most part the Commission's (D.C. Cir.1983). ,hC EFFECTIVE DATE:May 3,1985. n p . longstanding and consistent
,f. "
i dt FOR FURTHEA INFORMATION CONT Francis X.Osmeron, Office of the ACT:
fp' inn' o interpretation of its statutory au Court that tha discussion of the relation
((t Executive legal Director U.S. Nuclear Regulatory Commission Washington, between&ction189a and the APA in10 CFR Part 2. Subpart H, that the -
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-SUPPLEMENT ARY INFORMATION: raised issues which had not been briefed, was ambiguous in its scope, and* Interpretative rules, general
- 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 -
and safety.The Court then called for
- When the agency '.'or good cause l, Union of Concerned Scientists v.
Nuclear Regulatory Commission. 711 F. simultaneous briefing by the parties on finds that notice and comment are 2d 370 (D.C. Cir.1983) ("UCS v. the availability of the APA " good cause" NRC*). Im, practicable, unnecessary, or contrary 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 To ensure that the regulation licenses by removing the deadline for The Commission filed a brief which unambiguously reflected the the environmental qualification of maintained that Section 189a doesCommission's not intentions, the proposed restrict use of the " good cause" 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 ~
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Federr.1 Regist:r / Vol. 50, No. 63 / Tuesday, April 2,1985 / Rule 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 14 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 proposed rule, notice and comment "will give interested persons a chance to roceeding dealing with the activities of L would not be mandatory in Comminion
< rulemaking within the scope of section expose any errors or oversights that
' occurred in the formulation of theCommission icensees and consequently prohibits the lN r
l rule from restricting the i 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. exceptions to notice and comment ! "4 of policy, or rules of agency - rulemaking to rulemakings which amend IF 4
organization, procedum, or practice, or e promulgation comment opportunityshould reactor licenses. not extend Section 189a(1) toofrules the for wh where the Commission for good cause : agency determines public notice and AtomicEnergy Actprovides,amcas 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 ,
ittle interest. permit, or application to transfer control, and
Ths Commission received ed I ki five The Commisslun agrees in principle m anyproceeding for the issuance or 4 h
with the recommendation of the modification of rules and ergulations dealing ACUS. .!
wo of ee ere f o the uc ear Accordingly, the final rule incorporates - with the activities oflicensees, and in any industry (Yankee Atomic Electric a new provision, to CFR 2.804[e), to , proceeding for the payment of compensation.
Comptny, Comment 2: Middle South 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 exception 1), is invoked when prior notice Commissi n hol/ grant a hearing upon the 4 one from a public interest group (Union request of any person whose interest may be e of Concerned Scientists, Comment 5), a..nd comment p"gis " impracticable".or g affected by the proceeding. (Emphasis added)
- cnd one from a Federal agency con a o nts,th m UCS argues that this provision 7,ce (Administrative Conference of thewill publish a statement in the Federal constitutes a statutory bar to,the use of ente (M.L Inis) Register which provides an evaluation the ApA exceptions from notice and n of t es'e co f any significant issues raised by the comment rulemaking. These exceptions expressed the opinion that the proposed are normally available. "except when ,,
rula was an attempt to remove the public comments, as well asnotice anyrevisions to theby rule ublic's right to (.omment on a rule or hearing is required statute.that have resu from the staff evaluation of the public 5 U.S.C. 553(b). According to the efore it becomes effective.The commenter, this proposition was proposed rule simply incorporates into comments.
ths Commission's regulations, the In addition, the ACUS recommended affirrned in UCS v. NRC where the D.C.
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 exceptions, generally available to all interpretative ;ules or general policy or a rulemaking. the Commission's 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 normal public participation procedures least to provide a post promulgation requires notice and opportunity to , ss."
should not be required in advance of comment opportunity if there has been comment for both types of proceedm 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 type it isofnecessary rule at issue in because that case,i.e. of Recomm public interest in the rule.The (1984).The Commission normally rules which specifica!!y amend reactor 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 provide for public participation in interpretative rules, and will continue to needs the APA " good cause" exception to take immediate action when safety Commission rulemakings. , do so in the future. In order to retain the 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 .
an "immediately effective license States (ACUS). recommended thathas not adopted the ACUS the recommendation completely. The arr adment" when no significant final rule provide an opportunity for
" post promulgation" comment whenever Commission, in 10 CFR 2.804(e), hazards are involved or to issue
- en the good cause exception of Section provides 4 of for a post promulgation "immediately effective order."
the APA was invoked because prior comment opportunity for interpretative in response, the Commission first notice and comment was rules or general statements of policy reiterates its earlier statement that it is
" 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 provided when the good cause would " serve no public interest or context appear to require. As noted 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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= .
O-April 2,1985 / Rules and R guhtiottsf OI Federal Register / Vol. 50 No. 63 / Tuesday. action runs afoul of the~ express terms o C-k
$3308 The interpretation on which h UCS section189a which unequivocallyrequi P Act as a generalbar to the use ofNuclear insists the cannot be reconciled Regulatory Commission's clear typeswith oft e .
proceedings." supro at 380. J I
responsibility to act swiftly to protect APA " good cause" exception of licensee,or as a less sweeping publichealth in andanyNRCsafety when it must rulemaking be affecting AtomicEnergy Act 42U.S.C.2237.
readthe in activities the context 6 of th perceives that a regulated activity l restriction. which would uld only apply presents regulatory an unduetorulemakings risk.Under framework estabitsbed h Section the by twhich 187specifically e to amendment.
explicitly provides amend ( that i
be subject revision.
d or 5
, reactor licenses.The Commission Atomicwo Energy Act, the Commission's modification. . . . by reason of rules an I note that Section 181 of the Atomic means of responding l Energy Act etates that "lt]heprimary regulations issued to hazardsis in accordance bywith suspendi l
provisions the terms of this Act." As the Court
' of the Administrative shall apply to all agency action taken Procedure Act licenses.The . .
notice and bearing requirements for such actions are set out noted:
we express no opinion on the arguments of under this Act," 42 U.S.C. 2231.11is well established that 'Nmmission in Section langucge that189a[1]
applies toof the Act rulemaking the in the on parties same the question whether these dication amendrnents anust be made byf adju rulemakingis gove' ubydealms the APArequirements with the activities oforlicensees. for whether informal they fall within rulemalmg.
that category o set out in 5 U.S.C. 533, in which the Accordingly,if Congress intended thelanguage of Section licensa amendments that may be made by rule exceptions to notice and comment as the commentor would read it, as anunder section 187 of the Atomic Energy appear.8 Unless the APA exceptions withdrawn by language elsewhereabsolute the in are bar on the Commission's Act. 42 U.S.C. I 2:37 (Hrre) Mat la a matter d for the NRC Weto determine in t!the first instance Atomic Energy Act. It should be ability to promulgate regulationswithout on remand.
and an opportunity merely to delay hold here comment evenmust when at be notice there is presumed the Congress intended cause the for doing so, the same bar exceptions to be available.The apparently would apply tod immediate provided whatever administrative b t rms route is action by the Commission to suspen taken.er Section 187 provides that bject"(ti e e Commission does not believe that thelanguage of Section 189a.or revoke licenses in circumstances and conditions of all heenses shati be su to amendment where d
. . .by reason hof rules an any other language in the Atomic Energy Act, delay could have grave consequences- regulations issuedin accordonce :37 with t e compels a finding that Congress This cannot have been Congress'tenus of this chapterIsic]." 42 U.S.C. I 2 intended to deprive the Commission intention.Even theofthe rulemaking (emphasis commentorrecognizes added).Since flexibility thatsection189(s) h such permitted a restriction by the APA. Nothing in the language of Section 189a or the legislative history be fundamentally at odds requires with a hearing"in theCommission's I2239(a), any proceedin responsi specifies that in rulemaking the Commission therefore rejects their with the activities of beensees." id. t Commission is to be interpretation of Section 189(a) limited by theconstraints of the APA.but denied the as a license amendment ith the effected pursu opportunity to use the flexibility overriding the APA good would not be " issuedand causeexception terms of this chapter? M.
in accordance requiringwprior no provided by the APA.The Commission's comment in all Commission flicensing .
l interpretation of the AtomicEnergy Actas notInprohibiting and rulemaking activities, regardless order o to comply the promulgation with the Court's of a rule without notice and opportunitycircumstances.The to language the commenter providescites for prior notice and comment comment when APA " good caInse" whenever a rulemaking would requirements have been met has been consistent and longstanding, and is from UCS v. NRC that "[w)hethercharacterized specifically amend reactor licenJes.
or a rulemaking, the Commission'sHowever, as noted earlier, theComm d reflected in Commission practice.s t
> sec. e# rerowns Fuer & her %cr corp Prm.edures and Operstmg tiernses for Power 47 m 40535 cyF eactor ber 15.
give the Court's opinion anintMpMtation (Septem Construction Perm! s
[ the languag'e and context regmres.
i
- v. A71DC.435ttS Sto(19 e) i tanceswhere 8 For eaample see the following ns t ns to 1M2): Filmg of Copiesi haof Chesages Any reading to ofEmergenPlans Section 189a. which and Proced 1 the Comminum has invoked thetoAPA excep 1982L m Interferes with the Cornmission's ability notice and commer.t rulenwLing- Amesdment s The Union of Concemed Scicausts orstates n h it t
, Def'm6 hon of Productionltd Facihty comments 26 FR 4989 thatOnne the s.
Commissiontly g to aut retains take y immediate action affectin i
1901).Silmg of Reprocesemg1%nts d take immediate and Re a eWaste oefety dments action.
that
" gives Management kmt order orapparen; by Facilitees.
nheves rulemaking, t
when t that of 36 safefy FR 5411in(M language S 23.197th Prohibitmn of bite Prepstation an Md ately affective hcense amen mediately teNuires it,is contra 7 o the inten Related inui e "no significant basarda considersuon
? t fsempimn Actmtws br Fauhues at FR 5745(Mart:b Procesamg trradiated 21.1972t
" immission its sole powerCongress.
l d d in Alimitation on was usenoo Md'erals Cantaminsu nuted ouannues the of spect h , that to act imset safety.Thes langruage Nudear AppiustmnMatermis.391R 48'1(Februar) the 1954 statutes.19"4L and dad not appear un of Certain Cust Benefit Requirements of Appendis I to Certain Andysis emendmenia Neclear Ttius. ocs t all to
. potential to interfere with theComm approach imp eprior to 1m2 the Comm n rmly Power anta. 40 rR emw (september take Codes end Standards for Nudcar
- 4. anL immediate safety action affecting that afterPower 19tm Cong cos allowed Planta. 41 such actio venif a c therefore should be interpretednb through the device of amenb &ns ore beenees.e Dt 23831 ilune 14.1M). Revocatnon of CertainReporting temporary bcense sunpeassonr towould the e am t contradicts y mechanisms Requirements. cited by 43 the comme FR 4srt's (O 19?at Amendment to Definitian appropriate Basic onThis approach is (October of act quichly in the event of a safety Componenta. 43 FR 4521 s laemphasis 19*CL safety and flesthihty and apparen A emergency is not a sufficient ra;ionale to thronghout the Act, hs legislative on brstory.
DomesticIksnsingProceedmgi lfr ModifiedAdjudmetory longstandmg Comasission Procedures.44 deny practke priorFR the Commission B5050(Wrember the to 1962more h availability of reaso 19'9h Packaging of Radsoacttve Materia s o 3
b all mechanisms provided by law, soc i
> Trartsport and Transportatsen adopts. ts that Consress of RadicadsveMaterials h as the use intended under of the tAPA from Certem exceptions that 8begmning Condeteens. .
to 44 FR thefuM AP thember z. to-9) rhysical 44 f1tPr otectioneffertneof notice and comment rulemaking.
frradiated 'teactor Fuel tn Transit.
s4466{}tme d s for action obnuld be available to t eCommisamn and were no 15.19'9L fherpenry Planning sertionand we Prepare nesProdachon and l'ashratwn F aabnes. 46 FR (necember an.1 Mil Commemon Review
O O 13009 3
" Federal Register / Vol. 50 No. 63 / Tuesday, April 2,1985 / Rules and Regulations comment was " impracticable" or Mota v. Secretary of Labor, focused on On a separate matter, UCS also " contrary to the public interest." Section 1 an application of the APA exception 1 objected to a provision currently in 10 J CFR 2.804 which allows the Commission from notice and comment rulemaking promulgation for 2.804(e) comment opportunity will for also providel a pos to use means of providing notice of- interpretative rules. The issue in the case was whether the particular rule policy statements and interpretative rules that are issued without prior notice g proposed rulemaking other than c was a " substantive" rule or an
. publicationin t hFd Section 2.804(a) provides that:
e e eral Register. " interpretative" rule.The phrase cited by the commenter was made in the and comment. However, this opportunity for post-promulgation j;j comment on interpretive rules and l when the Commission proposes to adopt, context of determining whether the rule 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 be published in the Federal Register a notice Commission finds that such procedures 0
" changes existing rights and .l of proposed rulemaking unless att persons obligations." In applying the exemptions . would serve no public interest or would W subject to the notice are named and either be so burdensome as to outweigh any
\ persona!!y served or otherwise have actual contained in Section 4 of the APA. the Commission will follow all applicable forseeable gain.
notice in accordance with law. 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 h for a Commission evaluation of all h 189a of the Atomic Energy Act requires interpretative rule or a substantive rule g the Commission to provide a notice and as a part of its determination concerning comments received under the post. f y
comment hearing to any person whose what rulemaking procedures are c promulgation procedures of i 2.804(ej.
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 of the public. In addition, the commenter necessa to amend Section 2.805 to The NRC has determined that this .
final rule is the type of action described asserts that the provision would be include t e word " timely." Each j in categorical exchsion 10 CFR illegalif the Commission intends to Commission r& making establishes 51.22(c)(1). Therefore r elther an e ic nsees gove ne pa t cu a appmpriate requirements for timely environmental impact statement nor an {(l Participation.
rules. environmental assessment has been 1his provision is within the IIL Final Rule prepared for this final rule. 4 permissible scope of 5 U.S.C. 552(a),is not an issue that was addressed in USC Section 2.804(d).This section provides for Commission discretion to invoke,in Paperwork Reduction Act Statement
}
v, NRC, and does not fall within the appropriate situations, the APA ambit of this rulemaking.Therefore, this exceptions to notice and comment This final rule contains no information I 4
rulemsking as permitted by law. Under collection requirements and therefore is provision is unaffected by this 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 organization, procedure, or practice, or' As required by the Regulatory Procedure Act must be followed Flexibility Act of 1980,5 U.S.C. 605(b),
whenever a Commission rulemaking where the Commission for good cause . . .!$
. . . changes existing rights and finds that notice and comment are ' the Commission certifies that this rule will not have a significant economic
'I obligations . . for licensees. The bas,s i impracticable, unnecessary or contrary .1 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 UCS v. NRC case as establishing such a notice and comment rulemaking y the Commission reiterates that any ,
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 criteria are met, for any other material, Classified information.
rulemakings even if they do affect the for post. promulgation comment for all Environmental protection, Nuclear
.I rules issued on the basis of the good
" rights and obligation" of licensees. The materials. Nuclear power plants and cause exception when prior notice and case cited by the commenter Lewis-l' 4
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Federal Rbglster / Vol. 50. No. 63 / Tuesdzy, April 2.19 FEDERALRESERVE SYSTEU 18018
- (b), and (c) of this section will not12beCFR Parts 204,200, and 217 rasctors. Penalty. Sex discrimination, required to be applied- IDocketNo R-05421 (1)To interpretative rules, general Regulations D, H, and 0; Repurchase Source materist.Special statements nuclearmzterial, of policy, or rules Waste of01 agency treatment Agreement invoMng and Sharoo disposal-of a
\ Money MarketMutualFund Whose For the reasons set out in the organization, procedure,Portfolio or Practice:(2)When Consists Wholly of United the Commis preamble and under the cause authority f'mds that notice comment are impracticable, ofandtheAtomic pubhc c
EnergyandAct StatesTreasury ofAgency Federal Securities; State Member BankMoney Market 1954, as ame the Energy Reorganization Act RC of1974, Es emended, and 5 U.S.C. 553. the is cdopting the following amendments unnecessary, N
t to or contrary P to the pubh.Interen.Jmd. AIRE This finding, and the reasons therefor' I "
10 CFR Part 2. ent f r go d **
5 out no i e nd o wit AGENCY: Board of Governors of the PART 2-RULES OF PRACTICE Qause.FOR Federal DOMESTIC LICENSING PROCEEDINGS (e)The Commission shall provide forReserve System.
Finalinterpretation. -
a 30 day post-promulj;ation commentAcnoN:
Sutsport H--RutemeWng _
1.The authority citation for Part 2 P.eriod for- SUMMArty: The Board of Governors has (1) Any rule adopted without notice issued an interpretation of the definition
. continues to read as follows: and comment under the good cause of depositinRegulationD-Reserve Authority: Secs 181.181. 08 Stat. 948. 053. Requirements of of Depository Institutions es amended (42 U.S C 22o1,2231); sec.191. as exception on paragraph (d)(2) this re th b i is that notice aminded. Pub. L 87-615.76 Stat. se and w
409commentis (42 ,9 as impracticable (12 CFR , or Part 204) and Regulati I
.C 1 5 U S.C 552.
(4 Section 2.101 also issued under secs. (2)
" contrary to the public Interest."
53.,Any interpretative rule, or general exclude from the definition of the term
" deposit" repurchase agreements
- 63. 81.103.104,105,68 Stat. 930. 932. 933,9 involving shares of a money market 93C 937.938, as amended (42 U.S.C 2073. statement of policy adopted without mutual fund whose portfolio constats 2002. 2093. 2111,2133, 2134. 2135); sec.102. notice and comment under paragraph i, Pub. L 91-190. 83 Stat. 853, (d)(1) as of this section,except amended (42U.S.C wholly ofsec.
United for thosecases 43321; 301,States forStat.1248 as which Treas the(
1 83. that such procedures would serve no Governors has also issued an n er s 102 1 '.1 interpretation to Regulation H-aa is u public interest. or would be so Membership of State Banking 189. 68 Stat,936,937.938. 954,955 as burdensome as to outweigh any amended (42 U.S.C 2132. 2133. 2134,2135, Institutions in the Federal Reserve underPub.System (12 CFR Part 208) to permit state foreseeable gain.
2233. 2239). Section 2.105 @ also For anyissued post. promulgation L 97-415,96 member Stat. shares banks to purchase 2073in(42 a U.S comments received under paragraph money (e)market mutdal fund whose
.L Section 2.200-2.200 also issued underthesecs.180.
of this section, Commission234. shall 68 portfolio Stat. 955,entirely consists 83 Stat. 444. as of assets thata (42 U.S C 2238,2282) sec. 206. 88 Stat.1246 the bank may purchase directly.
(42 U.S.C 5846). l i ed publish 2.300-2.309 Sections a statement inalsolasued the FederalRegister EmCME DAMhe reserve under Pub. containinL9 significant comments and any revisions
. U.S.C 2133) Sections 2 000-2.606 of the rule a so orssuunder policy statement t
sec.102. 1981 madeL as Pub. a computation 91-190. 83 Stat. 853 p amended (42 U.S.C 4332). Sections resu;t2.700a.
of the comments and then.
l> >
2.719 2.754,2.760, also issued 2.770 also under issued 5 U.S.C under 5554.
evaluation.
U.S.C. Sections J. Virgil Mattingly. Associste General
<I. 557. Sections 2.790 also issued under 3.sec.103, In i 2.805, paragraph (a) is revised 1 GB Stat. 936, as amended (42 U.S to C.
read2133) and as follows.'
Counsel (202/4t,2-3430), or
.f 511 S C 552. Sections 2.a00 and 2.808 also Division. Board of Governors of the I 2.805 Participating try Interested Federal Reserve System. Washington, lasued under 5 U.S C 553. Section 2.809 alsolasued under 5 Bb256. ?1 blat. 579, as amended (42 persons.
U.S C. , D.C. 20551 l (a)In all rulemaking proceedings SUPPL.EMENT ARY INFORMADON:
! 2039) Appendix A also issued conducted under under sec.e, the provisions Pub.ofLlJst 91-580.
of Subjects 84 Stat.1437 (42 U.S i
- 2. In i 2.804, paragraph (a) is revised i 2.804(a), the Commission will afford -
and new paragraphs (d). (e), and (f) interested are persons an opportunity to 12 CFR Port 204 Banks, banking. Currency. Federal G added to read as follows: participate through theReserve submission ofsWemmts, System. Penalties. Reporting
- ""'# '#' requirements.
Notice of proposed rulemakin9 n Uce.The Commission may grant
' f 2.404 (a) Except as provided by paragraph additional reasonable opportunity for If CTR Port 208 Banks, banking. Federal Reserve Id) of this section. when the Commission the subnussion of comments.
System; Reporting requirements, proposes to adopt, ti of amend or repeal aregulation,it Securities.
will cause to be pub
/ ,
in the Federal Register a no ce Detr d at W ashington, D.C., this 72 28th proposed rulemaking, unless all persons CFRday of Port 217 l
i subject to the notice are named and March 1985. Advertising. Banks banking. Federal cither are personally served or For the Nuclear Regulatory Commission. lieserve System. Foreign banking.
~
otherwise have actual notice in John C Hoyle, Pursuant to its authority under t accordance withlaw. sections 9 and 19 of the Federal R I Actmg Secretory of the Commission.
Act (12 U.S.C. 321 et seg. and 461 et IFR Doc. 8b7848 Filed 4-1-85: R:45 am) sn.uwa coot new (dJ The notice provisions and comment contained in paragraphs (a),
1 -