ML20029C533
| ML20029C533 | |
| Person / Time | |
|---|---|
| Issue date: | 01/28/1994 |
| From: | Sniezek J NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Beckjord E, Martin T, Murley T NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION I), Office of Nuclear Reactor Regulation, NRC OFFICE OF NUCLEAR REGULATORY RESEARCH (RES) |
| References | |
| NUDOCS 9402160282 | |
| Download: ML20029C533 (3) | |
Text
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January 28, 1994 MEMORANDUM FOR: Thomas E. Murley, Director, NRR Eric S. Beckjord, Director, RES Thomas T. Martin, Regional Administrator, RI Stewart D. Ebneter, Regional Administrator, RII John B. Martin, Regional Administrator, RIII L. J. Callan, Regional Administrator, RIV 4
Kenneth E. Perkins, Acting Regional Administrator, RV FROM:
James H. Sniezek i
Deputy Executive Director for Nuclear Reactor Regulation, i
Regional Operations and Research l
SUBJECT:
USE OF REGULATORY GUIDANCE DOCUMENTS AS LEGAL REQUIREMENTS The Regulatory Review Group (RRG), in its effort to identify ways to reduce the regulatory burden on power reactor licensees, noted instances where the staff has elevated provisions of Commission policy statements, regulatory 4
guides, and other non-requirements to the status of requirements, including referencing such documents in the Technical Specifications. This has been the subject of much correspondence in the past, including several issued from the office of the EDO.
Given the current government-wide initiative to ameliorate any undue regulatory burden, it is worthwhile to revisit this issue again.
A number of documents exist which provide guidance to the staff in determining what constitutes a requirement and how to avoid incorrectly imposing a requirement on a licensee. SECY-88-131, " Policy Statements versus Regulations," addresses the differences between these two regulatory tools and when they should be used. This document notes that only a regulation has the force of law.
Furthermore, policy statements do not establish a binding norm and cannot be relied upon as law. Manual Chapter 0514 (to be issued as Management Directive 8.4), "NRC Program for Management of Plant-Specific Backfitting of Nuclear Plants," contains a thorough discussion of what constitutes applicable regulatory staff positions (paragraph 053) and how backfits (i.e., new regulatory requirements) can be identified in the licensing, inspection, and enforcement areas. This manual chapter clearly expresses that staff interpretations, such as those contained in the Standard Review Plan (SRP), Regulatory Guides, Generic Letters, and Bulletins, provide examples of acceptable ways to meet requirements, but are not requirements in and of themselves. However, if a licensee has committed to or relied upon these interpretations to meet a regulation or to satisfy a regulatory concern, 4
then it can be considered equivalent to a regulatory staff position. NUREG-0650, " Publishing Documents in the NUREG Series," states that NUREG reports are not regulatory documents that impose requirements.
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3 Jt January 28, 1994 The CRGR Charter includes a detailed listing of the various mechanisms by which the NRC could erroneously communicate generic requirements.
It directs each office to develop internal procedures to ensure any communications which may establish, reflect, or interpret NRC staff positions or requirements to be imposed by the NRC be consistent with the provisions of the backfit rule (10 CFR 50.109.)
There are several broad arenas in which the staff may find itself in a position where it could inadvertently improperly communicate new or revised requirements to a licensee. These are inspections, enforcement activities, and licensing reviews.
It is important for the staff to be aware of how their actions may be construed as instituting new requirements.
I have enclosed a list of some fundamental concepts which should be used in determining whether a staff action is establishing or revising a requirement or staff position.
By the end of March 1994, each office is to review, and modify as applicable, its internal operating procedures and practices to confirm that..they do not either explicitly or implicitly sanction the use of inappropriate documents or methods to establish regulatory requirements. This memorandum should also be given wide dissemination within your organizations, particularly among staff members who interact with licensees and who may have the opportunity to either interpret or establish agency requirements or guidance.
Please contact Bill Dean of my staff with any questions or comments on this issue.
Origina! signed by Jenws H. Snkrek James H. Sniezek Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations, and Research
Enclosure:
As stated cc:
E. Jordan i
R. Bernero J. Lieberman K. Cyr DISTRIBUTION:
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- s FUNDAMENTAL CONCEPTS IN DETERMINING THE REGULATORY IMPACT OF A STAFF ACTION It is proper to take a position:
1.
that is a previously applicable regulatory staff position (refer to definition contained in NRC Manual Chapter 0514);
4 2.
that was a regulatory staff position established within the appropriate time frames related to plant licensing milestones (refer to 10 CFR 50.109);
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3.
that is the result of an action the licensee has really volunteered to take; 4.
related to actions proposed by the licensee resulting from normal staff / licensee discussions concerning an issue; 5.
that directs a licensee to comply with an NRC rule, regulation, license condition, technical specification, or written commitment to the NRC.
I It is improper to take a position without the proper backfit analysis if:
l 1.
the staff proposal causes the licensee.to change its design, construction, or operation; 2.
the staff action directs, tells, or coerces the licensee to apply the staff's proposed action.
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