ML20036B996
| ML20036B996 | |
| Person / Time | |
|---|---|
| Issue date: | 12/24/1992 |
| From: | Curtiss J NRC COMMISSION (OCM) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| NUDOCS 9306080248 | |
| Download: ML20036B996 (7) | |
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RELEASED TO THE PDR NOTATION V0TEj gg g
j-dato IWtials RESPONSE SHEET T0:
SAMUEL J. CHILK, SECRETARY OF THE COf44ISSION FROM:
COMMISSIONER CURTISS
SUBJECT:
SECY-92-381 - RULEMAKING PROCEDURES FOR DESIGN CERTIFICATION APPROVED M W DISAPPROVED X Wi24-ABSTAIN NOT PARTICIPATING REQUEST DISCUSSION COMMENTS:
See attached comments W R. lAN^^
388688s4Jr%$ga4 SIGNATURE CORRESPONDENCE PDR RELEASE VOTE
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December 24, 1992 DATE WITHHOLD VOTE
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/
ENTERED ON "AS" YES x
NO 1 Fo 2, O&
e Commissioner Curtiss' comments on SECY-92-381:
With certain important exceptions and subject to clarifying comments, I agree with, and support, OGC's final recommendations for procedures for design certification '(DC) rulemakings.
The exceptions and my additional comments relate to mechanisms for early public participation, treatment of proprietary information, commencement of the DC rulemaking process and the. timing of comments, requirements for rulemaking hearings, separation of functions /ex parte restrictions, and the role of the licensing-board.
My views on these matters are as follows:
Mechanisms for Early Public Particination 1.
I agree with OGC's recommendation that the NRC provide many and varied opportunicies for early-public-participation in the design certification review.
These opportunities should include providing notice of availability of SECY papers and draft and final SERs, notice of key FDA/ design certification events, and the use of ANPRs and public worksnops in the early stages of a design review.
I would_also support the Commission's consideration, on a case-by-case basis, of the use of alternative dispute resolution techniques to resolve DC rulemaking issues outside the rulemaking hearing process.
I would,-however, oppose the use of negotiated rulemaking for design certification under Part 52.
2.
Although. approve the recommendation that the NRC provide opportunities for early public participation in the design certification review, I would oppose any proposal for NRC to fund persons who desire-to participate.
In my view, funding' persons who might wish to provide input to the DC review would be contrary to the spirit, if not the letter, of our Appropriations Acts and would be inappropriate in view of our current obligation to recover 100 percent of our budget from licensing and user fees'.
Treatment of Proprietary Information 3.
NUMARC's tentative proposal and OGC's first alternative for the treatment of proprietary information -- to attempt to reduce the amount of proprietary information in the DC application, submit non-proprietary descriptions of the remaining proprietary information, exclude proprietary information from Tier 1 and Tier 2 i
of the DC rule and simply reference remaining l
proprietary information as providing a basis for. Tier 1 and/or Tier 2 or acceptable methods of complying with i
ITAAC -- holds some promise as an approach to resolve the problem with reliance on proprietary information in rulemaking.
Whether this approach can be implemented l
+ ;
in practice remains to be seen, however.
NUMARC indicated that the industry and the staff would attempt to implement this approach in the short term in the context of the GEABWR review to determine _whether the approach is workable.
I would support that effort and-urge the. staff and the industry to devote their best efforts to make it work.
Pending the outcome of those efforts, I will defer taking any final position on the treatment of proprietary information in DC rulemaking.
4.
My views on who should be given access to proprietary information will depend on how the proprietary information is used in the DC rulemaking --
(1)
If the proprietary information clearly is relied upon, and forms the basis, for part or all of the proposed DC rule, commenters ought to be given ready access to the information.
In this case, I would support an approach in which commenters would seek access to proprietary information directly from the DC applicant (OGC's first alternative).
Access could be conditioned upon execution of a reasonable non-disclosure agreement / contract.'
If the person seeking access is unable to obtain information from the DC applicant or believes that the terms of the applicant's non-disclosure agreement are unreasonable, the person could seek resolution of the matter from the Commission or from the DC rulemaking~ licensing board.
(ii) If the proprietary information does not form the basis for the DC rule or the NRC's safety findings in support of the rule, I would support OGC's third alternative for gaining access to proprietary information.
Under this alternative, only parties to the DC rulemaking hearing could be granted access to proprietary information.
Access would be granted by the licensing board only upon a i
showing by the party that -- (1) non-proprietary information in the-docket is not adequate to prepare for the hearing, (2) the proprietary information that is sought is 1
In my view, a reasonable non-disclosure agreement or l
contract could contain provisions imposing economic liability for 1
economically harmful (to the DC applicant) disclosure of proprietary information.
Of course, such a provision would be enforced by an action in the courts, not by the NRC.
-3 relevant to issues'that will be considered at the hearing, and (3) the party has the expertise to use the information'and contribute significantly to the. hearing record.
Commencement of the DC Rytlemakina Process and Timina of Comments 5.
I have no objection to OGC's recommendation that the Notice of Proposed Rulemaking (NPR) for the design certification be published 90 days afterithe issuance of the Final Design Approval for the design.
More importantly, I agree with OGC's recommendation that the Commission set the period for the submission of written comments and informal hearing requests on the proposed DC rule at 120 days.
Recuirements for Hearinas 6.
I agree with OGC's recommendation on a.two-part threshhold for obtaining an informal hearing, wherein the requester must submit. written presentations to be included in the record of the hearing and must demonstrate that s/he has appropriate knowledge or qualifications to contribute significantly to the development of a hearing record.
I also-agree with i
OGC's recommendation that the Commission, rather than.
the licensing board,. decide the' hearing requests and specify the controverted matters on which the licensing.
board is to compile a record.
1 7.
I agree with OGC's recommendations on the criteria to.
be applied by the licensing board in ruling on requests for oral presentations and questions, as well as in ruling on the timing and standards for requesting additional hearing procedures, discovery, and formal hearings.
I also agree that the' licensing board should not be given sua sconte authority to request additional hearing procedures.or formal hearings.
8.
I agree with OGC's recommendation that the parties file proposed findings with the Commission, rather~than with the licensing board, 30 days after the rulemaking hearing record is closed.
9.
To avoid forcing.commenters to request a hearing in order to preserve their rights of appeal, I agree with OGC's recommendation that the Commission not take the position upon appeal of a.DC rule that appellants have not exhausted their administrative remedies if they did not request a DC rulemaking hearing.
-4 Separation of Functions /Ex Parte Restrictions 1
10.
The design certification process under'Part 52 is an APA.rulemaking in which separation of functions /ex parte strictures do not apply.
To enhance the credibility of the DC process, however, OGC recommends that the Commission voluntarily submit to certain limited separation of functions /ex carte restrictions-once the DC rulemaking process is initiated.
To this end, I would support the following approach:
(i)
Where hearings are held in the design certification rulemakings, limited separation of functions restrictions would allow the Commission as a whole to obtain the advice and assistance of the staff members who participated in the review of the DC application and hearings, but such communications would occur in a public process through the preparation of SECY papers in response to Commission SRMs, and public meetings between the Commission as a whole2 and the staff.
In the absence of a hearing, the Commission could obtain the advice and assistance of the staff in the same manner as in ordinary rulemakings.
(ii) Once DC rulemaking hearings are requested,3 limited ex carte restrictions would apply.to the Commission.
Such ex carte restrictions would be similar to the separation of 2
I would not support OGC's recommendation in SECY-92-381 that all meetings between individual Commissioners and the staff be public and noticed.
Individual Commissioners and for their personal staffs should be able to mee~c and communicate privately with the NRC staff, and then document and make.publie a brief summary of the substance of the Commissioner-staff meeting or communication.
3 OGC recommends that ex parte limitations be followed throughout the rulemaking proceeding (i.e.,
from the issuance of-the NPR) regardless of whether a hearing request has been received or granted.
That approach is not consistent with the 5g narte restrictions that apply in formal adjudicatory proceedings.
. hich specifies that ex narte
- See, e.a., 10 CFR 2.780(e) w prohibitions only apply after a notice of hearing has been issue'd or an interested person has knowledge that a notice of hearing will be issued.
I would support the application of ex'narte restrictions only after the NRC receives a request for a DC j
rulemaking hearing.
i
_ functions restrictions noted above -- the Commission as a whole would communicate with interested persons on DC rulemaking issues only through docketed, publicly available written communications and public meetings; individual Commissioners could communicate privately with interested persons but the substance of the communication would be memorialized in a document that would be placed in the PDR and distributed to.the licensing board and parties to the DC rulemaking hearing.
The Role of the Licensina Board 11.
I disagree with the recommendation that the licensing board be given the authority to act as a " modified full magistrate" with the discretion to formulate and submit recommendations on the controverted issues to the Commission.
In my view, adoption of the " modified full magistrate" role for the licensing board would -- (1).
in essence, needlessly establish the Licensing Board as an additional reviewer and commenter on the: proposed design, (ii) tend further to judicialize the DC rulemaking process and move that process closer to the traditional licensing adjudication that we had intended to replace with the DC rulemaking process, (iii) likely lengthen the time required to complete'the rulemaking hearings and certify the rulemaking record to the Commission for decision', and (iv) introduce additional matters -- the licensing board's position on the issues -- beyond the parties' and the public's comments, that the Commission will'need to address in reaching a final decision on the DC rulemaking.
For these reasons, I oppose the " modified full magistrate" approach.
The Commission should authorize the licensing boards to serve as " limited magistrates" in the DC rulemaking hearings.
12.
For the same reasons, I would disagree with a proposal to give the licensing boards sua sponte authority in At the Commission's briefing on SECY-92-381, ASLBP Chairman Cotter indicated that Licensing Boards would need.
substantially more than OGC's recommended 30 days after the close of.the hearing record to formulate recommendations for the Commission.
I
, the DC rulemaking hearings.5 Under whatever role'the Commission determines to be appropriate for1the licensing boards -- limited magistrate, modified-full magistrate, full magistrate -- the boards should focus their efforts on compiling a record on the issues placed in controversy by the parties.
Finally, I agree with OGC's recommendation that the Commission delay codification of generic procedures for conducting DC tulemakings until the first two DC rulemakings have'been conducted.
Up to that time, the procedures to be followed in individual cases should be established in the notice of proposed' rulemaking for each design certification and these procedures should reflect the Commission's guidance on procedures recommended in SECY-92-381.
5 This is not to say that a Licensing Board should in any ucy be restricted in informing the Commission of the existence of a significant safety matter not controverted by the parties to the DC rulemaking hearing.
In fact, I believe that Licensing Boards have a duty to notify the Commission of any significant safety matter'(of which they become aware) that is not being addressed by the agency.
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