ML20207G533
| ML20207G533 | |
| Person / Time | |
|---|---|
| Issue date: | 05/26/1999 |
| From: | Travers W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| References | |
| SECY-99-143, SECY-99-143-01, SECY-99-143-1, SECY-99-143-R, NUDOCS 9906110196 | |
| Download: ML20207G533 (17) | |
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POLICY ISSUE ,
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Mav 26.1999 (Information) SECY-99-143 FOR: The Commissioners FROM: William D. Travers Executive Director for Operations
SUBJECT:
REVISIONS TO GENERIC COMMUNICATION PROGRAM PURPOSE:
To inform the Commission of actions taken or planned by the staff to improve the agency's generic communication program and its implementation (Chairman's Tasking Memo issue IV.F), including the consideration given to concerns expressed by the nuclear power industry.
SUMMARY
This paper describes the staff's evaluation of the NRC generic communication program performed in response to comments received from the Senate Committee on Appropriations and the nuclear power industry. On the basis of this evaluation, the staff identified the following improvements to the generic communication program: (1) requiring the staff to obtain early senior management acknowledgment of emergent generic issues and requiring the staff to initiate early interaction with the nuclear power industry when evaluating an issue (Direction-Setting issue 13 (DSI 13), "The Role of Industry," is currently evaluating how the staff is to execute the latter responsibility); (2) more clearly defining each generic communication product and the distinctions between them; (3) implementing a tiered approach to generic information requests and restricting citation of 10 CFR 50.54(f) to only those matters for which the NRC has been unable to obtain needed information through other means, and (4) developing simplified
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see.......ea..e.....ooes POLICY ISSUE May 26.1999 SECY-99-143 FOR: The Commissioners FROM: William D. Travers Executive Director for Operations
SUBJECT:
REVISIONS TO GENERIC COMMUNICATION PROGRAM PURPOSE:
To inform the Commission of actions taken or planned by the staff to improve the agency's generic communication program and its implementation (Chairman's Tasking Memo issue IV.F), including the consideration given to concerns expressed by the nuclear power industry.
SUMMARY
This paper describes the staff's evaluation of the NRC generic communication program performed in response to comments received from the Senate Committee on Appropriations and the nuclear power industry. On the basis of this evaluation, the staff identified the following improvements to the generic communication program: (1) requiring the staff to obtain early senior management acknowledgment of emergent generic issues and requiring the staff to initiate early interaction with the nuclear power industry when evaluating an issue (Direction-Setting issue 13 (DSI 13), "The Role of Industry," is currently evaluating how the staff is to execute the latter responsibility); (2) more clearly defining each generic communication product and the distinctions between them; (3) implementing a tiered approach to generic information requests and restricting citation of 10 CFR 50.54(f) to only those matters for which the NRC has been unable to obtain needed information through other means, and (4) developing simplified
Contact:
Eric J. Benner, NRR
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value-impact assessments when the compliance exception to the backfit rule (10 CFR 50.109)
- is invoked in order to present senior management with additional information for making better informed decisions. The staff's findings concerning these improvements are presented in this paper.
BACKGROUND:
in a report prepared by tne Senate Committee on Appropriations titled " Energy and Water .
Development Appropriation Bill,1999" (Report 105-206, dated June 5,1998) it is stated, "(t)he I NRC frequently imposes regdatory requirements using informal approaches that circumvent l legal requirements for imposing legal requirements.... Those informal practices include:
... generic communications that reactor operators feel obligated to follow...." -
j The Nuclear Energy Institute (NEI), as a follow-up to the NRC-sponsored public meeting held i on July 17,1998, to address stakeholder concems, recommended in a letter dated August 11, j 1998, several actions the NRC could take to improve its regulatory processes, including two l recommendations related to the generic communication program: (1) more rigorous and l broader application of the backfit rule (10 CFR 50.109) and (2) greater recognition of industry
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l programs to avoid duplicative reviews and the issuance of redundant generic communications.
l l~ The NRC staff subsequently met twice with NEl representatives (August 27 and November 3, i 1998) in public meetings to discuss industry views on the generic communication program and j- its implementation. The discussions highlighted four such views: (1) early interaction between
! the NRC and the nuclear power industry at the formative stage of an emergent issue can be l successful and beneficial to both the NRC and the industry in terms of identifying mutually satisfactory resolution approaches and reducing resource burdens; (2) the generic l - communica'. ion products are imprecisely understood (this stems from the perception that l current generic communication products do not have a uniquely defined mission, particularly in l regard to the lack of distinction between bulletins and generic letters); (3) the frequent citation l- of 10 CFR 50.54(f) to gather information without regard for the significance of the issue l : conveys an unrealistic and unnecessary sense of urgency to gather information; and l (4) excessive use of the compliance exception of the backfit rule (10 CFR 50.109(a)(4)(i)) can subvert the discipline intended by the rule.
The first industry view (above) is being actively addressed through DSI 13 "The Role of '
Industry." In this regard, SECY-99-063,"The Use by Industry of Voluntary Initiatives in the L Regulatory Process," dated March 2,1999, presents the findings of a staff assessment of how i
- l. voluntary industry initiatives may be used in lieu of, or to complement, regulatory actions. The staff has, in fact, been advocating the use of voluntary industry initiatives in Ueu of regulatory l
actions for the past several years and in some instances the industry has responded favorably by forming specialized working groups to address technicalissues. As a matter of
- background, in the past, voluntary initiatives were not viewad favorably by the industry because costs of voluntary initiatives could usually not be passed along to the ratepayers, but costs of I formal regulatory actions could. More recently, the industry has stated that voluntary initiatives can result in more efficient utilization of resources in certain circumstances. The staff has
. concluded that utilization of industry initiatives can provide effective resolution of issues while l i !
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The Commission 3 optimizing resource expenditures. Effective resource utilization will require coordination with the industry to assure appropriate development of budgeting and operating plans. The staff notes, however, that it will be important for the industry to remain an active participant in these initiatives and to work for their timely resolution in order for this approach to be effective.
To some extent, the concerns expressed by NEl have been addressed in a memorandum, dated August 7,1998, from Samuel J. Collins, Director, Office of Nuclear Reactor Regulation (NRR), to senior NRR management on the sub'ect "Recent Changes in the Process for the Preparation of Generic Communications." This memorandum informed NRR staff of two changes that were being implemented: (1) the need to obtain early senior management support for a generic communication and (2) the need to develop an implementation plan that carefully considers the ramifications of any burden to be imposed on licensees and efficiently utilizes NRR resources to achieve closure on an issue. In implementing this guidance, alternate resolution strategies are discussed, including those that may obviate the need for a utility response to the generic communication or the need for the generic communication. The new policy has already had a discernible impact. Recently, the staff has engaged the industry, at the direction of NRR management, on a number of potential generic communication issues.
This engagement has led to industry-sponsored initiatives for issue resolution that were acceptable to the staff and, consequently, efforts on the proposed generic communications have been terminated.
The staff believes that early and more frequent interactions with representatives of the nuclear power industry on emergent issues, along with the implementation of a better integrated and more disciplined internal process for handling such matters, will lead to more efficient and effective use of industry and NRR resources. There is an additional advantage to be gained by interacting with the industry on emerging issues, and that is the public will have additional opportunity to follow their evolution in public meetings.
In advance of an April 22,1999, public meeting, the staff sent a draft version of this paper to NEl and the Public Document Room on March 30,1999. The staff discussed the proposed improvements to the generic communication program with NEl at the public meeting. NEl submitted written comments in a letter dated May 3,1999 (Attachment 1). The staff has summarized NEl's concerns in Attachment 2, which also contains staff responses to them. ,
i Staff plans for improving the generic communication program are discussed next.
DISCUSSION:
Current Generic Communication Products As defined in NRC Inspection Manual Chapter (MC) 0720, " Generic Communications Regarding Nuclear Reactor issues," there are four basic types of generic communications currently in use: bulletins (BLs), generic letters (GLs), information notices (ins), and administrative letters (ALs). The came types of generic communications are defined in MC-0730, " Generic Communications Regarding Material and Fuel Cycle issues." Bulletins and generic letters are the focus of industry concern. The differences between the two are subtle
The Commission 4 and can lead to misperceptions of staff intent. Both are used to request actions or information or both, and both can require a response by invoking 650.54(f). ' Generic letters can also be used to transmit information without involving a response. Bulletins have typically conveyed a greater sense of urgency; however, both bulletins and generic letters can be designated as
" urgent." The Charter of the Committee to Review Generic Requirements (CRGR) defines
" urgent" as an issue "which the proposing office rates as urgent to overcome a safety problem requiring immediate resolution or to comply with a legal requirement for immediate or near-term compliance." In practice, this means the public comment phase is omitted and the generic communication may be issued without prior CRGR review. For those generic communications issued without prior CRGR review, the proposing office is required to subsequently send to the CRGR an evaluation of the safety significance and appropriateness of any actions taken. This requirement assures that the " urgent" classification is being appropriately applied. The majority
- of generic letters have not been designated as " urgent," but rather, as " routine." Bulletins and generic letters are reviewed by the CRGR for compliance with the backfit rule (950.109). In addition, " routine" generic communications are issued in draft for public comment, often are reviewed by the Advisory Committee on Reactor Safeguards (ACRS), and are sent to the Commission for review before they are issued.
The role and purpose of bulletins seem to be better understood by the industry because they are more consistently aligned with matters of greater urgency, address more narrowly focused issues, and entail short-term, non-continuing actions. Therefore, as a primary goal, the staff '
examined ways to distinguish bulletins from generic letters. The staff also reviewed its j experience with information notices and administrative letters to see if any changes were warranted. In contrast, information notices and administrative letters are not subjected to the same level of scrutiny that is given to bulletins and generic letters because they do not convey or imply new requirements or new interpretations of regulations and do not request licensee actions or require a response.
Proposed Generic Communication Products The revised generic communications program will use four products: bulletins, generic letters, regulatory issue summaries (a'new product), and information notices. The program will no longer use administrative letters. The characteristics of each generic communication product are described next.
. Bulletins Bulletins will continue to be used in much the same way as before; that is, to address significant issues that also have great urgency. Bulletins will now be the only generic communication product that may be designated " urgent" and, therefore, will be issued without public comment.
Bulletins may request information and will require a response pursuant to $50.54(f), in keeping with the urgent nature of a bulletin Bulletins that request action will be reviewed in accordance with $50.109.' Bulletins will always be subject to CRGR review, but not necessarily before they are issued. ,
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l Generic Letters Generic letters will continue to request information or action or both. Generic letters will address only technical issues. Generic letters wlIl be designated " routine." Therefore, the critical difference between bulletins and generic letters is that bulletins will be issued without public comment and generic letters will be published in the Federal Registerfor public comment. Generic letters that request action (versus only requesting information) will be reviewed in accordance with $50.109. Generic letters will typically not . invoke s50.54(f) unless the NRC has been unable to obtain needed information through other means. The staff will continue to develop the rationale for information requests, justifying the burden relative to the l safety significance of the issue as described in the CRGR charter. Generic letters will always be subject to CRGR review. Generic letters will not be issued without prior staff interaction with the industry and the public.
Reaulatorv Issue Summaries (New Product)
The NRC communicates with the nuclear power industry on a variety of matters for which no response or action is requested. This functional need has previously been met through the use of administrative letters and, in some cases, generic letters. The staff has determined that a new type of generic communication, designated a " regulatory issue summary," would better meet this need. Regulatory issue summaries will be used to (1) document NRC endorsement of the resolution of issues addressed by industry-sponsored initiatives, (2) solicit voluntary licensee participation in staff-sponsored pilot programs, (3) inform licensees of opportunities for regulatory relief, (4) announce staff technical or policy positions not previously communicated to the industry or not broadly understood, and (5) address all matters previously reserved for administrative letters. CRGR will be given the opportunity to review all regulatory issue summaries; however, it is expected that CRGR will only review regulatory issae summaries of Types 1,3 and 4. All regulatory issue summaries will be evaluated for the appropriateness of publication for public comment; however; it is expected that only regulatory issue summaries of
. Types 1,3, and 4 will be published for public comment. Use of the regulatory issue summary will allow generic letters to be reserved for routine issues that request a response from the industry.
With respect to Type 1, the staff has been advocating the use of voluntary industry initiatives in lieu of regulatory actions for the past several years and the industry has responded favorably by l forming specialized working groups to address technicalissues. The staff determined that a generic communication is the appropriate method to document the resolution of issues
- addressed through industry initiatives. The staff determined that while this generic communication would potentially contain new staff positions, it would not require any response from industry because the industry response would be addressed through the original voluntary
- initiative. It was felt that the regulatory issue summary would best suit this purpose. In this case, the regulatory issue summary would document the evolution of the issue and the resolution agreed to between the industry and the staff, including industry initiatives and commitments.
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The Commission e information Notices information notices will continue to be used to inform the nuclear industry of significant, recently identified, operating experience. Recipients are still expected to review the information for applicability to their facilities and consider actions, as appropriate, to avoid similar problems.
Information notices will not convey or imply new requirements or new interpretations, and will not request information or actions. Therefore, CRGR review and endorsement and a Federal Register notice to solicit public comment are not required.
Management of Generic Communication Development it is expected that bulletins, generic letters, and regulatory issue summaries will stem from a disciplined NRR process for the identification and tracking of emergent issues to resolution, after a sponsoring organization receives the approval from senior NRR management to pursue a matter. In so doing, a proposed generic communication will be a logical extension of a known staff activity, that is, an approved item in an NRR division operating plan and, equally important, the need for a generic communication and the basis for it will become apparent as the staff
' proceeds to interact with industry. To implement this expectation, changes have been made in the way generic communications are approved. The process is outlined in the attached flowchart (Attachment 3). An August 7,1998, memorandum, "Recent Changes in the Process for the Preparation of Generic Communications," from the director of NRR to senior NRR i
management, notified NRR staff of the need to obtain early management support for these generic communications and the need for early and frequent industry interaction regarding generic issue resolution. The process has been revised so that the organization sponsoring a proposed generic communication must brief senior NRR management and obtain its approval before it develops the generic communication. As part of the briefing, the sponsoring organization must provide a summary analysis that addresses the required contents of the l
CRGR review package as discussed in the CRGR charter. The charter states that the review package must contain, among other things: (1) the proposed generic requirement or staff
_ position (2) underlying staff documents that support the requirement or position, (3) a backfit analysis as defined in 10 CFR 50.109 or a documented evaluation of the basis for invoking the compliance or adequate protection, exemption' and (4) an assessment of how the proposed action relates to the Commission's Safety Goal Policy Statement. Item 4 will assure that the risk . implications of the issue are discussed among senior NRR management before it approves development of the generic communication. As part of the briefing, the sponsoring organization r will indicate whether the issue is a candidate for resolution through an industry initiative.
Criteria concerning which issues are appropriate candidates for resolution through industry initiatives are currently being developed as part of DSI 13. Oversight of the generic communications development process will be accomplished by giving both the CRGR and the
~ Advisory Committee on Reactor Safeguards (ACRS) the opportunity to review all bulletins, generic letters, and regulatory issue summaries, it is important to note that issues are concurrently evaluated to determine whether or not some form of regulatory action other than issuance of a generic communication is appropriate. Other regulatory actions could include referral to the Office of Nuclear Regulatory Research (RES) for consideration as a new or revised generic issue, or revision of the inspection program, standard review plan, or standard technical specifications. As discussed in NRR Office Letter 503, " Procedure for Integrated i
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The Commission 7 Identification, Evaluation, Prioritization, Management, and Resolution of Generic Issues," issued December 27,1995, those emergent issues for which corrective actions are not believed to meet the compliance exception to the backfit rule are forwarded to RES for prioritization in accordance with RES Office Letter 1, " Procedure for identification, Prioritization, Resolution, and Tracking of Generic issues."
information Requests On occasion, the staff needs to gather information from licensees to gain a better understanding of the nature and extent of an issue. The staff has several avenues available to obtain this information. Surveys by project managers may be used for relatively simple matters in which licensees would be expected to have the information readily available. A temporary instruction (TI) may be used to have NRC inspection staff obtain information that is available at plant sites. In addition, the staff has historically worked with a broad range of industry groups to obtain needed information and resolve issues. The industry has encouraged this practice and has suggested that early discussion with the industry is a better way to gather information than issuing a generic communication. The staff agrees, and will continue to increase contact with the industry on these matters. Nevertheless, in some situations a generic communication will be the appropriate regulatory vehicle for gathering information. Bulletins and generic letters routinely cite 650.54(f) as the basis for requiring a response from licensees. From a legal perspective, such information requests are not backfits and are not reviewed in accordance with 50.109. However, Q50.54(f) itself does require that the staff develop a rationale for an information collection to ensure that the burden to be imposed on the respondents is justified in view of the potential safety significance of the issue being addressed. In addition, information collection efforts that affect ten or more respondents are govemed by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The law stipulates that Federal agencies must justify to the Office of Management and Budget (OMB) their information collection needs and prepare industry-burden estimates. In this regard, the NRC has obtained approval for information collections associated with 10 CFR Part 50, which includes the generic communications program.
With respect to generic communications, the industry has recently expressed concern about the staff's practice of citing $50.54(f) when seeking information. in 10 CFR 50.54(f), the Commission states, in part, that "The licensee shall ... upon request of the Commission, submit
... written statements, signed under oath or affirmation, to enable the Commission to determine whether or not the license should be modified, suspended, or revoked." The industry has argued that the frequent citation of 10 CFR 50.54(f) to gather information without regard for the significance of the issue conveys an unrealistic and unnecessary sense of urgency to gather information.
The NRC currently, routinely cites 650.54(f)in generic communications in part because of past industry criticism that the NRC did not cite the regulations upon which its actions were based.
On the other hand, even if the NRC issues a generic communication to request information without citing 50.54(f), it is expected that licensees will exercise due diligence in responding in routine matters notwithstanding that they are not required to respond "under oath or affirmation." Therefore, the staff has determined that it will restrict citation of @50.54(f) to those matters in which the NRC has been unattle to obtain needed information from the industry
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through other means and deems it appropriate to require a response. The staff expects that since this initiative is being undertaken in response to industry concerns, the industry will not use the lack of citing 950.54(f) to exemplify a prior criticism. The staff intends to continue to develop a rationale for information requests to justify the burden relative to the safety significance of the issue, as described in the CRGR charter.
Use of the Compliance Exception to the Backfit Rule From a legal perspective, generic communications cannot impose requirements and, therefore, are not backfits; only a rule or order can impose requirements. Nevertheless, the industry has indicated that it feels obligated to act on any request in generic communications. Recognizing this perceived imposition of burden, the staff is required by internal procedure to treat requested actions as potential backfits. Generic communications requesting actions discuss the applicability of the backfit rule and are reviewed by the CRGR. Realizing that generic communications cannot impose requirements, the majority of them do not even request actions.
However, those that have requested actions have indicated that the actions met the compliance exception of the backfit rule. Thus, no value-impact analysis was required and none was performed.
The backfit rule requires an analysis that demonstrates a substantial increase in safety with justifiable costs for all backfits, except those that are needed for compliance or adequate protection. The analyses in question are generally performed in accordance with the directives and guidance of NUREG/BR-0058," Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission," and NUREG/CR-3568,"A Handbook of Value-impact Assessment."
- Rather than focusing only on what truly constitttes compliance, the staff intends to perform a simplified value-impact analysis in those cases in which the compliance exception is invoked.
The staff is in the process of developing such a simplified value-impact assessment technique.
Use of this simplified value-impact assessment will support better informed regulatory decisions, whether to issue the generic communication, revise an associated rule, or take some other regulatory action. Emergent issues for which the appropriate corrective actions are not believed to meet the compliance exception to the backfit rule are forwarded to RES for prioritization in accordance with RES Office Letter 1, " Procedure for identification, Prioritization, Resolution, and Tracking of Generic issues." In those cases where adequate protection backfits are identified, they will continue to be imposed regardless of the associated impacts, as required by the backfit rule, but will not be imposed through a generic communication.
- Q9NCLUSION
The staff has determined that there are several areas in which the generic communications l program could be improved in order to maintain safety, reduce unnecessary regulatory burden, l Improve efficiency and effectiveness, and enhance public confidence. To effect these improvements, the staff intends to implement the following changes: (1) require the staff to obtain early senior management acknowledgment of emergent generic issues and require the staff to initiate early interaction with the nuclear power industry when evaluating an issue, (2) more clearly define each generic communication product and the distinctions between them, (3) implement a tiered approach to generic information requests and restrict citation of 10 CFR l 50.54(f) to only those matters in which the NRC has been unable to obtain needed information i
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1 The Commission 9 through other means, and (4) develop limited value-impact assessments when the compliance exception to the backfit rule (10 CFR 50.109) is invoked in order to provide additional information for better informed decisions.
ROORDINATION:
The Office of Nuclear Material Safety and Safeguards (NMSS) has reviewed this paper and concurs with the proposed changes.. NMSS intends to revise Inspection Manual Chapter 0730,
" Generic Communications Regarding Materials and Fuel Cycle issues," to curtail the use of
" oath or affirmation" requirements, adopt the new communications types and definitions, and make other changes necessary to ensure that all NRC generic communications are prepared and issued in a consistent manner.
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The Advisory Committee on Reactor Safeguards and the Committee to Review Generic Requirernents have reviewed this paper and have no objections to its content. j The Office of the General Counsel has reviewed this paper and has no legal objections to its content.
The Office of the Chief Financial Officer has reviewed this paper for resource implications and has no objections to its content. j The Office of the Chief Information Officer has reviewed this paper for information technology and information management implications and has no objections to its content.
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illiab. Tr e Executive Director M for Operations 4
Attachments: As stated DISTRIBUTION:
Commissioners OGC OCAA OIG OPA OCA ACRS CIO CFO EDO REGIONS SECY
EI NU(llAR INERGY l h 5111 U l f Alex Marion EcYEc0NE May 3,1999 Mr. Ledyard B. Marsh Event Assessment and Generic .
Communications Branch Division of Regulatory Improvement Programs Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, DC 20555
Dear Mr. Marsh:
Thank you for your March 30 letter transmitting a preliminary SECY paper on a new generic communications process. We appreciate the NRC's willingness to provide an opportunity to comment on this paper. Also, the April 22 meeting with you and your staff provided us a better understanding of NRC objectives for generic communications.
The SECY paper discusses the early involvement of the NRR Executive Team to provide management oversight of the generic communications. We believe this is important and necessary for senior management to establish clear objectives for programs and processes that enable the Staff to address emerging issues. Along these lines, there is no mention of Commission involvement in establishing goals and objectives for generic communication. This should be included for completeness.
The SECY contains a good description of the current generic communications process and discusses issues related to:
e use of the compliance exception to the backfitting rule,'10 CFR 50.109 e invoking the provisions of 10 CFR 50.54(f) e clarity on differences between types of generic communications While the SECY captures industry concerns with these issues, we provide the following comments on the objectives of the proposed generic communication process.
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m Mr. Ledyard Marsh May 3,1999
'. . Page 2 Generic 'Backfittine Under the Comoliance Exception
-This section of the draft SECY indicates that how the staffinvokes the compliance exception can be improved upon to ensure that the spirit of the backfitting rule is preserved. The industry agrees that the use of the compliance exception is an area that should be significantly improved. To that end, we suggest that the discussion in the SECY paper be expanded to provide specific guidance to the staff on the appropriate use of the exception.
Our principal concern is that the compliance exception has been invoked in many cases based on broad and fluid regulatory standards such as the General Design Criteria (GDC) of Appendix A to 10 CFR Part 50 or the general Quality Assurance standards of Appendix B to Part 50. These broad standards have been used as the basis to justify imposition of specific new positions without a backfitting analysis.
In our view, the compliance exception should be used only when there is a failure to meet an explicit regulatory requirement (or written commitment), i.e., a "known and established standard,"in the words of the Commission in the Statement of <
' Considerations for the 1985 backfitting rule. Citing broad standards such as the i GDC or Appendix B results in regulatory instability through constant reinterpretation of requirements, something the Commission warned against when it promulgated the backfitting rule.
Accordingly, it would be useful for the SECY paper to provide more definitive guidance to appropriately limit the use of the compliance exception. Consistent with the Commission's stated intent in the backfitting rule, the compliance exception should only be used in the following circumstances where:
- a licensee fails to meet an explicit regulatory requirement (or a written commitment) because of omission or mistake of fact e plant syctems, structures or components fail to meet regulatory requirements such as the functional requirements of plant Technical Specifications In these circumstances, it is appropriate for the NRC to take regulatory action to ensure that compliance with the existing regulatory requirement or written j commitment is restored. This is the appropriate use of the compliance exception; '
- and such action would not constitute a backfit.
The SECY paper should also make clear that in any cases where the NRC seeks to use the compliance exception, it must provide a documented evaluation as required
> by 10 CFR 50.109(a)(4), showing the explicit regulatory basis for invoking the compliance exception, j The industry also supports the staffs proposal to develop a more efficient and effective cost beneSt analysis technique to use in implementing the backfitting rule.
Mr. Ledyard Marsh May 3,1999 Page 3 In connection with compliance or adequate protection backfits, the backfitting rul allows cost benefit factors to be considered in choosing the most cost effective mea of attaining compliance or adequate protection. Reference 10 CFR 50.109(a)(7).Information Gatherine The current use of the provisions of 10 CFR 50.54(f)in generic communications results a
in a legally binding requirement on licensees to respond under oath or
~ ffirmation that, in effect, pressures licensees to take the actions that the NRC
" requests." For example, if a generic communication requests licensees to submit the results of a new analysis, licensees are required to perform the analysis (the requested action). The discussion in the draft SECY on the use of 50.54(f) should be clear in limiting the use of this provision to requests for existing information.
Further, consistent with the explicit terms of 50.54(f) its use should be reserved only for those issues that reach the threshold of potential regulatory action that would result in modification, suspension or revocation of an operating license. This j
would be consistent with the language in 50.54(f) as well as the underlying i statutory provision in Section 182 of the Atomic Energy Act.
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We acknowledge that NRC may from time to time need information from licensees to determine compliance with current regulations or docketed commitments. In doing so, NRC should continue seeking information via NRC Project Managers and Resident inspectors, or through the development of a temporary instruction (TI) fo NRC inspection staff use. However, a priority and schedule for such information gathering efforts should be established and communicated to licensees. There should be a reason for NRC seeking information, e.g., an emergent issue that
' legitimately calls into question the licensing basis. Such information gathering should also be based upon the significance of the requested information relative to NRC decision making that may result in further regulatory action, pifferences Between Tvoes of Generic Communications The discussion in the paper on bulletins and generic letters is still unclear as it appears both may be used to request action and request information. We suggest that if a communication product, such as the current bulletin, is used in the future to request action then it be used for those situations where: i
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specific hardware or system performance problem is identified and known I to exist e
action is necessary due to the potential generic safety significance of the problem and urgent action is warranted For these situations, the NRC would be aware that a problem may exist at a number of plants, NRC understands the nature of the problem as well as its potential generic impact on plant safety, and timely action is necessary from licensees to address the problem. Early interaction with the industry would be i
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Mr. Ledyard Marsh May 3,1999 .
Page 4 beneficial in achieving the necessary understandings as well as enable the NRC to evaluate what regulatory action would be appropriate.
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- Obiectives of Generic Communication Based on our review of the draft SECY paper and considering the April 22nd i meeting discussion, it appears that the objectives of generic communications can be L threefold
. action is requested l . information is requested -
- e communicate idormation Before generic communications are issued, we believe NRC should make the initial i
' determination whether rulemaking or orders are necessary to address an emerging concern. Those are the appropriate mechanisms to use if the NRC concludes that new legally binding requirements must be imposed on licensees. However, if the L
nature of the emerging concern warrants timely industry attention, then a form of generic communication may be appropriate. The objectives and associated factors that the NRC should evaluate as part of this new generic communications process l- are:
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Action is Requested a specific hardware or system performance problem is identified and known to exist the potential generic safety significance of the problem is understood ,
e urgent action is necessary e
action is necessary to comply with a specific regulation or docketed commitment - if not, then a regulatory analysis required by the backfitting rule is necessary, unless action is needed for adequate protection e
if the compliance exception is used then an explicit regulatory requirement or docketed commitment must be documented existing information pursuant to 50.54(f) is necessary for NRC to decide whether a plant license should be modified, suspended 'or revoked may be issued without being published in the Federal Register for public j
- comment, but comments may be submitted Information is Requested e
not necessary for adequate protection or other safety reason the situation is not explicitly addressed by existing regulation e
a regulatory analysis in accordance with the backfitting rule is conducted if this is a request for new information, e.g., a new technical analysis
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Mr. Ledyard Marsh
,, May 3,1999 Page 5 a priority and schedule must be established consistent with the safety significance if use of this information is necessary for NRC to decide what, if any, further regulatory action may be appropriate e
published in the Federal Register for public comment Communicate Information e
communicate information to licensees, e.g., operating experience, NRC approved technical specification changes that have generic applicability specific action is not required e specific response is not required does not convey or imply new requirements or interpretations follow up by NRC is not required We recommend that the new generic communications process describe specific products consistent with the identified objectives. Generic communication products such as Action Request (AR), Information Request (IR) and Advisory (A) would result in clarity of understanding, expectations and consistency with the specific nature of the generic communication.
The draft SECY states that a separate SECY (SECY 99 063) has been issued to address the NRC's use of voluntary initiatives in the regulatory process. We are in the process of scheduling a separate public meeting with NRC to discuss that topic and will provide further comments with regard to backfitting in the context of voluntary industry action at that time.
We believe the NRC recognizes the importance and benefit of early and frequent interaction with industry to discuss emergent issues. Such interactions have been j extremely beneficial in the past in developing a better understanding ofissues, their regulatory scope and impact, and these interactions should continue in the )
future. l l
l Again, we appreciate the opportunity to offer our thoughts on the proposed generic communication process. Should you have any questions or wish to schedule another meeting to discuss this letter, please call me at (202)739 8080 or e mail am@nei.org.
Sincerely, I Alexander Marion
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