UNITED STATES

NUCLEAR REGULATORY COMMISSION 

WASHINGTON, D.C. 20555-0001 

January 9, 2017 

 COMSECY-17-0002 

MEMORANDUM TO: The Commissioners 

FROM: Victor M. McCree /RA/

Executive Director for Operations 

SUBJECT: RULEMAKINGS MANDATED BY STATUTE OR IMPLEMENTING 

U.S. GOVERNMENT POLICY ON EXPORT LICENSING 

CONTROLS 

This paper seeks Commission approval to conduct rulemaking without first developing and 

receiving Commission approval of a rulemaking plan when the rulemaking either is mandated by 

new statutory provisions or implements U.S. government policy on export licensing controls. 

The process for streamlined rulemaking plans was described in SECY-15-0129, “Commission 

Involvement in Early Stages of Rulemaking,” dated October 19, 2015 (Package Accession No. 

ML15267A759 in the U.S. Nuclear Regulatory Commission’s (NRC’s) Agencywide Documents 

Access and Management System (ADAMS)), and approved by the Commission in the February 

3, 2016, staff requirements memorandum (SRM) for SECY-15-0129 (ADAMS Accession No. 

ML16034A441). The SRM directed that the new rulemaking plan requirements apply to “all 

rulemaking that is not already explicitly delegated to the staff as a staff delegated rulemaking 

(the modifier ‘nonroutine’ should not be used).” The SRM stated that the Commission’s 

direction in the SRM is consistent with the Joint Explanatory Statement accompanying the 

Consolidated Appropriations Act, 2016 (Public Law 114-113), stipulating that a rulemaking plan 

be prepared for “all rulemakings except those exempted by the Commission.” A rulemaking 

explicitly delegated to the staff (“staff-delegated rulemaking”) is exempt from the rulemaking 

plan requirement and may be initiated and issued without preparing a rulemaking plan and 

without seeking Commission approval, unless a significant policy issue is raised. 

In SECY-15-0129, the staff noted that routine rulemakings fall under (1) the Commissiondelegated authority to the Executive Director for Operations (EDO) to issue rules of a minor, 

corrective, or non-policy nature that do not substantially modify existing precedent; and (2) the 

Commission delegated authority to the Chief Financial Officer (CFO) to develop and issue a rule 

that is necessary to carry out the CFO's responsibilities. 

CONTACT: Cindy Bladey, ADM/DAS 

 (301) 415-3280 

PLEASE RESPOND BY:

January 27, 2017
The Commissioners -2- 

Routine rulemakings include rules that make corrections or administrative changes, add and 

amend certificates of compliance, update 10 CFR 50.55a ASME Code usage, and revise the 

license fees under parts 170 and 171. 

The staff’s listing of types of rules that could fall under the EDO’s delegated authority was not 

all-inclusive, and therefore did not extend to rulemakings mandated by new statutory provisions 

(either entirely new statutes, or new statues amending or supplementing existing statutes), 

including statutes mandating updates to the NRC’s regulations on a statutorily-defined basis 

with no significant discretion afforded to the NRC. Examples of statutorily-mandated 

rulemakings include inflation adjustments to the NRC’s financial protection regulations made 

pursuant to the Price-Anderson Amendments Act of 2005, and the annual civil penalty inflation 

adjustments made pursuant to the Federal Civil Penalties Inflation Adjustment Act 

Improvements Act of 2015.1 The staff’s listing of types of rules that could fall under the EDO’s 

delegated authority also did not extend to rulemakings implementing U.S. government policy on 

export licensing controls with no significant discretion afforded to the NRC, viz., revisions to the 

list of embargoed or restricted destinations, obligations in new or renegotiated Agreements for 

Peaceful Nuclear Cooperation (123 Agreements), and incorporation of revisions to the Nuclear 

Suppliers Group guidelines or control lists that impact 10 CFR Part 110. Inasmuch as the SRM 

for SECY-15-0129 did not directly address statutorily-mandated rulemakings or rulemakings 

implementing U.S. government policy on export licensing controls, the staff requests explicit 

Commission approval to permit EDO-initiation of statutorily-mandated rulemakings and 

rulemakings implementing U.S. government policy on export licensing controls without 

development and approval of a rulemaking plan. 

The staff believes that the most effective way of ensuring Commission involvement in both types 

of rulemakings, consistent with efficient and timely conduct of such rulemakings, is for the 

Commission to continue to review and approve a rulemaking plan for any statutorily-mandated 

rulemaking or rulemaking implementing U.S. government policy on export licensing controls 

involving either: (1) substantial discretion to the NRC in implementing the statutory mandate or 

the U.S. government policy on export licensing controls;2 or (2) significant policy or regulatory 

issues in selecting the regulatory approach to be adopted by rulemaking for implementing a 

statutory mandate. A historical example of a statutorily-mandated rulemaking affording both 

substantial discretion to the NRC and raising significant policy or regulatory issues in selecting 

the regulatory approach to be adopted by rulemaking for implementing the statutory mandate is 

Section 206 of the Energy Reorganization Act of 1974, as amended, which became law in 1977. 

Section 206(a)(2) of the statute required notification of “a defect which could create a substantial 

safety hazard, as defined by regulations which the Commission shall promulgate....” Section 

206 was the basis for the NRC’s adoption of the original regulations in 10 CFR Part 21, “Reports 

of Defects and Noncompliance,” in 1977 (42 FR 28891; June 6, 1977). 

 

1 In the SRM for SECY-16-0180, “Revised Delegation of Authority to the Executive Director for Operations to Initiate 

and Sign Rules Amending Civil Penalties for Inflation,” dated October 19, 2016 (non-public), the Commission 

delegated to the Executive Director for Operations “the authority to initiate and sign annual rules amending civil 

penalties to account for inflation without first obtaining the concurrence of the Office of Commission Appellate 

Adjudication and the Atomic Safety Licensing Board Panel.” 

2 Due to the nature of U.S. government export controls, the staff expects that there will be virtually no rulemakings 

that would involve substantial discretion to the NRC in implementing the U.S. government policy. However, for 

completeness, the staff has included this unlikely circumstance. 
The Commissioners -3- 

In all other cases, efficiency and effectiveness suggest that Commission involvement through 

review and approval of a rulemaking plan is not warranted (these considerations are particularly 

applicable when the statute or U.S. government policy sets forth a very short time period for 

completion of the rulemaking3). Instead, the staff believes that notice to the Commission of the 

staff’s initiation of rulemaking is sufficient to ensure the Commission’s involvement in such 

rulemakings as the Commission determines is needed or prudent. 

For the reasons set forth above, the staff recommends that the Commission approve the 

following: 

1. Rulemaking plans do not need to be prepared for a rulemaking mandated by statute or 

implementing U.S. government policy on export licensing controls: (1) directing 

prescribed changes with little or no discretion on the part of the NRC or (2) that 

otherwise do not involve a significant policy issue requiring NRC resolution in the 

rulemaking. The staff will inform the Commission via a Commissioner Assistant’s note 

each time the staff initiates a rulemaking falling in this category, and as required by MD 

9.3, “Organization and Functions, Office of the Executive Director for Operations, the 

EDO will notify the Commission before submitting a final rule to the Federal Register. 

Rulemaking plans will continue to be prepared and submitted for Commission review and 

approval, consistent with the SRM for SECY-15-0129, for all other rulemakings not explicitly 

delegated to the staff. 

 

The Office of the General Counsel has reviewed this memorandum and has no legal objection. 

SECY, please track. 

cc: SECY 

 OGC 

 OCA 

 OPA 

 OCFO 

 

 

3 Some statutorily-mandated deadlines may not be enforceable by third parties against the NRC in Federal court, 

depending upon the statutory language. 
The Commissioners -3- 

In all other cases, efficiency and effectiveness suggest that Commission involvement through review and approval of 

a rulemaking plan is not warranted (these considerations are particularly applicable when the statute or U.S. 

government policy sets forth a very short time period for completion of the rulemaking4). Instead, the staff believes 

that notice to the Commission of the staff’s initiation of rulemaking is sufficient to ensure the Commission’s 

involvement in such rulemakings as the Commission determines is needed or prudent. 

For the reasons set forth above, the staff recommends that the Commission approve the following: 

1. Rulemaking plans do not need to be prepared for a rulemaking mandated by statute or implementing U.S. 

government policy on export licensing controls: (1) directing prescribed changes with little or no discretion 

on the part of the NRC or (2) that otherwise do not involve a significant policy issue requiring NRC 

resolution in the rulemaking. The staff will inform the Commission via a Commissioner Assistant’s note 

each time the staff initiates a rulemaking falling in this category, and as required by MD 9.3, “Organization 

and Functions, Office of the Executive Director for Operations, the EDO will notify the Commission before 

submitting a final rule to the Federal Register. 

Rulemaking plans will continue to be prepared and submitted for Commission review and approval, consistent with 

the SRM for SECY-15-0129, for all other rulemakings not explicitly delegated to the staff. 

 

The Office of the General Counsel has reviewed this memorandum and has no legal objection. 

SECY, please track. 

cc: SECY 

 OGC 

 OCA 

 OPA 

 OCFO 

DISTRIBUTION: 

LTerry, ADM RidsNmssMailCenter RidsNsirMailCenter RidsOCIO Resource 

CBladey, ADM RidsNroMailCenter RidsOcfoMailCenter Resource RidsResOd Resource 

JWiddup, ADM RidsNrrMailCenter Resource RidsOgcMailCenter Resource 

RidsAdmMailCenter RidsEdoMailCenter RidsOipMailCenter Resource 

ADAMS Accession Number: ML16320A194 *via e-mail concurrence 

OFFICE ADM/DAS/RAD

B 

ADM/DAS/RADB NRR* NRO* NMSS* 

NAME LTerry CBladey BDean (MKhanna) JUhle (JColaccino 

for) 

MDapas 

(SMoore for) 

DATE 11/16/16 11/16/16 10/25/16 10/20/16 10/17/16 

OFFICE NSIR* OCFO* OIP* QTE* OGC* 

NAME BHolian 

(MKohen for) 

MWylie (MMauer 

for) 

NMamish (JOwens 

for) 

JDougherty for NLO from 

GSMizuno 

DATE 10/7/16 10/6/16 10/24/16 10/3/16 12/22/16 

OFFICE OCIO* RES* ADM/DAS/DD ADM/DD ADM/D 

NAME DNelson MWeber JWiddup SStewart-Clark 

(CCarpenter for) 

CCarpenter 

DATE 10/09/16 09/26/16 11/18/16 12/05/16 12/05/16 

OFFICE DEDM EDO 

NAME GTracy 

MWeber for 

VMcCree 

DATE 01/07/17 01/09/17 

OFFICIAL RECORD COPY 

 

4 Some statutorily-mandated deadlines may not be enforceable by third parties against the NRC in Federal court, 

depending upon the statutory language.