ML20211J447
| ML20211J447 | |
| Person / Time | |
|---|---|
| Issue date: | 07/27/1998 |
| From: | Martin T Committee To Review Generic Requirements |
| To: | Callan L NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| Shared Package | |
| ML20211J391 | List: |
| References | |
| NUDOCS 9909030145 | |
| Download: ML20211J447 (28) | |
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\***** July 27, 1998 MEMORANDUM TO: L Joseph Callan Execubve Drectorfor Operations FROM: Thomas T. Martin, Chairman Committee to Review Generic Requirements j~ -
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SUBJECT:
FINAL OPERATOR UCENSING EXAMINATIONS RULE (10 CFR 55)
The Commities to Review Generic Requirements (CRGR) met on Wednesday, June 10,1998, from 10:30 a.m. to 12:30 p.m. to hold the Committee's 321st meseng. At this meeting, the staff presented for CRGR review and endorsement the final Operator Licensing Examinations Rule (10 CFR 55). The purpose of this memorandum is to raise to your attention the bacidit-related conooms of the CRGR in the context of this rule.
Subsequent to the CRGR meeting, the Commsttee received a memorandum from the Associate General Counsel for Licensing and Regulation, Office of General Counsel, "Apphcabihty of 10 CFR 50.109(a)(1) to the amendment of 10 CFR Part 55," dated July 9,1998 (Attachment 1) stating that "The CRGR's broad scope interpretation is a f.E' 'S reading of the extent of the bacidit rule. However, we tekeve that the beter legal view is that the plain languese of the bacidit rule and the undertyme focus may be more conAning...
Anhough it might to argued that procedures and organizations involved in operator testing have an indirect relationship to requirements to operate facWty, we beneve that the nexus is too remote to bring the proposed rule wthin the scope of the backRt deAnition...we acknowledge that the pmposed rule wE impoco now requirements...we behove that the beter legal view beood on the plain words of the reguisuon is that the backAt rule does not apply to this rulemaking. Nevertheless, we acknowledge that a permissible reading of the backAt rule to encompees this reactor operator testing rulemaking and we would poes no legal objection K the staff chose to adopt such an interpretanon of the extent of the backAt rule."
Consistent wth the @2; heki views by the CRGR, the Committee disagrees wNh the OGC position and regards the operator licensing rule as a bacidit. More importandy, in addibon to the leeues raised earter by the CommWee regan5ng applicabWty of the backAt rule to this eHort (Attachment 2), the following concems remain:
- 1. The rationale for inappucebEty of the backAt rule to the operator boensing rule is not defenable. The steH's argument le that the operator Boonsing rule is safety- and revenue >coutral, because the licensees were bearing the cost when the NRC (supplemented wth contractors) administered the initial operador Boonsing asaminsbons and they would do so now. The only envisioned change is the shulin0 of responstEty for developing and adminletering the examinagons imm the NRC to the'llooneses.
9909030145 900004 PDR REVGP NRCCRGR MEETING 321 PDR R1170Begrr 3
- f. .
L J. Callan Therefore, it is not a bacidit. The Committee, however, notes that bacidit, as defined in 50.10g (a)(1), does not mention expense - who pays or, whether or not, in the final analysss, the proposal causes a not change in costs. In fact, the bacidit definibon would !
label that any new rule or interpretation of a rule that moddies or adds to "...the j procedures or organization required to... operate a facihty..." as a bacidit. In the Committee's view, the staff and OGC have chosen to use a very narrow interpretabon of the word " operate" to exclude potentially required changes to licensee procedures or organization from appbcabsty of the backAt rule.
- 2. The now security requirements proposed in this rulemaidng clearly require new or changed procedures. The licensees wiH have to have qualified staff to do what the NRC was doing thus far.
- 3. Additionally, the staff has a weak argument that costs are not increased given the experience with the pilots and the general inatxhty of hcensees to demonstrate that they could produce an acceptable examination without mulbple iterabons, the source of the excess costs.
- 4. FinaHy, if the operator bconsing rule is not subject to the backfit rule, simdar arguments should have also been applied to other rules such as the Maintenance Rule and 10 CFR Part 20. This interpretation of inappbcabihty of the backfit rule to the operator hoonsing rule does not appear to be consistent with the staff position expounded in previous CRGR reviews of simusr proposed changes to operator hcense renewal and I
i==_- ~-W=i process. If, as a legal matter, changes to operator hconsing requirements (and appbcable staff posibons), are not subject to the bacidit suis because of a now interpretation of the phrase " required to operate," the CRGR Charter wW how to be modmed to reAsct this in order to ensure w:'l: w in future staff treatments and CRGR handung of any proposed backAthng schons.
The CRGR supports star eNorts to reduce.the agency budget through inihetives We this one.
The Committee recognizes that the operator noensing rule does have mortt from the regulatory esciency perspectim, and it also gives the hoensees a greater control on costs. However, atment a convincing argument in support of inappucabaty of the besAt rule and inck of assurance that we, as the agency, have fonowed at the pertinent rules, the CRGR behoves that on cioes scrutiny this proposal, as presented, does not pees the backAt test. Furthermore, the stat has akendy provided arguments against applicabWty of any of the excepuons of the backAt rule to this proposal, namely, as being necessary for adequate protection, or substantial increase in safety, or compliance. The Committee remains convinood that the stat has not demonstrated the basis for the conclusion that 50.10g does not apply, therefore, the staff's poemon cannot to supported if challenged. The industry indicated during the pubEc comment period that it would welcome this proposal if it remained a voluntary program. And, as a voluntary program, it would not be a backAt. The Committee anticipedes that large utullies could successfuey implement the proposed program as a 9::t n4 edivity, but smal udWes would
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L J. Collan continue to argue that they could not. Therefore, the CRGR recommends that either the either the implementation of the prowsions of the operator licensing rule be voluntary, or the staff request the Commission to exempt this rule from the requirements of the bacidit rule.
As always, I am available to discuss this matter further.
Attachments: As stated oc: CRGR Members 1
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RTripathi WTravers Distdbution: [@% CRGRCF JMitcheN l DISKIDOCUIRENT NAREE: S:CRGREFTLTR.EDO To receive e , of tile document, Indcate in sie bone 'C" = Cm Wo esadiment "E" = Copy Walladiment,if" = No copy OFC CRGR , DAE[
Rrw #r NAME Tusen DATE 7/M 7M98 OFFICIAL RECORD COPY O
L J. Callan 3 conunue to a@se that they could not. Therefore, the CRGR recommends that either the of the provisions of the operator imensing mio be voluntary, or the staff request the Commission to exempt this rule from the requirements of the bacist nh.
As always, I am available to discuss this matter further.
Attachment:
As stated oc- CRGR Members l
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4w 4
CRGR Review of the Final Operator Licensing Examinations Rule (10 CFR 55)
(CRGR Meeting No. 321 - June 10,1998)
TOPIC R. L. Spessard (NRR), R. Gallo (NRP.), and S. Guenther (NRR) presented for CRGR review and endorsement the final Operator Licensing Examinations Rule (10 CFR 55). This was the .
first opportunity the Committee has had to review the subject rule. In early 1997, at the staff's $
I request, the Committee had deferred the review of this rulemaking effort at the proposed rule stage because the rulemaking approach was consistent with the Committee's initial recommendation in 1998, when it reviewed the proposed generic letter on operator licensing examinations. CRGR review of the proposed rulemaking was deferred with the knc;;':f,;= that the staff would submit for CRGR review the draft final rule after resolution of public comments.
BACKGROUND (1) Memorandum dated May 8,1998 from F. J. Miraglia to T. T. Martin, requesting CRGR review and endorsement of the subject final rule (CRGR ltem No.188). The attachments included weis as follows:
- a. " Final Rule - Requirements for initial Operator Licensing Examinations"
- b. Response To CRGR Charter Questions
- c. NUREG-1021, Revision 8
- d. Public Comment Letters (2) Letter from R. L Seale, ACRS Chairman, to L J. Callan, dated May 8,1998, on the subject.
(3) E-mail from R. Tripathi to the CRGR members, dated June 3,1998, forwarding the draft issue Sheet. An e-mail, dated June 10,1998, simply affirms that the draft issue Sheet is final.
The presentation material used by the staff at the meeting is included as Attachment 4-A.
ISSUES. CONCERNS AND BACKFIT CONSIDERATIONS The CRGR made various comments and recommendations. Some pertinent comments are in the following areas:
. The rulemaking approach is consistent with the Committee's initial thoughts on the subject at the genericletter phase.
ATTACHMENT 4
2
. The Committee noted that further assessments on revised estimates of additional burden on licensees, which may need further OMB clearance, need to be addressed if the rule remains mandatory.
. The Committee further noted that the NUREG-1021 guidance in certain areas is essentially prescriptive, and implementmg the examinaten standards included in this document is reportedly the only acceptable way to the staff for licensees to prepare and administer the operator licensing examinations, without a point by pont h%.
Because the pici.dsas of NUREG-1021 are not enforceable unless they are made a part of the regulation or incripe .J.d in individual hconses (inclusion in the Statement of Considerations is not suf5cient), the minimum an=rd=Na attnbutes of the operator boensing examination process must be included in the rule if the staff's expectabons of required adherence to the standards are to be sustained.
. The Committee noted that its concoms regarding applicability of the Backfit Rule still remain. Specifically, consistent with the previously' heid views by the Committee during CRGR reviews of various issues related to initial operator licensing examinations or requalificaten (Attachment 4-B), the Committee disagrees with the OGC position and regards the operator licensing examinations rule as a backfit. The Committee's concems are addressed below.
- The staff assests that the operator licensing examinations rule is safety- and revenue-neutral; however, the Committee notes that backfit, as defined in 50.10g (a)(1), does not mention expense - who pays or, whether or riot, in the final analysis, the proposal causes a not change in costs. In fact, the backfit definition would label any new rule or interpretation of a rule that modifies or adds to "...the procedures or organizetion required to... operate a facility..." as a backfit.
However, the staff and OGC have chosen to support a very narrow interpretation of the phrase "... required to... operate a facility" to exclude potentially required changes to licensee procedures or organizabon from applicability of the backfit rule. For example, the new security requirements proposed in this rulemaking clearty require new or changed procedures. Further, the licensees will have to have qualified staff to do what the NRC was doing thus far. OGC acknowledges that this rule will impose new requirements.
- Additionally, the staff has a weak argument that costs are not increased given the experience with the pilots and the reported general inability of many licensees to demonstrate that they could produce an acceptable examination without multiple iterations, the principle source of excess costs.
- Finally, if the operator heensing examinations rule is not subject to the backfit rule, similar arguments could have also been applied to other rules such as the Maintenance Rule and 10 CFR Part 20.
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RECOMMENDATIONS 1
The CRGR offered the staff two altematives: either make the provisions of the rule voluntary (as a voluntary action it will not be a backfit) or call this action as a backfit and retum to the Committee with appropriate justification. In the absence of either, the members voted that the Committee should raise this issue to the EDO's attention.
Subsequently, the staff, after meeting between NRR managers and OGC, with a CRGR member and the CRGR staff attendmg as observers, decided to stay the course. The CRGR also received a istter from the Associate General Counsel for Licensing and Regulation, stating that bacidit rule does not apply to this rulemaking. However, OGC MFccit+1 that this rule would impose new requirements and also that OGC would pose no legal objection if th staff chose the interpretation that backfit mie does apply.
On July 21,1998, at CRGR Meeting No. 325, the Committee, in a closed session, d=a ==ad the OGC memorandum and the members affirmed the original decision of raising this issue to the EDO's attention. The Committee supports staff efforts to reduce the agency budget through
- initiatives like this one. The Committee recognizes that the operator licenseg examinsbons rule does have merit from the regulatory efficiency perspective, and it also gives the heensees a greater control on costs. However, absent a convincing argument in support of inapphcability of the backfit rule and lack of assurance that we, as the agency, have followed all the pertinent rules, the CRGR believes that on close scrutmy this proposal, as presented, does not pass the backfit test. Furthermore, the staff has already provided arguments against apphcability of any
.of the excephons of the backfit rule to this proposal, namely, as being necessary for adequate protection, or substantial increase in safety, or compliance. The Committee remains ce64>ced that the staff has not demonstrated the basis for the conclusion that 50.10g does not apply; therefore, the staffs position could not be sustained if ch"T+1 The industry indicated during the pubhc comment penod that it would welcome this proposal if it remained a voluntary program. And, as a voluntary program, it would not be a bacidit. The Committee anticipates that large utikties could successfully implement the proposed program as a cost-saving actety, but small utikties would contmue to argue that they could not. The CRGR recommended that either the implementation of the piwnis of the operator hcensing examinations rule be voluntary, or the staff request the Commission to exempt this rule from the requirements of the backfit rule.
CRGR ENDORSEMENT l On July 2g,1998, the staff sutxmtted the red-ime/ strike-out version of the revised text of the affected sections of the rulemakmg package. Based on a review of the proposed changes by the CRGR staff and d=a==M with the cogie r4 staff in a meeting on July 30,1998, it was concluded that the staff did not address all of the Committee's concoms. The CRGR endorsement is necessanly contmgent upon the staffs satisfactorily resolving these issues. j l
Therefore, the Committee does not endorse this rule, as proposed, because it does not include in the rule the minimum acceptable attributes of the operator hcensing examination process, .
and the arguments regarding inapplicability of the backflt rule are not defensible. l l
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. 1 1
Past CRGR Reviews of Matters Related to Operator Licensing Examinations The originally proposed expedited generic letter on changes to operator licensing examinations was reviewed by the CRGR on May 1,1996 at the Committee's Meeting No. 285; only the draft ,
minutes of this part of the CRGR meeting are available. At that time, although the Committee I had no Objediori to the issuance of the generic letter, it commented that the generic letter was l not the appropriate vehicle to accomplish the staffs intent; subsequently, the staff adopted the rulemaking epfieedi at the Commission's directive. The staff did not consider that proposed action (as the rule, now) as a backfit. . There were discussions then - both at the preceding CRGR meeting and at the subsequent Commission bnefing - on the backfit aspects of this effort. This concem still remained and was a subject of lengthy discussion at the CRGR Meeting No. 321, held on June 10,1998.
OGC has determined that the Backfit Rule,10 CFR 50.10g, does not apply to this rulemaking effort. However, in 1996, the CRGR also disagreed with OGC (Attachment 4-B-a); the draft minutes referred to in Attachment 4-B-a are itx:luded as Attachment 4-B-b The Committee has in the past consistently treated changes to operator training and re-qualification requirements (including the licensed operator requirements in Part 55), as subject to review under the backfit procedures of the Agency." Furthetmore, if the staff were to argue that "... operator examination procedures are not actually used by plant personnel to operate the plant and should not, therefore, be regarded as ".. procedures required to operate a facility.." (which are covered by the backfit rule), the same can be said of the Quality Assurance Program (for operation) and its procedures; however, changes to QA program requirements have been treated consistently in the past as subject to the backfit rule and review by CRGR..."
1 l
Attachment 4-B m
, s-e E mail from James H. Conran, CRGR Staff, to R. Lee Spessard (NRR) et. al., with copy to i the CRGR members, dated May 8,1996. !
From: James Conran To: WND2.WNPS.RLS, WN"J2.WNP5.KLR Date: 5/8/0611:56am
Subject:
Legal interpretations -Rep y -Forwarded -Forwarded Forwarded for.your information is the preliminary response by the General Counsel to the legal questions raised by CRGR in its review of the proposed Op Licensing GL. I will be sending to l
the members shortly the draft minutes for the Committee's review of that rem; I will provide you .
a oopy as well. I was informed by Fred Guenther on Monday that you plan to send the package to the EDO today. In view of the enM note imm Cvr. I hahave that the oronosed ComrW% Panar shmiel note that CRGR endorsed the oronosed channes to the On I leansina ornaramisr==== with the understandina that OGC would be considerina further the 50.10g annrrmhility intemretation oiven in the neckese and other procedural qJestions relating to the planned imfJeT.G.4auen by generic letter.(emphasis added) Also, I think the minutes probably should be referenced in the Paper and sent with the package to the EDO. If you dorr.'t choose to do so, please let me know; I would plan to provide the draft minutes directly to the EDO office and make the final minutes available to the Commission in a manner that highlights )
the Committee's residual questions on the legal / procedural aspects of the proposed action. I Jim I
CC: crgri, WND1.WNP2.DCD 1
l Attachment 4-B-a
,5 -
e Draft Minutes of the CRGR Meeting No.285 CONCLUSIONS / RECOMMENDATIONS 1 The Committee felt that, with regard to the technical safety aspects of operator licensing process, the proposed changes represent a reasonable and wolkable attemative approach that reflects a substantial and well-coordinated effort on the part of the staff.
The Committee endorsed sending the proposed changes forward for consideration by the EDO to support the tight schedule that has been established for consideration by the Commission. This was done with the understanding that OGC would be requested to consider further several questions raised by the Committee at the meeting regarding (a) the 50.10g apphcability interpretation given in the package, which appears to differ significantly from the posibon taken previously by the staff in a rulemaking schon affecting operator license renewal and requalificabon; and (b) the planned use of the generic letter mechanism to implement the new staff position (s) involved as essenbally mandatory requirements with no considerabon of attematives being proposed by the licensees. (See 2. below for further diam-=%.)
- 2. The Committee discussed with the staff the following questions regarding the staffs treatment of some significant legal and procedural aspects of the proposed action:
- a. The interpretation that the proposed changes are purely administrative in nature and are not subject to the backfit rule does not appear consistent with the staff position taken in previws CRGR reviews of similar proposed changes to the operator bconse renewal and requalification process. Also, in the backfit theme *% provided in the package, the staff states that the proposed action does not involve any change to existing operator licensing requirements, but does not address the fact that the proposed action involves a change to an existing staff position.
If, as a legal matter, changes to the operator licensing requirements (and applicable staff posibons), are not subject to the backfit rule, the CRGR Charter may have to be modified to reflect this, in order to ensure consistency in future staff treatment and CRGR handling of any proposed backfitting actions in this area. If, upon further consideration, OGC determines that the backfit rule does apply to 10 CFR Part 55 requirements and the.apphcable staff posebons that implement those requirements, the backfit discussion in this package will need revision. -
- b. The Committee noted that the wording in the current package states that the j licensees " gill" implement the proposed changes. (The generic letter does not i
Pastial minutes of CRGR Meeting No. 285 addressing CRGR review of other topic (s) were issued final. l Attachment 4-B-b f
, y*
s 2
request licensees to implement the new staff posebon; and there is no provision in the generic letter, or elsewhere in the package, for obtaining written licensee commitments in that regard.) The current package also states exphcitly that
"..NRC will HQI consider altamative testing methodologies.." (The staff believes this is necessary "to ensure uniform condibons for licensing operators," as required by the Atomic Energy Act).
In effect, this appears to constitute use of a generic letter to mandate new requirements. Even though industry comments appear to favor generally implementation of the proposed changes, CRGR questioned whether use of the generic letter mechanism in this manner is appropnate and consistent with 4 Commission pohcy.
The Committee indicated its intent to explore these questions further with OGC subsequent to the meeting. It was understood that OGC's determinsbons could result in some changes to the package; but CRGR did not object to the staff forwarding the l package to the EDO office. with a notation regarding these pending questions. In order to maintain the estabhshed schedule for the osckage. (emphasis added)
- 3. The package submitted to CRGR for review included comments received in response to the draft genene letter published earlier regarding these planned changes, but did not provide the staffs evaluation of those comments. The staffindicated theirintent to include the required evaluation of comments in the Commission Paper that transmitted the proposed action for final Commission review. (Subsequent to this meeting, the staff pmvided for consideration by the members in draft form their evaluation of the most significant comments received.) The earlier package did not include the staffs evaluation of comments received.
4
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