VR-SECY-25-0020, Rulemaking Plan on Cost Expenditure Criteria for Research and Development Utilization Facilities (Marzano)
| ML25114A123 | |
| Person / Time | |
|---|---|
| Issue date: | 04/22/2025 |
| From: | Marzano M NRC/OCM |
| To: | Carrie Safford NRC/SECY |
| Shared Package | |
| ML25114A116 | List: |
| References | |
| SECY-25-0020 VR-SECY-25-0020 | |
| Download: ML25114A123 (2) | |
Text
POLICY ISSUE NOTATION VOTE RESPONSE SHEET TO:
Carrie M. Safford, Secretary FROM:
Commissioner Marzano
SUBJECT:
SECY-25-0020: Rulemaking Plan on Cost Expenditure Criteria for Research and Development Utilization Facilities Approved X Disapproved Abstain Not Participating COMMENTS:
Below Attached X
None Signature Matthew J. Marzano Date 04/22/2025 Entered in STAR Yes X
No MATTHEW MARZANO Digitally signed by MATTHEW MARZANO Date: 2025.04.22 14:00:46 -04'00'
Commissioner Marzanos Comments on SECY-25-0020, Rulemaking Plan on Cost Expenditure Criteria for Research and Development Utilization Facilities The recent amendment to Section 104c of the AEA made by Section 601 of the ADVANCE Act provides for a greater amount of commercial activity that a research and development utilization facility can perform than is currently allowed under the NRCs regulations. I agree with the proposed revision to 10 CFR to clarify that a utilization facility may be licensed under Section 104c of the AEA if the following two conditions are satisfied: (1) not more than 75 percent of the annual costs of owning and operating the facility are devoted to the sale of nonenergy services, energy, or a combination of these activities (not counting sales of research and development or education and training), and (2) not more than 50 percent of the annual costs of owning and operating the facility are devoted to the sale of energy.
In SECY-25-0020 the staff requests approval to forego the normal notice and comment process and recommends issuing a final rule under the good cause exception to the Administrative Procedure Act (APA). The staffs rationale for this approach is based on the non-discretionary nature of the rulemaking and the efficiencies gained as compared to other mechanisms like traditional notice-and-comment rulemaking or the direct final rule process. I acknowledge that the regulatory changes under consideration here are narrowly tailored to mirror the amendments made to Section 104c of the Atomic Energy Act and therefore provide no room for discretion. For that reason, I approve Alternative 2. I also approve the delegation of signature authority for this action to the Executive Director for Operations and the staffs recommendation that this activity does not need review by the Advisory Committee on Reactor Safeguards, Committee to Review Generic Requirements, or the Advisory Committee on Medical Use of Isotopes.
However, I would be remiss if I did not express my concern with the staffs reliance on efficiency as a justification for departing from the agencys typical rulemaking practicesand thereby eliminating opportunity for public engagementin the absence of any expression from Congress to do so.1 There are tools available (e.g., the direct final rule process) to meet the agencys efficiency targets that still incorporate opportunities for public engagement and support NRCs Principles of Good Regulation.2 While I approve the staffs request to issue a final rule in this case, I am mindful that the good cause exception is to be narrowly construed. I believe the final rule process, particularly based on the unnecessary prong of the good cause exception, is to be undertaken sparingly and only after careful consideration and with adequate justification.
1 In this instance, Congress did not specify a particular date by which the amendments to Section 104c of the AEA are to be implemented. See generally ADVANCE Act § 601, 42 U.S.C. § 2134(c). A Congressionally established rulemaking deadline imposed through enabling legislation is one of the relevant circumstances to be considered in deciding the propriety of utilizing the APAs good cause exception. Of note, some courts have evolved a presumption that Congress expects agencies to comply with the APA, even under short statutory time constraints, unless the statue expressly states otherwise.
See e.g., Levesque v. Block, 723 F.2d 175, 184 (1st Cir. 1983) (citing Philadelphia Citizens in Action v.
Schweiker, 669 F.2d 877, 885 (3d Cir. 1982)); see also Asiana Airlines v. F.A.A., 134 F.3d 393, 398 (D.C.
Cir. 1998) (finding the agency excused from the notice and comment requirement where the statute plainly expressed a congressional intent to depart from normal APA procedures).
2 The Administration Conference of the United States recently adopted Recommendation 2024-6, which continues to recommend that agencies use direct final rulemaking in all cases where the unnecessary prong of the good cause exception is available. Adoption of Recommendations. 89 Fed. Reg. 106406 (Dec. 30, 2024).