OIG/98E-04 - Additional Measures Needed to Enhance Nrc's Rulemaking Process

March 13, 1998

MEMORANDUM TO:	L. Joseph Callan, Executive Director for Operations
FROM:	Thomas J. Barchi, Assistant Inspector General for Audits
SUBJECT:	ADDITIONAL MEASURES NEEDED TO ENHANCE NRC'S RULEMAKING PROCESS

Attached is the Office of the Inspector General's special evaluation report of NRC's rulemaking process. This special evaluation contains our observations on enhancing the agency's transition of rulemaking preparation and coordination from the Office of Nuclear Regulatory Research to the program offices.

We briefed senior agency officials following our review and they agreed with our observations. Because this special evaluation does not contain recommendations, we did not solicit agency comments.

Attachment: As stated

• REPORT SYNOPSIS
• INTRODUCTION
• Background
• EVALUATION RESULTS
• SUGGESTIONS
• OBJECTIVES, SCOPE, AND METHODOLOGY
• MAJOR CONTRIBUTORS TO THIS REPORT
• GLOSSARY: OFFICE OF THE INSPECTOR GENERAL PRODUCTS

REPORT SYNOPSIS

We conducted this special evaluation to review the approach developed by the agency to transfer the preparation and coordination of rulemaking from the Office of Nuclear Regulatory Research (RES) to the program offices to determine if additional actions could be taken to enhance the transition process. We found that the Office of Administration (ADM), the Office of Nuclear Material Safety and Safeguards (NMSS), and the Office of Nuclear Reactor Regulation (NRR) are at different stages of readiness regarding their preparedness to assume their new rulemaking responsibilities, with ADM and NMSS being better positioned. Also, it appears that the Commission has not identified a clear objective to guide agency staff in transitioning the rulemaking process from RES to the program offices. Finally, we believe that senior management oversight is necessary to ensure that inconsistencies do not develop in the methods program offices use to promulgate new rules since RES no longer serves as the focal point for the U.S. Nuclear Regulatory Commission rulemaking.

We suggest that (1) NMSS and NRR complete various actions to enhance the transition of rulemaking responsibilities, including the development of internal rulemaking guidance, and (2) the Commission identify and communicate clear and measurable objectives to staff for use in undertaking the transition so that the success of this effort and the rulemaking process can ultimately be determined and tracked. Finally, we suggest that senior management oversight be provided to ensure that NRC's rulemaking process remains consistent among the program offices. One aspect of this oversight could be the development of specific performance measures for the rulemaking process with periodic Executive Director for Operations review.

INTRODUCTION

This special evaluation provides the results of the Office of the Inspector General's (OIG) review of the U.S. Nuclear Regulatory Commission's (NRC) initiatives to improve its rulemaking process. The observations contained in this report are for your consideration and require no written response. We provided this information to senior agency managers on February 26, 1998. This work was included in OIG's fiscal year 1998 Annual Plan.

Background

One of the primary duties of the NRC is to establish regulations on the safe use of nuclear materials. The Atomic Energy Act of 1954, as amended, authorizes NRC to develop such regulations. The process of developing these regulations, which is called rulemaking, is initiated mostly by NRC's technical staff, although any member of the public may petition the NRC to develop, change, or rescind any regulation.

As discussed in our last audit effort in this area⁽¹⁾, several catalysts have led NRC to re-evaluate its rulemaking process during the last several years. In March 1997,⁽²⁾ the Commission directed the staff to develop and submit an implementation plan for transferring the preparation and coordination of rulemaking from the Office of Nuclear Regulatory Research (RES) to the program offices. The Commission subsequently approved the implementation plan, with comments, and directed the staff to complete the transfer of these functions by February 27, 1998.⁽³⁾

EVALUATION RESULTS

The Commission has directed that three offices, the Office of Administration (ADM), the Office of Nuclear Material Safety and Safeguards (NMSS), and the Office of Nuclear Reactor Regulation (NRR), assume rulemaking responsibilities previously performed by RES. We found these offices are at different stages of preparedness, with ADM and NMSS better positioned to accept their new responsibilities than NRR.

The Commission designated ADM to be responsible for developing the administrative rulemaking infrastructure necessary to support NRC's rulemaking process. ADM will acquire several additional administrative functions that will complement those already used as part of NRC's rulemaking process. ADM management is familiar with and understands the new responsibilities, and also has experience with RES staff who will be transferred to ADM to serve in a rulemaking capacity.

NMSS staff have also acted to make the transition as smooth as possible. The cognizant division director has extensive rulemaking experience, and has stated his commitment to implement changes to the agency's existing rulemaking process to improve its effectiveness. For example, in the future, NMSS staff intend to develop rulemaking guidance concurrent with the development of new rules; NMSS staff also developed a standard form to document the status of uncompleted rules received from RES, and have taken the initiative to meet with ADM staff to discuss future coordination activities. In addition, a new branch has been created to handle the new rulemaking responsibilities and will be comprised primarily of staff transferred from RES who were detailed to NMSS for the transition. Furthermore, NMSS staff are currently developing internal written guidance to follow during the rulemaking process. NMSS management indicated that the guidance will be issued as soon as possible so that new and existing staff will understand their rulemaking roles and responsibilities.

Contrasting with ADM and NMSS, NRR does not appear to be as well positioned to accept new rulemaking responsibilities. The cognizant division director and branch chief are both serving in an acting capacity and, if permanent appointments are not made in the near term, the knowledge gained during the transition could be lost. NRR managers developed a list of activities to be completed during the transition process, but when the Commission's deadline of February 27, 1998, transition culmination passed, many items, such as the development of priority guidelines for rulemaking activities and the preparation of internal rulemaking guidance, had not been completed. Also, none of the personnel transferred from RES to NRR's new Rulemaking Section had been previously detailed to NRR, which may lengthen their orientation process. Finally, NRR staff have not requested to meet with ADM staff concerning future coordination efforts.

We also found that from an overall perspective, it appears the Commission has not identified a clear objective to guide agency staff in transitioning the rulemaking process from RES to the program offices. Neither senior agency managers nor a search of related documentation provided this information. We believe that unless the Commission communicates a clear and measurable objective to staff responsible for the agency's new rulemaking process, it will be difficult to measure whether the transition has been successful.

Now that RES will no longer serve as the focal point for NRC rulemaking, we believe that senior management oversight is necessary to ensure that inconsistencies do not develop in the methods that program offices use to promulgate new rules. The Commission could achieve a more consistent rulemaking approach by (1) identifying clear objectives for the new rulemaking process, (2) linking them to specific performance measures, and (3) directing senior agency staff to conduct periodic reviews to ensure responsible program offices are achieving these goals.

SUGGESTIONS

We found that while ADM, NMSS, and NRR are at different stages of readiness regarding their preparedness to assume their new rulemaking responsibilities, ADM and NMSS are generally better positioned. To enhance the transition of rulemaking preparation and coordination from RES to the program offices, we suggest that NMSS issue internal staff guidance on its rulemaking process, and NRR: (1) appoint a permanent division director and branch chief; (2) accomplish the remaining items on its list of activities that were to be completed during the transition process, such as the preparation of internal rulemaking guidance; and, (3) arrange for a coordination meeting with ADM. We also suggest that the Commission identify and communicate clear and measurable objectives to the staff for use in undertaking the transition of rulemaking responsibilities so that the success of this effort and the rulemaking process can ultimately be determined and tracked. Finally, we suggest that senior management oversight be provided to ensure that NRC's rulemaking process remains consistent among the program offices. One aspect of this oversight could be the development of specific performance measures for the rulemaking process with periodic Executive Director for Operations review.

OBJECTIVES, SCOPE, AND METHODOLOGY

Our overall objective was to review the approach developed by the agency to transfer the preparation and coordination of rulemaking from the Office of Nuclear Regulatory Research (RES) to the program offices to determine if additional actions could be taken to enhance the transition process. We interviewed cognizant personnel from RES, the Office of General Counsel, the Office of Administration, the Office of Nuclear Material Safety and Safeguards, and the Office of Nuclear Reactor Regulation, and reviewed related documentation.

We conducted our evaluation from January through March 1998.

MAJOR CONTRIBUTORS TO THIS REPORT

William D. McDowell
Team Leader

Gary S. Janosko
Audit Manager

GLOSSARY: OFFICE OF THE INSPECTOR GENERAL PRODUCTS

Investigative

1. INVESTIGATIVE REPORT - WHITE COVER

An Investigative Report documents pertinent facts of a case and describes available evidence relevant to allegations against individuals, including aspects of an allegation not substantiated. Investigative reports do not recommend disciplinary action against individual employees. Investigative reports are sensitive documents and contain information subject to the Privacy Act restrictions. Reports are given to officials and managers who have a need to know in order to properly determine whether administrative action is warranted. The agency is expected to advise the OIG within 90 days of receiving the investigative report as to what disciplinary or other action has been taken in response to investigative report findings.

2. EVENT INQUIRY - GREEN COVER

The Event Inquiry is an investigative product that documents the examination of events or agency actions that do not focus specifically on individual misconduct. These reports identify institutional weaknesses that led to or allowed a problem to occur. The agency is requested to advise the OIG of managerial initiatives taken in response to issues identified in these reports but tracking its recommendations is not required.

3. MANAGEMENT IMPLICATIONS REPORT (MIR) - MEMORANDUM

MIRs provide a "ROOT CAUSE" analysis sufficient for managers to facilitate correction of problems and to avoid similar issues in the future. Agency tracking of recommendations is not required.

Audit

4. AUDIT REPORT - BLUE COVER

An Audit Report is the documentation of the review, recommendations, and findings resulting from an objective assessment of a program, function, or activity. Audits follow a defined procedure that allows for agency review and comment on draft audit reports. The audit results are also reported in the OIG's "Semiannual Report" to the Congress. Tracking of audit report recommendations and agency response is required.

5. SPECIAL EVALUATION REPORT - BURGUNDY COVER

A Special Evaluation Report documents the results of short-term, limited assessments. It provides an initial, quick response to a question or issue, and data to determine whether an in-depth independent audit should be planned. Agency tracking of recommendations is not required.

Regulatory

6. REGULATORY COMMENTARY - BROWN COVER

Regulatory Commentary is the review of existing and proposed legislation, regulations, and policies so as to assist the agency in preventing and detecting fraud, waste, and abuse in programs and operations. Commentaries cite the IG Act as authority for the review, state the specific law, regulation or policy examined, pertinent background information considered and identifies OIG concerns, observations, and objections. Significant observations regarding action or inaction by the agency are reported in the OIG Semiannual Report to Congress. Each report indicates whether a response is required.

1. Observations on NRC's New Rulemaking Process, OIG/95A-18 dated October 2, 1995.

2. Staff Requirements - COMSECY-96-066 - Research (DSI 22) dated March 28, 1997.

3. Staff Requirements - SECY-97-220 - Implementation of DSI 22 Research dated December 5, 1997.