[Federal Register Volume 82, Number 49 (Wednesday, March 15, 2017)]
[Proposed Rules]
[Pages 13778-13781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-05141]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 82, No. 49 / Wednesday, March 15, 2017 / 
Proposed Rules  

[[Page 13778]]



NUCLEAR REGULATORY COMMISSION

10 CFR Parts 26, 50, 52, 73, and 140

[NRC-2015-0070]
RIN 3150-AJ59


Regulatory Improvements for Power Reactors Transitioning to 
Decommissioning

AGENCY: Nuclear Regulatory Commission.

ACTION: Draft regulatory basis; request for comment.

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

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is requesting 
comments on a draft regulatory basis to support a rulemaking that would 
amend NRC's regulations for the decommissioning of nuclear power 
reactors. The NRC's goals in amending these regulations would be to 
provide for an efficient decommissioning process; reduce the need for 
exemptions from existing regulations; address other decommissioning 
issues deemed relevant by the NRC staff; and support the principles of 
good regulation, including openness, clarity, and reliability. The NRC 
plans to hold a public meeting to discuss the draft regulatory basis 
and facilitate public comment.

DATES: Submit comments by June 13, 2017. Comments received after this 
date will be considered if it is practical to do so, but the NRC is 
only able to ensure consideration of comments received on or before 
this date.

ADDRESSES: You may submit comments by the following method:
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2015-0070. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions contact 
the individuals listed in the FOR FURTHER INFORMATION CONTACT section 
of this document.
    For additional direction on obtaining information and submitting 
comments, see ``Obtaining Information and Submitting Comments'' in the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Alysia G. Bone, telephone: 301-415-
1034, email: [email protected]; or Jennifer C. Tobin, telephone: 301-
415-2328, email: [email protected]. Both are staff of the Office 
of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Obtaining Information and Submitting Comments
II. Discussion
III. Specific Requests for Comments
IV. Cumulative Effects of Regulation
V. Availability of Documents
VI. Plain Writing

I. Obtaining Information and Submitting Comments

A. Obtaining Information

    Please refer to Docket ID NRC-2015-0070 when contacting the NRC 
about the availability of information for this action. You may obtain 
publicly-available information related to this action by any of the 
following methods:
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2015-0070.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection 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 
draft regulatory basis document is available in ADAMS under Accession 
No. ML17047A413.
     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.

B. Submitting Comments

    Please include Docket ID NRC-2015-0070 in your comment submission. 
If you cannot submit your comments on the Federal rulemaking Web site, 
www.regulations.gov, then contact one of the individuals listed in the 
FOR FURTHER INFORMATION CONTACT section of this document.
    The NRC cautions you not to include identifying or contact 
information that you do not want to be publicly disclosed in your 
comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into 
ADAMS. The NRC does not routinely edit comment submissions to remove 
identifying or contact information.
    If you are requesting or aggregating comments from other persons 
for submission to the NRC, then you should inform those persons to not 
include identifying or contact information that they do not want to be 
publicly disclosed in their comment submission. Your request should 
state that the NRC does not routinely edit comment submissions to 
remove such information before making the comment submissions available 
to the public or entering the comment into ADAMS. Please note that the 
NRC will not provide formal written responses to each of the comments 
received on the draft regulatory basis. However, the NRC staff will 
consider all comments received in the development of the final 
regulatory basis.

II. Discussion

    On December 30, 2014, in the staff requirements memorandum (SRM) 
for SECY-14-0118, ``Request by Duke Energy Florida, Inc., for 
Exemptions from Certain Emergency Planning Requirements'' (ADAMS 
Accession No. ML14364A111), the Commission directed the NRC staff to 
proceed with a rulemaking on power reactor decommissioning. The 
Commission also stated that the rulemaking should address: Issues 
discussed in SECY-00-0145, ``Integrated Rulemaking Plan for Nuclear 
Power Plant Decommissioning'' (ADAMS Accession No. ML003721626), such 
as the graded approach to emergency preparedness (EP); lessons learned 
from the plants that have already (or are currently) going through the 
decommissioning process; the

[[Page 13779]]

advisability of requiring a licensee's Post-Shutdown Decommissioning 
Activities Report (PSDAR) to be approved by the NRC; the 
appropriateness of maintaining the three existing options for 
decommissioning and the timeframes associated with those options; the 
appropriate role of state and local governments and non-governmental 
stakeholders in the decommissioning process; and any other issues 
deemed relevant by the NRC.
    The NRC issued an advance notice of proposed rulemaking (ANPR) in 
the Federal Register (80 FR 72358; November 19, 2015) to obtain 
stakeholder feedback on the regulatory issues included in the SRM for 
SECY-14-0118. The NRC received public comments related to each of the 
regulatory issues outlined in the ANPR. Most public feedback pertained 
to the level of public involvement in the decommissioning process, the 
60-year limit for power reactor decommissioning, whether the NRC should 
approve the PSDAR, EP considerations, and the use of the 
decommissioning trust funds (DTFs). The NRC reviewed the comments and 
used input received from the comments to develop the options presented 
in the draft regulatory basis.
    In the draft regulatory basis, the NRC staff concludes that it has 
sufficient justification to proceed with rulemaking in the areas of EP, 
physical security, DTFs, offsite and onsite financial protection 
requirements and indemnity agreements, and application of the backfit 
rule. As stated previously, the NRC staff included all of these areas 
in the ANPR and received stakeholder feedback. Further, the NRC staff 
is recommending rulemaking to: (1) Require that the PSDAR contain a 
description of how the spent fuel stored under a general independent 
spent fuel storage installation license will be removed from the 
reactor site in accordance with the regulatory requirements in Sec.  
50.82 of title 10 of the Code of Federal Regulations (10 CFR), 
``Termination of License,'' 10 CFR 50.54(bb), ``Conditions of 
Licenses,'' 10 CFR 52.110, ``Termination of License,'' and/or 10 CFR 
72.218, ``Termination of Licenses;'' and (2) amend 10 CFR 51.53, 
``Postconstruction Environmental Reports,'' and 10 CFR 51.95, 
``Postconstruction Environmental Impact Statements,'' to clarify that 
the requirements for a license amendment before decommissioning 
activities may commence applies only to non-power reactors, as 
specified in 10 CFR 50.82(b), ``Termination of License,'' in accordance 
with the 1996 final rule that amended the NRC's decommissioning 
regulations (61 FR 39278).
    At this time, the NRC staff has determined that additional 
stakeholder input is needed prior to finalizing recommendations related 
to cyber security, drug and alcohol testing, certified fuel handler 
training and minimum staffing, aging management, and fatigue 
management. The NRC received comments in these areas from the ANPR and 
intends to seek specific public input on these topics as part of the 
public comment request on the entire draft regulatory basis.
    In the draft regulatory basis, the NRC staff concludes that 
regulatory activities other than rulemaking--such as guidance 
development--should be used to address concerns expressed in comments 
received on the ANPR regarding the appropriate role of State and local 
governments in the decommissioning process, the level of NRC review and 
approval of the PSDAR, and the 60 year limit for power reactor 
decommissioning. The NRC is requesting public comment on the draft 
regulatory basis and its associated appendices. To supplement the draft 
regulatory basis, the NRC is preparing a preliminary draft regulatory 
analysis, which will be made available for public comment in the near 
future.

III. Request for Comment

    The NRC is requesting comment on the draft regulatory basis, 
``Regulatory Improvements for Reactors Transitioning to 
Decommissioning.'' As you prepare your comments, consider the following 
general questions:
    1. Is the NRC considering appropriate options for each regulatory 
area described in the draft regulatory basis?
    2. Are there additional factors that the NRC should consider in 
each regulatory area? What are these factors?
    3. Are there any additional options that the NRC should consider 
during development of the proposed rule?
    4. Is there additional information concerning regulatory impacts 
that NRC should include in its regulatory basis for this rulemaking?

Specific Regulatory Issues

    In addition to these general questions, the NRC has identified 
additional areas of consideration that either could be included in the 
scope of the power reactor decommissioning rulemaking or addressed 
through other actions. The NRC may include additional discussion of 
these issues in the final regulatory basis, and if included, will use 
any public comments received regarding these issues to inform the 
development of the final regulatory basis. The NRC requests that 
members of the public answer the following specific questions regarding 
these additional regulatory issues.

Foreign Ownership, Control, or Domination (FOCD) Exemptions for 
Facilities in Decommissioning

    A licensee in decommissioning may desire to transfer their license 
under 10 CFR part 50, ``Domestic Licensing of Production and 
Utilization Facilities,'' to another entity to perform the 
decommissioning activities described in the licensee's PSDAR. However, 
pursuant to Sec.  50.38, ``Ineligibility of Certain Applicants,'' the 
receiving entity is ineligible to obtain the license if it is a 
citizen, national, or agent of a foreign country or if it is any 
corporation or other entity which the Commission knows or has reason to 
believe is owned, controlled, or dominated by an alien, a foreign 
corporation, or a foreign government. The NRC has granted exemptions 
from this requirement for facilities that have been dismantled and 
removed, such that only independent spent fuel storage installations 
remained onsite (78 FR 58571; September 24, 2013).
    5. Should the NRC address the exemption to Sec.  50.38 for 
licensees of facilities in decommissioning on a generic basis as a part 
of this rulemaking? If so, why, and how should the NRC address this 
issue?

Potential Changes to 10 CFR Part 37

    Both operating and decommissioning power reactor licensees are 
subject to the physical protection programs contained in Sec.  73.55, 
``Requirements for physical protection of licensed activities in 
nuclear power reactors against radiological sabotage,'' of 10 CFR part 
73, ``Physical Protection of Plants and Materials;'' appendix B, 
``General Criteria for Security Personnel,'' to 10 CFR part 73; and 
appendix C, ``Licensee Safeguards Contingency Plans,'' to 10 CFR part 
73. These licensees are also subject to 10 CFR part 37, ``Physical 
Protection of Category 1 and Category 2 Quantities of Radioactive 
Material,'' if they possess category 1 and category 2 quantities of 
radioactive material. Therefore, these licensees are potentially 
subject to both 10 CFR part 73 and 10 CFR part 37 security regulations.
    The NRC issued the regulations in 10 CFR part 37 to establish 
security requirements for the use and transport of risk significant 
quantities of category 1 and category 2 radioactive material. Category 
1 and category 2 thresholds of radioactive materials in 10 CFR part 37 
are consistent with similar categories of

[[Page 13780]]

radioactive materials established by the International Atomic Energy 
Agency in its Code of Conduct on the Safety and Security of Radioactive 
Sources (available at http://www-ns.iaea.org/tech-areas/radiation-safety/code-of-conduct.asp (last visited on February 10, 2017)).
    The objective of 10 CFR part 37 is to provide reasonable assurance 
that licensees can prevent the theft or diversion of category 1 and 
category 2 quantities of radioactive material. The current 10 CFR part 
37 regulation is applicable to any licensee that possesses an 
aggregated category 1 or category 2 quantity of radioactive material, 
any licensee that transports these materials using ground 
transportation, and any licensee that transports small quantities of 
irradiated reactor fuel.
    To address the potential impact of redundant security regulations 
during decommissioning, the NRC is considering revising security 
regulations, including addressing the physical security requirements 
for category 1 and category 2 materials at facilities undergoing 
decommissioning.
    6. Are the physical security protection programs in 10 CFR part 37 
an area of regulation that the NRC should address in this rulemaking? 
If so, why, and how should the NRC address this issue?
    7. Should 10 CFR part 50 licensees transitioning from an operating 
status to decommissioning status be provided specific physical security 
requirements in 10 CFR part 37 for category 1 and category 2 materials, 
based on their decommissioning status (i.e., in DECON, SAFSTOR, and 
ENTOMB)?
    8. Should the NRC establish specific security requirements for the 
storage of category 1 and category 2 materials contained in large 
components, robust structures, and in other equipment that are not 
likely to be subject to theft and diversion due to their inherent self-
protecting features (i.e., large physical size and weight)?
    9. Is a clarification of the exemption in Sec.  37.11(b) needed 
with respect to facilities with 10 CFR part 73 security plans that are 
undergoing decommissioning?

Specific Questions Regarding Appendix F, ``Decommissioning Trust 
Funds,'' of the Draft Regulatory Basis

    In addition to the options proposed in Appendix F of the draft 
regulatory basis, the NRC is considering an option to amend the 
regulations in Sec.  50.75, ``Reporting and Recordkeeping for 
Decommissioning Planning,'' to require each power reactor licensee to 
provide and assure to a site-specific cost estimate that is reviewed by 
the NRC at initial licensing, throughout operations, and while in 
decommissioning. A future licensee would provide at licensing site-
specific decommissioning plans, including an initial site-specific cost 
estimate that captures the major assumptions, major decommissioning 
activities, references, and any other bases used to develop this 
estimate. Each plan would address how the cost estimate will be 
adjusted for future cost escalation, the mechanism to be established 
for funding, and a schedule for periodic contributions and assumptions 
about future decommissioning trust fund growth (e.g., 2 percent real-
rate of return). During operations, each licensee would update the 
initial site-specific cost estimate periodically to account for cost 
escalation and any changes in assumptions that may result in increased 
decommissioning costs (i.e., years 1-35 at 5 year intervals; annually 
thereafter). Should this option be considered, the NRC would recommend 
the following:
    a. The Table of Minimum Amounts in Sec.  50.75(b) would continue to 
require certification of a site-specific decommissioning cost estimate 
that meets, or exceeds, the NRC minimum formula amount.
    b. Implementation Period: The NRC would recommend that current 
licensees be provided the biennial (2 year) status report period with 
an additional year to provide and assure to the site-specific 
decommissioning plan referenced herein.
    10. Should this area of the regulations be addressed in this 
rulemaking? If so, why, and how should the NRC address this issue?

Onsite and Offsite Liability Insurance During Decommissioning

    The NRC staff is considering a proposal to adjust the amounts of 
primary liability insurance that power reactor licensees in 
decommissioning must maintain. The current practice is to exempt these 
licensees from the Sec.  140.11 requirements (for offsite insurance) 
and Sec.  50.54(w) (for onsite insurance) so that the amount of offsite 
and onsite insurance corresponds to the risks of a decommissioning 
plant. The NRC staff would use this rulemaking to establish regulations 
for licensees in decommissioning to preclude the need for these 
licensees to request exemptions. The NRC staff is considering using the 
amounts approved in several previous exemption actions and adjusting 
those amounts for inflation.
    11. If the NRC takes this approach, should the NRC apply this 
requirement to licensees who already have exemptions from insurance 
requirements and whose levels of insurance have not been adjusted for 
inflation?

Specific Question Regarding Security Plan Changes During 
Decommissioning

    Operating reactor licensees that are decommissioning may use the 
Sec.  50.54(p)(2) process to implement changes to their site security 
plans (e.g., removal of barriers, reduction of vital areas and armed 
response team members) that do not decrease the safeguards 
effectiveness of their plans. After the licensee has implemented the 
changes to their security plans and submitted the required report of 
the changes, the NRC staff practice is to review these reports to 
ensure that the licensee has properly adhered to the requirements of 
Sec.  50.54(p)(2) and not implemented a change that decreases the 
safeguards effectiveness of its security plans. Although not 
specifically required by regulation, licensees have typically included 
in their submitted reports information demonstrating that these changes 
do not constitute a decrease in safeguards effectiveness. However, 
submission of this additional information currently is not a regulatory 
requirement.
    The NRC staff further notes that the change process in Sec.  
50.54(p)(2) is complicated for both licensees and the NRC staff by the 
fact that the term ``decrease in safeguards effectiveness'' is not 
defined in our regulations. Accordingly, the NRC is considering adding 
the following definition to Sec.  50.2, ``Definitions,'' or to Sec.  
50.54(p)(2): A decrease in the safeguards effectiveness of a security 
plan is a change or series of changes to the security plan that reduces 
or eliminates the licensee's ability to perform or maintain the 
security function that was previously performed or provided by the 
changed element or component without compensating changes to other 
security plan elements or components.
    12. The NRC staff requests public comments on the following 
options.
    Option 1, no change. Decommissioning licensees continue to 
implement security plan changes that do not decrease safeguards 
effectiveness using the provisions of Sec.  50.54(p)(2), reporting 
changes to the NRC within 2 months. If the NRC staff is unable to 
verify the licensee's safeguards effectiveness determination through a 
review of the submitted report, the NRC staff would continue to follow 
up on the changes through the inspection process.
    Option 2, develop regulatory guidance associated with 
decommissioning

[[Page 13781]]

reactor security plan changes to provide licensees guidance for making 
security plan changes that do and do not decrease the safeguards 
effectiveness of the plan.
    Option 3, revise the requirements in Sec.  50.54(p) to include the 
aforementioned definition of safeguards effectiveness and revise the 
specific requirements in Sec.  50.54(p)(2) to more closely reflect the 
wording found in Sec.  50.54(q), ``Emergency Plans,'' specifically 
within paragraphs 50.54(q)(3) and (5).
    13. Which option should the NRC pursue to address this issue?

Specific Question Regarding the Community Advisory Board (CAB)

    Although not a regulatory requirement, to date all decommissioning 
licensees have created some form of a community advisory board, with 
membership and activity levels commensurate with the overall level of 
public interest in the decommissioning activities at the facility. 
Currently, the staff doesn't have a compelling safety basis to 
recommend an option for rulemaking regarding the licensee's 
establishment of a community advisory board.
    14. The staff is seeking public comment on how such a requirement 
might constitute a cost-justified, substantial increase in protection 
of the public health and safety or the common defense and security.

IV. Cumulative Effects of Regulation

    The cumulative effects of regulation (CER) describe the challenges 
that licensees or other impacted entities (such as State agency 
partners) may face while implementing new regulatory positions, 
programs, and requirements (e.g., rules, generic letters, backfits, 
inspections). The CER is an organizational effectiveness challenge that 
results from a licensee or impacted entity implementing a number of 
complex positions, programs, or requirements within a limited 
implementation period and with available resources (which may include 
limited available expertise to address a specific issue). The NRC has 
implemented CER enhancements to the rulemaking process to facilitate 
public involvement throughout the rulemaking process. Therefore, the 
NRC is specifically requesting comment on the cumulative effects that 
may result from this proposed rulemaking. In developing comments on the 
draft regulatory basis, consider the following questions:
    (1) In light of any current or projected CER challenges, what 
should be a reasonable effective date, compliance date, or submittal 
date(s) from the time the final rule is published to the actual 
implementation of any new proposed requirements, including changes to 
programs, procedures, or the facility?
    (2) If current or projected CER challenges exist, what should be 
done to address this situation (e.g., if more time is required to 
implement the new requirements, what period of time would be 
sufficient, and why such a time frame is necessary)?
    (3) Do other regulatory actions (e.g., orders, generic 
communications, license amendment requests, and inspection findings of 
a generic nature) by the NRC or other agencies influence the 
implementation of the potential proposed requirements?
    (4) Are there unintended consequences? Does the potential proposed 
action create conditions that would be contrary to the potential 
proposed action's purpose and objectives? If so, what are the 
consequences and how should they be addressed?
    (5) Please provide information on the costs and benefits of the 
potential proposed action. This information will be used to support 
additional regulatory analysis by the NRC.

V. Availability of Documents

    The NRC may post additional materials related to this rulemaking 
activity to the Federal rulemaking Web site at www.regulations.gov 
under Docket ID NRC-2015-0070. These documents will inform the public 
of the current status of this activity and/or provide additional 
material for use at future public meetings.
    The Federal rulemaking Web site allows you to receive alerts when 
changes or additions occur in a docket folder. To subscribe: (1) 
Navigate to the docket folder (NRC-2015-0070); (2) click the ``Sign up 
for Email Alerts'' link; and (3) enter your email address and select 
how frequently you would like to receive emails (daily, weekly, or 
monthly).
    The documents identified in the following table are available to 
interested persons through one or more of the methods listed in the 
ADDRESSES section of this document.

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                                    ADAMS Accession No./web link/Federal
             Document                        Register citation
------------------------------------------------------------------------
SECY-14-0118, ``Request by Duke    ML14364A111.
 Energy Florida, Inc., for
 Exemptions from Certain
 Emergency Planning
 Requirements,'' December 30,
 2014.
SECY-00-0145--``Integrated         ML003721626.
 Rulemaking Plan for Nuclear
 Power Plant Decommissioning,''
 June 28, 2000..
Federal Register notice,           80 FR 72358.
 ``Advance Notice of Proposed
 Rulemaking: Regulatory
 Improvements for Decommissioning
 Power Reactors,'' November 19,
 2015.
Federal Register notice, ``Maine   78 FR 58571.
 Yankee Atomic Power Company,
 Connecticut Yankee Atomic Power
 Company, and The Yankee Atomic
 Electric Company,'' September
 24, 2013.
Code of Conduct on the Safety and  http://www-ns.iaea.org/tech-areas/
 Security of Radioactive Sources,   radiation-safety/code-of-
 September 8, 2003.                 conduct.asp.
------------------------------------------------------------------------

VI. 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. 
The NRC has written this document to be consistent with the Plain 
Writing Act as well as the Presidential Memorandum, ``Plain Language in 
Government Writing,'' published in the Federal Register on June 10, 
1998 (63 FR 31883). The NRC requests comment on this document with 
respect to the clarity and effectiveness of the language used.

    Dated at Rockville, Maryland, this 10th day of March 2017.

    For the Nuclear Regulatory Commission.
Louise Lund,
Director, Division of Policy and Rulemaking, Office of Nuclear Reactor 
Regulation.
[FR Doc. 2017-05141 Filed 3-14-17; 8:45 am]
 BILLING CODE 7590-01-P