ML20057D163
| ML20057D163 | |
| Person / Time | |
|---|---|
| Issue date: | 09/23/1993 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML20057D145 | List: |
| References | |
| FRN-58FR21662, FRN-58FR50859, RULE-PR-171 AE83-1-002, AE83-1-2, PR-930923, NUDOCS 9310010202 | |
| Download: ML20057D163 (16) | |
Text
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- 7590-01-P]
s NUCLEAR REGULATORY COMMISSION 10 CFR Part 171 RIN 3150-AE83 Restoration of the Generic Exemption from Annual Fees for Nonprofit Educational Institutions AGENCY:
Nuclear Regulatory Commission.
ACTION:
Proposed rule.
SUMMARY
On July 20, 1993, the Nuclear Regulatory Commission
("NRC" or " Commission") published a final rule establishing annual fee schedules for its licensees for fiscal year 1993.
The final rule eliminated a generic exemp'cion from annual fees previously applicable to nonprofit educational institutions (educational exemption).
Following publication of this rule, the Commission received a petition for reconsideration requesting reinstatement of the educational exemption.
The Commission views the petition as a request to conduct a new rulemaking to amend the final rule by restoring the exemption.
The Commission grants the request for a new rulemaking.
The new rulemaking reconsiders whether nonprofit educational institutions should receive a generic exemption from annual fees.
The Commission requests public comment on that question.
The rulemaking proceeding will address no other annual fee question.
9310010202 930923 PDR COMMS NRCC CORRESPONDENCE PDR
l t
2 DATE:
Comment period expires-(30 days after publication).
Comments received after this date will be considered if it is practical to do so, but the Commission is able to assure consideration only for comments received.on or before this date.
ADDRESSES:
Submit written comments to:
Secretary, U.S.
j Nuclear Regulatory Commission, Washington, DC'20555, Attn:
Docketing and Service Branch.
Deliver comments to:
11555 Rockville Pike, Rockville, Maryland 20852, between 7:45 am and 4:15 pm Federal workdays.
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(Telephone 301-504-1966.)
Copies of comments received may be examined and copied for a e
fee at the NRC Public Document Room, 2120 L Street NW, (Lower Level) Washington, DC 20555.
FOR FURTHER INFORMATION CONTACT:
L. Michael Rafky, Office of the General Counsel, U.S.
Nuclear Regu'; tory Commission, Washington, DC 20555, telephone 301-504-1606.
SUPPLEMENTARY INFORMATION:
I.
Background.
II.
Section-by-section analysis.
III. Environmental impact:
categorical exclusion.
IV.
Paperwork reduction act statement.
V.
Regulatory analysis.
VI.
Regulatory flexibility analysis.
VII. Backfit analysis.
3 I.
Background
On July 20, 1993 the Commission published its final annual fee rule for FY 1993 (58 FR 38666).
The final rule principally
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set out the Commission's fee schedules for FY 1993, but it also l
discussed in some detail the 3-2 Commission decision to revoke a i
generic exemption previously applicable to nonprofit educational institutions.
A court of appeals decision, issued in March 1993, had necessitated the Commission's rethinking of the educational' exemption.
See Allied-Sianal, Inc.
v.
NRC, 988 F.2d 146 (D.C.
Cir. 1993).
That decision cast doubt on the NRC's stated rationale -- which included a purported inability to " pass through" costs -- for exempting nonprofit educational institutions from annual fees.
1 In reaction to the court decision, the Commission initially proposed to retain the educational exemption, but with a fresh rationale.
In its proposed FY 1993 annual fee rule, the Commission requested comments on retaining the exemption, and asked specifically for comments on the court's suggestion that i
perhaps the exemption could be justified if " education yields exceptionally large externalized benefits that cannot be captured in tuition or other market prices."
988 F.2d at 151.
The commission also requested comments on whether the exemption should be revoked.
Following the close of the comment period, the Commission faced a dilemma.
It remained committed to the value of nuclear education and related research as a policy matter, but it had w +
^-
4 received only a few comments, and cursory ones at that, supporting a continued generic exemption.
Additionally, some NRC licensees had submitted comments requesting abandonment of the
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exemption altogether or a more equitable spread of its costs to all licensees.
Still other commenters urged that the exemption be retained, but that it be expanded to include various other licensed activities.
After considering the material before it, a split Commission, by a 3-2 vote, "reluc'tantly concluded that in view of the court decision and the administrative record developed during i
the comment period it cannot justify a generic ' educational' exemption for FY 1993" (58 FR 38668-69).
Therefore, the Commission informed formerly exempt nonprofit educational 4
institutions that they would have to pay annual fees beginning in t
FY 1993.
The Commission did point out that many of these l
institutions might be able to make individualized showings of f
financial hardship and externalized benefits sufficient to
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justify a "public interest" exemption under 10 CFR 171.11(b)
(58 FR 38669).
The two dissenting Commissioners took the view that the Commission should continue in force the generic j
educational exemption (58 FR 36875).
Almost immediately the Commission began receiving letters from many colleges and universities protesting the change in its-longstanding policy.
Many of these letters were sent as comments regarding the Commission's concurrent fee policy study now being conducted as required by the Energy Policy Act of 1992 (58 FR 21116).
In these letters and comments (available in the NRC l
W 1
5 l
Public Document Room ("PDR")), educational institutions described the " externalized benefits" derived from their programs and the problems created by the new annual fees, including the prospect i
of major cutbacks in nuclear education.
Some licensees also pointed out that their programs were already heavily subsidized by the Federal governnent (in particular by the Department of Energy), precisely because the programs were not sustainable absent public rector support.
The Commis on also received'a formal petition for reconsideration of the FY 1993 final rule with the aim of restoring the nonprofit educational exemption.
See Petition for Reconsideration of Final Rule (July 30, 1993).'In this petition for reconsideration (which is being published as an appendix to this proposed rule), a number of formerly exempt colleges and universities asserted with some specificity a number of benefits that educational institution research reactors provide to both the nuclear industry and the public at large.
Prominent was the continued training of nuclear scientists and engineers (Petition at 3-4).
The petitioners also stated that nuclear technology was used in fields as varied as medicine, geology, archaeology, food science and textiles and that the public additionally benefitted from people who could provide knowledgeable opinions on nuclear topics, as well as from tours of research reactors (Petition at 4-5).
The petitioners went on to argue that education provides significant " externalized benefits" warranting public subsidy.
i They cited a letter from economist Alfred Kahn (also available in
)
)
6 the attached appendix) stating that the knowledge eren.ted by university-related research is itself a public grod chat cannot be quantified using market indices (Petition at 6-7).
Mr. Kahn's letter argues that it is " inefficient" and "so;ially and econonically undesirable" to charge people fo; access to pure knowledge, because the benefits of that know!. edge "are largely unpredictable."
Letter from Alfred Kahn to Thirley Egan, Associate University Counsel, Cornell Univer:sity (July 15, 1993).
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The petitioners also stressed the harm r.o university nuclear programs as a result of the newly imposed an1ual fees (Petition at 8-9).
Using Cornell University's nuclear program as an example, they asserted that Federal grants (il addition to those already provided) might be necessary to meet ':he additional costs of NRC annual fees (Petition at 9-10).
Final.y, the petitioners
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argued that the Commission's longstanding exe3ption for nonprofit educational institutions was rooted in sound aolicy, and that reinstating the exemption would be consistent with the already extensive direct Federal funding provided man) college and university licensees (Petition at 12-13).
In August, while the petition for reconsiceration was under consideration, the Commission undertook an effo.*t of its own to develop guidance for considering individual "public interest" exemption requests by colleges and universities.
As part of this effort, the NRC staff visited a number of colleget and universities to learn more about their educational activities and the benefits of non power reactors and the use of niclear materials in education programs.
The Commission cor. luded that i
t
b the new annual fees ($62,100 for each research reactor license; lesser amounts for each materials license) would jeopardize the educational and related research benefits provided by a number of colleges and universities.
As a result of the new and more detailed information and arguments developed in the petition for reconsideration and in the other sources described above, and after careful reflection, the Commission now is inclined to return to its previous practice of exempting nonprofit educationa'l institutions from annual fees.
The Commission therefore grants the petition for reconsideration of the FY 1993 final rule and now proposes to exempt nonprofit educational institutions from annual fees.
The Commission does not intend to create any other generic exemption categories in this rulemaking.
The Commission does not propose lightly this further shift in a policy that has already gone through a major change in a short time.
The Commission was sharply divided from the outset on the wisdom of eliminating the generic educational exemption.
New information and fresh thinking have persuaded the entire Commission that restoration of the exemption reflects a sound policy choice that avoids placing in jeopardy valuable i
j educational resources that are indispensable to the nuclear industry, to numerous other educational activities, to the NRC itself and to the public at large.
The Commission solicits public comment on its proposed rule that would restore the exemption.
Comments on other annual fee issues will not be entertained in connection with this proposed l
8 rule.
The Commission already has received some information on the " externalized benefits" of non-power reactors and the use of licensed nuclear materials in various educational activities and-1 related research at colleges and universities.
However, the Commission is interested in more data on the benefits of non-power reactors and the use of licensed nuclear materials in l
education in its broadest sense, in the expectation that more data may well substantiate the argument in the petition for reconsideration that non-power reactors and the use of licensed nuclear materials in educational activities are prime examples of f
activities that provide " externalized benefits" warranting public support.
The Commission expects commenters to address the
" externalized benefits" question by providing data on (but not limited to) the size and subject areas of classes using licensed i
material in studies or research, the number of faculty and students using licensed material in their studies or research, the type and availability of work for graduates of nuclear programs and other programs in which licensed nuclear materials are used, and the relation between education and research in institutions of higher learning.
The Commission has particular interest in comments on the extent to which the benefits of nuclear education and other programs using licensed nuclear materials (not simply education in general) are " externalized" and would not be produced by market forces.
The Commission would appreciate detailed information on the many non-nuclear fields of study that use licensed nuclear material in the course of i
l
9 educating their students.
The Commission has received some e
information in letters addressing the fee policy study required by the Energy Policy Act of 1992 described above, but more data is needed for the Commission's deliberations.
I I
This notice, of course, does not represent a final Commission decision to reinstate the educational exemption, but simply the Commission's proposed resolution of the question based on its current best information and best thinking.
But, with the Commission proposing to restore a generic exemption, it is not necessary for formerly exempted educational licensees to apply for individual public interest exemptions.
Therefore, the Commission requests nonprofit educational licenseea not to seek such exemptions at this time.
If after reconsideration, the Commission decides that it cannot justify a generic exemption it will provide educational licensees ample time to seek individual exemptions.
The Commission will hold in abeyance all individual I
exemption requests it already has received from educational i
1 licensees.
1 The issue of refunds to nonprofit educational licensees who may have paid the FY 1993 annual fee will be addressed, if applicable, in the final rule.
Nonprofit educational licensees
)
who have requested termination, downgrade, possession-only or combined licenses to avoid the FY 1993 annual fee will be advised accordingly what action, if any, is needed if they choose to rescind those applications as a result of this proposed rulemaking.
r
10 There is one final point warranting clarification.
The FY 1993 final rule eliminating the educational exemption indicated that, because of the remand from the court of appeals, the Commission would issue new fee schedules retracting the i
exemption for FY 1991-92 and offer appropriate refunds.
The Commission now proposes not to issue revised fee schedules reflecting retraction of the educational exemption because of-its inclination to restore the exemption.
Commenters, if they choose, may address this point.
As the final rule made clear (58 FR 38669), the Commission did not intend retroactively to charge fees to nonprofit educational institutions for FYs 1991-92, but did intend to make refunds to those licensees (power reactors) that made up the shortfall in 100 percent fee recovery created by the educational j
exemption.
Should the Commission restore the exemption, however, l
no new fee schedule for FYs 1991-92 will be necessary and no refunds will be made.
On the other hand, because of the timing i
of this reconsideration proceeding and if the Commission l
1 reinstates the educational exemption, no licensee will be j
assessed additional fees to make up any shortfall created for FY 1993.
For future fiscal years, however, the Commission will recover from other licensees the shortfall resulting from the educational exemption, pursuant to its current statutory mandate to recover 100 percent of its budget.
I j
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ry-- -
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m
L 11 II.
Section-by-Section Analysis t
Section 171.11 Exemptions Paragraph (a) of this section is amended by adding nonprofit educational institutions, as defined in S 171.5, to the list of those entities exempted from annual fees by the Commission.
A discussion of this change in fee policy is found in Section I of this proposed rule.
III.
Environmental Impact: Categorical Exclusion The NRC has determined that this proposed rule is the type of action described in categorical exclusion 10 CFR 51.22 (c) (1).
Therefore, neither an environmental assessment nor an environmental impact statement has been prepared for the proposed regulation.
1 IV.
Paperwork Reduction Act Statement
)
This proposed rule contains no information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.).
V.
Regulatory Analysis With respect to 10 CFR Part 171, on November 5, 1990, the Congress passed Public Law 101-508, the Omnibus Budget
t 12 Reconciliation Act of 1990 (OBRA-90).
For FYs 1991 through 1995, OBRA-90 requires that approximately 100 percent of the NRC budget authority be recovered through the assessment of fees.
To accomplish this statutory requirement, on July 20, 1993 (58 FR 38666), the NRC, in accordance with 5 171.13, published in the Federal Reaister the final amount of the FY 1993 annual fees for operating reactor licensees, fuel cycle licensees, materials licensees, and holders of Certificates of Compliance, registrations of sealed source and devices and QA program approvals, and Government agencies.
OBRA-90 and the Conference Committee Report specifically state that--
i (1) The annual fees be based on the Commission's FY 1993 I
budget of $540.0 million less the amounts collected from Part 170 fees and the funds directly appropriated from the NWF to cover the NRC's high level waste program; (2) The annual fees shall, to the maximum extent practicable, have a reasonable relationship to the cost of
_)
regulatory services provided by the Commission; and (3) The annual fees be assessed to those licensees that the Commission, in its discretion, determines can fairly, equitably, and practicably contribute to their payment.
i Therefore, when developing the annual fees for operating power reactors the NRC continued to consider the various reactor v
l 13 vendors, the types of containment, and the location of the operating power reactors.
The annual fees for fuel cycle licensees, materials licensees, and holders of certificates, I
registrations-and approvals and for licenses issued to Government agencies take into account the type of facility or approval and the classes of the licensees.
1 10 CFR Part 171, which established annual fees for operating 1
power reactors effective October 20, 1986 (51 FR 33224; I
September 18, 1986), was challenged and upheld in its entirety'in Florida Power and Licht Company v.
United-States, 846 F.2d 76.E (D.C. Cir. 1988), cert. denied, 490 U.S. 1045 (1989).
\\
10 CFR Part 171, which established fees based on the FY 1989 budget, were also legally challenged.
As a result of the Supreme Court decision in Skinner v. Mid-American Pipeline Co.,
109 S.
l Ct. 1726 (1989), and the denial of certiorari in Elorida Power and Liaht, all of the lawsuits were withdrawn.
r The NRC's FY 1991 annual fee rule was largely upheld recently by the D.C.
Circuit Court of Appeals in Allied Sicnal v.
NPC.
r I
VI. Regulatory Flexibility Analysis i
As required by the Regulatory Flexibility Act, 5 U.S.C.
605(b), the Commission certifies that this proposed rule, if i
i
14 adopted, will not have a significant economic. impact on a substantial number of small entities.
The proposed rule affects about 110 operating power reactors which_are not considered to be small entities.
VII.
Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this proposed rule and that a backfit analysis is not required for this proposed rule.
The backfit analysis is not required because these amendments do not require the modification of or additions to systems, structures, components, or design of a facility or the design _ approval'or manufacturing
' license for a facility or the procedures or organization required to design, construct or operate a facility.
I List of Subjects in la CFR Part 171 f
Annual charges, Byproduct material,- Holders of certificates, l
l registrations, and approvals, Intergovernmental relations, Non-payment penalties, Nuclear materials, Nuclear power plants and reactors, source material, Special nuclear material.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, and 5 U.S.C.
553, the NRC is proposing to adopt the following j
amendments to 10 CFR part 171.
?
.I 6
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15 PART 171 -- ANNUAL FEES FOR REACTOR OPERAfING LICENSES, AND FUEL i
4 CYCLE LICENSES AND MATERIALS LICENSES, INCLUDING HOLDERS OF CERTIFICATES OF COMPLIANCE, REGISTRATIONS, AND QUALITY ASSURANCE PROGRAM APPROVALS AND GOVERNMENT AGENCIES LICENSED BY THE NRC e
1.
The authority citation for Part 171 is revised to read as follows:
Authority:
Sec. 7601, Pub.
L.99-272, 100 Stat. 146, as amended by sec. 5601, Pub.
L.
100-203, 101 Stat. 1330, as amended by Sec. 3201, Pub.
L.
101-239, 103 Stat. 2106 as amended by sec. 6101, Pub.
L.
101-508, 104 Stat. 1388, (42 U.S.C.
2213);
I sec. 301, Pub.
L.92-314, 86 Stat. 222 (42 U.S. C.
2201(w));
i sec. 201, 88 Stat. 1242 as amended (42 U.S.C.
5841); sec. 2903, i
Pub.
L.
102-486, 106 Stat. 3125, (42 U.S.C.
2214 note).
l 3
l 2.
In S 171.11, paragraph (a) is revised to read as follows.
3 S 171.11 Exemptions.
(a) An annual fee is not required for:
(1) A construction permit or license applied for by, or i
issued to, a nonprofit educational institution for a production or utilization facility, other than a power reactor, or for the I
possession and use of byproduct material, source material, or I
This exemption does not apply to those
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byproduct, source, or special nuclear material licenses which authorize:
(i) Human use; (ii) Remunerated services to other persons; l
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l I
16 (iii) Distribution of byproduct material, source material, or special nuclear material or products containing byproduct material, source material, or special nuclear material; or (iv) Activities performed under a Government contract.
(2) Federally owned research reactors used primarily for educational training and academic research purposes.
For purposes of this exemption, the term research reactor means a nuclear reactor that -
(i) Is licensed by the Nucidar Regulatory Commission under Section 104 c.
of the Atomic Energy Act of 1954 (42 U.S.C.
2134(c)) for operation at a thermal power level of 10 megawatts or less; and (ii) If so licensed for operation at a thermal power level of more than 1 megawatt, does not contain -
(A) A circulating loop through the core in which the licensee conducts fuel experiments; (B) A liquid fuel loading; or (C) An experimental facility in the core in excess of 16 square inches in cross-section.
Dated at Rockville, Maryland this JL31 day of Sept smber 1993.
For the Nuclear Regulatory Commission.
Ith e n m'Ifel J. Chilk
~ ~~
Secretary of tde, commission.
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/729J-r71 (5VFR.1/tgif
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- t UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION
)
In Re FY 1991 and 1992 Final
)
Rule Implementing the U.S.
)
Court of Appeals Decision
)
RIN 3150-AE49 and Revision of Fee Schedules;
)
100% Fee Recovery, FY 1993
)
)
PETITION FOR RECONSIDERATION OF FINAL RULE I.
Introduction The Nuclear Regulatory Commission ("NRC" or
" Commission") has long exempted nonprofit educational institutions from paying annual fees. 1/
Although the Commission traditionally justified this exemption on the grounds that colleges and universities could not readily pass the cost of the fees on to students through tuition and other charges, a recent federal court decision questioned this rationale. 2/
The court explained, however, that the externalized benefits of education potentially supported such an exemption. 2/
't 1/
Sag 10 C.F.R. $ 171.11(a) (1993).
2/
Egg Allied-Sicnal, Inc.
v.
U.S.
Nuclear Reculatory Comm'n, 988 F.2d 146 (D.C. Cir. 1993), discussed in section II infra.
2/
Idm at 151; section II infra.
/
I i
l
~
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Although the Commission at first defended its j
educational exemption in a rulemaking proceeding prompted i
by the court's decision, it abandoned the exemption in the i
final version of its annual fee rule. A/.
Petitioners-contend that in so doing the Commission erred and i
r respectfully request that the Commission reconsider its I
ruling and reinstate the exemption for nonprofit educational licensees. 5/
II.
The Allied-Sicnal Court Clearly Invited the Commission to Grant an Exemption to Educational Institutions.
~
Although the' decision in Allied-Sicnal, Inc.
v.
U.S.
Nuclear Reaulatory Comm'n, 988 F.2d 146 (D.C. Cir.
1993), compelled the Commission to reconsider its exemption of nonprofit educational facilities, the court suggested a valid reason for exempting educational reactor licensees from annual fees.
The court merely asked the NRC to marshal a rationale based on " externalized A/
FY 1991 and 1992 Final Rule Implementing the U.S. Court of Appeals Decision and Revision of Fee Schedules; 100% Fee Recovery, FY 1993, 58 Fed. Reg. 38666, 38668-69 (Nuclear Regulatory Comm*n, July 20, 1993) (" Final Rule").
5/
Petitioner Cornell University has submitted similar comments supporting the exemption in response to the Commission's fee policy review.
Egg Letter from N. Scott to Secretary and Commissioners in response to RIN 3150-AE54 (July 16, 1993).
l !
d
benefits" of education "that cannot be captured in tuition P
or other market prices."
Id at 151.
Indeed, the Allied-Sional court explained that "there is at 2 east a l
serious possibility" that the Commission can
" substantiate" such an exemption.
Idm In its Final Rule, howevar, the Commission " missed an opportunity to consider seriously the classic
- externalized benefits' argument" proposed by the court. f/
While Petitioners believe that the Commission should have decided to continue the exemption at issue and should have based its decision on the court's discussion and on the many comments supporting the exemption, they seek in this petition to provide the Commission with additional information about the considerable externalized i
B benefits of nuclear reactor programs at nonprofit educational institutions.
III.
Nuclear Reactors at Nonprofit Educational Institutions Provide Significant Benefits to the Commercial Nuclear Industry and the General Public.
Universities, including the petitioners, train scientists and engineers who enter the commercial nuclear industry and government regulatory agencies such as the S/
Differing Views of Commissioners Remick and DePlangue, Final Rule, 58 Fed. Reg. at 38675.
I
'1 3 i
._.m i
j NRC itself.
Distinguished faculty, many of whom have worked in the field since its infancy, instruct the students in basic research and new technologies.
Without' study at educational reactors, these students would lack the knowledge and skill necessary.to adequately maintain the efficiency and safety of the nuclear industry.
l Nuclear engineering programs, which can thrive only by including hands-on laboratory study at a working reactor, assist the commercial nuclear industry directly i
through pure and applied science.. Cornell researchers, for example, have analyzed the behavior of reactors under I
i severe accident conditions.
Universities contribute to i
i the power reactor industrf by developing concepts for
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better cooling systems, moderators, and other-components of power reactors systems.
f University researchers also use reactors to develop new applications of nuclear technology in fields
[
as varied as medicine, geology, archaeology, food science, and textiles.
These new research findings in turn-provide l
opportunities for profitable commercial ventures.
i By operating nuclear reactors, educational j
institutions assist. industry and government in other important ways.
They provide a source of respected, l
informed, and independent opinion on the benefits and i
burdens of nuclear technology for a society addressing its l t
l l,
i I
i implications.
Students and members of the public who tour r
the educational reactor facilities gain insight into the varied uses of nuclear technology and come to appreciate the contribution of nuclear industries to the quality of t
their lives.
The Commission itself has acknowledged its i
continued belief that " educational research provides an important benefit to the nuclear industry and the public at large and should not be discouraged." 2/
A " vibrant nuclear education sector also is important as a source of talent and ideas for the NRC itself and for the whole government," the Commission avowed in the course of its rulemaking process.
Id.
The wide array of externalized benefits generated by nuclear reactor programs at nonprofit educational institutions is thus apparent from the Commission's statements and from the many comments submitted in support of the contested exemption. H/
i i
2/
FY 1991 and 1992 proposed Rule Implementing the U.S.
Court of Appeals Decision and Revision of Fee Schedules; 100% Fee Recovery, FY 1993, 58 Fed. Reg. 21662, 21664 (Nuclear Regulatory Comm'n, April 23, 1993)
(" Proposed Rule") (citations omitted).
j R/
SAR Alan descriptions of petitioners' nuclear reactor programs attached as Exhibit B.
' i i
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b i
1 IV.
Economic Theory Supports the Nonprofit Educational Exemntion.
i I
The' Commission's long-standing exemption for t
nonprofit educational facilities is wholly consistent with
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" externalized benefits" economic theory.
As Commissioners Remick and DePlanque explained in their opinion,
" education, like national defense, [and] the administration of justice.
,. provides large and indispensable benefits to the whole society, not just to purchasers."
Final Rule, 58 Fed. Reg. at 38675.
- Indeed, i
i the " exceptionally large" benefits of nuclear reactor programs at universities are recounted in section III above and in the many comments submitted to the Commission during its rulemaking process. 2/
From ground-breaking discoveries to vital core data, university nuclear research is openly published and
[
freely debated to ensure the highest academic standards and widest availability.
Such "[plure knowledge is the h
c 2/
Because the Allied-Sicnal court gave no explanation of what benchmark externalized benefits should be measured by, it is unclear what the court meant by " exceptionally large."
l A111ed-Siana.1, 988 F.2d at 151.
Furthermore, it is practically impossible to quantify the contributions that university i
1 nuclear science and engineering programs make to commercial users of nuclear energy.
This petition, together with the many comments submitted by educational licensees, does however i
illustrate the extent and variety of such benefits.
i >
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t b
archetypal 'public good,'" -- once produced, it can be distributed widely at no incremental cost.
Letter from i
Alfred E.
Kahn to Shirley K.
Egan (July 15, 1993) ("Kahn Letter") at 1.
As Commissioners Remick and DePlanque reasoned, the free market may fail "to supply the necessary amount of education" and other public goods i
because the " buyers" or students lack information P
sufficient to set the "right price" or are unable to pay that price.
Final Rule, 58 Fed. Reg. at 38675.
The inefficiency of charging for access to nonproprietary research and education thus supports what noted economist Alfred Kahn calls "the strong and universally recognized case for public financing of pure research."
Kahn Letter 3
at 1.
i Kahn explains that it would be " futile for universities to try to recover the cost by charging i
potential users" for research and education, as well as
" socially and economically undesirable for them to do so."
1 Instead, he reasons, "a flat charge on business beneficiaries is superior to a specific charge by the University for particular pieces of knowledge."
The Commission's relatively small costs associated with l
licensing educational reactors may easily be recovered from those licensees who benefit immeasurably from the activities of the distinguished teaching and research I
Li
.i i
community at our nation's universities, and those who, in the Commission's discretion, can fairly, equitably, and practically make such payments.
i r
V.
The proposed Annual Fces Threaten Serious Injury to University Nuclear Procrams.
Not only is it economically inefficient to levy l
annual fees on university research reactors, it also places an undue financial burden on nuclear science education and threatens to chill nuclear research vital to t
industry and the general public alike. 10/
The situation at Cornell is illustrative of these potential problems. 11/
Cornell uses two reactors for teaching and research.
The larger, a 500-kilowatt TRIGA, is used most frequently.
A staff of four -- two engineers and two lab technicians -- maintains the reactors.
The annual I
i i
lH/ The Commission has also suggested that it may in the future impose license and inspection fees, established under authority of the Independent Offices Appropriation Act ("IOAA"), on nonprofit educational licensees.
Egg Final Rule, 58 Fed. R.
at 38666; 10 C.F.R.
S 170.11 (a)(4) (1993) (exempting nonpr(
.t educational institutions from IOAA fees).
Because these fet.
vary with the cost of inspecting particular reactor facilities, their precise impact on Cornell and other universities is difficult to estimate.
The economic and public policy rationales for exempting colleges and universities from NRC t
annual fees apply with equal force to IOAA fees, however.
11/ Eg.g Nuclear Reactor Budgets, Use, and Federal Funding at petitioner Institutions attached as Exhibit A.
i,
k operating budget runs approximately $230,000. 12/
The proposed NRC annual fee for Cornell's reactors --
$124,200 -- thus represents over half of the entire t
reactor budget. 11/
Indeed, the federal government is the sole source of grant monies supporting Cornell's nuclear science and engineering programs, and federal research dollars comprise nearly half of the nuclear science and engineering department's annual research budget.
The Department of Energy not only contributes substantial i
grant monies but also donates all of the fuel for the reactors.
Cornell nuclear researchers receive grants from the National Science Foundation as well. 11/
12/ The reactors are used primarily by three nuclear science and engineering faculty and approximately twelve graduate students per year, with additional limited use by as many as ten faculty and fifteen graduate students from fields such as geology, chemistry, textiles, and archaeology.
Undergraduate teaching and demonstration, public tours, and incidental tests account for about a quarter of the reactor's total use.
11/ A 1991 study chaired by Dr. Marcus H. Voth found that of the 37 university reactors then operating, 15 incurred annual costs below $65,000.
Letter from Marcus H. Voth and Edward H.
I Klevans to Samuel J. Chilk (July 12, 1993) at 2.
11/ Grants from the Atomic Energy Commission and the National Science Foundation first enabled Cornell to obtain its two reactors.
Egg David D. Clark, The Nuclear Frontier:
Cornell's i
Procram of Basic and Applied Research, Cornell Eng'g Q.,
Spring 1992, at 3 attached as Exhibit C.
I l
t I
If the Commission abandons the educational exemption, Cornell will be forced to seek increased federal grants to cover the NRC charges.
Rather than accomplishing the budgetary goals of the Omnibus Reconciliation Act, Pub.
L. No. 101-508, 104 Stat. 1388 (1990), the Commission's action will merely shift monies from one federal pocket to another.
As a federal court
"[ilt is ' elf-evident that a transfer has logically noted, s
of funds from one agency to another fails to increase federal revenue."
Florida Power & Licht Co.
v.
United States, 846 F.2d 765, 771 (D.C. Cir. 1988).
If Cornell attempted to recoup the NRC fees through general tuition increases rather than through grants, all students, many of whom receive extensive financial aid from the government and private funds, would I
be forced to subsidize a relatively small department at the university.
Alternatively, a major increase in laboratory fees imposed on nuclear science and engineering students alone would place the program utterly beyond their financial reach.
Cost increases of such magnitude would make any institution's nuclear program a prime turget for elimination.
Since the Commission's Final Rule seeks to collect annual charges for fiscal year 1993, it also threatens to di.srupt university budgets, which have already allocated S.
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scarce resources for this year.
Because of the significant lag time required for approval of grant proposals, it may take as long as two years for universities to learn whether monies necessary to cover the major expense of NRC fees will even be available.
This financial stress comes as a shock to the educational community in the wake of the Commission's vigorous argument supporting the exempt' ion in its Proposed Rule. 15/
Although the Commission proposes to alleviate the financial burden on colleges and universities by considering individual requests for exemption from annual fees and for installment payments, these suggestions provide small consolation.
Installment payment plans fail to address the real problem confronting universities --
how to pay for such annual fees at all.
Furthermore, any attempt by the Commission to examine numerous individual-exemption requests could consume more NRC administrative 15/ San Final Rule, 58 Fed. Reg. at 38675; Proposed Rule, 58 Fed. Reg. at 21664 ("The Commission proposes to continue to exempt these [ nonprofit educational] licensees from fees for FYs 1991, 1992 and 1993, as it has for many years in the past
[and] continues to believe that ' educational research provides an important benefit to the nuclear industry and the public at large and should not be discouraged.'")
(citations omitted).
' f
I resources than a blanket educational exemption.
The sheer.
number of universities joining in this petition underscores this concern.
VI.
The Educational Exemption Reflects Sound Public Policy and a Tradition of Support for Education.
Given the significant benefits realized by the nuclear industry from university research and education, any additional fees imposed on commercial licensees to cover costs associated with nonprofit educational reactors are a bargain, not a burden.
Commercial power reactors have historically been the only NRC. licensees asked to absorb the cost of supporting educational reactors.
The
$7.1 million in fiscal year 1993 costs associated with licensing nonprofit educational reactors, if~ divided equally among the 109 commercial power reactors now in operation, amounts to only $65,000 per commercial reactor and adds a mere 21 to the proposed average fee for commercial reactors.
Egg proposed Rule, 58 Fed. Reg. at 21674.
The costs borne by power reactor licensees could, in the Commission's discretion, be decreased somewhat by spreading them equitably among all commercial licensees.
That federal sources already support extensive nuclear research and education at both private and public institutions speaks to the national importance of this discipline.
The Commission's traditional exemption for,
i i.
nonprofit educational facilities reflects a history of federal support for higher education reflected in universities' nonprofit tax status and exemplified by the Morrill Act, which first established land-grant colleges such as many of the Petitioners.
The efforts of Congress and the NRC to reduce the federal budget deficit are praiseworthy, but only if this effort encourages growth by strengthening the nation's lon~g-standing superiority in science and technology.
In the long term, the loss of the l
Commission's educational exemption will hinder the i
advancement of nuclear science, the nuclear industry, the NRC itself, and the national interest.
VII.
Conclusion For the foregoing reasons, Petitioners request that the Commission reconsider its Final Rule and reinstate its annual fee exemption for nonprofit
]
educational institutions.
l Respectfully submitted, W)
By:
Is CAn CORNELL UITIVERSITF Shirley K. Egan Associate Counsel Cornell University 500 Day Hall Ithaca, NY 14853-2801 1 i i
1 By:
/
COUN BEL FOR CORNELL UNIVERSITY Joseph C. Bell Melissa R.
Jones Hogan & Hartson 555 Thirteenth Street, N.W.
Washington, DC 20004-1109 By:
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KANSAS STATE UNIVERSITY Jennifer Kassebaum Ass.*stant University Attorney Kansas State University 111 Anerson Hall Manhattan, KS 66506-0115 b
M MW By:
MANHATTAN COLLEGE
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Walter Matystik Assistant Provost Manhattan College 4513 Manhattan College Pkwy.
Bronx, NY 10471 By:
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MASSACHU$ETTS INSTITUTE OF TECHNOLOGY George H. Dummer Director Office of Sponsored Programs Massachusetts Institute of Technology 77 Massachusetts Avenue Room 4-110 Cambridge, MA 02139 By:
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NORTH CAff0 LINA STATE UNIVERSITY Dr. Larry Monteith Chancellor North Carolina State University A Holladay Hall, Box 7001 Raleigh, NC 27695-7001 By: -
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REED COLLEGE Steven Koblik President Reed College 3203 Southeast Woodstock Blvd.
Portland, OR 97202 By:
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l UNIVERSITY-CF RHODE ISLAND Louis J.
Saccoccio Assistant Legal Counsel Carlotti Administration _ Bldg.
Office of the General Counsel University of Rhode Island Kingston, RI 02881 By:
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THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS Donald A.
Henss Associate University Counsel University of Illinois Suite 258 Henry Administration Bldg.
506 South Wright Street Urbana, IL 81801 S
lY02 tha bk By:
M THE CURATORS O'F GtE UNIVERSITY OF MISSOURI Phillip J. Hoskins Counsel University of Missouri System 227 University Hall Columbia, MO 65211 By:
bOAb.o Y.
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UNIVERSITY OF NEW MEXICO Charles N.
Estes, Jr.
University Counsel University of New Mexico 150 Scholes Hall
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Albuquerque, NM 87131 By: kYmi
$/EDD[ k b THE UNIVERSITY OF TEXAS gYSTEM Robert Giddings Attorney The University of Texas System 201 West Seventh Street Austin, TX 78701 Dy: f1}/$'W mE Et/M.cb b
UNIVERSITY OF UTAH William T. Evans Education Division Chief Utah Attorney General's Office Beneficial Life Tower, lith Fl.
36 South State Street Salt Lake City, UT 84111 i
SERVICE MAY-BE MADE UPON i
Joseph C. Bell Melissa R. Jones Hogan & Hartson 555 Thirteenth Street, N.W.
Washington, DC 20004-1109 COUNSEL FOR CORNELL UNIVERSITY Dated:
July 30, 1993 5434J/6817o l
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U!.HF C CERTIFICATE OF SERVICE T3.1. 30 P' 97 I hereby certify that copies of the accompanying Petition for Reconsideration of Final Rule were served thit 30th day of July 1993 upon the following:
i BY HAND DELIVERY i
William C. Parler General Counsel Nuclear Regulatory Commission One White Flint North Building 11555 Rockville Pike Rockville, Maryland 20852 BY FIRST CLASS MAIL C. James Holloway,'Jr.
Office of the Controller Nuclear Regulatory Commission 7735 Old Georgetown Road Bethesda, Maryland 20815
/Nd--
Meli [saR. Jones s,4 c U
July 30, 1993 5443J F
+
NUCLEAR REACTOR BUDGETS, USE, AND FEDERAL FUNDING AT PETITIONER INSTITUTIONS t~
NO. PERSONS
=
5 ANNUAL USING REACTOR PERCENTAGE OF REACTOR (FACULTY / GRAD.
DEPT. BUDGET OPERATING PROPOSED NRC STUDENTS /UNDER-FROM FEDERAL INSTITUTION BUDGET (S)
ANNUAL FEES ($)
GRADUATES)
SOURCES Cornell Univ.
240,0001 124,200 3F/12G 52%
Kansas State Univ.
134,462 62,100 4F/7G/30U 67%
Manhattan College 15,000 62,100 3F/20G/30U Not Available5 M.I.T.
1,270,0002 G2,100 35F/8GG/53U G3%
N. Carolina State Univ.
435,000 62,100 GF/50G/87U 25%
Reed College 60,000 G2,100 8F/0G/13U 33%
Univ. Illinois-Urbana 200,0003 124,200 4F/14G 75 %
Univ. Missouri-Rolla4 108,350 G2,100 GF/12G/39U Not Available Univ. New Mexico 27,000 62,100 8F/G2G/25U 89 %
Univ. Rhode Island 533,769 G2,100 22F/12G 85%
Univ. Texas-Austin 2G7,183 62,100 4F/11G 100 %
Univ. Utah 50,000 62,100 GF/15G/7U 48%
ICombined figure for the two reactors at Cornell 2 Facility operates at a deficit of $G50,000.
3 Combined figure for the two reactors at Illinois-Urbana 4 Data from the Rolla campus reactor only 5 Total 1992 federal grants for the Department equalled $40,000.
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EXHIBIT B NUCLEAR REACTOR PROGPJJfS AT PETITIONER INSTITUTIONS Cornell University In its 30 years of operation, the Cornell TRIGA has been used extensively in undergraduate and graduate courses and research by non-specialists.
In one project, neutron-induced autoradiography is used to map the location of specified pigments to reveal images in the successive layers painted by artists as a painting evolves from preliminary sketch to final version.
This non-destructive technique allows the art historian to infer the artist's developing intentions.
In another, neutron radiography is used to study the distribution of water between soils and the roots of living plants.
Neutron activation analysis is widely used in archaeology to characterize elemental compositions of articles such as pottery shards and obsidian and metallic artifacts.
Sufficient differences in elemental composition among clay sources distinguish local wares from imported ones.
The effectiveness of detergents has been studied by determining residues of labeled oils on treated specimens.
Nuclear methods of characterization for trace elements have been a key to resolving many materials quality issues for silicon semiconductor device fabrication.
Cornell has the only cold neutron beam program at a university reactor in the United States.
Additional nuclear methods that will shortly come into use at Cornell include prompt gamma-ray neutron activation analysis and neutron depth profiling based on monoenergetic conversion electrons produced by neutron reactions as well as the familiar method based on alpha particle or proton production.
Kansas State University The program at Kansas State is valuable to institutions without research and teaching reactors.
The school's reactor, under the Department of Energy Reactor Sharing program, is used by 13 different institutions, including Stanford, Louisiana State, the University of Southern California, and the National Transportation Safety Board.
Within the University, the reactor is used mostly by chemistry students, followed by nuclear engineering students.
Research is conducted in a wide range of fields including geology, biology, animal sciences, textiles, and grain sciences.
Manhattan Collece The college's teaching and research reactor program is private and primarily undergraduate.
It is very small but economically run.
As the only teaching and research reactor in the metropolitan New York area available to educational institutions, it provides a significant resource for the area.
Three to four area institutions of higher learning regularly use it for teaching and research.
Colleges such as New York Maritime College would otherwise have no access to such a facility.
In addition, hundreds of area high school and middle school students enjoy tours and demonstrations at the reactor each year as part of their science curriculum.
The school district in which the college is located has the highest proportion of minority students of any community school district in New York City, and among the highest in the nation.
Massachusetts Institute of Technolooy A large research program is carried on at the MIT Research Center.
In Nuclear Engineering there are studies in (1) Dose Reduction in which pressurized loops that stimulate both pWR and BWR environments have been constructed and operated in the core of the reactor for the purpose of identifying coolant chemistries that will minimize corrosion; (2) Irradiation-Assisted Stress Corrosion Crackino to investigate the formation and growth of cracks in reactor structural alloys; (3) testing the efficacy of in-core sensors, known as the SENSOR Proiect, involving in-core sensors that detect changes in electro-chemical potential (ECp) and the effect of water chemistry additives on the halting of crack growth; and (4) pioital Control to develop and experimentally verify a generic methodology for the closed-loop digital control of neutronic power, core temperature, and other plant parameters.
In over a decade of work, results have included demonstration of signal validation, the development of a supervisory controller using reactivity constraints, a rule-based controller, closed-form laws for the time-optimal trajectory-tracking of reactor power, the on-line reconfiguration of control laws, automated power increases from subcritical, and the use of various forms of feedback.
parallels between control strategies for reactors characterized by spatial dynamics and control of multi-modular reactors have also been studied.
i Space Science also benefits from the Research Center with studies to determine the feasibility of low-temperature annealing of radiation-induced defects in electronic components
]
such as will be used on a spacecraft for interplanetary 1
missions of several years duration, and an upcoming study to investigate thermionic energy conversion in spacecraft reactors.
b Neutron activation analysis and track-etch techniques are being used in Earth Sciences to investigate fundamental questions about the earth from meteorite composition, lava characteristics, and crack growth in granitic rock to continental drift.
Neutron activation is also being used to study the movements and trace the origins of atmospheric pollutants.
North Car _plina State University Since 1973 the university's reactor has been used to support "Research Reactor Training" for local utilities' training of licensed reactor operators.
Newly available in 1990 are training programs for individuals in the industrial community, such as engineers, supervisors, and maintenance personnel, to strengthen their understanding of how a power reactor operates.
Representative of the research uses of the university's reactor are the (1) Irradiation of Reactor Vessel Steels Proiect for long term irradiation performed in specially designed baskets in the reactor, a project seeking a better understanding of degradation of the physical properties of steel in the reactor vessels at nuclear power plants; (2) Syneraistic Effects on Carbon Limiters Proiect to assess synergistic effects of both neutron exposure and ion i
bombardment to carbon limiters in fusion reactors by providing long term irradiation of carbon samples; (3) Neutron Activation Analysis in many quantitative analysis needs such as environmental monitoring, forensic and criminal work, certification of material purity, rare-earth tagging for study of marine larval dispersion, analysis of mercury in fish tissue, analysis of fossil power plant reservoirs for selenium, t
and industrial tagging; and (4) Neutron Depth Profilino Proiect consisting of characterization studies of borosilicate glass films on silicon wafers.
Reed Collece Reed College is the only educational institution in the United States to operate a reactor without a graduate or engineering program.
Although under the Chemistry Department, the reactor is used by six faculty for classes in physics, natural science, and art history, as well as chemistry.
Undergraduate and faculty research involves about 5 students each year, however, in the last 2 years approximately 20 faculty members from 11 additional colleges and universities have used the reactor facility for classes or research-in the fields of biology, chemistry, physics, environmental science, forensic science and art history.
Each year as many as 20 high school students use the facility for classes and research.
A non-credit, semester seminar series on " reactor, radiation and the environment" is offered to the public.
Between 30 and 50 people attend it each year, two-thirds of them not affiliated with Reed College.
University of Illinois-Urbana The University of Illinois Nuclear Reactor Laboratory is a two-reactor facility, using the Advanced TRIGA and LOpRA reactors.
Neutron Activation Analysis, materials damage studies and nuclear pumped laser research are the research foci of the facility, in addition to its teaching goals.
University of Missouri-Rolla The primary uses of the reactor at the Rolla campus of the University of Missouri are education and training of graduate and undergraduate students and nuclear-related research.
The reactor is used mostly by students from the fields of nuclear engineering, chemistry, life science, and physics.
In addition, about 540 students and instructors from other institutions use the reactor through the University i
Reactor Sharing program.
University of New Mexico Four research projects have been carried out using the l
AGN-20lM reactor over the past seven years.
One of the major research projects involves measurement of basic physics parameters in a highly thermal system.
No other thermal facility system has the flexibility and low intrinsic source strength required for this research.
This feature is unique to the university facilities.
A second project is a small sample reactivity measurement technique that is being applied to geologic samples to determine their thermal neutron cross sections and relative water content.
This work has application in both the oil well core logging industry and in the waste disposal area.
In a third project, foils of different materials are activated to determine their responses to thermal neutrons and to analyze content, particularly with respect to impurities that may be present.
A recent doctoral research project examined the role of fuzzy logic controllers in nuclear j
reactor control.
The conclusion was that fuzzy logic i
controllers appear to be feasible and useful when applied to rod positioning and timing...
-1 i
I l
a.
University of Rhode Island 1
Rhode Island Nuclear-Science Center has a long history of conducting environmental research..The University of Rhode j
Island Graduate School of Oceanography uses the reactor to i
perform neutron activation analysis ~on environmental samples j
collected from locations all over the globe.
Important research discoveries-in acid rain, geology, and environmental j
pollution have been achieved over the years because of the i
availability of the reactor.
The URI physics department l
conducts extensive neutron scattering experiments at the reactor and usually has several post-doctoral researchers at the facility on a full time basis.
As the only nuclear i
facility in the state, RINSC provides a significant number of i
tours to students from high schools and universities.
The positive uses of nuclear technology in environmental and j
materials research can be observed on a first hand basis.
l i
University of Texas Research currently under way at the Nuclear Engineering Teaching Lab includes the (1) Texas Cold Neutron-Source Proiect for the development of a neutron source with low l
neutron energies for research in prompt gamma activation:and
{
scattering; (2) Neutron Depth Profilino Proiect for the l
measurement of boron and other (n,a) reactions to determine
-j depth concentrations in various materials such as glass.and silicon; (3) Neutron Capture Theraov Proiect for measurements-1 of the dose to head phantoms from the neutron activation of i
gadolinium; (4) various Neutron Activation Proiects'in support of investigators, including irradiation of biological fluids, geological samples, and others; and (5) Dicital Rg. actor Control Proiect for the development of an artificial intelligence I
software tool to provide software functional diversity.
University of Utah 1
The program at the University of Utah is i
multidisciplinary in nature, allowing researchers in a variety
{
of fields to discover the potential of reactor use.
The reactor is used mostly by nuclear engineers, mechanical engineers, chemical engineers, and electronic engineers.
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'I EXHIBIT 1
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Alf RED [. KAHN hn Joe NotTH CAvuCA STRIIT r!HACA, AfW YORK 148so
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I i
Ms. Shirley K. Egan Associate University Counsel 500 Day Hall 3
Cornell University Ithaca, NY 14853 I
Dear Ms. Egan:
Your draft of a possible submission to the NRC captures most of the argument that I and, I am sure, the Circuit Court had in mind.
l There is one observation you make, however, that I think can usefully be expanded, and it is an argument that anyone familiar with the literature on externalities would quickly appreciate.
It has to do with the social benefits of the non-proprietary pure research to which you allude, and
'[
of the associated practice of not charging possible users for access to the knowledge thatit produces.
i Pure knowledge is the archetypal "public good " in. economic terms,- the essential I
characteristic of which is that, once produced,it can be made available more and more widely at zero incremental cost. This means that it is ieemeient to charge people for access to it.
[
That fact, taken together with the difficulty of the producer of pure knowledge e
appropriating the benefits of it in charges to potential users--because those benefits are largely unpredictable--together make the strong and universally recognized case for public financing of -
r pure research. The University's policy, which you do correctly emphasias, of conducting research on a non-proprietary basis is therefore--as you clearly imply but do not, I think, stress adequately--
socially highly desirable, and it would be both futile for universities to try to recover the cost by chstging potential users and socially and economically undesirabic for them to do so.
This does not answer the question of who should pay the chstges in question: on this I have nothing to add to your statement, eacept to pcint out that recovery in the form of a Q3.1 charge on business beneficiaries is superior to a specific charge by the University for particular pieces of j
knowledg 1
I urge you to consider expanding the argument slightly along these lines, mainly because I think I can assure you that anyone who raises the possible consideration of externalities will be receptive to such an expansion to embrace the concept of public goods.
4 i
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1
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e I've ta. ken the Liberty of correcting a fewI::inor errors on the draft you sent me and raising one or two minor specific questions.
Please call on me if you think I can be of any additional assistance.
t With best regards, Since i
t t
AEE:psb Attachment cc: David Clark b
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1
e former NRC employees.
That office will review the pertinent documents, and provide limited access to and discuss nonpublic agency records with the former Presidential appointee before it provides its legal advice to the former Presidential appointee on conflict of interest matters.
This disclosure is solely for the limited purpose of enabling the former Presidential appointee to make conflict of interest or, as the case might be, bar rule compliance judgments.
The NRC has concluded that the procedures described above are necessary to prevent even the appearance of a conflict of interest.
The appearance of giving preferential treatment to a private organization or individual is particularly likely when a former NRC Presidential Appointee has special access to non-public agency records and his or her employer has business before the NRC.
As noted above, the Office of the General Counsel is prepared to conduct any necessary conflict of interest reviews for you upon request. The agency looks forward to working with you to assure that you will be able to make required conflict of interest determinations in a timely fashion.
We appreciate your cooperation.
We will provide you a copy of the revised Management Directive as soon as it is issued.
Sincerely, Ivan Selin
Enclosure:
Procedures
Procedures Governing Former Commissioner Curtiss' Access to Agency Records Maintained In Courtesy Storage That Were Acquired or Generated By His Office During His Tenure as Commissioner 1.
Mr. Curtiss has reviewed his index of documents relating to High-Level Waste.
He has marked those documents which he believes are personal records that are not agency records for purposes of the Freedom of Information Act (FOIA) and has provided this list to the Office of the General Counsel. He has also identified correspondence between himself and his personal staff.
These latter dccuments are agency records for purposes of the FOIA.
2.
Employees of NRC's Public Document Room have reviewed Mr.
Curtiss' Index of High-Level Waste Documents and determined which j
ones have already been made available to the public.
Mr. Curtiss has provided a copy of the marked up index to the Office of the General Counsel.
1 3.
The Office of the Secretary will retrieve the boxes containing the high-level waste documents and remove those records which Mr. Curtiss has designated as personal records not subject to the FOIA.
Those documents will be reviewed by his former Executive / Legal Assistant to ensure that they are not
" agency records".
The documents that are not agency records will be provided to Mr. Curtiss who can either retain or dispose of q
them.
1
[4.
The records that have been identified by Mr. Curtiss as correspondence between himself and his personal staff will be segregated by the Office of the Secretary.
They will be reviewed by agency officials only if necessary for conflict of interest purposes or if they fall within the scope of a FOIA request.
These documents will not be reviewed for conflict of interest purposes without Mr. Curtiss' concurrence.
Mr. Curtiss will be informed of FOIA requests.]
5.
Copies of high-level waste documents in the office files of Commissioner Curtiss which are already available in the Public Document Room will be segregated and made available to Mr.
Curtiss.
Mr. Curtiss can either take these documents or leave them in courtesy storage.
An index identifying these documents as part of Mr Curtiss' office files will be placed in the Public Document Room and the local Public Document Rooms established for.
the Yucca Mountain proceeding and made available to the Department of Energy, the State of Nevada, Indian Tribes, and others who have been heavily involved in matters relating to the proposed high-level waste repository in Nevada.
- 6. The agency records in the office files of Commissioner Curtiss which are not yet public will be reviewed to determine what can be released to the public.
The NRC, as part of its openness
policy relating to high-level waste matters, will release as much
[
as it reasonably can..The Commission.will endeavor to complete i
this review by October 1, 1993.
Any documents made public from this review'will be made available to Mr. Curtiss.
Mr. Curtiss can take these documents or leave them in courtesy storage.
Copies of these documents will be placed in a special file to be maintained in the Public Document Room and.the Local Public l
' Documents Rooms established'for the Yucca Mountain proceeding.
The Department-of Energy, the State.of Nevada, Indian Tribes, and others who'have been heavily involved in matters relating to the proposed high-level waste repository.in Nevada will be informed of the availability of these documents.
i 7.
If Mr. Curtiss, after reviewing the publicly available high-level waste documents, determines that he needs a legal opinion on conflict of interest matters relating to high-level waste, he should contact the Office of the General Counsel. -Before issuing an opinion addressing federal post-employment restrictions or
-j providing information relevant to bar ethics rules-l determinations, OGC shall' discuss its proposed determinations
.with Mr. Curtiss and provide limited access to and discuss non-
[
public high-level waste documents with Mr. Curtiss as the Office of the General Counsel deems' appropriate. This disclosure is solely for the limited purpose of enabling Mr. Curtiss to make conflict of interest, or as the case might be, bar rule i
compliance judgments.
8.
Mr. Curtiss may also request access to material contained in the files previously maintained by his office that are in courtesy storage relating to matters other than high-level waste.
The procedures for access will generally be followed that are described above. The agency will apply the standards that it uses in responding to FOIA requests to determine which documents will be made.public.
In addition, different arrangements may be made regarding how'these documents will~be filed in the Public Document Room.
9.
All the costs of retrieving, reviewing, and duplicating the documents described above will be borne by the NRC.
I l
I