ML20211J425
| ML20211J425 | |
| Person / Time | |
|---|---|
| Issue date: | 07/09/1998 |
| From: | Gray J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Martin T Committee To Review Generic Requirements |
| Shared Package | |
| ML20211J391 | List: |
| References | |
| NUDOCS 9909030139 | |
| Download: ML20211J425 (5) | |
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.., "8 4g UNITED STATES NUCLEAR REGULATORY COMMISSION 8 o,g WASHINGTON, D.C. 20665-0001 s e July 9,1998
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OFFICE oF THE GENERAL COUNSEL MEMORANDUM TO: Thomas T. Martin Chairman C mittee for the Review of Generic Requirements FROM: J .
s ' ate Gen Cou elfor Licensing and egula on
SUBJECT:
THE APPLICABILITY OF 10 CFR 50.109 (a)(1) TO THE AMENDMENT OF 10 CFR PART 55 The Office of the General Counsel (OGC) has discussed with the Operator Licensing and Human Performance Branch of NRR (HOHB) and its management, Brian Sheron, the concerr s raised by the Committee for the Review of Generic Requirements (CRGR) regarding the baci '
analysis included in a proposed final rule amending 10 CFR Part 55' (Part 55). The propos<
final rule would require power reactor facility licensees to develop and administer initial licens. .g examinations and submit them to the NRC for review and approval by the staff prior to their administration. During the development of this rule, OGC reviewed the proposed rule to ,
determine the applicability of the backfit provision in 10 CFR 50.109. Based on that review and 1 several subsequent discussions, it is OGC's opinion that the backfit provision does not apply to i this rulemaking.
The pertinent part of 10 CFR 50.109(a)(1) defines backfitting as "... the modification of or i addition to ... the procedures or organization required to ... operate a facility; any of which may result from a new or amended provision in the Commission's rules or the imposition of a regulatory staff position interpreting the Commission's rules that is either new or dift'erent from a previously applicable staff position...." It is clearly possible and not unreasonable to interpret j the backfit rule's reference to " procedures, or organizations required to ... operate a facility" as l encompassing new procedures or organizational changes that deal with reactor operator i training and testing. Indeed, we recognize that the charter of the Committee to Review Generic Requirements (CRGR) broadly defines the scope of the backfit rule in a manner that would ;
appear to include procedures or organizational changes related to reactor operator training and ,
testing within the reach of the backfit rule. The CRGR's broad scope interpretation is a !
permissible reading of the extent of the backfit rule. However, we believe that the better legel l l
' The sanie backfit analysis was included in the proposed rule that was published in the Federal Reaister on August 29,1997. See 62 F.R. 42426.
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view is that the plain language of the backfit rule and the underlying focus may be more confining.
The backfit rule definition of backfit appears to focus on, and be limited to, NRC imposed changes, or procedures or organization required, to design, construct or operate a power reactor. The scope of this definition clearly extends to reactor design, construction and operation but not so clearly to procedures and organizations that are not required for reactor operation. While the amendments to Part 55 would shift responsibility for developing and administering the initial written examination for reactor operators from the NRC staff (or its contractors) to the facility licensee (or its contractors), and likely require the development of procedures for administenng written examinations and possibly modifications to organizatione which deal with reactor operator testing. this shift does not modify the procedures or organization reauired to operate a facihtv.
Although it might be argued that procedures and organizations involved in operator testing have an indirect relationship to requirements to operate a facility, we believe that the nexus is too ,
remote to bring the proposed rule within the scope of the backfit definition. We would note that
' the proposed rule does not affect the procedures necessary for an operator to qualify for licensing by the NRC, i.e., the required training programs, the required testing, the' content and format of the exams, the grading of the exams, or the basis for issuing an operator license. The e rule is designed to ensure that the format, content, and quality of the initiel examination will not be modified. The rule requires the NRC to provide oversight of facility licensees' development and administration of initial written examinations. The NRC will continue to determine whether to grant or deny an application for a reactor operator or senior reactor operator license, and consider candidates' appeals and will also retain its discretion to determine whether to develop and administer the initial written examination itself. These are not requirements for the design, construction or operation of the facility.
The licensee's organization required to operate the facility will not be modified. All reactor licensees have a training component as part of their organization and this rule does not require any modification to that organizational structure. Language was added to the proposed rule after it was published for comment in the Federal Register, to clarify the staff concem under the existing rule with the integrity;of the examination process (and any other tests required by Part 55). The additional language does not constitute a modification of the facility licensee's ,
I procedures or organization required to operate the facility, but only serves to clarify existing criteria to maintain control over examination and test material. !
Finally, we acknowledge that the proposed rule will impose new requirements and possibly result in additional costs for some power reactor licenses. However, the imposition does not require modifications or additions to procedures or organizations reouired to der.ian. construct or operate the facihty. and, consequently, does not, in our view, entail a backfit as defined by j the language of 10 C.F.R. 50.109. If a backfit as defined by section 50.109 is not involved, the
< backfit rule's requirement to assess costs does not apply and costs need be considered only in the regulatory analysis that must accompany the rule.
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in summary, we believe that the better legal view, based on the plain words of the regulation, is that the backfit rule does not apply to this rulemaking. Nevertheless, we acknowledge that a permissible reading of the backfit rule could encompass this reactor operator testing rulemaking and we would pose no legal objection if the staff chose to adopt such an interpretation of the
! extent of the backfit rule.
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3 in summary, we believe that the better legal view based on the plain words of the regulation, is that the backfit rule does not apply to this miemaking. Nevertheless, we acknowledge that a permissible reading of the backfit rule to encompass this reactor operator testing rulemaking and we would pose no legal objection if the staff chose to adopt such an interpretation of the extent of the backfit rule.
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The licensee's organization required to operate the facility will not be modified. All reactor licenses; have a training component as part of their organization and this rule does not require any modification to that organizational structure.
Language was added to the proposed rule after it was published for comment in the Federal Register; however, that language was added only to clarify the existing position of the staff, ensuring that licensees appreciate that the NRC staff is concemed with the integrity of this examination process (and any other tests required by Part 55) from the development of the examination until a candidate has been approved for a license. The additional language does not constitute a modification of the facility licensee's procedures or organization required to operate the facility, but only serves to clarify existing criteria to maintain control over examination and test material.
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To sum up OGC's position, we believe that the envisioned action h technically neutral. There is no backfit in terms of expense, no backfit for the license applicants (or renewal applicants) and no requirements to modify or expand the facility licensees' training facilities. Pursuant to the current rule, facility licensees were required to pay the NRC to do what the utility will now be able to do for itself. In both cases, facility licensees were required to be involved in this process and in both cases, the end result has been the same: examination of operator / senior operator license applicants. OGC has reasonably concluded that this shift in responsibility was not what was envisioned for the backfit rule to apply. Therefore, OGC maintains its position mat the backfit provisions of 10 CFR 50.109 (a)(1) do not apply to this proposed final rule.
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