ML20046A855
| ML20046A855 | |
| Person / Time | |
|---|---|
| Issue date: | 05/27/1993 |
| From: | Remick NRC COMMISSION (OCM) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| NUDOCS 9308020012 | |
| Download: ML20046A855 (3) | |
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SAMUEL J. CHILK, SECRETARY OF THE C0! MISSION FROM:
C014MISSIONER REMICK
SUBJECT:
SECY-93-086 - BACKFIT CONSIDERATIONS y/cswnf APPROVED DISAPPROVED X ABSTAIN Nor PARTICIPATING REQUEST DISCUSSION i
COMMENTS:
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27#9 @l DATE WITHHOLD VOTE
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ENTERED N "AS" YES No 7'.
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l i'i Commissioner Remick's comments on SECY-93-086:
After careful thought, I disapprove the staff's recommendation of Option 3 (Commission exemption under 10 CFR 50.12(a)), OGC's preference of either Option 3 (exempt rulemaking from the backfit.
rule) or Option 2 (revising the safety enhancement criterion of the backfit rule), and instead approve Option 4 (no action; continue the status quo).
The inclusion of rules in the requirements covered by the
" substantial increase" criterion of the backfit rule was not accidental or inadvertent.
It occurred after much Commission thought and debate in the wake of what many perceived to be an agency running wild with endless backfits, some of questionable l
safety significance.
I am not surprised that, "since promulgation of the backfit rule, there have been a number of rulemaking actions where considerable agency resources have been expended addressing whether a proposed rule meets the ' substantial increase in overall protection' I
criterion" (SECY-93-086).
The agency should expend considerable thought - and perhaps therefore considerable resources - in assuring that the criteria of the backfit rule are met.
- However, when I look at the examples in Enclosure 2 to SECY-93-086 of rules which have been the occasion for expending these resources, I find that the Revised Part 20, 10 CFR Part 73 on Access Authorization, 10 CFR Part 50, Appendix E, on the Emergency Response Data System, 10 CFR 26 on Fitness for Duty, and 10 CFR Part 50.65 on Maintenance have all been promulgated in spite of the difficulties posed by the backfit rule.
Further, revision to 10 CFR Part 50, Appendix J, on containment testing, could have been promulgated in the form of a voluntary additional option under Appendix J, thus not constituting a backfit, an approach which the staff chose not to pursue.
Thus, all examples provided in Enclosure 2 have been promulgated, or, in my view, could have been promulgated in some useful form, in spite of the present form of the backfit rule.
There appears to be no shortage of rules that we continue to promulgate.
Therefore, the fact that the backfit rule causes us to work hard to justify some does not, in my view, constitute an i
adequate basis for opening the door to the slippery slope of justifying rules on the basis of being considered " worthwhile" by the regulatory body.
Some of my colleagues believe that it will be possible to codify a list of features which make a proposed backfit " worthwhile."
They appear to believe that the list can be drafted in such a way as to remove what they think are significant unnecessary burdens, and yet retain the useful discipline which the backfit rule provides.
I do not share their belief, and I am confirmed in my view by some of the very examples which my colleagues and the staff offer of features which make a backfit " worthwhile."
Any regulatory agency can conceive of many rules which, from its perspective, are
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" worthwhile," but which, from a larger perspective, perhaps ought not be promulgated.
Any regulator, including this one, can conceive of " worthwhile" things which he or she thinks others should be required to do, but which perhaps they ought not be required to do.
The backfit rule with its " substantial increase" criterion imposes a discipline on us which I am not convinced has significantly detracted from our ability to carry out our regulatory responsibilities.
l As a separate matter, I ask the General Counsel to provide advice on whether a proposed rule that prescribes requirements which are determined to be worthwhile by both the NRC and the affected I
licensee (s) would be considered a backfit under the NRC's current regulations.
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