[Federal Register Volume 68, Number 130 (Tuesday, July 8, 2003)]
[Rules and Regulations]
[Pages 40469-40478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17027]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 68, No. 130 / Tuesday, July 8, 2003 / Rules 
and Regulations  

[[Page 40469]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 50

RIN 3150-AG86


Incorporation by Reference of ASME BPV and OM Code Cases

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
regulations to incorporate by reference NRC Regulatory Guides listing 
Code cases published by the American Society of Mechanical Engineers 
(ASME) which the NRC has reviewed and found to be acceptable for use. 
These Code cases provide alternatives to requirements in the ASME 
Boiler and Pressure Vessel Code (BPV Code) and the ASME Code for 
Operation and Maintenance of Nuclear Power Plants (OM Code) pertaining 
to construction, inservice inspection and inservice testing of nuclear 
power plant components. This action incorporates by reference three 
regulatory guides that address NRC review and approval of ASME-
published Code cases. Therefore, the Code cases listed in these 
regulatory guides are incorporated by reference into the NRC's 
regulations.

EFFECTIVE DATE: August 7, 2003. The incorporation by reference of 
certain publications listed in the regulation is approved by the 
Director of the Office of the Federal Register as of August 7, 2003.

FOR FURTHER INFORMATION CONTACT: Harry S. Tovmassian, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone (301) 415-3092, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Background

    New editions of the ASME BPV and OM Codes are issued every three 
years and addenda to the editions are issued annually. It has been the 
Commission's policy to update 10 CFR 50.55a to incorporate the ASME 
Code editions and addenda by reference. Section 50.55a was last amended 
on September 26, 2002 (67 FR 60520), to incorporate by reference the 
1998 Edition of these Codes, up to and including the 2000 Addenda. The 
ASME also publishes Code cases for Section III and Section XI quarterly 
and Code cases for the OM Code yearly. Code cases are alternatives to 
the requirements of the ASME BPV Code and the OM Code. In the past the 
NRC staff's practice was to review these Code cases and find them 
either acceptable, conditionally acceptable, or unacceptable for use by 
NRC licensees. These Code cases were then listed in periodically 
revised regulatory guides (RGs), together with information on their 
acceptability. Footnote 6 to Sec.  50.55a referred to those RGs listing 
Code cases determined by the staff to be ``suitable for use.'' However, 
the publication dates and version numbers of the RGs were not specified 
in Footnote 6 and these RGs had not been approved by the Director of 
the Office of the Federal Register (OFR) for incorporation by reference 
into the Code of Federal Regulations.

Discussion

    The NRC identified a concern with the practice of generally 
referencing the RGs addressing ASME Code cases in Footnote 6 to Sec.  
50.55a. The notice and comment provisions of the Administrative 
Procedure Act (APA) (5 U.S.C. 551 et seq.), as amended, were arguably 
not satisfied by this practice. To address this matter, on March 19, 
2002 (67 FR 12488), the NRC published a proposed amendment to revise 
Sec.  50.55a to incorporate by reference the regulatory guides which 
list the ASME Code cases approved or conditionally approved by the NRC.
    This final rule amends 10 CFR 50.55a(b) to incorporate by reference 
the RGs listing ASME BPV and OM Code cases which are approved for use 
by NRC licensees (including their revision numbers) into Title 10 of 
the Code of Federal Regulations. The text of existing Footnote 6 to 
Sec.  50.55a is deleted and all references to Footnote 6 in Sec.  
50.55a have been removed and replaced by language that specifies, where 
appropriate, that the optional ASME Code cases that are incorporated by 
reference in Sec.  50.55a(b) may be applied in lieu of the 
corresponding requirements of the ASME Codes. Sections 50.55a(b)(4), 
(b)(5), and (b)(6), which specify limitations upon the implementation 
of approved ASME Code cases, have been added.
    Over the past several years, NRC licensees have expressed their 
dissatisfaction about the length of time it takes the NRC to review and 
approve Code cases. To improve the efficiency of the process for 
endorsement of ASME Code cases, the NRC plans to proceed as follows for 
future updates. First, the NRC will review Code cases and revise the 
RGs periodically to indicate Code cases approved for use by NRC 
licensees. The NRC will issue the draft RGs for comment before issuance 
of the final RGs. At approximately the time each set of final guides is 
issued, the NRC will also issue the next set of proposed guides. 
Second, the NRC will conduct rulemakings to incorporate by reference 
the revised RGs into Sec.  50.55a. The NRC will complete each 
rulemaking within a short time of the issuance of the applicable final 
RGs. Where these rulemakings do not involve any significant questions 
of policy, they will be issued in accordance with the rulemaking 
authority delegated to the NRC's Executive Director for Operations 
under NRC Management Directives 6.3 and 9.17. To expedite the issuance 
of subsequent rules, the NRC will conduct these rulemakings without 
preparing a rulemaking plan. If the rulemakings are not controversial 
and significant adverse comment is not expected, the NRC will 
incorporate by reference future revisions of the RGs through the 
issuance of direct final rules. These actions should expedite the NRC 
process for reviewing and approving ASME Code cases.

Resolution of Public Comments

    In response to the publication of the proposed rule, the NRC 
received eight letters commenting on various aspects of the rulemaking. 
The letters came from utilities, law firms representing utilities, and 
the Nuclear Energy Institute (NEI). NEI sent a second letter to 
supplement its first letter. The following sections address the various 
issues raised by the public commenters.

[[Page 40470]]

1. Comment

    On December 28, 2001 (66 FR 67335), the NRC published a notice of 
the availability of proposed revisions to RGs 1.84 and 1.147 and a new 
proposed RG [temporarily designated DG-1089 but subsequently given a 
permanent designation of RG 1.192] and solicited public comments. One 
rule commenter that had responded to the December 28, 2001, notice 
requests that the NRC consider the comments he submitted on the 
proposed regulatory guides as part of this rulemaking.
Response
    The NRC has considered the public comments received in response to 
its December 28, 2001, notice and has resolved those comments by 
modifying the guides, as appropriate, or providing its rationale for 
not doing so. The public comments received and the NRC resolution of 
the comments on the guides is available to the public as indicated in 
the ``Availability of Documents'' section of these statements of 
consideration. The NRC finds no reason to further consider those 
comments as part of this rulemaking.

2. Comment

    One commenter believes that as an alternative to this rulemaking, 
the NRC should consider developing a Web site (1) where the individual 
Code cases could be posted for public comment and for subsequent NRC 
acceptance (identifying any limitations on or exceptions to the use of 
the Code cases), or (2) where revisions to the RGs could be posted for 
comment each time the NRC proposes to endorse a Code case. Either 
method would allow individual Code cases to be reviewed by the NRC, 
posted for public comment, and accepted for use by licensees within 3-
to-6 months of the ASME publication of the Code case, as compared to 
the 3-to-5 years between past revisions of the RGs.
Response
    The commenter's suggestion does not appear to be in compliance with 
the notice and comment provisions of the APA. The APA requires notice 
of proposed rulemaking to be published in the Federal Register. As 
discussed earlier, the Code cases listed in the RGs to be incorporated 
by reference provide alternatives to compliance with the ASME Codes, 
which are rules by virtue of their incorporation by reference into 
Sec.  50.55a. Accordingly, it is the NRC's view that any generally 
applicable alternatives to the endorsed ASME Codes must be considered 
requirements, and are therefore subject to the notice and comment 
requirements of the APA.
3. Comment
    Some commenters state that the NRC's regulations already allow 
``generic'' approval of Code cases as alternatives to the requirements 
in Sec.  50.55a. In accordance with Sec.  50.55a(a)(3), alternatives 
``may be used when authorized by the Director of the Office of Nuclear 
Reactor Regulation'' if the alternatives provide an acceptable level of 
quality and safety. Several commenters believe that the NRC's 
acceptance on a generic basis could be authorized in a generic 
communication, such as a regulatory issue summary. These commenters 
recommend that if the NRC determines that the current provisions do not 
allow a generic approval in this manner, the NRC should provide a 
generic approval process similar to Sec.  50.55a(a)(3) that would not 
require continued rulemaking for endorsement of Code cases.
Response
    The NRC does not agree that the provisions in Sec.  50.55a(a)(3) 
provide for generic approval of Code cases. This paragraph allows 
licensees, on a license-specific basis, to request NRC's review and 
approval of alternatives to the requirements in the ASME Codes. The 
purpose of Sec.  50.55a(a)(3) is to provide a mechanism for individual 
licensees to request approval to implement measures (including Code 
cases) not generically approved by the NRC in order to meet specific 
licensee needs. The NRC does not believe that it may through rulemaking 
adopt a procedure for ``generically'' approving alternatives to ASME 
Code provisions which are incorporated by reference in Sec.  50.55a if 
the procedure does not meet the requirements for rulemaking or an 
``order'' under the APA.

4. Comment

    While acknowledging that the recommendation is beyond the scope of 
this rulemaking, one commenter suggests that the NRC explore whether 
Sec.  50.55a should be revised to no longer reference the editions and 
addenda of the ASME Code. The editions and addenda of the Code and the 
Code cases could be put into RGs which provide a means by which the 
revised regulation could be met. The commenter believes that both the 
editions and addenda of the Code sections and Code cases could be 
approved more efficiently in this manner.
Response
    The NRC previously considered this approach but rejected it because 
of the difficulty, the length of time, and substantial resources that 
would be necessary to develop a rule that sets forth general 
requirements for inservice inspection (ISI), inservice testing (IST), 
and the construction of nuclear power plant components. The NRC agrees 
that if the rule were revised to no longer incorporate the ASME Codes 
by reference, then this rulemaking to approve Code cases would not be 
necessary. However, as a practical matter, to avoid imposing a backfit, 
the rule would likely have to include a grandfather provision that 
would allow licensees to use current ASME Code requirements already 
incorporated by reference into Sec.  50.55a. Thus, the NRC would still 
be faced with the task of conducting rulemakings to approve Code cases 
for the grandfathered licensees.

5. Comment

    Several commenters urge the NRC to expedite the process for 
reviewing and approving ASME Code cases. One commenter believes that 
the proposed rule is inconsistent with the NRC strategic goal of 
improving the efficiency of the regulatory process. Alternative 
approaches for streamlining the process should be explored.
Response
    The NRC agrees that the process of approving ASME BPV and OM Code 
cases through incorporation by reference into the regulations is 
cumbersome and that a more efficient process would better satisfy the 
NRC's goal of streamlining the regulatory process. As mentioned in the 
Discussion section of these statements of consideration, the NRC is 
planning several actions that it believes will improve the timeliness 
of the incorporation by reference process. Other actions to improve the 
efficiency of the Code case approval process are discussed in the 
Resolution of Public Comments on Guides document published in 
conjunction with the publication of the RGs in question (see 
``Availability of Documents'' section). However, any streamlining of 
the process must comply with applicable law.

6. Comment

    One commenter recommends that, if the NRC believes it must use the 
rulemaking process to incorporate by reference its Code case approvals, 
maximum use should be made of the direct final rule process to enable

[[Page 40471]]

licensees to implement Code cases sooner.
Response
    The NRC agrees with this comment and is considering the feasibility 
of taking this approach with future rulemakings of this type. Direct 
final rules are published together with companion proposed rules 
containing the identical regulations. If there is no significant 
adverse public comment on the direct final rule during the comment 
period, the rule becomes a final rule within a specified number of days 
after publication. If one or more significant adverse comment is 
received, the direct final rule is withdrawn and the proposed rule is 
treated as though no direct final rule had been published. There is no 
further opportunity for public comment. However, the NRC cautions that 
the RGs in question may control the timeliness in this matter. Unless a 
method to streamline the RG publication process is developed, 
efficiencies arrived at by using direct final rules may be minor.

7. Comment

    Several commenters object to the wording in proposed Sec.  
50.55a(i)(2)(ii), as well as the parallel wording of Sec. Sec.  50.55a 
(i)(3)(ii) and (i)(4)(ii). The proposed language would require that 
users of a Code case implement newly approved versions of the Code case 
along with any modifications or limitations. The commenters argue that 
this is inconsistent with the existing requirements in Sec. Sec.  
50.55a (f)(4)(ii) and (g)(4)(ii), which permit licensees to defer 
implementation of new ASME Code criteria.
Response
    The NRC agrees that the proposed rule language would require 
licensees who have implemented a Code case to implement additional 
modifications and limitations if the Code case is revised in the 
future. In general, this is contrary to NRC's intention. The NRC 
intends that once an approved Code case is implemented by an applicant 
or licensee, it may continue to apply the Code case until it updates 
its Code of Record for the component being constructed or until the end 
of the licensee's current 120-month ISI or IST update interval, as 
applicable. Accordingly, the proposed rule language has been modified 
in the final rule Sec. Sec.  50.55a (b)(4)(ii), (b)(5)(ii), and 
(b)(6)(ii) (corresponding to Sec. Sec.  50.55a (i)(2)(ii), (i)(3)(ii), 
and (i)(4)(ii) in the proposed rule) to clarify the NRC's intention in 
this regard. An exception to this would be when the NRC's initial 
approval of the Code case by a specific licensee is conditioned by 
including language that requires the licensee to apply any limitations 
or conditions specified in a revised RG that approves that Code case. 
Accordingly, the final rule states that the licensee may apply the 
previous version of the Code case ``as authorized,'' which refers to 
the NRC's condition in the initial approval of the Code case for use by 
a specific licensee.

8. Comment

    One commenter states that proposed Sec.  50.55a(i)(2)(iv) is not 
``conducive to'' use with repair/replacement activities under Section 
XI of the ASME Code and the Section XI Code cases. Replacement items 
are procured over time and many different editions and addenda of 
Section III may be referenced for different items. Therefore, the 
phrase in the proposed rule ``* * * until the licensee updates its 
Section III Code of Record'' could be interpreted as referring to a 
singular event rather than an action that occurs many times. Adding the 
phrase ``for the item being constructed'' would clarify that a licensee 
can use an annulled Code case until it procures the specific item to an 
updated Section III.
    The commenter is also concerned about situations in which the 
licensee implements a Code case to a certain edition of the Code, but 
later updates his Code of Record to a later edition of the Code. In 
some instances the updated Code of Record will not have the Code case 
approved because it has been incorporated into the Code. The commenter 
recommends the following wording to resolve both concerns: ``A licensee 
that has initiated implementation of a Code case that is subsequently 
annulled by the ASME may continue to apply that Code case until the 
licensee updates its Section III Code of Record for the item being 
constructed to an edition or addenda of Section III that has 
incorporated the case.''
Response
    The NRC agrees with these comments and has amended Sec.  
50.55a(b)(4)(iii) in the final rule to read as the commenter suggests 
with some further clarifications, as follows: ``Application of an 
annulled Code case is prohibited unless an applicant or licensee 
applied the listed Code case prior to it being listed as annulled in 
Regulatory Guide 1.84. If an applicant or licensee has applied a listed 
Code case that is later listed as annulled in Regulatory Guide 1.84, 
the applicant or licensee may continue to apply the Code case until it 
updates its Code of Record for the component being constructed.''

9. Comment

    A commenter requests that the NRC retain Footnote 6 of Sec.  50.55a 
and amend it to reference a new RG which is temporarily designated as 
DG-1112. Although this RG, which has been designated NRC Regulatory 
Guide 1.193, lists Code cases that the NRC has reviewed and not 
approved, the commenter believes that it would be useful to licensees 
because they could still implement the Code cases through the 
provisions of Sec.  50.55a(a)(3), if the NRC's concerns are adequately 
resolved.
Response
    The NRC does not believe that it is appropriate to reference RGs 
that list disapproved ASME Code cases. The fact the NRC has not 
incorporated a Code case by reference simply means that the Code case 
has not received generic NRC approval, and therefore may not be applied 
without prior NRC review and approval. Referencing RGs which list 
disapproved Code cases may give the appearance that the NRC has 
generically disapproved the Code cases in question, which is incorrect. 
As the commenter points out, disapproved Code cases may be proposed 
through the relief request process permitted by Sec.  50.55a(a)(3). 
Also, the NRC does not believe that the lack of a reference to 
Regulatory Guide 1.193 presents a hardship to licensees. Licensees are 
generally aware of its existence and availability and may make use of 
it as they see fit. Thus, the final rule does not reference this RG.

10. Comment

    Several commenters recommend that the incorporation by reference of 
the RGs listing the NRC-approved ASME BPV and OM Code cases be placed 
in Sec.  50.55a(b), instead of in a new Sec.  50.55a(i) as in the 
proposed rule, because of the similarity of the requirements.
Response
    During the preparation of the proposed rule, the staff considered 
several options for integrating the incorporation by reference of the 
RGs with the remaining requirements in Sec.  50.55a and sought public 
comment on this question. The staff agrees with the commenters that 
incorporation by reference of the RGs listing NRC-approved Code cases 
should be co-located with the incorporation by reference of the various 
ASME BPV and OM Code editions and addenda. Thus, this final rule 
expands Sec.  50.55a(b) to include the incorporation by reference

[[Page 40472]]

of the RGs and adds paragraphs (b)(4), (b)(5), and (b)(6) to specify 
the implementation requirements.

11. Comment

    Sections 50.55a(i)(2)(iv), 50.55a(i)(3)(iv), and 50.55a(i)(4)(iv) 
of the proposed rule state that licensees could no longer apply an NRC-
approved annulled Code case if the NRC later determines the Code case 
is unacceptable for use and revises Sec.  50.55a or the applicable 
regulatory guide (1.84, 1.147, or 1.192) to prohibit continued 
application of the annulled Code case. Several commenters state that 
revising Sec.  50.55a or the applicable regulatory guide (1.84, 1.147, 
or 1.192) to prohibit continued application of the NRC-approved 
annulled Code case for the remainder of the interval is a backfit.
Response
    The NRC agrees that any revision to Sec.  50.55a prohibiting the 
continued application of an annulled Code case for the remainder of an 
interval would be a backfit that must be justified in accordance with 
Sec.  50.109. In order to avoid confusion, the requirement in the 
proposed rule prohibiting the continued application of an annulled Code 
case previously approved by the NRC is deleted in the final rule. 
However, if in the future, an NRC-approved Code case is annulled, 
allowed to expire, or revised because the Code case is no longer 
adequate, the NRC will consider amending Sec.  50.55a and the 
applicable regulatory guide to prohibit continued application of the 
Code case. The NRC will justify the revision to Sec.  50.55a in 
accordance with the requirements in Sec.  50.109.

12. Comment

    Several commenters recommend that the phrase, ``or the optional 
ASME Code cases listed in the RGs incorporated by reference in 
paragraph (i) of this section'' be added in six other paragraphs in 
Sec.  50.55a where reference is made to the use of ASME BPV or OM Code 
provisions.
Response
    The phrase in question occurred in various locations of Sec.  
50.55a in the proposed rule where the regulations in the current rule 
had referred the reader to Footnote 6 (which references the RGs listing 
approved Code cases). The NRC agrees with the commenter that the 
reference to the use of the optional ASME BPV and OM Code cases should 
also be included in the specified paragraphs. The NRC has modified 
Sec. Sec.  50.55a(f)(3)(iii)(B), (f)(3)(iv)(B), (f)(4)(i), (f)(4)(ii), 
(g)(4)(i), and (g)(4)(ii), accordingly.

13. Comment

    One commenter states that the incorporation by reference of the 
ASME Code cases in Sec.  50.55a is unnecessary because the ASME issues 
Code cases as alternative rules applicable for a 3-year period, after 
which the Code cases are incorporated into the ASME Code, annulled, or 
renewed, and because Sec.  50.55a has provisions for endorsement of 
future editions and addenda of the ASME Code. The commenter also 
believes the process is inefficient and unlawful because it introduces 
new regulatory positions without satisfying the requirements of the 
Backfit Rule, 10 CFR 50.109.
Response
    The Commission agrees that once the provisions of a Code case are 
incorporated into an edition or addenda of the ASME BPV or OM Code, and 
those editions and addenda of the Codes are incorporated by reference, 
there is no need for incorporation by reference of those alternative 
requirements. However, from the time that the Code case is published by 
the ASME to the time it is listed in an incorporated edition or addenda 
of the Codes, there is no legal mechanism for the NRC to approve its 
use other than through the provisions of Sec.  50.55a(a)(3) for 
requesting approval of alternatives. This requires a case-by-case 
review and approval, which is time consuming and wasteful of agency 
resources. Therefore, the Commission has determined that rulemaking 
approving the use of alternatives to the required ASME Code provisions 
specified in Sec.  50.55a is the most efficient course of action that 
complies with applicable law.
    This rulemaking contains no requirements that satisfy the 
definition of a backfit as specified in 10 CFR 50.109(a)(1). The 
initial application of a Code case is voluntary on the part of the 
licensee. Absent approval of the NRC, either on a license-specific 
basis or through a generic rulemaking, a licensee is not legally 
authorized to use an ASME Code case. Hence, any limitations on the use 
of Code cases are not backfits as defined in Sec.  50.109(a)(1).

14. Comment

    Several commenters believe that the NRC is acting contrary to the 
intent of Congress in passing the National Technology Transfer and 
Advancement Act of 1995, (Pub. L. 104-113), which was implemented 
through Office Management and Budget (OMB) Circular A-119 and NRC 
Management Directive 6.5, ``NRC Participation on Development and Use of 
Consensus Standards.'' These commenters believe the NRC has not 
identified regulations that are in direct conflict with the published 
Code case or documented a regulatory basis for imposing limitations or 
modifications.
Response
    The NRC does not agree with the commenters' opinion that the NRC 
has not fully complied with the letter and intent of Public Law 104-113 
and the associated guidance. Public Law 104-113, requires that Federal 
agencies use technical standards that are developed by voluntary 
consensus standards bodies unless the use of these standards is 
inconsistent with applicable law or is otherwise impractical. The 
statute does not require Federal agencies to endorse a standard in its 
entirety, nor does it forbid Federal agencies to endorse industry 
consensus standards with limitations or modifications, if the agencies 
deem the provisions of the standards to be inconsistent with applicable 
law or otherwise impractical. Endorsing a voluntary consensus standard 
with limitations, modifications, or exceptions furthers the 
congressional intent of Federal reliance on voluntary consensus 
standards by allowing the adoption of substantial portions of consensus 
standards. Agencies need not reject the standards in their entirety 
because a few provisions are not acceptable. Moreover, there is no 
legislative history suggesting that Congress intended agencies to take 
an ``all or nothing'' approach to the endorsement of voluntary 
consensus standards under the Act, and the OMB guidance implementing 
Public Law 104-113 does not address the matter. The discussions of the 
limitations and modifications in the RGs and the document on the 
Resolution of Public Comments on the RGs are sufficient to satisfy the 
requirements of section 12(d)(3) of Public Law 104-113, and the 
relevant requirements of OMB Circular A-119 (1998).

15. Comment

    According to one commenter the proposed rulemaking is unlawful 
because it is not in compliance with the Backfit Rule, 10 CFR 50.109. 
(The commenter provided no explanation of why the proposed rule is in 
conflict with the Backfit Rule.)
Response
    Section 50.109(a)(2) requires that the NRC perform a backfit 
analysis for any backfits, as defined in Sec.  50.109(a)(1), that it 
seeks to impose, unless the

[[Page 40473]]

backfits fall into one or more of the delineated exceptions. A backfit 
is a modification of or addition to systems, components, or design of a 
facility, or the design approval or manufacturing license, or 
procedures or organization required to design, construct or operate a 
facility, any of which may result from a new or amended provision in 
the Commission's rules or the imposition of a staff regulatory position 
interpreting the Commission rules that is either new or different from 
previously applicable staff positions. As discussed in the responses to 
Comments 11 and 13, the Commission finds that this final rule does not 
contain any requirements which satisfy the definition of a backfit, and 
consequently, a backfit analysis is not required.

16. Comment

    One commenter states that when Code cases are interpretive of the 
regulations (or provide an alternative means for achieving compliance 
with a requirement), they need not be incorporated by reference and 
that licensees should be permitted to use them with no further NRC 
action.
Response
    The NRC agrees that Code cases that are purely interpretations of 
the regulations incorporated by reference in Sec.  50.55a(b) need not 
be incorporated by reference. However, the Code cases incorporated by 
reference in Sec.  50.55a, with or without modifications or 
limitations, constitute alternatives to the requirements in Sec.  
50.55a and not interpretations. Therefore, the NRC believes that 
incorporating the RGs by reference is the proper treatment of these 
alternative requirements.

Paragraph-by-Paragraph Discussion

    On December 28, 2001 (66 FR 67335), the NRC published proposed 
revisions to RGs 1.84 and 1.147 and a new proposed RG [temporarily 
designated DG-1089]. The NRC has considered the public comments on 
these RGs and has resolved those comments by modifying the guides, as 
appropriate, or providing its rationale for not doing so. Previously, 
RG 1.84, Revision 31, listed only Section III Code cases related to 
design and fabrication, and RG 1.85, Revision 31, listed Section III 
Code cases related to materials and testing. Revision 32 to RG 1.84 
lists for the first time in one guide all Section III Code cases that 
have been approved for use by the NRC. The staff intents to withdraw RG 
1.85 when the ensuing revisions to the RGs are published. This 
rulemaking incorporates by reference Regulatory Guide 1.84, Revision 
32, ``Design, Fabrication, and Materials Code Case Acceptability, ASME 
Section III,'' Regulatory Guide 1.147, through Revision 13, ``Inservice 
Inspection Code Case Acceptability, ASME Section XI, Division 1,'' and 
Regulatory Guide 1.192, ``Operation and Maintenance Code Case 
Acceptability, ASME OM Code.''

1. Paragraph 50.55a(b)

    In the proposed rule (March 19, 2002: 67 FR 12488), the language of 
incorporation by reference of the RGs and the implementation 
requirements were contained in a new postulated paragraph (i). The NRC 
requested public comment on the proposed placement of these 
requirements. As discussed in Comment 10 and the corresponding NRC 
response, the Commission has decided to place the incorporation by 
reference of the RGs listing NRC-approved ASME BPV and OM Code case in 
Sec.  50.55a(b) and the corresponding implementation requirements in 
Sec. Sec.  50.55a(b)(4), (b)(5), and (b)(6). In this manner, the 
incorporation by reference of the RGs listing NRC-approved Code cases 
would be located with the incorporation by reference of the editions 
and addenda of the ASME BPV and OM Codes and be more organizationally 
consistent. Thus Sec.  50.55a(b) has been expanded and now contains the 
language of incorporation by reference of the RGs listing NRC-approved 
ASME BPV and OM Code cases and identifies each RG by title and revision 
number.
    Section 50.55a(b) now specifies the applicable RGs for 
incorporation by reference in addition to the editions and addenda of 
the ASME Boiler and Pressure Vessel Code and Code for Operation and 
Maintenance of Nuclear Power Plants. This paragraph incorporates by 
reference NRC Regulatory Guide 1.84, Revision 32, NRC Regulatory Guide 
1.147, through Revision 13, and NRC Regulatory Guide 1.192. This final 
rule incorporates all of the revisions of Regulatory Guide 1.147 
because some licensees continue to apply Code cases listed as approved 
in earlier revisions to this RG and if these revisions were not 
incorporated by reference the further use of these Code cases would be 
prohibited. Similarly, Revision 14 of Regulatory Guide 1.147 will be 
incorporated by reference in the same fashion because it has already 
been prepared in draft form and major reformatting of that document 
would result in a substantial delay in issuing the final version. 
However, the NRC will format Revision 15 of Regulatory Guide 1.147 so 
that it provides the current status of all Section XI Code cases and at 
that time the incorporation by reference of previous revisions of that 
RG will be superceded.
    The RGs incorporated by reference in this final rule list Code 
cases applicable to Section III of the ASME BPV Code, Section XI of the 
ASME BPV Code, and the ASME OM Code, respectively, that have been 
approved unconditionally, or with conditions and limitations specified 
by the NRC, as alternatives to specific Code provisions. NRC approval 
of the use of Code cases listed in these RGs is granted only if the 
limitations and conditions, if any, are applied.
    Sections 50.55a(b)(4), (b)(5), and (b)(6) require that licensees or 
applicants initially applying a Code case which is listed in one of the 
RGs as acceptable apply the most recent version of the Code case listed 
in the RG. If a licensee or applicant is applying a particular version 
of an approved Section III Code case, and a later version is 
incorporated into the applicable RG as acceptable, the licensee or 
applicant may continue to apply the earlier version of the Code case 
until it updates its Code of Record for the component being 
constructed. A licensee may continue to apply the earlier version of a 
Section XI or OM Code case until the end of the licensee's current 120-
month ISI or IST update interval, including any adjustments to the 
interval permitted under Paragraphs IWA-2430(c)(1) and (e) of Section 
XI of the ASME BPV Code or Paragraphs ISTA 2.2.3(d) and (e) of the OM 
Code.
    Sections 50.55a (b)(4), (b)(5), and (b)(6) also specify that a 
licensee is permitted to apply an annulled or expired Code case 
provided that it has been applied before it has been listed as expired 
or annulled in RG 1.84, 1.147, or 1.192. A licensee implementing an 
approved Section III Code case that is subsequently listed as annulled 
or expired in RG 1.84 may continue to apply that Code case until it 
updates its Code of Record for the component being constructed. A 
licensee implementing an approved Section XI or OM Code case that is 
subsequently listed as annulled or expired in RG 1.147 or RG 1.192 may 
continue to apply that Code case until it updates its ISI or IST 
program to an edition or addenda of the Code that has incorporated the 
Code case. In most circumstances, a Code case is annulled or allowed to 
expire by the ASME because the Code case is included in a later edition 
or addenda of the ASME BPV or OM Codes. When a licensee updates its 
construction, ISI or IST Code of Record, the provisions of the Code can 
then be applied instead of the annulled or expired Code case. In any 
event, a licensee may continue to use the annulled or expired Code case

[[Page 40474]]

until the end of its 120-month ISI/IST interval or until it updates its 
construction Code of Record, unless the NRC specifically prohibits its 
continued use by modifying the RG or 10 CFR 50.55a and performing a 
backfit analysis in accordance with the provisions in 10 CFR 50.109.
    In the proposed rule, Sec. Sec.  50.55a(i)(2)(iv), (i)(3)(iv), and 
(i)(4)(iv) contained language implying that Sec.  50.55a or the RGs 
could specifically prohibit the use of annulled Code cases. As noted in 
the Response to Comment 11, this language is unnecessary and has been 
removed in the final rule.

2. Paragraphs 50.55a(c)(3), (d)(2), and (e)(2)

    Current references to Footnote 6 in Sec. Sec.  50.55a(c)(3), 
(d)(2), and (e)(2) have been removed, and text has been added to 
indicate that the optional ASME Code cases referred to are those listed 
in the RGs that are incorporated by reference in Sec.  50.55a(b).

3. Paragraphs 50.55a(f)(2), (f)(3)(iii)(A), (f)(3)(iv)(A), (g)(2), 
(g)(3)(i), and (g)(3)(ii)

    Currently, Sec. Sec.  50.55a(f)(2), (f)(3)(iii)(A), (f)(3)(iv)(A), 
(g)(2), (g)(3)(i), and (g)(3)(ii) do not specifically mention ASME Code 
cases but have a reference to Footnote 6. These references to Footnote 
6 have been removed and text has been added to indicate that the 
optional ASME Code cases referred to are those listed in the RGs that 
are incorporated by reference in Sec.  50.55a(b).

4. Paragraphs 50.55a(f)(3)(iii)(B), (f)(3)(iv)(B), (f)(4)(i), 
(f)(4)(ii), (g)(4)(i), and (g)(4)(ii)

    Sections 50.55a(f)(3)(iii)(B), (f)(3)(iv)(B), (f)(4)(i), 
(f)(4)(ii), (g)(4)(i), and (g)(4)(ii) have been amended to indicate 
that the ASME Code cases listed in the RGs that are incorporated by 
reference in Sec.  50.55a may be applied in lieu of corresponding ASME 
BPV or OM Code requirements.

5. Footnote 6, 10 CFR 50.55a

    Footnote 6 has been removed from Sec.  50.55a and the footnote 
number has been reserved. Footnote 6 to Sec.  50.55a formerly stated 
that ASME Code cases suitable for use are listed in RGs 1.84, 1.85, and 
1.147. These Code cases are now approved for use by specific language 
in Sec. Sec.  50.55a(c)(3), (d)(2), (e)(2), (f)(2), (f)(3)(iii)(A), 
(f)(3)(iii)(B), (f)(3)(iv)(A), (f)(3)(iv)(B), (f)(4)(i), (f)(4)(ii), 
(g)(2), (g)(3)(i), (g)(3)(ii), (g)(4)(i), and (g)(4)(ii). Footnote 6 
also stated that the use of other Code cases may be authorized by the 
Director of the Office of Nuclear Reactor Regulation upon request 
pursuant to Sec.  50.55a(a)(3). This text is being removed because it 
is unnecessary; licensees continue to have the option of requesting 
approval to use Code cases not incorporated by reference into Sec.  
50.55a under Sec.  50.55a(a)(3).

Availability of Documents

    The NRC is making the documents identified below available to 
interested persons through one or more of the following:
    Public Document Room (PDR). The NRC Public Document Room is located 
at 11555 Rockville Pike, Public File Area O-1 F21, Rockville, Maryland.
    Rulemaking Web site. The NRC's interactive rulemaking Web site is 
located at http://ruleforum.llnl.gov. The documents may be viewed and 
downloaded electronically via this Web site.
    The NRC's Public Electronic Reading Room (PERR). The NRC's public 
electronic Reading Room is located at http://www.nrc.gov/reading-rm.html.
    The NRC staff contact (NRC Staff). Single copies of the final rule, 
the regulatory analysis, the environmental assessment, and the 
regulatory guides may be obtained from Harry S. Tovmassian, Office of 
Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001. Alternatively, you may contact Mr. 
Tovmassian at (301) 415-3092 or via e-mail to: [email protected].

----------------------------------------------------------------------------------------------------------------
                         Document                             PDR        Web            PERR          NRC staff
----------------------------------------------------------------------------------------------------------------
Environmental Assessment.................................         x          x         ML030690244            x
Regulatory Analysis......................................         x          x         ML031490533            x
Regulatory Guide 1.192...................................         x   .........        ML030730430            x
Regulatory Guide 1.84, Revision 32.......................         x   .........        ML030730417            x
Regulatory Guide 1.147, Revisions 0 to 12................         x   .........        ML031560264            x
Regulatory Guide 1.147, Revision 13......................         x   .........        ML030730423            x
Regulatory Guide 1.193...................................         x   .........        ML030730440            x
Resolution of Public Comments on Guides..................         x   .........        ML030730448            x
----------------------------------------------------------------------------------------------------------------

Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, 
Public Law 104-113, requires agencies to use technical standards 
developed or adopted by voluntary consensus standards bodies unless the 
use of such standards is inconsistent with applicable law or is 
otherwise impractical. The NRC is amending its regulations to 
incorporate by reference regulatory guides that list ASME BPV and OM 
Code cases which have been approved by the NRC. ASME Code cases, which 
are ASME-approved alternatives to the provisions of ASME Code editions 
and addenda, constitute national consensus standards, as defined in 
Public Law 104-113 and OMB Circular A-119. They are developed by bodies 
whose members (including the NRC and utilities) have broad and varied 
interests.
    These statements of consideration provide the reasons for modifying 
or limiting the applicability of ASME Code cases otherwise approved for 
use by the NRC as alternatives to current ASME Code provisions 
incorporated by reference into Sec.  50.55a. The treatment of ASME BPV 
and OM Code cases, and modifications and conditions placed on them, in 
this final rule does not conflict with any policy on agency use of 
consensus standards specified in OMB Circular A-119.

Finding of No Significant Environmental Impact: Availability

    The Commission has determined under the National Environmental 
Policy Act of 1969, as amended, and the Commission's regulations in 
subpart A of 10 CFR part 51, that this rule is not a major Federal 
action significantly affecting the quality of the human environment, 
and, therefore, an environmental impact statement is not required.
    This rulemaking will not significantly increase the probability or 
consequences of accidents; no changes are being made in the types of 
effluents that may be released off site; and there is no significant 
increase in public radiation exposure. Therefore, there are no 
significant environmental impacts

[[Page 40475]]

associated with the action. Therefore, the NRC determines that there 
will be no significant off site impact to the public from this action.
    The basis for NRC's finding is set forth in an environmental 
assessment on this final rule. The environmental assessment is 
available as indicated in the Availability of Documents section under 
the Supplementary Information heading. The NRC requested the views of 
the States on the environmental assessment for the rule and did not 
receive any comments from the States.

Paperwork Reduction Act Statement

    This final rule decreases the burden on licensees for recordkeeping 
and reporting requirements related to examinations, tests, and repair 
and replacement activities during refueling outages and the 
recordkeeping requirements associated with welding procedures. The 
annual public burden reduction for this information collection is 
estimated to average 59 hours for each of 172 responses. Because the 
burden for this information collection is insignificant, OMB clearance 
is not required. The existing requirements were approved by OMB, 
approval number 3150-0011.

Public Protection Notification

    If a means used to impose an information collection does not 
display a currently valid OMB control number, the NRC may not conduct 
or sponsor, and a person is not required to respond to, the information 
collection.

Regulatory Analysis

    The ASME Code cases listed in the RGs provide voluntary 
alternatives to the provisions in the ASME BPV Code and OM Code for 
construction, ISI, and IST of specific structures, systems, and 
components used in nuclear power plants. Implementation of these Code 
cases is not required. Licensees use NRC-approved ASME Code cases to 
reduce regulatory burden or gain additional operational flexibility. It 
would be difficult for the NRC to provide these advantages independent 
of the ASME Code case publication process without a considerable 
additional resource expenditure by the agency. The NRC has prepared a 
regulatory analysis addressing the qualitative benefits of the 
alternatives considered in this rulemaking and comparing the costs 
associated with each alternative. The regulatory analysis is available 
for inspection in the NRC Public Document Room, located at One White 
Flint North, 11555 Rockville Pike, Rockville, Maryland, Room O-1 F21. 
Single copies of the analysis may be obtained from Harry S. Tovmassian, 
Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory 
Commission, telephone (301) 415-3092, e-mail [email protected].

Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act of 1980, (5 
U.S.C. 605(b)), the Commission certifies that this final rule will not 
have a significant economic impact on a substantial number of small 
entities. This final 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).

Backfit Analysis

    The provisions in this rulemaking permit, but do not require, 
licensees to apply Code cases that have been reviewed and approved by 
the NRC, sometimes with modifications or conditions. Therefore, the 
implementation of an approved Code case is voluntary and does not 
constitute a backfit. Thus the Commission finds that these amendments 
do not involve any provisions that constitute a backfit as defined in 
10 CFR 50.109(a)(1), that the backfit rule does not apply to this final 
rule, and that a backfit analysis is not required.

Small Business Regulatory Enforcement Fairness Act

    In accordance with the Small Business Regulatory Enforcement 
Fairness Act of 1996, the NRC has determined that this action is not a 
major rule and has verified this determination with the Office of 
Information and Regulatory Affairs of OMB.

List of Subjects in 10 CFR Part 50

    Antitrust, Classified information, Criminal penalties, Fire 
protection, Incorporation by reference, Intergovernmental relations, 
Nuclear power plants and reactors, Radiation protection, Reactor siting 
criteria, Reporting and recordkeeping requirements.


0
For the reasons set forth 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. 552 and 553, the NRC is adopting 
the following amendments to 10 CFR Part 50.

0
1. The authority citation for Part 50 continues to read as follows:

PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION 
FACILITIES

    Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68 
Stat. 936, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 
Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 
2233, 2239, 2282); Secs. 201, as amended, 202, 206, 88 Stat. 1242, 
as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).

    Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951, as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 
U.S.C. 5851). Section 50.10 also issued under Secs. 101, 185, 68 Stat. 
936, 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 91-190, 
83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd), and 50.103 
also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138). 
Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec. 185, 68 
Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and Appendix Q also 
issued under sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). 
Sections 50.34 and 50.54 also issued under Pub. L. 97-415, 96 Stat. 
2073 (42 U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 
Stat. 939 (42 U.S.C. 2152). Sections 50.80-50.81 also issued under sec. 
184, 68 Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued 
under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

0
2. Section 50.55a is amended by--
0
a. Revising the introductory text of paragraph (b), the introductory 
text of paragraph (c)(3), paragraph (c)(3)(iv), the introductory text 
of paragraph (d)(2), paragraph (d)(2)(iii), the introductory text of 
paragraph (e)(2), paragraphs (e)(2)(iii), (f)(2), (f)(3)(iii)(A), 
(f)(3)(iii)(B), (f)(3)(iv)(A), (f)(3)(iv)(B), (f)(4)(i), (f)(4)(ii), 
(g)(2), (g)(3)(i), (g)(3)(ii), (g)(4)(i) and (g)(4)(ii);
0
b. Adding paragraphs (b)(4), (b)(5), and (b)(6); and
0
c. Removing the text of Footnote 6 and reserving the footnote number.


Sec.  50.55a  Codes and standards.

* * * * *
    (b) The ASME Boiler and Pressure Vessel Code and the ASME Code for 
Operation and Maintenance of Nuclear Power Plants, which are referenced 
in paragraphs (b)(1), (b)(2), and (b)(3) of this section, were approved 
for incorporation by reference by the Director of the Office of the 
Federal Register pursuant to 5 U.S.C. 552(a) and 1 CFR part 51. NRC 
Regulatory Guide 1.84, Revision 32, ``Design, Fabrication, and 
Materials Code Case Acceptability, ASME Section III'' (June 2003); NRC 
Regulatory Guide 1.147 (Revision 0--

[[Page 40476]]

February 1981), including Revision 1 through Revision 13 (June 2003), 
``Inservice Inspection Code Case Acceptability, ASME Section XI, 
Division 1''; and Regulatory Guide 1.192, ``Operation and Maintenance 
Code Case Acceptability, ASME OM Code'' (June 2003), have been approved 
for incorporation by reference by the Director of the Office of the 
Federal Register pursuant to 5 U.S.C. 552(a) and 1 CFR part 51. These 
regulatory guides list ASME Code cases which the NRC has approved in 
accordance with the requirements in paragraphs (b)(4), (b)(5), and 
(b)(6). Copies of the ASME Boiler and Pressure Vessel Code and the ASME 
Code for Operation and Maintenance of Nuclear Power Plants may be 
purchased from the American Society of Mechanical Engineers, Three Park 
Avenue, New York, NY 10016. Also, copies of these Codes and NRC 
Regulatory Guides 1.84, Revision 32; 1.147, through Revision 13; and 
1.192 are available for inspection and copying for a fee at the Office 
of the Federal Register, 800 N. Capitol Street, Suite 700, Washington, 
DC, as well as the NRC Technical Library, Two White Flint North, 11545 
Rockville Pike, Rockville, Maryland 20852-2738. Single copies of 
Regulatory Guides may be obtained free of charge by writing the 
Distribution Services Section, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, or by fax to (301) 415-2289; or by email to 
[email protected].
* * * * *
    (4) Design, Fabrication, and Materials Code Cases. Licensees may 
apply the ASME Boiler and Pressure Vessel Code cases listed in NRC 
Regulatory Guide 1.84, Revision 32, without prior NRC approval subject 
to the following:
    (i) When an applicant or licensee initially applies a listed Code 
case, the applicant or licensee shall apply the most recent version of 
that Code case incorporated by reference in this paragraph.
    (ii) If an applicant or licensee has previously applied a Code case 
and a later version of the Code case is incorporated by reference in 
this paragraph, the applicant or licensee may continue to apply the 
previous version of the Code case as authorized, or may apply the later 
version of the Code case, including any NRC-specified conditions placed 
on its use, until it updates its Code of Record for the component being 
constructed.
    (iii) Application of an annulled Code case is prohibited unless an 
applicant or licensee applied the listed Code case prior to it being 
listed as annulled in Regulatory Guide 1.84. If an applicant or 
licensee has applied a listed Code case that is later listed as 
annulled in Regulatory Guide 1.84, the applicant or licensee may 
continue to apply the Code case until it updates its Code of Record for 
the component being constructed.
    (5) Inservice Inspection Code Cases. Licensees may apply the ASME 
Boiler and Pressure Vessel Code cases listed in Regulatory Guide 1.147 
through Revision 13, without prior NRC approval subject to the 
following:
    (i) When a licensee initially applies a listed Code case, the 
licensee shall apply the most recent version of that Code case 
incorporated by reference in this paragraph.
    (ii) If a licensee has previously applied a Code case and a later 
version of the Code case is incorporated by reference in this 
paragraph, the licensee may continue to apply, to the end of the 
current 120-month interval, the previous version of the Code case as 
authorized or may apply the later version of the Code case, including 
any NRC-specified conditions placed on its use.
    (iii) Application of an annulled Code case is prohibited unless a 
licensee previously applied the listed Code case prior to it being 
listed as annulled in Regulatory Guide 1.147. Any Code case listed as 
annulled in any Revision of Regulatory Guide 1.147 which a licensee has 
applied prior to it being listed as annulled, may continue to be 
applied by that licensee to the end of the 120-month interval in which 
the Code case was implemented.
    (6) Operation and Maintenance of Nuclear Power Plants Code Cases. 
Licensees may apply the ASME Operation and Maintenance Nuclear Power 
Plants Code cases listed in Regulatory Guide 1.192 without prior NRC 
approval subject to the following:
    (i) When a licensee initially applies a listed Code case, the 
licensee shall apply the most recent version of that Code case 
incorporated by reference in this paragraph.
    (ii) If a licensee has previously applied a Code case and a later 
version of the Code case is incorporated by reference in this 
paragraph, the licensee may continue to apply, to the end of the 
current 120-month interval, the previous version of the Code case as 
authorized or may apply the later version of the Code case, including 
any NRC-specified conditions placed on its use.
    (iii) Application of an annulled Code case is prohibited unless a 
licensee previously applied the listed Code case prior to it being 
listed as annulled in Regulatory Guide 1.192. If a licensee has applied 
a listed Code case that is later listed as annulled in Regulatory Guide 
1.192, the licensee may continue to apply the Code case to the end of 
the current 120-month interval.
    (c) * * *
    (3) The Code edition, addenda, and optional ASME Code cases to be 
applied to components of the reactor coolant pressure boundary must be 
determined by the provisions of paragraph NCA-1140, Subsection NCA of 
Section III of the ASME Boiler and Pressure Vessel Code, but--
* * * * *
    (iv) The optional Code cases applied to a component must be those 
listed in NRC Regulatory Guide 1.84 that is incorporated by reference 
in paragraph (b) of this section.
* * * * *
    (d) * * *
    (2) The Code edition, addenda, and optional ASME Code cases to be 
applied to the systems and components identified in paragraph (d)(1) of 
this section must be determined by the rules of paragraph NCA-1140, 
Subsection NCA of Section III of the ASME Boiler and Pressure Vessel 
Code, but--
* * * * *
    (iii) The optional Code cases must be those listed in the NRC 
Regulatory Guide 1.84 that is incorporated by reference in paragraph 
(b) of this section.
    (e) * * *
    (2) The Code edition, addenda, and optional ASME Code cases to be 
applied to the systems and components identified in paragraph (e)(1) of 
this section must be determined by the rules of paragraph NCA-1140, 
subsection NCA of Section III of the ASME Boiler and Pressure Vessel 
Code, but--
* * * * *
    (iii) The optional Code cases must be those listed in NRC 
Regulatory Guide 1.84 that is incorporated by reference in paragraph 
(b) of this section.
    (f) * * *
    (2) For a boiling or pressurized water-cooled nuclear power 
facility whose construction permit was issued on or after January 1, 
1971, but before July 1, 1974, pumps and valves which are classified as 
ASME Code Class 1 and Class 2 must be designed and be provided with 
access to enable the performance of inservice tests for operational 
readiness set forth in editions and addenda of Section XI of the ASME 
Boiler and Pressure Vessel Code incorporated by reference in paragraph 
(b) of this section (or the optional ASME Code cases listed in NRC 
Regulatory Guide 1.147, through Revision 13, or 1.192 that are

[[Page 40477]]

incorporated by reference in paragraph (b) of this section) in effect 6 
months before the date of issuance of the construction permit. The 
pumps and valves may meet the inservice test requirements set forth in 
subsequent editions of this Code and addenda which are incorporated by 
reference in paragraph (b) of this section (or the optional ASME Code 
cases listed in NRC Regulatory Guide 1.147, through Revision 13, or 
1.192 that are incorporated by reference in paragraph (b) of this 
section), subject to the applicable limitations and modifications 
listed therein.
    (3) * * *
    (iii) * * *
    (A) Pumps and valves, in facilities whose construction permit was 
issued before November 22, 1999, which are classified as ASME Code 
Class 1 must be designed and be provided with access to enable the 
performance of inservice testing of the pumps and valves for assessing 
operational readiness set forth in the editions and addenda of Section 
XI of the ASME Boiler and Pressure Vessel Code incorporated by 
reference in paragraph (b) of this section (or the optional ASME Code 
cases that are listed in NRC Regulatory Guide 1.147, through Revision 
13, that are incorporated by reference in paragraph (b) of this 
section) applied to the construction of the particular pump or valve or 
the Summer 1973 Addenda, whichever is later.
    (B) Pumps and valves, in facilities whose construction permit is 
issued on or after November 22, 1999, which are classified as ASME Code 
Class 1 must be designed and be provided with access to enable the 
performance of inservice testing of the pumps and valves for assessing 
operational readiness set forth in editions and addenda of the ASME OM 
Code (or the optional ASME Code cases listed in NRC Regulatory Guide 
1.192 that is incorporated by reference in paragraph (b) of this 
section) referenced in paragraph (b)(3) of this section at the time the 
construction permit is issued.
    (iv) * * *
    (A) Pumps and valves, in facilities whose construction permit was 
issued before November 22, 1999, which are classified as ASME Code 
Class 2 and Class 3 must be designed and be provided with access to 
enable the performance of inservice testing of the pumps and valves for 
assessing operational readiness set forth in the editions and addenda 
of Section XI of the ASME Boiler and Pressure Vessel Code incorporated 
by reference in paragraph (b) of this section (or the optional ASME 
Code cases listed in NRC Regulatory Guide 1.147, through Revision 13, 
that are incorporated by reference in paragraph (b) of this section) 
applied to the construction of the particular pump or valve or the 
Summer 1973 Addenda, whichever is later.
    (B) Pumps and valves, in facilities whose construction permit is 
issued on or after November 22, 1999, which are classified as ASME Code 
Class 2 and 3 must be designed and be provided with access to enable 
the performance of inservice testing of the pumps and valves for 
assessing operational readiness set forth in editions and addenda of 
the ASME OM Code (or the optional ASME Code cases listed in the NRC 
Regulatory Guide 1.192 that is incorporated by reference in paragraph 
(b) of this section) referenced in paragraph (b)(3) of this section at 
the time the construction permit is issued.
* * * * *
    (4) * * *
    (i) Inservice tests to verify operational readiness of pumps and 
valves, whose function is required for safety, conducted during the 
initial 120-month interval must comply with the requirements in the 
latest edition and addenda of the Code incorporated by reference in 
paragraph (b) of this section on the date 12 months before the date of 
issuance of the operating license (or the optional ASME Code cases 
listed in NRC Regulatory Guide 1.192 that is incorporated by reference 
in paragraph (b) of this section), subject to the limitations and 
modifications listed in paragraph (b) of this section.
    (ii) Inservice tests to verify operational readiness of pumps and 
valves, whose function is required for safety, conducted during 
successive 120-month intervals must comply with the requirements of the 
latest edition and addenda of the Code incorporated by reference in 
paragraph (b) of this section 12 months before the start of the 120-
month interval (or the optional ASME Code cases listed in NRC 
Regulatory Guide 1.147, through Revision 13, or 1.192 that are 
incorporated by reference in paragraph (b) of this section), subject to 
the limitations and modifications listed in paragraph (b) of this 
section.
* * * * *
    (g) * * *
    (2) For a boiling or pressurized water-cooled nuclear power 
facility whose construction permit was issued on or after January 1, 
1971, but before July 1, 1974, components (including supports) which 
are classified as ASME Code Class 1 and Class 2 must be designed and be 
provided with access to enable the performance of inservice examination 
of such components (including supports) and must meet the preservice 
examination requirements set forth in editions and addenda of Section 
XI of the ASME Boiler and Pressure Vessel Code incorporated by 
reference in paragraph (b) of this section (or the optional ASME Code 
cases listed in NRC Regulatory Guide 1.147, through Revision 13, that 
are incorporated by reference in paragraph (b) of this section) in 
effect six months before the date of issuance of the construction 
permit. The components (including supports) may meet the requirements 
set forth in subsequent editions and addenda of this Code which are 
incorporated by reference in paragraph (b) of this section (or the 
optional ASME Code cases listed in NRC Regulatory Guide 1.147, through 
Revision 13, that are incorporated by reference in paragraph (b) of 
this section), subject to the applicable limitations and modifications.
    (3) * * *
    (i) Components (including supports) which are classified as ASME 
Code Class 1 must be designed and be provided with access to enable the 
performance of inservice examination of these components and must meet 
the preservice examination requirements set forth in the editions and 
addenda of Section XI of the ASME Boiler and Pressure Vessel Code 
incorporated by reference in paragraph (b) of this section (or the 
optional ASME Code cases listed in NRC Regulatory Guide 1.147, through 
Revision 13, that are incorporated by reference in paragraph (b) of 
this section) applied to the construction of the particular component.
    (ii) Components which are classified as ASME Code Class 2 and Class 
3 and supports for components which are classified as ASME Code Class 
1, Class 2, and Class 3 must be designed and be provided with access to 
enable the performance of inservice examination of these components and 
must meet the preservice examination requirements set forth in the 
editions and addenda of Section XI of the ASME Boiler and Pressure 
Vessel Code incorporated by reference in paragraph (b) of this section 
(or the optional ASME Code cases listed in NRC Regulatory Guide 1.147, 
through Revision 13, that are incorporated by reference in paragraph 
(b) of this section) applied to the construction of the particular 
component.
* * * * *
    (4) * * *
    (i) Inservice examinations of components and system pressure tests

[[Page 40478]]

conducted during the initial 120-month inspection interval must comply 
with the requirements in the latest edition and addenda of the Code 
incorporated by reference in paragraph (b) of this section on the date 
12 months before the date of issuance of the operating license (or the 
optional ASME Code cases listed in NRC Regulatory Guide 1.147, through 
Revision 13, that are incorporated by reference in paragraph (b) of 
this section, subject to the limitations and modifications listed in 
paragraph (b) of this section.
    (ii) Inservice examination of components and system pressure tests 
conducted during successive 120-month inspection intervals must comply 
with the requirements of the latest edition and addenda of the Code 
incorporated by reference in paragraph (b) of this section 12 months 
before the start of the 120-month inspection interval (or the optional 
ASME Code cases listed in NRC Regulatory Guide 1.147, through Revision 
13, that are incorporated by reference in paragraph (b) of this 
section), subject to the limitations and modifications listed in 
paragraph (b) of this section.
* * * * *

    Dated at Rockville, Maryland, this 10th day of June, 2003. For 
the Nuclear Regulatory Commission.
William D. Travers,
Executive Director for Operations.
[FR Doc. 03-17027 Filed 7-7-03; 8:45 am]
BILLING CODE 7590-01-P