ML17179A247

Comment (3) of James E. Slider on Behalf of Nuclear Energy Institute Regarding Regulatory Analysis Guidelines

ML17179A247
Person / Time
Site:	Nuclear Energy Institute
Issue date:	06/16/2017
From:	Slider J Nuclear Energy Institute
To:	Cindy Bladey Rules, Announcements, and Directives Branch
References
82FR18163 00003, NRC-2017-0091, NUREG/BR-0058 R5
Download: ML17179A247 (26)

Text

Page 1of1 As of: 6/23/17 10:55 AM

~on Received: June 16, 2017 9 Status: Pending_Post PUBLIC

• SUBMISSION * .1610 JUN 23 *AH IQ: 5 . Tracking No. lkl-8wzy-usyc Comments Due: June 16, 2017 Submission Type: Web Docket: NRC-2017-0091 Regulatory Analysis Guidelines RECEIVED Comment On: NRC-2017-0091-0001 Regulatory Analysis Guidelines; Request for Comment on Draft NUREG Document: NRC-2017-0091-DRAFT-0006 Comment on FR Doc #.2017-07623 Submitter Information Name: James Slider Address:

Nuclear Energy Institute 1201 F Street NW, Suite 1100 Washington, DC, 20004 Email: jes@nei.org General Comment*

Attached PDF file provides comments of the Nuclear Energy Institute on draft Revision 5 ofNUREG/BR-0058.

Attachments 06-16-17 Comments on NUREG-BR-0058 Rev 5Ltr+Att SUNSI Review Complete

=

Template ADM - 013 E-RIDS= ADM-03 Add= f, N6~ (PSl'f t) https://www.fdms.gov/fdms/getcontent?objectld=09000064826e 765d&format=xm l&showorig=false 06/23/2017

JAMES E. SLIDER Senior Project Manager, Regulatory Affairs 1201 F Street, NW, Suite 1100 Washington, DC 20004 *

~I NUCLEAR ENERGY INSTITUTE P: 202.739.8015 jes@nei.org nei.org June 16, 2017 Ms. Cindy K. Bladey Chief, Rules, Announcements, and Directives Branch Office of Administration, MS OWFN-12-H08 U.S. NuclearRegulatory Commission Washington, DC 20555-0001

Subject:

Comments on NUREG/BR-0058 Revision 5; 82 FR 18163; Docket ID NRC-2017-0091 Project Number: 689

Dear Ms. Bladey:

On behalf of the nuclear energy industry, the Nuclear Energy Institute (NEI) 1 appreciates the opportunity to I provide comments on the subject NUREG/BR-0058, Revision 5, "Regulatory Analysis Guidelines of the U.S.

NRC." We are sending you this copy of our letter as a courtesy, in parallel with submitting our comments electronically on the regulations.gov website as specified in the. subject Federal Register announcement.

We appreciate the aim of the Phase 1 update to NUREG/BR-0058, which is to consolidate and update the NRC's cost-benefit guidance. Our specific comments on Revision 5 are included in the attachment to this letter. Our comments focus primarily on improving the clarity of the proposed revisions to the NUREG; ensuring that the revisions effectively communicate current Commission policy on the relevant issues; and, in the area of backfitting, ensuring that the revisions appropriately focus on providing guidance to the staff regarding the analytical requirements of the Commission's backfitting rules (e.g., how to conduct the cost-

. justified, substantial-increase analysis), as opposed to backfitting policy (applicability of the backfitting rules, backfitting identification, use of the backfitting exceptions, etc), which are more appropriately addressed in the staff's planned revisions to NUREG-1409.

If you have any questions concerning this letter, please contact me.

1 The Nuclear Energy Institute (NEI) is the organization responsible for estabiishing unified industry policy on matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEI's members include all entities licensed to operate commercial nuclear power plant:S in the United States, nuclear plant designers, major architect/engineering firms, Juel cycle facilities, nuclear materials licensees, and other organizations and entities involved in the nuclear energy industry.

NUCLEAR. CLEAN AIR ENE.RGY

Ms. Cindy K. Bladey June 16, 2017 Page 2 Sincerely, James E. Slider c: Ms. Pamela Noto, NRR, NRC Mr. R. Frederick Schafer, NRR, NRC NRC Document Control Desk

Attachment - NEI Comments on NUREG/BR-0058~ Revision*S Page Lines Comment Suggested Wording Change v 20-26 Sections 2.3.2 and 2.3.5 are not listed in the Table of Contents .

1-1 2 Are statements made in the Introduction meant to be descriptive or directive?

Some read as if they could be directives to staff. Others read as if they merely summarize and allude to binding directives and procedures found elsewhere. In some areas, Revision 5 reads like a procedure or checklist to be followed verbatim. In other areas, it reads like Wikipedia or a compendium of someone's notes on how to work in the area of regulatory analysis. The variations make it difficult to gauge how well Revision 5 will serve its intended use.

1-1 12-13; 42- This parag_raph explains that th_e NRC is "Although the NRC is not required to conduct 48 not required to conduct cost-benefit cost-benefit analyses {exceQtas reguired by the analyses, but has done so voluntarily Commission's backfitting rules), it voluntarily since 1976. Although this statement is began performing them in 1976.

generally correct, the NRC should update this section to reflect more recent In September 1993, President Clinton issued Executive Orders and case law that are .E.O. 12866. Section 1 of E.O. 12866 contained relevant in this area, and clarify that principles of regulation, and Section 6(a)(3) cost-benefit analyses are required by contained the elements of a cost-benefit rule when backfitting is involved. analysis that are relevant to this guidance. E.O.

12866 revokes E.0. 12291. Except for certain planning functions in Section 4 of E.O. 12866, the NRC, as an independent agency, is not required to comply with E.O. 12866, but, in part because of the Commission's previously expressed desire to meet the spirit of Executive Orders related to cost-benefit reform and decision making, the NRC voluntarily complies with E.0. 12866.

In 2011, President Obama issued E.O. 13563, which SUQQlements and reaffirms Executive Order 12866. This UQdated order exQlains that an agency "must ... QroQose or adoQt a regulation only UQon a reasoned determination that its benefits justify its costs." As with these Qast Executive Orders on regulato!Y reform, the Commission likewise recognizes the SQirit of recent Executive Orders. For examQle, E.O.

13783 renews the federal government's long-standing Qosition that "necessary and aQQroQriate environmental regulations comQly with the law [and] are of greater benefit than Page 1of23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested, Wording Change cost, when Qermissible." The Commission also agrees that "it is essential to manage the costs associated with the governmental imQcisition of Qrivate exQeriditures reguired to comQly with Federal regulations." E.O. 13771.

The Commission also recognizes recent SuQreme.Court Qrecedent on the imQortance of cost-benefit analysis in rulemaking. In Michigan

v. EPA, 135 S. Ct. 2699 {2015). the SuQreme Court exQlained that agency action must rest "on a consideration of the. relevant factors,"

which includes costs: "Agencies have long treated cost as a centrally relevant factor when deciding whether to regulate." In making this evaluation, the Court instructed that agencies should be. mindful that "'costs' includes more than the exQense of comQlying with regulations; any disadvantage could be termed a cost." "No regulation is 'aQQroQriate,"' the Court exQlained, "if it does significantly more harm than good."

In November 1995, the NRC issued Revision 2 to NUREG/BR-0058 to reflect .... "

1-3 Lines 5-17 "This revision of NUREG/BR-0058 has been prepared to accomplish three objectives ...

This paragraph appears late in the Introduction section. It appears to be fundamental to understanding the purpose of Revision 5. This paragraph should be made more prominent by, for '

example, n:ioving it to appear as the second paragraph in the Introduction (page 1-1, line 12).

1-6 Footnote The last two sentences of footnote "a" ""Similar provisions detailingwhat information a, lines 6-8 promote the Idea that the Commission is to be contained in a backfit analysis are has determined that the "substantial contained in 10 CFR 70.76, 2 10 CFR 72.62, 10 increase" requirement does not apply CFR Part 76, and, for issue finality, 10 CFR Part when evaluating backfits pursuant to 10 52. These provisions should be considered, as CFR 70. 76. This is incorrect. appropriate, when considering backfit-related matters for independent spent fuel storage

• This assertion is based on SRM-SECY installations and the monitored retrievable 185 (see Ref. 26). In that SRM, the storage installations, gaseous diffusion plants, Commission disapproved a proposed and new reactors, respectively. In addition, in rule that would have modified 10 CFR tl:ie eonte*t of PaFt 7Q lieensing aetions, tl:ie Part 70. Instead, the <;:ommission GoFfHflission s1:113130Fted tt:ie FeEf1:1iFement tl:iat directed the staff to provide a revised II

... afi*; new eael~fit 13ass a eost eenefit test .

rule package within 6 months of issuance witl:io1:1t tt:ie s1:1estantial ineFease in safet*; test.

Page 2 of 23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested Wording Change of the SRM. SRM-SECY-98-185 does  :+Re GemmissieR eelieves t:Rat meaest iReFeases include the following statement: iR safety at miRimal SF iReeRseeil:leRtial east sl:im1la ee justifies eR a east eeRefit easis." (Ref.

The Commission supports a ~

requirement that any new backfit pass a cost-benefit test, without the "substantial" increase in safety test.

The Commission believes that modest increases in safety at minimal or inconsequential cost could be justified on a cost benefit basis.

But, in approving the final rule revising 10 CFR Part 70 just a few years later, the Commission directed the staff to include the "substantial increase" standard in section 70.76, stating:

The Commission has approved inclusion of the word "substantial"

• into the backfit requirement in § 70.76(a)(3}. Staff should develop guidance to make clear that an adequate demonstration can be based on quantitative or, qualitative evaluations of the nature of the increase in the overall health and safety protection of the public.

SRM-SECY-00-0111. Indeed, 10 CFR 70.76(a)(3) states:

[T]he Commission shall require the backfitting of a facility only when it determines, based on the analysis described in paragraph (b) of this section, that there is a substantial increase in the overall protection of the public health and safety or the common defense and security to be derived from the backfit and that the direct and indirect costs of implementation for that facility are justified in view of this increased protection.

' (emphasis added). Thus, it is clear that both the "substantial increase" and "cost-justified" findings are required to support backfitting under section 70.76.

The last two sentences of footnote a Page 3 of 23 Revised 20170616

('

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested Wording Change present an incomplete picture of the Commission's decision-making process, misstate the standard required pursuant to 10 CFR Part 70.76, and should be deleted.

.2-1 1-6 This paragraph describes the NRC's "The statutory mission of the NRC is to ensure "statutory mission." NRC's "statutory that civilian use of nuclear materials in the mission" is primarily defined by the United States, in operating nuclear power substantive requirements of the Atomic plants and related fuel cycle faciiities or in Energy Act, as amended, which is the medical, industrial, or research applications, agency's organic statute. See "Limited 1;1romotes the common defense and securitll, Work Authorizations for Nuclear Power 1;1rotects the 1;1ublic health. and safetll, and Plants: Final Rule," 72 Fed.Reg. 57,416, minimizes danger to life and 1;1ro1;1ertl£. are 57,57,425 (Oct. 9, 2007). The general EaFFieel Sl:lt witA f3F9f3eF FegaFel aRel f3F9ViSi9RS description of the agency's "statutory feF 13FeteetiRg 131:18lie l:!ealtl:! aRel safet>y, mission" provided in Rev. 5 should more 13Fe13eFt*r, eR,.1iFeRFReRtal EJ1:1ality, aRel tl:!e closely reflect the general authority ESFRFRSR elefeRse aRel see1:1Fity. Accordingly, the granted to the agency in in Section 161 principal purposes of a regulatory analysis are of the Atomic Energy Act. to ensure the following:"

2-1 8-16 This bullet describes the standard that "Proposed actions subject to the Commission's must be met under the Commission's backfitting rule~ (10 CFR S0.109), and not within backfitting rules, but the references are the exceptions at 10 CFR 50.109(a)(41 limited to sections 50.109 and 76.76. 70.76(a)(4), 72.62(b), and 10 CFR 76.76(a)(4),

The references should be expanded to provide a substantial increase i.n the overall include all of the relevant backfitting protection of public health and safety or the provisions. common defense and security and that the direct and indirect costs of implementation are justified in view of this substantial increase in protection."

2-1 29-30 "This approach of 'substantial increase' is consistent with the Agency's policy of encouraging voluntary initiatives."

Why is this statement important here?

How does "this approach of substantial increase" encourage voluntary initiatives?

2-2 13 "This requirement applies to actions initiated internally by the NRC, from a petition to the NRC, or industry initiatives."

How does the requirement to perform a regulatory analysis apply to an industry initiative? We suggest this text mention Section 5.3.1, "Treatment of Industry Initiatives".

2-2 . 27-34 "For several types of regulatory actions, a detailed cost-benefit analysis could Page 4 of 23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision s.

Page* Lines. Comment Suggested Wording Change introduce additional costs that are

• dise_roe_ortionate relative to the action being undertaken. These include the issuance of generic communications, regulatory guides, standa.rd review plans, branch technical positions, enforcement guidance memoranda, interim staff guidance documents, some NUREG publications, standard technical specifications, and other documents that provide guidance for applicants or licensees. In general regulatoct. anal't_sis should be limited onl't. in terms o[ dee.th o[ discussion and anal't_sis, not in the reduction o[the scoe_e o[ the regulatorv ana/'t_sis and not in the need to iustifY. the e_roe_osed action." [Emphasis added]

What are the "additional costs"? Are they costs borne by NRC for performing the analysis or the cost of impacts on the affected licensees?

How is the regulatory analyst to decide when and in what ways to curtail the depth of analysis?

Please clarify what this paragraph means to the regulatory analyst.

Page 5 of 23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5

/

Page Lines. Comment* Suggested Wording Change 2-2 44-45 Page 2-2 states:

"Regulatory analyses are not necessary for requirements arising out of litigation."

We understand this statement to mean that regulatory analyses are not necessary prior to imposition of requirements that the NRC is compelled I to impose as a result of litigation. But this statement seems overly broad.

Specifically, a regulatory analysis could be appropriate in situations where litigation results in the agency being compelled to impose a requirement, but where the agency retains the discretion to choose between alternative approaches to meeting the mandate flowing from the litigation. In such a scenario, the regulatory analysis could be an extremely useful tool in guiding the NRC's decision on how to comply with the mandate.

Please clarify the specific situations in which litigation would forgo the need for a regulatory analysis.

2-4 38-43 Page 2-4 states: NA 2-5 9-14 The safety goal evaluation is intended to determine whether the residual risk is already acceptably low such that a regulatory requirement should not be imposed generically on nuclear power plants. The intent is to eliminate some proposed requirements from further consideration independently of whether they could be justified by a regulatory analysis on their net-value basis. The safety goal evaluation can also be used for determining whether the substantial additional protection standard of 10 CFR 50.109(a)(3) is met.

(emphasis added). This passage indicates that the safety goal evaluation may be useful in both regulatory analyses that involve backfitting and 1

those that do not. But, page 2-5 states:

Page 6 of 23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested Wording Change The safety goal evaluation, as discussed in this section, is applicable only to regulatory initiatives considered to be generic safety enhancement backfits subject to the -

substantial additional protection standard at 10 CFR 50.109(a)(3). A safety goal evaluation is not needed for new 11 requirements within the exceptions at 10 CFR 50.109(a)(4)(i)-

(iii). If the proposed safety goal screening criteria are satisfied, the NRC considers that the substantial

-additional protection standard is met

. for the proposed new requirement.

(emphasis_added). This passage seems to limit the applicability of the safety goal evaluation to the analysis of backfits under 10 CFR 50.109. The NRC should clarify that the safety goal evaluation may be used by the staff, outside of the backfitting context, to determine whether to eliminate *certain requirements or guidance from further consideration.

2~5 29 The reference to Figure 2-1 should be changed to Figure 2-2.

2-7 Figure 2-2 Should Block C, "Safety Goal Analysis",

refer to Section 2.4 (instead of 2.2)? If not, then it would be more straightforward to re-order Figure 2-2 to align with the section numbers or re-order the sections to follow the flowchart.

2-7 Figure 2-2 Most of the section numbers in Figure 2-2 (see Blocks D, E, F, & G) don't align with the body of the document to which they refer.

2-8 32 "The staff should provide documentation that the 31 analysis is based on the best reasonably attainable scientific, technical, a_nd economic information 32 available, quantified when possible."

Please provide some examples of what the NRC considers to be "reasonably attainable scientific, technical, and economic information."

2-8 41-42 'This element allows the analyst to carefully establish the details of the Page 7 of 23 Revised 20170616

_Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested Wording Change problem and its background, boundaries, significance, and objedive."

The. burden should be on the originator of the regulatory initiative to establish the details of the problem statement and its "boundaries, significance and objective", not on the regulatory analyst.

Please clarify thatthe regulatory analyst is riot inventing a new problem statement .or substantially revising an existing problem statement. The regulatory analyst must depend on the *.

originator of the regulatory initiative to define the problem: The regulatory analyst must take the problem statement from the documentation of the regulatory initiative being analyzed.

2-10 1 Should this section number be 2.3.2 instead of 2.3.3? (There is no section 2.3.2 shown in draft Revision 5.)

2-10 31 'This determination will usually result in a conclusion regarding whether a major or standard effort is needed to resolve the problem."

Please provide some examples of what would constitute a "major effort," as opposed to a "standard effort."

2-11 14 Should this section number be 2.3.3?

2-11 35 "Hypothetical best- and worst-case consequences may be estimated for sensitivity... " [Emphasis added]

This paragraph illustrates the varying uses of permissive language (i.e., may, should or can). If these differences are important, please choose one permissive term and use it consistently.

2-11 44 "Complete the above steps for each alternative evaluated."

The six elements of a regulatory analysis identified earlier in Section 2. Please clarify what "steps" this sentence refers to.

2-12 11 Should the section number be 2.3.4, instead of the 2.3.6 shown?

2-12. 31 "The presentation provides a uniform format for recording the results of the evaluation of all quantitative attributes, Page 8 of 23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested Wording Change plus a comments section to discuss other attributes and special considerations."

Please clarify where the analyst finds this uniform format.

2-12 43-44 "In cases where uncertainties are Please correct or clarify the text per our substantial or where important benefits comment.

cannot be quantified, alternatives that yield equivalent benefits may be evaluated, based on their cost effectiveness."

Substantial uncertainties are not in and of themselves a reason to use cost effectiveness. This would be true only when those uncertainties indicate that an alternative might be beneficial.

2-13 1 Should the section number be 2.3.5 instead of the 2.3.7 shown?

2-13 24-26 "Nonquantifiable attributes can only be factored into the decision in a subjective way; the exe.erience ot the decisionmaker will strong.f't. in[Juence the weight that the't. are given. These attributes may be significant factors in regulatory decisions and should be considered." [Emphasis added]

(a) What does "strongly influence" mean here?

(b) Lines 24-26 provide stakeholders with no clarity on how qualitative facto(s will actually be treated.

Additional guidance is need on this.

This guidarice should consider the robustness of the quantitative analysis, how well uncertainties are addressed in the quantitative analysis, and what the quantitative results say about the cost-benefit of the change. Also, it is n.ot clear why these are referred to as "nonquantifiable attributes" here, when the rest of the document and appendices seem to refer to them as qualitative factors.

2-14 17-20. It is important to recognize the "For example, an analyst addressing proposed additional margin provided by FLEX improvements to diesel generator performance equipment. at power reactors should be aware of any diesel generator improvements or alternate e.ower sue.e.lied b't. other means [e.g. FLEX Mitigating Page 9 of 23 Revised 20170616

Attachment - NEI Comment~ on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested Wording Change Strategies) already addressed in station blackout considerations."

2-14 20-21 "To the extent possible, the analyst should modi{'i. the risk equations o{ the representative plant to reflect the upgraded status quo from these other safety improvements." [~mphasis added]

Please clarify what "risk equations" are being referenced in this sentence.

2-15 21-23 'These references provide CDF and 'These references provide CDF and conditional conditional containment failure containment failure probability information for probability information for the fleet of the fleet of operating nuclear power plants in operating nuclear power plants in the the 1990s.

1990s." However, newer internal event CDF information mait. be obtained (!om ICES, which is used as the CDF values have fallen as a result of data source [or the MSPI indicator."

safety improvements across the industry.

In our view, it would be appropriate to recognize this and point to a source for current CDF data.

2-16 2-4 "This will result in identifying and "This will result in identifying and assessing the assessing the range of reduction in CDF, range of reduction in CDF, as well as estimating as well as estimating the representative the representative change for the class. Since change for the class." the 1990's, a significant reduction in Qlant, as well as indust!]l, mean CDF has been It is important to recognize the realized. Use of dated CDF information may not improvement in CDF across the industry. reQresent the as-built, as-oQerated Qlant today.

Inaccurate conclusions may be reached ifthe dated information is used without consideration of newer information."

2-17 Table 2-1 Some of the values in Table 2-1 are likely to be out of date. Please review and update contents ofTable 2-1 as necessary.

2-18 22 "More than one significant figure in the "More than one significant figure in the mantissa is not appropriate in most mantissa is not appropriate in most cases unless cases." needed to characterize a small delta-CDF change."

Cases involving a sm.all change in de.lta CDF could be an exception to this statement.

2-18 39-40 "This goal has been determined by the Append to the paragraph that begins at line 32 a

staff to be useful benchmark but is not the underlined text below:

a Commission approved safety goal." "For the purpose of evaluating regulatory initiatives against safety goals, the magnitude of The "benchmark" of subsidiary CDF & the change in CDF should be considered in LERF goals to the Safety Goals is based concert with the determination of whether the on a 25-year- old understanding of substantial additional protection standard of Page 10 of 23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page lines Comment Suggested Wording Change severe accident phenomena and even the backfit rule is met. Specifically, a single older modeling tools. More recent work, common criterion is to be used for determining such as SOARCA and CPRR, has shown whether a regulatory initiative involving a that there is significant margin between reduction in CDF (1) meets the substantial the Subsidiary Objectives for CDF/LERF additional protection standard identified in the and the Safety Goal QHOs [Ref. EPRI backfit rule (Ref. 8) and (2) is appropriate, 3002003116, Appendix D]. This means considering the subsidiary safety goal of 10-4 in that a decision being made on mean CDF per reactor year (Ref. 32). This goal substantial improvement in safety that has been determined by the staff to be a useful relies on these values is potentially benchmark but is not a Commission approved overstating the significance and unduly safety goal. However, more recent severe triggering cost-benefit evaluations. For accident investigations, !;1erformed bll the NRC backfits, it will tend to cause more and indust!:l{, have shown that there is changes to screen into cost-benefit significant margin between the Subsidia!:ll analysis. Objectives for CDFLLERF and the Safetll Goal Quantitative Health Objectives {QHOs}. This increased margin could im!;1act a decision being

• made in that there is !;10tential in overestimating the risk benefit when

!;1erforming cost-benefit evaluations."

2-18 48 Should the reference to Figure 2-2 be corrected to Figure 2-3?

• 2-19 Figure 2-3 Figure 2-3 is confusing (see our color-coded version pasted at the end of this table of comments). The relationship

• between the three "Staff Actions" at the top and the table below is not at all clear. The text does not appear to explain the roles of these two parts. The top three lines refer to "Estimated Reduction in CDF". This seems to be equivalent to 8CDF. The table uses 8CDF on the ordinate axis. If the terms are equivalent, then the criteria do not align since a "priority" is shown only for high 8CDF and high CCFP. It is not clear what value the three lines at the top are intended to provide. Recommend deleting them.

2-19 Figure 2-3 Each cell _spans two orders of magnitude of frequency and overlap. For example, the "No Action Taken" box overlaps by a full order of magnitude with the Management Decision boxes and the Manageme_nt Decision boxes overlap an order of magnitude with the "Proceed to Cost-Benefit" boxes. Also,' the lowest value in the "Proceed to Cost-Benefit" box is equivalent to the "No Action Taken" upper value. Such wide spans seem to provide little in the way of Page 11of23 Re~ised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested Wording Change guidance.

2-20 24, 26. 33. The term conditional containment failure

34. Etc. probability (CCFP) is used in Figure 2-3 on page 2-19. The term conditional probability of containment failure or bypass (CPCFB) is introduced in Section 2.4.1.2. Page 2-20, lines 39 & 40 imply they are synonymous. If so, a single term is recommended (or at least a clear statement of equivalence). If not, then it is not clear how CPCFB is to be used and the definition of CCFP should be provided.

2-20 27,51 Some places in the text use the term "core melt". Others use "core damage".*

Recommend: using "core damage" everywhere.

2-20 31-33 "The definition recognizes the impacts of "The definition recognizes the impacts of early early failure and uses that as a baseline failure and uses that as a baseline from which to from which to assess containment assess .containment performance (e.g., CPCFB performance (e.g., CPCFB changes)." changes). Recognize that the Fukushima-related Orders associated with mitigation

• It is important to recognize post- strategies and severe accident containments

' Fukushima requirements that could venting for BWR Mark I and II containments impact this. may have an impact on CPCFB and should be considered accordingly."

3-1 3-9 This paragraph describes the purpose of "Backfits are expected to occur as part of the the Commission's backfitting rules, regulatory proce~s to ensure the safety of focusing on regulatory discipline and power reactors and radioactive materials. It is stability. Although these are important important for sound and effective regulation, purposes of the backfitting rules, we however, that backfitting be conducted by a believe that maintaining a safety and controlled and defined process. The NRC security focus is also a primary purpose backfitting process is intended to provide for a of the rules. Revision 5 should clearly formal, systematic, and disciplined review of communicate that an important purpose new or changed positions before imposing of the backfitting rules is to focus them. The backfitting process helps to ensure industry and NRC resources on the most that agency and indust!]l resources are focused .

sa.fety- and security-significant on the most safety- and security- significant regulatory activities. regulato!]l activities. The process also enhances regulatory stability by ensuring that changes in regulatory staff positions are justified and suitably defined."

5-1 22-30 This section describ!=!S six steps of the regulatory analysis differently than they are described on page 2-8, lines 6-12. Is there a compelling reason why the description is different here in Chapter 5?

Consider aligning the wording on pages 2-8 and 5-1 or simply point ba.ck to the Page 12 of 23 Revised 20170616

Attachment . -- NEI Comments-on NUREG/BR-0058, Revision . .5 Page Lines Comment Suggested Wording Change wording on page 2-8. Also decide whether a regulatory analysis consists of six "steps" or six "elements" and use the.

chosen label consistently throughout BR-0058.

5-2 36 "See Appendix H for additional guidance."

Appendix H is presently an empty placeholder. Where is the analyst to turn for the additional guidance until Appendix H is published?

Consider revising the reference to Appendix H or clarifying what the analyst is to do until Appendix H is complete.

5-2 47 "Expected 45 changes in radiation exposure from a nuclear power reactor accident should be measured over a 50-mile appropriate distance from the licensed facility." [Emphasis added]

Please delete the word "appropriate" or clarify what it means.

5~8 10-17 This section of Revision 5 states that NA "The NRC is currently developing guidelines designed to increase the NRC's assurance that industry initiatives will be effective long-term*alternatives to regulatory actions." This statement was

• also made in Revision 4, which was published in September 2004. See Rev.

4, at pg. 25. The NRC should clarify

• whether they are currently developing such guidelines and, if so, provide information regarding expected completion di3tes and plans for stakeholder engagement.

5-8 43-50 Section 5.3.1 discusses how the staff will 5.3.1 Treatment of Industry Initiatives 5-9 1-7 address the' costs and benefits of Industry initiatives are typically actions potential regulatory actions that overlap performed by licensees that either form the with, or are related to, voluntary bases for continued compliance with the industry initiatives. Specifically, this regulations or obviate the need for new section states that the staff should regulations. Industry initiatives for NRC examine the sensitivity associated with . regulatory action can provide effective and giving voluntary industry initiatives "full efficient resolution of issues, without credit" versus "no credit," which would comp~omising facility safety or reducing the .

affect the baseline from which the NRC's commitment to safety and sound incremental costs and benefits of a regulation.

proposed regulatory action are Page 13 of 23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested Wording Change measured; But the example given in Industry initiatives can generally be put into one Section 5.3.1 only addresses how the of the following categories: (1) those put in "full credit" I "no credit" assumption place in lieu of, or to complement, a regulatory would affect the "incremental values" action to ensure that existing requirements are (i.e., the benefits} associated with a met, (2) _those used in lieu of, or to proposed regulatory action. . Tlie "no complement, a regulatory action in which a credit" assumption would increase such substantial.increase in overall protection could incremental benefits, and the "full be achieved with costs of implementation credit" assumption would decrease such . justifying the increased protection, and (3}

incremental benefits. There is no those that were initiated to address an issue of discussion of how the crediting of the concern to the industry but that may or may not voluntary initiative would impact be of regulatory concern. Issues related to incremental cost. Industry believes that adequate protection of public health and safety the NRC should clarify that either: are deemed the responsibility of the NRC and should not be addressed through industry 1} The "no credi.t" I "full credit" initiatives.

assumption would also be applied to costs (i.e., the "no credit" scenario would The presence of industry initiatives is potentially result in a corresponding increase in the very important in the estimation of costs and incremental costs along with the benefits, and, as such, its treatment in the increme.ntal benefits of a proposed regulatory analysis should be explicitly .

regulatory action and vice versa}; or considered. All consequences bf a proposed regulatory change are measured relative to the 2} The costs of voluntary industry .baseline, which is how things would be if the initiatives are considered sunk costs and proposed regulation were not imposed (status thus will not be credited by the NRC in its quo}. If industry initiatives that complement or cost-benefit analyses (this would be substitute for a proposed regulatory action equivalent to a "no credit" assumption exist, the future role of these industry initiatives from a cost standpoint}. should be determined. This determination would affect the baseline, which in turn would Section 5.3.1 goes on to state: affect the calculation of incremental costs and benefits. For example, if "full credit" is given to Ordinarily, voluntary actions are not the industry initiatives {i.e., it is assumed that included in the cost estimate for complementary industry initiatives will continue backfit analyses. The backfit rule in the future}, the incremental values applies to actions that impose attributable to the proposed regulation are positions or requirements on diminished. Alternatively, if"no credit" is given, licensees; it does not apply to the incremental values assigned to the requested actions that are optional proposed rule are increased.

or voluntary. The term "voluntary" as it applies to "voluntary actions" or For the purpose of the regulatory analysis, cost-

"voluntary relaxations" is distinct benefit results are to be calculated based, to from "mandatory actions" or the extent practicable, on varied assumptions "mandatory relaxations." The concerning the future role of industry concept of "voluntary action" versus initiatives. Initially, two sets of cost-benefit "mandatory action" is best illustrated estimates are to be derived: one based on no in the following example. credit and the other based on full credit for industry initiatives. These results will have equal Consider a situation where the weight and will be presented for sensitivity regulation or guidance provides a analysis purposes. If the overall value-impact new alternative that may be result does not tilt from an overall net cost to Page 14 of 23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested Wording Change voluntarily adopted by the licensee an overall net benefit (or vice versa), there is no or an extension of what was need to proceed further, and the final results previously addressed in the would be reported as a range of values that regulation, such as the Risk-Informed reflect t_he sensitivity of these results to this Treatment Rule in 10 CFR 50.69 or assumption. However, if the results are highly the Thermal Annealing Rule in 10 CFR sensitive to that level of variation, such that the 50.66. These two rule changes are overall cost-benefit conclusion shifts or the final voluntary r_elaxations in which the recommendation changes, the analyst would licensee could continue to comply proceed to develop a "best-estimate" base with its current design procedures or case.

practices and still be in compliance with the new, relaxed requirement. Under this best-estimate base case, the staff In contrast, if the licensee should will evaluate the specific industry initiatives in change its design, procedures, or question to determine how much credit to give practices to be in compliance with a to the industry initiatives. The NRC is currently new relaxed requirement, then the developing guidelines designed to increase the new requirement would be a NRC's assurance that industry initiatives will be "mandatory relaxation" and would effective long-term alternatives to regulatory be considered in the estimated costs actions. Clearly, the more an industry initiative for the regulatory change. satisfies these guidelines, the more credit one should give to the industry initiative. Before This passage is confusing and seems to these guidelines are formally approved, the conflate two distinct issues: (1) whether staff should rely on relevant features and to consider the costs associated with characteristics of the industry initiatives to "voluntary actions" in backfitting assess the weight or amount of credit to attach analyses and (2) whether the backfitting to any given industry initiative. Relevant rule. applies to "voluntary actions" or characteristics would include the following:

"voluntary relaxations:"

• costs associated with the industry initiative On issue (1), the first sentence makes a (i.e., if the dominant costs are fixed costs that statement that the costs of "voluntary have already been expended or the future actions" should not be considered in recurring costs to mainta.in the industry backfitting analyses. Presumably, initiative are minimal, it is more likely the neither the costs nor the benefits of industry initiative will continue in the future) purely voluntary actions that are not

• the extent to which written commitments related to the imposition of a proposed exist (i.e., if written commitments exist, it is backfit would be considered in a more likely a licensee will continue that backfitting analysis. Further, Section commitment in t!ie future, and the NRC could, if E.2.2 of Appendix Estates that sunk necessary, respond to licensees not adhering to costs, which include costs associated the industry initiative) with voluntary actions undertaken at an

• whether the indust!Y has formally ado12ted earlier date, are not to be included in the initiative as mandato!Y through NEl's

• NRC cost-benefit analyses. Accordingly, Nuclear Strategic Issues AdviSO!Y Committee the costs of voluntary actions that have

• the degree to which the industry initiative is occurred in the past would not be noncontroversial and standard industry practice considered in any NRC cost-benefit (i.e., if the industry initiative is noncontroversial analysis - regardless of whether a backfit and standard industry practice, as a function of is involved. Thus, we recommend that consistency with provisions of industry codes the first sentence be deleted because it and standards, the participation rate among is potentially confusing, incomplete, and relevant licensees, the length of time the is already addressed by the section of program has been operating, or its Page 15 of 23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 .

Page Lines Comment Suggested Wording Change Appendix E that discusses sunk costs. effectiveness, the more likely it will continue without the rule change)

Issue (2) is discussed in NUREG-1409 and *the scope and schedule for industry, initiatives*

the CRGR Charter, as it addresses the that are still pending (i.e., for industry initiatives applicability of the backfitting rule that are still works in progress, the more well (rather than the conduct of NRC's cost- defined the scope and the sooner the initiative benefit analyses). Guidance on the is expected to be in place, the more likely it will applicability of the b~ckfitting rule be available in the future) should be maintained in NUREG-1409, the CRGR Charter and Management Based on such an assessment, the regulatory Directive 8.4. Thus, we recommend that analysis should contain, to the extent the rest of this passage also be deleted. practicable, a best estimate ofthe costs and benefits of the regulation under consideration.

These results would serve as the basis for the staff's recommendations to the Commission.

Careful attention is needed when PRA techniques are used to give partial or no credit to industry initiatives, because risk estimates from PRAs are based on existing conditions that typically include credit for any industry initiative that may be in place. When the PRA is modified to eliminate or reduce credit for industry initiatives, the reviewer needs to ensure that these changes.are properly reflected in the details of 40 the PRA model.

GFeliAaFil*,i, 1o'eh:1AtaF'J' aetieAs aFe Rat iAeh:1eleel iA tl=le east estiFAate. feF eaelEfit aAal*;ses. +l=le eaelEfit Fl:lle a13131ies ta aetiSAS tRat iFAJ39Se 13esitieAs eF Feet1:1iFeFAeAts eA lieeAsees; it elees Aet a1313l*t ta Feet1:1esteel aetieAs tl=lat aFe e13tieAal eF Yel1:1AtaFy. +l=le teFFA 111o'el1:1AtaFy" as it a1313lies ta '\*el1:1AtaFy aetieAs" eF 11'o'el1rntaFy FelaicatieAs" is elistiAet fFeFA "FAaAelateFy aetieAs" eF "FAaAelateFy FelaMatieAs." +l=le eeAee13t ef 11'o'el1:1AtaFy aetieA" 'o'eFs1:1s 11 FAaAelateFy aetieA" is eest ill1:1stFateel iA tl=le fellewiAg eicaFA13le.

GeAsieleF a sit1:1atieA wl=leFe tl=le Feg1:1latieA eF g1:1ielaAee fJFS'o'ieles a Re"' alteFAati*o<e tl=lat FAay Se 'o'Sll:IAtaFil*t aele13teel BV tl=le lieeAsee SF aA eMteAsieA ef *Nl=lat was J3Fe'o'ie1:1sly aelelFesseel iA tl=le Feg1:1latieA, s1:1el=I as tl=le Risk IAfeFFAeel lFeatFAeAt R1:1le iA 1Q GFR §Q.69 eF tl=ie +l=leFFAal AAAealiAg R1:1le iA +/-Q Gi::R §Q.66. +l=lese twe Fl:lle I

el=laAges aFe 'o'el1:1AtaFy FelaMatieAs iA wl=liel=I tl=le lieeAsee ee1:1lel eeAtiA1:1e ta eeFA13ly '"itl=I its El:IFFeAt elesigA 13Feeeel1:1Fes eF J3Faetiees aAel still ee iA E9FAJ3liaAEe 11*1*itR tl=le AeW, FelaMeel Feet1:1iFei=fleAt. IA eeAtFast, if tl=le lieeAsee sl=le1:1lel Page 16 of 23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested Wording Change ERaRge its etesigR, (3F9Eeel1:1Fes, 9F (3FaEtiEes te ee iR E9FR(31iaREe witR a Rew FelaMeel FeEjl:liFeFReRt, tReR tRe Re'*"' FeEjl:liFeFReRt 1.Y91:1lel Be a "FRaRelateFy FelaMatieR" aRel V>'91:1lel Be EeRsieleFeel iR tl=le estiFRateet easts feF tl=le Feg1:1latel)' el=laRge.

5-12 Table 5-1 Table 5-1, Expected Population Doses for Power Reactor Release Categories, is taken from NUREG-1150 (published in 1990). The note on this page says, "This table will be updated and moved to Appendix H in the future."

Our knowledge of severe accident consequences has greatly expanded since NUREG-1150 was published. What are the staff's plans to update this table?

If this table is moved, how will this part of Chapter 5 change?

5-15 8-9 This table is unnumbered, untitled, and not'specifically mentioned in the text.

What is the analyst to do with this table?

The note below the table, like the note below Table 5-1, says that this table will be updated and moved to Appendix H in the future. What will be the basis for the update and what is the plan for updating this table?

Please clarify the intended use of this ta81e.

A-1 7 "The purpose of this appendix on the qualitative factors assessment

• methodology is to provide guidance and best practices for use in estimating intrinsic costs and benefits (i.e.,

qualitative factors) to improve the clarity, transparency, and consistency of the U.S. Nuclear Regulatory Commission's (NRC's) regulatory, backfit, and environmental analyses."

The term "intrinsic" seems inappropriate '--

in defining qualitative factors.

Quantified benefits and costs are also "intrinsic". It seems like a term like "intangible" or "less quantifiable" would be more appropriate.

Acl 6-34 First two paragraphs stress importance Appendix A of qualitative factors, describing the use A.1 Purpose of qualitative information has "essential Page 17 of 23 Revised 20170616

---

1 Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested Wording Change for the evaluation and selection of the The purpose of this appendix on the qualJtative preferred alternative." Similar factors assessment methodology is to provide statements are contained in Section 2.0 guidance and best practices for use in of Revision 5. See e.g., pg. 2-4 estimating intrinsic costs and benefits (i.e.,

("qualitative factors can be significant qualitative factors) to improve the clarity, elements.of a regulatory analysis"), 2-13 transparency, and consistency of the U.S.

{"These [nonquantifiable] attributes may Nuclear Regulatory Commission's (NRC's) be significant factors in regulatory regulatory, backfit, and environmental analyses.

I decisions and should be considered."), 2-21 ("If the net value calculation required In SRM-SECY 0087, "Staff Reguirements -

by Section 2.4.1 is not positive, further SECY-14-0087 - Qualitative Consideration of activities an analyses should be Factors in the Develo12ment of Regulato[Y terminated unless there is a qualitative Analyses and Backfit Analyses," dated March 4, justification for proceeding further."). 2015 {ADAMS Accession No. ML15063A568},

After stressing the importance of the Commission directed the NRC.staff "to qualitative information, midway through guantify costs to the extent 12ossible and use the third paragraph on page A-1, gualitative factors to inform decision making, in Revision 5 states: limited cases, when guantitative analyses are not 12ossible or 12ractical (i.e.; due to lack of However, as directed by the methodologies or data.}"

Commission in SRM-SECY-14-0087 ..

. analysts are encouraged 'to quantify Consistent with this direction, and as ex12lained costs to the extent possible and use in Section 2.3.4, the analyst should make eve!:Y of qualitative factors to inform effort to use guantitative attributes relevant to decision making, in limited cases, the cost-benefit analysis. The guantification when quantitative analyses are not should em12loy moneta!:Y terms whenever possible or practical {i.e., due to lack 12ossible. Dollar benefits should be defined in of methodologies or data).' These real or constant dollars (i.e., dollars of constant methods should only be used when 12urchasing 12ower}. If monetary terms are quantification may not be practical; ina1212ro12riate, the analyst should strive to use they are not a substitute for other guantifiable benefits.

collecting accura,te information to develop realistic cost estimates and There may, however, be some attributes that do not constitute an expansion of the cannot be readily guantified, des12ite the consideration of qualitative factors in analyst's best efforts to do so. These attributes regulatory, backfit, or environmental are termed "gualitative" and this A1212endix analyses. ca12tures best 12ractices for the consideration of such gualitative factors by 12roviding a number Although the information presented in of methods that can be used to su1212ort the Appendix A and Section 2.0 regarding NRC's evidence-based, guantitative, and qualitative factors is generally accurate, analytical a1212roach to decision ma king. This we believe that it may be inappropriately guidance 12rovides a toolkit to enable analysts to interpreted as setting the Commission's clearly 12resent analyses of gualitative results in direction in SRM-SECY-14-0087 at odds a trans12arent way that decisionmakers, with the idea that qualitative stakeholders, and the general 12ublic can information can be useful in cost benefit understand.

analyses.

The methods described in this A1212endix should To the contrary, our understanding of be used only when guantification is not the direction provided in SRM-SECY 1:1ractical or 1:1ossible; they are not a substitute 0087 is that the Commission has for collecting accurate information to develoQ Page 18 of 23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines. Comment Suggested Wording Change appropriately placed a premium on the realistic estimates of costs and benefits, and do use of quantitative information in not constitute an ex[!ansion of the regulatory analyses because such consideration of gualitative factors in information improves the usefulness of regulato~, backfit,. or environmental anall[ses.

these documents as decision-making tools. While recognizing the qualitative information should be considered in The identification, characterization, and analysis situations where meaningful of eoth monetii!ed costs and eenefits {i.e., those quantification is not possible, the meas1:1red iR dollars) and ei1:1alitatiYe {e.g.,

primacy of quantitative information in f1:1nctional er nanmenetized) casts and eeFiefits the conduct of regulatory impact . are essential f9r the e1.ial1:1ation and selection of analyses is recognized in OMB's.Circular the 13referreel alternatiYe.

A-4, which states:

The NRC 1:1ses cost eenefit analyses to Sound quantitative estimates of determine whether a reg1:1latOP/ action is benefits and costs, where feasible, j1:1stified an the easis of a com13arisan of are preferable to qualitative raredicted costs and eenefits. Cansieleratian of descriptions of benefits and costs the relati1.ie im13ortance of ei1:1alitatii.*e attri81:1tes because they help decision makers in the decision rationale is an e11tremel 1t 1:1sef1:1I understand the magnitudes of the anel 13awerf1:11'taal far decisionmalEers and.

effects of alternative actions. stalEeholders. It is im13ortant to realii!e that manetar>,* 1:1n.its are not the anl1t way to assign Circular A-4 {Sept. 17, 2013), at pg. 26. Yal1:1e ta 01:1tcomes of concern to the general 131:181ic. A lmown limitation of cast eenefit NEI has not advocated that the NRC analysis is that some 01:1tcomes are rarel 1t eyer

.abandon the use of qualitative factors in 13riceel or traeleel in the econom 11, malEing it its cost-benefit analyses, however we eli#ic1:1lt to assign monetary Yal1:1e ta same ty13es have objected to over-reliance on of costs and eenefits.

qualitative information to justify imposition of proposed backfits in This a13~endi1E ca13t1:1res eest 13ractices f9r the situations where robust quantitative risk consieleration of ei1:1alitati 1.ie factors 81113ra1.iiding analyses were available and failed (by a n1:1meer of methoels that can ee 1:1seel to over an order of magnitude) to s1:11313ort the NRC's eYidence eased, Efl:lantitatiYe, demonstrate that the proposed backfits and analytical a1313roach to elecisianmalEing. This would result in a substantial increase in g1:1idance 13ra1..ieles a toollEit to enaele analysts to safety or security. Consistent with the clearly raresent anal 11ses of ei1:1alitati1,ie res1:1lts in Commission's direction in SRM-SECY a trans13arent wa 11 that elecisionmalEers, 0087, we believe that the agency's stakeholelers, anel the general*131:181ic can guidance on the conduct of cost-benefit 1:1nderstand. 1-!aweYeF, as diFected ey the and backfitting analyses "should Commission in SRM Sec¥ 1'1 QQ87, "Sta#

continue tb encourage quantifying costs Reei1:1irements SeC¥ 1'1 QQ87 Q1:1alitatiYe to the extent possible and use qualitative Consideration of Factors in the 9eYela13ment of factors to inform decision making in Reg1:1latory ,o.nalyses and BaclEfit Analyses,"

limited cases, when quantitative dated March 'I, 2Q1§ (A9AMS Accessien No.

analyses are not possible or practical." Ml:l§Qi3,ll,§i8), anal 11sts are enco1:1raged "ta ei1:1antif>t* costs to the e1Etent 13ossi.ele anel 1:1se In order to avoid the impression that the ei1:1alitath.1e factoF5 ta inform decision malEing, in Commission's direction in SRM-SECY liffiited cases, when ei1:1antitati>.1e anal 1;ses are 0087 is in tension with the idea the net 13ossiele er 13ractical (i.e., el1:1e to lack of qualitative information can be important methodologies er data." These methods sho1:1ld in limited circumstances, we suggest the only ee 1:1sed when Efl:lantificatian may not ee Page 19 of 23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested Wording Change revisions to Appendix A detailed in the 13Faetieal; tl:ie*; a Fe Rat a s1::18stit1::1te faF ealleetiAg column to the right. aee1::1Fate iAfaFA=tatiaA ta elei.celei13 Fealistie east estiA=tates aAel ela Ast eaAstit1::1te aA eJE13aAsiaA af tl:ie eaAsieleFatiaA af Ejl::lalitati>.*e faetaFs iA Feg1::1lataPy1, 8ae1Efit, aF eAi.<iFaAA=teAtal aAal*rses.

A-2 11 '.'Intangible costs and benefits do not easily lend themselves to direct, quantitative measures. In 10 other words, *these types of attributes:

(1) do not have readily available standard measurement 11 scales, and (2) tend to be subject to great interindividual measurement variability."

What does "great interindi~idual measurement variability" mean? How does this phrase apply? Cost~benefit analyses don't measure anything; they model things. *.....

A-2 The title of Section A.3 is "The Need for Please clarify what is meant by "Need for A-3 Consistent Methods", yet the text of Consistent Methods".

Section A.3 says nothing about consistency or consistent methods.

Ironically, the next section, Section A.4

• provides 10 different methods without any guidance on how to consistently choose the appropriate method.

App. Section D.5 "Endorsement of Later ASME D BPV or OM Codes that are Considered Backfits" describes three circumstances under which the NRC considers incorporation of later code revisions to constitute backfits:

(1) When NRC endorses a later provision of the ASME BPV or OM code that takes a substantially different direction from the current requirements; (2) When NRC requires implementation of later ASME BPV or OM code provisions on an expedited basis (i.e., faster than required by 50.55a);

(3) When the NRC takes an exception to an ASME BPV or OM code provision and imposes a requirement that is substantially different from the current existing requirement as well as substantially different than the later code.

Page 20 of 23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested Wording Change The NRC should clarify that- consistent with the agency's long-standing backfitting guidance on regulatory changes that provide licensees with additional alternatives, or that provide for the voluntary relaxation of requirements - eliminating or relaxing code requirements would not generally be considered backfitting.

App. E Section E.2.3 Treatment of Industry E Initiatives, covers the same topic as E-4 section 5.3.1, but the two sections are not entirely consistent. Covering the same material in both sections is unnecessary and creates the potential for inconsistencies and confusion. Thus, ..

I I

we recommend that Section E.2.3 of Appendix E be deleted.

E-4 29-30 Section E.2.4 discusses the bundling or "This discussion does not apply to backfits that aggregation of requirements and the Commission determines qualify under*one includes the following statement: of the exceptions in 10 CFR 50.109(a)(4)(ii) and (iii). Those types of backfits require a This discussion does not apply to documented evaluation rather than a backfits that the Commission backfitting analysis, and cost is not a determines qualify under one of the consideration in deciding whether or not the exceptions in 10 CFR 50.109(a)(4). exceptions.are justified (although costs may be Those types of backfits require a considered in determining how to achieve a documented evaluation rather than a certain level of protection)."

backfitting analysis, and cost is not a consideration in deciding whether or not the exceptions a~e justified (although costs may be considered in determining how to achieve a certain level of protection).

Section 50.109(a){4) includes both the adequate protection and compliance exceptions to the backfitting rule.

Contrary to the above-quo~ed paragraph, in a December 2016 memorandum the NRC Solicitor provided guidance stating the costs must be considered when the NRC staff is invoking the compliance exception provided in section 50.109(a)(4)(i). Although the staff is not required to perform the full analysis required pursuant to section 50.109(a)(3) and the extent to which costs must be considered is unclear, the statement in the above-quoted Page 21of23 Revised 20170616

Attachment - NEI Comments on NUREG/BR-0058, Revision 5 Page Lines Comment Suggested Wording Change paragraph that costs are not considered in determining whether use of the compliance exception is justified is no longer correct. Thus, we recommend that the NRC narrow the applicability of this statement to the adequate protection exceptions to the backfitting rule.

E Footnotes Section E.3.1 describes the Committee to E-10 b, c, d Review Generic Requirements.

However, footnotes b, c, and d on page 1-18; 1-28 E-9 address policy issues related to the applicability of the NRC's backfitting rules (e.g., the legal and policy implications of the rule, the applicability of the rule to voluntary activities,. the applicability of the rule to reporting requirements). NEI strongly believes that guidance of this type should reside '

primarily in NUREG-1409, which we understand is currently under revision.

This type of information is not essential to the information being provided in Table E-1 and including it in NUREG/BR-0058 could cause confusion by creating

• inconsistencies with NUREG-1409. Thus, NEI recommends that footnotes b, c, and d be deleted.

Likewise, the discussion beginning on line 8 of page E-9 and running through line 28 on page E-10 deals primarily with the applicability of the backfitting rule.

Thus, we recommend that it be deleted for the reasons discussed above.

Page 22 of 23 Revised 20170616

l Attachment - NEI Comments on NUREG/BR-0058, Revision 5 *

• Modified Version of Figure 2-2 Mentioned in NE/ Comment on Page 2-19 Figure 2-.2 of NUREG/B,R-0058 ES.1imatedi Re.duciio.n inCOf Proceed \'ri1h ~he regulator1 aria!l}'iils on a.~~orityJ!am=::J Th{t d'-eel:.-Jt:in Wh~the~ to prt.)~(ld *~th the t{?9\ilt1t:c>t)' M~~p1$ i$ t<.> bo mado by tOO respons~:!ile dr\rision d;rcc,1or. \

f e~~e t'uMer anel~ 11lfltes.-s ~e om~ ~tor de~

cthurn., oos~~ ul)tln s:ltOng engineering tit qtrali~~ivo .jµ:st1ijcMJon.\

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Page 23 of 23 Revised 20170616