42 U.S.C. § 5841 — Establishment and transfers

Page 6604 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 5841 472, which is classified principally to chapter 24 (§ 2301 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 2301 of this title and Tables. The Strategic and Critical Materials Stockpiling Act, as amended, referred to in subsec. (h)(1), is act June 7, 1939, ch. 190, as revised generally by Pub. L. 96–41, § 2, July 30, 1979, 93 Stat. 319, which is classified generally to subchapter III (§ 98 et seq.) of chapter 5 of Title 50, War and National Defense. For complete classification of this Act to the Code, see section 98 of Title 50 and Tables. Act of May 16, 1910, as amended, referred to in subsec. (h)(1), is act May 16, 1910, ch. 240, 36 Stat. 369, which en- acted sections 1, 3, and 5 to 7 of Title 30, Mineral Lands and Mining. For complete classification of this Act to the Code, see Tables. CODIFICATION In subsec. (h), ‘‘section 3302(b) of title 31’’ substituted for ‘‘section 3617 of the Revised Statutes (31 U.S.C. 484)’’ on authority of Pub. L. 97–258, § 4(b), Sept. 13, 1982, 96 Stat. 1067, the first section of which enacted Title 31, Money and Finance. PRIOR PROVISIONS Provisions similar to those in subsec. (g) of this sec- tion were contained in the following appropriation au- thorization acts, formerly classified to section 2017a–1 of this title. Pub. L. 95–39, title III, § 304, June 3, 1977, 91 Stat. 189. Pub. L. 94–187, title III, § 301, Dec. 31, 1975, 89 Stat. 1073. Pub. L. 93–276, title I, § 103, May 10, 1974, 88 Stat. 118. Pub. L. 93–60, § 103, July 6, 1973, 87 Stat. 144. Pub. L. 92–314, title I, § 103, June 16, 1972, 86 Stat. 225. Pub. L. 92–84, title I, § 103, Aug. 11, 1971, 85 Stat. 306. Pub. L. 91–273, § 103, June 2, 1970, 84 Stat. 300. Pub. L. 91–44, § 103, July 11, 1969, 83 Stat. 47. Pub. L. 90–289, § 103, Apr. 19, 1968, 82 Stat. 97. Pub. L. 90–56, § 103, July 26, 1967, 81 Stat. 125. Pub. L. 89–428, § 103, May 21, 1966, 80 Stat. 163. Pub. L. 89–32, § 103, June 2, 1965, 79 Stat. 122. Pub. L. 88–332, § 104, June 30, 1964, 78 Stat. 229. AMENDMENTS 1994—Subsec. (b)(1). Pub. L. 103–437 substituted ‘‘Com- mittee on Science, Space, and Technology’’ for ‘‘Com- mittee on Science and Technology’’. Statutory Notes and Related Subsidiaries NONAPPLICABILITY OF TITLE II OF PUB. L. 95–238 TO ANY AUTHORIZATION OR APPROPRIATION FOR MILI- TARY APPLICATION OF NUCLEAR ENERGY, ETC.; DEFI- NITIONS Pub. L. 95–238, title II, § 209, Feb. 25, 1978, 92 Stat. 76, provided that: ‘‘(a) Nothing in this title [enacting this section and sections 5556a and 5919 of this title, amending sections 2391, 2394, 5905, 5906, and 5914 of this title, and enacting provisions set out as notes under section 7256 of this title and section 2429 of Title 22, Foreign Relations and Intercourse] shall apply with respect to any authoriza- tion or appropriation for any military application of nuclear energy, for research and development in sup- port of the Armed Forces, or for the common defense and security of the United States. ‘‘(b)(1) The term ‘military application’ means any ac- tivity authorized or permitted by chapter 9 of the Atomic Energy Act of 1954, as amended (Public Law 83–703, as amended; 42 U.S.C. 2121, 2122). ‘‘(2) The term ‘research and development’ as used in this section, is defined by section 11 x., of the Atomic Energy Act of 1954, as amended (Public Law 83–703, as amended; 42 U.S.C. 2014). ‘‘(3) The term ‘common defense and security’ means the common defense and security of the United States as used in the Atomic Energy Act of 1954, as amended (Public Law 83–703, as amended) [section 2011 et seq. of this title].’’ SUBCHAPTER II—NUCLEAR REGULATORY COMMISSION; NUCLEAR WHISTLEBLOWER PROTECTION § 5841. Establishment and transfers (a) Composition; Chairman; Acting Chairman; quorum; official spokesman; seal; functions of Chairman and Commission (1) There is established an independent regu- latory commission to be known as the Nuclear Regulatory Commission which shall be com- posed of five members, each of whom shall be a citizen of the United States. The President shall designate one member of the Commission as Chairman thereof to serve as such during the pleasure of the President. The Chairman may from time to time designate any other member of the Commission as Acting Chairman to act in the place and stead of the Chairman during his absence. The Chairman (or the Acting Chairman in the absence of the Chairman) shall preside at all meetings of the Commission and a quorum for the transaction of business shall consist of at least three members present. Each member of the Commission, including the Chairman, shall have equal responsibility and authority in all decisions and actions of the Commission, shall have full access to all information relating to the performance of his duties or responsibilities, and shall have one vote. Action of the Commis- sion shall be determined by a majority vote of the members present. The Chairman (or Acting Chairman in the absence of the Chairman) shall be the official spokesman of the Commission in its relations with the Congress, Government agencies, persons, or the public, and, on behalf of the Commission, shall see to the faithful exe- cution of the policies and decisions of the Com- mission, and shall report thereon to the Com- mission from time to time or as the Commission may direct. The Commission shall have an offi- cial seal which shall be judicially noticed. (2) The Chairman of the Commission shall be the principal executive officer of the Commis- sion, and he shall exercise all of the executive and administrative functions of the Commis- sion, including functions of the Commission with respect to (a) the appointment and super- vision of personnel employed under the Commis- sion (other than personnel employed regularly and full time in the immediate offices of com- missioners other than the Chairman, and except as otherwise provided in this chapter), (b) the distribution of business among such personnel and among administrative units of the Commis- sion, and (c) the use and expenditure of funds. (3) In carrying out any of his functions under the provisions of this section the Chairman shall be governed by general policies of the Commis- sion and by such regulatory decisions, findings, and determinations as the Commission may by law be authorized to make. (4) The appointment by the Chairman of the heads of major administrative units under the Commission shall be subject to the approval of the Commission. (5) There are hereby reserved to the Commis- sion its functions with respect to revising budg- Page 6605 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 5841 et estimates and with respect to determining upon the distribution of appropriated funds ac- cording to major programs and purposes. (b) Appointment of members (1) Members of the Commission shall be ap- pointed by the President, by and with the advice and consent of the Senate. (2) Appointments of members pursuant to this subsection shall be made in such a manner that not more than three members of the Commis- sion shall be members of the same political party. (c) Term of office Each member shall serve for a term of five years, each such term to commence on July 1, except that of the five members first appointed to the Commission, one shall serve for one year, one for two years, one for three years, one for four years, and one for five years, to be des- ignated by the President at the time of appoint- ment; and except that any member appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was ap- pointed, shall be appointed for the remainder of such term. For the purpose of determining the expiration date of the terms of office of the five members first appointed to the Nuclear Regu- latory Commission, each such term shall be deemed to have begun July 1, 1975. (d) Submission of appointments to Senate Such initial appointments shall be submitted to the Senate within sixty days of October 11, 1974. Any individual who is serving as a member of the Atomic Energy Commission on October 11, 1974, and who may be appointed by the Presi- dent to the Commission, shall be appointed for a term designated by the President, but which term shall terminate not later than the end of his present term as a member of the Atomic En- ergy Commission, without regard to the require- ments of subsection (b)(2) of this section. Any subsequent appointment of such individuals shall be subject to the provisions of this section. (e) Removal of members; prohibition against en- gagement in business or other employment Any member of the Commission may be re- moved by the President for inefficiency, neglect of duty, or malfeasance in office. No member of the Commission shall engage in any business, vocation, or employment other than that of serving as a member of the Commission. (f) Transfer of licensing and regulatory functions of Atomic Energy Commission There are hereby transferred to the Commis- sion all the licensing and related regulatory functions of the Atomic Energy Commission, the Chairman and members of the Commission, the General Counsel, and other officers and com- ponents of the Commission—which functions of- ficers, components, and personnel are excepted from the transfer to the Administrator by sec- tion 5814(c) of this title. (g) Additional transfers In addition to other functions and personnel transferred to the Commission, there are also transferred to the Commission— (1) the functions of the Atomic Safety and Licensing Board Panel and the Atomic Safety and Licensing Appeal Board; (2) such personnel as the Director of the Of- fice of Management and Budget determines are necessary for exercising responsibilities under section 5845 of this title, relating to, re- search, for the purpose of confirmatory assess- ment relating to licensing and other regula- tion under the provisions of the Atomic En- ergy Act of 1954, as amended [42 U.S.C. 2011 et seq.], and of this chapter. (Pub. L. 93–438, title II, § 201, Oct. 11, 1974, 88 Stat. 1242; Pub. L. 94–79, title II, §§ 201–203, Aug. 9, 1975, 89 Stat. 413, 414; Pub. L. 95–209, § 2, Dec. 13, 1977, 91 Stat. 1482; Pub. L. 99–386, title I, § 109, Aug. 22, 1986, 100 Stat. 822.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a)(2) and (g)(2), was in the original ‘‘the Energy Reorganization Act of 1974’’, and ‘‘this Act’’, respectively, meaning Pub. L. 93–438, Oct. 11, 1974, 88 Stat. 1233, which enacted this chapter, amended sections 5313 to 5316 of Title 5, Gov- ernment Organization and Employees, repealed sec- tions 2031 and 2032 of this title, and enacted provisions set out as notes under section 5801 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 5801 of this title and Tables. The Atomic Energy Act of 1954, referred to in subsec. (g), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, which is classified prin- cipally to chapter 23 (§ 2011 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. AMENDMENTS 1986—Subsec. (h). Pub. L. 99–386 struck out subsec. (h) which related to quarterly reports on compliance with equal employment requirements for grades GS–11 or above. 1977—Subsec. (h). Pub. L. 95–209 added subsec. (h). 1975—Subsec. (a). Pub. L. 94–79, § 201, designated exist- ing provisions as par. (1) and added pars. (2) to (5). Subsec. (c). Pub. L. 94–79, §§ 202, 203, provided for ap- pointment for remainder of term where vacancy occurs prior to expiration of term of predecessor appointee and designated July 1, 1975, as commencement date of initial appointees for purpose of determining expiration date of terms of office. Statutory Notes and Related Subsidiaries TRANSFER OF FUNCTIONS Energy Research and Development Administration terminated and functions vested by law in Adminis- trator thereof transferred to Secretary of Energy (un- less otherwise specifically provided) by sections 7151(a) and 7293 of this title. TRANSPORTATION OF PLUTONIUM BY AIRCRAFT THROUGH UNITED STATES AIR SPACE Pub. L. 100–202, § 101(d) [title III, § 300], Dec. 22, 1987, 101 Stat. 1329–104, 1329–121, and Pub. L. 100–203, title V, § 5062, Dec. 22, 1987, 101 Stat. 1330–251, provided that: ‘‘(a) IN GENERAL.—Notwithstanding any other provi- sion of law, no form of plutonium may be transported by aircraft through the air space of the United States from a foreign nation to a foreign nation unless the Nu- clear Regulatory Commission has certified to Congress that the container in which such plutonium is trans- ported is safe, as determined in accordance with sub- section (b), the second undesignated paragraph under section 201 of Public Law 94–79 (89 Stat. 413; 42 U.S.C. 5841 note), and all other applicable laws. Page 6606 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 5841 ‘‘(b) RESPONSIBILITIES OF THE NUCLEAR REGULATORY COMMISSION.— ‘‘(1) DETERMINATION OF SAFETY.—The Nuclear Regu- latory Commission shall determine whether the con- tainer referred to in subsection (a) is safe for use in the transportation of plutonium by aircraft and transmit to Congress a certification for the purposes of such subsection in the case of each container de- termined to be safe. ‘‘(2) TESTING.—In order to make a determination with respect to a container under paragraph (1), the Nuclear Regulatory Commission shall— ‘‘(A) require an actual drop test from maximum cruising altitude of a full-scale sample of such con- tainer loaded with test materials; and ‘‘(B) require an actual crash test of a cargo air- craft fully loaded with full-scale samples of such container loaded with test material unless the Commission determines, after consultation with an independent scientific review panel, that the stresses on the container produced by other tests used in developing the container exceed the stresses which would occur during a worst case plutonium air shipment accident. ‘‘(3) LIMITATION.—The Nuclear Regulatory Commis- sion may not certify under this section that a con- tainer is safe for use in the transportation of pluto- nium by aircraft if the container ruptured or released its contents during testing conducted in accordance with paragraph (2). ‘‘(4) EVALUATION.—The Nuclear Regulatory Com- mission shall evaluate the container certification re- quired by title II of the Energy Reorganization Act of 1974 (42 U.S.C. 5841 et seq.) and subsection (a) in ac- cordance with the National Environmental Policy Act of 1969 (83 Stat. 852; 42 U.S.C. 4321 et seq.) and all other applicable law. ‘‘(c) CONTENT OF CERTIFICATION.—A certification re- ferred to in subsection (a) with respect to a container shall include— ‘‘(1) the determination of the Nuclear Regulatory Commission as to the safety of such container; ‘‘(2) a statement that the requirements of sub- section (b)(2) were satisfied in the testing of such con- tainer; and ‘‘(3) a statement that the container did not rupture or release its contents into the environment during testing. ‘‘(d) DESIGN OF TESTING PROCEDURES.—The tests re- quired by subsection (b) shall be designed by the Nu- clear Regulatory Commission to replicate actual worst case transportation conditions to the maximum extent practicable. In designing such tests, the Commission shall provide for public notice of the proposed test pro- cedures, provide a reasonable opportunity for public comment on such procedures, and consider such com- ments, if any. ‘‘(e) TESTING RESULTS: REPORTS AND PUBLIC DISCLO- SURE.—The Nuclear Regulatory Commission shall transmit to Congress a report on the results of each test conducted under this section and shall make such results available to the public. ‘‘(f) ALTERNATIVE ROUTES AND MEANS OF TRANSPOR- TATION.—With respect to any shipments of plutonium from a foreign nation to a foreign nation which are sub- ject to United States consent rights contained in an Agreement for Peaceful Nuclear Cooperation, the President is authorized to make every effort to pursue and conclude arrangements for alternative routes and means of transportation, including sea shipment. All such arrangements shall be subject to stringent phys- ical security conditions, and other conditions designed to protect the public health and safety, and provisions of this section, and all other applicable laws. ‘‘(g) INAPPLICABILITY TO MEDICAL DEVICES.—Sub- sections (a) through (e) shall not apply with respect to plutonium in any form contained in a medical device designed for individual human application. ‘‘(h) INAPPLICABILITY TO MILITARY USES.—Subsections (a) through (e) shall not apply to plutonium in the form of nuclear weapons nor to other shipments of pluto- nium determined by the Department of Energy to be di- rectly connected with the United States national secu- rity or defense programs. ‘‘(i) INAPPLICABILITY TO PREVIOUSLY CERTIFIED CON- TAINERS.—This section shall not apply to any con- tainers for the shipment of plutonium previously cer- tified as safe by the Nuclear Regulatory Commission under Public Law 94–79 (89 Stat. 413; 42 U.S.C. 5841 note). ‘‘(j) PAYMENT OF COSTS.—All costs incurred by the Nuclear Regulatory Commission associated with the testing program required by this section, and adminis- trative costs related thereto, shall be reimbursed to the Nuclear Regulatory Commission by any foreign coun- try receiving plutonium shipped through United States airspace in containers specified by the Commission.’’ RESIDENT INSPECTOR PROGRAM; IMPLEMENTATION AND ACCELERATION OF ASSIGNMENT OF PERSONNEL; STUDY OF EXISTING AND ALTERNATE PROGRAMS FOR IMPROV- ING QUALITY ASSURANCE AND CONTROL; PILOT PRO- GRAMS TO REVIEW AND EVALUATE ALTERNATIVE PRO- GRAMS; SCOPE OF PILOT PROGRAM; REPORT TO CON- GRESS; CONTENTS Pub. L. 97–415, § 13, Jan. 4, 1983, 96 Stat. 2074, provided that: ‘‘(a) The Nuclear Regulatory Commission is author- ized and directed to implement and accelerate the resi- dent inspector program so as to assure the assignment of at least one resident inspector by the end of fiscal year 1982 at each site at which a commercial nuclear powerplant is under construction and construction is more than 15 percent complete. At each such site at which construction is not more than 15 percent com- plete, the Commission shall provide that such inspec- tion personnel as the Commission deems appropriate shall be physically present at the site at such times fol- lowing issuance of the construction permit as may be necessary in the judgment of the Commission. ‘‘(b) The Commission shall conduct a study of exist- ing and alternative programs for improving quality as- surance and quality control in the construction of com- mercial nuclear powerplants. In conducting the study, the Commission shall obtain the comments of the pub- lic, licensees of nuclear powerplants, the Advisory Committee on Reactor Safeguards, and organizations comprised of professionals having expertise in appro- priate fields. The study shall include an analysis of the following: ‘‘(1) providing a basis for quality assurance and quality control, inspection, and enforcement actions through the adoption of an approach which is more prescriptive than that currently in practice for defin- ing principal architectural and engineering criteria for the construction of commercial nuclear power- plants; ‘‘(2) conditioning the issuance of construction per- mits for commercial nuclear powerplants on a dem- onstration by the licensee that the licensee is capable of independently managing the effective performance of all quality assurance and quality control respon- sibilities for the powerplant; ‘‘(3) evaluations, inspections, or audits of commer- cial nuclear powerplant construction by organiza- tions comprised of professionals having expertise in appropriate fields which evaluations, inspections, or audits are more effective than those under current practice; ‘‘(4) improvement of the Commission’s organiza- tion, methods, and programs for quality assurance development, review, and inspection; and ‘‘(5) conditioning the issuance of construction per- mits for commercial nuclear powerplants on the per- mittee entering into contracts or other arrangements with an independent inspector to audit the quality assurance program to verify quality assurance per- formance. For purposes of paragraph (5), the term ‘independent inspector’ means a person or other entity having no re- Page 6607 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 5841 1 As amended May 5, 1980. sponsibility for the design or construction of the plant involved. The study shall also include an analysis of quality assurance and quality control programs at rep- resentative sites at which such programs are operating satisfactorily and an assessment of the reasons there- for. ‘‘(c) For purposes of— ‘‘(1) determining the best means of assuring that commercial nuclear powerplants are constructed in accordance with the applicable safety requirements in effect pursuant to the Atomic Energy Act of 1954 [42 U.S.C. 2011 et seq.]; and ‘‘(2) assessing the feasibility and benefits of the var- ious means listed in subsection (b); the Commission shall undertake a pilot program to re- view and evaluate programs that include one or more of the alternative concepts identified in subsection (b) for the purposes of assessing the feasibility and benefits of their implementation. The pilot program shall include programs that use independent inspectors for auditing quality assurance responsibilities of the licensee for the construction of commercial nuclear powerplants, as described in paragraph (5) of subsection (b). The pilot program shall include at least three sites at which commercial nuclear powerplants are under construc- tion. The Commission shall select at least one site at which quality assurance and quality control programs have operated satisfactorily, and at least two sites with remedial programs underway at which major construc- tion, quality assurance, or quality control deficiencies (or any combination thereof) have been identified in the past. The Commission may require any changes in existing quality assurance and quality control organi- zations and relationships that may be necessary at the selected sites to implement the pilot program. ‘‘(d) Not later than fifteen months after the date of the enactment of this Act [Jan. 4, 1983], the Commis- sion shall complete the study required under subsection (b) and submit to the United States Senate and House of Representatives a report setting forth the results of the study. The report shall include a brief summary of the information received from the public and from other persons referred to in subsection (b) and a state- ment of the Commission’s response to the significant comments received. The report shall also set forth an analysis of the results of the pilot program required under subsection (c). The report shall be accompanied by the recommendations of the Commission, including any legislative recommendations, and a description of any administrative actions that the Commission has undertaken or intends to undertake, for improving quality assurance and quality control programs that are applicable during the construction of nuclear pow- erplants.’’ TRANSPORTATION OF NUCLEAR WASTE WITH POTENTIAL FOR SIGNIFICANT PUBLIC HEALTH AND SAFETY HAZ- ARDS; REGULATIONS FOR NOTICE TO GOVERNOR Pub. L. 96–295, title III, § 301, June 30, 1980, 94 Stat. 789, directed Nuclear Regulatory Commission, within 90 days of June 30, 1980, to promulgate regulations pro- viding for timely notification to the Governor of any State prior to the transport of nuclear waste, including spent nuclear fuel, to, through, or across the bound- aries of such State, and provided that such notification requirement would not apply to nuclear waste in such quantities and of such types as the Commission specifi- cally determined did not pose a potentially significant hazard to the health and safety of the public. REVIEW OF SELECTION AND TRAINING OF MEMBERS OF ATOMIC SAFETY AND LICENSING BOARDS; REPORT TO CONGRESS Pub. L. 95–601, § 7, Nov. 6, 1978, 92 Stat. 2950, directed Commission to undertake a comprehensive review of the existing process for selection and training of mem- bers of the Atomic Safety and Licensing Boards, report to Congress on findings of such review by Jan. 1, 1979, and revise such selection and training process as appro- priate, based on such findings. PLUTONIUM SHIPMENTS RESTRICTIONS Pub. L. 94–79, title II, § 201, Aug. 9, 1975, 89 Stat. 413, provided in part that: ‘‘The Nuclear Regulatory Com- mission shall not license any shipments by air trans- port of plutonium in any form, whether exports, im- ports or domestic shipments: Provided, however, That any plutonium in any form contained in a medical de- vice designed for individual human application is not subject to this restriction. This restriction shall be in force until the Nuclear Regulatory Commission has certified to the Joint Committee on Atomic Energy of the Congress that a safe container has been developed and tested which will not rupture under crash and blast-testing equivalent to the crash and explosion of a high-flying aircraft.’’ Executive Documents TRANSFER OF FUNCTIONS For transfer of certain functions from Nuclear Regu- latory Commission to Chairman thereof, see Reorg. Plan No. 1 of 1980, 45 F.R. 40561, 94 Stat. 3585, set out below. REORGANIZATION PLAN NO. 1 OF 1980 45 F.R. 40561, 94 Stat. 3585 Prepared by the President and submitted to the Senate and the House of Representatives in Congress assem- bled March 27, 1980,1 pursuant to the provisions of Chapter 9 of Title 5 of the United States Code. NUCLEAR REGULATORY COMMISSION SECTION 1. (a) Those functions of the Nuclear Regu- latory Commission, hereinafter referred to as the ‘‘Commission’’, concerned with: (1) policy formulation; (2) rulemaking, as defined in section 553 of Title 5 of the United States Code, except that those matters set forth in 553(a)(2) and (b) which do not pertain to policy formulation orders or adjudications shall be reserved to the Chairman of the Commission; (3) orders and adjudications, as defined in section 551 (6) and (7) of Title 5 of the United States Code; shall remain vested in the Commission. The Commis- sion may determine by majority vote, in an area of doubt, whether any matter, action, question or area of inquiry pertains to one of these functions. The perform- ance of any portion of these functions may be delegated by the Commission to a member of the Commission, in- cluding the Chairman of the Nuclear Regulatory Com- mission, hereinafter referred to as the ‘‘Chairman’’, and to the staff through the Chairman. (b)(1) With respect to the following officers or suc- cessor officers duly established by statute or by the Commission, the Chairman shall initiate the appoint- ment, subject to the approval of the Commission; and the Chairman or a member of the Commission may ini- tiate an action for removal, subject to the approval of the Commission: (i) Executive Director for Operations, (ii) General Counsel, (iii) Secretary of the Commission, (iv) Director of the Office of Policy Evaluation, (v) Director of the Office of Inspector and Auditor, (vi) Chairman, Vice Chairman, Executive Sec- retary, and Members of the Atomic Safety and Li- censing Board Panel, (vii) Chairman, Vice Chairman and Members of the Atomic Safety and Licensing Appeal Panel. (2) With respect to the following officers or successor officers duly established by statute or by the Commis- sion, the Chairman, after consultation with the Execu- tive Director for Operations, shall initiate the appoint- ment, subject to the approval of the Commission, and the Chairman, or a member of the Commission may ini- tiate an action for removal, subject to the approval of the Commission: Page 6608 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 5841 (i) Director of Nuclear Reactor Regulation, (ii) Director of Nuclear Material Safety and Safe- guards, (iii) Director of Nuclear Regulatory Research, (iv) Director of Inspection and Enforcement, (v) Director of Standards Development. (3) The Chairman or a member of the Commission shall initiate the appointment of the Members of the Advisory Committee on Reactor Safeguards, subject to the approval of the Commission. The provisions for ap- pointment of the Chairman of the Advisory Committee on Reactor Safeguards and the term of the members shall not be affected by the provisions of this Reorga- nization Plan. (4) The Commission shall delegate the function of ap- pointing, removing and supervising the staff of the fol- lowing offices or successor offices to the respective heads of such offices: General Counsel, Secretary of the Commission, Office of Policy Evaluation, Office of In- spector and Auditor. The Commission shall delegate the functions of appointing, removing and supervising the staff of the following panels and committee to the respective Chairmen thereof: Atomic Safety and Li- censing Board Panel, Atomic Safety and Licensing Ap- peal Panel and Advisory Committee on Reactor Safe- guards. (c) Each member of the Commission shall continue to appoint, remove and supervise the personnel employed in his or her immediate office. (d) The Commission shall act as provided by sub- section 201(a)(1) of the Energy Reorganization Act of 1974, as amended (42 U.S.C. 5841(a)(1)) in the perform- ance of its functions as described in subsections (a) and (b) of this section. SEC. 2. (a) All other functions of the Commission, not specified by Section 1 of this Reorganization Plan, are hereby transferred to the Chairman. The Chairman shall be the official spokesman for the Commission, and shall appoint, supervise, and remove, without fur- ther action by the Commission, the Directors and staff of the Office of Public Affairs and the Office of Congres- sional Relations. The Chairman may consult with the Commission as he deems appropriate in exercising this appointment function. (b) The Chairman shall also be the principal execu- tive officer of the Commission, and shall be responsible to the Commission for developing policy planning and guidance for consideration by the Commission; shall be responsible to the Commission for assuring that the Executive Director for Operations and the staff of the Commission (other than the officers and staff referred to in sections (1)(b)(4), (1)(c) and (2)(a) of this Reorga- nization Plan) are responsive to the requirements of the Commission in the performance of its functions; shall determine the use and expenditure of funds of the Commission, in accordance with the distribution of ap- propriated funds according to major programs and pur- poses approved by the Commission; shall present to the Commission for its consideration the proposals and es- timates set forth in subsection (3) of this paragraph; and shall be responsible for the following functions, which he shall delegate, subject to his direction and su- pervision, to the Executive Director for Operations un- less otherwise provided by this Reorganization Plan: (1) administrative functions of the Commission; (2) distribution of business among such personnel and among administrative units and offices of the Commission; (3) preparation of (i) proposals for the reorganization of the major offices within the Commission; (ii) the budget estimate for the Commission; and (iii) the proposed distribution of appropriated funds according to major programs and purposes. (4) appointing and removing without any further action by the Commission, all officers and employees under the Commission other than those whose ap- pointment and removal are specifically provided for by subsections 1 (b), (c) and 2(a) of this Reorganiza- tion Plan. (c) The Chairman as principal executive officer and the Executive Director for Operations shall be governed by the general policies of the Commission and by such regulatory decisions, findings, and determinations, in- cluding those for reorganization proposals, budget revi- sions and distribution of appropriated funds, as the Commission may by law, including this Plan, be au- thorized to make. The Chairman and the Executive Di- rector for Operations, through the Chairman, shall be responsible for insuring that the Commission is fully and currently informed about matters within its func- tions. SEC. 3. (a) Notwithstanding sections 1 and 2 of this Reorganization Plan, there are hereby transferred to the Chairman all the functions vested in the Commis- sion pertaining to an emergency concerning a par- ticular facility or materials licensed or regulated by the Commission, including the functions of declaring, responding, issuing orders, determining specific poli- cies, advising the civil authorities and the public, di- recting, and coordinating actions relative to such emergency incident. (b) The Chairman may delegate the authority to per- form such emergency functions, in whole or in part, to any of the other members of the Commission. Such au- thority may also be delegated or redelegated, in whole or in part, to the staff of the Commission. (c) In acting under this section, the Chairman, or other member of the Commission delegated authority under subsection (b), shall conform to the policy guide- lines of the Commission. To the maximum extent pos- sible under the emergency conditions, the Chairman or other member of the Commission delegated authority under subsection (b), shall inform the Commission of actions taken relative to the emergency. (d) Following the conclusion of the emergency, the Chairman, or the member of the Commission delegated the emergency functions under subsection (b), shall render a complete and timely report to the Commission on the actions taken during the emergency. SEC. 4. (a) The Chairman may make such delegations and provide for such reporting as the Chairman deems necessary, subject to provisions of law and this Reorga- nization Plan. Any officer or employee under the Com- mission may communicate directly to the Commission, or to any member of the Commission, whenever in the view of such officer or employee a critical problem or public health and safety or common defense and secu- rity is not being properly addressed. (b) The Executive Director for Operations shall report for all matters to the Chairman. (c) The function of the Directors of Nuclear Reactor Regulations, Nuclear Material Safety and Safeguards, and Nuclear Regulatory Research of reporting directly to the Commission is hereby transferred so that such officers report to the Executive Director for Oper- ations. The function of receiving such reports is hereby transferred from the Commission to the Executive Di- rector for Operations. (d) The heads of the Commission level offices or suc- cessor offices, of General Counsel, Secretary to the Commission, Office of Policy Evaluation, Office of In- spector and Auditor, the Atomic Safety and Licensing Board Panel and Appeal Panel, and Advisory Com- mittee on Reactor Safeguards shall continue to report directly to the Commission and the Commission shall continue to receive such reports. SEC. 5. The provisions of this Reorganization Plan shall take effect October 1, 1980, or at such earlier time or times as the President shall specify, but no sooner than the earliest time allowable under Section 906 of Title 5 of the United States Code. MESSAGE OF THE PRESIDENT To the Congress of the United States: I am submitting herewith to the Congress Reorga- nization Plan No. 1 of 1980, under authority vested in me by the Reorganization Act of 1977 (Chapter 9 of Title 5 of the United States Code). The Plan is designed to strengthen management of the Nuclear Regulatory Page 6609 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 5841 Commission in order to foster safety in all of the agen- cy’s activities. The need for more effective management of the Nu- clear Regulatory Commission has been amply dem- onstrated over the past year. The accident at Three Mile Island one year ago revealed serious shortcomings in the agency’s ability to respond effectively during a crisis. The lessons learned from that accident go be- yond crisis management, however. They provide the impetus for improving the effectiveness of all aspects of the government regulation of nuclear energy. In my statement of December 7, 1979, I responded to the recommendations of my Commission on the Acci- dent at Three Mile Island and set forth steps now being taken to address those recommendations. I stated that I would send to Congress a Reorganization Plan to strengthen the Nuclear Regulatory Commission’s abil- ity to regulate nuclear safety. I am submitting that Plan today. The Plan clarifies the duties of the Chairman as prin- cipal executive officer. In addition to directing the day- to-day operations of the agency, the Chairman would take charge of the Commission’s response to nuclear emergencies and, as principal executive officer, would be guided by Commission policy and subject to Com- mission oversight. MANAGEMENT PROBLEMS Intensive investigations undertaken since the Three Mile Island accident have revealed management prob- lems at the Nuclear Regulatory Commission. These problems must be rectified if the Commission is to be a strong and effective safety regulator. —My Commission, called the Kemeny Commission after its Chairman, Dr. John Kemeny, concluded that the underlying problem at Three Mile Island stemmed not from deficient equipment but rather from compounded human failures. This included the inability of the Nuclear Regulatory Commis- sion to pursue its safety mission effectively in view of its existing management policies and practices. The Kemeny Commission reported a lack of ‘‘clo- sure’’ in the system to ensure that safety issues are raised, analyzed and resolved. Kemeny Commission members also concluded that the Nuclear Regu- latory Commission relies too heavily on licensing, and pays insufficient attention to ensuring the safety of plants once they are in operation. —During the course of its investigation, the Kemeny Commission found serious managerial problems at the top of the Nuclear Regulatory Commission. It noted that the Commissioners and the Chairman are unclear as to their respective roles. Uncertain, diffuse leadership of this kind leads to highly com- partmentalized offices that operate with little or no effective guidance and little coordination. —A recently completed independent study authorized and funded by the Nuclear Regulatory Commission itself also found serious fault with the Commis- sion’s management and called for a major organiza- tional overhaul. The report states that there is no authoritative manager but, instead, five equally re- sponsible Commissioners who deal individually with office directors who, in turn, head their own ‘‘independent fiefdoms.’’ —Likewise, a recent report of the General Account- ing Office notes the failure of the Nuclear Regu- latory Commission to define either the authority of the Chairman or that of the Executive Director for Operations. The staff lacks policy guidance and top management leadership to set priorities and resolve safety issues. There are unreasonable delays in de- veloping policies to guide the licensing and enforce- ment activities of the agency. The central theme in all three of these studies is the failure of the Nuclear Regulatory Commission to pro- vide unified leadership and consistent direction of the agency’s activities. The present statutes contain con- flicting and ambiguous provisions for managing the agency. Important corrective actions cannot or will not be taken by the Commission until the laws are changed. Failure to do so constitutes a continuing nu- clear safety hazard. The present Reorganization Plan would improve the effectiveness of the Nuclear Regulatory Commission by giving the Chairman the powers he needs to ensure effi- cient and coherent management in a manner that pre- serves, in fact enhances, the commission form of orga- nization. COMMISSION Under the proposed Plan, the Commission would con- tinue to be responsible for policy formulation, rule- making and adjudication as functions which should have collegial deliberation. In addition, the Commis- sion would review and approve proposals by the Chair- man concerning key management actions such as per- sonnel decisions affecting top positions which directly support Commission functions, the annual budget, and major staff reorganizations. In carrying out its role, the Commission would have the direct assistance of several Commission-level offices as well as the licens- ing board, the appeal panel, and the Advisory Com- mittee on Reactor Safeguards. The Plan would not alter the present arrangement whereby the Commis- sion, acting on majority vote, represents the ultimate authority of the Nuclear Regulatory Commission and sets the framework within which the Chairman is to operate. CHAIRMAN Under the Plan, the Chairman would act as the prin- cipal executive officer and spokesman for the Commis- sion. To accomplish this, those functions of the Nuclear Regulatory Commission not retained by the Commis- sion would be vested in the Chairman, who is currently coequal with the Commissioners in all decisions and ac- tions. The Chairman would be authorized to make ap- pointments, on his own authority, to all positions not specified for Commission approval and would be respon- sible to the Commission for assuring staff support by the operating offices in meeting the needs of the Com- mission. The Executive Director for Operations would report directly to and receive his authority from the Chairman. Heads of operating offices would also report to the Chairman or, by delegation, to the Executive Di- rector for Operations. Office heads would also be au- thorized to communicate directly with members of the Commission whenever an office head believed critical safety issues were not being addressed. EMERGENCY MANAGEMENT The Nuclear Regulatory Commission’s ability to re- spond decisively and responsibly to any nuclear emer- gency must be fully ensured in advance. Experience has shown that the Commission as a whole cannot deal ex- peditiously with emergencies or communicate in a clear, unified voice to civil authorities or to the public. But present law prevents the Commission from dele- gating its emergency authority to one of its members. The Plan would correct this situation by specifically authorizing the Chairman to act for the Commission in an emergency. In order to ensure flexibility, the Chair- man would be permitted to delegate his authority to deal with a particular emergency to any other Commis- sioner. Plans for dealing with various contingencies would be approved by the Commission in advance. The Commission would also receive a report from the Chair- man or his designee describing the management of the emergency once it was over. ACTIONS NOT INCLUDED IN THIS PLAN Not included in this Plan are two actions that I sup- port in principle but that need not or cannot be accom- plished by means of a Reorganization Plan. First the Commission, as part of its implementation of this reor- ganization, can and should establish an internal entity to help oversee the performance of the agency as it op- erates under the Chairman’s direction. This action does Page 6610 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 5842 not require a Reorganization Plan. Second, I have con- sistently favored funding assistance to intervenors in regulatory proceedings. This is particularly important in the case of nuclear safety regulation. I therefore en- courage the Commission to include consideration of in- tervenor funding as part of its review and upgrading of the licensing process, as called for by the Kemeny Com- mission. I have also requested Congress to appropriate funds for this purpose. This activity cannot be author- ized by a Reorganization Plan. NO ADDED COSTS This proposed realignment and clarification of re- sponsibilities would not result in an increase or de- crease of expenditures. But placing management re- sponsibilities in the Chairman would result in greater attention to developing and implementing nuclear safe- ty policies and to strict enforcement of the terms of li- censes granted by the Commission. Each of the provisions of this proposed reorganization would also accomplish one or more of the purposes set forth in 5 U.S.C. 901(a). No statutory functions would be abolished by the Plan; rather they would be consoli- dated or reassigned in order to improve management, delivery of services, execution of the law, and overall operational efficiency and effectiveness of the Commis- sion. By Executive Order No. 12202, dated March 18, 1980 [42 U.S.C. 5848 note], I established a Nuclear Safety Over- sight Committee to advise me of progress being made by the Nuclear Regulatory Commission, the nuclear in- dustry, and others in improving nuclear safety. I am confident that the present Reorganization Plan, to- gether with the other steps that have been or are being taken by this Administration and by others, will great- ly advance the goal of nuclear safety. It would permit the Commission and the American people to hold one individual—the Chairman—accountable for implemen- tation of the Commission’s policies through effective management of the Commission staff. Freed of manage- ment and administrative details, the Commission could then concentrate on the purpose for which that colle- gial body was created—to deliberate on the formulation of policy and rules to govern nuclear safety and to de- cide or oversee disposition of individual cases. JIMMY CARTER. THE WHITE HOUSE, March 27, 1980. MESSAGE OF THE PRESIDENT To the Congress of the United States: I herewith transmit the following amendments to Re- organization Plan No. 1 of 1980, which I sent to the Con- gress on March 27, 1980. The amendments to Reorganization Plan No. 1 are consistent with my original intent of strengthening the management of the Nuclear Regulatory Commission in order to improve safety in all of the agency’s activities, while preserving the advantages of the Commission form. The amendments reinforce the purpose of the Plan in two respects. First, the amended Plan gives the Commission a greater role in selection of key program officers of the agency by adding four positions to the list of appointments initiated by the Chairman for the Commission’s advice and consent. These are the Execu- tive Director for Operations, the Director of Inspection and Enforcement, the Director of Nuclear Regulatory Research, and the Director of Standards Development. Each of these positions contributes to nuclear safety regulation, and each performs functions that help de- termine the policy and performance of the agency. The Advisory Committee on Reactor Safeguards ad- vises the Commission as a whole. Since its members serve renewable 4-year terms, another amendment pro- vides that a Commission member, as well as the Chair- man, can initiate an appointment to the Advisory Com- mittee on Reactor Safeguards for approval by the Com- mission. As a means to ensure that the flow of information to the Commission will not be restricted, the Plan has been amended to make explicit that the Chairman, and the Executive Director of Operations through the Chairman, shall keep the Commission fully and cur- rently informed. The second general purpose of the amendments is to provide for more effective management of the agency by making more explicit the responsibilities of the Chairman and the Executive Director for Operations acting under his direction. As amended, the Plan charges the Chairman with planning for the develop- ment of policy for consideration and approval by the Commission. In the past, this responsibility has not been clearly fixed and has consequently been neglected. The amended Plan continues to make clear that the Executive Director for Operations reports to the Chair- man. An amendment, however, requires the Chairman to delegate to the Executive Director for Operations the authority to appoint the staff and the day-to-day administration of the agency. Under this arrangement, the Chairman retains responsibility for the delegated functions but will be better able to handle his other leadership tasks. In summary, the amendments I am transmitting to Reorganization Plan No. 1 of 1980, based on review and hearings conducted by the Congress and on continued consultations, will help establish a more accountable central management structure for the Nuclear Regu- latory Commission as it pursues its statutory objective of ensuring safety in the use of nuclear power. JIMMY CARTER. THE WHITE HOUSE, May 5, 1980. EXECUTIVE ORDER NO. 11902 Ex. Ord. No. 11902, Feb. 2, 1976, 41 F.R. 4877, as amend- ed by Ex. Ord. No. 12038, Feb. 3, 1978, 43 F.R. 4957, which set out procedures for the export licensing policy as to nuclear materials and equipment, was revoked by Ex. Ord. No. 12058, May 11, 1978, 43 F.R. 20947, set out as a note under section 3201 of Title 22, Foreign Relations and Intercourse. § 5842. Licensing and related regulatory func- tions respecting selected Administration fa- cilities Notwithstanding the exclusions provided for in section 110a. [42 U.S.C. 2140(a)] or any other provisions of the Atomic Energy Act of 1954, as amended [42 U.S.C. 2011 et seq.], the Nuclear Regulatory Commission shall, except as other- wise specifically provided by section 110b. of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2140(b)), or other law, have licensing and related regulatory authority pursuant to chap- ters 6, 7, 8, and 10 of the Atomic Energy Act of 1954, as amended [42 U.S.C. 2071 et seq., 2091 et seq., 2111 et seq., 2131 et seq.], as to the following facilities of the Administration: (1) Demonstration Liquid Metal Fast Breed- er reactors when operated as part of the power generation facilities of an electric utility sys- tem, or when operated in any other manner for the purpose of demonstrating the suitability for commercial application of such a reactor. (2) Other demonstration nuclear reactors— except those in existence on the effective date of this chapter—when operated as part of the power generation facilities of an electric util- ity system, or when operated in any other manner for the purpose of demonstrating the suitability for commercial application of such a reactor. (3) Facilities used primarily for the receipt and storage of high-level radioactive wastes resulting from activities licensed under such Act.