[Federal Register Volume 74, Number 30 (Tuesday, February 17, 2009)]
[Proposed Rules]
[Pages 7382-7384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3144]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 74, No. 30 / Tuesday, February 17, 2009 / 
Proposed Rules  

[[Page 7382]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 170

[Docket No. PRM-170-6; NRC-2008-0496]


Technical Specifications Task Force; Denial of Petition for 
Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking: Denial.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying a 
petition for rulemaking (PRM-170-6) submitted by the Technical 
Specifications Task Force (TSTF), which is a jointly sponsored activity 
of the Pressurized Water Reactor Owners Group and the Boiling Water 
Reactor Owners' Group. The petition requests that the NRC amend its 
regulations to provide an explicit exemption from NRC review fees for 
activities associated with generic improvements to the Improved 
Standard Technical Specifications (ISTS). The NRC is denying the 
petition because the petition presents issues that the NRC has already 
carefully considered and addressed. Also, the petition fails to present 
any significant new information or arguments that would warrant the 
requested amendment.

ADDRESSES: You can access publicly available documents related to this 
petition for rulemaking using the following methods:
    Federal e-Rulemaking Portal: Go to http://www.regulations.gov and 
search for documents filed under Docket ID [NRC-2008-0496]. Address 
questions about NRC dockets to Carol Gallagher 301-492-3668; e-mail 
[email protected].
    NRC's Public Document room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Public 
File Area O1 F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC PDR 
reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Rebecca I. Erickson, Office of the 
Chief Financial Officer, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001; telephone 301-415-7126; e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Nuclear Regulatory Commission (NRC) is required each year, 
under the Omnibus Budget Reconciliation Act of 1990 (OBRA-90), as 
amended, (42 U.S.C. 2214) to recover approximately 90 percent of its 
budget authority, less the amounts appropriated from the Nuclear Waste 
Fund (NWF), amounts appropriated for Waste Incidental to Reprocessing 
(WIR) activities, and amounts appropriated for generic homeland 
security activities, through fees to NRC licensees and applicants.
    The NRC assesses two types of fees to meet the requirements of 
OBRA-90, as amended. First, license and inspection fees, established in 
10 CFR part 170 under the authority of the Independent Offices 
Appropriation Act of 1952 (IOAA) (31 U.S.C. 9701), recover the NRC's 
costs of providing special benefits to identifiable applicants and 
licensees. Second, annual fees established in 10 CFR part 171 under the 
authority of OBRA-90, as amended, recover generic and other regulatory 
costs not otherwise recovered through 10 CFR part 170 fees.
    There are fee exemption provisions under both 10 CFR part 170 and 
171. At the time the NRC became a separate regulatory agency on January 
19, 1975, there were nine exemptions in effect in Sec.  170.11(a). 
Changes have been made to the original nine exemptions.
    Before the fiscal year (FY) 2002 final fee rule became effective, 
an exemption for Part 170 fees was part of footnote 4 to Sec.  170.21 
and footnote 5 to Sec.  170.31. The NRC continued to receive requests 
for fee exemptions that did not meet the intent of the waiver 
provisions. The NRC determined that footnote 4 to Sec.  170.21, 
footnote 5 to Sec.  170.31, and material in the definition of ``Special 
Projects'' in Sec.  170.3 concerning these types of requests and 
reports provided information that was more suitable for inclusion in 
Sec.  170.11, ``Exemptions.'' As a result, in the FY 2002 fee rule (67 
FR 42629; June 24, 2002), the NRC removed the language relating to 
certain reports and requests submitted to the NRC for review from the 
definition of ``Special Projects'' in Sec.  170.3, removed footnote 4 
to Sec.  170.21, and removed footnote 5 to Sec.  170.31. The NRC also 
added paragraph (a)(1) to Sec.  170.11.
    The NRC revised the fee waiver provision to specifically state that 
the fee waiver criteria would apply only when it was demonstrated that 
the report or request had been submitted to the NRC for the specific 
purpose of supporting the generic regulatory improvements or efforts of 
the NRC, rather than the industry, and that the NRC, at the time of the 
submission, planned to use the submission for that purpose. The 
amendment also clarified that the waiver provisions would not apply to 
reports or documents submitted for the NRC's review that the NRC, at 
the time of the submission, did not plan to use to improve its 
regulatory program. Therefore, since these reviews would primarily 
provide a special benefit to identifiable recipients, such as 
individual members of the public, industry entities, vendors, or 
specific licensees, a fee waiver would not be available. This 
clarification is stated in Sec.  170.11(a)(1)(iii):

    (C) Fees will not be waived for reports/requests that are not 
submitted specifically for the purpose of supporting the NRC's 
generic regulatory improvements or efforts, because the primary 
beneficiary of the NRC's review and approval of such documents is 
the requesting organization. In this case, the waiver provision does 
not apply even though the NRC may realize some benefits from its 
review and approval of the document.
    (D) An example of the type of document that does not meet the 
fee waiver criteria is a topical report submitted for the purpose of 
obtaining NRC approval so that the report can be used by the 
industry in the future to address licensing or safety issues.


[[Page 7383]]


    The fee waiver provisions in Sec.  170.11(a)(1) have not changed 
after FY 2002, with the exception of Sec.  170.11(a)(1)(iii)(A)(3), 
which was added by the FY 2005 fee rule amendment (70 FR 30543; May 26, 
2005). This provision specifies that a fee exemption request must be 
made in writing to the NRC's Chief Financial Officer who must address 
the request in writing.

The Petition

    The petitioner requests that NRC amend 10 CFR 170.11, 
``Exemptions'' to provide an exemption for activities associated with 
generic improvements to the ISTS to make the regulations consistent 
with the Commission's Final Policy Statement on Technical 
Specifications Improvements for Nuclear Power Reactors (signed on July 
16, 1993, and published on July 22, 1993; 58 FR 39132). The Policy 
Statement states that ISTS have been developed and will be maintained. 
It also states that the NRC will, consistent with its mission, allocate 
resources as necessary to implement the Policy Statement. The 
petitioner states that, contrary to the Policy Statement, in 2003, the 
NRC began assessing fees for the review of industry actions to maintain 
the ISTS, known as ``Travelers.'' According to the petitioner, this 
placed the entire burden of maintaining the ISTS on the industry, which 
has subsequently paid over $750,000 in fees.
    The petitioner states that it has repeatedly requested fee 
exemptions from the NRC for the review of Travelers and has almost 
always been rejected on the basis that Sec.  170.11 does not contain a 
provision for exempting the activity. Therefore the petitioner requests 
that the NRC amend Sec.  170.11 to provide an exemption for activities 
associated with generic improvements to the ISTS to make the 
regulations consistent with the Policy Statement. Specifically, the 
petitioner requests that a new paragraph be added as Sec.  
170.11(a)(1)(iii)(A)(4) to provide an exemption for activities 
associated with generic improvements to the ISTS.
    The petitioner states that the imposition of review fees for the 
review of generic improvements to the ISTS is unduly burdensome. 
According to the petitioner, a direct result of the inconsistency 
between the Commission's Policy Statement and the provisions of 10 CFR 
170.11 is that the industry owner's groups have paid over $750,000 in 
NRC review fees after 2003 for maintenance of the ISTS when the NRC's 
policy was that the NRC would allocate the resources for that activity.
    The petitioner states that the current provisions of 10 CFR 170.11 
are deficient in that the imposition of review fees for the review of 
generic improvements to the ISTS is inconsistent with NRC policy. The 
petitioner also states that the Consolidated Line Item Improvement 
Process (CLIIP) described in NRC Regulatory Information Summary 2000-06 
contains a streamlined regulatory process describing how licensees can 
request license amendments based on NRC-approved Travelers. The 
petitioner believes the CLIIP process saves significant NRC resources 
by requiring an average of one-tenth of the hours for NRC review 
compared to a similar non-CLIIP amendment.
    The petitioner estimates that after the initiation of the CLIIP 
process, over 500 license amendments have been approved that have saved 
the NRC more than 40 work-years of effort after FY 2001. The petitioner 
states that submittal of new Travelers by the nuclear industry has 
dropped from an average of 56 per year during 1995-2002 to an average 
of nine per year after the imposition of fees for Travelers reviews. 
The petitioner suggests that it is in the NRC's interest to support the 
CLIIP by encouraging the submittal of Travelers through the elimination 
of review fees.
    To implement the NRC's policy properly, remove an undue burden on 
licensees, and improve the NRC's efficiency, the petitioner requests 
that Sec.  170.11 be amended as suggested in its petition for 
rulemaking to provide an exemption from review fees for generic 
improvements to standard technical specifications. The petitioner 
believes there is adequate justification and precedent for the NRC to 
implement the provisions presented in this petition for rulemaking and 
requests that the NRC issue a proposed rule and direct final rule 
concurrently.

Reasons for Denial

    The petition presents issues that have been carefully considered 
and addressed in earlier correspondence. The NRC informed the TSTF of 
the change in the fee exemption status for Travelers in a January 10, 
2003, letter to the TSTF from W. D. Beckner, NRC Program Director 
(ADAMS Accession Number ML030100090). Mr. Beckner explained that the 
industry had not been assessed Part 170 fees for review of proposals to 
revise standard technical specifications (STS) because those proposals 
were used by the NRC to make generic regulatory improvements. Mr. 
Beckner also explained that for the most part those regulatory 
improvements had been achieved, and the review of the proposed STS 
changes being submitted to the NRC would primarily benefit specific 
licensees rather than enhancing the NRC regulatory process. Thus, 
future submissions would be subject to fees unless a fee exemption was 
allowed under 10 CFR 170.11(a)(1).
    Further, the NRC received an April 28, 2006, letter from the TSTF 
on this same subject (ADAMS Accession Number ML061210034). NRC's Chief 
Financial Officer, J.L. Funches, explained in his June 14, 2006, 
response to the TSTF that the NRC's budgeted costs must be recovered, 
by law, through fees assessed to licensees and applicants (ADAMS 
Accession Number ML061650078). Mr. Funches also explained that the 
NRC's commitment to allocate budget resources to implement the Policy 
Statement is not related to the assessment of fees. Therefore, the NRC 
did not believe that its assessment of fees for review work of a 
Traveler was a contradiction to the Policy Statement.
    The NRC continues to believe it is fair and appropriate to apply 
the fee exemption criteria in Sec.  170.11 to all Special projects as 
defined under Sec.  170.3, ``Definitions.'' The NRC is unable to 
determine in advance whether all Travelers will meet the fee exemption 
criteria; thus, the NRC must separately review each fee exemption 
request to determine whether the fee exemption criteria apply.
    With regard to the use of the CLIIP process in saving significant 
NRC resources, although the NRC is committed to actions which promote 
the efficient use of NRC resources, providing a fee exemption based on 
a cost savings to the NRC is contrary to the IOAA. Under the authority 
of the IOAA, the NRC recovers the costs of providing special benefits 
to identifiable applicants and licensees. In response to the petition 
comment that the imposition of review fees is unduly burdensome on the 
industry, with extremely limited exceptions, the NRC does not base its 
fees on the economic circumstances of particular licensees or classes 
of licensees. If the NRC were to grant the petition, other licensees 
would be required to subsidize the Travelers through increased fees in 
order for the NRC to meet the requirements of OBRA-90.
    The petitioner offers no new arguments for the NRC's consideration. 
Therefore, the NRC has determined that it would be an unwise 
expenditure of resources to conduct a rulemaking on this matter.
    For these reasons, the Commission denies PRM-170-6.


[[Page 7384]]


    Dated at Rockville, Maryland, this 5th day of February, 2009.

    For the Nuclear Regulatory Commission.
J.E. Dyer,
Chief Financial Officer.
 [FR Doc. E9-3144 Filed 2-13-09; 8:45 am]
BILLING CODE 7590-01-P