ML20209C529
| ML20209C529 | |
| Person / Time | |
|---|---|
| Issue date: | 01/08/1986 |
| From: | Nellis D NRC |
| To: | Dorian T NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| Shared Package | |
| ML20209A892 | List:
|
| References | |
| FRN-49FR1205, RULE-PR-20 AA39-2-031, AA39-2-31, NUDOCS 8704290006 | |
| Download: ML20209C529 (1) | |
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- Apropos of our telephone conversation yesterday, I am enclosing copies,of_the coninent remos from i
NMSS and ELD concerning the accreditation rule.
In order to address the ELD comments pertaining f
' to Attachment C (analysis;of comments), I am f
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riate citations on legal rulings that prohibit 1
differentiation of fees based on business size.
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2 1 1985 MEMORANDUM FOR:
Robert E. Alexander, Chief Health Effects and Occupational Radiation Protection Branch Office of Nuclear Regulatory Resear.ch FROM:
William J. Olmstead Director and Chief Counsel Regulations Division Office of the Executive Legal Director
SUBJECT:
IMPROVED PERSONNEL DOSIMETRY PROCESSING We have reviewed the draft Commission paper and accompanying attachments, including the draft Federal Register notice containing proposed amendments to 10 CFR Part 20 to require the use of accredited personnel dosimetry processors, and have the following comments.
Since all rulemaking proceedings are now subject to the applicable provisions of the Commission's recently promulgated backfit rule (50 FR 38097-38113, September 20,1985) Federal Register rulemaking notices and associated Commission papers must state whether the proposed changes con-stitute a backfit within the meaning of the rule (10 CFR Q '50.109(a)(1))
and if so, that the requisite analysis justifying imposition of the backfit has been prepared (see 10 CFR $ 50.109(c)).
If imposition of the backfit cannot be justified, new requirements, including those estab11shed by rule, may only be imposed prospectively.
As defined in 9 50.109(a)(1), "backfitting" is "the modification of or addition to systems, structures, components, or design of a facility; or the design approval or manufacturing license for a facility; or the proce-dures or organization required to design, construct or operate a facility; The nine factors for evaluating backfits (i 50.109(c)) were developed from the Regulatory Analysis Guidelines in hUREG/8R 0058 and the CRGR charter, both of which are applicable to this rulemaking. Conse-quently, the paper should already be supported by the required analysis.
While the Regulatory Analysis Guidelines and CRGR charter do not literally require the staff to drop the backfit portion of a rulemaking where it is unable to find a " substantial increase in overall protection" as stated in 10 CFR 9 50.109(a)(3), it is questionable whether the Commission would choose to proceed with any rulemaking where the justification was unable to withstand a 9 50.109(a) analysis. Consecuently, a paragraph addressing the backfit considerations should be added to the Comission paper and to the preamble of the draft final rule.
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Since copies of Enclosure D, Periodic and Systematic Review of Regulations, and Enclosure E, Initial Regulatory Flexibility Act Analysis were not supplied, we are unable to evaluate either the adequacy of these documents or the accuracy of the references to these documents in the Draft Comis-sion paper (see p. 7) and in the draft Federal Register notice (see Enclo-sure A, pp. IT 16).
Category IV of the Analysis of Coments (Attachment C) contains several
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references to " legal rulings which prohibit differentiation of fees based
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on business size." See pp. 1, 8, 10 and 11. However, no citations to the legal authority for this statement are given. We are unable to evaluate the accuracy of these references without the requisite citations.
Minor typos and editorial revisions are marked on the following pages:
Draft Comission Paper - pp. 4, 5, 6 and 10.
Draft Federal Register Notice - pp. 1, 2, 6, 7, 11, 12, 13, 15, 16 and 17.
Coment Analysis:
Category II - pp. 3, 4 and 5.
Category III - p. 1.
Category IV - pp. 1, 6, 7, 8 and 10.
I William J. OTmstead Director and Chief Counsel Regulations Division Office of the Executive Legal Director cc: Harold T. Peterson, Jr.
Donald O. Nellis Sn 43 FR 7210 (2.21/78). Seeleo46FR49573(10/7/81) and 49 FR 21293 (5/21/84). These FR notices discuss the cases. Two key cases are National Cable Television Association v.
Ihtited States, 415 U.S. 336 (1974) and Federal Power Commission v. New England Power Co.,
415 U.S. 345 (1974). Generally, a fee based on business size, volume, and so on, is viewed cs a tax and not allowable except by an act of Congress. For instance, AEC's annual fee based on MWe of power was revoked and refunds were made in 1975-76.
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