Principles of Good Regulation: Independence

Brett Klukan
Regional Counsel
Region I

graphic-pogr_independenceMy aim in this post is to explore with you the meaning and implications of the first of the NRC’s Principles of Good Regulation: “independence.” At a glance, this might seem a simple task. “Independence” is one of those concepts like “justice” or “liberty” — we know what it is, we know what it looks and feels like; however, we have trouble, if asked, to precisely define it.

Of the multiple definitions offered by Merriam-Webster, two seem the most relevant: (1) “not subject to control by others” and (2) “not requiring or relying on something else.”

If that was all that was meant by “independence,” then its inclusion amongst the NRC’s other principles could be seen as a re-articulation–for emphasis maybe–of a prior-standing principle already applicable to all employees of the Executive Branch. Principle 8 of the General Principles of Ethical Behavior states, “Employees shall act impartially and not give preferential treatment to any private organization or individual.”

Undoubtedly, when the NRC authors included independence (also dubbed independent in some versions of the principles) as one of the NRC’s principles they intended something more than not being subject to the control of others. As stated by Dr. Gail H Marcus, who was Commissioner Kenneth Rogers’ technical assistant tasked with developing the NRC Principles, “We wanted to dispel the idea that an independent person should work in a vacuum. Rather, an independent person should interact with all factions, should collect all facts, and should understand all viewpoints in order to form an opinion that would stand up to critique and review.”

It is one thing to say what independence is. It is wholly another to say how one should go about being independent in particular circumstances. This presents an essential paradox. We must not separate ourselves, but rather to engage with all those who have a stake in the work of the agency.

principles-of-good-reg-web-screen_1To meet its charge of independence, the NRC must ever be proactively attuned to the views of licensees, state and local governments, and the interested public, all the while maintaining some necessary degree of separation to preserve our objectivity.

“Independence,” in the context of the NRC’s principles, thus does not mean simply “self-reliant isolation,” but rather something more akin to “impartial engagement.” And therein lies the rub. So long as the NRC is faced with a plurality of conflicting public views and interests–an ever-present fact of life at the NRC–impartial engagement is a complicated balancing act, a never-ending tightrope walk.

NRC employees negotiate with this paradox every day. Consider the following example:

Each year, in the late spring and early summer, the NRC conducts public annual assessment meetings for each of the reactor licensees. Some of these meetings are heavily attended–so much so that often there are far more members of the public who wish to speak than the allotted meeting time would permit. As a facilitator for those meetings, I must devise the public speaking order, knowing that this decision will determine who will get to speak at the meeting and who will likely not. As illustrated by the dialogue that follows, I have struggled with how to achieve an impartial balance that fully and fairly provides an opportunity for the conflicting views at those meetings to be voiced.

One option is to choose the speaking order by lottery. Picking names out of a box would be an impartial solution. But is that fair to those who arrived early to secure themselves a place in the speaking order?

Another option is to have one sign-up list at the registration table, and we’ll call people in chronological order. First come, first served. But couldn’t that lead to some people queuing up hours in advance? Will the meeting space allow that? And what if those arriving early are members of one group? Don’t we have a responsibility to make sure that we hear from a variety of viewpoints?

Perhaps we should have two sign-up lists: one for those for and one for those against? How about adding a “neutral” sign-up list? That may solve some issues, but could present more. What happens if everyone just signs up on the neutral list, which would usually be the shortest?

Or what will we say to someone who didn’t get to speak because he or she signed up on the ‘pro’ or ‘con’ list, while someone who arrived later did get to speak because that person signed up on the neutral list?

We weigh these options, and sometimes others. Any time we seek input into our decisions, we face this struggle to maintain impartial and balanced engagement with a plurality of stakeholders with conflicting views. It’s a balance we have to strike, and inevitably, we won’t please everyone. However, it is a task that NRC employees must fully embrace if the agency is to live true to the vision of independence ensconced in its principles.

This post is the first of five that will explore each of the five principles separately. For the history of the Principles of Good Regulation, read this post.

Moments in NRC History – 25 Years of the NRC’s Principles of Good Regulation

Tom Wellock

While the NRC always considered itself a principled regulator, it was not until Jan. 17, 1991, that the agency developed written principles that encouraged regulatory excellence and addressed inadequate performance.

Those principles – five traits of what a good regulator should be – were authored by then-NRC Commissioner Kenneth Rogers. Today, they form the basis of regulatory regimes throughout the world.

To celebrate the anniversary of the NRC’s principles, we’ve produced a video focusing on the historical evolution and application of the principles. Next monthpogr_tom, we’ll post another video looking at how NRC staff view the principles today.

It’s important to consider the well from which the principles sprang some 25 years ago.

In the 1960s, critics attacked federal agencies responsible for environmental and safety regulations for being too secretive and too friendly to the industries they regulated. The NRC’s predecessor, the Atomic Energy Commission, was stung by accusations that it promoted nuclear power rather than protected public safety.

The Energy Reorganization Act of 1974 split the AEC, and consolidated the licensing and related regulatory functions into the newly created NRC, an independent regulator.

But the NRC, too, soon came under fire for its vague, complex and inefficient regulation. The NRC responded by establishing more flexible regulations and clearly defined safety goals.

By 1989, when Rogers first proposed the principles, the NRC was seeking to balance its independence with demands that it be an open, efficient, clear and reliable regulator. Rogers argued that the staff should have consistent guideposts in changing times to remind them of the proven elements of good regulation. Two years later, the Commission agreed, and the principles-of-good-regulation-announcement-january-17-1991 became part of the agency culture.

Many years later, in 2011, President Obama signed an executive order calling for principles of regulation for all federal agencies.

principles-of-good-reg-web-screen_1The Principles:

  • Independence (Independent): Nothing but the highest possible standards of ethical performance and professionalism should influence regulation.
  • Openness (Open): Nuclear regulation is the public’s business, and it must be transacted publicly and candidly.
  • Efficiency (Efficient): The American taxpayer, the rate-paying consumer, and licensees are all entitled to the best possible management and administration of regulatory activities.
  • Clarity (Clear): Regulations should be coherent, logical, and practical.
  • Reliability (Reliable): Regulations should be based on the best available knowledge from research and operational experience. Regulatory actions should always . . . lend stability to the nuclear operational and planning processes.

Seemingly timeless, each principle was really a specific lesson drawn from regulatory experience.

Over the years, the principles spurred continuous improvement at the NRC – among other actions, they helped the agency formulate its budgets and prioritize safety improvements in the aftermath of the accident at Fukushima Daiichi.

Stakeholders also use the principles to hold the agency accountable. They have been valuable reference points for agency critics when they believe the NRC has not measured up to its own standards of excellence.

Even after 25 years, with the changes within and external to the NRC, these Principles of Good Regulation remain the agency’s calling card abroad and touchstones of excellence at home.

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