SECY-18-0104, Response to the Staff Requirements-SECY-18-0104-Draft Final Rule: Amendments to Material Control and Accounting Regulations (Rin 3150-A161; NRC-2009-0096)
| ML19098B622 | |
| Person / Time | |
|---|---|
| Issue date: | 09/19/2019 |
| From: | Andrea Veil NRC/CRGR |
| To: | Margaret Doane NRC/EDO |
| Cupidon L | |
| References | |
| NRC-2009-0096, RIN 3150-A161, SRM-S18-0104-1, SRM-S18-0104-2 | |
| Download: ML19098B622 (4) | |
Text
September 19, 2019 MEMORANDUM TO: Margaret M. Doane Executive Director for Operations FROM: Andrea D. Veil, Chairman /RA/
Committee to Review Generic Requirements
SUBJECT:
RESPONSE TO THE STAFF REQUIREMENTS MEMORANDUM FOR SECY-18-0104 - DRAFT FINAL RULE: AMENDMENTS TO MATERIAL CONTROL AND ACCOUNTING REGULATIONS (RIN 3150-Al61; NRC-2009-0096); CRGR LESSONS LEARNED Consistent with the Commission direction in the staff requirements memorandum (SRM), SRM-SECY-18-0104 - Draft Final Rule: Amendments to Material Control and Accounting Regulations (RIN 3150-Al61; NRC-2009-0096) (ML19093B393), the following report provides the results of the CRGR review of the evaluation criteria and process involved in its review of Draft Proposed Rulemaking 10 CFR Part 74, Material Control and Accounting of Special Nuclear Material (MC&A). Along with the background of the CRGR review, this report provides some lessons learned and a path forward to improve its review of future staff proposals containing adequate protection exceptions.
Background
On August 16, 2018, the Committee to Review Generic Requirements (CRGR) held Meeting No. 456 (ML18233A519) with the staff to discuss the MC&A draft proposed rulemaking, and the staffs positions regarding the use of the adequate protection exception to backfitting in the rulemaking. At this meeting the CRGR endorsed the staffs draft proposed rulemaking and the associated regulatory guidance documents. In its review of this rulemaking, the CRGR engaged the staff in discussion regarding the purpose of the rulemaking, the backfitting approach used in the rulemaking, the regulatory analyses supporting the rulemaking, and the effects of the rulemaking on the licensees that would have been subject to the revised regulations. In the Staff Requirements Memorandum (SRM) for SECY-18-0104, Draft Final Rule: Amendments to Material Control and Accounting Regulations, the Commission directed the CRGR to evaluate its endorsement of this draft final rule and provide a report to the Commission on any lessons-learned or modifications that may be needed to its evaluation criteria, given the Commission's disapproval of the rules issuance.
Lessons Learned In accordance with its 2018 Charter (ML17355A532), the CRGR focused its review on the four declared backfits and the staffs application of the backfit process. For all four of the declared backfits, the staff proposed to use the adequate protection exception to justify the backfits. The CRGR ultimately agreed with the staffs recommendation and recognized that the final decision on this issue rests with the Commission.
M. Doane In light of the Commissions direction in the subject SRM, the CRGR reviewed its actions relative to the MC&A rulemaking and found that the security rationale could have been more critically considered during the CRGR and staff deliberations. Although the CRGR reviewed the history and evolution of the rulemaking and the staffs recommendation regarding the adequate protection exception, the CRGR recognizes that more clarity is needed in the process.
Therefore, the CRGR plans to consider revisions to its procedures titled, Committee to Review Generic Requirements Procedures and Internal Administrative Process (ML17355A533) in the effort to clarify both the scope and the increased rigor of the CRGRs reviews with respect to staff proposals invoking the adequate protection exception. This additional clarity would better define expectations for future reviews. For example, although the Commission makes the final decision on the staffs application of the adequate protection exception, the CRGR should provide recommendations to the sponsoring office regarding the adequacy of the staffs supporting analysis for the adequate protection exception. These recommendations would be particularly useful when the CRGR disagrees with or has concerns about the staffs recommendation or supporting rationale. The CRGR plans to implement an enhanced review process, which is described in more detail below.
Path Forward Currently, the CRGR reviews the staff proposals, focuses on the backfit evaluations, and discusses industry backfit comments and concerns. To address the Commissions direction in the subject SRM, the CRGR plans to use a more robust approach when evaluating the staffs justifications for the proposed use of the adequate protection exception to the requirement to prepare a backfit analysis. This enhanced CRGR review process will include:
(1) A more rigorous focus on whether the proposed improvements or changes are necessary.
(2) Confirmation that the justification for invoking the adequate protection exception meets the guidance in NUREG-1409.
(3) Review of the complete documentation of the historical background between the staff, Commission, and industry interactions, including resolution of Commission comments.
(4) A more rigorous review of the staffs response to the public comments on staff proposals regarding backfitting, with particular focus on staff recommendations to use the adequate protection exception.
(5) More detailed meeting minutes to reflect the CRGRs independent deliberations regarding the staffs recommendations regarding the use of the adequate protection exception to the requirement to prepare a backfit analysis, including recommendations to the sponsoring office regarding the adequacy of the staffs supporting analysis for the adequate protection exception.
In applying this enhanced review process, the CRGR will not define adequate protection, and will instead focus on the staffs rationale for recommending the use of the adequate protection exception. The CRGR intends to be more deliberate in its reviews. This increase in rigor will seek to identify any lack of soundness within the staffs approach that could invalidate the basis for the proposed new regulation under the current agency regulatory framework. The CRGR plans to provide detailed comments to the sponsoring staff officethrough the use of the more detailed meeting minutes as discussed aboveregarding the adequacy of the staffs rationale and analysis supporting the recommendation. The subject comments will convey the CRGRs assessment of the validity and soundness or the lack thereof, of the staffs basis in its evaluation for invoking the adequate protection exception.
M. Doane Since last years CRGR charter update (Revision 9, 2018), the CRGR has increased its interactions with the industry in accordance with the agencys policy of openness and transparency. This effort has provided a venue where the industry may engage in public meetings to bring its backfitting concerns to the CRGR. The CRGR will continue to ensure this option is available to the industry (for both materials and reactor licensees) especially when the staffs proposal raises backfitting concerns. In addition, as part of its review process, the CRGR will confirm that staff informed the industry of the option to engage with the CRGR at an appropriate time.
In addition to the enhanced review process, the CRGR will support the staffs work on guidance related to the adequate protection exception through increased coordination and additional opportunities for CRGR input into the final product. This will ensure consistency between the staffs procedures and guidance and the CRGRs enhanced review process which will be reflected in the revision of the CRGR procedures document.
The activities discussed in this memorandum will consider the revised MD 8.4 and the revised NUREG-1409. The relevant organizations (NRR, NMSS, NSIR, RES, and OGC) have been involved in developing this response.
ML19098B622 SRM-S18-0104-1 OFFICE CRGR SUNSI Review Tech Editor OGC CRGR NAME LCupidon LCupidon JZabel (by email) TCampbell (by AVeil email)
DATE 09/19/19 09/19/19 07/31/19 08/20/19 09/19/19