ML20046A817
| ML20046A817 | |
| Person / Time | |
|---|---|
| Issue date: | 06/30/1993 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Parler W, Taylor J NRC OFFICE OF ENFORCEMENT (OE), NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| References | |
| FRN-61FR21105, REF-10CFR9.7 AF12-1-012, AF12-1-12, NUDOCS 9307300095 | |
| Download: ML20046A817 (3) | |
Text
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' June 30, 1993
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' OFFICE OF THE SECRETARY t
' MEMORANDUM TO:
James M. Taylor Executive Director'for Operations William C.
Parler
' General Counsel L+
FROM:
Samuel J.
Chilk, Secretary p
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SUBJECT:
SECY-93-086 - BACKFIT' CONSIDERATIONS-Overall, the Commission is pleased with the.Backfit Rule and.itsc implementation..For the most part,.the. process has worked well, even though, as the staff has pointed out',-there are some valid:
concerns regarding difficulties encountered in trying to satisfy.
the Backfit Rule's requirement for a " substantial increase in overall protection'to public health and--safety"..
Being reasonably satisfied with the Rule, the Commission _has, therefore, agreed that the: staff should continue to carry'out.a disciplined regulatory analysis for rulemaking initiatives,_and to determine, as part of that. analysis, whether proposedirules.
neet the safety enhancement criterion of the Backfit Rule.
However, although the. Commission is interested 1 1n preserving the-.
discipline of.the Backfit Rule, the Commission is.also. interested l
in assuring that the safety enhancement-criterion lis administered' with the degree of. flexibility the Commission originally-intended.
When the " substantial' increase" criterion was-promulgated in its present form in 1985, the Commission said:
i
" substantial" means "important or significant in a large.
amount, extent, or degree."
Under!.such'a' standard the.
i Commission-would:not ordinarily expect that safety'-
improvements would.be required as backfits-that resultiin'~an
.l insignificant or small benefit:to,public.healthiand safety; regardless!of costs.
On theLother hand,-the' standard'isi j
not intended to be-interpreted inLafmanner'that would result j
in disapprovals of worthwhile safety ~or securityL SECY NOTE:
THIS SRM,'SECY-93-086, AND THE VOTE SHEETS OF ALL l
COMMISSIONERS WILL BE MADE PUBLICLY AVAILABLE '10 0
L WORKING DAYS FROM THE DATE OF THIS SRM N
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f g improvements having costs that are justified in view of the increased protection that would be provided..
A majority of the Commission.(with the Chairman and Commissioners Rogers, Remick and de Planque agreeing) continuesit'o believe that these words embody a sound approach to the " substantial-increase" criterion and that this approach is flexible enough to allow for qualitative arguments that a given proposed rule-would substantially increase safety.
The approach is also flexible.
encugh to allow for arguments that consistency with national and international standards, or the incorporation of~ widespread' industry practices, contributes either-directly or indirectly to a substantial increase in safety, Such arguments concerning consistency with other standards, or incorporation ofEindustry practices, would have to rest on the particulars of a given proposed rule.
The Commission also believes that this. approach to " substantial increase" is consistent with the agency's policy of encouraging voluntary industry initiatives.
The Commission asks the staff to consider whether existing documents such as the CRGR Charter or office letters should be revised to reflect better the Commission's understanding of the
" substantial increase" standard.
The Commission would entertain a staff recommendation that separate guidance should be drafted, or other appropriate mechanisms for implementation prepared. :Any revisions, drarts, or mechanisms which the staff-believes advisable should be brought to the Commission for' approval.
Despite the flexibility which the Commission believes inheres in the " substantial increase" standard, there may be proposed rules which, in the staff's opinion, do not meet that standard and should be promulgated mainly for nonsafety reasons.. As in the past, the Commission remains willing to consider, on a case-by-case basis, whether such rules shoulc be promulgated as exceptions to the Backfit Rule.- However, it is the judgement of i
the General Counsel that using 10 CFR 50.12 to promulgate.such exceptions is not a sound regulatory approach.
The Commission therefore concludes that such exceptions should be. promulgated only if the proposal not to apply the Backfit Rule to the proposed rulemaking is made the subject of notice and comment.
For the reasons set forth in his vote, Commissioner Curtiss believes that the preferred course of action would be to modify the backfit rule to directly address situations where a seemingly-worthwhile change to the regulations cannot be adopted because of.
difficulties in demonstrating that the change represents a-
" substantial increase in the overall protection of the public health and safety or the common defense and security."
In Commissioner Curtiss' view, the Commission has encountered a sufficient number of such cases, where the current backfit rule does not permit a reasonable, well-justified change to be made, to warrant modifying the backfit rule to address such situations.
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i cc:2 The Chairman Commissioner Rogers Commissioner Curtiss Commissioner Remick Commissioner de Planque OGC 01G Office Directors, Regions, ACRS, ACNW'(via E-Mail)
ASLBP (via FAX).
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