ML20036B998
| ML20036B998 | |
| Person / Time | |
|---|---|
| Issue date: | 03/30/1993 |
| From: | Selin I, The Chairman NRC COMMISSION (OCM) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| NUDOCS 9306080252 | |
| Download: ML20036B998 (5) | |
Text
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NOTATION V O T E:
RELEASED TO THE PDR GNn d
RESPONSE SHEET
!... f !*........ 78.S....
T0:
SAMUEL J. CHILK, SI".C iARY OF THE C0fMISSION FROM:
THE CHAIRMAN
SUBJECT:
SECY-92-381 - RULEMAKING PROCEDURES FOR DESIGN CERTIFICATION APPROVED x in parDISAPPROVED x in part ABSTAIN NOT PARTICIPATING REQUEST DISCUSSION COMMENTS:
See attached comments.
JW' SIGNATURE RELEASE VOTE
/x /
N2 DATE WITHHOLD VOTE
/
/
ENTERED ON "AS" YES s/
NO
- B#688EA!7;gg
- dFo2, CORRESPONDENCE PDR
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Chairman Selin's conments on SECY-92-381:
With the exceptions.and clarifications set forth below,.I agree with OGC's final recommendations, as modified by Commissioner Curtiss.
M;' views on these specific matters are as follows:
Staff as a Partv/Seoaration of Functions /Ex Parte OGC has recommended that due to the unique nature of the design certification rulemaking under Part 52, that is, the opportunity to request a hearing in addition to submission of written comments, the staff should be treated as a party in any informal hearings held on the design certification, and that at least limited separation of functions should apply if such hearings are.
held.
In my view, however, there are other " unique" aspects of the design certification process which lead me to conclude that unless the formal procedures of Subpart G are invoked, the staff should not be treated as a party to any proceeding and should not be subject to any separation of functions limitations.
The approval of a complete design for a reactor is a highly complex undertaking, which has already involved the staff and the Commission in thousands of hours of review and analysis of first of a kind technical issues.
While OGC is correct in identifying the importance of enhancing the appearance of impartiality in the design certification rulemaking, to sustain the credibility of the rulemaking, I believe it is of the most fundamental importance that the Commission be able to assure the public that the Commission has brought the best expertise it has available to it to bear on reaching its final safety decisions to certify a design.
The review process in which the staff has already been engaged is an integral part of the decisionmaking process which the Commission has adopted for certification by rule.
The Commission itself has already participated substantially in assessing and framing issues which have arisen with respect.to specific designs.
It seems somewhat artificial to invoke separation of functions limitations to achieve an " impartial decisionmaker" at a relatively late stage of a rulenaking.
And I believe that is one of the reasons that the APA does not require such limitations in a rulemaking process.
I Moreover, as OGC points out in its paper, if the staff were to be a party to any hearing process, the staff individualu responsible for the review of the design certification /FDA application and who would represent the staff in any hearing if the staff were-j deemed a party, would be the most knowledgeable persons in the l
agency with respect to the technical and policy issues associated with certification _of the design under consideration.
Absent significant countervailing interests, I do not believe the q
commission should at the final stage of the approval process, i
deprive itself of the full access to the most knowledgeable individuals within the Commission which is permitted under the Administrative Procedure Act rulemaking procedures.
The length.
i of the design certification process makes this point even more
.~.
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significant.
'I recognize the benefits of aniopen process which
.the OGC recommendation. entails._-However, many of the procedures.
.which OGC suggests that the commission might follow under 'its separation of functions recommendation, e.a.,
receiving views from the staff via SECY papers and holding open meetings to discuss issues raised, are ones which I would expect'the Commission to follow in any event.
While I agree that the Staff's SER for the FDA/ design-certification will be the primary basis'for'the. commission's evaluation and resolution of issues,xI view.it as, in many. ways,.
an extension of:the Statementsof considerations or= basis on which the commission issues the design certification rule,fand'its preparation by the staff does not fundamentally change the staff's role from that which it performs in other;1ess complex rulemakings.
To the extent any informal hearings'are held, the-staff may participate in the hearings in a consultative _-roleLto:
3 the Licensing Board, to answer questions about the SER or the proposed rule or provide additional _information or documer stion' i
as requested.
On the issue of ex parte restrictions, I agree with the recommendati6n of Commissioner Curtiss.
The issue of' access to 1
knowledgeable individuals critical to the: Commission's decisionmaking process is not as significant with respect to communications with interested persons outside the agency,_andEI believe the process outlined by Commissioner Curtiss is an appropriate one.
The fundamental requirement which the Commission must' assure is followed is that the final decision' reached is based upon:a public record upon which thete has been an appropriate opportunity to comment.
In the unlikely event that any.
discussions with the staff, public or nonpublic,.were-to;1ead to; extra-record information which formed the basis of the Commission's decision, that aspect of the-proposed certification.
could be renoticed for-additional comment.
The-Role of the Licensir.a Board I disagree with OGC's recommendation to follow-a " modified ~fullL magistrate" model for the Licensing Board:for many'of the'same reasons outlined by Commissioner Curtiss.
To move beyond a
" limited magistrate" model, which has been followed, with one i
limited exception, in'all other Commission.rulemakings which have
~
used augmented procedures, would introduce unnecessary:,
- l adjudicatory aspects to tho._rulemaking_ process and move toonfar
.away from the general _rulemaking model in_which there is onlyfone decisionmaker - the Commission--who resolves all issues raised by~
public commenters..one of the' negative aspects of the limited-i magistrate model noted by OGC, that the Commission would be.
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reviewing an unrefined hearing record de novo without the benefit of any Licensing Board analysis, will be offset by the approach I have proposed with respect to the role of the staff.
For these reasons, I believe the Commission should establish a limited magistrate role for licensing boards in design certification rulemakings.
I also oppose giving the licensing boards sua sconte authority to raise new issues for discussion at any hearings.
I believe defining the Board's authority in this manner is in keeping with the language of section 52.51(b) and is consistent with the limited magistrate approach which I favor.
Consistent'with a Licensing Board's responsibilities in any matter in which it presides, if, during the course of the hearing, the Board does identify issues not raised by the parties, but which the board believes are significant enough to warrant the attention of the Commission, the Board should identify those matters to the.
Commission along with its certification of the record..
One of the issues identified by OGC was whether the Licensing Board must consider relevant information submitted in the docket in the notice and comment phase.
I do not think adoption of the limited magistrate role obviates the need for the Board to consider such information.
In determining what procedural actions to take or recommend to develop an adequate record I would expect'the Board to be knowledgeable of and consider all of the information available to it and ultimately to the Commission.
In keeping with this approach to the Board's role, I would generally follow OGC's recommendations on filing of findings of fact.
Parties should file their submissions in the form of a recommended final rule and statement of considerations for the rule (or portion of the rule) with the Commission 30 days after the close of the record.
The Board would certify the record to the Commission, in the form of a description of controverted matters, a summary index of the evidence received on those matters, and a limited finding that the record is sufficient for the Commission to make a decision on.the controverted matters, within 15 days of the close of the record.
Failure to file findings on a controverted issue would not result in dismissal of that issue from the rulemaking.
Treatment of Proorietary Information In my view, the design certification rule should not contain proprietary information; that is, the Tier 1 and Tier 2 information should contain sufficient non-proprietary information to enable the Commission to make its safety determination.
Concomitantly, the staff's SER would contain the necessary and sufficient nonproprietary information to justify the conclusions reached.
Proprietary information could if necessary be referenced as supplementary information to bolster the 3
justification for the rule or as one acceptable method of complying with ITAAC.
It is my understanding that GE and the staff have.been working to implement this approach in the review of the GEABWR, and have thus far encountered no insurmountable problems.
With this premise for the design certification rule, I would support OGC's third alternative for gaining access to proprietary information.
Only parties to the rulemaking hearing could be granted access to proprietary information upon a showing that: 1) nonproprietary information is not adequate to prepare for the hearing; 2) information sought is relevant to issues to be considered in.the hearing; and 3) the party _has the expertise to use the information and make a significant contributuion to the' hearing record.
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