[Federal Register Volume 74, Number 149 (Wednesday, August 5, 2009)]
[Rules and Regulations]
[Pages 38890-38894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18546]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 50

[NRC-2008-0663]
RIN 3150-AI53


Industry Codes and Standards; Amended Requirements

AGENCY: Nuclear Regulatory Commission (NRC).

ACTION: Direct final rule.

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SUMMARY: The NRC is amending its regulations governing vessel head 
inspection requirements. This amendment revises the upper range of the 
percentage of axial flaws permitted in a specimen set used for the 
qualification of nondestructive examination systems (procedures, 
personnel and equipment), which are used in the performance of 
inservice inspection (ISI) of pressurized water reactor (PWR) upper 
vessel head penetrations. This amendment is being made as a result of 
the withdrawal of a stakeholder's recommendation necessitated by a 
typographical error in the original recommendation with respect to the 
maximum percentage of flaws that should be oriented axially.

DATES: Effective Date: The final rule will become effective October 19, 
2009, unless significant adverse comments are received by September 4, 
2009. A significant adverse comment is a comment where the commenter 
explains why the rule would be

[[Page 38891]]

inappropriate, including challenges to the rule's underlying premise or 
approach, or would be ineffective or unacceptable without a change 
(refer to ``Direct Final Rulemaking Process'' in the Section III of 
this document for further details). If the rule is withdrawn, timely 
notice will be published in the Federal Register. Submit comments by 
September 4, 2009. Comments received after this date will be considered 
if it is practical to do so, but the NRC is able to ensure only that 
comments received on or before this date will be considered.

ADDRESSES: You can access publicly available documents related to this 
document by using the following methods.
    Federal e Rulemaking Web site: Go to http://www.regulations.gov and 
search for documents filed under Docket ID NRC-2008-0663. Address 
questions about NRC dockets to Carol Gallagher 301 492-3668; e-mail 
[email protected].
    NRC's Public Document (PDR): The public may examine and have copied 
for a fee publicly available documents at the NRC's PDR, Public File 
Area O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, 
Maryland 20852.
    NRC's Agency wide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this site, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents in ADAMS, contact the PDR Reference staff at 
1-800-397-4209, 301-415-4737 or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Manash K. Bagchi, Project Manager, 
Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, telephone 301 415-2905, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion
III. Direct Final Rulemaking Process
IV. Voluntary Consensus Standards
V. Plain language
VI. Finding of No Significant Environmental Impact: Environment 
Assessment
VII. Paperwork Reduction Act Statement
VIII. Regulatory Analysis
IX. Regulatory Flexible Certification
X. Backfit Analysis
XI. Congressional Review Act

I. Background

    The NRC published a proposed rule on April 5, 2007 (72 FR 16731), 
to incorporate by reference the 2004 Edition of Section III, Division 
1, of the American Society of Mechanical Engineers (ASME) Boiler 
Pressure Vessel (BPV) Code, and the 2004 Edition of the ASME Operation 
and Maintenance (OM) Code to provide updated rules for constructing and 
inspecting components and testing of pumps, valves, and dynamic 
snubbers in light water nuclear power plants. The proposed rule, among 
other things, also incorporated by reference augmented examination 
requirements of PWR reactor vessel head penetration nozzles of ASME 
Code Case N-729-1, ``Alternative Examinations Requirements for PWR 
Vessel Upper Heads with Nozzles Having Pressure Retaining Partial 
Penetration Welds, Section XI, Division I'' as conditioned by the NRC. 
As part of these conditions, the NRC imposed a qualification program 
for volumetric inspections to ensure examinations were effective in 
identifying axial and circumferential stress corrosion cracking in the 
penetration nozzles. The NRC qualification program included a 
requirement for the distribution of cracks within a qualification 
specimen set. Essentially a qualification specimen set is a group of 
nozzle mockup flaws which are used as part of a test to qualify 
inspectors, procedures and equipment. The NRC qualification program, as 
stated in the proposed rule, required, ``at least 30 percent, but no 
more than 60 percent of the flaws must be oriented axially,'' with the 
remaining flaws oriented circumferentially by default.
    During the public comment period of the proposed rule, Mr. Jack 
Spanner of the Electric Power Research Institute (EPRI), program 
manager of the industry generic qualification program for volumetric 
inspection of vessel head penetration nozzles, submitted a comment 
dated June 19, 2007 (ML071710637). Mr. Spanner requested that the 
proposed rule's flaw distribution percentages be changed to be at least 
20 percent, but no more than 40 percent of the flaws to be oriented 
axially. Mr. Spanner's basis for this change, as well as other 
recommendations, was that the requirements of the proposed rule would 
require the construction of additional mockups.
    The NRC reviewed the requested change to ensure that if 
implemented, the qualification process would remain effective. The NRC 
concluded that the specific required number of axial flaws in a 
specimen set may have some variation so long as a range was defined to 
ensure both axial and circumferential flaws in a specimen set, and a 
specific set value was not assigned that would limit the effectiveness 
of a blind qualification program. The NRC found that Mr. Spanner's 
request met these criteria. Therefore, given the reduced burden by 
allowing the use of current or planned mockups, the NRC included the 
proposed change in the final rule (72 FR 52370; September 10, 2008.)

II. Discussion

    After the final rule was published, an e-mail was submitted to the 
NRC on behalf of Mr. Spanner dated September 12, 2008 (ML091410089). 
Mr. Spanner informed the NRC that, after he submitted his original 
recommendation with respect to the maximum percentile range of axial 
flaws, he identified a typographical error. Mr. Spanner had only 
intended to recommend a change to the minimum axial flaw distribution 
percentage from 30 to 20 percent, and did not intend to recommend a 
change in the maximum value of flaws from 60 to 40 percent. Mr. Spanner 
also stated that use of the maximum value of 40 percent would require 
additional mockups to be created in order to meet the NRC volumetric 
inspection qualification program at EPRI. As a result, he requested the 
maximum percentage be returned to the proposed rule limit of 60 
percent.
    In reviewing Mr. Spanner's latest proposal, the NRC continues to 
believe that the specific value for the number of axial flaws within a 
specimen set is open to variation, so long as a reasonable distribution 
is maintained. The newly proposed distribution range of 20 percent to 
60 percent of axial flaws allowed 80 percent to 40 percent of the total 
specimen set flaws to be circumferentially orientated. The NRC finds 
that the newly proposed range maintains a reasonable distribution of 
circumferential and axial flaws, and does not limit the effectiveness 
of a blind qualification test by being too prescriptive. Therefore, the 
NRC concludes that the distribution range, modified as recommended by 
Mr. Spanner, continues to meet the NRC defined criteria for an 
effective qualification specimen set. Given this conclusion and the 
representation by Mr. Spanner that using the current rule's maximum 
axial flaw distribution range of 40 percent would require the creation 
of additional mockups, the NRC determined that the maximum distribution 
of allowable axial flaws in

[[Page 38892]]

the specimen set should be changed from 40 percent to 60 percent. The 
NRC believes, in light of the September 1, 2009, deadline for 
implementation of the qualification requirement for volumetric 
inspection of vessel head penetration nozzles, that the time and 
resources necessary to design and prepare additional mockups compliant 
with the current rule, and to complete qualification of personnel, 
procedures, and equipment represents a significant burden on the 
licensee with no significant safety benefit. The NRC concludes that the 
maximum qualification specimen set axial flaw distribution should be 
changed from 40 to 60 percent.

III. Direct Final Rulemaking Process

    The NRC is using the ``direct final rule procedure'' to issue this 
action because this action is minor, and is not expected to be 
controversial. The NRC does not expect any adverse comments for two 
reasons. First, as discussed in the discussion of the reasons for this 
rulemaking, the change in the maximum axial flaws which must be 
included in the qualification sample has no adverse impact on safety. 
The NRC has no reason to believe that any external stakeholder 
disagrees with the NRC's determination in this regard, and consequently 
does not expect any stakeholder to submit adverse comments on this 
change. In addition, the NRC's action to change the current requirement 
on axial flaw distribution was initiated in response to a comment from 
a representative of the industry group responsible for the development 
of the welding qualification program for the industry. This increases 
the NRC's confidence that the proposed change is not controversial and 
will not result in significant adverse comments. Second, the rule 
change represents a burden reduction for licensees. Thus, the NRC does 
not expect any adverse comment from these stakeholders with respect to 
the rule change enabling the burden reduction. Accordingly, the NRC 
finds that there is good cause under the Administrative Procedure Act, 
5 U.S.C. 553(b)(3)(B) for avoiding notice and opportunity for public 
comment on the direct final rule. The amendment to the rule will become 
effective on October 19, 2009. However, if the NRC receives significant 
adverse comments by September 4, 2009, then the NRC will publish a 
document that withdraws this action. In that event, the comments 
received in response to this amendment would then be considered as 
comments on the companion proposed rule published elsewhere in this 
Federal Register, and the comments will be addressed in a later final 
rule based on that proposed rule. Unless the modifications to the 
proposed rule are significant enough to require that it be republished 
as a proposed rule, the NRC will not initiate a second comment period 
on this action. A significant adverse comment is a comment where the 
commenter explains why the rule would be inappropriate, including 
challenges to the rule's underlying premise or approach, or would be 
ineffective or unacceptable without a change. A comment is adverse and 
significant if:
    (1) The comment opposes the rule and provides a reason sufficient 
to require a substantive response in a notice-and-comment process. For 
example, a substantive response is required when:
    (a) The comment causes the NRC to reevaluate (or reconsider) its 
position or conduct additional analysis;
    (b) The comment raises an issue serious enough to warrant a 
substantive response to clarify or complete the record; or
    (c) The comment raises a relevant issue that was not previously 
addressed or considered by the NRC.
    (2) The comment proposes a change or an addition to the rule, and 
it is apparent that the rule would be ineffective or unacceptable 
without incorporation of the change or addition.
    (3) The comment causes the NRC to make a change (other than 
editorial) to the rule.

IV. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995 (Pub. 
L. 104-113) requires that Federal agencies use technical standards that 
are developed or adopted by voluntary consensus standards bodies unless 
the use of such a standard is inconsistent with applicable law or 
otherwise impractical. Public Law 104-113 requires Federal agencies to 
use industry consensus standards to the extent practical; it does not 
require Federal agencies to incorporate by reference a standard into 
the regulations in its entirety. The law does not prohibit an agency 
from generally adopting a consensus standard while taking exception to 
specific portions of the standard if those provisions are deemed to be 
``inconsistent with applicable law or other wise impractical.'' 
Furthermore, taking specific exceptions furthers the Congressional 
intent of Federal reliance on voluntary consensus standards because it 
allows the adoption of substantial portions of consensus standards 
without the need to reject the standards in their entirety because of 
limited provisions which are not acceptable to the agency.
    The NRC is amending its regulations to revise the reactor vessel 
head inspections specimen set specifications necessitated by the 
withdrawal of a stakeholder's recommendation, incorporated in the 2008 
final rule (73 FR 52730), which contained a typographical error. This 
latest amendment is consistent with specimen set distribution under 
Appendix VIII of Section XI of the ASME Code, a national consensus 
standard. The 2008 final rule incorporated by reference the latest 
edition of Section III and XI of the ASME BPV Code and ASME OM Code, 
for construction, ISI, and in-service testing of nuclear power plant 
components. 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 licensees of nuclear power 
plants) participate. If the NRC did not conditionally accept ASME Code 
Editions and Addenda, it would disapprove these items entirely. The 
effect would be that licensees would need to submit large number of 
requests for the NRC's approval of alternatives under 10 CFR 
50.55a(a)(3). This would constitute an unnecessary additional burden 
for both the licensees and the NRC. Similarly, not adopting the 
modification in this final rule may result in a large number of relief 
requests without any compensating safety benefits. For these reasons, 
the NRC concludes that the treatment of ASME Code Editions and Addenda, 
and conditions placed in this final rule does not conflict with any 
policy on agency use of consensus standards specified in Office of 
Management and Budget Circular A-119.

V. Plain Language

    The Presidential Memorandum dated June 1, 1998, entitled ``Plain 
Language in Government Writing,'' directed that the Government's 
writing be in plain language. The NRC requests comments on this direct 
final rule specifically with respect to the clarity and effectiveness 
of the language used. Comments should be sent to the address listed 
under the heading ADDRESSES of this document.

VI. Finding of No Significant Environmental Impact: Environmental 
Assessment

    The Commission has determined that this direct final rule is the 
type of action described as a categorical exclusion in Sec.  
51.22(c)(2), which states, ``amendments to the regulations which are 
corrective or of a minor or nonpolicy

[[Page 38893]]

nature and do not substantially modify existing regulations, and 
actions on petition for rulemaking relating.'' This amendment revises 
the upper range of the percentage of axially orientated flaws permitted 
in a specimen set used in the qualification of nondestructive 
examination systems for performance of reactor vessel head penetration 
inspections, and is corrective in nature and does not modify the intent 
of the existing regulation. Therefore, neither an environmental impact 
statement nor an environmental assessment has been prepared for this 
direct final rule.

VII. Paperwork Reduction Act Statement

    This direct final rule does not contain a new or amended 
information collection requirement subject to the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.). Existing requirements were 
approved by the Office of Management and Budget, Approval Number 3150-
0011.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.

VIII. Regulatory Analysis

    A regulatory analysis has not been prepared for this direct final 
rule. This rule amends the NRC regulations to correct the upper range 
of the percentage of axially oriented flaws permitted in a specimen set 
used in the qualification of nondestructive examination systems, which 
are used in the performance of reactor vessel head inspections. This 
amendment does not impose any new burden or reporting requirements on 
the licensee or NRC for compliance. Also, this rule does not involve an 
exercise of Commission discretion and, therefore does not necessitate 
preparation of a regulatory analysis.

IX. Regulatory Flexibility Certification

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the 
NRC certifies that this Amendment will not, if promulgated, have a 
significant economic impact on a substantial number of small entities. 
This direct 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 Small Business Size Standards set 
forth in regulations issued by the Small Business Administration at 13 
CFR Part 121.

X. Backfit Analysis

    As described previously, the final rule imposed augmented 
examination requirements for PWR reactor vessel head penetrations by 
incorporation by reference of ASME Code Case N-729-1. In the final 
rule, the NRC concluded that the requirements of Code Case N-729-1, 
with the limitations and conditions denoted by the rule, represents an 
acceptable approach developed by a voluntary consensus standards 
organization for performing future RPV head and head penetration 
inspections. Accordingly, the NRC concluded that approval of Code Case 
N-729-1, with the limitation and conditions denoted by that rule, by 
incorporation by reference of that Code Case into Sec.  50.55a, 
constitutes a redefinition of the requirements necessary to provide 
reasonable assurance of adequate protection of public health and 
safety. As such, no backfit analysis was prepared for that portion of 
the final rule, under Sec.  50.109(a)(4)(iii).
    The NRC is using the direct final rule procedure to amend NRC 
regulations to revise the upper range of the percentage of axially 
oriented flaws permitted in a specimen set for the qualification of 
nondestructive examination systems used in the performance of reactor 
vessel head inspections as a result of withdrawal of a stakeholder's 
recommendations due to a typographical error. This amendment revises 
the upper range of the percentage of axial flaws permitted in a 
specimen set Sec.  50.55a(g)(6)(D)(4)(ii) from 40 percent to 60 
percent, the same as in the proposed rule on this subject (72 FR 
16731). This requirement, i.e. an upper range of 60 percent, is similar 
to specimen set distribution under Appendix VIII of Section XI of the 
ASME Code. The NRC continues to find that the requirements of Code Case 
N-729-1, with the limitations and conditions denoted by this rule, 
represents an acceptable approach developed by a voluntary consensus 
standard organization. Therefore, a backfit analysis has not been 
prepared for this direct final rule, under Sec.  50.109(a)(4)(iii).

XI. Congressional Review Act

    Under the Congressional Review 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, 
Office of Management and Budget.

List of Subjects in 10 CFR Part 50

    Antitrust, Classified information, Criminal penalties, Fire 
protection, 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.

PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION 
FACILITIES

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

    Authority:  Secs. 102, 103, 104, 161, 182, 183, 186, 189, 68 
Stat. 936, 937, 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, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); 
sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Sec.651(e), Pub. L. 
109-58, 119 Stat. 806-810 (42 U.S.C. 2014, 2021, 2021b, 2111).
    Section 50.7 also issued under Public Law 95-601, sec. 10, 92 
Stat. 2951 as amended by Public Law 102-846, Sec. 2902, 106 Stat. 
3123 (42 U.S.C. 5841). Section 50.10 also issued under secs. 101, 
185, 68 Stat. 955, as amended (42 U.S.C. 2131, 2235); sec. 102, 
Public Law 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 
50.54(d), 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, Public Law 
91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also 
issued under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 
50.58, 50.91, and 50.92 also issued under Public Law 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. In Sec.  50.55a, paragraph (g)(6)(ii)(D)(4)(ii) is revised to read 
as follows:


Sec.  50.55a  Codes and Standards

* * * * *
    (g) * * *
    (6) * * *
    (ii) * * *
    (D) * * *
    (4) * * *

[[Page 38894]]

    (ii) The specimen set must have a minimum of ten (10) flaws which 
provide an acoustic response similar to PWSCC indications. All flaws 
must be greater than 10 percent of the nominal pipe wall thickness. A 
minimum of 20 percent of the total flaws must initiate from the inside 
surface and 20 percent from the outside surface. At least 20 percent of 
the flaws must be in the depth ranges of 10-30 percent through wall 
thickness and at least 20 percent within a depth range of 31-50 percent 
through wall thickness. At least 20 percent and no more than 60 percent 
of the flaws must be oriented axially.
* * * * *

    Dated at Rockville, Maryland, this 24th day of July 2009.

    For the Nuclear Regulatory Commission.
Bruce S. Mallett,
Acting Executive Director for Operations.
[FR Doc. E9-18546 Filed 8-4-09; 8:45 am]
BILLING CODE 7590-01-P