[Federal Register Volume 76, Number 93 (Friday, May 13, 2011)]
[Proposed Rules]
[Pages 27925-27935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11679]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2 and 52
[NRC-2010-0012]
RIN 3150-AI77
Requirements for Maintenance of Inspections, Tests, Analyses, and
Acceptance Criteria
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission)
is proposing to amend its regulations related to verification of
nuclear power plant construction activities through inspections, tests,
analyses, and acceptance criteria (ITAAC) under a combined license.
Specifically, the NRC is proposing new provisions that apply after a
licensee has completed an ITAAC and submitted an ITAAC closure
notification. The new provisions would require licensees to report new
information materially altering the basis for determining that either
inspections, tests, or analyses were performed as required, or that
acceptance criteria are met, and to notify the NRC of completion of all
ITAAC activities. In addition, the NRC is proposing editorial
corrections to existing language in the NRC's regulations to correct
and clarify ambiguous language and make it consistent with language in
the Atomic Energy Act of 1954, as amended (AEA).
DATES: Submit comments on this proposed rule by July 27, 2011. Submit
comments on the information collection aspects on this proposed rule by
June 13, 2011. Comments received after the above dates will be
considered if it is practical to do so, but assurance of consideration
cannot be given to comments received after these dates.
ADDRESSES: Please include Docket ID NRC-2010-0012 in the subject line
of your comments. You may submit comments by any one of the following
methods:
Federal Rulemaking Web site: Go to http://www.regulations.gov and search for documents filed under Docket ID NRC-
2010-0012. Address questions about NRC dockets to Carol Gallagher,
telephone: 301-492-3668; e-mail: [email protected].
Mail comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attn: Rulemakings and
Adjudications Staff.
E-mail comments to: [email protected]. If you do
not receive a reply e-mail confirming that we have received your
comments, contact us directly at 301-415-1677.
Hand deliver comments to: 11555 Rockville Pike, Rockville,
Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays.
(telephone: 301-415-1677).
Fax comments to: Secretary, U.S. Nuclear Regulatory
Commission at 301-415-1101.
You may submit comments on the information collections by the
methods indicated in the Paperwork Reduction Act Statement, Section XI.
See Section VI, Availability of Documents, for instructions on how
to access NRC's Agencywide Documents Access and Management System
(ADAMS) and other methods for obtaining publicly available documents
related to this action.
FOR FURTHER INFORMATION CONTACT: Mr. Earl Libby, Office of New
Reactors, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001;
telephone: at 301-415-0522; e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Submitting Comments
II. Background
III. Discussion
A. Licensee Programs That Maintain ITAAC Conclusions
B. Additional ITAAC Notifications
C. Conforming Changes to 10 CFR 2.340
IV. Section-by-Section Analysis
V. Guidance
VI. Availability of Documents
VII. Plain Language
VIII. Agreement State Compatibility
IX. Voluntary Consensus Standards
X. Environmental Impact--Categorical Exclusion
XI. Paperwork Reduction Act Statement
XII. Regulatory Analysis
XIII. Regulatory Flexibility Act Certification
XIV. Backfitting and Issue Finality
I. Submitting Comments
Comments submitted in writing or in electronic form will be posted
on the NRC Web site and on the Federal rulemaking Web site http://www.regulations.gov. Because your comments will not be edited to remove
any identifying or contact information, the NRC cautions you against
including any information in your submission that you do not want to be
publicly disclosed.
The NRC requests that any party soliciting or aggregating comments
received from other persons for submission to the NRC inform those
persons that the NRC will not edit their comments to remove any
identifying or contact information, and therefore, they should not
include any information in their comments that they do not want
publicly disclosed.
II. Background
The Commission first issued Title 10 of the Code of Federal
Regulations (10 CFR) part 52, ``Licenses, Certifications, and Approvals
for Nuclear Power Plants,'' on April 18, 1989 (54 FR 15371). Section
52.99, ``Inspection during construction,'' was included to make it
clear that the NRC's inspection carried out during construction under a
combined license would be based on ITAAC proposed by the applicant,
approved by the NRC staff, and incorporated in the combined license. At
that time, the Commission made it clear that, although 10 CFR 52.99
envisioned a ``sign-as-you-go'' process in which the NRC staff would
sign off on inspection units and notice of the staff's sign-off would
be published in the Federal Register, the Commission itself would make
no findings with respect to construction until construction was
complete. See 54 FR 15371; April 18, 1989; at 15383 (second column).
On August 28, 2007 (72 FR 49351), the Commission revised 10 CFR
part 52 to enhance the NRC's regulatory effectiveness and efficiency in
implementing its licensing and approval processes. In that revision,
the NRC amended 10 CFR 52.99 to require licensees to notify the NRC
that the prescribed inspections, tests, and analyses in the ITAAC have
been completed and that the acceptance criteria have been met. The
revision also requires that these notifications contain sufficient
information to demonstrate that the prescribed inspections, tests, and
analyses have been performed and that the prescribed acceptance
criteria have been met. The NRC added this requirement to ensure that
combined license applicants and holders were aware that it was the
licensee's burden to demonstrate compliance with the ITAAC and the NRC
expected the notification of ITAAC completion to contain more
information than just a simple statement that the licensee
[[Page 27926]]
believes the ITAAC had been completed and the acceptance criteria met.
Under Section 185.b of the AEA and 10 CFR 52.97(b), a combined
license for a nuclear power plant (a ``facility'') must contain those
ITAAC that are ``necessary and sufficient to provide reasonable
assurance that the facility has been constructed and will be operated
in conformity with'' the license, the AEA, and NRC regulations.
Following issuance of the combined license, Section 185.b of the AEA
and 10 CFR 52.99(e) require that the Commission ``ensure that the
prescribed inspections, tests, and analyses are performed.'' Finally,
before operation of the facility, Section 185.b of the AEA and 10 CFR
52.103(g) require that the Commission find that the ``prescribed
acceptance criteria are met'' (emphasis added). This Commission finding
will not occur until construction is complete, near the date for
scheduled initial fuel load.
As currently required by 10 CFR 52.99(c)(1), the licensee must
submit ITAAC closure notifications containing ``sufficient information
to demonstrate that the prescribed inspections, tests, and analyses
have been performed and that the associated acceptance criteria have
been met.'' These notifications perform two functions. First, they
alert the NRC to the licensee's completion of the ITAAC \1\ and ensure
that the NRC has sufficient information to complete all of the
activities necessary for the Commission to determine whether all of the
ITAAC acceptance criteria have been or will be met (the ``will be met''
finding is relevant to any hearing on ITAAC under 10 CFR 52.103) before
initial operation. Second, they ensure that interested persons will
have access to information on both completed and uncompleted ITAAC at a
level of detail sufficient to address Section 189.a(1)(B) of the AEA
threshold for requesting a hearing on acceptance criteria. See 72 FR
49352; August 28, 2007, at 49450 (second column).
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\1\ In this discussion, the phrases ``completion of ITAAC'' and
``ITAAC completion'' mean that the licensee has determined that: (1)
The prescribed inspections, tests, and analyses were performed, and
(2) the prescribed acceptance criteria are met.
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After completing the 2007 rulemaking, the NRC began developing
guidance on the ITAAC closure process and the requirements under 10 CFR
52.99. In October 2009, the NRC issued regulatory guidance for the
implementation of the revised 10 CFR 52.99 in Regulatory Guide (RG)
1.215, ``Guidance for ITAAC Closure Under 10 CFR Part 52.'' This RG
endorsed guidance developed by the Nuclear Energy Institute (NEI) in
NEI 08-01, ``Industry Guideline for the ITAAC Closure Process Under 10
CFR Part 52,'' Revision 3, issued January 2009 (ADAMS Accession No.
ML090270415).
After considering information presented by industry representatives
in a series of public meetings, the NRC realized that some additional
implementation issues were left unaddressed by the various provisions
in 10 CFR part 52. In particular, the NRC determined that the combined
license holder should provide additional notifications to the NRC
following the notification of ITAAC completion currently required by 10
CFR 52.99(c)(1). The NRC refers to the time after this ITAAC closure
notification, but before the date the Commission makes the finding
under 10 CFR 52.103(g), as the ITAAC maintenance period. Most recently,
the NRC held two public meetings in March 2010 to discuss draft
proposed rule text that it made available to the public in February
2010. The NRC considered feedback given from external stakeholders
during those meetings in its development of this proposed rule.
Finally, in March 2010, the NRC issued Inspection Procedure 40600,
``Licensee Program for ITAAC Management,'' that provides guidance to
verify licensees have implemented ITAAC maintenance programs to ensure
that structures, systems, and components continue to meet the ITAAC
acceptance criteria until the Commission makes the finding under 10 CFR
52.103(g) allowing operation.
III. Discussion
In brief, the NRC is proposing the following new notifications
subsequent to ITAAC closure:
ITAAC post-closure notification
All ITAAC complete notification
In general, the reasons for these proposed new notifications are
analogous to the reasons presented in the 2007 rulemaking for the
existing 10 CFR 52.99(c) notifications (i.e., to ensure that the NRC
has sufficient information, in light of new information developed or
identified after the ITAAC closure notification under 10 CFR
52.99(c)(1), to complete all of the activities necessary for the
Commission to make a determination on ITAAC, and to ensure that
interested persons have access to information on ITAAC at a level of
detail sufficient to address the AEA Section 189.a(1)(B) threshold for
requesting a hearing). After evaluating the various means of ensuring
that the Commission has sufficient information to make a determination
on ITAAC, and that interested persons have access to sufficient ITAAC
information, the NRC is proposing a performance-based rule augmented by
guidance. The details of timing and content of the proposed new
notifications are captured in draft guidance being issued for public
comment simultaneously with this proposed rule, as discussed in more
detail in Section V, ``Guidance,'' of this document. The NRC believes
that this approach will allow more flexibility to adjust the guidance
based on lessons learned during early implementation of the ITAAC
process under the first combined licenses. Based upon the NRC's
experience with the overall NRC oversight and verification of ITAAC,
the notification provisions of the rule, the ITAAC hearing process, and
the process for making the 10 CFR 52.103(g) finding, the NRC may revise
and supplement the final guidance on the timing and content of
notifications.
The NRC notes that it would not be solely relying on the existence
of this proposed rulemaking, if approved as a final rule, as a primary
basis for the 10 CFR 52.103(g) finding. Rather, the NRC would use a
holistic review using results from the NRC's construction inspection
program and ITAAC closure review process as primary factors supporting
a conclusion that the acceptance criteria in the combined license are
met.
Each of the proposed notification requirements in this rulemaking,
and the basis for each of the proposed requirements, are described in
Section III.B, ``Additional ITAAC Notifications,'' of this document.
The NRC is also proposing several editorial changes to 10 CFR 52.99 in
paragraphs (b), (c)(1), proposed (c)(3) (current (c)(2)), and (d)(1).
In all of these cases, the NRC is proposing to replace the phrase
``acceptance criteria have been met'' with the phrase ``acceptance
criteria are met'' for consistency with the wording of the requirement
in 10 CFR 52.103(g) on the Commission's ITAAC finding, which is derived
directly from wording in the AEA. In addition, the NRC is proposing an
editorial change to 10 CFR 52.99(d)(2) to replace the phrase ``ITAAC
has been met'' with the phrase ``prescribed acceptance criteria are
met'' for consistency with the wording in 10 CFR 52.99(d)(1).
A. Licensee Programs That Maintain ITAAC Conclusions
One essential element in ensuring the maintenance of successfully
completed ITAAC involves the use of established licensee programs such
as the Quality Assurance Program, Problem Identification and Resolution
Program, Maintenance/Construction Program, and Design and Configuration
Management Program. Each program credited with
[[Page 27927]]
supporting the maintenance of completed ITAAC should contain attributes
that maintain the validity of the ITAAC determination basis. These
program attributes include the following:
Licensee screening of activities and events for impact on
ITAAC;
Licensee determination of whether supplemental ITAAC
notification is required; and
Licensee supplement of the ITAAC closure package as
appropriate to demonstrate that the acceptance criteria continue to be
met.
The NRC expects these programs to be fully implemented and
effective before the licensee takes credit for them as an appropriate
means of supporting ITAAC maintenance. These programs will be subject
to NRC inspection.
B. Additional ITAAC Notifications
The NRC's confidence in the licensee's ability to maintain the
validity of completed ITAAC conclusions relies on timely communication.
Currently, 10 CFR 52.99 specifies two ITAAC notification requirements
for licensees. These notifications are the ITAAC closure notifications
required by 10 CFR 52.99(c)(1) and the notification of uncompleted
ITAAC required by 10 CFR 52.99(c)(2) (proposed 10 CFR 52.99(c)(3)) no
less than 225 days before scheduled fuel load. The NRC believes that
additional formal notifications to the NRC are needed that are not
currently required by regulation.
ITAAC Post-Closure Notification
The first new notification is contained in proposed 10 CFR
52.99(c)(2), ``ITAAC post-closure notifications,'' and would be
required following the licensee's ITAAC closure notifications under 10
CFR 52.99(c)(1) until the Commission makes the finding under 10 CFR
52.103(g). This provision would require the licensee to notify the NRC,
in a timely manner, of new information materially altering the basis
for determining that either inspections, tests, or analyses were
performed as required, or that acceptance criteria are met (referred to
as the ITAAC determination basis).
The licensee is responsible for maintaining the validity of the
ITAAC conclusions after completion of the ITAAC. If the ITAAC
determination basis is materially altered, the licensee is expected to
notify the NRC. Through public workshops and stakeholder interaction,
the NRC has developed thresholds to identify when activities would
materially alter the basis for determining that a prescribed
inspection, test, or analysis was performed as required, or finding
that a prescribed acceptance criterion is met. One obvious case is that
a notification under proposed paragraph (c)(2) would be required to
correct a material error or omission in the original ITAAC closure
notification.
Section 52.6, ``Completeness and accuracy of information,''
paragraph (a), requires that information provided to the Commission by
a licensee be complete and accurate in all material respects. However,
it might be the case that the original closure notification was
complete and accurate when sent, but subsequent events materially alter
the ITAAC determination bases. Also, a material error or omission might
not be discovered until after the ITAAC closure notification is sent.
It is possible that new information materially altering the ITAAC
determination bases would not rise to the reporting threshold under 10
CFR 52.6(b). As required by 10 CFR 52.6(b), licensees must notify the
Commission of information identified by the licensee as having, for the
regulated activity, a significant implication for public health and
safety or the common defense and security. Given the primary purpose of
ITAAC, to verify that the plant has been constructed and will be
operated in compliance with the approved design, the NRC believes that
it cannot rely on the provisions in 10 CFR 52.6 for licensee reporting
of new information materially altering the ITAAC determination bases.
The reasons for this conclusion are as follows:
1. Material errors and omissions in ITAAC closure notifications,
relevant to the accuracy and completeness of the documented bases for
the Commission's finding on ITAAC, may nonetheless be determined in
isolation by a licensee as not having a significant implication for
public health and safety or common defense and security.
2. A Commission finding of compliance with acceptance criteria in
the ITAAC is required, under Section 185.b of the AEA, in order for the
combined license holder to commence operation.
3. The addition of specific reporting requirements addressing
information relevant and material to the ITAAC finding ensures that the
NRC will get the necessary reports as a matter of regulatory
requirement, and allows the NRC to determine the timing and content of
these reports so that they serve the regulatory needs of the NRC.
Therefore, the NRC intends that these issues will be reported under
proposed 10 CFR 52.99(c)(2). In addition to the reporting of material
errors and omissions, the NRC has identified other circumstances in
which reporting under this provision would be required (i.e., reporting
thresholds). These reporting thresholds are described in more detail in
the Section IV, ``Section-By-Section Analysis,'' of this document.
When making the 10 CFR 52.103(g) finding, the NRC must have
information sufficient to determine that the relevant acceptance
criteria are met despite the new information prompting the notification
under proposed paragraph (c)(2). The licensee's summary statement of
the basis for resolving the issue which is the subject of the
notification, a discussion of any action taken, and a list of the key
licensee documents supporting the resolution and its implementation,
would assist the NRC in making its independent evaluation of the issue.
Apart from the NRC's use of the information, the NRC also believes that
public availability of such information is necessary to ensure that
interested persons will have sufficient information to review when
preparing a request for a hearing under 10 CFR 52.103, comparable to
the information provided under paragraph (c)(1), as described in the
Statements of Consideration for the 2007 rulemaking. See August 28,
2007; 72 FR 49352, at 49384 (second and third column). Accordingly, the
NRC proposes that after a licensee identifies new information
materially altering the ITAAC determination basis, it must then submit
what is essentially a ``resolution'' notification to the NRC in the
form of an ITAAC post-closure notification. The ITAAC post-closure
notification, described in proposed paragraph (c)(2), would require the
licensee to submit a written notification of the resolution of the
circumstances surrounding the identification of new information
materially altering the ITAAC determination basis. The ITAAC post-
closure notification must contain sufficient information demonstrating
that, notwithstanding the information that prompted notification, the
prescribed inspections, tests, and analyses have been performed as
required and the prescribed acceptance criteria are met. The ITAAC
post-closure notifications should explain the need for the
notification, outline the resolution of the issue, and confirm that the
ITAAC acceptance criteria continue to be met. The ITAAC post-closure
notifications must include a level of detail similar to the level of
information required in initial ITAAC closure notifications under 10
CFR 52.99(c)(1).
Proposed 10 CFR 52.99(c)(2) states that licensees must make the
notification ``in a timely manner.''
[[Page 27928]]
Further discussion of what the NRC considers ``timely'' can be found in
the NRC guidance being issued simultaneously with this rule, as
discussed in more detail in Section V of this document.
The NRC proposes that the notification be available for public
review under proposed paragraph (e)(2). This would ensure public
availability and accessibility of all NRC information on ITAAC closure.
Further explanation of the basis for the availability requirement is
presented under the discussion on proposed 10 CFR 52.99(e)(2).
Events that affect completed ITAAC could involve activities that
include, but are not limited to, maintenance and engineering, program,
or design changes. The NRC expects that licensees will carry out these
activities under established programs to maintain ITAAC conclusions and
that no post-closure notification will be necessary in most instances.
The NRC can have confidence that prior ITAAC conclusions are maintained
as long as the ITAAC determination basis established by the original
ITAAC closure notification is not materially altered. If the ITAAC
determination basis is not materially altered, licensee activities will
remain below the notification threshold of proposed 10 CFR 52.99(c)(2).
If the ITAAC determination basis is materially altered, the licensee
would be required to notify the NRC under proposed 10 CFR 52.99(c)(2).
Although the NRC is proposing that licensees be required to notify
the NRC of information materially altering the ITAAC determination
basis only after the licensee has evaluated and resolved the issue
prompting the notification, the NRC encourages licensees to communicate
with the NRC early in its evaluation process. The purpose of this early
communication would be to alert the NRC inspection staff to the fact
that additional activities may be scheduled that affect a structure,
system, or component (including physical security hardware) or program
element for which one or more ITAAC have been closed. This will allow
the NRC inspection staff to discuss the licensee's plans for resolving
the issue to determine if the staff wants to observe any of the
upcoming activities for the purpose of making a future staff
determination about whether the acceptance criteria for those ITAAC
continue to be met.
All ITAAC Complete Notification
Another notification that the NRC is proposing is the all ITAAC
complete notification under 10 CFR 52.99(c)(4). The purpose of this
notification is to facilitate the required Commission finding under 10
CFR 52.103(g) that the acceptance criteria in the combined license are
met. After or concurrent with the last ITAAC closure notification
required by 10 CFR 52.99(c)(1), the licensee would be required to
notify the NRC that all ITAAC are complete. When the licensee submits
the all ITAAC complete notification, the NRC would expect that all
activities requiring ITAAC post-closure notifications have been
completed and that the associated ITAAC determination bases have been
updated.
To support the Commission's finding under 10 CFR 52.103(g) that the
acceptance criteria in the combined license are met, if and when
appropriate, the NRC staff will send a recommendation to the
Commission. The staff will consider that all ITAAC ``are met'' if both
of the following conditions hold:
All ITAAC were verified to be met at one time; and
The licensee provides confidence that the ITAAC
determination bases have been maintained and that the ITAAC acceptance
criteria continue to be met.
The staff approach would allow licensees to have ITAAC-related
structures, systems, or components, or security or emergency
preparedness related hardware, undergoing certain activities at the
time of the 10 CFR 52.103(g) finding, if the programs credited with
maintaining the validity of completed ITAAC guide those activities, and
the activities are not so significant as to exceed a threshold for
reporting. If a reporting threshold has been exceeded, the NRC would
need to evaluate the licensee's ITAAC post-closure notification to
determine whether the ITAAC continue to be met. Reporting thresholds
are discussed in more detail in the Section-by-Section Analysis section
of this document.
ITAAC Closure Documentation
The proposed rule does not contain specific ITAAC documentation and
record retention requirements. The NRC understands that the nuclear
power industry believes that holders of combined licenses are already
required, under regulatory provisions such as 10 CFR part 50,
``Domestic Licensing of Production and Utilization Facilities,''
Appendix B, ``Quality Assurance Criteria for Nuclear Power Plants and
Fuel Reprocessing Plants,'' to prepare and retain records supporting
the vast majority of ITAAC processes, including the activities
supporting the notifications that would be required by the proposed
rule. Accordingly, the NRC has not included specific documentation and
record retention requirements in this proposed rule. If the NRC
inspections disclose substantial issues with licensees' records on
ITAAC maintenance, the NRC will revisit the need for documentation and
record retention requirements on ITAAC maintenance.
NRC Inspection, Publication of Notices, and Availability of Licensee
Notifications
Section 52.99(e)(1) requires that the NRC publish in the Federal
Register the NRC staff's determination of the successful completion of
inspections, tests, and analyses, at appropriate intervals until the
last date for submission of requests for hearing under 10 CFR
52.103(a). Section 52.99(e)(2) currently provides that the NRC shall
make publicly available the licensee notifications under current
paragraphs (c)(1) and (c)(2). The NRC is proposing to revise paragraph
(e)(2) to cover all notifications under 10 CFR 52.99(c). In general,
the NRC expects to make the paragraph (c) notifications available
shortly after the NRC has received the notifications and concluded that
they are complete. Furthermore, by the date of the Federal Register
notice of intended operation and opportunity to request a hearing on
whether acceptance criteria are met (under 10 CFR 52.103(a)), the NRC
will make available the licensee notifications under paragraphs (c)(1),
(c)(2), (c)(3), and (c)(4) that it has received to date.
C. Conforming Changes to 10 CFR 2.340
The 2007 part 52 rulemaking amended 10 CFR 2.340, ``Initial
decision in certain contested proceedings; immediate effectiveness of
initial decisions; issuance of authorizations, permits, and licenses,''
to clarify, among other things, the scope of the presiding officer's
decision in various kinds of NRC proceedings, and remove the
requirement for direct Commission involvement in all production and
utilization facility licensing proceedings.
Section 2.340(j) was intended to address these matters in
connection with the Commission finding on acceptance criteria and any
associated hearing under 10 CFR 52.103. In the course of developing
this proposed rule, the NRC determined that 10 CFR 2.340(j) contains
several errors and ambiguous statements. The proposed changes, together
with the proposed bases for the changes, are described below.
[[Page 27929]]
Section 2.340(j) currently states that the Commission makes a
finding under 10 CFR 52.103(g) that acceptance criteria ``have been or
will be met.'' This is incorrect; the Commission's finding under 10 CFR
52.103(g) is that the acceptance criteria ``are met,'' which is the
statutory requirement under Section 185.b of the AEA. To correct this
error, the NRC proposes to amend the introductory language of 10 CFR
2.340(j) to use the correct phrase, ``acceptance criteria * * * are met
* * *.''
In addition, 10 CFR 2.340(j), as currently written, does not
clearly address the circumstances in a contested proceeding that could
lead to a Commission finding under 10 CFR 52.103(g) that acceptance
criteria are met. To provide clarity, the NRC proposes to further amend
10 CFR 2.340(j) to clearly explain when the Commission may make the 10
CFR 52.103(g) finding, by further delineating between the presiding
officer's decisions on contentions that acceptance criteria have not
been met and decisions on contentions that acceptance criteria will not
be met. In both cases, if the presiding officer's decision resolves the
contention favorably this does not obviate the need for the Commission
to make the required finding under Section 185.b of the AEA and 10 CFR
52.103(g) that the acceptance criteria are met. For example, the
presiding officer's initial decision upon summary disposition that a
particular acceptance criterion has been met may be rendered before the
occurrence of an event which is ultimately resolved as reported in a 10
CFR 52.99(c)(2) notification. In such a circumstance, the Commission
must independently come to the conclusion that the acceptance criterion
is met. That conclusion must be based upon consideration of both the
presiding officer's initial decision and information relevant to the 10
CFR 52.99(c)(2) notification. Accordingly, the NRC concludes that it is
necessary to clarify the language of paragraph (j). To accommodate the
proposed clarifications, the Commission proposes to redesignate current
paragraph (j)(2) as paragraph (j)(4), but without any change to the
regulatory language.
IV. Section-by-Section Analysis
The primary changes on ITAAC maintenance being proposed by the NRC
in this rulemaking are to 10 CFR 52.99. The changes to 10 CFR 2.340 are
corrections.
Section 2.340 Initial decision in certain contested proceedings;
immediate effectiveness of initial decisions; issuance of
authorizations, permits and licenses
Section 2.340(j) Issuance of Finding on Acceptance Criteria Under 10
CFR 52.103
Paragraph (j) would be amended to allow the Commission (or the
appropriate staff Office Director) in a contested proceeding to make
the finding under 10 CFR 52.103(g) that the acceptance criteria in a
combined license are met, under certain circumstances that are
delineated in greater detail in paragraphs (j)(1) through (4). This
compares with the current rule, which contains only two paragraphs
(j)(1) and (2). The matters covered by paragraph (j)(1) of the current
rule would be described with greater clarity in proposed paragraphs
(j)(1) through (3).
Proposed paragraph (j)(1) clarifies that the Commission may not
make the overall 10 CFR 52.103(g) finding unless it is otherwise able
to find that all uncontested acceptance criteria (i.e., ``acceptance
criteria not within the scope of the initial decision of the presiding
officer'') are met. The phrase ``otherwise able to make'' conveys the
NRC's determination that the Commission's process for supporting a
Commission finding on uncontested acceptance criteria is unrelated to
and unaffected by the timing of the presiding officer's initial
decision.
Proposed paragraph (j)(2) clarifies that a presiding officer's
initial decision which finds that acceptance criteria have been met, is
a necessary but not sufficient prerequisite for the Commission to make
a finding that the contested acceptance criteria (i.e., the criteria
which are the subject of the presiding officer's initial decision) are
met. The Commission must thereafter, even if the presiding officer's
initial decision finds that the contested acceptance criteria have been
met, be able to make a finding that the contested criteria are met
after considering: (1) Information submitted in the licensee
notifications which the NRC proposes to be included in 10 CFR 52.99;
and (2) the NRC staff's findings with respect to these notifications,
to issue the overall 10 CFR 52.103 finding. By using the word
``thereafter,'' the NRC intends to emphasize that the Commission would
not make a finding that contested acceptance criteria are met in
advance of the presiding officer's initial decision on those acceptance
criteria.
Proposed paragraph (j)(3) expresses the same concept as paragraph
(j)(2) but as applied to findings that acceptance criteria will be met.
Thus, even if a presiding officer's initial decision finds that the
contested acceptance criteria will be met, the Commission must
thereafter be able to make a finding that the contested criteria are
met after considering: (1) Information submitted in an ITAAC closure
notification pursuant to 10 CFR 52.99(c)(1); (2) information submitted
in the licensee notifications which the NRC proposes to be included in
10 CFR 52.99; and (3) the NRC staff's findings with respect to such
notifications, to issue the overall 10 CFR 52.103 finding.
Proposed paragraph (j)(4) is the same as the existing provision in
10 CFR 2.340(j)(2). This paragraph provides that the Commission may
make the 52.103(g) finding notwithstanding the pendency of a petition
for reconsideration under 10 CFR 2.345, a petition for review under 10
CFR 2.341, a motion for a stay under 10 CFR 2.342, or a petition under
10 CFR 2.206.
The NRC notes that 10 CFR 2.340(j) is not intended to be an
exhaustive ``roadmap'' to a possible 10 CFR 52.103(g) finding that
acceptance criteria are met. For example, this provision does not
directly address what must occur for the Commission to make a 10 CFR
52.103(g) finding where the presiding officer finds, with respect to a
contention, that acceptance criteria are not met. The NRC also notes
that this provision applies only to contested proceedings. If there is
no hearing under 10 CFR 52.103, or if the hearing ends without a
presiding officer's initial decision on the merits (e.g., a withdrawal
of the sole party in a proceeding), then 10 CFR 2.340(j) does not
govern the process by which the Commission (or the appropriate staff
Office Director) makes the 10 CFR 52.103(g) finding.
Section 52.99 Inspection During Construction; ITAAC Schedules and
Notifications; NRC Notices
Although the NRC is not making changes to every paragraph under 10
CFR 52.99, for simplicity, this rulemaking would replace the section in
its entirety. Therefore, the NRC is providing a section-by-section
discussion for every paragraph in 10 CFR 52.99. For those paragraphs
where little or no change is being proposed, the NRC is repeating the
section-by-section discussion from the 2007 major revision to 10 CFR
part 52 with editorial and conforming changes, as appropriate.
The purpose of this section is to present the requirements to
support the NRC's inspections during construction, including
requirements for ITAAC
[[Page 27930]]
schedules and notifications and for NRC notices of ITAAC closure.
Section 52.99(a) Licensee Schedule for Completing Inspections, Tests,
or Analyses
The NRC is not proposing any changes to this paragraph. Paragraph
(a) requires that the licensee submit to the NRC, no later than 1 year
after issuance of the combined license or at the start of construction
as defined at 10 CFR 50.10, whichever is later, its schedule for
completing the inspections, tests, or analyses in the ITAAC. This
provision also requires the licensee to submit updates to the ITAAC
schedule every 6 months thereafter and, within 1 year of its scheduled
date for initial loading of fuel, licensees must submit updates to the
ITAAC schedule every 30 days until the final notification is provided
to the NRC under 10 CFR 52.99(c). The information provided by the
licensee will be used by the NRC in developing the NRC's inspection
activities and activities necessary to support the Commission's finding
whether all of the ITAAC are met prior to the licensee's scheduled date
for fuel load. Even in the case where there were no changes to a
licensee's ITAAC schedule during an update cycle, the NRC expects the
licensee to notify the NRC that there have been no changes to the
schedule.
Section 52.99(b) Licensee and Applicant Conduct of Activities Subject
to ITAAC
The NRC is proposing an editorial change to the last sentence of 10
CFR 52.99(b) to replace the words ``have been met'' with ``are met''
for consistency with the requirements of Section 185.b of the AEA, as
implemented in 10 CFR 52.103(g). The purpose of the requirement in 10
CFR 52.99(b) is to clarify that an applicant may proceed at its own
risk with design and procurement activities subject to ITAAC, and that
a licensee may proceed at its own risk with design, procurement,
construction, and preoperational testing activities subject to an
ITAAC, even though the NRC may not have found that any particular ITAAC
are met.
Section 52.99(c) Licensee Notifications
Section 52.99(c)(1) ITAAC Closure Notification and Section 52.99(c)(3)
Uncompleted ITAAC Notification
The NRC is proposing editorial changes in 10 CFR 52.99(c)(1) to
replace the words ``have been met'' with ``are met.'' Section
52.99(c)(1) would require the licensee to notify the NRC that the
prescribed inspections, tests, and analyses have been performed and
that the prescribed acceptance criteria are met. Section 52.99(c)(1)
would further require that the notification contain sufficient
information to demonstrate that the prescribed inspections, tests, and
analyses have been performed and that the prescribed acceptance
criteria are met.
The NRC is proposing to renumber current 10 CFR 52.99(c)(2) as
proposed 10 CFR 52.99(c)(3). In addition, the NRC is proposing an
editorial change to the last sentence in proposed 10 CFR 52.99(c)(3)
(current 10 CFR 52.99(c)(2)) to replace the words ``have been met''
with ``are met.'' Proposed paragraph 52.99(c)(3) would require that, if
the licensee has not provided, by the date 225 days before the
scheduled date for initial loading of fuel, the notification required
by paragraph (c)(1) of this section for all ITAAC, then the licensee
shall notify the NRC that the prescribed inspections, tests, or
analyses for all uncompleted ITAAC will be performed and that the
prescribed acceptance criteria will be met prior to operation
(consistent with the AEA Section 185.b requirement that the Commission,
``prior to operation,'' find that the acceptance criteria in the
combined license are met). The notification must be provided no later
than the date 225 days before the scheduled date for initial loading of
fuel, and must provide sufficient information to demonstrate that the
prescribed inspections, tests, or analyses will be performed and the
prescribed acceptance criteria for the uncompleted ITAAC will be met.
Section 52.99(c) ensures that: (1) The NRC has sufficient
information to complete all of the activities necessary for the
Commission to make a finding as to whether all of the ITAAC are met
prior to initial operation; and (2) interested persons will have access
to information on both completed and uncompleted ITAAC at a level of
detail sufficient to address the AEA Section 189.a(1)(B) threshold for
requesting a hearing on acceptance criteria. It is the licensee's
burden to demonstrate compliance with the ITAAC, and the NRC expects
the information submitted under paragraph (c)(1) to contain more than
just a simple statement that the licensee believes the ITAAC have been
completed and the acceptance criteria met. The NRC would expect the
notification to be sufficiently complete and detailed for a reasonable
person to understand the bases for the licensee's representation that
the inspections, tests, and analyses have been successfully completed
and the acceptance criteria are met. The term ``sufficient
information'' would require, at a minimum, a summary description of the
bases for the licensee's conclusion that the inspections, tests, or
analyses have been performed and that the prescribed acceptance
criteria are met.
Furthermore, with respect to uncompleted ITAAC, it is the
licensee's burden to demonstrate that it will comply with the ITAAC and
the NRC would expect the information that the licensee submits under
proposed paragraph (c)(3) to be sufficiently detailed such that the NRC
staff can determine what activities it will need to undertake to
determine if the acceptance criteria for each of the uncompleted ITAAC
are met, once the licensee notifies the NRC that those ITAAC have been
successfully completed and their acceptance criteria met. The term
``sufficient information'' requires, at a minimum, a summary
description of the bases for the licensee's conclusion that the
inspections, tests, or analyses will be performed and that the
prescribed acceptance criteria will be met. In addition, ``sufficient
information'' includes, but is not limited to, a description of the
specific procedures and analytical methods to be used for performing
the inspections, tests, and analyses and determining that the
acceptance criteria are met.
The NRC notes that, even though it did not include a provision
requiring the completion of all ITAAC by a certain time prior to the
licensee's scheduled fuel load date, the NRC staff will require some
period of time to perform its review of the last ITAAC once the
licensee submits its notification that the ITAAC has been successfully
completed and the acceptance criteria met. In addition, the Commission
itself will require some period of time to perform its review of the
staff's conclusions regarding all of the ITAAC and the staff's
recommendations regarding the Commission finding under 10 CFR
52.103(g).
Section 52.99(c)(2) ITAAC Post-Closure Notifications
The NRC is proposing to add new paragraph (c)(2) that would require
the licensee to notify the NRC, in a timely manner, of new information
that materially alters the bases for determining that either
inspections, tests, or analyses were performed as required, or that
acceptance criteria are met. The notification must contain sufficient
information to demonstrate that, notwithstanding the new information,
the prescribed inspections, tests, or analyses have been performed as
required, and the prescribed acceptance criteria are met.
Fundamentally, those circumstances requiring notification under
proposed
[[Page 27931]]
paragraph (c)(2) fall into the following two categories:
The information presented or referenced in the original 10
CFR 52.99(c)(1) notification is insufficient, either because it omits
material information, or because the information is materially
erroneous or incorrect, and the licensee discovers or determines there
is a material omission or error after filing the original 10 CFR
52.99(c)(1) notification.
The information presented or referenced in the original 10
CFR 52.99(c)(1) notification was complete (i.e., not omitting material
information) and accurate (i.e., not materially erroneous), but there
is new material information with respect to the subject of the original
10 CFR 52.99(c)(1) notification.
The term ``materially altering'' refers to situations in which
there is information not contained in the 10 CFR 52.99(c)(1)
notification that ``has a natural tendency or capability to influence
an agency decision maker'' in either determining whether the prescribed
inspection, test, or analysis was performed as required, or finding
that the prescribed acceptance criterion is met. See Final Rule;
Completeness and Accuracy of Information, December 31, 1987; 52 FR
49362, at 49363. Applying this concept in the context of 10 CFR
52.99(c), information for which notification would be required under
paragraph (c)(2) is that information which, considered by itself or
when considered in connection with information previously submitted or
referenced by the licensee in a paragraph (c)(1) notification, relates
to information which is necessary for any of the following:
The licensee to assert that the prescribed inspections,
tests, and analyses have been performed and the acceptance criteria are
met;
The NRC staff to determine if (and provide a
recommendation to the Commission as to whether) the prescribed
inspections, tests, and analyses were performed and the acceptance
criteria are met; or
The Commission to find that the acceptance criteria are
met, as required by Section 185.b of the AEA and 10 CFR 52.103(g).
The term ``new'' information embraces three different kinds of
information:
New information (i.e., a ``discovery'' or new
determination identified after the 10 CFR 52.99(c)(1) notification)
about the accuracy of material information provided in, referenced by,
or necessary to support representations made in that notification.
New information (i.e., a ``discovery'' or new
determination identified after the 10 CFR 52.99(c)(1) notification)
that previously existing information should have been, but was not
provided in the notification or referenced in the supporting
documentation (i.e., an omission of material information).
Information on a ``new'' event or circumstance (i.e., an
event or circumstance occurring after the 10 CFR 52.99(c)(1)
notification) that materially affects the accuracy or completeness of
the basis, as reported or relied upon in the 52.99(c)(1) notification,
for the licensee's representation that the acceptance criteria are met.
Applying these concepts, the NRC believes that the circumstances
for which reporting under this provision would be required include:
Material Error or Omission--Is there a material error or
omission in the original ITAAC closure notification?
Post Work Verification (PWV)--Will the PWV performed
following work undertaken to resolve an issue reportable under 10 CFR
52.99(c)(2) use a significantly different approach than the original
performance of the inspection, test, or analysis as described in the
original ITAAC notification?
Engineering Changes--Will an engineering change be made
that materially alters the determination that the acceptance criteria
are met?
Additional Items To Be Verified--Will there be additional
items that need to be verified through the ITAAC?
Complete and Valid ITAAC Representation--Will any other
licensee activities materially alter the ITAAC determination basis?
Additional guidance on implementing these reporting thresholds is
being proposed in a draft revision to RG 1.215, being issued for public
comment simultaneously with this proposed rule. This proposed guidance
is discussed further in Section V, ``Guidance,'' of this document.
Proposed paragraph (c)(2) would require the licensee to submit an
ITAAC post-closure notification documenting the resolution of the
circumstances surrounding the identification of new material
information. By ``resolution,'' the NRC means: (1) The completion of
the licensee's technical evaluation of the issue and the determination
as to whether the prescribed inspection, test, or analysis was
performed as required; (2) licensee completion of any necessary
corrective or supplemental actions; (3) licensee documentation of the
issue and any necessary corrective or supplemental actions in order to
bring the ITAAC determination basis up to date; and (4) ultimate
licensee determination about whether the affected acceptance criteria
continue to be met.
The information provided in the notification should be at a level
of detail comparable to the ITAAC closure notification under paragraph
(c)(1). The dual purposes of the proposed paragraph (c)(2)
notification, as described in Section III.B, ``Additional ITAAC
Notifications,'' of this document, are comparable to the purposes of
the ITAAC closure notification in paragraph (c)(1). Thus, the NRC
believes that the considerations for the content of the ITAAC closure
notification, as discussed in the final 2007 rulemaking, apply to the
proposed paragraph (c)(2) notifications. See 72 FR 49450; August 28,
2007 (second column). Thus, it is the licensee's burden to demonstrate
compliance with the ITAAC, taking into account any new information that
materially alters the determination that a prescribed inspection, test,
or analysis was performed as required or that a prescribed acceptance
criterion is met. The NRC expects the paragraph (c)(2) notification to
contain more than just a simple statement that the licensee has
concluded, despite the material new information, that the prescribed
inspection, test, or analysis was performed as required and that a
prescribed acceptance criterion is met. The NRC expects the
notification to be sufficiently complete and detailed for a reasonable
person to understand the bases for the licensee's determination in the
paragraph (c)(2) notification. The term ``sufficient information'' is
comparable to the meaning given to that term in paragraph (c)(1), and
requires, at a minimum, a summary description of the bases for the
licensee's determination. In addition, ``sufficient information''
includes, but is not limited to, a description of the specific
procedures and analytical methods used or relied upon to develop or
support the licensee's determination. The paragraph (c)(2) notification
must be in writing, and the records on which it is based must be
retained by the licensee to support possible NRC inspection. Licensees
should use the same process for submitting ITAAC post-closure
notifications as would be used to submit initial ITAAC closure
notifications. The NRC is issuing draft guidance on implementation of
the requirements in proposed paragraph (c)(2), including the level of
detail necessary to comply with the requirements of proposed paragraph
(c)(2), as discussed in Section V of this document.
[[Page 27932]]
Section 52.99(c)(4) All ITAAC Complete Notification
Section 52.99(c)(4) would require the licensee to notify the NRC
that all ITAAC are complete (All ITAAC Complete Notification). When the
licensee submits the all ITAAC complete notification, the NRC would
expect that all activities requiring ITAAC post-closure letters have
been completed, that the associated ITAAC determination bases have been
updated, and that all required notifications under proposed paragraph
(c)(2) have been made.
Section 52.99(d) Licensee Determination of Non-Compliance With ITAAC
Paragraph (d) states the options that a licensee will have in the
event that it is determined that any of the acceptance criteria in the
ITAAC are not met. If an activity is subject to an ITAAC derived from a
referenced standard design certification and the licensee has not
demonstrated that the ITAAC are met, the licensee may take corrective
actions to successfully complete that ITAAC or request an exemption
from the standard design certification ITAAC, as applicable. A request
for an exemption must also be accompanied by an application for a
license amendment under 10 CFR 52.98(f). The NRC will consider and take
action on the request for exemption and the license amendment
application together as an integrated NRC action.
Also, if an activity that is subject to an ITAAC not derived from a
referenced standard design certification and the licensee has not
demonstrated that the ITAAC has been met, the licensee may take
corrective actions to successfully complete that ITAAC or request a
license amendment under 10 CFR 52.98(f).
Section 52.99(e) NRC Inspection, Publication of Notices, and
Availability of Licensee Notifications
Paragraph (e)(1) of this section indicates that the NRC is
responsible for ensuring (through its inspection and audit activities)
that the combined license holder performs and documents the completion
of inspections, tests, and analyses in the ITAAC. Paragraph (e)(1)
requires the NRC to publish, at appropriate intervals until the last
date for submission of requests for hearing under 10 CFR 52.103(a),
notices in the Federal Register of the NRC staff's determination of the
successful completion of inspections, tests, and analyses. Paragraph
(e)(2) provides that the NRC shall make publicly available the licensee
notifications under paragraph (c). In general, the NRC expects to make
the paragraph (c) notifications available shortly after the NRC has
received the notifications and concluded that they are complete and
detailed. Further, by the date of the Federal Register notice of
intended operation and opportunity to request a hearing on whether
acceptance criteria are met (under 10 CFR 52.103(a)), the NRC will make
available the licensee notifications under paragraphs (c)(1), (c)(2),
(c)(3), and (c)(4) received to date.
V. Guidance
In conjunction with the issuance of this proposed rule, the NRC is
issuing a proposed revision to its regulatory guidance in RG 1.215 on
implementation of the requirements in 10 CFR 52.99. In this proposed
revision, the NRC is endorsing Revision 4 to the existing industry
ITAAC closure guidance in NEI 08-01, submitted to the NRC for
endorsement on July 16, 2010 (ADAMS Accession No. ML102010076). The
revised guidance is intended to provide an acceptable method by which
licensees can implement the new requirements being proposed in this
rulemaking. The staff will consider any comments received on the
proposed rule in its final revisions to RG 1.215. The NRC expects that
all guidance necessary to implement this rule will be available at the
time that the final rule becomes effective.
VI. Availability of Documents
You can access publicly available documents related to this
proposed rule using the following methods:
NRC's Public Document Room (PDR): The public may examine
and have copied for a fee publicly available documents at the NRC's
PDR, Room O1 F21, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland 20852.
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's
PDR reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to
[email protected].
Federal Rulemaking Web site: Public comments and
supporting materials related to this proposed rule can be found at
http://www.regulations.gov by searching on Docket ID: NRC-2010-0012.
The NRC is making the documents identified below available to
interested persons through one or more of the following methods as
indicated:
----------------------------------------------------------------------------------------------------------------
Document PDR Web ADAMS
----------------------------------------------------------------------------------------------------------------
SECY-09-0119, ``Staff Progress in Resolving X X ML091980372
Issues Associated with Inspections, Tests,
Analyses and Acceptance Criteria'' (August
26, 2009).
SRM-M090922--Staff Requirements--Periodic X X ML092890658
Briefing on New Reactor Issues--Progress
in Resolving Issues Associated with
Inspections, Tests, Analyses, and
Acceptance Criteria (ITAAC), 9:30 A.M.,
Tuesday, September 22, 2009 (October 16,
2009).
Inspection Procedure 40600, ``Licensee X X ML072530607
Program for ITAAC Management''.
Regulatory Guide 1.215, ``Guidance for X X ML091480076
ITAAC Closure Under 10 CFR Part 52,''
Revision 0 (October 31, 2009).
NEI 08-01, ``Industry Guideline for the X ............ ML090270415
ITAAC Closure Process Under 10 CFR Part
52,'' Revision 3 (January 2009).
NEI 08-01, ``Industry Guideline for the X ............ ML102010076
ITAAC Closure Process Under 10 CFR Part
52,'' Revision 4.
Regulatory Analysis for Proposed Rule-- X X ML110040395
Requirements for Maintenance of
Inspections, Tests, Analyses, and
Acceptance Criteria (February 2011).
NUREG/BR-0058, ``Regulatory Analysis X X ML042820192
Guidelines of the U.S. Nuclear Regulatory
Commission,'' Revision 4 (September 2004).
----------------------------------------------------------------------------------------------------------------
[[Page 27933]]
VII. Plain Language
The Presidential memorandum, ``Plain Language in Government
Writing'' published June 10, 1998 (63 FR 31883), directed that the
Government's documents be in clear and accessible language. The NRC
requests comments on the proposed rule specifically with respect to the
clarity and effectiveness of the language used. Comments should be sent
to the NRC as explained in the ADDRESSES caption of this document.
VIII. Agreement State Compatibility
Under the ``Policy Statement on Adequacy and Compatibility of
Agreement States Programs,'' approved by the Commission on June 20,
1997, and published in the Federal Register (62 FR 46517; September 3,
1997), this rule is classified as compatibility ``NRC.'' Compatibility
is not required for Category ``NRC'' regulations. The NRC program
elements in this category are those that relate directly to areas of
regulation reserved to the NRC by the AEA or the provisions of 10 CFR.
Although an Agreement State may not adopt program elements reserved to
the NRC, it may wish to inform its licensees of certain requirements
via a mechanism that is consistent with the particular State's
administrative procedure laws. Category ``NRC'' regulations do not
confer regulatory authority on the State.
IX. Voluntary Consensus Standard
The National Technology Transfer and Advancement Act of 1995, Pub.
L. 104-113, requires that Federal agencies use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
using such a standard is inconsistent with applicable law or is
otherwise impractical. The requirements in this rulemaking address
procedural and information collection and reporting requirements
necessary to support the NRC's regulatory activities on combined
licenses under 10 CFR part 52, and to facilitate the NRC's conduct of
hearings on ITAAC which may be held under Section 189 of the AEA. These
requirements do not establish standards or substantive requirements
with which combined license holders must comply. Thus, this rulemaking
does not constitute establishment of a standard containing generally
applicable requirements falling within the purview of the National
Technology Transfer and Advancement Act and the implementing guidance
issued by the Office of Management and Budget (OMB).
X. Environmental Impact--Categorical Exclusion
The NRC has determined that these amendments fall within the types
of actions described as categorical exclusions under 10 CFR 51.22(c)(2)
and (c)(3). Therefore, neither an environmental impact statement nor an
environmental assessment has been prepared for this regulation.
XI. Paperwork Reduction Act Statement
This proposed rule contains new or amended information collection
requirements that are subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq). This rule has been submitted to the OMB for
review and approval of the information collection requirements.
1. Type of submission, new or revision: Revision.
2. The title of the information collection: 10 CFR Parts 2 and 52;
Requirements for Maintenance of Inspections, Tests, Analyses, and
Acceptance Criteria.
3. Form number, if applicable: N/A.
4. How often the collection is required: On occasion. Reports
required under 10 CFR 52.99(c)(2) and (c)(4) are collected and
evaluated during construction, (1) whenever a licensee determines that
it has new information materially altering the basis for an ITAAC
determination; and (2) once, when all ITAAC are complete.
5. Who is required or asked to report: Combined license holders,
during the period of construction.
6. An estimate of the number of annual responses: 48 (44 annual
responses plus 3.66 annualized one-time responses).
7. The estimated number of annual respondents: 7.33.
8. The number of hours needed annually to complete the requirement
or request: 1,056 hours.
9. Abstract: The NRC is proposing to amend its regulations in 10
CFR 52.99 related to verification of nuclear power plant construction
activities through ITAAC under a combined license. Specifically, the
NRC is proposing new provisions that apply after a licensee has
completed an ITAAC and submitted an ITAAC closure notification. The new
provisions would require licensees to (1) report new information
materially altering the basis for determining that either inspections,
tests, or analyses were performed as required, or that acceptance
criteria are met; and (2) notify the NRC of completion of all ITAAC
activities.
The NRC is seeking public comment on the potential impact of the
information collections contained in this proposed rule and on the
following issues:
1. Is the proposed collection of information necessary for the NRC
to properly perform its functions? Does the information have practical
utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of
the information to be collected?
4. How can the burden of the information collection be minimized,
including the use of automated collection techniques or other forms of
information technology?
A copy of the OMB clearance package may be viewed free of charge at
the NRC Public Document Room, One White Flint North, 11555 Rockville
Pike, Room O-1 F21, Rockville, Maryland 20852. The OMB clearance
package and rule are available at the NRC Web site, http://www.nrc.gov/public-involve/doc-comment/omb/index.html, for 60 days after the
signature date of this document.
Send comments on any aspect of these proposed regulations related
to information collections, including suggestions for reducing the
burden and on the above issues, by June 13, 2011 to the Information
Services Branch (T-5 F52), U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, or by Internet electronic mail to
[email protected] and to the Desk Officer, Christine Kymn,
Office of Information and Regulatory Affairs, NEOB-10202 (3150-0151),
Office of Management and Budget, Washington, DC 20503. Comments on the
proposed information collections may also be submitted via the Federal
rulemaking Web site, https://www.regulations.gov, Docket ID NRC-2010-
0012. Comments received after this date will be considered if it is
practical to do so, but assurance of consideration cannot be given to
comments received after this date.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.
XII. Regulatory Analysis
The Commission has prepared a draft regulatory analysis on this
proposed regulation. The analysis examines the costs and benefits of
the alternatives considered by the Commission.
The Commission requests public comment on the draft regulatory
[[Page 27934]]
analysis. Comments on the draft analysis may be submitted to the NRC as
indicated under the ADDRESSES section of this document. The analysis is
available for inspection in the NRC's PDR (ADAMS Accession No.
ML110040395), 11555 Rockville Pike, Rockville, Maryland 20852. The
analysis may also be viewed and downloaded electronically via the
Federal rulemaking Web site at http://www.regulations.gov by searching
for Docket ID NRC-2010-0012.
XIII. Regulatory Flexibility Act Certification
In accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), the Commission certifies that this rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities. This proposed rule affects only the licensing and
operation of nuclear power plants. The companies that own these plants
do not fall within the scope of the definition of ``small entities''
set forth in the Regulatory Flexibility Act or the size standards
established by the NRC (10 CFR 2.810).
XIV. Backfitting and Issue Finality
The NRC has determined that neither the backfit rule, 10 CFR
50.109, nor any of the finality provisions in 10 CFR part 52, apply to
this proposed rule. Therefore, a backfit analysis is not required
because the proposed ITAAC maintenance rule does not contain any
provisions that would impose backfitting as defined in the backfit
rule, nor does it contain provisions that are inconsistent with the
finality provisions applicable to applicants for or holders of combined
licenses in 10 CFR part 52.
The proposed rule would apply only to holders of combined licenses.
The backfitting provisions in 10 CFR 50.109 protect holders of combined
licenses, and the finality provisions in Subpart C of part 52 protect
holders of combined licenses (with the exception discussed further in
this document). There are no current holders of combined licenses;
hence, those backfitting and finality provisions do not apply to this
rulemaking. Subpart C of part 52 contains issue finality provisions
which protect combined license applicants, but that protection extends
only to issue resolution of matters resolved in referenced early site
permits, standard design certifications, standard design approvals, or
manufactured reactors. This proposed rule does not alter issue
resolution associated with referenced early site permits, standard
design certifications, standard design approvals, or manufactured
reactors. Instead, this proposed rule addresses requirements concerning
the Commission's finding that ITAAC are met, and the conduct of
hearings addressing whether prescribed inspections, tests, and analyses
have been performed and the acceptance criteria are met. To the extent
that the proposed rule would revise these requirements for future
combined licenses, the requirements would not constitute backfitting or
otherwise be inconsistent with the finality provisions in 10 CFR part
52, because the requirements are prospective in nature and effect.
Neither the backfit rule nor the issue finality provisions in 10 CFR
part 52 were intended to apply to every NRC action, which substantially
changes the obligations of future licensees under 10 CFR part 52.
Accordingly, the NRC has not prepared a backfit analysis or other
evaluation for this proposed rule.
List of Subjects
10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Environmental protection, Nuclear
materials, Nuclear power plants and reactors, Penalties, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
10 CFR Part 52
Administrative practice and procedure, Antitrust, Backfitting,
Combined license, Early site permit, Emergency planning, Fees,
Inspection, Limited work authorization, Nuclear power plants and
reactors, Probabilistic risk assessment, Prototype, Reactor siting
criteria, Redress of site, Reporting and recordkeeping requirements,
Standard design, Standard design certification.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 553, the NRC is proposing to
adopt the following amendments to 10 CFR parts 2 and 52.
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND
ISSUANCE OF ORDERS
1. The authority citation for part 2 continues to read as follows:
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat.
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.
5841); 5 U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504
note).
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104,
68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C.
2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. L. 97-
425, 96 Stat. 2213, as amended (42 U.S.C. 10143(f)); sec. 102, Pub.
L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88
Stat. 1248 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.321 also issued under
secs. 102, 103, 104, 105, 183i, 189, 68 Stat. 936, 937, 938, 954,
955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239).
Section 2.105 also issued under Pub. L. 97-415, 96 Stat. 2073 (42
U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 161b, i,
o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended
(42 U.S.C. 2201 (b), (i), (o), 2236, 2282); sec. 206, 88 Stat 1246
(42 U.S.C. 5846). Section 2.205(j) also issued under Pub. L. 101-
410, 104 Stat. 90, as amended by section 3100(s), Pub. L. 104-134,
110 Stat. 1321-373 (28 U.S.C. 2461 note). Subpart C also issued
under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Section 2.301 also
issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.712 also issued
under 5 U.S.C. 557. Section 2.340 also issued under secs. 135, 141,
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 2.390 also issued under sec. 103, 68 Stat. 936, as amended
(42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.600-2.606 also issued
under sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C.
4332). Sections 2.800 and 2.808 also issued under 5 U.S.C. 553.
Section 2.809 also issued under 5 U.S.C. 553, and sec. 29, Pub. L.
85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also
issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub.
L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued
under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Subpart M also issued
under sec. 184 (42 U.S.C. 2234) and sec. 189, 68 Stat. 955 (42
U.S.C. 2239). Subpart N also issued under sec. 189, 68 Stat. 955 (42
U.S.C. 2239. Appendix A also issued under sec. 6, Pub. L. 91-550, 84
Stat. 1473 (42 U.S.C. 2135).
2. In Sec. 2.340, paragraph (j) is revised to read as follows:
Sec. 2.340 Initial decision in certain contested proceedings;
immediate effectiveness of initial decisions; issuance of
authorizations, permits, and licenses.
* * * * *
(j) Issuance of finding on acceptance criteria under 10 CFR 52.103.
The Commission, the Director of New Reactors, or the Director of
Nuclear Reactor Regulation, as appropriate, shall make the finding
under 10 CFR 52.103(g) that acceptance criteria in a combined license
are met within 10 days from the date of the presiding officer's initial
decision:
(1) If the Commission or the appropriate Director is otherwise able
to make the finding under 10 CFR 52.103(g) that the prescribed
acceptance criteria are met for those acceptance criteria not within
the scope of the initial decision of the presiding officer;
[[Page 27935]]
(2) If the presiding officer's initial decision, with respect to
contentions that the prescribed acceptance criteria have not been met,
finds that those acceptance criteria have been met, and the Commission
or the appropriate Director thereafter is able to make the finding that
those acceptance criteria are met;
(3) If the presiding officer's initial decision, with respect to
contentions that the prescribed acceptance criteria will not be met,
finds that those acceptance criteria will be met, and the Commission or
the appropriate Director thereafter is able to make the finding that
those acceptance criteria are met; and
(4) Notwithstanding the pendency of a petition for reconsideration
under 10 CFR 2.345, a petition for review under 10 CFR 2.341, or a
motion for stay under 10 CFR 2.342, or the filing of a petition under
10 CFR 2.206.
* * * * *
PART 52--LICENSES, CERTIFICATIONS, AND APPROVALS FOR NUCLEAR POWER
PLANTS
3. The authority citation for part 52 continues to read as follows:
Authority: Secs. 103, 104, 161, 182, 183, 185, 186, 189, 68
Stat. 936, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat.
444, as amended (42 U.S.C. 2133, 2201, 2232, 2233, 2235, 2236, 2239,
2282); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended
(42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C.
3504 note); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat.
594 (2005), Secs. 147 and 149 of the Atomic Energy Act.
4. Revise Sec. 52.99 to read as follows:
Sec. 52.99 Inspection during construction; ITAAC schedules and
notifications; NRC notices.
(a) Licensee schedule for completing inspections, tests, or
analyses. The licensee shall submit to the NRC, no later than 1 year
after issuance of the combined license or at the start of construction
as defined at 10 CFR 50.10(a), whichever is later, its schedule for
completing the inspections, tests, or analyses in the ITAAC. The
licensee shall submit updates to the ITAAC schedules every 6 months
thereafter and, within 1 year of its scheduled date for initial loading
of fuel, the licensee shall submit updates to the ITAAC schedule every
30 days until the final notification is provided to the NRC under
paragraph (c)(1) of this section.
(b) Licensee and applicant conduct of activities subject to ITAAC.
With respect to activities subject to an ITAAC, an applicant for a
combined license may proceed at its own risk with design and
procurement activities, and a licensee may proceed at its own risk with
design, procurement, construction, and preoperational activities, even
though the NRC may not have found that any one of the prescribed
acceptance criteria are met.
(c) Licensee notifications. (1) ITAAC closure notification. The
licensee shall notify the NRC that prescribed inspections, tests, and
analyses have been performed and that the prescribed acceptance
criteria are met. The notification must contain sufficient information
to demonstrate that the prescribed inspections, tests, and analyses
have been performed and that the prescribed acceptance criteria are
met.
(2) ITAAC post-closure notifications. Following the licensee's
ITAAC closure notifications under paragraph (c)(1) of this section
until the Commission makes the finding under 10 CFR 52.103(g), the
licensee shall notify the NRC, in a timely manner, of new information
that materially alters the bases for determining that either
inspections, tests, or analyses were performed as required, or that
acceptance criteria are met. The notification must contain sufficient
information to demonstrate that, notwithstanding the new information,
the prescribed inspections, tests, or analyses have been performed as
required, and the prescribed acceptance criteria are met.
(3) Uncompleted ITAAC notification. If the licensee has not
provided, by the date 225 days before the scheduled date for initial
loading of fuel, the notification required by paragraph (c)(1) of this
section for all ITAAC, then the licensee shall notify the NRC that the
prescribed inspections, tests, or analyses for all uncompleted ITAAC
will be performed and that the prescribed acceptance criteria will be
met prior to operation. The notification must be provided no later than
the date 225 days before the scheduled date for initial loading of
fuel, and must provide sufficient information to demonstrate that the
prescribed inspections, tests, or analyses will be performed and the
prescribed acceptance criteria for the uncompleted ITAAC will be met,
including, but not limited to, a description of the specific procedures
and analytical methods to be used for performing the prescribed
inspections, tests, and analyses and determining that the prescribed
acceptance criteria are met.
(4) All ITAAC complete notification. The licensee shall notify the
NRC that all ITAAC are complete.
(d) Licensee determination of non-compliance with ITAAC. (1) In the
event that an activity is subject to an ITAAC derived from a referenced
standard design certification and the licensee has not demonstrated
that the prescribed acceptance criteria are met, the licensee may take
corrective actions to successfully complete that ITAAC or request an
exemption from the standard design certification ITAAC, as applicable.
A request for an exemption must also be accompanied by a request for a
license amendment under 10 CFR 52.98(f).
(2) In the event that an activity is subject to an ITAAC not
derived from a referenced standard design certification and the
licensee has not demonstrated that the prescribed acceptance criteria
are met, the licensee may take corrective actions to successfully
complete that ITAAC or request a license amendment under 10 CFR
52.98(f).
(e) NRC inspection, publication of notices, and availability of
licensee notifications. The NRC shall ensure that the prescribed
inspections, tests, and analyses in the ITAAC are performed. (1) At
appropriate intervals until the last date for submission of requests
for hearing under 10 CFR 52.103(a), the NRC shall publish notices in
the Federal Register of the NRC staff's determination of the successful
completion of inspections, tests, and analyses.
(2) The NRC shall make publicly available the licensee
notifications under paragraph (c) of this section. The NRC shall make
publicly available the licensee notifications under paragraphs (c)(1)
through (4) of this section no later than the date of publication of
the notice of intended operation required by 10 CFR 52.103(a).
Dated at Rockville, Maryland, this 6th day of May 2011.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2011-11679 Filed 5-12-11; 8:45 am]
BILLING CODE 7590-01-P