SECRETARY 

DECISION ITEM: 

TITLE: 

UNITED STATES 

NUCLEAR REGULATORY COMMISSION 

WASHINGTON, D.C. 20555-0001 

February 3, 2016 

COMMISSION VOTING RECORD 

SECY-15-0129 

COMMISSION INVOLVEMENT IN EARLY STAGES OF 

RULEMAKING 

The Commission acted on the subject paper as recorded in the Staff Requirements 

Memorandum (SRM) of February 3, 2016. 

This Record contains a summary of voting on this matter together with the individual vote 

sheets, views and comments of the Commission. 

Enclosures: 

1. Voting Summary 

2. Commissioner Vote Sheets 

cc: Chairman Burns 

Commissioner Svinicki 

Commissioner Ostendorff 

Commissioner Baran 

OGC 

EDO 

PDR 

Annette L. Vietti-Cook 

Secretary of the Commission 
Chrm. Burns 

Comr. Svinicki 

Comr. Ostendorff 

Comr. Baran 

*Not Participating 

VOTING SUMMARY - SECY-15-0129 

RECORDED VOTES 

APPROVED DISAPPROVED ABSTAINING N/P* COMMENTS DATE 

x 

x 

x 

x 

x 

x 

x 

x 

x 

11 /23/15 

12/16/15 

10/30/15 

12/02/15 
TO: 

FROM: 

SUBJECT: 

NOTATION VOTE 

RESPONSE SHEET 

Annette Vietti-Cook, Secretary 

Chairman Burns 

SECY-15-0129: COMMISSION INVOLVEMENT IN 

EARLY STAGES OF RULEMAKING 

Approved X Disapproved Abstain Not Participating 

COMMENTS: Below 

Entered in STARS 

Yes x 

--

No 

-- --

Attached X None 

;(3 November 2015 

Date 
Chairman Burns Comments on SECY-15-0129 

"Commission Involvement in Early Stages of Rulemaking" 

I commend the staff for providing a timely and thorough response to the Commission's direction. 

I approve the staff's recommendations in full. I support Commissioner Ostendorff's revisions to 

the staff's proposed streamlined rulemaking plan template, which would provide a more 

thorough discussion to inform the Commission's consideration of rulemaking plans. 

Some stakeholders have expressed concerns about a perceived lack of involvement of the 

Committee to Review Generic Requirements (CRGR) in rulemaking activities and the level of 

rigor of the CRGR's review. I am sensitive to these concerns; however, I am not wholly 

convinced that expanding the CRGR's role will effectively address them. I do believe, however, 

that the staff's commitment to develop criteria and guidance for CRGR involvement in 

rulemaking packages will be a positive step. The staff should provide the Commission the 

CRGR criteria and guidance for information once they are developed. The staff has also 

committed to examining the need for further process enhancements regarding CRGR after it 

has been able to assess lessons-learned and feedback from the use of the new guidance and 

criteria. If the staff determines that further process enhancements would be beneficial, it should 

inform the Commission. While I am not convinced that expanding the CRGR charter is the most 

effective approach at this time, I am open to future enhancement of CRGR's role if warranted. 

Finally, I support Commissioner Ostendorff's recommendation that the rulemaking process 

should include explicit guidance for the staff to raise potential policy issues to the Commission 

as early as practicable in the rulemaking process, especially in those instances where 

leadership is not able to resolve significant differences in approach. 
TO: 

FROM: 

SUBJECT: 

NOTATION VOTE 

RESPONSE SHEET 

Annette Vietti-Cook, Secretary 

COMMISSIONER SVINICKI 

SECY-15-0129: COMMISSION INVOLVEMENT IN 

EARLY STAGES OF RULEMAKING 

Approved XX Disapproved Abstain Not Participating -- -- --

COMMENTS: Below 

Entered in STARS 

Yes XX 

No 

Attached XX None 

121!.IJ /15 

Date 
Commissioner Svinicki's Comments on SECY-15-0129 

Commission Involvement in Early Stages of Rulemaking 

I approve the broad elements of the staff's recommendation contained in the paper, subject to 

the amendments and exceptions noted in this vote. The staff's proposal is a solid foundation , 

but if we begin by thinking about what problems or gaps we are trying to address , it is apparent 

that some aspects of the staff's proposal fall a bit short. I also do not prioritize conducting 

rulemakings quickly over conducting them well. As Mahatma Gandhi said: "There is more to 

life than increasing its speed." Time added up front in the process that enhances informed 

decision making and results in the pursuit of only those rulemakings that are necessary and 

justified is time well spent. 

I approve the institution of a streamlined rulemaking plan requirement in the form of a SECY 

paper that would request Commission approval to initiate any rulemaking not already explicitly 

delegated to the staff as a delegated rulemaking activity, but the modifier of "nonroutine" before 

"nondelegated" in the staff's proposal is not appropriate. This term is both undefined and 

scopes the requirement too narrowly. Under this rubric, the Commission would not have 

received a rulemaking plan SECY paper for the "routine" proposed incorporation by reference of 

IEEE Standard 603-2009, a matter members of the Commission have found so replete with 

policy issues that the Commission is conducting a public Commission meeting to explore them. 

The new rulemaking plan requirement should apply to all rulemaking that is not already explicitly 

delegated to the staff as a staff delegated rulemaking . 

I approve the template for the rulemaking plan (Enclosure 2) subject to the addition of the 

following elements to the template. The template should include a section for a summary OGC 

analysis of legal matters. The template should include a section containing a preliminary backfit 

analysis, including a quantitative estimate of safety benefits. The template should include a 

section on Agreement State considerations. The template should also require, in the discussion 

or as separate sections, content explicitly addressing the NRC staff's definition of the regulatory 

issue, identifying why NRC rulemaking action is necessary, outlining alternatives to rulemaking , 

presenting any differing views that are currently dividing the staff on the issue, and providing the 

results of early stakeholder engagement. As the staff acknowledges in SECY-15-0129, these 

elements were historically contained in the rulemaking plans presented to the Commission and 

will serve to make the Commission's early involvement in the initiation of rulemaking a 

meaningfully informed deliberative process - not a ministerial ratification or "rubber stamping" of 

staff's proposed path forward . In this regard , the staff's definition of the regulatory issue (again, 

defining what problem we are fixing) and the presentation of possible alternatives to rulemaking 

(e.g., other regulatory instruments such as updating guidance) are essential to the 

Commission's decision making process. I further approve rescinding the existing delegations 

described on page 10 of SECY-15-0129, Items 1.b and 1.c of "Recommendations." 

I approve the requirements that staff submit a SECY paper to request Commission approval to 

discontinue any rulemaking and for approval of any petition for rulemaking determination that 

recommends rulemaking. These elements flow naturally from , and are consistent with, the new 

requirement for Commission approval of rulemaking , described above. 

I do not propose to disturb the list of currently approved agency rulemaking activities (Enclosure 

1 ), which is unnecessary in light of the Commission's vote early next year on a staff proposal 

rebaselining the agency's entire scope of work, including ongoing rulemakings. However, I will 

comment on the repeated representation that the Commission has approved all current 

rulemaking activities "through the budgeting process." As I noted in my vote on COMSGB-15-

1 
0003, "I would be surprised if any of my colleagues could attest that the scant information we 

receive on proposed and ongoing rulemaking activities provided to us in the budget proposal 

provides anywhere near sufficient information to opine meaningfully on this question." I 

continue to hold to this view. I am encouraged, however, by the commitment of the NRC Chief 

Financial Officer to improving the quality of the agency's budget development process. I look 

forward to supporting her in this endeavor. 

The Commission should not reaffirm the Commission's 2006 direction regarding CRGR and 

ACRS. With respect to review of rulemaking activities by the Advisory Committee on Reactor 

Safeguards (ACRS) and the Committee to Review Generic Requirements (CRGR), I agree that 

not all rulemaking activities should be subject to review by these bodies. It is my observation 

that the ACRS process with respect to rulemaking review is working reasonably well; at least, 

any modifications to the process beyond what the staff is already working on would not be a 

priority over addressing the deficiencies in the CRGR. 

In the CRGR, the agency purports to have a process of rigorous internal challenge - a kind of 

"murder board" if you will - to maintain disciplined defense of, and adherence to, the backfit 

rule. In my observation, nothing of the kind is happening at the CRGR. We must either quit 

representing the CRGR this way or reform it to achieve this goal. I suspect that the central 

problem may be one of composition. Are the members of the CRGR appropriately 

dispassionate about the staff's backfit analyses or, since the members are, for the most part, 

Deputy Directors of offices with significant rulemaking activity, is the natural posture more one of 

"If I let hers go through, she will let mine go through"? We do not know the answer to that 

question but I do observe that the CRGR has not substantively modified a staff work product 

presented to them in some years. Based on a quick review, I could not find a single instance of 

the staff electing to recommend CRGR review of any rulemaking package since the waiver 

process was approved by the Commission in 2007 - not one, ever. To me, this is telling . 

The EDO should task a small group to include representatives from among current CRGR 

members and also NRC staff from non-program offices, perhaps OCAA or technical staff 

advisors to the ACRS, to examine this question and propose for the Commission's 

consideration, changes to the CRGR charter, including, if merited, its purpose and composition. 

In its recommendations 4 and 5, the staff elevates form over substance. It is hard to believe 

that in the Project Aim environment, the staff cries "Uncle" on its own self-imposed 

administrative burden in processing an Information Paper to the Commission and proposes to 

demote this work product to a Commissioners' Assistants Note. Rather, the staff should 

undertake a business process improvement on its processing of Information Papers under 

Project Aim. This should begin immediately. Rulemaking activities are significant and 

important. If the staff is in jeopardy of being crushed under the administrative burden of sending 

an information paper to its own Commission, it should fix that problem systematically rather than 

providing frivolous recommendations that the Commission vote on demoting this work product 

to a different one, with a different label on the top of the page. I ponder how former EDO Jim 

Taylor would have reacted to such a recommendation. I am confident that today's NRC is more 

than capable of holding to and surpassing the high standards he and other agency leaders 

historically set and achieved. 

I also observe that Commissioners' Assistants Notes are not routinely publicly released. Recategorizing agency work product as the staff proposes has the potential to diminish agency 

transparency on these topics. 

2 
I approve moving the due date for the annual submission of the Common Prioritization of 

Rulemaking process to the CFO to May or June, along with the Information Paper to the 

Commission. I approve inclusion of the ACRS and CRGR on the distribution for the Information 

Paper conveying the Rulemaking Activity Plan to the Commission and moving the date for the 

annual submission of the plan to May or June. 

We now have nearly ten years of operating experience with the changes to the rulemaking 

process adopted in 2006. Although well intentioned, those changes were predicated on a 

forecasted deluge of rulemaking activity arising from a nuclear renaissance that did not 

materialize in the way predicted. Based on the voting record adopting those 2006 changes, the 

Commission appeared to worry that its review and approval process could become too much of 

a bottleneck, gumming up the orderly execution of agency work. In retrospect, however, the 

Commission's review and approval may have been providing a natural and appropriate restraint 

on the pacing and prioritization of embarking on new rulemakings and the effect of the removal 

of that wicket may have been the greater worry. Be that as it may, we have the chance to take 

corrective action now. The staff's proposal is a good start but the additional items I have 

proposed here are necessary in building confidence that the changes will result in the 

Commission's re-establishing itself, meaningfully and centrally, in one of the most significant 

authorities enshrined to us by the law - rulemaking . 

- 16 December 2015 

3 
TO: 

FROM: 

SUBJECT: 

NOTATION VOTE 

RESPONSE SHEET 

Annette Vietti-Cook, Secretary 

COMMISSIONER OSTENDORFF 

SECY-15-0129: COMMISSION INVOLVEMENT IN 

EARLY STAGES OF RULEMAKING 

Approved X Disapproved X Abstain Not Participating 

COMMENTS: Below 

Entered in STARS 

Yes X 

--

No 

--

Attached X None 

Date 
Commissioner Ostendorff s Comments on SECY-15-0129, 

"Commission Involvement in Early Stages of Rulemaking" 

I want to thank the staff for its thorough assessment of the rulemaking process in response to 

the SRM for COMSGB-15-0003, also titled "Commission Involvement in Early Stages of 

Rulemaking." In my vote on COMSGB-15-0003, I applauded the Chairman for initiating this 

proposal and I believe the staff has proposed a set of reasonable and pragmatic 

recommendations that, if implemented properly, will better ensure that we are applying our 

resources judiciously in the rulemaking arena and are only implementing new requirements 

when appropriately justified. My specific responses to each of the recommendations are 

provided below. 

Recommendation 1: Approve the institution of a streamlined rulemaking plan requirement in 

the form of a SECY paper that would request Commission approval to initiate any nonroutine, 

nondelegated rulemaking. 

a. Approve the template for the streamlined rulemaking plan. 

b. Rescind the delegation of authority in the SRM on COMNJD-06-0004/COMEXM-06-

0006, "Streamlining the NRR Rulemaking Process," dated May 31, 2006 (ADAMS 

Accession No. ML061510316), that gave the Director of NRR the discretion to waive (in 

consultation with the General Counsel) the development and submission of rulemaking 

plans. 

c. Rescind the delegation of authority in the SRM on SECY-07-0134, "Evaluation of the 

Overall Effectiveness of the Rulemaking Process Improvement Implementation Plan," 

dated October 25, 2007 (ADAMS Accession No. ML072980427), that gave the Director 

of FSME (now merged with NMSS) the discretion to waive (in consultation with the 

General Counsel) the development and submission of rulemaking plans. 

I approve Recommendation 1 as it provides a well-understood process to obtain 

Commission approval for non-routine, non-delegated rulemakings with minimal resource 

expenditure. However, the staff should revise the template to not only list a preliminary 

priority, but to also provide a brief discussion regarding the basis for the preliminary priority. 

Additionally, the "Description and Scope" section of the template should also discuss why 

rulemaking is preferable to other alternatives such as guidance revisions. I have also 

proposed additions to the template in my response to Recommendation 7. Additionally, the 

staff should provide draft and final regulatory bases to the Commission via Commissioners 

Assistants Notes no less than 10 days before publication to ensure the Commission is 

provided an opportunity to assess whether additional involvement is warranted. 

Recommendation 2: Approve the requirement that staff submit a SECY paper to request 

Commission approval to discontinue any rulemaking. 

I approve Recommendation 2, however, the staff should explore ways to minimize the 

resources necessary to discontinue rulemaking, such as not completing a full regulatory 

analysis once enough information is gained that a cost-benefit test would not be passed. 

Recommendation 3: Approve the requirement that staff submit to the Commission for approval 

any PRM determination that recommends rulemaking. 

I approve Recommendation 3, however, my approval of this recommendation is separate 

and distinct from the Commission direction needed for low or medium priority proposed 

rulemakings to be funded . Separately, as the majority of rulemakings proposed as a result 

of PRMs are low or medium priority, and are thus likely not to be funded, I do not believe the 

public is served by "granting" these PRMs. The staff should re-evaluate the process for 
PRM review to reconcile the granting of a PRM for which the associated rulemaking would 

likely never come to fruition. 

Recommendation 4: Approve submittal of the updated RAP as an enclosure to a CA note 

(W201100275) and move the due date for the annual submission of the RAP to November 

(W199500048). 

Recommendation 5: Approve the inclusion of ACRS and CRGR on the distribution for the CA 

note submitting the RAP to the Commission. 

Recommendation 6: Move the due date for the annual submission of the CPR process to the 

CFO in May, along with a CA Note to the Commission. 

I approve Recommendations 4, 5 and 6, as they represent simple changes to improve 

efficiency and effectiveness through better communication. 

Recommendation 7: Reaffirm the Commission's 2006 Direction that CRGR and ACRS not 

expand their roles to routinely review proposed rules. 

I approve Recommendation 7 relative to ACRS review and note the staff's statement that 

the Commission can direct the ACRS to review individual proposed rules at their discretion. 

The staff should include in its RAP template an explicit question to the Commission, and 

recommendation if desired, whether ACRS review of the proposed rule is warranted. 

I approve Recommendation 7 relative to CRGR review subject to Commission review 

and approval of criteria for CRGR review of proposed rules as discussed in SECY-15-

0129. I believe CRGR review of proposed rules would provide additional assurance that 

proposed rules are adhering to Commission expectations regarding backfitting and the use 

of qualitative factors, but am receptive to the use of a set of well-defined criteria that would 

provide this assurance while also minimizing expending resources unnecessarily. 

Recommendation 8: Determine that the CRGR not expand its role to become involved in 

resource allocation and rule prioritization. 

I neither approve nor disapprove Recommendation 8. In the SRM to SECY-15-0050, 

Cumulative Effects of Regulation Process Enhancements and Risk Prioritization Initiative," 

the Commission expressed its support for the consideration of risk-insights in existing 

agency processes. While SECY-15-0129 mentions the use of risk insights in the rulemaking 

prioritization process, it does not explicitly discuss how such insights are used. The staff 

should inform the Commission of how risk insights are explicitly used in the rulemaking 

prioritization process, and evaluate whether CRGR review of their use would be beneficial. 

Separate from the recommendations provided in SECY-15-0128, I offer for Commission 

consideration an additional recommendation that the rulemaking process should include explicit 

guidance for the staff to raise potential policy issues to the Commission as early as practicable 

in the rulemaking process, especially in those instances where leadership is not able to resolve 

significant differences of approach. Two recent examples have raised my concern in this area, 

SECY-15-0065 (Mitigation of Beyond Design Basis Events) and SECY-15-0106 (Incorporation 

by reference of IEEE-603), both of which were proposed rules for Commission consideration 

that proposed different requirements for new reactors and operating reactors. In each case, the 

proposal for different requirements to apply to new and operating reactors should have been 

provided to the Commission for direction on how to proceed well before the proposed rule stage 

and perhaps could be raised as a proposed revision to the simplified rulemaking plan. 
TO: 

FROM: 

SUBJECT: 

NOTATION VOTE 

RESPONSE SHEET 

Annette Vietti-Cook, Secretary 

Commissioner Baran 

SECY-15-0129: COMMISSION INVOLVEMENT IN 

EARLY STAGES OF RULEMAKING 

Approved XX Disapproved Abstain Not Participating 

COMMENTS: Below 

Entered in STARS 

Yes XX 

No 

-- --

Attached XX None 

Date 
Commissioner Saran's Comments on SECY-15-0129, 

"Commission Involvement in Early Stages of Rulemaking" 

In this paper, the NRC staff provides eight recommendations for enhanced Commission 

involvement in the early stages of agency rulemaking . I appreciate the staff's thoughtful, 

thorough, and timely recommendations and approve them all subject to a few clarifications. 

Currently, the staff typically submits a brief notation vote paper to the Commission 

seeking authorization to initiate any non-routine rulemaking. I agree with the staff that 

standardizing this familiar and effective process makes sense. As the staff emphasizes in the 

paper, these streamlined rulemaking plans should not become overly time consuming or 

resource intensive. Lengthy rulemaking plans would delay the rulemaking process and 

undermine the goal of preventing the significant expenditure of agency resources on 

rulemakings prior to Commission approval. Therefore, I approve the streamlined rulemaking 

plan template subject to the following edits: ( 1) because the Background section will summarize 

the reason to pursue rulemaking, the Description and Scope section should briefly describe 

"how the current regulation needs to change" rather than "why", and (2) the template should 

note that the Costs and Benefits section should not be included if the staff expects that the rule 

will be necessary for adequate protection. 

In addition, the staff paper and draft template do not account for situations in which a 

notation vote paper presents multiple policy options, including rulemaking and non-rulemaking 

options. In this common situation, the staff should meet the requirement for a streamlined 

rulemaking plan by either: (1) including the necessary rulemaking plan information in the body of 

the options paper or (2) attaching a separate streamlined rulemaking plan to the options paper. 

Under either approach, the Commission will benefit from the information outlined in the template 

in its deliberations on the available options without the need for a cumbersome two-step 

process. 

I also agree with the staff that it is unnecessary to expand the role of the Committee to 

Review Generic Requirements (CRGR) to routinely review proposed rules. As the staff paper 

explains, CRGR review of draft proposed rules would be duplicative because each of the 

individual offices represented on the CRGR already concurs on rulemaking packages. 

Deferring CRGR review until the draft final rule stage also reduces potential delays in the 

rulemaking process while allowing CRGR to assess any backfit questions with the advantage of 

public comments received on the proposed rule. I support Chairman Burns' suggestion that the 

criteria and guidance being developed by the staff for triggering CRGR review of a proposed 

rule should be provided to the Commission for information.