Enclosure 2 

COMMISSION INVOLVEMENT IN THE EARLY STAGES 

OF RULEMAKING 

 

A Report for the House and Senate 

Committees on Appropriations

By the U.S. Nuclear Regulatory Commission 

February 29, 2016 
 -2- 

 

CONTENTS 

I. INTRODUCTION .................................................................................................................. 3

II. BACKGROUND ................................................................................................................... 3

A. NRC Commission Direction and Staff Response ........................................................... 3

B. Fiscal Year 2016 Appropriations Legislation and Associated Joint 

Explanatory Statement ................................................................................................... 3

III. STREAMLINED RULEMAKING PLANS ............................................................................. 4

A. Purpose .......................................................................................................................... 4

B. Changes in 2006—2007................................................................................................. 4

C. Changes in 2016 ............................................................................................................ 4

D. Components of the New Streamlined Rulemaking Plans ............................................... 5

IV. RULMAKINGS THAT ARE EXEMPT FROM RULEMAKING PLAN 

REQUIREMENT ................................................................................................................... 6

V. ROLE OF THE ADVISORY COMMITTEE ON REACTOR SAFEGUARDS (ACRS) .......... 6

A. Statutory Responsibilities of the ACRS .......................................................................... 6

B. ACRS Review of Proposed Rules .................................................................................. 7

VI. ROLE OF THE COMMITTEE TO REVIEW GENERIC REQUIREMENTS (CRGR) ............ 7

A. Purpose of the CRGR .................................................................................................... 7

B. Forthcoming Guidance on When CRGR Review Is Appropriate .................................... 7

VII. COMMISSION’S ANNUAL REVIEW OF RULEMAKING PRIORITIZATION AS 

PART OF THE BUDGET PROCESS .................................................................................. 7

 
 -3- 

I. INTRODUCTION 

This report describes the U.S. Nuclear Regulatory Commission’s (NRC’s) plan to increase 

Commission involvement in the early stages of rulemaking. This report was developed as 

requested by the Joint Explanatory Statement accompanying the Consolidated 

Appropriations Act, 2016 (Public Law 114-113). 

II. BACKGROUND 

A. NRC Commission Direction and Staff Response 

In August 2015, the Commission directed the staff to provide a proposed plan for 

increasing the Commission’s involvement in the rulemaking process, with the objective 

of ensuring early Commission engagement before significant resources are expended.1 

In October 2015, the staff provided to the Commission a proposed plan to facilitate early 

Commission involvement in rulemaking.2 In February 2016, the Commission issued a 

staff requirements memorandum (SRM) indicating its approval of certain aspects of the 

staff’s proposed plan and directing some modifications to the plan consistent with the 

Joint Explanatory Statement.3

B. Fiscal Year 2016 Appropriations Legislation and Associated Joint Explanatory 

Statement 

In December 2015, Congress passed and the President signed into law the 

Consolidated Appropriations Act for Fiscal Year 2016 (Public Law 114-113).4 This 

legislation was accompanied by a Joint Explanatory Statement.5 The Joint Explanatory 

Statement requested that the NRC, by March 1, 2016, submit to the House and Senate 

Appropriations Committees a plan for making changes to the agency’s rulemaking 

process consistent with the approach described in the Joint Explanatory Statement. The 

Joint Explanatory Statement stipulated that a rulemaking plan be prepared for each 

rulemaking, except those that are exempted by the Commission and described the 

minimum content of a rulemaking plan. The Joint Explanatory Statement also requested 

that the plan to be provided to the committees include (1) a discussion of the roles of the 

Advisory Committee on Reactor Safeguards (ACRS) and the Committee To Review 

Generic Requirements (CRGR) in the rulemaking process, (2) a description of how the 

Commission will determine which rules will be exempt from the requirement to develop a 

rulemaking plan, and (3) a description of how the Commission will annually review the 

prioritization of all rulemaking as part of its budget process. 

 

1 COMSGB-15-0003, “Commission Involvement in Early Stages of Rulemaking,” dated August 14, 2015. 

2 SECY-15-0129, “Commission Involvement in Early Stages of Rulemaking,” dated October 19, 2015. 

3 SRM for SECY-15-0129, “Commission Involvement in Early Stages of Rulemaking,” dated February 3, 2016. 

4 “Consolidated Appropriations Act, 2016” (Public Law 114-113). 

5 161 CONG. REC. H9693, H10124 (daily ed. December 17, 2015) (Joint Explanatory Statement). 
 -4- 

III. STREAMLINED RULEMAKING PLANS 

A. Purpose 

In 1995, the NRC began using rulemaking plans as part of its effort to shorten 

rulemaking schedules, improve coordination among offices on rulemaking development, 

and use resources more efficiently. Those rulemaking plans documented the staff’s 

definition of the regulatory issue, identified why NRC rulemaking action is necessary, 

outlined alternatives to rulemaking, provided the results of early stakeholder 

engagement, and estimated resource requirements. At that time, rulemaking plans were 

reviewed and approved by the Commission. 

B. Changes in 2006—2007 

In the early 2000s, an internal NRC report found that the development of a rulemaking 

plan added time to the overall rulemaking process and did not shorten the time needed 

to develop a proposed rule. In subsequent years, the NRC employed enhancements to 

the rulemaking process that diminished the importance of rulemaking plans. In 2006 

and 2007, the Commission delegated authority to allow specific Office Directors, in 

consultation with the General Counsel, the discretion to waive the requirement to 

develop rulemaking plans.6 

C. Changes in 2016 

In its February 2016 SRM, the Commission rescinded the 2006 and 2007 delegations of 

authority to waive rulemaking plans and directed the staff to submit streamlined 

rulemaking plans (in the form of a template-based, brief notation vote paper) for 

Commission approval for all rulemakings, except those that have already been explicitly 

delegated to the staff. The template for the streamlined rulemaking plans is Attachment 

A. 

To ensure that the Commission has an opportunity to assess whether additional 

involvement is warranted, the staff will provide draft and final regulatory bases to the 

Commission for all rulemaking that is not already explicitly delegated to the staff. Such 

draft and final regulatory bases will be sent to the Commission via Commissioner’s 

Assistants Notes no less than 10 business days before publication. Any Commissioner 

who believes that the Commission’s involvement is warranted based on the information 

provided via the note can convert the issue to a Commission voting matter. The staff 

must obtain prior Commission approval if it wishes to prepare a regulatory basis 

document before the Commission has approved a rulemaking plan. 

In February 2016, the Commission also directed the staff to update internal guidance so 

that it explicitly instructs 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. Accordingly, in 

March 2016, the staff will issue an internal announcement to reflect Commission 

direction in the SRM dated February 3, 2016. By September 2016, the staff will also 

 

6 SRM for COMMJD-06-0004/COMEXM-06-0006, “Streamlining the NRR Rulemaking Process,” dated 

May 31, 2006, and SRM for SECY-07-0134, “Evaluation of the Overall Effectiveness of the Rulemaking 

Process Improvement Implementation Plan,” dated October 25, 2007. 
 -5- 

update Management Directive 6.3, “The Rulemaking Process,” to reflect this 

Commission direction. 

D. Components of the New Streamlined Rulemaking Plans 

The streamlined rulemaking plans will contain the components described below. 

1. Description of Rule, Existing Regulatory Framework, and Regulatory Options 

The streamlined rulemaking plans will describe the regulatory issue, the scope of the 

proposed rule, and the existing regulatory framework. The staff will also identify the 

regulatory options and alternatives to rulemaking and discuss why rulemaking is 

preferable to these other options. The rulemaking plan will include a discussion of 

how the proposed rule relates to the safety and security goals found in the NRC’s 

Strategic Plan7 and describe the impact that the rule will have on regulatory 

efficiency. 

2. Preliminary Evaluation of the Cumulative Effects of Regulation (CER) 

CER describes the challenges that licensees or other impacted entities face while 

implementing new regulatory positions, programs, or requirements. Such challenges 

may result from a licensee or impacted entity implementing a number of complex 

regulatory positions, programs, or requirements within a limited implementation 

period and with available resources (which may include limited available expertise to 

address a specific issue). The streamlined rulemaking plans will have a section 

devoted to CER. In that section, the staff will provide a preliminary assessment of 

CER, to the extent known, including a description of any early stakeholder 

engagement upon which the assessment is based. In addition, that section may 

address topics such as: the availability of critical skills (within the NRC and impacted 

entities), whether there are ongoing NRC regulatory activities that would impact the 

implementation of the proposed change, and preliminary plans for interaction with 

stakeholders. 

3. Preliminary Analysis of Costs and Benefits 

In the streamlined rulemaking plan, the staff will perform a high-level estimate of 

costs and benefits of the proposed changes. This estimate will contain descriptions 

such as “high,” “medium,” or “low” as well as the basis for costs, and postulated 

pros/cons for the discussion of benefits. Following Commission approval of the 

rulemaking plan, the staff would develop estimates of costs and benefits that contain 

greater detail. 

4. Preliminary Analysis of Backfitting and Issue Finality 

The NRC’s regulations governing nuclear power reactors and certain nuclear 

materials licenses contain provisions that restrict the NRC’s ability to impose new 

requirements on licensees or, in certain applications related to power reactors, to 

take a different position from a previous NRC position. These are denoted as 

backfitting and issue finality restrictions. The streamlined rulemaking plans will 

describe whether the staff expects that the proposed change will constitute a backfit 

 

7 The NRC’s Strategic Plan can be found on the agency’s public Web site at 

http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1614/. 
 -6- 

or a matter of issue finality. The staff will also discuss whether one or more of the 

exceptions to preparing a backfit analysis are likely to apply and be relied upon by 

the staff. Otherwise, the staff will identify the potential safety or security significance 

of the action and the nature of the cost of the possible backfitting, to the extent that 

they are known. 

5. Preliminary Recommendation on Priority 

The NRC has developed the Common Prioritization of Rulemaking methodology in 

order to prioritize its rules, assigning each rulemaking a high, medium, or low priority 

designation. In the streamlined rulemaking plan, the staff will indicate the priority 

designation of the rule and provide a brief discussion regarding the basis for that 

preliminary priority designation. 

6. Estimated Schedule 

In the streamlined rulemaking plan, the staff will indicate the estimated month and 

year that the following would be completed: initiation of regulatory basis, completion 

of regulatory basis, publication of proposed rule, and publication of final rule. 

7. Estimated Resources 

The staff will estimate the resources required for the rulemaking and attach this 

estimate as an enclosure to the streamlined rulemaking plan. If the Commission 

approves the rulemaking, the staff will add the rule to the Common Prioritization of 

Rulemaking during the next budget formulation cycle. 

IV. RULEMAKINGS THAT ARE EXEMPT FROM RULEMAKING PLAN 

REQUIREMENT 

The new rulemaking plan requirement applies to all rulemakings, except those already 

explicitly delegated to the staff. Delegated rulemakings include (1) the annual Revision of 

Fee Schedules rulemaking that is delegated to the Chief Financial Officer, (2) certificates of 

compliance for spent fuel storage casks rulemakings that are delegated to the Executive 

Director for Operations, (3) recurring 10 CFR 50.55a, “Codes and Standards,” rulemakings 

(for incorporation by reference of certain standards, such as American Society of Mechanical 

Engineers standards) that are delegated to the Director of the Office of Nuclear Reactor 

Regulation, and (4) administrative rulemakings (for administrative changes such as updating 

addresses and telephone numbers and correcting typographical errors) that are delegated to 

the Executive Director for Operations and redelegated to the Director of the Office of 

Administration (ADM) and the Chief of the Rules, Announcements, and Directives Branch 

within ADM. 

V. ROLE OF THE ADVISORY COMMITTEE ON REACTOR SAFEGUARDS (ACRS) 

A. Statutory Responsibilities of the ACRS 

The statutory responsibilities of the ACRS described in the Atomic Energy Act of 1954, 

as amended, include advising the Commission with regard to the hazards of proposed or 

existing reactor facilities and the adequacy of proposed reactor safety standards, as well 

as performing such other duties as the Commission may request. The ACRS also 
 -7- 

advises the Commission on certain issues associated with nuclear materials and waste 

management. 

B. ACRS Review of Proposed Rules 

1. Currently, rules in the earliest stage of development come to the ACRS under three 

circumstances: (1) ACRS review is required by law (e.g., reactor design certification 

rules); (2) the Commission directs the review; or (3) the ACRS uses its own 

discretion to direct the review. The ACRS receives a monthly list of items coming to 

the Commission and is well informed to determine which rules it should review. The 

ACRS also reviews final rules before submittal for Commission review and approval. 

2. In February 2016, the Commission directed the staff to include in rulemaking plans 

an explicit question to the Commission, and recommendation if desired, on whether 

ACRS review of the proposed rule is warranted. 

VI. ROLE OF THE COMMITTEE TO REVIEW GENERIC REQUIREMENTS (CRGR) 

A. Purpose of the CRGR 

The CRGR reviews selected staff guidance and regulatory requirements that could 

impose a generic backfit. The purpose of the CRGR review is to ensure that any generic 

backfits that are proposed for NRC-licensed power reactors, new reactors, and nuclear 

materials facilities are appropriately justified on the bases of the backfit provisions of the 

applicable NRC regulations, the NRC’s regulatory analysis guidelines, and the 

Commission’s backfit policy. The current CRGR charter allows the NRC office 

responsible for a particular rulemaking or the NRC Executive Director for Operations to 

request a CRGR review. It does not require CRGR review of all NRC rulemakings. 

B. Forthcoming Guidance on When CRGR Review Is Appropriate 

The CRGR recently identified a need to develop and provide guidance to the offices 

about when CRGR review of a rulemaking would be appropriate. In February 2016, the 

Commission directed the staff to provide to the Commission the criteria and guidance it 

develops for triggering a CRGR review of a proposed rule. By June 2016, the staff 

expects to complete the development of the new criteria and guidance. 

VII. COMMISSION’S ANNUAL REVIEW OF RULEMAKING PRIORITIZATION AS 

PART OF THE BUDGET PROCESS 

The Commission will continue to review annually the prioritization of all rulemaking as part of 

its budget process. In May/June of each year, to coincide with its review of the agency 

budget, the Commission will receive a rulemaking report that will include all rulemaking 

prioritization information. The Commission will consider this information in its assignment of 

resources to rulemaking activities outlined in the budget for that year. This also provides the 

Commission with an opportunity to question the NRC staff about how a given rule or rules 

were prioritized. 

Attachment: 

As stated