[Federal Register Volume 77, Number 167 (Tuesday, August 28, 2012)]
[Rules and Regulations]
[Pages 51880-51892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21207]


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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2 and 52

[NRC-2010-0012]
RIN 3150-AI77


Requirements for Maintenance of Inspections, Tests, Analyses, and 
Acceptance Criteria

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule and regulatory guide, issuance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission) 
is amending its regulations related to verification of nuclear power 
plant construction activities through inspections, tests, analyses, and 
acceptance criteria (ITAAC) under a combined license, and issuing a 
revision to Regulatory Guide (RG) 1.215, ``Guidance for ITAAC Closure 
Under 10 CFR [Title 10 of the Code of Federal Regulations] Part 52.'' 
The final rule contains new provisions that apply after a licensee has 
completed an ITAAC and submitted an ITAAC closure notification. The new 
provisions require licensees to report new information materially 
altering the basis for determining that inspections, tests, or analyses 
were performed as required, or that acceptance criteria are met, and to 
notify the NRC of the completion of all ITAAC activities. In addition, 
the NRC is including editorial corrections to existing language in the 
NRC's regulations to make that language consistent with language in the 
Atomic Energy Act of 1954, as amended (AEA). Regulatory Guide 1.215 
describes a method that the staff of the NRC considers acceptable for 
use in satisfying the requirements for documenting the completion of 
ITAAC.

DATES: The effective date is September 27, 2012.

ADDRESSES: Please refer to Docket ID NRC-2010-0012 when contacting the 
NRC about the availability of information for this final rule. You can 
access information and comment submittals related to this final rule, 
which the NRC possesses and are publicly available, by any of the 
following methods:
     Federal Rulemaking Web Site: Go to http://www.regulations.gov and search for Docket ID NRC-2010-0012.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may access publicly available documents online in the NRC 
Library at http://www.nrc.gov/reading-rm/adams.html. To begin the 
search, select ``ADAMS Public Documents'' and then select ``Begin Web-
based ADAMS Search.'' For problems with ADAMS, please contact the NRC's 
Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-
4737, or by email to [email protected]. The ADAMS accession number 
for each document referenced in this document (if that document is 
available in ADAMS) is provided the first time that a document is 
referenced. In addition, for the convenience of the reader, the ADAMS 
accession numbers are provided in a table in the section of this 
document entitled, ``Availability of Documents.''
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Mr. Earl R. Libby, Office of New 
Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001; telephone: 301-415-0522; email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background
II. Comments on the Proposed Rule and Regulatory Guide
    A. Overview of Public Comments
    B. Comments on the Proposed Rule
    C. Comments on the Draft Regulatory Guide DG-1250/RG 1.215
III. Discussion
    A. Licensee Programs That Maintain ITAAC Conclusions
    B. Additional ITAAC Notifications
    C. Conforming Changes to 10 CFR 2.340
IV. Section-by-Section Analysis
V. Availability of Regulatory Guidance
VI. Availability of Documents
VII. Plain Writing
VIII. Agreement State Compatibility
IX. Voluntary Consensus Standards
X. Environmental Impact--Categorical Exclusion
XI. Paperwork Reduction Act Statement
XII. Regulatory Analysis
XIII. Regulatory Flexibility Act Certification
XIV. Backfitting and Issue Finality
XV. Congressional Review Act

I. Background

    The Commission first issued 10 CFR part 52, ``Early Site Permits; 
Standard Design Certifications; and Combined Licenses for Nuclear Power 
Reactors'' on April 18, 1989 (54 FR 15372). Section 52.99, ``Inspection 
during construction,'' was included to make it clear that the NRC's 
inspection carried out during construction under a combined license 
would be based on ITAAC proposed by the applicant, approved by the NRC 
staff, and incorporated in the combined license. At that time, the 
Commission made it clear that, although 10 CFR 52.99 envisioned a 
``sign-as-you-go'' process in which the NRC staff would sign off on 
inspection units and notice of the staff's sign-off would be published 
in the Federal Register, the Commission itself would make no findings 
with respect to construction until construction was complete. (See 54 
FR 15372; April 18, 1989; at 15383 (second column)).
    On August 28, 2007 (72 FR 49352), the Commission revised 10 CFR 
part 52 to enhance the NRC's regulatory effectiveness and efficiency in 
implementing its licensing and approval processes. In that revision, 
the NRC amended 10 CFR 52.99 to require licensees to notify the NRC 
that the prescribed inspections, tests, or analyses in the ITAAC have 
been completed and that the acceptance criteria have been met. The 
revision also requires that these notifications contain sufficient 
information to demonstrate that the prescribed inspections, tests, or 
analyses have been performed and that the prescribed acceptance 
criteria have been met. The statement of considerations for the 2007 
rule indicated that this requirement would ensure that combined license 
applicants and holders were aware that it was the licensee's burden to 
demonstrate compliance with the ITAAC and that the notification of 
ITAAC completion will contain more information than just a simple 
statement that the licensee

[[Page 51881]]

believes the ITAAC had been completed and the acceptance criteria met.
    Under Section 185b of the AEA and 10 CFR 52.97(b), a combined 
license for a nuclear power plant (a ``facility'') must contain those 
ITAAC that are ``necessary and sufficient to provide reasonable 
assurance that the facility has been constructed and will be operated 
in conformity with'' the license, the AEA, and the NRC regulations. 
Following issuance of the combined license, Section 185b of the AEA and 
10 CFR 52.99(e) require that the Commission ``ensure that the 
prescribed inspections, tests, and analyses are performed.'' Finally, 
before operation of the facility, Section 185b of the AEA and 10 CFR 
52.103(g) require that the Commission find that the ``prescribed 
acceptance criteria are met'' (emphasis added). This Commission finding 
will not occur until construction is complete, near the scheduled date 
for initial fuel load.
    As currently required by 10 CFR 52.99(c)(1), the licensee must 
submit ITAAC closure notifications containing ``sufficient information 
to demonstrate that the prescribed inspections, tests, and analyses 
have been performed and that the associated acceptance criteria have 
been met.'' These notifications perform two functions. First, they 
alert the NRC to the licensee's completion of the ITAAC \1\ and ensure 
that the NRC has sufficient information to complete all of the 
activities necessary for the Commission to determine whether all of the 
ITAAC acceptance criteria have been or will be met (the ``will be met'' 
finding is relevant to any hearing on ITAAC under 10 CFR 52.103) before 
initial operation. Second, they ensure that interested persons will 
have access to information on both completed and uncompleted ITAAC at a 
level of detail sufficient to address the AEA Section 189a(1)(B) 
threshold for requesting a hearing on acceptance criteria. See 72 FR 
49352; August 28, 2007, at 49450 (second column).
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    \1\ In this discussion, the phrases ``completion of ITAAC'' and 
``ITAAC completion'' mean that the licensee has determined that: (1) 
The prescribed inspections, tests, and analyses were performed; and 
(2) the prescribed acceptance criteria are met.
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    After completing the 2007 rulemaking, the NRC began developing 
guidance on the ITAAC closure process and the requirements under 10 CFR 
52.99. In October 2009, the NRC issued regulatory guidance for the 
implementation of the revised 10 CFR 52.99 in RG 1.215, ``Guidance for 
ITAAC Closure Under 10 CFR Part 52.'' This RG endorsed guidance 
developed by the Nuclear Energy Institute (NEI) in NEI 08-01, 
``Industry Guideline for the ITAAC Closure Process Under 10 CFR part 
52,'' Revision 3, issued January 2009 (ADAMS Accession No. 
ML090270415).
    After considering information presented by industry representatives 
in a series of public meetings, the NRC realized that some additional 
implementation issues were left unaddressed by the various provisions 
in 10 CFR part 52. In particular, the NRC determined that the combined 
license holder should provide additional notifications to the NRC 
following the notification of ITAAC completion currently required by 10 
CFR 52.99(c)(1). The NRC refers to the time after this ITAAC closure 
notification, but before the date the Commission makes the finding 
under 10 CFR 52.103(g), as the ITAAC maintenance period. Most recently, 
the NRC held two public meetings in March 2010 to discuss draft 
proposed rule text that it made available to the public in February 
2010. The NRC considered feedback given from external stakeholders 
during those meetings in its development of this final rule. Finally, 
in March 2010, the NRC issued Inspection Procedure 40600, ``Licensee 
Program for ITAAC Management,'' which provides guidance to verify that 
licensees have implemented ITAAC maintenance programs to ensure that 
structures, systems, and components continue to meet the ITAAC 
acceptance criteria until the Commission makes the finding under 10 CFR 
52.103(g) allowing operation.

II. Comments on the Proposed Rule and Regulatory Guide

A. Overview of Public Comments

    The NRC published a proposed rule on the Requirements for 
Maintenance of Inspections, Tests, Analyses and Acceptance Criteria in 
the Federal Register on May 13, 2011 (76 FR 27925). The period for 
submitting comments on the proposed ITAAC Maintenance rule closed on 
July 27, 2011. The associated draft regulatory guide for the proposed 
rule, RG 1.215 ``Guidance for ITAAC Closure under 10 CFR Part 52'' (DG-
1250) was also published in the Federal Register on May 13, 2011 (76 FR 
27924). The period for submitting comments on the draft guidance closed 
on July 25, 2011.
Types of Comments
    The NRC received one public comment submission on the proposed rule 
containing 11 comments from one industry organization, NEI (ADAMS 
Accession No. ML11208C708). The NRC received one public comment 
submission, from NEI, containing 22 comments on the RG (ADAMS Accession 
No. ML11209C487). Comments on the proposed rule are discussed 
separately from the comments on the draft regulatory guide.

B. Comments on the Proposed Rule

    There were two types of comments on the proposed rule:
    1. Comments that were general in nature to the proposed rule 
language.
    2. Comments that were specific in nature to the proposed rule 
supplementary information.
    The NEI submission contained two general comments on the proposed 
rule and nine specific comments on the proposed rule supplementary 
information. The NRC has carefully considered the public comments 
received during the comment period and is adopting a final rule that is 
substantially similar to the proposed rule with one change to Sec.  
52.99(e)(2). The NEI generally supported the approach and objective of 
the proposed rule and the associated regulatory guidance.
Comment Identification Format
    All comments are identified uniquely by using the formation 
[Comment X, p. Y] where [Comment X] represents the sequential comment 
number and [p. Y] represents the comment submission page number.
1. General Comments Regarding the Proposed Rule Language
    Comment: Section 52.99(e)(1) should be revised to state, ``* * * 
the NRC staff's determination [deleted: of the successful completion 
of] [added: that] inspections, tests, and analyses contained in the 
license have been successfully completed [added: and, based solely 
thereon, that the prescribed acceptance criteria are met].'' (Comment 
1, p.1)
    NRC Response: The NRC does not agree with this comment. The change 
that NEI proposes is not within the scope of this rulemaking, as it 
does not address the issues of ITAAC maintenance (including public 
awareness of significant changes to the bases of licensee notifications 
under Sec.  52.99). In addition, NEI proposed this change as part of a 
set of changes in their comment submission on the 2006 proposed part 52 
rule (ML011100405). In the 2007 rulemaking revising part 52, the NRC 
declined to make the NEI-proposed change. See 72 FR 49352, 49385 
(August 28, 2007). The NEI does not present any new arguments that 
would cause the NRC to change its 2007 position rejecting the NEI 
proposal. No

[[Page 51882]]

changes to the final rule language were made as a result of this 
comment.
    Comment: The NRC should clarify in the final rule the relationship 
between paragraphs (c) and (g) of Sec.  52.103, to account for the 
possibility of interim operation. (Comment 11, p.4)
    NRC Response: The NRC disagrees with the comment, because the 
relationship between Sec. Sec.  52.103(c) and (g) is outside the scope 
of this rulemaking, and Section 189b(1)(B)(iii) of the AEA clearly 
provides the Commission with authority to allow interim operation 
during a pending hearing on acceptance criteria. The NRC may address 
the subject of interim operation at a later time. No change was made to 
the final rule language as a result of this comment.
2. Specific Comments Regarding the Proposed Rule Supplementary 
Information
    The nine specific comments received on the proposed rule contained 
recommendations for changes to the supplementary information to 
correctly reflect common terminology between the rule supplementary 
information, the associated RG 1.215 and the industry guidance 
contained within Revision 4 of NEI 08-01 (ADAMS Accession No. 
ML102010051). These nine specific comments all addressed discussion in 
the statement of considerations (SOC) (the SUPPLEMENTARY INFORMATION 
section of the Federal Register notice of proposed rulemaking); 
therefore no changes to the final rule language were made as a result 
of these comments. The SOC for the final rule reflects the NRC 
consideration of these nine comments.
    Comment: The phrase ``ITAAC closure package'' should be replaced 
with the phrase ``ITAAC completion package'' in Section III. A, 3d 
bullet (76 FR 27927) so that the SOC uses terminology which is 
consistent with that in the associated draft regulatory guide and 
industry guidance. (Comment 2, p.2)
    NRC Response: The NRC agrees with the comment. The SOC for the 
final rule uses the phrase, ``ITAAC completion package.''
    Comment: Delete the second sentence in Section III.B paragraph 
beginning ``When making * * *'' to maintain a consistent description of 
the content of 52.99(c)(1) notifications in the associated draft 
regulatory guide and industry guidance. (Comment 3, p.2)
    NRC Response: The NRC agrees with the comment. The SOC for the 
final rule deleted the sentence ``The licensee's summary statement of 
the basis for resolving the issue which is the subject of the 
notification, a discussion of any action taken, and a list of the key 
licensee documents supporting the resolution and its implementation, 
would assist the NRC in making its independent evaluation of the 
issue'' to agree with the RG 1.215 and the industry guidance contained 
within Revision 4 of NEI 08-01.
    Comment: Add the term ``maintenance'' to the list of permissible 
activities that may be in progress at the time of the 10 CFR 52.103(g) 
finding. (Comment 4, p.2)
    NRC Response: The NRC agrees with the comment, because it reflects 
the intent of the rule and the guidance. The SOC for the final rule 
added the term ``maintenance'' to the activities that are allowable 
during the time of the Commission's 10 CFR 52.103(g) finding if the 
programs credited with maintaining the validity of completed ITAAC 
guide those activities and the activities are not so significant as to 
exceed a threshold for reporting.
    Comment: Delete ``The NRC understands that the nuclear power 
industry believes * * *'' in Section III.B First paragraph under 
heading ``ITAAC Closure Documentation'' because the language is 
unnecessary. (Comment 5, p.2)
    NRC Response: The NRC agrees with the comment, because the language 
is unnecessary. The SOC for the final rule deleted the phrase ``The NRC 
understands that the nuclear power industry believes * * *'' from the 
sentence.
    Comment: Revise Section III.C for clarity by replacing the text 
that reads ``In both cases, if the presiding officer's decision 
resolves the contention favorably * * *'' with ``In both cases, if the 
presiding officer finds that the contested acceptance criteria have 
been met * * *'' (Comment 6, p.3)
    NRC Response: The NRC agrees that the sentence should be revised 
for clarity, but the SOC will use the phrase ``have been or will be 
met'' to reflect both types of possible presiding officer findings. The 
SOC for the final rule was changed to ``In both cases, if the presiding 
officer finds that the contested acceptance criteria have been or will 
be met, this does not obviate the need for the Commission to make the 
required finding under Section 185b of the AEA and 10 CFR 52.103(g) 
that the acceptance criteria are met.'' This change is consistent with 
similar language in Section IV of the supplementary information 
section.
    Comment: Add the phrase ``* * * on contested acceptance criteria.'' 
to clarify what decision by the presiding officer the paragraph is 
referencing. (Comment 7, p.3)
    NRC Response: The NRC agrees with the comment. The final rule SOC 
now reads as follows: ``The phrase `otherwise able to make' conveys the 
NRC's determination that the Commission's process for supporting a 
Commission finding on uncontested acceptance criteria is unrelated to 
and unaffected by the timing of the presiding officer's initial 
decision on contested acceptance criteria.''
    Comment: Replace the term ``must'' with the term ``should'' to 
reflect that ITAAC Maintenance documentation and recordkeeping is an 
expectation and not a requirement. (Comment 8, p.3)
    NRC Response: The NRC agrees with the comment. The final rule SOC 
uses the term ``should'' to reflect expectations regarding 
documentation and recordkeeping in support of ITAAC post-closure 
notifications. However, as explained below, regulatory provisions such 
as 10 CFR part 50, ``Domestic Licensing of Production and Utilization 
Facilities,'' Appendix B, ``Quality Assurance Criteria for Nuclear 
Power Plants and Fuel Reprocessing Plants,'' require the preparation 
and retention of records supporting the vast majority of ITAAC 
processes, including the activities supporting the notifications that 
are required by this final rule.
    Comment: The comment requested the addition of a sentence stating 
the NRC proposed no changes to Section IV, Subsection on Sec.  
52.99(d). (Comment 9, p.3)
    NRC Response: The NRC does not agree with this comment. The first 
sentence of Sec.  52.99(d)(1) contains the following change. ``In the 
event that an activity is subject to an ITAAC derived from a referenced 
standard design certification and the licensee has not demonstrated 
that the prescribed acceptance criteria [deleted: has been] [added: 
are] met, the licensee may take corrective actions to successfully 
complete that ITAAC or request an exemption from the standard design 
certification ITAAC, as applicable.'' In addition, 52.99(d)(2) was also 
changed as follows: ``In the event that an activity is subject to an 
ITAAC not derived from a referenced standard design certification and 
the licensee has not demonstrated that the prescribed acceptance 
criteria [deleted: has been] [added: are] met, the licensee may take 
corrective actions to successfully complete that ITAAC or request a 
license amendment under 10 CFR 52.98(f).''
    Comment: Delete the phrase ``and detailed'' when referring to 
licensee notifications required by Sec.  52.99(c) for consistency with 
Section IV.B (Comment 10, p.4)

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    NRC Response: The NRC agrees with this comment. In the final rule 
SOC the phrase ``and detailed'' was deleted. The sentence now reads, 
``In general, the NRC expects to make the paragraph (c) notifications 
available shortly after the NRC has received the notifications and 
concluded that they are complete.'' The accompanying detail necessary 
for the ITAAC notifications under paragraph (c) is developed in 
regulatory guidance, RG 1.215. This change is consistent with the last 
paragraph in Section III.B of the SUPPLEMENTARY INFORMATION.

C. Comments on the Draft Regulatory Guide DG-1250/RG 1.215

    The NRC published the draft regulatory guide for the proposed rule, 
RG 1.215, ``Guidance for ITAAC Closure Under 10 CFR Part 52'' (DG-1250) 
in the Federal Register on May 13, 2011 (76 FR 27924). The period for 
submitting comments on the draft guidance closed on July 25, 2011.
    The NRC received 1 public comment submission on the regulatory 
guide containing 25 comments from 1 industry organization, NEI (ADAMS 
Accession No. ML11209C487). The NRC's responses to the public comments 
are contained in ``Response to Public Comments on Draft Regulatory 
Guide DG-1250 proposed Revision 1 of RG 1.215, `Guidance for ITAAC 
Closure Under 10 CFR Part 52''' (ADAMS Accession No. ML11284A006).

III. Discussion

    The NRC is requiring the following new notifications with respect 
to ITAAC closure:
     ITAAC post-closure notification, and
     All ITAAC complete notification.
    In general, the reasons for these new notifications are analogous 
to the reasons presented in the 2007 rulemaking for the existing 10 CFR 
52.99(c) notifications: (1) To ensure that the NRC has sufficient 
information, in light of new information developed or identified after 
the ITAAC closure notification under 10 CFR 52.99(c)(1), to complete 
all of the activities necessary for the NRC to make a determination on 
ITAAC; and (2) to ensure that interested persons have access to 
information on ITAAC at a level of detail sufficient to address the AEA 
Section 189a(1)(B) threshold for requesting a hearing. After evaluating 
the various means of ensuring that the Commission has sufficient 
information to make a determination on ITAAC, and that interested 
persons have access to sufficient ITAAC information, the NRC has 
provided a rule augmented by guidance. The details of timing and 
content of the new notifications are captured in guidance that was 
issued for public comment simultaneously with the proposed rule, as 
discussed in more detail in Section V, ``Availability of Regulatory 
Guidance,'' of this document. The NRC believes that this approach 
allows more flexibility to adjust the guidance based on lessons learned 
during early implementation of the ITAAC process under the first 
combined licenses. Based upon the NRC's experience with the overall NRC 
oversight and verification of ITAAC, the notification provisions of the 
rule, the ITAAC hearing process, and the process for making the 10 CFR 
52.103(g) finding, the NRC may revise and supplement the final guidance 
on the timing and content of notifications. The NRC notes that it would 
not rely solely on the existence of this rulemaking as a primary basis 
for the 10 CFR 52.103(g) finding. Rather, the NRC would use a holistic 
review using results from the NRC's construction inspection program and 
ITAAC closure review process as primary factors supporting a conclusion 
that the acceptance criteria in the combined license are met.
    Each of the notification requirements in this rulemaking, and the 
bases for each of the requirements, are described in Section III.B, 
``Additional ITAAC Notifications,'' of this document. The NRC also 
included several editorial changes to 10 CFR 52.99 in paragraphs (b), 
(c)(1), final (c)(3) (former (c)(2)), and (d)(1). In all of these 
cases, the NRC is replacing the phrase ``acceptance criteria have been 
met'' with the phrase ``acceptance criteria are met'' for consistency 
with the wording of the requirement in 10 CFR 52.103(g) on the 
Commission's ITAAC finding, which is derived directly from wording in 
the AEA. In addition, the NRC changed 10 CFR 52.99(d)(2) to replace the 
phrase ``ITAAC has been met'' with the phrase ``prescribed acceptance 
criteria are met'' for consistency with the wording in 10 CFR 
52.99(d)(1).

A. Licensee Programs That Maintain ITAAC Conclusions

    One essential element in ensuring the maintenance of successfully 
completed ITAAC involves the use of established licensee programs such 
as the Quality Assurance Program, Problem Identification and Resolution 
Program, Maintenance/Construction Program, and Design and Configuration 
Management Program. Each program credited with supporting the 
maintenance of completed ITAAC should contain attributes that maintain 
the validity of the ITAAC determination basis. These program attributes 
include the following:
     Licensee screening of activities and events for impact on 
ITAAC;
     Licensee determination of whether supplemental ITAAC 
notification is required; and
     Licensee supplementation of the ITAAC completion package, 
as appropriate, to demonstrate that the acceptance criteria continue to 
be met.
    The NRC expects these programs to be fully implemented and 
effective before the licensee takes credit for them as an appropriate 
means of supporting ITAAC maintenance. These programs will be subject 
to NRC inspection.

B. Additional ITAAC Notifications

ITAAC Post-Closure Notification
    The first new notification is contained in 10 CFR 52.99(c)(2), 
``ITAAC post-closure notifications,'' and would be required following 
the licensee's ITAAC closure notifications under 10 CFR 52.99(c)(1) 
until the Commission makes the finding under 10 CFR 52.103(g). This 
provision in 10 CFR 52.99(c)(2) would require the licensee to provide 
the NRC with timely notification of new information materially altering 
the basis for determining that either inspections, tests, or analyses 
were performed as required, or that acceptance criteria are met 
(referred to as the ITAAC determination basis).
    The licensee is responsible for maintaining the validity of the 
ITAAC conclusions after completion of the ITAAC. If the ITAAC 
determination basis is materially altered, the licensee is expected to 
notify the NRC. Through public workshops and stakeholder interaction, 
the NRC developed thresholds to identify when activities would 
materially alter the basis for determining that a prescribed 
inspection, test, or analysis was performed as required, or finding 
that a prescribed acceptance criterion is met. One obvious case is that 
a notification under paragraph (c)(2) is required to correct a material 
error or omission in the original ITAAC closure notification. The 
``materially altered determination'' is further developed in RG 1.215 
and in the industry guidance in NEI 08-01, Revision 4.
    Section 52.6, ``Completeness and accuracy of information,'' 
paragraph (a), requires that information provided to the Commission by 
a licensee be complete and accurate in all material respects. However, 
it might be the case that the original closure notification was 
complete and accurate when sent, but subsequent events materially alter 
the ITAAC determination basis. Also, a

[[Page 51884]]

material error or omission might not be discovered until after the 
ITAAC closure notification is sent. It is possible that new information 
materially altering the ITAAC determination basis would not rise to the 
reporting threshold under 10 CFR 52.6(b). As required by 10 CFR 
52.6(b), licensees must notify the Commission of information identified 
by the licensee as having, for the regulated activity, a significant 
implication for public health and safety or the common defense and 
security. Given the primary purpose of ITAAC--to verify that the plant 
has been constructed and will be operated in compliance with the 
approved design--the NRC believes that it cannot rely on the provisions 
in 10 CFR 52.6 for licensee reporting of new information materially 
altering the ITAAC determination basis. The reasons for this conclusion 
are as follows:
    1. Material errors and omissions in ITAAC closure notifications, 
relevant to the accuracy and completeness of the documented basis for 
the Commission's finding on ITAAC, may nonetheless be determined in 
isolation by a licensee as not having a significant implication for 
public health and safety or common defense and security.
    2. A Commission finding of compliance with acceptance criteria in 
the ITAAC at the time of the finding is required, under Section 185b of 
the AEA, in order for the combined license holder to commence 
operation.
    3. The addition of specific reporting requirements addressing 
information relevant and material to the ITAAC finding ensures that the 
NRC will get the necessary reports as a matter of regulatory 
requirement and allows the NRC to determine the timing and content of 
these reports so that they serve the regulatory needs of the NRC.
    Therefore, the NRC intends that these issues will be reported under 
10 CFR 52.99(c)(2). In addition to the reporting of material errors and 
omissions, the NRC has identified other circumstances in which 
reporting under this provision would be required (i.e., reporting 
thresholds). These reporting thresholds are described in more detail in 
Section IV, ``Section-by-Section Analysis,'' of this document.
    When making the 10 CFR 52.103(g) finding, the NRC must have 
sufficient information to determine that the relevant acceptance 
criteria are met despite the new information prompting the notification 
under paragraph (c)(2). Apart from the NRC's use of the information, 
the NRC also believes that public availability of such information is 
necessary to ensure that interested persons will have sufficient 
information to review when preparing a request for a hearing under 10 
CFR 52.103, comparable to the information provided under paragraph 
(c)(1), as described in the Statement of Considerations for the 2007 
part 52 rulemaking. See August 28, 2007; 72 FR 49352, at 49384 (second 
and third columns). Accordingly, the NRC requires that after a licensee 
identifies new information materially altering the ITAAC determination 
basis, the licensee must then submit what is essentially a 
``resolution'' notification to the NRC in the form of an ITAAC post-
closure notification. The ITAAC post-closure notification, described in 
paragraph (c)(2), requires the licensee to submit a written 
notification of the resolution of the circumstances surrounding the 
identification of new information materially altering the ITAAC 
determination basis. The ITAAC post-closure notification must contain 
sufficient information demonstrating that, notwithstanding the 
information that prompted notification, the prescribed inspections, 
tests, and analyses have been performed as required and the prescribed 
acceptance criteria are met. The ITAAC post-closure notifications 
should explain the need for the notification, outline the resolution of 
the issue, and confirm that the ITAAC acceptance criteria continue to 
be met. The ITAAC post-closure notifications must include a level of 
detail similar to the level of information required in initial ITAAC 
closure notifications under 10 CFR 52.99(c)(1).
    Section 52.99(c)(2) states that licensees must make the 
notification ``in a timely manner.'' Further discussion of what the NRC 
considers ``timely'' can be found in the NRC guidance being issued 
simultaneously with this final rule, as discussed in more detail in 
Section V, ``Availability of Regulatory Guidance,'' of this document.
    The NRC provides that the notification be available for public 
review under paragraph (e)(2). This helps ensure public availability 
and accessibility of important information on ITAAC closure. Further 
explanation of the basis for the availability requirement is presented 
under the discussion on 10 CFR 52.99(e)(2) in Section IV, ``Section-by-
Section Analysis,'' of this document.
    Events that affect completed ITAAC could involve activities that 
include, but are not limited to, maintenance and engineering programs, 
or design changes. The NRC expects that licensees will carry out these 
activities under established programs to maintain ITAAC conclusions and 
that no post-closure notification will be necessary in most instances. 
The NRC can have confidence that prior ITAAC conclusions are 
maintained, as long as the ITAAC determination basis established by the 
original ITAAC closure notification is not materially altered. If the 
ITAAC determination basis is not materially altered, then licensee 
activities will remain below the notification threshold of 10 CFR 
52.99(c)(2). If the ITAAC determination basis is materially altered, 
then the licensee is required to notify the NRC under 10 CFR 
52.99(c)(2).
    Although the NRC is requiring that licensees notify the NRC of 
information materially altering the ITAAC determination basis only 
after the licensee has evaluated and resolved the issue prompting the 
notification, the NRC encourages licensees to communicate with the NRC 
early in its evaluation process. The purpose of this early 
communication would be to alert the NRC staff to the fact that 
additional activities may be scheduled that affect a structure, system, 
or component (including physical security hardware) or program element 
for which one or more ITAAC have been closed. This will allow the NRC 
inspection staff to discuss the licensee's plans for resolving the 
issue to determine if the staff wants to observe any of the upcoming 
activities for the purpose of making a future staff determination about 
whether the acceptance criteria for those ITAAC continue to be met.
All ITAAC Complete Notification
    Another notification that the NRC is requiring is the ``all ITAAC 
complete'' notification under 10 CFR 52.99(c)(4). The purpose of this 
notification is to facilitate the required Commission finding under 10 
CFR 52.103(g) that the acceptance criteria in the combined license are 
met. After, or concurrent with, the last ITAAC closure notification 
required by 10 CFR 52.99(c)(1), the licensee is required to notify the 
NRC that all ITAAC are complete. When the licensee submits the all 
ITAAC complete notification, the NRC would expect that all activities 
requiring ITAAC post-closure notifications have been completed and that 
the associated ITAAC determination bases have been updated.
    To support the Commission's finding under 10 CFR 52.103(g) that the 
acceptance criteria in the combined license are met, the NRC staff 
will, if and when appropriate, send a recommendation to the Commission 
to make a finding that all of the specified acceptance criteria are 
met. The staff will consider that all acceptance criteria ``are met'' 
if both of the following conditions hold:

[[Page 51885]]

     All ITAAC were verified to be met at one time; and
     The licensee provides confidence, in part through the 
notifications in 10 CFR 52.99(c), that the ITAAC determination bases 
have been maintained and the ITAAC acceptance criteria continue to be 
met; and the NRC has no reasonable information to the contrary.
    This approach will allow licensees to have ITAAC-related 
structures, systems, or components, or security or emergency 
preparedness related hardware, undergoing maintenance or certain other 
activities at the time of the 10 CFR 52.103(g) finding, if the programs 
credited with maintaining the validity of completed ITAAC guide those 
activities and the activities are not so significant as to exceed a 
threshold for reporting. If a reporting threshold has been exceeded, 
then the NRC would need to evaluate the licensee's ITAAC post-closure 
notification to determine whether the ITAAC continue to be met. 
Reporting thresholds are discussed in more detail in Section IV, 
``Section-by-Section Analysis,'' of this document.
ITAAC Closure Documentation
    This final rule does not contain specific ITAAC documentation and 
record retention requirements. Consistent with regulatory provisions 
such as 10 CFR part 50, ``Domestic Licensing of Production and 
Utilization Facilities,'' Appendix B, ``Quality Assurance Criteria for 
Nuclear Power Plants and Fuel Reprocessing Plants,'' licensees are 
expected to prepare and retain records supporting the vast majority of 
ITAAC processes, including the activities supporting the notifications 
that are required by this final rule. Accordingly, the NRC has not 
included specific documentation and record retention requirements in 
this final rule. If the NRC inspections disclose substantial issues 
with licensees' records on ITAAC maintenance, the NRC will revisit the 
need for explicit documentation and record retention requirements on 
ITAAC maintenance.
NRC Inspection, Publication of Notices, and Availability of Licensee 
Notifications
    Section 52.99(e)(1) requires that the NRC publish in the Federal 
Register the NRC staff's determination of the successful completion of 
inspections, tests, and analyses, at appropriate intervals until the 
last date for submission of requests for hearing under 10 CFR 
52.103(a). Section 52.99(e)(2) currently provides that the NRC shall 
make publicly available the licensee notifications under current 
paragraphs (c)(1) and (c)(2). The NRC has revised paragraph (e)(2) to 
cover all notifications under 10 CFR 52.99(c). In general, the NRC 
expects to make the paragraph (c) notifications available shortly after 
the NRC has received the notifications and concluded that they are 
complete. Furthermore, by the date of the Federal Register notice of 
intended operation and opportunity to request a hearing on whether 
acceptance criteria are met (under 10 CFR 52.103(a)), the NRC will make 
available the licensee notifications under paragraphs (c)(1), (c)(2), 
and (c)(3) that it has received to date.

C. Conforming Changes to 10 CFR 2.340

    The 2007 10 CFR part 52 rulemaking amended 10 CFR 2.340, ``Initial 
decision in certain contested proceedings; immediate effectiveness of 
initial decisions; issuance of authorizations, permits, and licenses,'' 
to clarify, among other things, the scope of the presiding officer's 
decision in various kinds of NRC proceedings, and remove the 
requirement for direct Commission involvement in all production and 
utilization facility licensing proceedings.
    Section 2.340(j) was intended to address these matters in 
connection with the Commission finding on acceptance criteria and any 
associated hearing under 10 CFR 52.103. In the course of developing 
this final rule, the NRC determined that 10 CFR 2.340(j) contains 
several inconsistencies with the statutory language in Section 185b of 
the AEA, and could more clearly describe possible ways in which a 
presiding officer decision may lead to a Commission decision on 
acceptance criteria. The changes, together with the bases for the 
changes, are described in the following paragraphs.
    Section 2.340(j) currently states that the Commission makes a 
finding under 10 CFR 52.103(g) that acceptance criteria ``have been or 
will be met.'' This is incorrect; the Commission's finding under 10 CFR 
52.103(g) is that the acceptance criteria ``are met,'' which is the 
statutory requirement under Section 185b of the AEA. To correct this 
error, the NRC has amended the introductory language of 10 CFR 2.340(j) 
to use the correct phrase, ``acceptance criteria * * * are met * * *.''
    In addition, 10 CFR 2.340(j), as currently written, does not 
distinguish among the various circumstances in a contested proceeding 
where a presiding officer's decision (that acceptance criteria have 
been met, or will be met) is followed by the overall finding under 10 
CFR 52.103(g) that acceptance criteria are met (as required by Section 
185b of the AEA). It is not clear from the current language of Sec.  
2.340(j) that the presiding officer's initial decision on a contention 
that acceptance criteria have been met or will be met, does not obviate 
the need for the Commission (or the appropriate Director) to make the 
required finding (under Section 185b of the AEA and 10 CFR 52.103(g)) 
that the acceptance criteria are met. To illustrate this point by 
counter example, the presiding officer could make, in the initial 
decision, a ``predictive finding'' that acceptance criteria ``will be 
met.'' Thereafter, the combined license holder would complete the 
prescribed inspection, test and/or analysis and inform the NRC under 
Sec.  52.99 that the acceptance criteria have been met. Nonetheless, 
the Commission (or the appropriate Director) may determine--based on, 
inter alia, information submitted to the NRC under 10 CFR 52.99 after 
the hearing record had closed and the presiding officer's initial 
decision on the contention is made--that the presiding officer's 
``predictive finding'' was not borne out by events and that the 
acceptance criteria are not met. To clarify some of the possible paths 
that the Commission (or appropriate Director) could follow (after the 
presiding officer's initial decision) in making a finding that 
acceptance criteria are met, the NRC is revising the language of 
paragraph (j), thereby making clear that the presiding officer's 
decision on a contested matter is separate from the overall Commission 
finding under Section 185b and 10 CFR 52.103(g) that acceptance 
criteria are met.

IV. Section-by-Section Analysis

    The primary changes on ITAAC maintenance by the NRC in this 
rulemaking are to 10 CFR 52.99. The changes to 10 CFR 2.340 are 
corrections.

Section 2.340 Initial Decision in Certain Contested Proceedings; 
Immediate Effectiveness of Initial Decisions; Issuance of 
Authorizations, Permits and Licenses

Section 2.340(j) Issuance of Finding on Acceptance Criteria Under 10 
CFR 52.103
    Paragraph (j) was amended to allow the Commission (or the 
appropriate NRC Office Director) in a contested proceeding to make the 
finding under 10 CFR 52.103(g) that the acceptance criteria in a 
combined license are met, under certain circumstances that are 
delineated in greater detail in paragraphs (j)(1) through (4). This 
compares with the current rule, which

[[Page 51886]]

contains only two paragraphs, (j)(1) and (2). The matters covered by 
paragraph (j)(1) of the current rule are described with greater clarity 
in paragraphs (j)(1) through (3).
    Paragraph (j)(1) clarifies that the Commission may not make the 
overall 10 CFR 52.103(g) finding unless it is otherwise able to find 
that all uncontested acceptance criteria (i.e., ``acceptance criteria 
not within the scope of the initial decision of the presiding 
officer'') are met. The phrase ``otherwise able to make'' conveys the 
NRC's determination that the Commission's process for supporting a 
Commission finding on uncontested acceptance criteria is unrelated to 
and unaffected by the timing of the presiding officer's initial 
decision on contested acceptance criteria.
    Paragraph (j)(2) clarifies that a presiding officer's initial 
decision, which finds that acceptance criteria have been met, is a 
necessary, but not sufficient prerequisite for the Commission to make a 
finding that the contested acceptance criteria (i.e., the criteria that 
are the subject of the presiding officer's initial decision) are met. 
The Commission must thereafter--even if the presiding officer's initial 
decision finds that the contested acceptance criteria have been met--be 
able to make a finding that the contested criteria are met after 
considering: 1) information submitted in the licensee notifications 
pursuant to 10 CFR 52.99, and 2) the NRC staff's findings, with respect 
to these notifications, to issue the overall 10 CFR 52.103 finding. By 
using the word ``thereafter,'' the NRC intends to emphasize that the 
Commission would not make a finding that contested acceptance criteria 
are met in advance of the presiding officer's initial decision on those 
acceptance criteria.
    Paragraph (j)(3) expresses the same concept as paragraph (j)(2), 
but as applied to findings that acceptance criteria will be met. Thus, 
even if a presiding officer's initial decision finds that the contested 
acceptance criteria will be met, the Commission must thereafter be able 
to make a finding that the contested criteria are met after 
considering: (1) Information submitted in an ITAAC closure notification 
pursuant to 10 CFR 52.99(c)(1); 2) information submitted in the 
licensee notifications pursuant to 10 CFR 52.99(c)(2) and (c)(4); and 
3) the NRC staff's findings with respect to such notifications, to 
issue the overall 10 CFR 52.103 finding.
    Paragraph (j)(4) is the same as the existing provision in 10 CFR 
2.340(j)(2). This paragraph provides that the Commission may make the 
10 CFR 52.103(g) finding notwithstanding the pendency of a petition for 
reconsideration under 10 CFR 2.345, a petition for review under 10 CFR 
2.341, a motion for a stay under 10 CFR 2.342, or a petition under 10 
CFR 2.206.
    The NRC notes that 10 CFR 2.340(j) is not intended to be an 
exhaustive ``roadmap'' to a possible 10 CFR 52.103(g) finding that 
acceptance criteria are met. For example, this provision does not 
directly address what must occur for the Commission to make a 10 CFR 
52.103(g) finding where the presiding officer finds, with respect to a 
contention, that acceptance criteria have not been or will not be met. 
The NRC also notes that this provision applies only to contested 
proceedings. If there is no hearing under 10 CFR 52.103 or if the 
hearing ends without a presiding officer's initial decision on the 
merits (e.g., a withdrawal of the sole party in a proceeding), then 10 
CFR 2.340(j) does not govern the process by which the Commission (or 
the appropriate staff Office Director) makes the 10 CFR 52.103(g) 
finding.

Section 52.99 Inspection During Construction; ITAAC Schedules and 
Notifications; NRC Notices

    Although the NRC is not making changes to every paragraph under 10 
CFR 52.99, for simplicity, this rulemaking would replace the section in 
its entirety. Therefore, the NRC is providing a section-by-section 
discussion for every paragraph in 10 CFR 52.99. For those paragraphs 
where little or no change is being proposed, the NRC is repeating the 
section-by-section discussion from the 2007 major revision to 10 CFR 
part 52 with editorial and conforming changes, as appropriate.
    The purpose of this section is to present the requirements to 
support the NRC's inspections during construction, including 
requirements for ITAAC schedules and notifications and for NRC notices 
of ITAAC closure. The title of this section was changed from Inspection 
during construction to Inspections during construction; ITAAC schedules 
and notifications; NRC Notices to reflect the contents of this section.
Section 52.99(a) Licensee Schedule for Completing Inspections, Tests, 
or Analyses
    The NRC is not making any changes to Sec.  52.99(a). Paragraph (a) 
requires that the licensee submit to the NRC, no later than 1 year 
after issuance of the combined license or at the start of construction 
as defined at 10 CFR 50.10, whichever is later, its schedule for 
completing the inspections, tests, or analyses in the ITAAC. This 
provision also requires the licensee to submit updates to the ITAAC 
schedule every 6 months thereafter and, within 1 year of its scheduled 
date for initial loading of fuel, licensees must submit updates to the 
ITAAC schedule every 30 days until the final notification is provided 
to the NRC under Sec.  52.99(c)(1). The information provided by the 
licensee will be used by the NRC in developing the NRC's inspection 
activities and activities necessary to support the Commission's finding 
whether all of the ITAAC are met prior to the licensee's scheduled date 
for fuel load. Even in the case where there were no changes to a 
licensee's ITAAC schedule during an update cycle, the NRC expects the 
licensee to notify the NRC that there have been no changes to the 
schedule.
Section 52.99(b) Licensee and Applicant Conduct of Activities Subject 
to ITAAC
    The NRC is making an editorial change to the last sentence of Sec.  
52.99(b) to replace the words ``have been met'' with ``are met'' for 
consistency with the requirements of Section 185b of the AEA, as 
implemented in 10 CFR 52.103(g). The purpose of the requirement in 10 
CFR 52.99(b) is to clarify that an applicant may proceed at its own 
risk with design and procurement activities subject to ITAAC, and that 
a licensee may proceed at its own risk with design, procurement, 
construction, and preoperational testing activities subject to an 
ITAAC, even though the NRC may not have found that any particular ITAAC 
are met.
Section 52.99(c) Licensee Notifications
Section 52.99(c)(1) ITAAC Closure Notification and Sec.  52.99(c)(3) 
Uncompleted ITAAC Notification
    The NRC has made editorial changes in Sec.  52.99(c)(1) to replace 
the words ``have been met'' with ``are met.'' Section 52.99(c)(1) 
requires the licensee to notify the NRC that the prescribed 
inspections, tests, and analyses have been performed and that the 
prescribed acceptance criteria are met. Section 52.99(c)(1) further 
requires that the notification contain sufficient information to 
demonstrate that the prescribed inspections, tests, and analyses have 
been performed and that the prescribed acceptance criteria are met.
    The NRC has renumbered current Sec.  52.99(c)(2) as paragraph 
(c)(3). In addition, the NRC has made an editorial change to the last 
sentence in final Sec.  52.99(c)(3) (former 10 CFR 52.99(c)(2))

[[Page 51887]]

to replace the words ``have been met'' with ``are met.'' Section 
52.99(c)(3) requires that, if the licensee has not provided, by the 
date 225 days before the scheduled date for initial loading of fuel, 
the notification required by paragraph (c)(1) of this section for all 
ITAAC, then the licensee shall notify the NRC that the prescribed 
inspections, tests, or analyses for all uncompleted ITAAC will be 
performed and that the prescribed acceptance criteria will be met prior 
to operation (consistent with the AEA Section 185b requirement that the 
Commission, ``prior to operation,'' find that the acceptance criteria 
in the combined license are met). The notification must be provided no 
later than the date 225 days before the scheduled date for initial 
loading of fuel, and must provide sufficient information to demonstrate 
that the prescribed inspections, tests, or analyses will be performed 
and the prescribed acceptance criteria for the uncompleted ITAAC will 
be met.
    Section 52.99(c) ensures that: (1) The NRC has sufficient 
information to complete all of the activities necessary for the 
Commission to make a finding as to whether all of the ITAAC are met 
prior to initial operation, and (2) interested persons will have access 
to information on both completed and uncompleted ITAAC at a level of 
detail sufficient to address the AEA Section 189a(1)(B) threshold for 
requesting a hearing on acceptance criteria. It is the licensee's 
burden to demonstrate compliance with the ITAAC, and the NRC expects 
the information submitted under paragraph (c)(1) to contain more than 
just a simple statement that the licensee believes the ITAAC has been 
completed and the acceptance criteria met. The NRC would expect the 
notification to be sufficiently complete and detailed so that a 
reasonable person could understand the basis for the licensee's 
representation that the inspections, tests, and analyses have been 
successfully completed and the acceptance criteria are met. The term 
``sufficient information'' would require, at a minimum, a summary 
description of the basis for the licensee's conclusion that the 
inspections, tests, or analyses have been performed and that the 
prescribed acceptance criteria are met.
    Furthermore, with respect to uncompleted ITAAC, it is the 
licensee's burden to demonstrate that it will comply with the ITAAC, 
and the NRC would expect the information that the licensee submits 
under proposed paragraph (c)(3) to be sufficiently detailed so that the 
NRC staff can determine what activities it will need to undertake to 
determine if the acceptance criteria for each of the uncompleted ITAAC 
are met, once the licensee notifies the NRC that those ITAAC have been 
successfully completed and their acceptance criteria met. The term 
``sufficient information'' requires, at a minimum, a summary 
description of the basis for the licensee's conclusion that the 
inspections, tests, or analyses will be performed and that the 
prescribed acceptance criteria will be met. In addition, ``sufficient 
information'' includes, but is not limited to, a description of the 
specific procedures and analytical methods to be used for performing 
the inspections, tests, and analyses and determining that the 
acceptance criteria are met.
    The NRC notes that, even though it did not include a provision 
requiring the completion of all ITAAC by a certain time prior to the 
licensee's scheduled fuel load date, the NRC staff will require some 
period of time to perform its review of the last ITAAC once the 
licensee submits its notification that the ITAAC has been successfully 
completed and the acceptance criteria met. In addition, the Commission 
itself will require some period of time to perform its review of the 
staff's conclusions regarding all of the ITAAC and the staff's 
recommendations regarding the Commission finding under 10 CFR 
52.103(g).
Section 52.99(c)(2) ITAAC Post-Closure Notifications
    The NRC has added a new paragraph (c)(2) that would require the 
licensee to notify the NRC, in a timely manner, of new information that 
materially alters the basis for determining that either inspections, 
tests, or analyses were performed as required, or that acceptance 
criteria are met. The notification must contain sufficient information 
to demonstrate that, notwithstanding the new information, the 
prescribed inspections, tests, or analyses have been performed as 
required, and the prescribed acceptance criteria are met. 
Fundamentally, those circumstances requiring notification under 
proposed paragraph (c)(2) fall into the following two categories:
     The information presented or referenced in the original 10 
CFR 52.99(c)(1) notification is insufficient, either because it omits 
material information, or because the information is materially 
erroneous or incorrect, and the licensee discovers or determines there 
is a material omission or error after filing the original 10 CFR 
52.99(c)(1) notification.
     The information presented or referenced in the original 10 
CFR 52.99(c)(1) notification was complete (i.e., not omitting material 
information) and accurate (i.e., not materially erroneous), but there 
is new material information with respect to the subject of the original 
10 CFR 52.99(c)(1) notification.
    The term ``materially altering'' refers to situations in which 
there is information not contained in the 10 CFR 52.99(c)(1) 
notification that ``has a natural tendency or capability to influence 
an agency decision maker'' in either determining whether the prescribed 
inspection, test, or analysis was performed as required, or finding 
that the prescribed acceptance criterion is met. See Final Rule; 
Completeness and Accuracy of Information, December 31, 1987; 52 FR 
49362, at 49363. Applying this concept in the context of 10 CFR 
52.99(c), information for which notification would be required under 
paragraph (c)(2) is that information which, considered by itself or 
when considered in connection with information previously submitted or 
referenced by the licensee in a paragraph (c)(1) notification, relates 
to information which is necessary for any of the following:
     The licensee to assert that the prescribed inspections, 
tests, and analyses have been performed and the acceptance criteria are 
met;
     The NRC staff to determine if (and provide a 
recommendation to the Commission as to whether) the prescribed 
inspections, tests, and analyses were performed and the acceptance 
criteria are met; or
     The Commission to find that the acceptance criteria are 
met, as required by Section 185b of the AEA and 10 CFR 52.103(g).
    The term ``new information'' falls into three categories:
     New information (i.e., a ``discovery'' or new 
determination identified after the 10 CFR 52.99(c)(1) notification) 
about the accuracy of material information provided in, referenced by, 
or necessary to support representations made in that notification.
     New information (i.e., a ``discovery'' or new 
determination identified after the 10 CFR 52.99(c)(1) notification) 
that previously existing information should have been, but was not 
provided, in the notification or referenced in the supporting 
documentation (i.e., an omission of material information).
     Information on a ``new'' event or circumstance (i.e., an 
event or circumstance occurring after the 10 CFR 52.99(c)(1) 
notification) that materially affects the accuracy or completeness of 
the basis--as reported or relied upon in

[[Page 51888]]

the Sec.  52.99(c)(1) notification--for the licensee's representation 
that the acceptance criteria are met.
    Applying these concepts, the NRC believes that the circumstances 
for which reporting under this provision would be required include:
     Material Error or Omission--Is there a material error or 
omission in the original ITAAC closure notification?
     Post Work Verification (PWV)--Will the PWV use a 
significantly different approach than the original performance of the 
inspection, test, or analysis as described in the original ITAAC 
notification?
     Engineering Changes--Will an engineering change be made 
that materially alters the determination that the acceptance criteria 
are met?
     Additional Items To Be Verified--Will there be additional 
items that need to be verified through the ITAAC?
     Complete and Valid ITAAC Representation--Will any other 
licensee activities materially alter the ITAAC determination basis?
    Additional guidance on implementing these reporting thresholds is 
contained in the revision to RG 1.215, being issued simultaneously with 
this final rule. This guidance is discussed further in Section V, 
``Availability of Regulatory Guidance,'' of this document.
    Paragraph (c)(2) would require the licensee to submit an ITAAC 
post-closure notification documenting the resolution of the 
circumstances surrounding the identification of new material 
information. By ``resolution,'' the NRC means: (1) The completion of 
the licensee's technical evaluation of the issue and the determination 
as to whether the prescribed inspection, test, or analysis was 
performed as required; (2) licensee completion of any necessary 
corrective or supplemental actions; (3) licensee documentation of the 
issue and any necessary corrective or supplemental actions in order to 
bring the ITAAC determination basis up to date; and (4) ultimate 
licensee determination about whether the affected acceptance criteria 
continue to be met.
    The information provided in the notification should be at a level 
of detail comparable to the ITAAC closure notification under paragraph 
(c)(1). The dual purposes of the proposed paragraph (c)(2) 
notification, as described in Section III.B, ``Additional ITAAC 
Notifications,'' of this document, are comparable to the purposes of 
the ITAAC closure notification in paragraph (c)(1). Thus, the NRC 
believes that the considerations for the content of the ITAAC closure 
notification, as discussed in the final 2007 10 CFR part 52 rule, apply 
to the paragraph (c)(2) notifications. See 72 FR 49450; August 28, 2007 
(second column). It is the licensee's burden to demonstrate compliance 
with the ITAAC, taking into account any new information that materially 
alters the determination that a prescribed inspection, test, or 
analysis was performed as required or that a prescribed acceptance 
criterion is met. The NRC expects the paragraph (c)(2) notification to 
contain more than just a simple statement that the licensee has 
concluded, despite the material new information, that the prescribed 
inspection, test, or analysis was performed as required and that a 
prescribed acceptance criterion is met. The NRC expects the 
notification to be sufficiently complete and detailed such that a 
reasonable person could understand the basis for the licensee's 
determination in the paragraph (c)(2) notification. The term 
``sufficient information'' is comparable to the meaning given to that 
term in paragraph (c)(1), and requires, at a minimum, a summary 
description of the basis for the licensee's determination. In addition, 
``sufficient information'' includes, but is not limited to, a 
description of the specific procedures and analytical methods used or 
relied upon to develop or support the licensee's determination. The 
paragraph (c)(2) notification must be in writing, and the records on 
which it is based should be retained by the licensee to support 
possible NRC inspection. Licensees should use the same process for 
submitting ITAAC post-closure notifications as would be used to submit 
initial ITAAC closure notifications. The NRC is issuing guidance on 
implementation of the requirements in proposed paragraph (c)(2), 
including the level of detail necessary to comply with the requirements 
of paragraph (c)(2), as discussed in Section V, ``Availability of 
Regulatory Guidance,'' of this document.

Section 52.99(c)(4) All ITAAC Complete Notification

    The NRC has added a new paragraph (c)(4) which requires the 
licensee to notify the NRC that all ITAAC are complete (All ITAAC 
Complete Notification). When the licensee submits the all ITAAC 
complete notification, the NRC expects that all activities requiring 
ITAAC post-closure letters have been completed, that the associated 
ITAAC determination bases have been updated, and that all required 
notifications under paragraph (c)(2) have been made.
Section 52.99(d) Licensee Determination of Non-Compliance With ITAAC
    The NRC has made editorial changes in Sec.  52.99(d)(1) to replace 
the words ``have been met'' with, ``are met'' and in Sec.  52.99(d)(2) 
to replace the phrase ``ITAAC has been met'' with the phrase 
``prescribed acceptance criteria are met.'' Paragraph (d) states the 
options that a licensee will have in the event that it is determined 
that any of the acceptance criteria in the ITAAC are not met. If an 
activity is subject to an ITAAC derived from a referenced standard 
design certification and the licensee has not demonstrated that the 
ITAAC are met, then the licensee may take corrective actions to 
successfully complete that ITAAC or request an exemption from the 
standard design certification ITAAC, as applicable. A request for an 
exemption must also be accompanied by an application for a license 
amendment under 10 CFR 52.98(f). The NRC will consider and take action 
on the request for exemption and the license amendment application 
together as an integrated NRC action.
    Also, if an activity that is subject to an ITAAC not derived from a 
referenced standard design certification and the licensee has not 
demonstrated that the prescribed acceptance criteria are met, the 
licensee may take corrective actions to successfully complete that 
ITAAC or request a license amendment under 10 CFR 52.98(f).
Section 52.99(e) NRC Inspection, Publication of Notices, and 
Availability of Licensee Notifications
    The final rule is substantially the same as the proposed rule with 
one change to Sec.  52.99(e)(2) to clarify NRC notices to the public. 
The one language change made to the section, ``NRC inspection, 
publication of notices, and availability of licensee notifications,'' 
is to replace the language ``The NRC shall make publicly available the 
licensee notifications under paragraphs (c)(1) through (4) of this 
section no later than the date of publication of the notice of intended 
operations required by 10 CFR 52.103(a)'' with:
    ``The NRC shall, no later than the date of publication of the 
notice of intended operation required by 10 CFR 52.103(a), make 
publicly available those licensee notifications under paragraph (c) of 
this section that have been submitted to the NRC at least seven (7) 
days before that notice.'' The NRC will make public all paragraph (c) 
ITAAC notifications that were submitted to the NRC at least seven days 
before the date of publication of the notice of intended operation 
required by 10 CFR 52.103(a)

[[Page 51889]]

which is, at a minimum, 180 days before the date scheduled for initial 
loading of fuel. The NRC recognizes that the licensee could submit 
ITAAC notifications required by paragraph (c) later than the date of 
publication of the notice of intended operation required by 10 CFR 
52.103(a).

V. Availability of Regulatory Guidance

    Concurrent with this final rule, the NRC is issuing Revision 1 to 
RG 1.215, ``Guidance for ITAAC Closure Under 10 CFR Part 52.'' Revision 
1 of RG 1.215 was issued in draft form for public comment with a 
temporary identification as Draft Regulatory Guide, DG-1250 (76 FR 
27924, May 13, 2011). This guidance series was developed to describe, 
and make available to the public, information such as methods that are 
acceptable to the NRC staff for implementing specific parts of the 
agency's regulations, techniques that the staff uses in evaluating 
specific problems or postulated accidents, and data that the staff 
needs in its review of applications for permits and licenses.
    In Revision 1 of RG 1.215, the NRC is endorsing Revision 4 to the 
existing industry ITAAC closure guidance in NEI 08-01, submitted to the 
NRC for endorsement on July 16, 2010 (Package ADAMS Accession No. 
ML102010076). The revised guidance is intended to provide an acceptable 
method by which licensees can implement the new requirements in this 
final rulemaking.
    The proposed final rule requirements for ITAAC maintenance and the 
draft RG 1.215 were presented to the Advisory Committee on Reactor 
Safeguards (ACRS) on December 1, 2011 (ADAMS Accession No. 
ML11342A075). The ACRS conclusion and recommendations were that: (1) 
The proposed ITAAC rule, ``Requirements for Maintenance of Inspections, 
Tests, Analyses, and Acceptance Criteria,'' meets the goal of ensuring 
maintenance of ITAAC validity and should be approved. (2) The approach 
in RG 1.215, Revision 1, for closing and maintaining ITAAC should be 
revised to include an assessment that ensures a change does not 
introduce unintended consequences. The assessment should also include 
an evaluation that confirms the original inspections, tests, and 
analyses and their acceptance criteria are still valid and assures the 
functionality originally intended. (3) After revision, RG 1.215, 
Revision 1, should be issued. The NRC agrees to clarify RG 1.215 and 
the following sentence is included in Section B, where the requirements 
of NEI 08-01, section 8 are discussed: ``The design and configuration 
control program should include an assessment and evaluation that 
confirms that the ITAAC potentially affected by a proposed change are 
still valid and assures the functionality originally intended.''

VI. Availability of Documents

    The NRC is making the documents identified in the following table 
available to interested persons through one or more of the following 
methods as indicated. To access documents related to this action, see 
the ADDRESSES section of this document.

----------------------------------------------------------------------------------------------------------------
                   Document                          PDR           Web                      ADAMS
----------------------------------------------------------------------------------------------------------------
SECY-12-0030, ``Final Rule: Requirements for              X             X   ML113390369
 Maintenance of Inspections, Tests, Analyses,
 and Acceptance Criteria (RIN 3150-AI77)''.
Regulatory Analysis for Final Rule--                      X             X   ML120100062
 Requirements for Maintenance of Inspections,
 Tests, Analyses, and Acceptance Criteria,
 January 2012.
Regulatory Analysis for Proposed Rule--                   X             X   ML110040395
 Requirements for Maintenance of Inspections,
 Tests, Analyses, and Acceptance Criteria,
 February 2011.
ACRS Letter, Proposed Requirements for ITAAC              X             X   ML11342A075
 (Inspections, Tests, Analyses, and Acceptance
 Criteria) Maintenance and Draft Final
 Regulatory Guide 1.215, ``Guidance for ITAAC
 Closure Under 10 CFR Part 52''.
Staff Requirements Memorandum for SECY-10-                X             X   ML110350185
 0117, ``Proposed Rule: Requirements for
 Maintenance of Inspections, Tests, Analyses,
 and Acceptance Criteria (RIN 3150-AI77),''
 February 4, 2011.
SECY-10-0117, ``Proposed Rule: Requirements               X             X   ML101440146
 for Maintenance of Inspections, Tests,
 Analyses, and Acceptance Criteria (RIN 3150-
 AI77)''.
ITAAC Proposed Rule Federal Register Notice...            X             X   ML101440177
Regulatory Analysis for Proposed Rule re        ............  ............  ML101440359
 ITAAC, May 2010.
SECY[dash]09-0119, ``Staff Progress in                    X             X   ML091980372
 Resolving Issues Associated with Inspections,                              (Package)
 Tests, Analyses and Acceptance Criteria,''
 August 26, 2009.
SRM-M090922, ``Staff Requirements--Periodic               X             X   ML092890658
 Briefing on New Reactor Issues--Progress in
 Resolving Issues Associated with Inspections,
 Tests, Analyses, and Acceptance Criteria
 (ITAAC), 9:30 a.m., Tuesday, September 22,
 2009, Commissioners' Conference Room, One
 White Flint North, Rockville, Maryland (Open
 To Public Attendance),'' October 16, 2009.
Inspection Procedure 40600, ``Licensee Program            X             X   ML072530607
 for ITAAC Management''.
Regulatory Guide 1.215, ``Guidance for ITAAC              X             X   ML112580018
 Closure Under 10 CFR Part 52,'' Revision 1,
 January 2012.
Regulatory Guide 1.215, ``Guidance for ITAAC              X             X   ML091480076
 Closure Under 10 CFR Part 52,'' Revision 0,
 October 31, 2009.
NEI Comments on ITAAC Maintenance Proposed                X             X   ML11208C708
 Rule.
NEI Comments on DG-1250 Guidance for ITAAC                X             X   ML11209C487
 Closure.
Staff Responses to Public Comments on DG-1250.  ............  ............  ML11284A006
NEI 08-01, ``Industry Guideline for the ITAAC             X             X   ML090270415
 Closure Process Under 10 CFR part 52,''
 Revision 3, January 2009.
NEI 08-01, ``Industry Guideline for the ITAAC             X             X   ML102010076 (Package)
 Closure Process Under 10 CFR part 52,''                                    ML102010051
 Revision 4.
NEI Comments on NRC Plans to Amend Regulations            X             X   ML101300103
 Related to ITAAC Maintenance.
Russell Bell Ltr. RE: Response to Nuclear                 X             X   ML101590526
 Energy Institute on NRC Plans to Amend
 Regulations Related to ITAAC Maintenance.
Draft Regulatory Guide DG-1250 (Proposed                  X             X   ML102530401
 Revision 1 of Regulatory Guide 1.215),
 ``Guidance for ITAAC Closure Under 10 CFR
 Part 52''.

[[Page 51890]]

 
NUREG/BR-0058, ``Regulatory Analysis                      X             X   ML042820192
 Guidelines of the U.S. Nuclear Regulatory
 Commission,'' Revision 4, September 2004.
----------------------------------------------------------------------------------------------------------------

VII. Plain Writing

    The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal 
agencies to write documents in a clear, concise, well-organized manner 
that also follows other best practices appropriate to the subject or 
field and the intended audience. The NRC has attempted to use plain 
language in promulgating this rule consistent with the Federal Plain 
Writing Act guidelines.

VIII. Agreement State Compatibility

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement States Programs,'' approved by the Commission on June 20, 
1997, and published in the Federal Register (62 FR 46517; September 3, 
1997), this rule is classified as compatibility ``NRC.'' Compatibility 
is not required for Category ``NRC'' regulations. The NRC program 
elements in this category are those that relate directly to areas of 
regulation reserved to the NRC by the AEA or the provisions of 10 CFR. 
Although an Agreement State may not adopt program elements reserved to 
the NRC, it may wish to inform its licensees of certain requirements 
via a mechanism that is consistent with the particular State's 
administrative procedure laws. Category ``NRC'' regulations do not 
confer regulatory authority on the State.

IX. Voluntary Consensus Standard

    The National Technology Transfer and Advancement Act of 1995, 
Public Law 104-113, requires that Federal agencies use technical 
standards that are developed or adopted by voluntary consensus 
standards bodies unless using such a standard is inconsistent with 
applicable law or is otherwise impractical. The requirements in this 
rulemaking address procedural and information collection and reporting 
requirements necessary to support the NRC's regulatory activities on 
combined licenses under 10 CFR part 52, and to facilitate the NRC's 
conduct of hearings on ITAAC which may be held under Section 189 of the 
AEA. These requirements do not establish standards or substantive 
requirements with which combined license holders must comply. Thus, 
this rulemaking does not constitute establishment of a standard 
containing generally applicable requirements falling within the purview 
of the National Technology Transfer and Advancement Act and the 
implementing guidance issued by the Office of Management and Budget 
(OMB).

X. Environmental Impact--Categorical Exclusion

    The NRC has determined that these amendments fall within the types 
of actions described as categorical exclusions under 10 CFR 51.22(c)(2) 
and (c)(3). Therefore, neither an environmental impact statement nor an 
environmental assessment has been prepared for this regulation.

XI. Paperwork Reduction Act Statement

    This final rule contains new or amended information collection 
requirements that are subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). These requirements were approved by OMB, 
approval number 3150-0151.
    The burden to the public for these information collections is 
estimated to average 22 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
information collection. Send comments on any aspect of these 
information collections, including suggestions for reducing the burden, 
to the Information Services Branch (T-5 F53), U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, or by Internet electronic mail 
to [email protected]; and to the Desk Officer, Office of 
Information and Regulatory Affairs, NEOB-10202, (3150-0151), Office of 
Management and Budget, Washington, DC 20503. You may also email 
comments to [email protected] or comment by telephone at 
202-395-4718.

Public Protection Notification

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

XII. Regulatory Analysis

    The Commission has prepared a regulatory analysis on this final 
regulation. The analysis examines the costs and benefits of the 
alternatives considered by the Commission.
    The regulatory analysis is in ADAMS under Accession No. 
ML120100062.
    The regulatory analysis may also be viewed and downloaded 
electronically via the Federal rulemaking Web site at http://www.regulations.gov by searching on Docket ID NRC-2010-0012.
    The regulatory analysis examines the benefits and costs of the 
final rule requirements. The key findings of the analysis are as 
follows:
     Total Cost to Industry. The final rule would result in 
additional reporting and recordkeeping costs for the industry. The 
total annual cost for the rule is $244,800. The total present value of 
the costs is estimated at $940,000 (using a 7-percent discount rate) 
and $1,021,000 (using a 3-percent discount rate) over the next 20 
years.
     Annual Impact to the Economy. Under the Congressional 
Review Act of 1996 and as a result of consultations with the Office of 
Information and Regulatory Affairs of the Office of Management and 
Budget, the NRC has determined that these actions are not major rules. 
This determination is based on the estimated one-time costs (expected 
to occur within the first year) of implementing this action for the 
total industry is not to exceed $111,350.
     Value of Benefits Not Reflected Above. The cost figures 
shown above do not reflect the value of the benefits of the proposed 
rule. These benefits are evaluated qualitatively in Section 3.1 of the 
regulatory analysis. This regulatory analysis concluded the costs of 
the rule are justified in view of the qualitative benefits.
     Costs to NRC. The NRC would incur costs to review and 
process licensee responses to the proposed reporting requirements. The 
total annual costs are approximately $293,760. The NRC will incur one-
time costs for developing the infrastructure to process the new 
notifications, developing guidance, and training NRC staff on the 
proposed requirements estimated to be $49,920.
     Decision Rationale. Although the NRC did not quantify the 
benefits of this rule, the staff did qualitatively examine benefits and 
concluded that the rule would provide enhanced regulatory effectiveness 
and efficiency and enhanced openness of the regulatory process. The sum 
total of the requirements in the proposed rule

[[Page 51891]]

would be to establish reporting of issues affecting closed ITAAC.

XIII. Regulatory Flexibility Act Certification

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

XIV. Backfitting and Issue Finality

    The NRC has determined that neither the backfit rule, 10 CFR 
50.109, nor any of the finality provisions in 10 CFR part 52, apply to 
this final rule. Therefore, a backfit analysis is not required because 
the proposed ITAAC maintenance rule does not contain any provisions 
that would impose backfitting as defined in the backfit rule, nor does 
it contain provisions that are inconsistent with the finality 
provisions applicable to applicants for or holders of combined licenses 
in 10 CFR part 52.
    The final rule applies only to holders of combined licenses. The 
backfitting provisions in 10 CFR 50.109 and the finality provisions in 
Subpart C of 10 CFR part 52 protect holders of combined licenses (with 
the exception discussed further in this document). Subpart C of 10 CFR 
part 52 contains issue finality provisions which protect combined 
license applicants, but that protection extends only to issue 
resolution of matters resolved in referenced early site permits, 
standard design certifications, standard design approvals, or 
manufactured reactors. This rule does not alter issue resolution 
associated with referenced early site permits, standard design 
certifications, standard design approvals, or manufactured reactors. 
Instead, this final rule addresses requirements concerning the 
collection and reporting of information to the NRC to support the 
Commission's finding that ITAAC are met, and the conduct of hearings 
addressing whether prescribed inspections, tests, and analyses have 
been or will be performed and whether the prescribed acceptance 
criteria have been or will be met. Neither the backfit rule nor the 
issue finality provisions of 10 CFR part 52 apply to information 
collection and reporting requirements.
    To the extent that the rule revises these information collection 
and reporting requirements for future combined licenses, these 
requirements do not constitute backfitting or are otherwise 
inconsistent with the finality provisions in 10 CFR part 52, for the 
additional reason that the ITAAC Maintenance Rule's requirements are 
prospective in nature and effect. Neither the backfit rule nor the 
issue finality provisions in 10 CFR part 52 were intended to apply to 
every NRC action, which substantially changes the obligations of future 
licensees under 10 CFR part 52. Accordingly, the NRC has not prepared a 
backfit analysis or other evaluation for this final rule.

XV. Congressional Review Act

    Under the Congressional Review Act of 1996, the NRC has determined 
that these actions are not major rules and has verified this 
determination with the Office of Information and Regulatory Affairs of 
OMB.

List of Subjects

10 CFR Part 2

    Administrative practice and procedure, Antitrust, Byproduct 
material, Classified information, Environmental protection, Nuclear 
materials, Nuclear power plants and reactors, Penalties, Sex 
discrimination, Source material, Special nuclear material, Waste 
treatment and disposal.

10 CFR Part 52

    Administrative practice and procedure, Antitrust, Backfitting, 
Combined license, Early site permit, Emergency planning, Fees, 
Inspection, Limited work authorization, Nuclear power plants and 
reactors, Probabilistic risk assessment, Prototype, Reactor siting 
criteria, Redress of site, Reporting and recordkeeping requirements, 
Standard design, Standard design certification.
    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting 
the following amendments to 10 CFR parts 2 and 52.

PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND 
ISSUANCE OF ORDERS

0
1. The authority citation for part 2 continues to read as follows:

    Authority:  Atomic Energy Act secs.161, 181, 191 (42 U.S.C. 
2201, 2231, 2241); Energy Reorganization Act sec. 201 (42 U.S.C. 
5841); 5 U.S.C. 552; Government Paperwork Elimination Act sec. 1704 
(44 U.S.C. 3504 note).
    Section 2.101 also issued under Atomic Energy Act secs. 53, 62, 
63, 81, 103, 104 (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 
2135); Nuclear Waste Policy Act sec. 114(f) (42 U.S.C. 10143(f)); 
National Environmental Policy Act sec. 102 (42 U.S.C. 4332); Energy 
Reorganization Act sec. 301 (42 U.S.C. 5871).
    Sections 2.102, 2.103, 2.104, 2.105, 2.321 also issued under 
Atomic Energy Act secs. 102, 103, 104, 105, 183i, 189 (42 U.S.C. 
2132, 2133, 2134, 2135, 2233, 2239). Sections 2.200-2.206 also 
issued under Atomic Energy Act secs. 161, 186, 234 (42 U.S.C. 2201 
(b), (i), (o), 2236, 2282); sec. 206 (42 U.S.C. 5846). Section 
2.205(j) also issued under Pub. L. 101-410, as amended by section 
3100(s), Pub. L. 104-134 (28 U.S.C. 2461 note). Subpart C also 
issued under Atomic Energy Act sec. 189 (42 U.S.C. 2239). Section 
2.301 also issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.712 
also issued under 5 U.S.C. 557. Section 2.340 also issued under 
Nuclear Waste Policy Act secs. 135, 141, Pub. L. 97-425, 96 Stat. 
2232, 2241 (42 U.S.C. 10155, 10161). Section 2.390 also issued under 
5 U.S.C. 552. Sections 2.600-2.606 also issued under sec. 102 (42 
U.S.C. 4332). Sections 2.800 and 2.808 also issued under 5 U.S.C. 
553. Section 2.809 also issued under 5 U.S.C. 553; Atomic Energy Act 
sec. 29 (42 U.S.C. 2039). Subpart K also issued under Atomic Energy 
Act sec. 189 (42 U.S.C. 2239); Nuclear Waste Policy Act sec. 134 (42 
U.S.C. 10154). Subpart L also issued under Atomic Energy Act sec. 
189 (42 U.S.C. 2239). Subpart M also issued under Atomic Energy Act 
sec. 184, 189 (42 U.S.C. 2234, 2239). Subpart N also issued under 
Atomic Energy Act sec. 189 (42 U.S.C. 2239).

0
2. In Sec.  2.340, revise paragraph (j) to read as follows:


Sec.  2.340  Initial decision in certain contested proceedings; 
immediate effectiveness of initial decisions; issuance of 
authorizations, permits and licenses.

* * * * *
    (j) Issuance of finding on acceptance criteria under 10 CFR 52.103. 
The Commission, the Director of the Office of New Reactors, or the 
Director of the Office of Nuclear Reactor Regulation, as appropriate, 
shall make the finding under 10 CFR 52.103(g) that acceptance criteria 
in a combined license are met within 10 days from the date of the 
presiding officer's initial decision:
    (1) If the Commission or the appropriate director is otherwise able 
to make the finding under 10 CFR 52.103(g) that the prescribed 
acceptance criteria are met for those acceptance criteria not within 
the scope of the initial decision of the presiding officer;
    (2) If the presiding officer's initial decision--with respect to 
contentions that the prescribed acceptance criteria have not been met--
finds that those acceptance criteria have been met, and the Commission 
or the appropriate director thereafter is able to make the finding that 
those acceptance criteria are met;
    (3) If the presiding officer's initial decision--with respect to 
contentions

[[Page 51892]]

that the prescribed acceptance criteria will not be met--finds that 
those acceptance criteria will be met, and the Commission or the 
appropriate director thereafter is able to make the finding that those 
acceptance criteria are met; and
    (4) Notwithstanding the pendency of a petition for reconsideration 
under 10 CFR 2.345, a petition for review under 10 CFR 2.341, or a 
motion for stay under 10 CFR 2.342, or the filing of a petition under 
10 CFR 2.206.
* * * * *

PART 52--LICENSES, CERTIFICATIONS, AND APPROVALS FOR NUCLEAR POWER 
PLANTS

0
3. The authority citation for part 52 continues to read as follows:

    Authority: Atomic Energy Act secs. 103, 104, 147, 149, 161, 181, 
182, 183, 185, 186, 189, 223, 234 (42 U.S.C. 2133, 2201, 2167, 2169, 
2232, 2233, 2235, 2236, 2239, 2282); Energy Reorganization Act secs. 
201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); Government 
Paperwork Elimination Act sec. 1704 (44 U.S.C. 3504 note); Energy 
Policy Act of 2005, Pub. L. 109-58, 119 Stat. 594 (2005).


0
4. Revise Sec.  52.99 to read as follows:


Sec.  52.99  Inspection during construction; ITAAC schedules and 
notifications; NRC notices.

    (a) Licensee schedule for completing inspections, tests, or 
analyses. The licensee shall submit to the NRC, no later than 1 year 
after issuance of the combined license or at the start of construction 
as defined at 10 CFR 50.10(a), whichever is later, its schedule for 
completing the inspections, tests, or analyses in the ITAAC. The 
licensee shall submit updates to the ITAAC schedules every 6 months 
thereafter and, within 1 year of its scheduled date for initial loading 
of fuel, the licensee shall submit updates to the ITAAC schedule every 
30 days until the final notification is provided to the NRC under 
paragraph (c)(1) of this section.
    (b) Licensee and applicant conduct of activities subject to ITAAC. 
With respect to activities subject to an ITAAC, an applicant for a 
combined license may proceed at its own risk with design and 
procurement activities, and a licensee may proceed at its own risk with 
design, procurement, construction, and preoperational activities, even 
though the NRC may not have found that any one of the prescribed 
acceptance criteria are met.
    (c) Licensee notifications--(1) ITAAC closure notification. The 
licensee shall notify the NRC that prescribed inspections, tests, and 
analyses have been performed and that the prescribed acceptance 
criteria are met. The notification must contain sufficient information 
to demonstrate that the prescribed inspections, tests, and analyses 
have been performed and that the prescribed acceptance criteria are 
met.
    (2) ITAAC post-closure notifications. Following the licensee's 
ITAAC closure notifications under paragraph (c)(1) of this section 
until the Commission makes the finding under 10 CFR 52.103(g), the 
licensee shall notify the NRC, in a timely manner, of new information 
that materially alters the basis for determining that either 
inspections, tests, or analyses were performed as required, or that 
acceptance criteria are met. The notification must contain sufficient 
information to demonstrate that, notwithstanding the new information, 
the prescribed inspections, tests, or analyses have been performed as 
required, and the prescribed acceptance criteria are met.
    (3) Uncompleted ITAAC notification. If the licensee has not 
provided, by the date 225 days before the scheduled date for initial 
loading of fuel, the notification required by paragraph (c)(1) of this 
section for all ITAAC, then the licensee shall notify the NRC that the 
prescribed inspections, tests, or analyses for all uncompleted ITAAC 
will be performed and that the prescribed acceptance criteria will be 
met prior to operation. The notification must be provided no later than 
the date 225 days before the scheduled date for initial loading of 
fuel, and must provide sufficient information to demonstrate that the 
prescribed inspections, tests, or analyses will be performed and the 
prescribed acceptance criteria for the uncompleted ITAAC will be met, 
including, but not limited to, a description of the specific procedures 
and analytical methods to be used for performing the prescribed 
inspections, tests, and analyses and determining that the prescribed 
acceptance criteria are met.
    (4) All ITAAC complete notification. The licensee shall notify the 
NRC that all ITAAC are complete.
    (d) Licensee determination of non-compliance with ITAAC. (1) In the 
event that an activity is subject to an ITAAC derived from a referenced 
standard design certification and the licensee has not demonstrated 
that the prescribed acceptance criteria are met, the licensee may take 
corrective actions to successfully complete that ITAAC or request an 
exemption from the standard design certification ITAAC, as applicable.
    A request for an exemption must also be accompanied by a request 
for a license amendment under 10 CFR 52.98(f).
    (2) In the event that an activity is subject to an ITAAC not 
derived from a referenced standard design certification and the 
licensee has not demonstrated that the prescribed acceptance criteria 
are met, the licensee may take corrective actions to successfully 
complete that ITAAC or request a license amendment under 10 CFR 
52.98(f).
    (e) NRC inspection, publication of notices, and availability of 
licensee notifications. The NRC shall ensure that the prescribed 
inspections, tests, and analyses in the ITAAC are performed.
    (1) At appropriate intervals until the last date for submission of 
requests for hearing under 10 CFR 52.103(a), the NRC shall publish 
notices in the Federal Register of the NRC staff's determination of the 
successful completion of inspections, tests, and analyses.
    (2) The NRC shall make publicly available the licensee 
notifications under paragraph (c) of this section. The NRC shall, no 
later than the date of publication of the notice of intended operation 
required by 10 CFR 52.103(a), make publicly available those licensee 
notifications under paragraph (c) of this section that have been 
submitted to the NRC at least seven (7) days before that notice.

    Dated at Rockville, Maryland, this 22nd day of August, 2012.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2012-21207 Filed 8-27-12; 8:45 am]
BILLING CODE 7590-01-P