[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