ML20236S384
| ML20236S384 | |
| Person / Time | |
|---|---|
| Issue date: | 10/15/1987 |
| From: | Zech L NRC COMMISSION (OCM) |
| To: | Rodino P HOUSE OF REP., JUDICIARY |
| References | |
| NUDOCS 8711250120 | |
| Download: ML20236S384 (3) | |
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u UNITED STATES NUCLEAR REGULATORY COMMISSION o
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W ASHINGTON, D. C. 20555 October 15, 1987
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' CHAIRMAN
.The Honorable Peter W. Rodino, Jr., Chairman Committee on the Judiciary United States House of Representatives Washington, D. C.
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Dear Mr. Chairman:
This responds to your request for the~ comments of the Nuclear Regulatory Commission on H.R. 1554 and H.R. 2726, bills proposing'an " Administrative Law Judges Corps Act."
The Commission has a number of concerns with the proposed
' legislation, in particular the' potential effect on NRC's Atomic Safety and Licensing Boards (ASLB) and on NRC's present.
use of administrative law judges (ALJs).
The Commission has established ASLBs under Section 191 of the Atomic. Energy Act of 1954 (AEA) to conduct most of the agency's formal adjudications, in particular those involving the licensing of nuclear power plant construction and operation.
Each ASLB usually consists of one lawyer member and two technical members, appointed from a panel of qualified persons designated by the Commission.
This system was established by Congress in explicit recognition of the technical, scientific nature of-the questions that are before the NRC in its licensing cases, and has served the agency well by ensuring that the complex issues involved in nuclear licensing are fully explored.
At present, the Commission uses its two ALJs both as lawyer members of ASLBs-(in which case they are appointed under Section 191 of the AEA) and as presiding officers in informal and formal hearings provided by the agency (in which case they function as administrative law judges appointed under 5 U.S.C. 6 3105).
The Commission is concerned that the bill could adversely 1
impact our ASLB and its technical expertise that is so Neither bill clearly l
essential to the NRC's safety mission.
excludes from the jurisdiction of the Corps cases currently adjudicated before the ASLB.
We assume that the bills do notintendtoabolishorlimittheASLgbecauseSection191 of the AEA is not repealed or amended.
However, it would be i
I In this context, we note that H.R. 1554 explicitly provides that "an agency, or one or more members of the body that comprise the agency, may) hear a case and render the decision thereon."
Section 468(c (1).
Since the ASLB acts for the
[ Footnote continued]
0711250120 871015 PDR COMMS NRCC CORRESPONDENCE PDR
desirable to add to either. version of the proposed legislation the following section which is similar to Section 7 of H.R.
J 2726 (exempting boards established under the Contracts Disputes
'Act):
Nothing in this Act.or the amendments made by this Act shall be deemed to affect any agency board established pursuant to the Atomic Energy Act of 1954-(42 U.S.C. 6 2011 et sec'.), or any other person _ designated to resolve claims or c.isputes pursuant to that. Act.
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1 While we do not read the bills as affecting the Commission's authority to appoint its administrative law judges to serve as legal members of ASLBs, the provision of both bills that
"[e]ach administrative law judge serving as such on.the-date i
l of the commencement of the operation of the Corps.shall be transferred to the Corps on that date" (H.R. 2726. 6 585(b);-
H.R. 1554 % 562(b)), will result'in these individuals simultaneously being subject to the Corps and thus.to j
assignment to hear non-NRC cases.
The dual role may be difficult to implement in practice.
3 Additionally, the Commission is concerned about any possible effects of the proposed legislation on the Atomic Safety and Licensing Appeal Panel and on the Commission's Rules of Procedure at 10 CFR Part 2, Subpart G.
While the bills do not i
appear to affect any agency's appellate responsib1?it-les, the in resciving any addition suggested above would be helpfuldoubts raised concerning th; 4
r 1
[ Footnote continued]
s agency, this provision would seem to provide a-clearer basis for the continued functioning of the ASLB than simply the absence of amendment to Section 191 of the AEA.
The i
1 Administrative Procedure Act has a similar proviso at 5 U.S.
i C. 6 556(b) which, in addition, states that "[t]his subchapter does not supersede the conduct of specified classes of
/
proceedings, in whole or in part, by or before boards or other employees specially provided for or designated under statute."
A similarly explicit statement would be desirable in the legislation under considerate 3n.
I In addition to its authority to hear cases on appeal, the l
Appeal Board has limited authority to take evidence which, although sparingly used, has proven useful to the agency.
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u It is-not clear whether provisions in,.the bills aut'h'ogiz'ing the-Corps to prescribe Rule of' Pract 'ce and Procedurel for the
.c conduct of cases lis* intended to sup rsede 'or interf are with-q L
Commissi'n regulations.
NRC's proc dural? regulations are.
a tailored to the' Commission's specif pq11censingland related-i needs..'and. substantive and proceduraJ/ regulations are.
the"A$ld to ipt3i)ct-adjudication before the/vious tohresetve interrelated.
Just as'the' Commission is an NRC, the~
Commusihn is onx. tus to, preserve its corpus of experience s
iunder tit's\\ own pro edural rules ' and would appreciate an.
amend /e t so providing.in the prophed legislation.
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Sincerely,/
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Lando W. Ze Jr.)
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