ML20030E086
| ML20030E086 | |
| Person / Time | |
|---|---|
| Issue date: | 08/20/1981 |
| From: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| Shared Package | |
| ML20030E085 | List: |
| References | |
| FRN-45FR74493, REF-10CFR9.7, RULE-PR-170, TASK-RIA, TASK-SE SECY-81-502, NUDOCS 8109170403 | |
| Download: ML20030E086 (21) | |
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SECY-81-502 August 20, 1981 RULEMAKING ISSUE
- ( Affirmation)
For:
The Commissioners From:
William J. Dircks Executive Director for Operations
Subject:
FEES FOR WITHDRAWN APPLICATIONS FOR POWER REACTOR CONSTRUCTION PERMITS, OPERATING LICENSES, AND OTHER APPROVALS OR REVIEWS
Purpose:
To secure Commission consent to publish a final rule.
Category:
A minor policy matter with no health, safety, or enviramental significance.
Discussion:
In SECY-80-364 and SECY-80-364A, the question of recovering fees with respect to withdrawn applications l
was discussed.
It was noted that several electric l
utilities had withdrawn applications for constructian l
permits for power reactors on which the staff had spent considerable review time and effort.
It was noted that under 10 CFR Part 170 fees were due on these withdrawn applications. The legality of this staff position was concurred in by both 0 ELD and OGC.
The Commission approved publication for comment of an interpretative rule clarifying the application of Part 170 to withdrawn, denied, suspended, or postponea applications. The proposed clarifying amendments were published on November 10, 1980 (45 FR 74493).
Four comments were received. All were from law finns representing present or fonner applicants for construc-tion permits, and all objected to the proposed amendments.
The Supplementary Information section of the proposed final rule (Attachment A) discusses the cmments in
Contact:
William 0. Miller, LPMB, 27225 Leo E. Slaggie, 0GC, 43225 Robert L. Fonner, OELD, 28692 48'in?R3S2o'to PT9.7 PJR
The Commissioners detail and finds then not to be persuasive. The General Counsel concurs in the analysis and conclusions con-tained in the proposed Federal Register notice.
It is a certainty that an appeal will be taken from the final rule. The General Counsel has advised that the amendments are defensible as clarifying only.
In the event a Court finds otherwise, the amendments would still be valid prospectively because notice and comment pre-cedure was followed in their promulgation.
Recennendation:
Approve the amendment in Attachment A for publication as a final rule.
111am J. Dircks Executive Director for Operations
Enclosures:
1.
Notice of Final Rule 2.
Draft Congressional Letter Commissioners' comments or consecc should be provided directly to the Office of the Secretary by c.o.b. Fridt., Septenber 4, 1981.
Commission Staff Office comments, if any, shecid be submitted.to the Commissioners NLT August 28, 1981, with an information copy I
to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when commenta may be expected.
This paper is tentatively scheduled for affirmation at an open meeting during the week of September 7, 1981.
Please refer to the appropriate weekly Commission Schedule, when published, l
for a specific date and time.
Distribution:
Commissioners
' Commission Staff Offices EDO ELD l
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United States Nuclear Regulatory Commission 10 CFR Part 170 Fees for Review of Applicatiors AGENCY:
United States Nuclear Regulatory Canmission ACTION:
Final Rule.
SUMMARY
- The Commission is promulgating an interpretative rule to clarify that fees for review of power reactor license applications and major fuel cycle license applications will be changed, as appropriate, when review of an applicatir. is completed, whether by issuance of a permit, license, or other l
approval, or by denial or withdrawal of an. application, or by any other event that brings active Canmission review of the application to an end.
DATES: Effective date (insert date 30 days after date of publication in Federal Register).
FOR FURTHER INFORMATION CONTACT: William 0. Miller, Chief, License Fee Management Brangh, U.S. Nuclear Regulatory Commission, Washington, D.C.
20555. Telephone: 301-492-7225.
SUPPLEMENTARY INFORMATION:
Based upon the language of 10 CFR 170.12(b) and.
of footnote 3 to 10 CFR 170.21 (footnote 3 reads in pertinent part as l
follows :
"When review of the permit, license, approval, or amendment is complete, the expenditures for professional manpower and appropriate support services will be determined and the resultant fee assessed, but in no event
. will the fee excee'd that shown in the schedule of facility fees.***") the Commission has been billing power reactor construction pennit applicants for the actual costs of review of withdrawn applications up to the time the applicant withdraws the application from Commission consideration.
It was the Commission's intent in promulgating 10 CFR Part 170 that charges be assessed whenever a review is brought to an end, whether by reason of issuance of a license, a denial of an application, or by its withdrawal, suspension or postponement. Such charges are authorized and directed under Title V of the Independent Offices Appropriation Act of 1952 (31 U.S.C. 483a) and supported by judicial decision upholding charges for goverrinent services rendered to applicants based upon cost to the agency. See e.g., Mississippi Power and Light v. NRC, 601 F.2d 223 (1979) cert. denied 444 U.S. 1102 (1980), and cases cited therein. The fee guidelines approved by the Com-mission and the Court of Appeals. in Mississippi Power and Light v. NRC, supra, make clear the Commission's position that the review of an application at the request of an applicant is a service for which a charge may be made. Under the guidelines, fees may be assessed for services rendered at the request of an applicant whether or not these services are linked to or result in the issuance.of a permit or license. For example, the guidelines support the inclusion in the fee schedule of "special projects and reviews" that do not result in issuance of permits, licenses or approvals but are yet subject to a fee for the service based upon actual cost. (10 CFR 170.21, Schedule F). The review given a power reactor application that does not end
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. in a permit or license is analogous to a special project with respect to the work perfonmed and the service rendered to the applicant.
The interpretative amendments to 10 CFR 170.12 are intended to remove any possibility of misunderstanding the Commission's intent to charge fees on withdrawal or denial of an application and in appropriate cases of suspension or postponsnent of action on an application. The Canmission will consider billing an applicant for costs incurred in the processing and review of an application upon either a stat'ement of intent by the applicant to postpone further review effort or a delay in the construction schedule which causes the staff to postpone further review.
In the event such an application is reinstated without significant changes, or review effort recommenced, subsequent charges will accrue only from the time of reinstate-ment or recanmencement of review ef fort.
In such cases the aggregate of charges.for review of applications covered by the actual cost principle will not exceed the scheduled amount for the class of facility.
Although the impetus for issuing this interpretative rule stems from the
- withdrawal of power reactor cor...cuction permit applications, the inter-pretative snendments also apply to certain materials licenses applications subject to the actual cost principle as stated in footnote 4 to 10 CFR 170.31. These are primarily major fuel processing and fabrication plants, waste storage and disposal facilities, spent fuel storage frcilities, uranium milling plants, evaluation of casks and packages, and special projects.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ - _ _ _ _ Since the new language merely restates what the Canmissien's rule has been on collecting fees for withdrawn or otherwise terminated applications since the promulgation of revisions to 10 CFR Part 170 (43 FR 7418), the clarifying language is applicable to all license applications on file before the Commission on or after March 23, 1978, the effective dat of the current version of 10 CFR Part 170, as well as to those received after adoption of the clarifying language.
Although the rules' changes in these amendments are interpretative only ar.d could have been published effective immediately without notice and comment under 5 U.S.C. 553(b), and without the customary 30 days noti e under 5 U.S.C. 553(d), the Canmission decided to solicit public comment prior to l
adopting the clarifying language.
(See 45 FR 74493, November 10,1980).
Four comments were received. All objected to the proposed rule. A 29-page comment submitted by Shaw, Pittman, Potts and Trowbridge, a law firm repre-sqjting several electric utilities, claimed that the proposed rule could not be regarded as an interpretation of the existing fee rules, effective since March 23, 1978, but rather amounted to "a substantive amendment by which the Commission for the first time seeks to impose license fees on withdrawn applications. " To support this claim the Shaw, Pittman comment argued that the 1978 fee regulation,10 CFR Part 170, made no provisicq, "either directly or by fair inference," for the payment of fees, other than the application fee, for review of license applications that are withdrawn before a license or construction permit issues. Accordingly, Shaw, Pittman
. asserted that the NRC cannot, as the proposed interpretative rule would do, impose fees to recover costs incurred in processing license applications that were on file on or after March 23, 1978 but have since been withdrawn.
"Even assuming that the Independent Office Appropriations Act 10AA would pennit the assessment of such fees for withdrawn applications," this commenter concluded, "at the most, the Commission can assess license fees on withdrawn applica-i tions only in connection with services and benefits rendered by the Commis-sion af ter the effective date of the proposed ammendment."
The other commenters generally agreed with the Shaw, Pittman position that fees for withdrawn applications were not imposed by the 1978 fee regulations and therefore cannot be imposed by an " interpretative" rule based on those regulations. The other commenters also raised the argument that the Com-mission lacks statutory authority to impose fees for withdrawn applications because the arolicant has received no "special benefit" when an application hn been withdrawn.
Public Service Company of Oklahoma, for example, noted thac it " shared the widespread interpretation of Part 170 that such fees were l
to be charged only upon successful completion of review."
(Commenter's emphasis.)
In response to these comments the Commission reaffinns at the outset its conclusion that NRC review of a license application constitutes a "special benefit" subject to a fee under the I0AA, whether or not a license issues after completion of the review. The NRC's work in performing these reviews l
1s a service rendered at the request of the applicant. The Commission's fee l
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. guidelines, set out in the 1978 notice promulgating the present fee schedule, made it plain that under the 10AA fees could be assessed to recover the cost of providing such services:
Fees may be assessed to persons who are identifiable recipients of 'special benefits' conferred by speci-fically identified activities of the NRC. The tenn
'special benefits' includes services rendered at the request of a recipient and all services necessary for the issuance of a required permit license, approval, or amendment, or other services necessary to assist a recipient in complying with statutory obligations or obligations under the Commission's regulations."
See the Commission's fee guidelines, 43 FR 7211 (1978).
These guidelines were quoted with approval in Mississippi Power and Light /. NRC, supra.
There is thus no doubt that pursuant to the I0AA and the fee guidelines the Commission has authority to impose a fee to recover the cost of processing a license application that has been withdrawn.
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The notice of final rulemaking also made clear that under the fee schedules effective March 23, 1978, the Commission intended to exert this authority by imposing all fees allowed by the guidelines, barring exceptional circum-stances. The relevant language from the notice is as follows:
These guidelines determine whether or not the Commission may charge a fee for a particular service and what the maximum fee may be.
In keeping with the sense of Congress expressed in the Independent l
Offices Appropriation Act of 1952 that agency activi-ties pe, formed on behalf of persons the agency serves l
"shall be self-sustaining to the full extent possible,"
the Commission is generally obliged to impose the fees l
allowed by these guidelines where it is fair and equitable to do so.
The Commission recognizes that i
7-in exceptional circumstances fairness may require that a fee be set at a level below the cost of rendering the service.
However, the Commission's discretion to reduce fees for certain service categories is limited by the 10AA mandate and by the requirement that a consistent and fundamentally fair fee structure must accord aqual treatment to similarly situated recipients of agency s ervices.
[43 FR 7211 (February 21,1978)].
s Those NRC activities and services which tha Commission did intend to exclude from cost recovery were identified with specificity in the notice. See 43 FR 7212, 7213. None of the services specified as exempt from fees could reaso'nably be interpreted to include review of license applications later withdrawn.
Nor is there any suggestion or reason to believe that the Commission would have regarded it as generally unfair or inequitable to recover the costs of reviewing license applications which turn out to be unsuccessful.
Pather, the notice of final rulemaking stated that "(t) hose regulatory services which provide special benefit to applicants and licensees i nclude:
1.
The processing and reviewing of applications or req'uests for construction permits, operating licenses, manufacturing licenses, materials licenses...." [43 FR 7213 (emphasis added)]. As this language indicates, the notice tied "special benefit" to the processing and reviewing, not necessarily to the issuance of the license itself. Amended language in the fee regulation,10 CFR 170.12(b), confirmed this emphasis on completion of review rather than license issuance as the fee-triggering event:Il 1/
The superseded rule,10 CFR 170.12(b) (1977), had stated:
Fees...are payable when the construction permit manufacturing license operating license is issued.
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- i 10 CFR 170.12(b) License Feg Fees for construction permits, operating licenses, manufacturing licenses, and materials licenses, are payable upon notification by the Commission when the review of the project is completed.
i Finally, the notice of final rulemaking announced a major change in the l
Commission's method of determining fees.
Henceforth facility fees.ere to be l
l based on the Commission's actual " expenditures for professional manpower and appropriate support services required to p;ocess the application or request."
The switch to an actual-cost basis, as distinguished from fixed fees based on the average cost for issuing a particular type of license, n.ade i
l it possible to determine and impose a fee based on the actual cost for any license review, even when, because of withdrawal or some other reason for terminution, the review was completed at an atypical intermediate state short of license issuance.
For the reasons given in the above discussion, the Commission has concluded that the notice of final rulemaking and the language in the final rule itself l
gave fair and adequate notice to license applicants that for applications on file after March 23, 1978 the Commission would charge a fee for withdrawn applications.
The fee would be sufficient to recover the costs the NRC had l
incurred in reviewing those applications, to the extent the costs were not already covered by the application fee.
The commenters' arguments to the contrary place unwarranted emphasis on certain language in 10 CFR 170.12(a),
dealing with application fees, which provides that "(a)ll applic.ation fees will be charged irrespective of the Commission's disposition of the
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application or a withdrawal of the application." The commenters assert that this language, which appeared in the original 1969 proposed fee regulations and remains unchanged in the current version of the regulations, must be taken as the Commission's total and exclusive mechanism for recovering review costs of withdrawn applications.
Yet it is clear that the power reactor construction pennit application fee, presently set at $125,000, falls f ar below the costs which the Commission can incur 19 reviewing an application prior to withdrawal.
It does, of course, guarantee the NRC at least partial cost recovery sho^uld an applicant become insolvent, but one could not reasonably interpret the 10 CFR 170.12(a) provision for retention of this fee as by itself a fulfillment of the Commission's expressed intent in the 1978 regulations to recover to the full extent :liowable the cost of providing special benefits.
The canmenters are correct that prior to adoption of the 1978 rule the Commission's regulations did not paovide for recovery of withdrawn appli-cation costs beyund the amount of the application fee.
Fees in addition to the application fee became payable only "when the construction permit...
is issued." See 10 CFR 170.12(b) (1977). See also the proposed 170.12(b) in l
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The Comaission has incurred costs c 5.1 million dollars in reviewing eight construction permit applicatir that have been withdrawn and billed since March 23, 1978.
The ap,.ication fees received from these applicants total only 3945,000. Other applications have also been withdrawn for which the NRC has not yet completed the billing process.
. the Commission's 1977 notice of propsoed rulemaking, 42 FR 22149, 22162
)
(May 2,1977). The commenters are not justified, however, in concluding that in the 1978 rule the Commission intended to continue this treataent of withdrawn applications.
In addition to changed language in 170.12(b), a clear signal that the practice had changed was the switch in the 1978 final rale to an actual-cost basis for deter.nining fees, which made practical the assessment of fees reflec*;1ng the actual review costs for a withdrawn appli-cation, to be collected "when the review, is completed," 10 CFR 170.12(b)
(1979).E From th1s amended language in 170.12(b), viewed in the context of the overall rulemaking emphasis on cost recovery, it should have been plain that under the new fee schedule an applicant c. ni avoid review cost already incurred by withdrawing th application.
Fees assessed after March 23,1978 for the review of constryc'. ion pennit (CP) or operating license (0L) applica, as, whether withdrawn or resulting in the issuance of a CP or OL, were to be based on the acluct manpower and contractual services costs expenc'ed for the revie:;. The maximum fee for a CP or OL prescribed by regulation is assessed and collected upon issuance of the CP or OL. The actual manpower expended for the review is determined after issuance of the CP or OL and the utility is notified whether or y
The change to an actual cos', 'aasis was not part of the rule proposed in 1977 but was adopted by the Commission in the final rule promulgated in 1978.
Compared to the previces flat fee assessments this change benefits applicants by assuring that the fee for a facility license will not exceed the actual cost of processing f or a fixed fee set out in the schedule, whichever is lower), thereby giving applicants an opportunity to reduce their '! censing costs below the leve.1 of fixed fees.
. not a refund may be due.
If the application is withdrawn, the manpower expended 's detennined af ter the licensing board has dismissed the case (i' a hearing has commenced), and the utility is billed accordingly.
Once an application (CP or OL) ic filed and the staff begins review, the costs associated with the revi'.w are costs that are covered by 1.0.12(b) rather than costs subject to tae scope of 170.12(a).
The revised language of 170.12(b) reflects this change.
The Shaw, Pittman comments cite 10 CFR 170.2f, footnote 4, dealing with early site reviews, as a supposed contradiction to the Commission's position that the 1978 rules impose fees for withdrawn applications.
Footnote 4 provides as follows:
Where a fee has been paid for a facility early site review, the charge will be deducted from the fee for a construction permit issued for that site. A separate charge will not be assessed for a site review where the person requesting the review has an application for c, construction pennit on file for the same site, except where the application is withdrawn by the applicant or' denied by the Commission.
(Commenter's emphasis) l The comment states:
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l Footnote 4 is based on the premise that the fee for a site review will ordinarily be included in the construction permit fee. The final "except" clause is necessary so that the early site review fee can be l
collected separately in the event that the construction permit applica-tion is withdrawn and no construction pennit fee can be charged.
However, if the Commission is correct in its " interpretation" here --
that the current regulations were always intended to require payment of license fees on withdrawn construction permit applications -- then the "except" clause in footnote 4 would be rendered totally meaningless and l
redundant. This is so because the construction permit fee still would be payable despite withdrawal and would include the cost of the NRC review of the site portion of the application.
In short, there would be no need for a special provision to ensure collection of the site review fee upon withdrawal of the construction permit application.
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. The comment is correct that Footnote 4 rests on the premise that the fee for an early site review (ESR) will ordinarily be included in the CP fee, but the comment has misinterpreted the "except where..." clause.
Footnote 4 is intended to cover early site reviews filed under Appendix Q of the regu-lations.
The "exceot" clause is necessary so that the early site review fee can be tallected separately in the event ti at the early site review application ( Appendix Q) is withdrawn, not the OP application.
An applicant might very well withdraw tne ESR Appendix Q appl 1 cation without withdrawing the Part 50 CP application, for example, in a case where the applicant finds a more suitable site for a proposed plant while the ESR for the site initially selected is still in progress.
Thus3 the "except" clause is not meaningless and redundant.
In fact, the language reinforces the Commission's intent to treat withdrawn Appendix Q applications the same as withdrawn CP applications, that is, charge for them if they are withdrawn.
The commenter also suggest; that, if the Commission.can collect a fee for a withdrawn CP application, thes ey a If teral reading of footnote 4 the Commission could collect an illegal double recovery by charging for the ESR as well. The following example of how footnote 4 might work in practice demonstrates that no such double recovery is possible, although technically the Commission could recover a separate early site review fee in addition to a fee for the withdrawn construction permit application.
Collection of separate fees could come aoout as follows:
(1) An Appendix Q application is 6
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. filed and review is started by the Commission, (2) the applicant subsequently files a CP application which incorporates by reference the Appendix Q ESR and review begins on the reactor design, (3) site prcblems develop and the applicant withdraws the Appendix Q application, (4) applicant requests continuation of CP design review while looking for another site, (5) applicant subsequently withdraws the CP application.
Footnote 4 of 170.21 allows the Commission to immediately bill the applicant for the Appendix Q application upon withdrawal despite the fact that there is an active CP application on file and being reviewed. When the CP application is'sub-sequently withdrawn, the Commission could bill for the Office of Nuclear Reactor Regulation (NRR) design review and Office of Inspection and Enforce-ment (IE) quality assurance work that has been completed form the date the application was filed to the date of withdrawal.
There could never be illegal double recovery by the Commission since the fees for both reviews would be based on the, actual manpower expended separately for, (1) the Appen-dix Q review and (2) the CP design work.
One commenter called attention to the express exemption from fees for withdrawal of application for' early site reviews and argued that this exemption militated against charging a fee for a withdrawn application.
It is correct that the Commission authorized an exemption from fees for certain early site reviews requested before March 23, 1978, in order to avoid an i
appearance of retroactively of imposing a fee for a type of review where nct fee had been prescribed by the regulations. This exemption was granted in the March 1978 notice of final rulemaking and is limited to early site l
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.... reviews requested as special projects.
It thus applies only to early site reivews requested under Appendix Q to 10 CFR Part 50, and not to early site reviews conducted as part of a standard construction permit review (see 10 CFR 6 2.101(a-1)).
In sum, the Commission does not find persuasive the commenters' assertions that the fee regulations adopted on March 23, 1978 provide no basis for the Commission to impose fees recovering the costs of processing applications withdrawn since that time. The proposed interpretative rule, 45 FR 74493, does not add substantively to the provisions already in the Commission's regulations.
This being the case, the Commission rejects the commenters' characterization of the proposed rule as "an impermissible retroactive fee assessment" W1ich will irpose " severe hardship on large numbers of appli-cants." The Commission sees no unfairness or " severe hardship" in requiring persons who have requested anc. received NRC review of license applications to pay the costs of that review in accordance with the 10AA, the intent of Congress, and tne intent of the Canmission as expres;ed in the State-ment of Consideration for the final rule and the language of the rule 1
. i tsel f.O Applicants presumably entered into the licensing process pre-pared to pay the costs of review in the expectation that a license would eventually issue.
In claiming " hardship" the commenters have not demon-strated that applicants' decisions to seek licenses or to put off with-drawing applications already before the Commission have in fact hinged on any reasonable belief that review costs would be picked up by the NRC whenever the applicant should choose to declare the quest for a license abandoned. The Commission rejects these ganeral contentions of " hardship" and concludes that there is no unfairness in imposing fees for withdrawn applications in the manner described by the proposed interpretative rule.
Pursuant to Title V of the Independent Offices Appropriation Act of 1952(31 U.S.C. 4Ca), the Atomic Energy Act of 1954, as amended, and Sections 552 and
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553 of Title 5 of the United States Code, notice is hereby given that the l
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Although the interpretative rule is not " retroactive," as the com-menters have characterized it, if it were the Commission would find ample legal authority for imposing such a ruit.
In SEC v. Chenery Corp., 332 U.S. 194 (1974), cited by the Commenters, for example, the i
Supreme Court held that retroactive rulemaking was not per se, forbidden and that " retroactivity must be balanced against the mischief of pro-ducing a result which is contrary to statutory design or to legal and equitable principles." The commenters, referring to Chenery, see no l
" mischief" in applying the Commission's interpretative rule prospec-l tively only, but the Commission would regard it a substantial mischief unnecessarily to impose on tne public treasury costs of more than six million dollars incurred by the government in performing services at the request of private beneficiaries.(see footnote 2 above), albeit the requesters have now changed their minds about wanting those services, especially where Congress has made plain its intention that such costs should be recovered.
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. following amendments to Part 170, Title 10, Chapter 1, Code of Federal Regulations, are adopted subject to codificatior..
1.
The authority citation for Part 170 reads as follows:
Authority:
Sec. 501, 65 Sta. 290; 31 U.S.C. 483a. Sec. 201(b),
Pub. L.93-438, 88 Stat.1243 (42 U.S.C. 5841).
2'.
Paragraphs 170.12(b), (e), and (f) of 10 CFR 170.12'are amended to read as follows:
5 170.12 Payment of fees.
(b)
License fees.
Fees for review of applications for construction permits, operating licenses, manufacturing licenses, and materials licenses, are payable upon notification by the Commissier when the review of the project is completed.
For the purposes of this Part the review of a project is completed when a permit or license is issued, or an application for a permit or license is denied, withdraw, suspended, or action on the application is postponed.
. (e)
Approval Fees.
Fees for review of applications for spent fuel cask and shipping container approvals, standardized spent fuel facility design approvals, and construction approvals are payable upon notification by the Commission when the review of the project is completed.
For the purposes of this Part the review of a project is completed when the approval is issued, or the application for an approval is denied, withdrawn, suspended, or action on the application is postponed.
Fees for facility reference standardized design approvals will be paid in five (5) installments based on payment of 20 percent of the approval fee (see footnote 3 6 170.21) as each of the first five (5) units of the approved design are referenced in an application (s) filed by a utility or utilities.
In the event the standardized design approval application is denied, withdrawn, suspended, or action on the application is postponed, fees will be collected when the review is completed and the five (5) installment payment procedure will not apply.
( f)
Special Project Fees.
Fees for review of special projects are payable upon notification by the Commission when the review of the project is completed.
For the purposes of this Part the review of the project is completed upon notification by the staff that it has finished its review, upon withdrawal of the request, or suspension or postponement of further revi3w.
. 2.
A new paragraph is added to 9 170.12 of Part 170 to read as follows:
(i) this section applies to all applications for licenses, permits approvals or requests for review of special projects on file with the Commission on or after March 23, 1978.
Samuel Chilk Secretary of the Commission Dated day of
, 1981 Washington, D.C.
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Dear Mr. Chainnan:
The Commission is revising its regulations in 10 CFR Part 170, Fees for Facilities and Materials Licenses and Other Regulatory Services Under the Atomic Energy Act of 1954, as amended.
The revisions in the rule on fees clarifies that charges will be assessed for review when review of an application is completed, whether by issuance of a permit, license, or other approval, or by denial or withdrawal of an application or by any other event that brings active Commission review of the application to an end. The changes are interpretative only.
The revisions are set forth in the enclosed Notice of Rulemaking which we are transmitting to the Federal Register.
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Sincerely, 1
l Daniel J. Donoghue, Director Office of Administration
Enclosure:
Notice of Rulemaking l
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RULEMAKING ISSUEEG-81-494 Aucust 13, 1981 (Affirmation)
For:
The Commissioners From:
William J. Dircks Executive Director for Operations
Subject:
INTEGRATED OPERATIONAL EXPERIENCE REPORTING SYSTEM
Purpose:
This paper seeks Commission approval of a Federal Register Advanced Notice of Proposed Rulemaking (Enclosure 1). The notice informs the public that the staff will:
(1) Defer rulemaking that would establish the Integrated Operational Experience Reporting System (10ERS);
(2) Develop for Commission review and approval a proposed rule to modify and codify the existing Licensee Event Report (LER) reporting requirements and to ass"re consistency with 10 CFR 50.72 which covers the immediate reporting of significant events; (3) Endorse the Institute of Nuclear Power Operations (INP0) plan to assume responsibility for the management, funding, and technical direction of the -
Nuclear Plant Reliability Data System (NDRDS); and (4) Encourage INP0 to assure that the NPRDS receives, processes, and disseminates the reliability data needed by industry and the NRC to support probabilistic risk and reliability assessment programs.
Issue:
Whether management of NPRDS by INP0 will produce the changes needed to make NPRDS an adequate source of reliability data for the NRC prcbabilistic risk and reliability asses.Jent program.
CONTACT:
Frederick J. Hebdon, AECD 492 4730 h2 81M110483
Background:
In December 1980 the Commission agreed that the reporting of operational experience data needed major revision and approved the development of the 10ER System. The 10ER System would combine, modify, and make mandatory the existing Licensee Event Report system and the NPRD System.
SECY 80-507 discusses the IOER System and relevant facts concerning the reporting of operational data.
As a result of the Commission approval of the concept of an 10ER System, an Advanced Notice of Proposed Rulemaking ( ANPRM) was published in the Federal Register on Janua:y 15,1981 (46 FR 3541). That ANPRM explained why the NRC needed operational experience data, and described the deficiencies in the existing LER and NPRD systems.
To facilitate the development of the 10ERS proposed rule and supporting documents, including the Statement of Consideration, Regulatory Guide, Value-Impact Assessment, and Federal Register Notice, the staff formed a Task Group which included representatives from AE00, RES, NRR, IE, and ELD.
Based on its understanding of the needs of the various offices, the Task Group prepared a draft proposed rule which has been reviewed by involved NRC offices.
Discussion:
The accident at TMI focused attention on the importance of an effective understanding and feedback of operating experience.
Studies of the TMI accident (e.g., Rogovin, Kemeny) emphasized the importance of collecting and evaluating operational experience.
In addition, other studies, particularly a study by the ACRS (NUREG-0572, Review of Licensee Event Reports), identified weaknesses in the existing program and recommended corrective actions.
Ac.cordingly, the staff considered a number of options for obtaining the needed improvements in the reporting of operational experience data, particularly the reporting of reliability data.
For example, in June 1980 the staff explored the possibility of INP0 assuming responsibility for the management and technical direction of NPRDS.
Although INP0 appeared interested in this option, they indicated an inability to assume l
I
. responsibility for this activity or predict when it might be possible because INP0 was still in the process of being established and staffed.
Based on its assessment of the available options, the staff concluded that the only viable option that would bring about the required and timely improvements in the receipt of operational data was the development of 10ERS.
Thus, the 10ERS concept included two principal features:
(1) the collection of detailed technical descriptions of significant events; and (2) the collection of component reliability data.
While we still believe that both types of data are essential to the NRC mission, recent events indicate that the NRC may now be able to obtain the needed reliability data without assuming direct responsibility for its collection.
On June 8,1981 the INP0 Board of Directors decided that because of its role as an active user of NPRDS data (Enclosure 2), INP0 will assume responsibility for management and funding of NPRDS.
Further, INP0 has developed criteria that will be used in their management audits of member utilities to assess the adequacy of NPRDS participation.
The two principal deficiencies that had previously made NPRDS an inadequate source of reliability data were the inability of a committee management structure to provide the necessary technical direction; and a low level of participation by utilities.
The recent commitments and action by INP0 provide a basis for confidence that these two deficiencies will be corrected. For example, centralizing the management and funding of NPRDS within INP0 should overcome the previous difficulties associated with management by a committee and funding from several independent organizations. Further, with INP0 focusing upon a utility's participation in NPRDS as a specific evaluation parameter during routine management and plant audit activities, the level of utility participation, and therefore, the quality and quantity of NPRDS data, should significantly increase.
Finally, the NRC staff will continue to have an active role in the development of an effective NPRDS by participating in a planned NPRDS
. Advisory Committee, by periodically assessing the quality and quantity of information produced by NPRDS, and by assuring the availability of the information to the NRC staff in a timely manner. Therefore, rather than pre-empt the INP0 activities by proceeding with the 10ERS rulemaking, the staff believes it is appropriate at this time to proceed only to modify and codify the existing LER reporting requirements as a separate rulemaking and to hold the 10ERS rulemaking in abeyance.
The troubled history of the NPRDS makes the staff cautious; problems will not be resolved simply by having INP0 take over direction of the NPRDS.
Nevertheless, the people at INP0 and the cognizant NRC staff are well aware of the problems and are prepared to work together promptly to assure successful redirection of NPRDS.
If in the future, however, it becomes clear that the essential NRC needs for reliability data are not forthcoming from NPRDS, the staff would provide specific recommendations at that time. These recommendations could include resumption of the 10ERS rulemaking to make the reporting of reliability data mandatory.
In summary, since there is a reasonable likelihood that NPRDS under INP0 direction can meet the NRC's need for reliability data in the future, there is no longer a need to proceed with the 10ERS in order to collect reliability data. Consequently, the collection of detailed technical descriptions of significant events can proceed as a separate l
rulemaking to modify and codify the existing LER reporting requirements and to assure consistency with 10 CFR 50.72 covering the immediate notification of significant events.
l This rulemaking will draw heavily on the work already j
done by the 10ERS Task Group that had been preparing l
the 10ERS proposed rule.
Recommendations:
That the Commission:
(1) Approve the Federal Register Notice (Enclosure 1),
associated Congressional letters (Enclosure 3),
j and press release (Enclosure 4).
The notice endorses staff actions that will:
l (a) Defer rulemaking that would establish the Integrated Operational Experience Reporting System;
. (b) Develop for Commission review and approval a proposed rule to modify and codify the e' isting LER reporting requirements; (c) Endorse INP0 plans io assume responsibility for the management, funding, and technical direction of NPRDS; and (d) Encourage INP0 to assure that NPROS receives, processes, and disseminates the reliability data needed to support prot,abilistic risk and reliability assessment programs.
(2) Note that upon approval by the Commission of t a recommendations:
(a) The staff will develop for Commission review and approval a proposed rule that will modify and codify the existing LER reporting requirements.
The staff estimates a ; raft proposed rule can be developed two months after Commission approval.
Allowing three months for office level review and ACRS review, we expect to forward the propo nd rule to the Commission by approximately February 1,1982.
(b) Following Commission approval and an appropriate public comment period on the proposed rule, a final rule will be prepared and forwerded to the Commission for review and approval. Submission of the final rule to the Commission is planned for eight months after issuance of the proposed rul e.
(c) Prior to forwarding the final rule to the Commission, the staff will obtain OMB approval for the revised reporting requirements.
(d) The staff will assist INP0 in the development of an effective NPRD System by participating in a planned NPRDS Advisory Committee.
(e) The staff will notify all affected licensees and interested parties of publication of the ANPRM.
(f) Anticipated staff resources required to develop a proposed rule covering revised LER requirements.
One staf? fear in-house (dedicated persons frem AE30, RES, and NRR).
. Six months elapsed time.
No program suppo: t funds.
Although licensee input will be sought during the preparation of the proposed rule, the extr,1t of licensee resource commitment during this first stage will be small and strictiv volu',tary.
Later, if the NRC proceeds past the proposed rule, resource commitments by the NRC and the licensee will not be voluntary.
It is proposed that these resources be no higher than are presently being comitted by licensees and the NRC to the existing LER system. A discussion of resources needs will accompany the proposed rLle when it is submitted to the Commission for approval.
Sunshine Act:
Recommend affirmation at an open meeting.
William J. Dircks Executive Director for Operations
Enclosures:
1.
Proposed Federal Register Hotice 2.
INP0 Letter 3.
Draft Congressional Letter 4.
Draft Public Announcement Comissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Thursday, September 3, 1981.
Commission Staff Jffice comments, if any, should be submitted to the Commissioners NLT August 27, 1981, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and coment, the Commissioners and the Secretariat should be apprised of when coments may be expected.
This paper is t:ntatively scheduled for affirmation at a closed meeting during the week of September 7,1981.
Please refer to the appropriate Weekly Comission Schedule, when published, for a specific date and time.
DISTRIBUTION Commissioners Commission Staff Offices Exec Dir for Operations Exec Legal Director ACRS ASLBP
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i ENCLOSURE 1 3
NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 l
Integrated Operational Experience. Reporting System 4
AGENCY:
Nuclear Reguiatory Commission.
ACTION:
Advance Notice of Proposed Rulemaking
SUMMARY
Because the Institute for Nuclear Power Operations (INP0) will assume responsibility for management of the Nuclear Plant Reliability Data System (NPRDS), the NRC has decided to defer rulemaking that would have established the Integrated Operational Experience Reporting System (10EP.S).
- Instead, the Commission will develop a proposed rule to modify and codify the existing Licensee Event Report (LER) reporting requirements and to assure consistency of those requirements with Commission regulations covering the immediate reporting of significant events. The NRC is seeking general comments on the scope and content of LER reporting requirements, particularly in light of anticipated imoravements in the NPRDS.
DATES:
Comments received after (45 days after publication in the Federal Regis_ter) will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments filed on or before (45 days after publication in the Federal Register).
ADDRESS:
General comments may be sent to:
Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
ATTN:
Docketing and Services Branch.
FOR FURTHER INFORMATION CONTACT: Frederick J. Hebdon (301/492-4730)
. c SUPPLEMENTARY INFORMATION:
Background
In December 1980 the Commission agreed that the reporting of operational experience data needed major revision and approved the development of the 10ER System. The 10ER Rystem would have combined, modified, and made mandatory 1/
the existing Licensee Event Report system and the NPRD System.
SECY 80-507-discusses the 10ER System and relevant facts concerning the reporting of operational data.
As a result of the Commission approval of the concept of an 10ER System, an Advanced Notice of Proposed Rulemaking (ANPRM) was published in the FEDERAL 1/
REGISTER on Januar) 15,1981 (46 FR 3541).- That ANPRM explained why the NRC needed operctional experience data, and described the deficiencies in the existing LER and NPRD systems.
Discussion The accident at TMI focused attention on the importance of an effective understancing and feedback of operating experience.
Studies of the TMI accident (e.g., Rogovin, Kemeny) emphasized the importance of collecting and evaluating (parational experience.
In addition, other studies, particularly 1/
a study by the ACRS (NUREG-0572, Review of Licensee Event Reports),- identified weaknesses in the existing program and recommended corrective actions.
Accordingly, the Commission considered a number of options for obtaining the needed improvements in the reporting of operational experience data, particularly the reporting of reliability data. For example, in June 1980 the Commission's staff 1/
Copies are available for public inspection and copying at the NRC Public Document Room at 1717 H Street, NW, Washington, DC 20555.
explored the possibility of INP0 assuming responsibility for the management and technical direction of NPROS.
Although INP0 appeared interested in this option, they indicated an inability to assume responsibility for this activity or predict when it might be possible because INPO was still in the process of being established and staffed. Based on its assessment of the available options, it was concluded that the only viable 7tior, that would bring about the required and timely improvements in the receipt of operational data was the development of 10ERS.
Thus, the 10ERS concept included two principal features: (1) the collection of detailed technical descriptions of significant events; and (2) the collection of component reliability data.
While the Commission still believes that both types of data are essential to the NRC mission, recent events indicate that the NRC may now be able to obtain the needed reliability data without assuming direct responsibility for its collection.
On June 8,1981 the INP0 Board of Directors decided that because of its role as an active user of NPROS data, INP0 will assume responsibility for management and funding of NPROS.
Further, INP0 has developed criteria that will be used in their management audits of member utfif ties to assess the adequacy of NPRDS participation.
The two principal deficiencies that had previously made NPRDS an inadequate source of reliability data were the inability of a committee management structure to provide the necessary technical direction and a low level of participation by utilities.
. The recent commitments and action by INFO provide a basis for confidence that these two deficiencies will be corrected.
For example, centralizing the management and funding of NPRDS within INP0 should overcome the pre-40us difficulties associated with managemert by a committee and funding from several independent organizations. Furtt.er, with INP0 focusing upon a utility's participation in NPRDS as a specific evaluatic.. parameter during routine management and plant audit cc:.ivities, the lavel of utility participation, and therefore, the quality and quantity of NPRDS data, should significantly increase.
Finally, the Commission will continue to have an active role in the development of an effective NPRDS by participating in a planned NPRDS Advisory Committee, by periodically assessing the quality and quantity of in. )rmation produced by NPRDS, and by assuring the availability of the information to the Commission in a timely manner. Therefore, rather than pre-empt the INP0 activities by proceeding with the 10ERS rulemaking, the Commission believes it is apprcpriate at this time to proceed only to. modify and codify the existing LER reporting requirements as a separate rulemaking and to hold the ICERS rulemaking in abeyance.
If in the future it becomes clear that the essential NRC needs for reliability data are not forthcoming from NPRDS, it would consider specific alternatives at that time. These recommendations could include resumption of the 10ERS rulemaking to make the reporting of reliability data mandatory.
In summary, since there is a reasonable likelihood that NPRDS under INP0 direction can meet the NRC's need for reliability data in the future, there is no longer a need to proceed with the 10ERS in order to collect reliability
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data. Consequently, the collection of detailed technical descriptions of significant events can proceed as a separate rulemaking to modify and codify the existing LER reporting requirements-2/
and to assure consistency with 10 CFR 50.72 which covers the immediate reporting of significant events.
i Dated at Nashington, D. C., this day of 1981.
j FOR THE U. S. NUCLEAR REGULATORY COMMISSION 1
Samuel J. Chilk Secretary of the Commission 1
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j Described in NRC Regulatory Guide 1.16, " Reporting of Operating Information --
Appendix A Technical Specifications,".and NUREG-0161, " Instructions for Preparing Licensee Event Reports," available frcm the U.S. Nuclear Regulatory Commission, Washington, DC 20555.
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Operations 1820 Water Plaen Atlanta Georgia 30339 Telephone 404 953-3600 July 9,1981 Mr. William J. Dircks Executive Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555
Dear Bill:
This letter will confirm the telephone conversations of July 6,1981, and July 8,1981, between Bob Haueter of our staff r.nd Jack Heltemes o' your AEOD staff.
There is increasing concern within the nuclear utility industry that NPRDS, which is a valuable safety and reliability tool, is not being fully utilized in supporting operational excellence.
There is also a recognition that data reporting to NPRDS needs improvement.
Accordingly, the industry has requested INPO to take over management and funding of NPRDS.
At the July 8,1981, INPO Board Meeting, this concept was concurred in by the Board of Directors to become effective January 1,1982.
It i:: planned that partial funding through the current eel and APPA methods continue through 1982 to allow for a smooth transition.
It was decided, however, to not request further funding from the NRC beyond 1981.
INPO is committed to becoming an active user of NPRDS data and to enhancing reporting and usage by the industry through our analysis program and through our plant evaluation activities.
INPO is also committed to providing to all segments of the nuclear power industry, including the NRC, a user-oriented information system on the per-formance of safety-related components and systems in nuclear power plants.
We plan to establish an advisory committee on NPRDS which will include the same organizations currently represented on the ANS. 58-20 Subcommittee, which includes the NRC.
For the near term, we would expect to ask the current ANS. 58-20 Subcommittee members to fulfill that role.
Data and reports from the NPRDS data base will continue to be made available to the NRC and we would recommend that coordination between NRC and INPO be accomplished under the Memorandum of Agreement and the planned periodic meetings with AEOD.
We will be prepared to discuss this matter further at our next scheduled meeting here at INPO on July 21, 1981.
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" Mr. William J. Dircks July 9,1981 Page 2
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The meaningful use of plant event data to enhance overall safety and reliability of the nuclear power plants is a goal we all share.
It is our hope i
that you will assist us in making NPRDS into the important tool that it was designed to-be and is capable of becoming.
Sirmerely, j
E. P. Wilkinson President adw 4
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ENCLOSURE 3 i
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The Honorat.e Alan Simpson, Chairman Subcommittee on Nuclear Regulation Committee on Environment and Pub'ic Works United States Senate Washington, D. C.
20510 i
Dear Mr. Chairman:
l Enclosed for your information are copies of an Advance Notice of Proposed Rulemaking to be published in the Federal Register.
This Advance Notice of Proposed Rulemaking is being issued to inform the public of ar.d 'co seek comments concerning the Commission's intention to:
(1) Dt'ar rulemaking that would establish the Integrated Operat:on&1 Experience Reporting System (IOERS);
4 (2) Develop for Commission review and approval a proposed rule to modify and codify the existing Licensee Event Report (LER) reporting requirements end to assure consistency with 10 CFR 50.72 which covers the immediate reporting of s!;nificant events; i
(3) Endorse the Institute of Nuclear Power Operations (INPO) plan to assume responsibility for the management, funding, and technical direction of i
tne Nuclear Plant Reliability Data System (NPRDS); and i
(4) Encourage INP0 to assure that the NPRDS receives, processes, and disseminates the reliability data needed by industry and the NRC to support probabilistic risk and reliability assessment programs.
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. Enclosed alse is a copy of the public announcement to be released by the Comission on this matter in the next few days.
Sincerely, Carlyle Michelson, Director Analysis and Evaluation of Operational Data
Enclosures:
As stated cc:
Sen. Gary Hart Identical letters sent to Udall/0ttinger/Moffett l
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1 ENCLOSURE 4 l
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4 NRC DEFERS RUlr (ING ON DEVELOPMENT OF MANDATORY SYSTEM TO COLLECT u-cRATIONAL DATA FROM NUCLEAR POWER PLANTS The Nuclear Regulatory Commission is deferring a prooosed rulemaking action which would Fave required utilities licensed to operate nuclear power plants to submit data to an Integrated Operational Experience Reporting (10ER)
System.
The system, proposed in January of this year, would have combined the NRC';
reporting system -- Licensee Evert Reports -- and th? utility industry's system -- the Nuclear Plant Reliability Data System (NPRDS) -- into a single mandtP.ory reporting system.
Currently, NPRDS is a voluntary program for reporting data on the reliability of specified safety-related systems and components.
It is operated by Southwest Research Institute of San Antonio, Texas, and funded jointly by the NRC and the nuclear industry.
I Prior to proposing the rulemaking in January, the NRC staff had identified two i
principal shortcomings in NPRDS -- utilities interoreting the reportable data differently and low level participation by the utnities.
Recent events now indicate that the NRC may be able to obtain the needeo reliability data without assuming direct responsibility for its collection.
The industry's Institute of Nuclear Power Operations (IMP 0), in Atlanta, Georgia, has decided to assume responsibility for managing and funding NPRDS.
INP0 has also developed criteria for assessing the adequacy of utility participation in the reporting system.
The Commission has decided at this time to proceed only with the development of a proposed rule that will modify and cocify existing LER requirements for nuclear power plant operators.
If it becomes clear, in the future, that NRC needs for reliability data are not being met by NPRDS, the Commission will consider specific alternatives, including resumption of rulemaking for the 10ER System, i
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Attached are the PDR copies of a Commission meeting transcript /s/ and related meeting document /s/.
They are being forwarded for entry on the Daily Accession P
List and placement in the Public Document Room.
No other cistribution is requested or required.
Existing b
DCS identification numbers are listed on the individual documents wherever possible.
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Transcript of:
Affirmation / Discussion Session 81-33, September 10, 1981.
(1 copy)
SECY-81-49'4 -- Rulemaking Issue paper dated a.
9 Aug. 18.81, Subj:
Integrated Operational 9
Experience Reporting Syste1 (1 copy) b.
SECY-81-502 -- Rulemaking Issue paper dated Aug. 20. 81, Subj:
Fees for Withdrawn Applications for Power Reactor Construction Permits, Operating License, and Other Approvals or Reviews.
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