[Federal Register Volume 68, Number 75 (Friday, April 18, 2003)]
[Proposed Rules]
[Pages 19162-19166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9606]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 68, No. 75 / Friday, April 18, 2003 / 
Proposed Rules  

[[Page 19162]]



NUCLEAR REGULATORY COMMISSION

10 CFR Chapter I


Regulatory Analysis Guidelines: Proposed Criteria for the 
Treatment of Individual Requirements in a Regulatory Analysis

AGENCY: Nuclear Regulatory Commission.

ACTION: Request for comment.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is making available 
for public comment proposed criteria for the treatment of individual 
requirements in a regulatory analysis. The concern is that aggregating 
or ``bundling'' different requirements in a single analysis could 
potentially mask the inclusion of an inappropriate individual 
requirement. Therefore, the NRC proposes to modify its Regulatory 
Analysis Guidelines, NUREG/BR-0058, Rev. 3 by adding guidance to 
address this concern.

DATES: Submit comments on the proposed criteria by July 2, 2003. 
Comments received after this date will be considered if it is practical 
to do so, but the Commission is able to ensure consideration only for 
comments received on or before this date.

ADDRESSES: Mail comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001. ATTN: Rulemakings and 
Adjudications Staff.
    Deliver comments to: 11555 Rockville Pike, Rockville, Maryland, 
between 7:30 a.m. and 4:15 p.m. on Federal workdays (Telephone 301-415-
1678).
    You may also provide comments via the NRC's interactive rulemaking 
Web site at http://ruleforum.llnl.gov. This site provides the 
capability to upload comments as files (any format), if your web 
browser supports that function. For information about the interactive 
rulemaking website, contact Ms. Carol Gallagher, (301) 415-5905 (e-
mail: [email protected]).
    Certain documents related to these proposed criteria, including 
comments received and the ``Regulatory Analysis Guidelines of the U.S. 
Nuclear Regulatory Commission,'' NUREG/BR-0058, Rev. 3, July 2000, may 
be examined, and/or copied for a fee, at the NRC's Public Document 
Room, One White Flint North, 11555 Rockville Pike (first floor), 
Rockville, Maryland. The documents listed below are also accessible 
from the Agencywide Documents Access and Management Systems (ADAMS) 
Public Electronic Reading Room on the internet at the NRC Web site, 
http://www.nrc.gov/reading-rm/adams.html under the following ADAMS 
accession numbers:
    Regulatory Guide 1.174: ML003740133.
    Regulatory Analysis Guidelines, NUREG/BR-0058, Rev. 3: ML003738939.
    Regulations Handbook, NUREG/BR-0053, Rev. 5: ML011010183.
    Commission paper, SECY-00-0198: ML003747699.
    SRM regarding SECY-00-0198: ML010190405.
    Commission paper, SECY-01-0134: ML011970363.
    SRM regarding SECY-01-0134: ML012760353.
    Commission paper, SECY-01-0162: ML012120024.
    SRM regarding SECY-01-0162: ML013650390.
    Commission paper, SECY-02-0225: ML023440333.
    If you do not have access to ADAMS or if there are problems in 
accessing the documents located in ADAMS, contact the NRC Public 
Document Room (PDR) Reference Staff at 1-800-397-4209, 301-415-4737 or 
by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Brian Richter, Office of Nuclear 
Reactor Regulation, Washington, DC 20555-0001, telephone (301) 415-
1978, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Background

    In evaluating a proposed regulatory initiative, the NRC usually 
performs a regulatory analysis for the entire rule to determine whether 
or not it is justified. However, bundling different requirements in a 
single analysis could potentially mask the inclusion of an 
inappropriate individual requirement. In the case of a rule that 
provides a voluntary alternative to current requirements, the net 
benefit from the relaxation of one requirement could potentially 
support a second requirement that is not cost-justified. Similarly, in 
the case of other types of rules, including those subject to backfit 
analysis, the net benefit from one requirement could potentially 
support another requirement that is not cost-justified.
    The issue of bundling different requirements in a single rulemaking 
has been raised by the Commission and the NRC staff in a number of 
contexts. In SECY-00-0198, ``Status Report on Study of Risk-Informed 
Changes to the Technical Requirements of 10 CFR part 50 (Option 3) and 
Recommendations on Risk-Informed Changes to 10 CFR 50.44 (Combustible 
Gas Control),'' dated September 14, 2000, the NRC staff discussed 
development of a voluntary risk-informed alternative rule. The NRC 
staff recommended not to allow selective implementation of parts of the 
voluntary alternative and not to apply the Backfit Rule. In a staff 
requirements memorandum (SRM) dated January 19, 2001, the Commission 
agreed that selective implementation of individual elements of a risk-
informed alternative should not be permitted. The Commission also 
agreed that, since implementation of the risk-informed alternative 
version of 10 CFR 50.44 is voluntary, a backfit analysis of that 
version is not required. Furthermore, the Commission stated that:

    [A] disciplined, meaningful, and scrutable process needs to be 
in place to justify any new requirements that are added as a result 
of the development of risk-informed alternative versions of 
regulations. Just as any burden reduction must be demonstrated to be 
of little or no safety significance, any new requirement should be 
justifiable on some cost-benefit basis. The Commission challenges 
the staff to establish such a criterion in a manner that adds 
fairness and equity without adding significant complexity. The staff 
should develop a proposed resolution for this issue and provide it 
to the Commission for approval.

    This issue once again surfaced in the fitness-for-duty rule. In 
SECY-01-0134, ``Final Rule Amending the Fitness-for-duty Rule,'' dated 
July 23, 2001, the NRC staff recommended withdrawing the OMB clearance 
request for a final rule and developing a new notice of proposed 
rulemaking. In an SRM dated

[[Page 19163]]

October 3, 2001, the Commission approved that recommendation. 
Furthermore, the Commission provided the following specific 
instructions on the backfit analysis:

    In the new fitness-for-duty rulemaking, the Commission will 
conduct an aggregate backfit analysis of the entire rulemaking. If 
there is a reasonable indication that a proposed change imposes 
costs disproportionate to the safety benefit attributable to that 
change, as part of the final rule package the Commission will 
perform an analysis of that proposed change in addition to the 
aggregate analysis of the entire rulemaking to determine whether 
this proposed change should be aggregated with the other proposed 
change for the purposes of the backfit analysis. That analysis will 
need to show that the individual change is integral to achieving the 
purpose of the rule, has costs that are justified in view of the 
benefits that would be provided or qualifies for one of the 
exceptions in 10 CFR 50.109(a)(4).

    In SECY-01-0162, ``Staff Plans for Proceeding With the Risk-
informed Alternative to the Standards for Combustible Gas Control 
Systems in Light-Water-Cooled Power Reactors in 10 CFR 50.44,'' dated 
August 23, 2001, the NRC staff proposed to identify any revisions that 
would be needed to existing guidance to put into place a disciplined, 
meaningful, and scrutable process for assessing any new requirements 
that could be added by a risk-informed alternative rule. Consistent 
with past practice and public expectations, the staff indicated that it 
planned to seek stakeholder input before reporting its recommendations 
to the Commission. In an SRM dated December 31, 2001, the Commission 
directed the staff to:

* * * provide the Commission with recommendations for revising 
existing guidance in order to implement a disciplined, meaningful, 
and scrutable methodology for evaluating the value-impact of any new 
requirements that could be added by a risk-informed alternative 
rule.

Discussion

    In order to obtain stakeholder input before reporting its 
recommendations to the Commission, the NRC staff published its 
preliminary proposed criteria on February 13, 2002, (67 FR 6663) and 
held a public meeting on March 21, 2002. A number of comments and 
suggestions were received at the meeting. (The complete Response to 
Comments document can be found as Attachment 3 to SECY-02-0225, which 
is accessible from ADAMS and at the NRC's Public Document Room as 
discussed above.) The three most significant issues raised were:
    (1) There is concern about the provision that allows the analyst to 
rely on his or her judgment in determining which individual 
requirements should be analyzed separately.
    In response to this concern, the NRC has expanded the guidance 
regarding the appropriate level of disaggregation in an analysis. 
Specifically, this guidance states that a decision on the level of 
disaggregation needs to be tempered by considerations of reasonableness 
and practicality, and that a more detailed disaggregation would only be 
appropriate if it produces substantively different alternatives with 
potentially meaningful implications on the cost-benefit results. While 
the NRC agrees that it often makes sense to divide a rule into discrete 
elements in performing regulatory analyses--and this is how the NRC 
generally performs these analyses--the NRC does not believe that there 
should be a general requirement for a separate analysis of each 
individual requirement of a rule. This could lead to unnecessary 
complexities. While the decision on the appropriate level of 
disaggregation is subjective, this decision--as with any regulatory 
decision--must undergo the agency's extensive internal review process. 
This typically includes a review by agency staff and management, the 
Committee to Review Generic Requirements, appropriate advisory 
committees, the Executive Director for Operations, and the Commission. 
In addition, the public may comment on the appropriate level of 
disaggregation in any public comment opportunity provided in accordance 
with standard NRC procedures for the development of generic 
requirements.
    (2) There should be different guidance for different types of 
rules, rather than general guidance for any type of rule.
    The NRC disagrees with this comment. The current Regulatory 
Analysis Guidelines consistently present broad policy positions that 
are designed to be applicable to all regulatory initiatives that are 
subject to regulatory analysis requirements. Further, the NRC believes 
that having different guidance for different types of rules may 
unnecessarily complicate the regulatory analysis process. In addition, 
it is possible that some rules may fall into more than one category 
(such as a rule that is both risk-informed and a backfit), in which 
case it would be unclear which criteria to use when analyzing a rule.
    (3) For a risk-informed voluntary alternative to current 
regulations, an individual requirement should be integral to the 
purpose of the rule and cost-justified rather than integral to the 
purpose of the rule or cost-justified.
    The NRC maintains that if an individual requirement is integral to 
the purpose of the rule, then that fact alone is a sufficient basis for 
its inclusion, and in fact, a decision on its inclusion or exclusion is 
not discretionary. However, the NRC finds that if a requirement is not 
deemed integral, it should be included if it is cost-justified. This 
alone is a sufficient basis because cost-benefit methodology directs 
one to select the alternative with the largest net benefit. This is 
clearly stated in OMB guidance and guidance contained elsewhere in 
NRC's Regulatory Analysis Guidelines. Clearly, if an individual 
requirement is cost-justified, its inclusion will result in a larger 
net benefit than an alternative that excludes the individual 
requirement. (Note, the proposed criteria no longer contain the phrase 
``integral to the purpose of the rule,'' but rather use the word 
``necessary'' and provide examples of when a requirement may be deemed 
necessary.)
    Internal NRC comments also raised the question of how to perform 
analyses of NRC's periodic review and endorsement of new versions of 
the American Society of Mechanical Engineers (ASME) codes.\1\ Such 
endorsements typically involve numerous individual code provisions that 
are currently evaluated in the aggregate. The concern here is that 
these proposed criteria for the treatment of individual requirements in 
a regulatory analysis may be interpreted as requiring the justification 
of each code change individually. In response to these comments, the 
NRC has added specific language which states that while these 
regulatory actions must be addressed in a regulatory analysis, it is 
usually not necessary to analyze the individual code provisions 
endorsed in these regulatory actions, except if these provisions or the 
action endorsing them constitute backfits. In these regulatory 
analyses, the major features of the codes should be considered, then 
aggregated to produce estimates of the overall burdens and benefits in 
order to determine if the regulatory action is justified. If there are 
some aspects of these regulatory actions that are backfits, these must 
be addressed and justified individually (and separately from the 
analysis of the

[[Page 19164]]

remainder of the action) as discussed in the Appendix to the proposed 
criteria.
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    \1\ The NRC's longstanding policy has been to incorporate new 
versions of the ASME codes into its regulations. ASME codes are 
updated on an annual basis to reflect improvements in technology and 
operating experience. The NRC reviews the updated ASME codes and 
conducts rulemakings to incorporate the latest versions by reference 
into 10 CFR 50.55a, subject to any modifications, limitations, or 
supplementations (i.e., exceptions) that are considered necessary.
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    The NRC has now developed proposed criteria regarding the treatment 
of individual requirements in a regulatory analysis and wishes to 
obtain input from interested members of the public. The NRC intends to 
review and analyze the comments, develop final criteria, and issue the 
final criteria if there are no significant changes due to public 
comments. However, if there are significant changes to the criteria, 
the staff will submit the recommended revised final criteria for the 
approval of the Commission.
    These proposed criteria address only the treatment of individual 
requirements in a regulatory analysis, and if approved, the criteria 
will be added to the Regulatory Analysis Guidelines (NUREG/BR-0058, 
Rev. 3). These proposed revisions to the Guidelines are not intended to 
change the application of the Backfit Rule, 10 CFR 50.109. Analysts and 
decision makers must still apply the requirements of this rule in 
making analytical and regulatory decisions. In addressing the treatment 
of individual requirements in a regulatory analysis, these criteria are 
intended to provide guidance to staff and management in making 
decisions about which individual requirements may be bundled into a 
single regulatory analysis.

Proposed Criteria

    In evaluating a proposed regulatory initiative, the NRC usually 
performs a regulatory analysis for the entire rule to determine whether 
or not it is justified. However, aggregating or ``bundling'' different 
requirements in a single analysis could potentially mask the inclusion 
of an inappropriate individual requirement. In the case of a rule that 
provides a voluntary alternative to current requirements, the net 
benefit from the relaxation of one requirement could potentially 
support a second requirement that is not cost-justified. Similarly, in 
the case of other types of rules, including those subject to backfit 
analysis,\2\ the net benefit from one requirement could potentially 
support another requirement that is not cost-justified.\3\
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    \2\ ``The Regulatory Analysis Guidelines of the U.S. Nuclear 
Regulatory Commission,'' (NUREG/BR-0058) have been developed so that 
a regulatory analysis that conforms to the Guidelines will meet the 
requirements of the Backfit Rule and the provisions of the CRGR 
Charter.
    \3\ This discussion does not apply to backfits that the 
Commission determines qualify under one of the exceptions in 10 CFR 
50.109(a)(4). Those types of backfits require a documented 
evaluation rather than a backfit analysis, and cost is not a 
consideration in deciding whether or not they are justified (though 
costs may be considered in determining how to achieve a certain 
level of protection).
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    Therefore, when analyzing and making decisions about regulatory 
initiatives that are composed of individual requirements, the NRC must 
determine whether or not it is appropriate to include them. Clearly, in 
certain instances, the inclusion of an individual requirement is 
necessary. This would be the case, for example, when the individual 
requirement is needed for the regulatory initiative to resolve the 
problems and concerns and meet the stated objectives \4\ that are the 
focus of the regulatory initiative. Even though inclusion of individual 
requirements is necessary in this case, the analyst should obtain 
separate cost estimates for each requirement, to the extent practical, 
in deriving the total cost estimate presented for the aggregated 
requirements.
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    \4\ The stated objectives of the rule are those stated in the 
preamble (also known as the Statement of Considerations) of the 
rule.

    However, there will also be instances in which the individual 
requirement is not a necessary component of the regulatory initiative, 
and thus the NRC will have some discretion regarding its inclusion. In 
---------------------------------------------------------------------------
these circumstances, the NRC should follow the following guideline:

    If the individual requirement is related (i.e., supportive but 
not necessary) to the stated objective of the regulatory initiative, 
it should be included only if its overall effect is to make the 
bundled regulatory requirement more cost-beneficial. This would 
involve a quantitative and/or qualitative evaluation of the costs 
and benefits of the regulatory initiative with and without the 
individual requirement included, and a direct comparison of those 
results.\5\

    \5\ There may be circumstances in which the analyst considers 
including an individual requirement that is unrelated to the overall 
regulatory initiative. For example, an analyst may consider 
combining certain unrelated requirements as a way to eliminate 
duplicative rulemaking costs to the NRC and thereby increase 
regulatory efficiency. Under these circumstances, it would be 
appropriate to combine these discrete individual requirements if the 
overall effect is to make the regulatory initiative more cost-
beneficial. In those instances in which the individual requirement 
is a backfit, the requirement must be addressed and justified as a 
backfit separately. These backfits are not to be included in the 
overall regulatory analysis of the remainder of the regulatory 
initiative.

    In applying this guideline, the NRC will need to separate out the 
discrete requirements in order to evaluate their effect on the cost-
benefit results. In theory, each regulatory initiative could include 
several discretionary individual requirements and each of those 
discretionary requirements could be comprised of many discrete steps, 
in which each could be viewed as a distinct individual requirement. 
This raises the potential for a large number of iterative cost-benefit 
comparisons, with attendant analytical complexities. Thus, considerable 
care needs to be given to the level of disaggregation that is required. 
In general, a decision on the level of disaggregation needs to be 
tempered by considerations of reasonableness and practicality. For 
example, more detailed disaggregation is only appropriate if it 
produces substantively different alternatives with potentially 
meaningful implications on the cost-benefit results. Alternatively, 
individual elements that contribute little to the overall costs and 
benefits and are noncontroversial may not warrant much, if any, 
consideration. In general, it will not be necessary to provide 
additional documentation or analysis to explain how this determination 
is made, although such a finding can certainly be challenged at the 
public comment stage.\6\ For further guidance, the analyst is referred 
to principles regarding the appropriate level of detail to be included 
in a regulatory analysis, as discussed in chapter 4 of the ``Regulatory 
Analysis Guidelines of the U.S. Nuclear Regulatory Commission.''
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    \6\ See NUREG/BR-0053, Revision 5, March 2001, ``U.S. Nuclear 
Regulatory Commission Regulations Handbook,'' section 7.9, for 
discussion of how to treat comments.
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    In some cases an individual requirement that is being considered 
for inclusion in a voluntary alternative to current regulations may be 
justifiable under the backfit criteria. In these cases the individual 
requirement is both cost-justified and provides a substantial increase 
in the overall protection of the public health and safety or the common 
defense and security. If so, the NRC should consider imposing the 
individual requirement as a backfit (where it would affect all plants 
to which it applies) rather than merely including it in a voluntary-
alternative rule (where it would affect only those plants where the 
voluntary alternative is adopted).
    A special case involves the NRC's periodic review and endorsement 
of voluntary consensus standards, such as new versions of the American 
Society of Mechanical Engineers (ASME) codes. These NRC endorsements 
can typically involve hundreds, if not thousands, of individual 
provisions. Thus, evaluating the benefits and costs of each individual 
provision in a regulatory analysis can be a monumental task. Further, 
the value gained by performing such an exercise appears limited. These 
voluntary

[[Page 19165]]

consensus standards tend to be non-controversial and have already 
undergone extensive external review and been endorsed by industry. 
Therefore, while regulatory actions endorsing these voluntary consensus 
standards must be addressed in a regulatory analysis, it is usually not 
necessary for the regulatory analysis to address the individual 
provisions of the voluntary consensus standards. The NRC believes this 
is appropriate for several reasons: (1) It has been longstanding NRC 
policy to incorporate later versions of the ASME Code into its 
regulations, and thus licensees know when receiving their operating 
licenses that such updating is part of the regulatory process; (2) 
endorsement of the ASME Code is consistent with the National Technology 
Transfer and Advancement Act, inasmuch as the NRC has determined that 
there are sound regulatory reasons for establishing regulatory 
requirements for design, maintenance, inservice inspection and 
inservice testing by rulemaking; and (3) these voluntary consensus 
standards undergo significant external review and discussion before 
being endorsed by the NRC. However, some aspects of these regulatory 
actions are backfits which must be addressed and justified 
individually. For example, NRC endorsement (incorporation by reference) 
of the ASME Boiler and Pressure Vessel Code (BPV) provisions on 
inservice inspection and inservice testing, and the ASME Operations and 
Maintenance (OM) Code, are not ordinarily considered backfits, because 
it has been the NRC's longstanding policy to incorporate later versions 
of the ASME codes into its regulations. However, under some 
circumstances NRC's endorsement of a later ASME BPV or OM Code is 
treated as a backfit. The application of the Backfit Rule to ASME code 
endorsements is discussed in the Appendix below. Aside from these 
backfits, these regulatory analyses should include consideration of the 
major features (e.g., process changes, recordkeeping requirements) of 
the regulatory action which should then be aggregated to produce 
qualitative or quantitative estimates of the overall burdens and 
benefits in order to determine if the remainder of the action is 
justified.

    Dated in Rockville, Maryland, this 14th day of April, 2003.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.

Appendix--Guidance on Backfitting Related to ASME Codes

    Section 50.55a requires nuclear power plant licensees to 
construct ASME Boiler and Pressure Vessel Code (BPV Code) Class 1, 
2, and 3 components in accordance with the rules provided in section 
III, division 1, of the ASME BPV Code; inspect Class 1, 2, 3, Class 
MC, and Class CC components in accordance with the rules provided in 
section XI, division 1, of the ASME BPV Code; and test Class 1, 2, 
and 3 pumps and valves in accordance with the rules provided in the 
ASME Code for Operation and Maintenance of Nuclear Power Plants (OM 
Code). From time to time the NRC amends 10 CFR 50.55a to incorporate 
by reference later editions and addenda of: Section III, division 1, 
of the ASME BPV Code; section XI, division 1, of the ASME BPV Code; 
and the ASME OM Code.

Section A. Incorporation by Reference of Later Editions and Addenda of 
Section III, Division 1 of ASME BPV Code

    Incorporation by reference of later editions and addenda of 
section III, division 1, of the ASME BPV Code is prospective in 
nature. The later editions and addenda do not affect a plant that 
has received a construction permit or an operating license or a 
design that has been approved, because the edition and addenda to be 
used in constructing a plant are, by rule, determined on the basis 
of the date of the construction permit, and are not changed 
thereafter, except voluntarily by the licensee. Thus, incorporation 
by reference of a later edition and addenda of section III, division 
1, does not constitute a ``backfitting'' as defined in Sec.  
50.109(a)(1).

Section B. Incorporation by Reference of Later Editions and Addenda of 
Section XI, Division 1, of the ASME BPV and OM Codes

    Incorporation by reference of later editions and addenda of 
section XI, division 1, of the ASME BPV Code and the ASME OM Code 
affect the ISI and IST programs of operating reactors. However, the 
Backfit Rule generally does not apply to incorporation by reference 
of later editions and addenda of the ASME BPV (section XI) and OM 
codes for the following reasons--
    (1) The NRC's longstanding policy has been to incorporate later 
versions of the ASME codes into its regulations; thus licensees know 
when receiving their operating licenses that such updating is part 
of the regulatory process. This is reflected in Sec.  50.55a which 
requires licensees to revise their ISI and IST programs every 120 
months to the latest edition and addenda of section XI of the ASME 
BPV Code and the ASME OM Code incorporated by reference into Sec.  
50.55a that is in effect 12 months prior to the start of a new 120-
month ISI and IST interval. Thus, when the NRC endorses a later 
version of a code, it is implementing this longstanding policy.
    (2) ASME BPV and OM codes are national consensus standards 
developed by participants with broad and varied interests, in which 
all interested parties (including the NRC and utilities) 
participate. This consideration is consistent with both the intent 
and spirit of the Backfit Rule (i.e., the NRC provides for the 
protection of the public health and safety, and does not 
unilaterally impose undue burden on applicants or licensees).
    (3) Endorsement of these ASME codes is consistent with the 
National Technology Transfer and Advancement Act, inasmuch as the 
NRC has determined that there are sound regulatory reasons for 
establishing regulatory requirements for design, maintenance, 
inservice inspection and inservice testing by rulemaking.

Section C. Other Circumstances Where the NRC Does Not Apply the Backfit 
Rule to the Endorsement of a Later Code

    Other circumstances where the NRC does not apply the Backfit 
Rule to the endorsement of a later code are as follows--
    (1) When the NRC takes exception to a later ASME BPV or OM code 
provision, but merely retains the current existing requirement, 
prohibits the use of the later code provision, or limits the use of 
the later code provision, the Backfit Rule does not apply because 
the NRC is not imposing new requirements. However, the NRC provides 
the technical and/or policy bases for taking exceptions to the code 
in the Statement of Considerations for the rule.
    (2) When an NRC exception relaxes an existing ASME BPV or OM 
code provision but does not prohibit a licensee from using the 
existing code provision.

Section D. Endorsement of Later ASME BPV or OM Codes That Are 
Considered Backfits

    There are some circumstances where the NRC considers it 
appropriate to treat as a backfit the endorsement of a later ASME 
BPV or OM code--
    (1) When the NRC endorses a later provision of the ASME BPV or 
OM code that takes a substantially different direction from the 
currently existing requirements, the action is treated as a backfit. 
An example was the NRC's initial endorsement of subsections IWE and 
IWL of section XI, which imposed containment inspection requirements 
on operating reactors for the first time. The final rule dated 
August 8, 1996 (61 FR 41303), incorporated by reference in Sec.  
50.55a the 1992 Edition with the 1992 Addenda of IWE and IWL of 
section XI to require that containments be routinely inspected to 
detect defects that could compromise a containment's structural 
integrity. This action expanded the scope of Sec.  50.55a to include 
components that were not considered by the existing regulations to 
be within the scope of ISI. Since those requirements involved a 
substantially different direction, they were treated as backfits, 
and justified in accordance with the standards of 10 CFR 50.109.
    (2) When the NRC requires implementation of later ASME BPV or OM 
code provision on an expedited basis, the action is treated as a 
backfit. This applies when implementation is required sooner than it 
would be required if the NRC simply endorsed the Code without any 
expedited language. An example was the

[[Page 19166]]

final rule dated September 22, 1999 (64 FR 51370), which 
incorporated by reference the 1989 Addenda through the 1996 Addenda 
of section III and section XI of the ASME BPV Code, and the 1995 
Edition with the 1996 Addenda of the ASME OM Code. The final rule 
expedited the implementation of the 1995 Edition with the 1996 
Addenda of Appendix VIII of section XI of the ASME BPV Code for 
qualification of personnel and procedures for performing UT 
examinations. The expedited implementation of Appendix VIII was 
considered a backfit because licensees were required to implement 
the new requirements in Appendix VIII prior to the next 120-month 
ISI program inspection interval update. Another example was the 
final rule dated August 6, 1992 (57 FR 34666), which incorporated by 
reference in Sec.  50.55a the 1986 Addenda through the 1989 Edition 
of section III and section XI of the ASME BPV Code. The final rule 
added a requirement to expedite the implementation of the revised 
reactor vessel shell weld examinations in the 1989 Edition of 
section XI. Imposing these examinations was considered a backfit 
because licensees were required to implement the examinations prior 
to the next 120-month ISI program inspection interval update.
    (3) When the NRC takes an exception to a ASME BPV or OM code 
provision and imposes a requirement that is substantially different 
from the current existing requirement as well as substantially 
different than the later code.
    An example of this is that portion of the final rule dated 
September 19, 2002, in which the NRC adopted dissimilar metal piping 
weld ultrasonic (UT) examination coverage requirements.

[FR Doc. 03-9606 Filed 4-17-03; 8:45 am]
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