ML20054C069
| ML20054C069 | |
| Person / Time | |
|---|---|
| Issue date: | 04/06/1982 |
| From: | Palladino N NRC COMMISSION (OCM) |
| To: | Roth W SENATE, GOVERNMENTAL AFFAIRS |
| Shared Package | |
| ML20054C070 | List: |
| References | |
| NUDOCS 8204190461 | |
| Download: ML20054C069 (8) | |
Text
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UNITED STATES
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NUCLEAR REGULATORY COMMISSION h
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WASHINGTON, D. C. 20555
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CHAl AN The Honorable William B. Roth, Jr.
Chairman, Committee on Governmental Affairs United States Senate Washington, D.C.
20510
Dear Mr. Chairman:
This responds to your request of September 30, 1981 for comments on S. 1601, the Regulatory Mediation Act of 1981.
The Kuclear Regulatory Commission has reviewed this proposed legislation and does not recommend its enactment. While we support the general concept of providing agencies with the input of affected parties developed through mechanisms for dispute resolution, the proposed legislation, in its present form, could potentially delay the rulemaking process without accomplishing its objective. The enclosed comments address several problems we perceive in the bill and provide an estimate of regulatory burdens that might result from its enactment.
The additional views of Commissioner Ahearne are enclosed.
Sincerely, M6 Nunzio J. Palladino l
Enclosures:
- 1. Comments on S. 1601
- 2. Estimate of Regulatory Burdens
- 3. Separate Views of Commissioner Ahearne cc:
The Honorable Thomas E. Eagle +-n b
8204190461 820406 PDR COMMS NRCC CORRESPONDENCE PDR
h COMMENTS OF THE NUCLEAR REGULATORY COMMISSION TO THE SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS CONCERNING S. 1601, THE PROPOSED " REGULATORY MEDIATION ACT OF 1981" At the request of Chairman Roth of the Committee, the Commission has reviewed S. 1601, the proposed " Regulatory Mediation Act of 1981" (the bill).
The Comission supports the concept of providing agencies with the input of affected parties developed through mechanisms for dispute resolution.
In appropriate circumstances, the use of a " regulatory negotiation comittee" could provide an excellent mechanism for collecting relevant information and ensuring full public comment on the significant issues present in a particular rulemaking proposal.
In addition, the process can help achieve a consensus among affected parties that ensures a more effective implementation once the rule is promulgated.
However, for the reasons set forth below, the Commission opposes enactment of the bill in its present form because it does not provide a workable means to achieve its goals.
The bill would provide for the participation of specially appointed
" regulatory negotiation committees" (the committee) in the development of rules. Under the proposed legislation, representatives of affected interests would convene with a senior official of the concerned agency for the purpose of developing, through a process of negotiation and mediation, a proposed rule.
The outcome of the committee's negotiations would be an agreement on the proposed rule itself which would form the basis for the notice of proposed rulemaking required by the "Gministrative Procedure Act.
We believe that by designating a " proposed rule" as the ultimate product l
of the committee, the bill increases the likelihood that all members of l
the committee will not be able to come to agreement on the product.
Moreover, it will involve the committee in the minutia encountered in developing a proposed rule and make the process very time-consuming.
The objectives of the bill will have a better opportunity of being realized if the negotiating process was designed to develop an advisory report to the agency on various policy !ssues related to a rulemaking area (e.g. the type of information that should be gathered). This is I
especially true in areas such as nuclear power regulation which involve
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highly complex technical issues and often widely polarized positions.
While agreement on a proposed rule probably would provide elusive, l
agreement on an advisory report could reasonably be expected. The l
benefit would be useful input to the agency's rulemaking endeavors.
We also have the following technical comments:
1.
In the majority of instances, the use of regulatory mediation committees would result in delays in rule-writing procedures that could impede agencies from carrying out their statutory responsibilities effectively.
The criteria to be considered by the Chairman of the Administrative Conference in order to recommend that a regulatory mediation committee be established does not l
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require consideration of whether the utilization of mechanisms for dispute resolution will impact favorably on the expedient implementation of the rule under consideration.
2.
The bill does not provide explicit criteria for dissolution of the committee by the agency in case of an impasse.
3.
The bill, which is designed to minimize the possibility of executive branch interference with independent regulatory agencies, does not limit the scope of the OMB review of the committee report.
We believe that, as presently drafted, section 6(c) of the bill provides the opportunity for such intervention. The framework established by Congress to guarantee that the decisionmaking processes of independent regulatory agencies are free from undue influence by executive branch officials and entities, as well as the unique relationship between Congress and the independent agencies, could be eroded by the lack of definition of the scope of OMB review of the committee report.
4.
The bill leaves the use of a mediator as optional, and does not establish any criteria for the mediator's qualifications.
5.
The bill provides no guidance on what constitutes " good cause" for not publishing in the Federal Register any proposed rule developed by the regulatory negotiation committee.
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ESTIMATE OF REGULATORY BURDENS ASSOCIATED WITH S. 1601 "THE REGULATORY MEDIATION ACT" It is important to stress that the actual amount of total additional time and staff resources resulting from implementation of S.1601 will depend greatly on the complexity and controversiality of the subject area of the proposed rulemaking.
It will also be dependent on how the proposed " regulatory mediation" process interacts with the existing NRC rulemaking process.
Current rulemaking procedures contain the following discrete elements in the development of a proposed rule:
Identification of the need for rulemaking in a particular area either through Congressional directive, staff or Commission initiative, or a petition for rulemaking; preparation of a preliminary value/ impact statement which outlines the need for the rulemaking, it's objectives, major alternatives, as well as any associated costs and benefits; preparation of an initial draft of the rule; review by the cognizant individuals in other NRC offices and resolution of comments; division level review by other NRC offices and resolution of comments; possible review of the proposed rule by the Advisory Committee on Reactor Safeguards and resolution of comments; office level review and resolution of comments; review by the Committee to Review Generic Requirements and resolution of comments; review by the Executive Director for Operations and resolution of comments; Commission review; Publication of the proposed rule in the Federal Register for public comments.
Superimposed on this process are several statutory " regulatory analysis" requirements that necessitate the evaluation of environmental impacts (NEPA), the impact on small business and government jurisdictions (Regulatory Flexibility Act), and the information collection burdens (Paperwork Reduction Act).
The entire process involves substantial documentation of the data and methodologies on which the proposed rule is based and extensive interaction among the Commission staff. Any proposals or recommendations that are developed in the formal regulatory mediation process of S. 1601 will have to be documented by the NRC staff
2 before going forward. These proposals will also have to be discussed and approved within the Commission through the existing comment and concurrence process for each significant decision in the regulatory mediation process.
The need for documentation, as well as the continuous dialogue required between the NRC representative on the mediation committee and the NRC staff, can only add to the existing level of staff resources and paperwork expended on a proposed rule, and lengthen the period of time that is necessary to promulgate a proposed rule.
The following estimates of staff resources necessary to implement the mediation process additions to those resources normally expended in developing a proposed rule:
Participation of the NRC representative in mediation committee meetings. This would, at a minimum, involve one month of professional staff time over a period of nine months.
Preparation of briefing papers on the progress of the mediation by the NRC representative and management review of mediation committee deliberations would involve two months of professional staff time.
Preparation of background material for the use of the mediation committee in their deliberations would involve an additional one month of professional staff time.
Staff analysis of significant proposals made by the mediation committee, as well as management review and concurrence on these proposals would involve two additional months of professional staff time.
In summary, the actual work of the regulatory mediation committee will require an additional six months of professional staff time. Since much of the normal development of the proposed rule will also be taking place within the time frame of the mediation, implementation of the mediation process will not add a considerable amount of time to the normal rulemaking time schedule. However, some allowance must be added for the more deliberate consideration a rule developed in formal mediation, due to the visibility of the mediation process.
In addition, the following procedural provisions of S. 1601 would require additional time and staff resources:
1.
Section 4(b) requires the Chairman of the Administrative Conference to make a determination that there is "a substantial likelihood that the agency will seriously consider issuing a rule relating to the subject matter on the request," This will require a basic agency decision on whether to proceed with " regulatory mediation,"
and therefore will necessitate considerable staff discussion on whether any rulemaking is necessary in the proposed topical area, the impact of such a rulemaking on existing or proposed Commission rules, whether the particular rulemaking would be a proper one for regulatory mediation, and whether the proposed rulemaking would be
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within the Commission's statutory authority. The major time and resource components associated with these issues would be:
Analysis of these issues by the Office of Nuclear Regulatory Research, primarily responsible for development of proposed rules within the Commission, will take one month to complete and will involve one month of professional staff time.
Determination by the Office of the Executive Legal Director as to whether the proposed rulemaking is within the statutory authority of the Commission will involve one half month of professional staff tue.
Concurrence on the recommendations of the Office of Nuclear Regulatory Research by other Commission offices, the Committee to Review Generic Requirements, the Executive Director for Operations, and the Comission will take six weeks and will involve one month of professional staff time.
In toto, analysis of the issues raised by Section 4(b) of the proposed legislation will take ten weeks and will involve ten weeks of professional staff time.
2.
Section 4(d)(2) requires the Chairman of the Administrative Conference to obtain agreement, to the utent feasible, among all parties to the mediation on the following issues:
Who should be appointed to the mediation comittee, their competence and qualifications concerning the subject matter on the proposed rule; whether all interests that are substantially affected by the proposed rule are represented on the committee; whether the committee is balanced in representation so that "no interest or group of allied interests constitutes more than one-third of the membership of the committee";
the issues to be considered by the committee; and a schedule for completing the work of the comittee.
The major time and resource components associated with these issues would be:
Development of initial recommendations by the Office of Nuclear Regulatory Research staff person on potential appointees to the mediation committee will take two weeks and will involve one week of professional staff time.
Concurrence on the recommendations made by the Office of Nuclear Regulatory Research as to qualifications, representation, and balance by other Commissior Offices, the Executive Director for
4 Operations, and the Commission will take one month and involve three weeks of professional staff time.
Development of recommendations for the Chairman of the Administrative Conference on the issues and schedule for the mediation will entail preparation of a preliminary regulatory analysis of the proposed rulemaking by the Office of Nuclear Regulatory Research.
This process will take six weeks and will involve one month of professional staff time.
Concurrence on the recommended issues and schedule by other Commission offices, the Executive Director for Operations, and the Commission will take one month and will involve three weeks of professional staff time.
In toto, agency agreement on the issues considered under Section 4(d)(2) of the proposed legislation will take approximately five months and will involve 13 weeks of professional staff time.
3.
Section 5(b) requires the agency to publish a Fe'deral Register notice to the effect that the agency is proposing to use a mediation committee in the development of a rule and to allow a thirty day comment period on the notice. The agency must consider all relevant comments. The entire review process, including the thirty day comment period, staff consideration of relevant comments, and preparation of a Federal Register notice summarizing the Commission response to the comments, will take a total of three months and will involve six weeks of professional staff time.
In summary, the procedural provisions of S.1601 would add approximately ten months to the normal tima necessary to promulgate a proposed rule, as well as the addition of seven months of professional staff time.
As was emphasiz'ed earlier,'.ths-exact. amount of additional time and-staff resources that would result from. implementation of S.1601 will depend on the complexity and controversiality of the subject area of the proposed rulemaking.
However, based upon the above analysis, a conservative estimate would be the addition of one year to the-normal time necessary to promulgate a proposed rule, as well as the addition of thirteen months of professional staff time.
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ADDITIONAL VIEWS OF COMMISSIONER AHEARNE Reservations about " regulatory mediation" typically arise from the fear that it enables the regulated parties to unduly influence, even control the outcome of rulemaking.
In my opinion there is ample experience in a number of places which shows that the basis for such fears can be dealt with.
The NRC's own involvement with the consensus standards process is a good example.
The Regulatory Guides are very important regulatory tools.
In many cases, the Regulatory Guides endorse or use industry technical standards; these Guides benefit greatly from the participation of the regulated parties in the standards on which they are based, both with respect to their quality and practicality and with respect to their cost of development. The American Society for Testing and Materials (ASTM) is one body that has successfully practiced an approach similar in concept to " regulatory mediation" for some time. The ASTM relies on a carefully drawn balance in committee membership and voting. They even have an analogue of intervenor funding to be used if needed to assure balance.
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