[Federal Register Volume 70, Number 226 (Friday, November 25, 2005)]
[Notices]
[Pages 71107-71112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23177]
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DEPARTMENT OF ENERGY
Standby Support for Certain Advanced Nuclear Facilities
AGENCY: Department of Energy.
ACTION: Notice of inquiry, request for comments and public workshop.
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SUMMARY: The Department of Energy is seeking comment and information
from the public to assist the Department in deciding how to implement
section 638 of the Energy Policy Act of 2005. That section authorizes
the Secretary of Energy to enter into standby support contracts with
sponsors of advanced nuclear power facilities to provide risk insurance
for certain delays attributed to facility licensing or litigation.
DATES: Interested persons must submit written comments by December 23,
2005. Comments may be mailed to the address given in the ADDRESSES
section below. Comments also may be submitted electronically by e-
mailing them to: [email protected]. We note that e-mail
submissions will avoid delay currently associated with security
screening of U.S. Postal Service mail. A public workshop will be held
on December 15, 2005 from 8:30 a.m. to 12 p.m. and from 1 p.m. to 5
p.m. Requests to speak at the workshop should be made through the
http://www.Nuclear.gov Web site at least one week before the workshop.
ADDRESSES: Written comments should be addressed to Kenneth Wade, Office
of Nuclear Energy, U.S. Department of Energy, Forrestal Building, 1000
Independence Avenue, SW., Washington, DC 20585. The Department
requires, in hard copy, a signed original and three copies of all
comments.
Copies of the public workshop transcripts, written comments
received, and any other docket material may be reviewed on the Web site
specifically established for this proceeding. The Internet Web site is
http://www.Nuclear.gov.
The public workshop will be held at the Marriot Residence Inn, 7335
Wisconsin Avenue, Bethesda, MD 20814 on December 15, 2005.
FOR FURTHER INFORMATION CONTACT: Kenneth Wade, Project Manager, Office
of Nuclear Energy, NE-30, U.S. Department of Energy, 1000 Independence
Avenue, SW., Washington, DC 20585 (202) 586-1889 or Marvin Shaw,
Attorney-Advisor, U.S. Department of Energy, Office of the General
Counsel, GC-52, 1000 Independence Avenue, SW., Washington, DC 20585
(202) 585-2906.
SUPPLEMENTARY INFORMATION:
I. Overview and Purpose of the Statute
No new nuclear power electric generation facility has been ordered
or licensed in the United States in almost 30 years. Some utilities
attribute their reluctance to invest in such facilities to potential or
anticipated delays resulting from the Nuclear Regulatory Commission
(``Commission'') licensing process or delays attributable to potential
litigation. Recognizing the reluctance of utilities or other potential
investors to order and construct new facilities, Congress, the
Department of Energy (``Department''), the Commission and other
governmental entities have attempted to facilitate and encourage the
licensing and full power operation of new nuclear facilities.
In 1989, the Commission promulgated 10 CFR part 52 in order to
establish the early site permit, design certification, and combined
license processes to enhance the efficiency and effectiveness of the
regulatory approval process for siting and licensing new plants. In the
Energy Policy Act of 1992 (Title XXVIII of Pub. L. 102-486), Congress
amended the Atomic Energy Act of 1954 (AEA) to further facilitate the
standardization and streamlining of nuclear power plant licensing by
providing explicit authority to the Commission for the issuance of
combined construction and operating licenses (COL). An integral part of
the COL process is the use of ``Inspections, Tests, Analyses and
Acceptance Criteria'' (ITAAC) to serve as a basis for ascertaining,
during plant construction, whether the licensee is meeting the
requirements of the COL so that plant operations can commence
predictably upon construction completion. However, since there has not
been any application for a COL in the 16 years since the Commission
published 10 CFR part 52, the efficiency and effectiveness of these
processes have neither been demonstrated in actual practice nor tested
in court.
In February 2002, the Department established the Nuclear Power 2010
program, a joint government/industry cost-shared effort to identify
sites for new nuclear power plants, to develop and bring to market
advanced nuclear plant technologies, evaluate the business case for
building new nuclear power plants, and demonstrate untested regulatory
processes leading to an industry decision in the next few years to seek
Commission approval to build and operate at least one new advanced
nuclear power plant in the United States. In 2003, as part of the
Nuclear Power 2010 program, the Department funded a report titled, The
Business Case for New Nuclear Power Plants (July
[[Page 71108]]
2003) (see http://www.nuclear.gov/home/bc/businesscase.html) which
defined critical risks and investment issues.
On April 27, 2005, in a speech at the National Small Business
Conference, President George W. Bush called for ``changes to existing
law that will reduce uncertainty in the nuclear plant licensing
process, and also provide Federal risk insurance that will protect
those building the first four new nuclear plants against delays that
are beyond their control.'' (see http://www.whitehouse.gov/news/releases/2005/04/print/20050427-3; see also http://www.whitehouse.gov/news/releases/2005/06/print/20050622.html).
Several months later, Congress passed and President Bush signed
into law the Energy Policy Act of 2005 (the Act). Section 638 of the
Act addresses the President's proposal to reduce uncertainty in the
licensing of advanced nuclear facilities. (42 U.S.C. 16014). The
overriding purpose of section 638 is to facilitate the construction and
full power operation of new advanced nuclear facilities by providing
risk insurance for such projects. Such insurance is intended to reduce
financial disincentives and uncertainties for utilities that are beyond
their control so that they will invest in the construction of new
nuclear facilities. By providing insurance to cover certain of these
risks, the Federal Government can reduce the financial risk to project
sponsors that invest in electric generation facilities that the
Administration and Congress believe are necessary to promote a more
diverse and secure supply of energy for the Nation.
II. Discussion of Section 638 and Request for Public Comment
A. Overview
Subsection (g) of section 638 provides for regulations necessary to
carry out section 638. This NOI discusses some of the major topics
related to section 638, including the types of sponsors and facilities
covered, the Secretary's contracting authority, appropriations and
funding accounts, covered and excluded delays, covered costs and
requirements, and disagreements and dispute resolution. For some
topics, this NOI indicates implementation approaches and
interpretations that the Department is considering. It also identifies
topics on which the Department specifically requests comments. The
Department requests comments from the public about these topics and any
other issues related to the implementation of section 638. The
Department also welcomes comments about the extent to which potential
sponsors may be interested in entering into standby support contracts
with the Department, and how the authority in section 638 can be
implemented most effectively to achieve the objective of reducing
uncertainty in the nuclear plant licensing process and thereby
facilitate the expeditious construction and operation of new nuclear
power plants.
B. Definitions
Subsection (a) of section 638 defines the terms ``advanced nuclear
facility,'' ``sponsor,'' and ``combined license'' as follows.
``Advanced nuclear facility'' is any nuclear facility for which the
Commission approves the reactor design after December 31, 1993,
provided that the Commission has not approved such design or a
substantially similar design of comparable capacity on or before that
date. ``Sponsor'' is any person who has applied for or been granted a
combined license. ``Combined License'' is a combined construction
permit and operating license issued by the Commission for an advanced
nuclear facility. While the Department believes these terms are clear,
it requests comments as to whether the implementation of section 638
would be facilitated by the Department further clarifying, either in
regulations or in the standby support contracts themselves, these terms
or any other terms set forth in section 638 (such as ``the fair market
price of power'' in subsection (d)(5)(B)). If a commenter believes that
it would be more appropriate for certain clarifications and definitions
to be provided in regulations instead of the contracts themselves, or
vice versa, the commenter should explain why.
C. Contract Authority
Subsection (b) of section 638 authorizes the Secretary to enter
into standby support contracts with sponsors of advanced nuclear
facilities that would provide risk insurance against certain regulatory
or legal delays that are not the fault of the sponsors but which have
the potential to dramatically increase the cost of bringing new nuclear
power plants on line. Subsection (b) directs that sufficient funding to
pay the covered costs under these contracts be placed in designated
Departmental accounts when the contracts are entered into. Subsection
(b) provides that only six reactors can receive benefits under these
contracts. In addition, subsection (d) provides for different amounts
of covered costs with respect to the initial two reactors that receive
their COL and commence construction and the subsequent four reactors.
Section 638 grants the Secretary considerable discretion as to
when, how and with whom to enter into standby support contracts. The
Department believes that the objectives of section 638 are best
achieved by maximizing the opportunities for sponsors to enter into
standby support contracts as early as practical. The Department
recognizes, however, that entering into a contract with a sponsor
before the sponsor receives a COL and commences construction may raise
a number of implementation issues. These issues arise from, among other
things, the requirement to have adequate funding in the accounts before
entering into a contract, the different treatment of the initial two
facilities and the subsequent four facilities, and the disposition of
funds received from a sponsor (see discussion in subsection D of this
NOI).
The Department's initial view is that these considerations can be
addressed best by the Department being willing to enter into binding
agreements with sponsors that submit COL applications to the
Commission, at any time on or after such an application is submitted.
These agreements between the Department and project sponsors would not
themselves be standby support contracts, but would commit the
Department to enter into standby support contracts under section 638
with the sponsors of the first six reactors for which a COL is granted
and construction commenced. In commenting on this potential approach,
consideration should be given as to what provisions might be included
in the agreements to deal with issues such as calculating the amount of
funding, if any, from the sponsors and taking into account the extent
to which appropriated funds are available. The Department requests
comments on whether, at the time the Department and the sponsors enter
into the binding agreement or at any other specified time, the sponsors
should be required to deposit funds in an escrow account to cover all
or some of the anticipated funding requirements of the contract. The
Department also welcomes comments on whether other options would be
more effective in achieving the objectives of section 638, and, if so,
what regulatory or contractual provisions would be useful in
implementing these options.
In a related matter, the Department requests comments on whether to
utilize an application process. There are many contract process and
implementation issues that may be addressed in an application process.
For example,
[[Page 71109]]
should the Department require a fee to accompany the application, and,
if so, how much should the fee be and should it be refundable? Should
the application process be used to assist in determining the amount of
funding needed prior to entering into a contract? Should the applicant/
sponsor be required to submit an analysis showing the proposed ``cost''
of the standby support contract? Should the application process be open
to all sponsors or should there be criteria to exclude certain entities
or to select among applicants? What level of detail should the
Department institute in any application process? The Department
requests comments on the advantages and disadvantages of a detailed
application process, including comments on the content and how best to
implement such an application process.
The Department also requests comments on whether the regulations or
the contracts themselves should provide DOE with the right to cancel a
contract should a sponsor not proceed diligently to construct a
facility that has received a COL and on which construction has
commenced. The Department believes that the objective of section 638 is
not to simply encourage the licensing of facilities, but to see that
they are successfully constructed and brought online. Yet it is
possible that, for a variety of potential reasons, a sponsor might be
unable or unwilling to proceed with expeditious construction and
completion of a licensed facility. Because the Act only allows DOE to
enter into standby support contracts ``that cover a total of 6
reactors,'' should DOE be able to cancel a contract in certain
circumstances, thereby potentially ``freeing up'' one or more of the
authorized spots so that DOE could enter into a standby support
contract with another sponsor? If so, what are the circumstances that
should allow DOE to do so? DOE requests comment on all aspects of this
issue.
D. Appropriations and Funding Accounts
Subsection (b)(2) establishes a funding requirement that must be
met before the Secretary can enter into any standby support contract.
Specifically, the Department must establish two separate accounts and
have a specified amount of funds in the account before entering into a
contract. The first account is labeled as a ``Standby Support Program
Account'' (``Program Account''), and the second account is labeled as a
``Standby Support Grant Account'' (``Grant Account''). Subsection
(b)(2)(C) specifies that the Program Account contains funds either
appropriated to the Secretary in advance of the contract or a
combination of appropriated funds and loan guarantee fees. This funding
is required to be in an amount sufficient to cover loan costs.
Subsection (b)(2) specifies that the term ``loan cost'' has the meaning
given the term ``cost of a loan guarantee'' under section 502(5)(C) of
the Federal Credit Reform Act of 1990 (2 U.S.C. 661a(5)(C)), which is
``the net present value, at the time when the guarantee loan is
disbursed,'' of certain costs. The costs for purposes of subsection
(b)(2)(C)(i) are identified by a cross-reference to the costs described
in subsection (d)(5)(A) which are the principal or interest on any debt
obligation of an advanced nuclear facility owned by a non-Federal
entity. Subsection (b)(2)(C)(ii) specifies that the ``Grant Account''
contains funds either appropriated to the Secretary in advance of the
contract, funds paid to the Secretary by the sponsor, or a combination
of appropriations and payments. This funding is required to be in an
amount sufficient to cover the costs described in subsection (d)(5)(B)
which are the incremental difference between (i) the fair market price
of power purchased to meet the contractual supply agreements that would
have been met by the advanced nuclear facility but for the delay, and
(ii) the contractual price of power from the advanced nuclear facility
subject to the delay.
Funding for both the Program Account and the Grant Account may be
provided by either or both the Federal Government and sponsors of
advanced nuclear facilities. In this regard, the Department notes that
the provision in subsection (d)(4)(B) allowing acceptance of non-
federal funds makes those non-federal funds available to the Secretary
only to pay covered costs. Because the funds are made available to the
Secretary ``for payment of the covered costs'' and not for any other
purpose, the Secretary is only able to use the funds for that purpose
(see 31 U.S.C. 1301(a)). If funds are not expended on covered costs,
the Department anticipates that at the end of the program the
government would move to close the account under 31 U.S.C. 1555 and
deposit the funds into the general Treasury (see 31 U.S.C. 1555, 31
U.S.C. 3302(b)). The Department requests comment as to what extent, if
any, these provisions will affect participation in the program. The
Department also requests comment on what is the appropriate mix between
government appropriations, sponsor payments, and a combination of both.
Congress specified certain details of the methodology for
calculating the funding that must be in the two accounts prior to
entering into a contract. However, the Department has considerable
discretion in the implementation of that methodology. The Department
must decide whether to calculate the funding on a generic basis that
would result in the same funding for each facility or on a facility
specific basis that would result in different funding for each
facility. The Department also must decide whether to differentiate
between the initial two facilities and the subsequent four facilities.
The Department requests comments on how it should exercise this
discretion and, in particular, what factors it should consider in
determining both the overall amount of funding and the portion, if any,
required from the sponsors.
In a related matter, the Department requests comments on whether,
if a sponsor participates in the section 638 risk insurance program,
and any loan guarantee program for which the sponsor may be eligible
pursuant to Title XVII of the Act, and/or the production tax credits
for advanced nuclear facilities in section 1306 of the Act, there
should be any adjustment in the amount paid to the Department by the
sponsor to participate in more than one program or in the amounts that
a sponsor can receive under more than one program.
E. Covered and Excluded Delays
Covered Delays. Subsection (c) specifies situations in which the
Secretary will pay the ``covered costs'' and situations in which the
Secretary is precluded from paying such costs. Among the situations set
forth in subsection (c)(1) in which the Secretary will pay such costs
are (A) ``the failure of the Commission to comply with schedules for
review and approval of inspections, tests, analyses, and acceptance
criteria established under the combined license or the conduct of
preoperational hearings by the Commission * * *'' or (B) ``litigation
that delays the commencement of full-power operations * * *''. The
terms of subsection (c)(1)(A) are closely related to the part 52 COL
licensing process. The COL issued to the licensee specifies the
inspections, tests, analyses and acceptance criteria (which are known
as ITAACs) with which the licensee must comply. The Commission requires
verification that the licensee has completed the required inspections,
tests, and analyses, and that the acceptance criteria have been met
before the reactor can operate. However, the
[[Page 71110]]
Commission's regulations do not set any schedules for completing ITAAC
review. Rather, under the COL, the licensee sets the schedule for
ITAACs and may change the schedule as circumstances warrant. Although
the Commission may set informal, internal schedules for auditing the
licensee's performance of its ITAAC and will provide public notice upon
completion of its review, there is no regulatory requirement for the
Commission's conduct or timing of such auditing.
The part 52 regulations provide that the Commission give notice of
intended operation not less than 180 days prior to the scheduled date
for initial fuel load. During this time, the Commission intends to
complete its review of the ITAACs and make a final determination
whether the acceptance criteria have been met and reactor operations
can begin. Given the complexity of the ITAAC review process, a back-
loading of submissions to the Commission toward the end of the 180-day
period might cause the Commission to be unable to complete its audit
process prior to the fuel loading date. Thus, while a delay in
operation might initially appear to be attributable to delays by the
Commission, in fact the delay might be more attributable to a sponsor's
relatively late completion and submittal of the ITAACs. The Department
notes that these issues likely could be satisfactorily addressed
through Commission regulations, audit procedures or guidance as they
currently exist, or modified as appropriate and necessary. If no
changes were made to the Commission's current regulations or
procedures, however, the Department requests comments on how to address
this situation either through the Department's section 638 regulations
or through the standby support contracts.
The Department also believes it is possible that even if there is
an ITAAC-related delay attributable to Commission regulatory delays,
such a delay in the regulatory schedule might not be the cause of any
delay in the full power operation of a nuclear facility that does in
fact occur. For example, other factors (such as construction or
engineering delays) might contribute to or be the primary cause of the
delay. The Department requests comment on how best to establish whether
the Commission failed to comply with the ITAAC schedules and, if so,
whether such delay by the Commission is in fact the cause of a delay in
full power operation. Specifically, are there any objective,
unambiguous triggers that the Department could include in a regulation
or in individual contracts to better ascertain whether a delay should
be attributable to the Commission and thus covered by the contracts.
In addition, some delays may be caused by other governmental
entities, including the Federal Emergency Management Agency (FEMA) and
State and local governments. Before full power reactor operations may
commence, the Commission must determine that the off-site emergency
plans are adequate and in place. Specifically, under 10 CFR part 50,
subsection 50.47(a) ``Emergency Plans,'' (which is also applicable to
facilities licensed under part 52), the Commission will base its
emergency planning findings on review of a related FEMA determination
whether ``State and local emergency plans are adequate and whether
there is reasonable assurance that they can be implemented.''
Similarly, under section 50.47(c), State and local governments may be
responsible for some delays, if they decide not to participate in the
emergency planning process with FEMA. The Department requests comment
as to how best to treat delays that are caused by other governmental
agencies and thus may be beyond the control of the Commission.
Subsection (c)(1)(A) also refers to delays in full power operation
of advanced nuclear facilities caused by ``the conduct of
preoperational hearings by the Commission * * *'' This section is
susceptible of two different interpretations; it either can be
interpreted to allow coverage only for delays associated with
preoperational hearings where the Commission has failed to comply with
applicable schedules, or it can be interpreted to allow coverage for
delays associated with any preoperational hearings, regardless of who
requested or caused the hearing and regardless of whether there was a
``failure'' of any kind by the Commission.
After issuance of the COL, there is only one opportunity for a
public hearing in part 52 (i.e., when a sponsor is ready to load fuel,
it must notify the Commission and the Commission must, at least 180
days prior to the load fuel date, issue a public notice and opportunity
for hearing on the proposed operation. See section 52.103.) The hearing
may be held at the discretion of the Commission based on the showing by
an outside entity that the acceptance criteria have not been met. There
is no preset schedule for the conduct of the pre-operational hearing if
it is granted, and the hearing may be formal or informal. If formal,
the timing related to and the conclusion of the process is very
uncertain. Given the undefined and untested process for a COL, it is
not clear which party would be at fault for a delay caused by a pre-
operational hearing, or even if ``fault'' is a relevant concept in
holding another hearing to ascertain if the public's overriding need
for safety is satisfied.
As a result, the Department is inclined to interpret subsection
(c)(1)(A) as meaning that a ``covered delay'' includes any delay caused
by the conduct of preoperational hearings by the Commission. The
Department requests comments on this interpretation, how best to
implement it, any alternatives, and all other aspects of subsection
(c)(1)(A). In particular, given the potential interpretation that some
portion of a delay caused by a preoperational hearing might not be
considered a ``covered'' delay, the Department requests comments on
whether a regulatory delay should only be considered a ``covered
delay'' after a certain time period, as specified by contract or
regulation. If so, what time period would be appropriate?
Subsection (c)(1)(B) refers to ``litigation that delays the
commencement of full-power operations * * *'' Black's Law Dictionary
broadly defines the term ``litigation'' as ``The process of carrying on
a lawsuit,'' and the term ``lawsuit'' is defined as: ``any proceeding
by a party or parties in a court of law.'' In the context of the COL
process, there may be litigation both before an administrative board to
adjudicate claims in the Commission licensing process and in Federal
court. The Act is silent as to what type of litigation section 638
refers. Because subsection (c)(1)(A) already refers to certain
Commission proceedings that may delay full power operation, the
Department is inclined to interpret the term ``litigation'' in
subsection (c)(1)(B) as meaning only litigation in State, Federal, or
tribal courts, including appeals of Commission licensing decisions, and
excluding administrative litigation that occurs at the Commission as
part of the COL process. The Department requests comment as to what
type of litigation delays should be covered by the Program.
Although the term ``full power operation'' is not defined in
section 638 or 10 CFR part 52, the Commission generally considers this
to be operation at five percent or greater. (See 10 CFR 2.340(g)(1);
and Statement of Policy on Issuance of Uncontested Fuel Loading and
Lower Power Testing Operating Licenses, 46 FR 47906, September 30,
1981) The Department intends to follow the Commission practice but
nevertheless requests comments on how to incorporate this
interpretation of ``full
[[Page 71111]]
power operation'' into the regulations carrying out section 638.
Exclusions. Subsection (c)(2) expressly precludes the Secretary
from paying costs resulting from three general areas: ``(A) The failure
of the sponsor to take any action required by law or regulation; (B)
events within the control of the sponsor; or (C) normal business
risks.'' The Department requests comment on how best to interpret and
apply this subsection, including examples of each category of
exclusion. The Department particularly invites the public to respond to
the following questions. What areas of laws and regulations are likely
to be involved? What events should be considered within the control of
the sponsor and what events should be considered beyond its control?
What should be considered a normal business risk, and thus not
coverable under the Program? How should these exclusions be implemented
with respect to the expressly covered delay caused by the ``conduct of
preoperational hearings''? In other words, for example, if a sponsor's
alleged failure to take an action required by law is the reason that
the Commission holds a preoperational hearing, is the delay caused by
that hearing a covered delay or an excluded delay? For each of these
questions, the Department requests that commenters provide examples.
Due Diligence. Subsection (e) specifies that any standby support
contract requires ``the sponsor to use due diligence to shorten, and to
end, the delay covered by the contract.'' Black's Law Dictionary
defines ``diligence as (1) a continual effort to accomplish something
and (2) the attention and care required from a person in a given
situation. In turn, Black's Law Dictionary defines ``due diligence'' as
``[t]he diligence reasonably expected from, and ordinarily exercised by
a person who seeks to satisfy a legal requirement or a discharge of an
obligation.'' The Department requests comments on how this term should
be used in the context of a standby support contract, whether it should
be further defined in the regulations or contracts, specific examples
of situations that commenters believe should or should not come within
the term, and how the Department should determine due diligence by the
sponsor.
F. Covered Costs and Requirements
Subsection (d) provides for the coverage of costs that result from
a delay during construction and in gaining approval for full power
operation, specifically (A) principal and interest and (B) incremental
cost of purchasing power to meet contractual agreements. The Department
requests comments on how these costs should be documented, especially
the extent to which they are used in calculating the funding needed
prior to entering into a contract.
In addition, while the Department anticipates only covering those
costs specifically described in subsection (d)(5)(i) and (ii), it notes
that subsection (d)(5) states that the covered costs shall be those
that result from certain delays ``including'' the costs specifically
described in subsection (d)(5)(i) and (ii). As a result, it might be
possible to interpret subsection (d)(5) as authorizing the Department
to provide coverage for costs in addition to those specifically
described in subsections (d)(5)(i) and (ii). The Department requests
comment on whether those are the only costs that should be covered
under the contracts and whether the Grant Account and the Program
Account are restricted to covering a particular type of cost (i.e., the
cost on which funding is based).
Subsection (d) distinguishes between the ``Initial Two Reactors''
that receive combined licenses and on which construction is commenced
and the ``Subsequent Four Reactors.'' With respect to each of the
Initial Two Reactors, the Secretary is required to pay 100 percent of
the covered costs of delay, but not more than $500 million per
contract. With respect to the Subsequent Four Reactors, the Secretary
is required to pay ``50 percent of the covered costs of delay that
occur after the initial 180-day period of covered delay, but not more
than $250 million per contract. The Department requests comment on the
following issues: If there are two reactors being constructed by one
sponsor at one location/facility, should there be two contracts in
order for the sponsor to receive up to $500 million in coverage per
reactor? Should a sponsor be precluded from entering into a contract
that includes more than one reactor? In addition, the Department
requests comment about the term ``commencement of construction'' given
that neither part 52 nor section 638 defines this term. The
commencement of construction of a facility may be defined in several
ways, including activities such as the planning and design of a reactor
facility, a firm purchase order for a reactor facility, or preparation
of a site in anticipation of facility construction. On the other hand,
under part 52, the Commission will issue a COL only upon finding that
applicable regulatory requirements have been met, and that ``there is
reasonable assurance that the facility will be constructed and operated
in conformity with the license, the provisions of the Atomic Energy
Act, and the Commission's regulations.'' 10 CFR part 52.97. The
Department believes it is reasonable to interpret ``commencement of
construction'' in a manner consistent with Commission practice and
requests comments on what would be the elements of such an
interpretation.
G. Disagreements and Dispute Resolution
Just as with any commercial insurance contract, there may be
potential areas in which a sponsor may disagree with the Department as
to an interpretation of a section 638 risk insurance contract
provision. The Act does not require any particular dispute resolution
mechanism or procedure, and therefore the Department requests comment
on how disputes between sponsors and the Department should be resolved,
and what dispute resolution provisions should be included in the
applicable regulations or contracts.
The Department notes that an important consideration is to make the
standby support regulations that implement section 638 workable, so
that they can be readily administered in an efficient and effective
manner. Specifically, the regulations may need to include a mechanism
to resolve factual and legal disputes as to whether a delay is covered
or excluded as well as which party is at fault for a particular delay
or event. Other Federal agencies that provide financial assistance have
established oversight offices to monitor the projects they fund. For
instance, the Department of Transportation's Transportation
Infrastructure Finance and Innovation Act (TIFIA) program, which
provides grants for surface transportation projects, has established a
TIFIA Joint Program Office to coordinate and manage the implementation
of the TIFIA credit program. (See ``TIFIA Project Oversight and Credit
Monitoring Guidance'' (http://tifia.fhwa.dot.gov/oversight.htm))
Similarly, the Oversees Private Investment Corporation (OPIC), which
provides political risk insurance to U.S. businesses that invest
oversees, has established its Office of Accountability to monitor OPIC
supported projects. (see http://www.opic.gov) Although these programs
cover or potentially cover far more entities and projects than the
finite number of projects that may be covered by the Standby Support
Program, they may provide guidance as to how the Department should
resolve disputes.
[[Page 71112]]
H. Monitoring and Reporting Requirements
Subsection (f) requires the Commission to report to the Secretary
and Congress on a quarterly basis regarding the licensing status of
advanced nuclear facilities covered by a standby support contract.
Apart from the Commission's statutory reports, the Department requests
comments on the need to require any other reporting by the sponsor or
others to the Department to assist the Department in its monitoring
responsibilities, including the content, timing and impact of such
reporting. Similarly, the Department requests comment on any other
reporting or monitoring activities it should engage in to fulfill its
responsibilities under the contract.
III. Public Participation
A. Attendance at Public Workshop
The time and date of the public workshop are listed in the DATES
section at the beginning of this notice of inquiry. Anyone who wants to
attend the public workshop should register on the Web site (http://
www.nuclear.gov) of the Department's Office of Nuclear Energy, Science
and Technology.
B. Procedure for Submitting Requests To Speak
Any person who has an interest in today's notice or who is a
representative of a group or class of persons that has an interest in
these issues, may request an opportunity to make an oral presentation.
Such persons may hand-deliver requests to speak, along with a computer
diskette or CD in WordPerfect, Microsoft Word, PDF, or text (ASCII)
file format to the address shown in the ADDRESSES section at the
beginning of this notice, between the hours of 9 a.m. and 4 p.m.,
Monday through Friday, except Federal holidays.
Persons requesting to speak should briefly describe the nature of
their interest in this public workshop and provide a telephone number
for contact. The Department requests persons selected to be heard to
submit an advance copy of their statements at least one week before the
public workshop. At its discretion, the Department may permit any
person who cannot supply an advance copy of their statement to
participate, if that person has made advance alternative arrangements
with the Office of Nuclear Energy. A person requesting to give an oral
presentation should ask for such alternative arrangements.
C. Conduct of Public Workshop
The Department will designate a Departmental official to preside at
the public workshop and may also use a professional facilitator to aid
discussion. The meeting will not be a judicial or evidentiary-type
public hearing. A court reporter will be present to record the
proceedings and prepare a transcript. The Department reserves the right
to schedule the order of presentations and to establish procedures
governing the conduct of the public workshop. After the public
workshop, interested parties may submit further comments on the
proceedings as well as any aspect of section 638 until the end of the
comment period set forth in this notice.
The public workshop will be conducted in an informal, conference
style. The Department will allow time for presentations by participants
and encourage all interested parties to share their views on issues
affecting this proceeding. Each participant will be allowed to make a
prepared general statement (within the time limits determined by the
Department), before the discussion of specific topics. The Department
will permit other participants to comment briefly on any general
statements. The presiding official will announce any further procedural
rules or modification of the above procedures that may be needed for
the proper conduct of the public meeting.
The Department will make the entire record of this proceeding,
including the transcript from the public workshop available for
inspection at the U.S. Department of Energy, Forrestal Building, Room
1J-018, 1000 Independence Avenue, SW., Washington, DC 20585 (202) 586-
9127 between the hours of 9 a.m. and 4 p.m., Monday through Friday,
except Federal holidays. Any person may buy a copy of the transcript of
the public workshop proceedings from the transcribing reporter.
D. Submission of Comments
The Department requests written comments from interested persons on
all aspects of implementing the standby support program authorized by
section 638 of the Act. All information provided by commenters will be
available for public inspection at the Department of Energy, Freedom of
Information Reading Room, Room 1E-190, 1000 Independence Avenue, SW.
Washington, DC 20585 between the hours of 9 a.m. and 4 p.m. Monday
through Friday, except for Federal holidays.
The Department also intends to enter all written comments on a Web
site specifically established for this proceeding. The Internet Web
site is http://www.nuclear.gov. To assist the Department in making
public comments available on a Web site, interested persons are
encouraged to submit an electronic version of their written comments in
accordance with the instructions in the DATES section of this notice.
Because the Department intends to make all submissions publicly
available on a Web site, the Department requests that commenters not
submit information believed to be confidential and exempt from public
disclosure. However, if any person chooses to submit information that
he or she considers to be privileged or confidential and potentially
exempt from public disclosure, that person must clearly identify the
information that is considered to be privileged or confidential and
explain why the submitter thinks the information is exempt from
disclosure, addressing as appropriate the criteria for nondisclosure in
the Department's Freedom of Information Act regulations at 10 CFR
1004.11(f). The Department also requests such submitters provide one
copy of their comments from which the information believed to be exempt
from disclosure has been redacted, with the areas where information or
data sought to be protected from disclosure is exempt from such
disclosure in accordance with the procedures set forth in its Freedom
of Information Act regulations at 10 CFR 1004.11.
Factors of interest to the Department when evaluating requests to
treat submitted information as confidential include: (1) A description
of the items; (2) whether and why such items are customarily treated as
confidential within the industry; (3) whether the information is
generally known by or available from other sources; (4) whether the
information has previously been made available to others without
obligation concerning confidentiality; (5) an explanation of the
competitive injury to the submitting person which would result from
public disclosure; (6) when such information might lose its
confidential character due to the passage of time; and (7) why
disclosure of the information would be contrary to the public interest.
Issued in Washington, DC, on November 17, 2005.
R. Shane Johnson,
Acting Director, Office of Nuclear Energy, Science and Technology.
[FR Doc. 05-23177 Filed 11-23-05; 8:45 am]
BILLING CODE 6450-01-P