[Federal Register Volume 84, Number 154 (Friday, August 9, 2019)]
[Rules and Regulations]
[Pages 39684-39722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16600]



[[Page 39683]]

Vol. 84

Friday,

No. 154

August 9, 2019

Part IV





 Nuclear Regulatory Commission





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10 CFR Parts 50 and 52





 Mitigation of Beyond-Design-Basis Events; Rule

  Federal Register / Vol. 84 , No. 154 / Friday, August 9, 2019 / Rules 
and Regulations  

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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 50 and 52

[Docket Nos. PRM-50-96, PRM-50-97, PRM-50-98, PRM-50-100, PRM-50-101, 
and PRM-50-102; NRC-2011-0069, NRC-2011-0189, and NRC-2014-0240]
RIN 3150-AJ49


Mitigation of Beyond-Design-Basis Events

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its 
regulations that establish regulatory requirements for nuclear power 
reactor applicants and licensees to mitigate beyond-design-basis 
events. The NRC is making generically applicable the requirements in 
NRC orders for mitigation of beyond-design-basis events and for 
reliable spent fuel pool instrumentation (SFPI). This rule also 
addresses a number of petitions for rulemaking (PRMs) submitted to the 
NRC following the March 2011 Fukushima Dai-ichi event. This rulemaking 
is applicable to power reactor licensees and power reactor license 
applicants.

DATES: This final rule is effective on September 9, 2019.

ADDRESSES: Please refer to Docket ID NRC-2014-0240 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 Website: Go to http://www.regulations.gov and search for Docket ID NRC-2014-0240. 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.
     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]. For 
the convenience of the reader, instructions about obtaining materials 
referenced in this document are provided in the ``Availability of 
Documents'' section.
     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: Timothy Reed, Office of Nuclear 
Reactor Regulation, telephone: 301-415-1462, email: 
[email protected]; or Eric Bowman, Office of Nuclear Reactor 
Regulation, telephone: 301-415-2963, email: [email protected]. Both 
are staff of the U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001.

SUPPLEMENTARY INFORMATION 

Executive Summary

A. Need for the Regulatory Action

    The NRC is amending its regulations to establish regulatory 
requirements for nuclear power reactor applicants and licensees to 
mitigate beyond-design-basis events. This rule makes NRC Order EA-12-
049, ``Order Modifying Licenses With Regard to Requirements for 
Mitigation Strategies for Beyond-Design-Basis External Events'' 
(Mitigation Strategies Order), and Order EA-12-051, ``Order Modifying 
Licenses with Regard to Reliable Spent Fuel Pool Instrumentation'' 
(SFPI Order), generically applicable; establishes regulatory 
requirements for documentation of changes; and addresses a number of 
PRMs submitted to the NRC following the March 2011 Fukushima Dai-ichi 
event. This rule is applicable to power reactor licensees and power 
reactor license applicants. The NRC conducted this rulemaking to amend 
the regulations to reflect requirements imposed on current licensees by 
order and to reflect the lessons learned from the Fukushima Dai-ichi 
event.

B. Major Provisions

    Major provisions of this rule include the following amendments or 
additions to parts 50 and 52 of title 10 of the Code of Federal 
Regulations (10 CFR):
     Revise the 10 CFR part 50 ``Contents of applications; 
technical information'' and 10 CFR part 52 ``Contents of applications; 
additional technical information'' requirements to reflect the 
additional information that would be required for applications.
     Add Sec.  50.155, which contains beyond-design-basis 
mitigation requirements that make the Mitigation Strategies and SFPI 
Orders generically applicable.

C. Costs and Benefits

    The NRC prepared a regulatory analysis to determine the expected 
costs and benefits of this Mitigation of Beyond-Design-Basis Events 
(MBDBE) final rule (MBDBE rule). The analysis examines the costs and 
benefits of the rule requirements relative to the baseline case (i.e., 
no action alternative, which equates to implementation of the 
Mitigation Strategies and SFPI Orders without this final rule being 
issued). The final rule encompasses provisions that are either 
completed or being implemented at this time under the Mitigation 
Strategies Order and the SFPI Order. Because the NRC uses a no action 
baseline to estimate incremental costs, the total cost of the rule is 
estimated to be approximately $110,000 per site. The net present value 
of these costs per site is approximately $110,000 using a 7 percent 
discount rate. This incremental cost is primarily attributed to 
licensees' efforts to review the rule against the previous 
implementation of the Mitigation Strategies and SFPI Orders and make 
any additional changes to plant programs and procedures. The final rule 
is expected to result in a total one-time cost of approximately $7.2 
million. The net present value of these costs is approximately $7.2 
million using a 7 percent discount rate even though the MBDBE 
requirements have largely been implemented prior to the effective date 
of the rule under the requirements in the Mitigation Strategies Order 
and the SFPI Order.
    Based on the NRC's assessment of the costs and benefits of the 
rule, the NRC has concluded that the MBDBE rule is justified. For more 
information, please see the regulatory analysis.
    As required by Sec.  50.109, ``Backfitting,'' (the Backfit Rule) 
and Sec.  52.98, ``Finality of combined licenses; information 
requests,'' a backfitting and issue finality assessment was prepared. 
This document presents the reasons why the MBDBE rule provisions, with 
one exception, do not constitute backfits and are consistent with issue 
finality. The one instance of inconsistency with the issue finality 
provisions of Sec.  52.98 is due to a correction to a drafting error in 
the former Sec.  50.54(hh)(3), renumbered in this rulemaking as Sec.  
50.54(hh)(2), which was intended to remove the requirements of Sec.  
50.54(hh) upon the submittal of the certifications of permanent 
cessation of operation and permanent removal of fuel from the reactor 
vessel. This rulemaking corrects the citation of the requirements for 
these certifications from Sec.  52.110(a)(1) to Sec.  52.110(a) in 
order to include both the certification of permanent cessation of

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operations and the certification of permanent removal of fuel from the 
reactor vessel. Further details are provided in Section X, ``Backing 
and Issue Finality,'' of this document.

Table of Contents

I. Background
    A. Fukushima Dai-ichi
    B. Near-Term Task Force
    C. Implementation of the Near-Term Task Force Recommendations
    D. Consolidation of Regulatory Efforts
II. Opportunities for Public Involvement
III. Petitions for Rulemaking
IV. Public Comments and Changes to the Rule
V. Discussion
VI. Section-by-Section Analysis
VII. Regulatory Flexibility Certification
VIII. Availability of Regulatory Analysis
IX. Availability of Guidance
X. Backfitting and Issue Finality
XI. Cumulative Effects of Regulation
XII. Plain Writing
XIII. Environmental Assessment and Finding of No Significant 
Environmental Impact
XIV. Paperwork Reduction Act
XV. Congressional Review Act
XVI. Criminal Penalties
XVII. Compatibility of Agreement State Regulations
XVIII. Voluntary Consensus Standards
XIX. Availability of Documents

I. Background

A. Fukushima Dai-ichi

    On March 11, 2011, the Great East Japan Earthquake, rated a 
magnitude 9.0, occurred off the coast of Honshu Island, resulting in 
the automatic shutdown of 11 nuclear power plants (NPPs) at four sites 
along the northeast coast of Japan, including three of six reactors at 
the Fukushima Dai-ichi NPP (the three remaining plants were shutdown 
for maintenance). The earthquake caused a large tsunami that is 
estimated to have exceeded 14 meters in height at the Fukushima Dai-
ichi NPP. The earthquake and tsunami produced widespread devastation 
across northeastern Japan, significantly impacting the infrastructure 
and industry in the northeastern coastal areas of Japan. The earthquake 
and tsunami disabled the majority of the external and internal 
electrical power systems at the Fukushima Dai-ichi NPP, creating a 
significant challenge for operators in responding to the event. In 
addition, the combination of severe events challenged the 
implementation of emergency plans and procedures.

B. Near-Term Task Force

    The NRC Chairman's tasking memorandum, COMGBJ-11-0002, ``NRC 
Actions Following the Events in Japan,'' established a senior-level 
task force, referred to as the ``Near-Term Task Force'' (NTTF), to 
review the NRC's regulations and processes to determine if the agency 
should make improvements to the NRC's regulatory system in light of the 
events in Japan. On July 12, 2011, the NRC staff provided the report of 
the NTTF (NTTF Report) to the Commission as an enclosure to SECY-11-
0093, ``Near-Term Report and Recommendations for Agency Actions 
Following the Events in Japan.'' The NTTF concluded that continued U.S. 
plant operation and NRC licensing activities present no imminent risk 
to public health and safety. While the NTTF also concluded that the 
current regulatory system has served the NRC and the public well, it 
found that enhancements to safety and emergency preparedness are 
warranted and made 12 general recommendations for Commission 
consideration. In examining the Fukushima Dai-ichi event for insights 
for reactors in the United States, the NTTF addressed protecting 
against accidents resulting from natural phenomena, mitigating the 
consequences of such accidents, and ensuring emergency preparedness. 
The NTTF found that the Commission's longstanding defense-in-depth 
philosophy, supported and modified as necessary by state-of-the-art 
probabilistic risk assessment techniques, should continue to serve as 
the primary organizing principle of its regulatory framework. The NTTF 
concluded that the application of the defense-in-depth philosophy could 
be strengthened by including explicit requirements for beyond-design-
basis events.

C. Implementation of the Near-Term Task Force Recommendations

    In response to the NTTF Report, the Commission directed the NRC 
staff on August 19, 2011, in Staff Requirements Memorandum (SRM)--SECY-
11-0093, to engage with stakeholders to review and assess the NTTF 
recommendations in a comprehensive and holistic manner and to provide 
the Commission with fully-informed options and recommendations. The NRC 
staff provided the Commission with recommendations for near-term action 
in SECY-11-0124, ``Recommended Actions To Be Taken without Delay from 
the Near-Term Task Force Report,'' dated September 9, 2011. The 
suggested near-term actions addressed several NTTF recommendations 
associated with this rulemaking, including NTTF recommendations 4, 8, 
and 9.3. In SRM-SECY-11-0124, dated October 18, 2011, the Commission 
directed the NRC staff to, among other things: Initiate a rulemaking to 
address NTTF recommendation 4, station blackout (SBO) regulatory 
actions, as an advance notice of proposed rulemaking (ANPR); designate 
the SBO rulemaking associated with NTTF recommendation 4 as a high 
priority rulemaking; craft recommendations that continue to realize the 
strengths of a performance-based system as a guiding principle; and 
consider approaches that are flexible and able to accommodate a diverse 
range of circumstances and conditions. As discussed more fully in later 
portions of this document, the regulatory actions associated with NTTF 
recommendation 4 evolved substantially from this early Commission 
direction and included issuance of Order EA-12-049, ``Order Modifying 
Licenses With Regard to Requirements for Mitigation Strategies for 
Beyond-Design-Basis External Events'' (Mitigation Strategies Order), 
that, as implemented, ultimately addressed all of NTTF recommendation 4 
as well as other recommendations.
    In SECY-11-0137, ``Prioritization of Recommended Actions To Be 
Taken in Response to Fukushima Lessons Learned,'' dated October 3, 
2011, the NRC staff, based on its assessment of the NTTF 
recommendations, proposed to the Commission a three-tiered 
prioritization for implementing regulatory actions stemming from the 
NTTF recommendations. The Tier 1 recommendations were those actions 
having the greatest safety benefit that could be implemented without 
unnecessary delay. The Tier 2 recommendations were those actions that 
needed further technical assessment or critical skill sets to 
implement, and the Tier 3 recommendations were longer-term actions that 
depended on the completion of a shorter-term action or needed 
additional study to support a regulatory action. On December 15, 2011, 
the Commission approved the staff's recommended prioritization in SRM-
SECY-11-0137.
    The NTTF recommendations that provide the initial regulatory 
impetus for this rulemaking include the following:
     NTTF recommendation 4: Strengthen SBO mitigation 
capability at all operating and new reactors for design-basis and 
beyond-design-basis external events;
     NTTF recommendation 7: Enhance spent fuel pool (SFP) 
makeup capability and instrumentation for the SFP;
     NTTF recommendation 8: Strengthen and integrate onsite 
emergency response capabilities such as emergency operating procedures 
(EOPs), severe accident management guidelines

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(SAMGs), and extensive damage mitigation guidelines (EDMGs);
     NTTF recommendation 9: Require that facility emergency 
plans address staffing, dose assessment capability, communications, 
training and exercises, and equipment and facilities for prolonged SBO, 
multi-unit events, or both;
     NTTF recommendation 10: Pursue additional emergency 
protection topics related to multi-unit events and prolonged SBO, 
including command and control structure and the qualifications of 
decision makers; and
     NTTF recommendation 11: Pursue emergency management topics 
related to decision making, radiation monitoring, and public education, 
including the ability to deliver equipment to the site with degraded 
offsite infrastructure.
    In response to input received from stakeholders, the NRC 
accelerated the schedule originally proposed in SECY-11-0137. On 
February 17, 2012, the NRC staff recommended in SECY-12-0025, 
``Proposed Orders and Requests for Information in Response to Lessons 
Learned From Japan's March 11, 2011, Great T[omacr]hoku Earthquake and 
Tsunami,'' that the Commission issue orders for items that warranted 
generic safety improvements and requests for information where further 
consideration of the need for safety improvements would be necessary on 
a site-specific basis.
    To address Tier 1 NTTF recommendation 4, on March 12, 2012, the NRC 
issued the Mitigation Strategies Order, requiring all U.S. nuclear 
power plant licensees to have additional capability to mitigate beyond-
design-basis external events through the implementation of strategies 
and guidelines that enable them to cope without their permanently 
installed alternating current (ac) electrical power sources for an 
indefinite period of time. These strategies would provide additional 
capability to maintain or restore reactor core and spent fuel cooling, 
as well as protect the reactor containment. This order also addressed: 
Portions of NTTF recommendation 9 to require that facility emergency 
plans address prolonged SBOs and multi-unit events; portions of NTTF 
recommendation 10 to pursue additional emergency protection topics 
related to multi-unit events and prolonged SBO; and portions of NTTF 
recommendation 11 to pursue emergency procedure topics related to 
decision making, radiation monitoring, and public education.
    To address Tier 1 NTTF recommendation 7, on March 12, 2012, the NRC 
issued Order EA-12-051, ``Order Modifying Licenses with Regard to 
Reliable Spent Fuel Pool Instrumentation'' (SFPI Order), requiring all 
U.S. nuclear power plant licensees to have a reliable indication of the 
water level in associated SFPs.
    To address Tier 1 NTTF recommendation 8, the NRC issued an ANPR (77 
FR 23161) on April 18, 2012, to engage stakeholders in rulemaking 
activities associated with the methodology for the integration of 
onsite emergency response processes, procedures, training and 
exercises.
    The requests for information were issued under Sec.  50.54(f) on 
March 12, 2012, to address elements of NTTF recommendation 2, 
concerning external hazard walkdowns and reevaluations, and NTTF 
recommendation 9, concerning staffing and communications.

D. Consolidation of Regulatory Efforts

    While developing the rulemakings discussed in the previous section, 
the NRC staff recognized that efficiencies could be gained by 
consolidating the rulemaking efforts due to the inter-relationships 
among the proposed changes. The NRC staff recommended to the Commission 
that rulemaking activities to address NTTF recommendations 4, 7, 8, 
10.2, and 11.1, as well as portions of NTTF recommendation 9, be 
consolidated. (See COMSECY-13-0002, ``Consolidation of Japan Lessons 
Learned Near-Term Task Force Recommendations 4 and 7 Regulatory 
Activities,'' dated January 25, 2013; COMSECY-13-0010, ``Schedule and 
Plans for Tier 2 Order on Emergency Preparedness for Japan Lessons 
Learned,'' dated March 27, 2013; and SECY-14-0046, ``Fifth 6-Month 
Status Update on Response to Lessons Learned From Japan's March 11, 
2011, Great T[omacr]hoku Earthquake and Subsequent Tsunami,'' dated 
April 17, 2014.) Section I.C, ``Implementation of the Near-Term Task 
Force Recommendations,'' of this document contains a more complete 
discussion of the scope of NTTF recommendations addressed by the MBDBE 
rule. The Commission approved these consolidations in the associated 
SRMs. Consequently, the MBDBE rule combines two NRC activities for 
which documents have been published in the Federal Register--Onsite 
Emergency Response Capabilities (RIN 3150-AJ11; NRC-2012-0031) and 
Station Blackout Mitigation Strategies (RIN 3150-AJ08; NRC-2011-0299). 
The MBDBE rule identification number and regulations.gov docket number 
are RIN 3150-AJ49 and NRC-2014-0240, respectively. These consolidations 
were intended to meet the following objectives:
    1. Align the regulatory framework with ongoing industry 
implementation efforts to produce a more coherent and understandable 
regulatory framework. Given the complexity of these requirements and 
their associated implementation, the NRC concluded that this was an 
important objective for the regulatory framework.
    2. Reduce the potential for inconsistencies and complexities 
between the related rulemaking actions that could occur if the efforts 
remained as separate rulemakings.
    3. Facilitate better understanding of the requirements for both 
internal and external stakeholders, and thereby lessen the impact on 
internal and external stakeholders who would otherwise need to review 
and comment on multiple rulemakings while cross-referencing both 
proposed rules and sets of guidance documents.

II. Opportunities for Public Involvement

    As discussed in Section I.D, ``Consolidation of Regulatory 
Efforts,'' of this document, the MBDBE rule is a consolidation of 
several regulatory activities, including two previous rulemaking 
efforts: The Station Blackout Mitigation Strategies rulemaking and the 
Onsite Emergency Response Capabilities rulemaking. Both of these 
rulemaking efforts offered extensive external stakeholder involvement 
opportunities, including public meetings, ANPRs issued for public 
comment, and draft regulatory basis documents issued for public 
comment. The major opportunities for stakeholder involvement were as 
follows:
    1. Station Blackout ANPR (77 FR 16175; March 20, 2012);
    2. Onsite Emergency Response Capabilities ANPR (77 FR 23161; April 
18, 2012);
    3. Station Blackout Mitigation Strategies draft regulatory basis 
and draft rule concepts (78 FR 21275; April 10, 2013); and
    4. Onsite Emergency Response Capabilities draft regulatory basis 
(78 FR 1154; January 8, 2013).
    The final Station Blackout Mitigation Strategies regulatory basis 
was issued on July 23, 2013 (78 FR 44035), and the final Onsite 
Emergency Response Capabilities regulatory basis, with preliminary 
proposed rule language, was issued on October 25, 2013 (78 FR 63901). 
The NRC described in each final regulatory basis document how it 
considered stakeholder feedback in

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developing the respective final regulatory basis, including 
consideration of ANPR comments and draft regulatory basis document 
comments. Section 5 of the Station Blackout Mitigation Strategies 
regulatory basis document includes a discussion of stakeholder feedback 
used to develop the final regulatory basis. Appendix B to the Onsite 
Emergency Response Capabilities regulatory basis includes a discussion 
of stakeholder feedback used to develop that final regulatory basis.
    The public has had multiple opportunities to engage in these 
regulatory efforts. Most noteworthy were the following:
    1. Preliminary proposed rule language for Onsite Emergency Response 
Capabilities made available to the public on November 15, 2013 (78 FR 
68774).
    2. Consolidated rulemaking proof of concept language made available 
to the public on February 21, 2014.
    3. Preliminary proposed rule language for MBDBE rulemaking made 
available to the public on August 15, 2014.
    4. Preliminary proposed rule language for MBDBE rulemaking made 
available to the public on November 13, 2014, and December 8, 2014, to 
support public discussion with the Advisory Committee on Reactor 
Safeguards (ACRS).
    The NRC issued the MBDBE proposed rule on November 13, 2015 (80 FR 
70609), for a 90-day public comment period. The comment period closed 
on February 11, 2016. During the public comment period, on January 21, 
2016, the NRC held a public meeting to provide external stakeholders 
with a better understanding of the proposed requirements and thereby 
facilitate more informed feedback. Twenty sets of comments were 
received in response to the proposed rule. The NRC's consideration of 
these comments is addressed in Section IV, ``Public Comments and 
Changes to the Rule,'' of this document. The NRC staff has had numerous 
interactions with the ACRS, and in all cases these were public 
meetings, including the following:
    1. The ACRS Plant Operations and Fire Protection subcommittee met 
on February 6, 2013, to discuss the Onsite Emergency Response 
Capabilities regulatory basis.
    2. The ACRS Regulatory Policies and Practices subcommittee met on 
December 5, 2013, and April 23, 2013, to discuss the Station Blackout 
Mitigation Strategies regulatory basis.
    3. The ACRS full committee met on June 5, 2013, to discuss the 
Station Blackout Mitigation Strategies regulatory basis.
    4. The ACRS Fukushima subcommittee met on June 23, 2014, to discuss 
consolidation of Station Blackout Mitigation Strategies and Onsite 
Emergency Response Capabilities rulemakings.
    5. The ACRS full committee met on July 10, 2014, to discuss 
consolidation of Station Blackout Mitigation Strategies and Onsite 
Emergency Response Capabilities rulemakings.
    6. The ACRS Fukushima subcommittee met on November 21, 2014, to 
discuss preliminary proposed MBDBE rulemaking language.
    7. The ACRS full committee met on December 4, 2014, to discuss 
preliminary proposed MBDBE rulemaking language.
    8. The ACRS Fukushima subcommittee met on March 19, 2015, to 
discuss the proposed MBDBE rulemaking package.
    9. The ACRS full committee met on April 9, 2015, to discuss the 
proposed MBDBE rulemaking package.
    10. The ACRS full committee met on June 10, 2015, to receive a 
status update on the efforts to develop supporting guidance to 
implement the MBDBE rule.
    11. The ACRS Fukushima subcommittee met on April 22, 2016, to 
receive an update on the public comments provided on the proposed MBDBE 
rule.
    12. The ACRS Fukushima subcommittee met on August 17, 2016, to 
discuss the path forward on the substantive public comments provided on 
the MBDBE rule.
    13. The ACRS Fukushima subcommittee met on October 19, 2016, to 
discuss the final MBDBE rule guidance.
    14. The ACRS Fukushima subcommittee met on November 16, 2016, to 
discuss the final MBDBE rule package.
    15. The ACRS full committee met on November 30, 2016, to discuss 
the final MBDBE rule package.
    The NRC held a public meeting on November 10, 2016, to discuss 
implementation issues associated with the MBDBE final rule as required 
by its cumulative effects of regulation (CER) process.

III. Petitions for Rulemaking

    During development of this rule, the NRC gave consideration to the 
issues raised in six PRMs submitted to the NRC, five from the Natural 
Resources Defense Council, Inc. (NRDC) (PRM-50-97, PRM-50-98, PRM-50-
100, PRM-50-101, and PRM-50-102) and one submitted by Mr. Thomas Popik 
(PRM-50-96). The NRDC petitions were dated July 26, 2011, and docketed 
by the NRC on July 28, 2011. The NRC published a notice of receipt in 
the Federal Register on September 20, 2011 (76 FR 58165), for the NRDC 
petitions, and did not ask for public comment at that time. The 
petitions filed by the NRDC use the NTTF Report as the sole basis for 
the PRMs. The NTTF recommendations that the NRDC PRMs rely upon are: 
4.1, 7.5, 8.4, 9.1, and 9.2. This rule addresses each of these 
recommendations, and therefore it resolves the issues raised by the 
NRDC PRMs. Accordingly, the NRC's issuance of the MBDBE rule completes 
all planned regulatory activities for the NRDC petitions. The PRM-50-
96, filed by Mr. Popik, is still under consideration by the NRC and is 
not fully addressed at this time, as discussed in greater detail below.
    In PRM-50-97 (NRC-2011-0189), the NRDC requested emergency 
preparedness enhancements for prolonged SBOs in the areas of 
communications ability, Emergency Response Data System (ERDS) 
capability, training and exercises, and equipment and facilities (NTTF 
recommendation 9.2). The NRC considered the issues raised in this PRM 
as part of the MBDBE rulemaking. The NRC's consideration of the issues 
raised in PRM-50-97 are reflected in the provisions in Sec.  50.155(d) 
concerning training. The NRC concludes that consideration of the PRM 
issues and the underlying NTTF Report recommendations, as discussed in 
this document, addresses PRM-50-97. This completes the NRC's 
consideration of PRM-50-97.
    In PRM-50-98 (NRC-2011-0189), the NRDC requested emergency 
preparedness enhancements for multi-unit events in the areas of 
personnel staffing, dose assessment capability, training and exercises, 
and equipment and facilities (NTTF recommendation 9.1). The NRC 
considered the issues raised in this PRM as part of the MBDBE 
rulemaking. The NRC's consideration of the issues raised in PRM-50-98 
are reflected in the provisions in Sec.  50.155(b)(1) concerning 
development, implementation and maintenance of strategies and 
guidelines, which subsumes staffing, and Sec.  50.155(d) concerning 
training, which subsumes drills or exercises. The NRC concludes that 
consideration of the PRM issues and the underlying NTTF Report 
recommendations, as discussed in this document, addresses PRM-50-98. 
This completes the NRC's consideration of PRM-50-98.
    In PRM-50-100, the NRDC requested enhancement of SFP makeup 
capability

[[Page 39688]]

and instrumentation for the SFP (NTTF recommendation 7.5). The NRC 
determined that the issues raised in this PRM should be considered in 
the NRC's rulemaking process, and the NRC published a document in the 
Federal Register with this determination on July 23, 2013 (78 FR 
44034). The NRC's consideration of the issues raised in PRM-50-100 
within the MBDBE rulemaking are reflected in the provisions in Sec.  
50.155(b)(1) concerning mitigation strategies for maintaining or 
restoring SFP cooling capabilities and Sec.  50.155(e) concerning SFP 
monitoring. The NRC concludes that consideration of the PRM issues and 
the underlying NTTF Report recommendations, as discussed in this 
document, addresses PRM-50-100. This completes the NRC's consideration 
of PRM-50-100.
    In PRM-50-101, the NRDC requested that Sec.  50.63, ``Loss of all 
alternating current power,'' be revised to establish a minimum coping 
time of 8 hours for a loss of all ac power; establish the equipment, 
procedures, and training necessary to cope with an extended loss of ac 
power (72 hours) for core and SFP cooling and for reactor coolant 
system and primary containment integrity as needed; and establish 
requirements to preplan/prestage offsite resources to support 
uninterrupted core and SFP cooling and reactor coolant system and 
containment integrity as needed (NTTF recommendation 4.1). The NRC 
determined that the issues raised in this PRM should be considered in 
the NRC's rulemaking process, and the NRC published a document in the 
Federal Register with this determination on March 21, 2012 (77 FR 
16483). The NRC's consideration of the issues raised in PRM-50-101 
within the MBDBE rulemaking is reflected in the provisions in Sec.  
50.155(b)(1) concerning mitigation strategies for maintaining or 
restoring core cooling, containment, and SFP cooling capabilities; 
Sec.  50.155(c) concerning equipment; Sec.  50.155(d) concerning 
training; and Sec.  50.155(f) concerning documentation of changes. The 
NRC concludes that consideration of the PRM issues and the underlying 
NTTF Report recommendations, as discussed in this document, addresses 
PRM-50-101. This completes the NRC's consideration of PRM-50-101.
    In PRM-50-102, the NRDC requested more realistic, hands-on training 
and exercises on SAMGs and EDMGs for licensee staff expected to 
implement those guideline sets and make decisions during emergencies 
(NTTF recommendation 8.4). The NRC determined that the issues raised in 
this PRM should be considered in the NRC's rulemaking process, and the 
NRC published a document in the Federal Register with this 
determination on April 27, 2012 (77 FR 25104). The NRC's consideration 
of the issues raised in PRM-50-102 within the MBDBE rulemaking are 
reflected in the provisions in Sec.  50.155(d) concerning training. The 
NRC concludes that consideration of the PRM issues and the underlying 
NTTF Report recommendations, as discussed in this document, addresses 
PRM-50-102. This completes the NRC's consideration of PRM-50-102.
    In PRM-50-96, Mr. Thomas Popik requested that the NRC amend its 
regulations to require facilities licensed by the NRC to assure long-
term cooling and unattended water makeup of SFPs in the event of 
geomagnetic disturbances caused by solar storms resulting in long-term 
loss of power. The NRC determined that the issues raised in this PRM 
should be considered in the NRC's rulemaking process, and the NRC 
published a document in the Federal Register with this determination on 
December 18, 2012 (77 FR 74788). In that Federal Register document, the 
NRC also closed the docket for PRM-50-96. Specifically, the NRC 
indicated that it would monitor the progress of the MBDBE rule to 
determine whether the requirements established therein would address, 
in whole or in part, the issues raised in the PRM. In this context, the 
requirements in Sec.  50.155(b)(1) and (c) and the associated 
regulatory guidance, address, in part, the issues raised by the 
petitioner because these regulations require licensees to establish 
offsite assistance to support maintenance of the key functions 
(including both reactor and SFP cooling) following an extended loss of 
ac power, which has been postulated as a consequence of geomagnetic 
disturbances.
    The other issues raised in PRM-50-96 related to geomagnetic 
disturbances remain under NRC consideration. The issue of geomagnetic 
disturbances, as it impacts transmission system protection, is being 
addressed at a national level by the White House's Office of Science 
and Technology Policy (OSTP). The OSTP has been meeting with 
representatives from several different Federal agencies, including the 
NRC, over the last several years to develop the National Space Weather 
Strategy (NSWS) and the National Space Weather Action Plan (NSWAP). On 
October 13, 2016, President Obama issued Executive Order 13744, 
``Coordinating Efforts To Prepare the Nation for Space Weather Events'' 
(81 FR 71573; October 18, 2016), requiring agencies to begin to 
implement the NSWAP. The Department of Homeland Security (DHS) is the 
sector-specific agency with lead responsibility for nuclear reactors, 
materials, and waste; therefore, the NRC is working with DHS on 
delineating the NRC authorities associated with the NSWAP.
    Following completion of the MBDBE rulemaking, the NRC will address 
PRM-50-96 giving consideration to the NSWAP, the MBDBE rule, 
requirements established by the Federal Energy Regulatory Commission to 
address geomagnetic disturbances (81 FR 67120; September 30, 2016), and 
the additional comments that were submitted on this rulemaking that 
further inform the consideration of geomagnetic disturbances.

IV. Public Comments and Changes to the Rule

A. Overview of Public Comments and Removal of Requirements That Would 
Constitute Backfitting

    During the public comment period for the MBDBE proposed rule and 
draft guidance, the NRC received 20 comment submissions containing 185 
individual comments. In developing the final rule and supporting 
guidance, the NRC considered all the comments provided in response to 
the MBDBE proposed rule and draft guidance. The detailed consideration 
of the public comments is contained in a separate document that is 
referenced in Section XIX, ``Availability of Documents,'' of this 
document. While the NRC received many comments that enabled it to 
significantly improve the MBDBE rule and its supporting statement of 
considerations, this section focuses on the subset of those comments 
that directly resulted in changes to the MBDBE rule requirements or 
changes to the MBDBE rule supporting statement of considerations. This 
section also discusses noteworthy feedback received in response to 
specific questions in the Federal Register notice for the proposed rule 
and through the CER questions.
    In addition, the NRC reexamined the potential requirements that had 
been included in the proposed MBDBE rule, particularly those that had 
been previously addressed at the regulatory guidance level regarding 
the Mitigation Strategies and SFPI Orders, in light of the requirements 
of Sec. Sec.  50.109 and 52.98. Under Sec.  50.109(a)(3), when the 
exceptions of Sec.  50.109(a)(4) (in this case the exception to ensure 
adequate protection) do not apply, the NRC may require backfitting of a 
facility when it determines, based upon an analysis as described in 
Sec.  50.109(c), that there is a substantial increase in the overall 
protection of the public health and

[[Page 39689]]

safety or the common defense and security to be derived from the 
backfit and that the direct and indirect costs of implementation for 
that facility are justified in view of the increased protection.
    For items that were addressed at the regulatory guidance level, the 
NRC considered first whether inclusion of a requirement on the subject 
in the final rule would be necessary to ensure that there is adequate 
protection of public health and safety. In each case, the NRC concluded 
that the requirements imposed by the Orders were sufficient to provide 
reasonable assurance of adequate protection of public health and safety 
and no new information was developed with regard to the ``guidance'' 
items that would modify this conclusion. The NRC then considered 
whether there would be a substantial increase in the overall protection 
of the public health and safety or the common defense and security that 
would result from including requirements in the final rule for those 
items rather than continuing the practice of addressing them in the 
regulatory guidance as had been done for the orders. As discussed in 
the remainder of this section, the NRC concluded in general that, while 
there would be some benefit in the form of clarity as to what had been 
found acceptable for compliance with the orders being made generically 
applicable in this rulemaking, the recharacterization of those items 
from regulatory guidance to requirements would not constitute a 
substantial increase in the overall protection of the public health and 
safety or the common defense and security.
    The NRC also took into consideration whether the items that had 
been addressed in the regulatory guidance were supporting elements to 
the overarching requirements for a capability to provide protection of 
public health and safety or whether the items directly affect public 
health and safety. For example, staffing and communications would be 
considered supporting elements for the overarching requirement to 
develop, implement, and maintain the mitigation strategies for beyond-
design-basis external events, which contributes to the protection of 
public health and safety. Because of this, the NRC concludes that a 
separate requirement for the staffing and communications elements would 
not be needed, but could constrain an existing licensee or an applicant 
for a new licensee from developing innovative mitigation strategies 
that do not rely on staffing or communications. This follows the 
Commission's direction in SRM-SECY-11-0124 that

[i]n order to be effective, approaches should be flexible and able 
to accommodate a diverse range of circumstances and conditions. In 
consideration of events beyond the design basis, a regulatory 
approach founded on performance-based requirements will foster 
development of the most effective and efficient, site-specific 
mitigation strategies, similar to how the agency approached the 
approval of licensee response strategies for the ``loss of large 
area'' event under its B.5.b program.

    A discussion of the specific consideration of these items is 
provided in the remainder of this section.

B. Removal of Requirements To Address Seismic and Flooding Reevaluated 
Hazards

    The NRC received comments stating that the need for a licensee's 
strategies and guidelines to be capable of execution in the context of 
the reevaluated flooding and seismic hazards should be addressed in 
Sec.  50.155(b) rather than Sec.  50.155(c)(2). The commenters noted 
that addressing the effects of reevaluated hazards on the mitigation 
strategies in Sec.  50.155(b) rather than Sec.  50.155(c)(2) provides 
greater flexibility regarding how a licensee can address the hazard 
effects through changes to mitigation strategies and guidelines, 
including changes to equipment protection. Additionally, commenters 
indicated that the regulation should allow for alternative approaches 
that would not necessarily address the damage state assumed for Sec.  
50.155(b)(1) nor necessarily assume the same success criteria and that 
should also allow for the use of risk-informed approaches.
    The NRC agrees in part with these comments and concludes that 
including a requirement to address the effects of reevaluated hazards 
on the mitigation strategies in the rule would not be consistent with 
Sec. Sec.  50.109 and 52.98 and could unduly limit the flexibility the 
commenters suggested should be in the rule.
    The mitigation strategies under Sec.  50.155(b)(1) originated in 
the Mitigation Strategies Order and were justified as necessary to 
provide adequate protection of public health and safety in light of the 
uncertainties associated with beyond-design-basis external events and 
the possibility that extreme natural phenomena could challenge the 
prevention, mitigation, and emergency preparedness defense-in-depth 
layers. In COMSECY-14-0037, ``Integration of Mitigating Strategies for 
Beyond-Design-Basis External Events and The Reevaluation of Flooding 
Hazards,'' dated November 21, 2014, the NRC staff recognized the 
interaction between the development and implementation of mitigation 
strategies for beyond-design-basis external events under the Mitigation 
Strategies Order and the reevaluation of flooding hazard levels using 
present-day regulatory guidance and methodologies from flooding 
evaluations used for early site permits and combined license reviews 
under NTTF Recommendation 2.1. In its SRM dated March 30, 2015, ``Staff 
Requirements--Integration of Mitigating Strategies for Beyond-Design-
Basis External Events and the Reevaluation of Flooding Hazards,'' the 
Commission addressed this interaction by, in part, directing the staff 
to evaluate potential changes to the guidance for the integrated 
assessment of the effects of the flooding hazards on operating reactors 
and to introduce more realism for the purpose of identifying potential 
safety enhancements for operating reactors.
    The changes to the regulatory decision-making process directed in 
the SRM to COMSECY-14-0037 reflected the recognition that the present-
day regulatory guidance and methodologies are intended to identify a 
necessary level of protection from flooding that would meet the 
principal design criterion (PDC) of an application for an operating 
license or combined license corresponding to Criterion 2, ``Design 
bases for protection against natural phenomena,'' of appendix A to 10 
CFR part 50, ``General Design Criteria for Nuclear Power Plants.'' That 
criterion requires applicants to design [s]tructures, systems and 
components (SSCs) important to safety to withstand the effects of 
natural phenomena such as earthquakes and floods without loss of 
capability to perform their safety functions. The criterion also 
requires that the design bases for these SSCs reflect, among other 
factors, appropriate consideration of the most severe of the natural 
phenomena that have been historically reported for the site and 
surrounding area, with sufficient margin for the limited accuracy, 
quantity, and period of time in which the historical data have been 
accumulated. Historically, the margin specified in this criterion has 
been achieved through the incorporation of conservatisms in the 
analyses used to determine the flooding design bases for power reactors 
rather than by the use of a minimum margin above the results of the 
analyses. The existence of these conservatisms was addressed by the 
Commission in its direction in the SRM to reduce any unnecessary 
conservatisms and identify

[[Page 39690]]

any areas with insufficient conservatisms. In keeping with that 
determination, the NRC concludes that adequate protection of public 
health and safety does not require the operating power reactor 
licensees to provide protection beyond those levels determined under 
Criterion 2 of appendix A to 10 CFR part 50 and that any backfitting in 
this area should be accomplished on an individualized basis under the 
Backfit Rule. The consideration of whether individual operating 
licenses for power reactor licensees should be modified, suspended, or 
revoked is being accomplished under the NRC efforts associated with the 
request for information issued under Sec.  50.54(f) on March 12, 2012.
    Therefore, the NRC disagrees with the recommendation of these 
comments that the reevaluated hazards levels be included in Sec.  
50.155(b) because that treatment would be inconsistent with the Backfit 
Rule and the issue finality provisions of 10 CFR part 52, but agrees 
that the reevaluated hazards should not be included in Sec.  50.155(c).
    The final rule is revised to remove reference to the reevaluated 
hazards, allowing licensees to address them within their mitigating 
strategies in a flexible and appropriate manner. Consideration of the 
treatment of reevaluated hazards resulting from the March 12, 2012, 
request for information issued under Sec.  50.54(f) is nearing 
completion under a separate NRC process.

C. Protection of Equipment

    The NRC received comments that indicated a lack of clarity 
associated with the proposed requirements for ``reasonable protection'' 
of the equipment in Sec.  50.155(b)(1) from the effects of natural 
phenomena. The commenters indicated that there appeared to be conflict 
regarding the application of the reasonable protection requirement to 
portable ``FLEX equipment'' as defined in NEI 12-06, ``Diverse and 
Flexible Coping Strategies (FLEX) Implementation Guide,'' versus 
application to installed SSCs relied on for the response to beyond-
design-basis external events. These are typically safety-related SSCs 
relied on in the initial response to a beyond-design-basis external 
event as well as design-basis events, that as a result of their 
credited use for such events, have both beyond-design-basis and safety-
related functions. Comments suggested that the proposed approach for 
``reasonable protection'' was too limiting because it appeared to 
restrict licensees to applying ``reasonable protection'' only to 
equipment itself and not allow licensees the flexibility to implement 
broader changes in protection and/or changes to strategies.
    The NRC agrees that the proposed requirements for reasonable 
protection need to be clarified and revised to provide greater 
flexibility. First, the reasonable protection requirements in the MBDBE 
rule are clarified in part due to removal of the reevaluated hazards 
from Sec.  50.155. Removal of the reevaluated hazards requirement 
enabled the NRC to directly align the reasonable protection standard, 
in terms of the magnitude of natural phenomena that must be considered 
with the current external event design basis. Additionally, Sec.  
50.155(c)(2) was revised to characterize more specifically the effects 
of natural phenomena from which the equipment must be reasonably 
protected as ``equivalent in magnitude to the phenomena assumed for 
developing the design basis of the facility'' rather than ``equivalent 
to the design basis of the facility,'' as was described in the proposed 
rule.
    Section VI of this document is revised to clarify how the concept 
of ``reasonable protection'' establishes a degree of assurance that is 
appropriate for the beyond-design-basis regulatory framework 
established through the MBDBE rule. This concept contrasts with the 
application of special treatment requirements, such as environmental 
qualification and quality assurance requirements, which are applied to 
safety-related SSCs for their design-basis-related functions to achieve 
a high level of regulatory assurance appropriate for design-basis 
requirements.
    The NRC also clarifies the confusion that appears to stem from the 
application of the ``reasonable protection'' standard to safety-related 
SSCs that have both design-basis and beyond-design-basis functions. 
Safety-related SSCs that function initially in response to beyond-
design-basis external events have two sets of functions: safety-related 
functions and beyond-design-basis functions. The NRC imposes extensive, 
special treatment requirements on these SSCs for their safety-related 
functions for design-basis events. This framework produces an increased 
level of assurance that the SSCs will perform those safety-related 
functions during and/or following the design-basis events as 
applicable. (See ``Risk-Informed Categorization and Treatment of 
Structures, Systems and Components for Nuclear Power Reactors; Final 
Rule'' (69 FR 68008; November 22, 2004).)
    Through this final rule, the NRC places fewer regulatory 
requirements associated with the beyond-design-basis functions that 
dual-function SSCs perform to maintain or restore core cooling, 
containment, and SFP cooling capabilities, as compared to their safety-
related, design-basis functions. The ``reasonable protection'' standard 
is a means for enabling greater flexibility for addressing external 
hazards, and in the process, enabling a beyond-design-basis regulatory 
framework that establishes an appropriate level of assurance. The 
fundamental applicability of the reasonable protection requirement is 
to equipment that is relied on for the mitigation strategies for 
beyond-design-basis events without regard to whether the equipment is 
``FLEX equipment'' as defined in NEI 12-06 or ``plant equipment'' as 
that term is used in NEI 12-06. Accordingly, the set of requirements 
that are applicable, and by direct extension, the resulting level of 
regulatory assurance required is directly linked to whether the SSC or 
equipment is performing a design-basis function or a beyond-design-
basis function. The level of assurance is established by the function 
performed by the SSC, not by the equipment or SSC alone.

D. Loss of All Alternating Current Power

    The NRC received comments concerning the loss of all ac power 
requirement in proposed Sec.  50.155(b)(1). Several commenters 
indicated that the assumed damage state for developing the mitigation 
strategies and guidelines for beyond-design-basis external events must 
include a loss of all power systems including the loss of ac power from 
batteries through inverters and direct current (dc) power direct from 
batteries. The commenters stated that unless this damage state is 
assumed, the lessons learned from the Fukushima Dai-ichi event would 
not be fully addressed. Another set of commenters stated that the MBDBE 
proposed rule's requirements for a loss of all ac power must be revised 
to align with the definition of an extended loss of ac power (ELAP) in 
the industry guidance document developed for the Mitigation Strategies 
Order. In that ELAP definition, power directly or indirectly from 
batteries is assumed available. These commenters also suggested that 
the word ``all'' should be removed from the MBDBE rule requirements for 
``loss of all ac power'' to align the requirement with the definition 
of ELAP. Based on this feedback, the NRC concluded that the MBDBE 
proposed rule language and supporting statement of considerations lack 
clarity and therefore revised the

[[Page 39691]]

final rule as discussed in the next paragraph.
    The final rule language and Section V.C, ``Final Rule Regulatory 
Bases,'' of this document are clarified to better convey that the loss 
of all ac power condition must be addressed. The first clarification is 
the deletion of the word ``extended'' from Sec.  50.155(b)(1) because 
the NRC concludes that the use of the word ``extended'' contributed to 
the confusion regarding the requirement. Section 50.155(b)(1) requires 
licensees to assume a loss of all ac power in developing strategies and 
guidelines capable of maintaining or restoring the key safety 
functions, indefinitely or until the mitigation strategies are no 
longer needed, including the acquisition of offsite resources to 
sustain those functions. As such, the regulation clearly requires a 
capability to address an ``extended'' loss of ac power, and the word 
``extended'' is not necessary in Sec.  50.155(b)(1). The deletion of 
the word ``extended'' is intended to avoid confusion between the 
requirement for licensees to address a loss of all ac power and the 
condition of an ELAP as defined in the industry guidance. The 
regulatory guidance for the MBDBE rule, RG 1.226, addresses the loss of 
all ac power, including ac power from inverters fed by batteries or dc 
power directly from batteries as follows:
    1. An ELAP and loss of normal access to the ultimate heat sink (or 
loss of access to the normal heat sink for passive power reactor 
designs), hereafter referred to as LUHS, is assumed for the purposes of 
developing the supporting analysis, determining the resultant 
conditions, and establishing times for key actions that support the 
development and implementation of mitigation strategies providing 
additional capability for beyond-design-basis external events. As 
discussed above, an ELAP is defined in the regulatory guidance as a 
loss of ac power sources but assumes the availability of power directly 
or indirectly from batteries.
    2. To address conditions more severe than the assumed conditions 
discussed above (i.e., potentially including loss of power from 
batteries) and thereby provide a set of regulatory guidance that 
implements the loss of all ac power requirement of the MBDBE rule, the 
mitigation strategies contain contingencies. These contingencies 
involve sending personnel to locally and manually operate non-ac driven 
core cooling pumps (e.g., a turbine-driven auxiliary feedwater or 
reactor core isolation cooling pump) to maintain or restore core 
cooling. These contingencies include the capability to obtain 
instrument readings using portable multimeters at locations that do not 
rely on the functioning of intervening installed electrical 
equipment.\1\
---------------------------------------------------------------------------

    \1\ There are limitations to what instruments can be repowered 
by a portable multimeter. While it is possible to repower, and 
obtain readings from, a resistance temperature detector or a 
thermocouple, there are many types of sensors that would need a more 
specialized type of equipment to accomplish the repowering and 
measurement. The choice of instrument readings to obtain through 
these contingencies should allow a licensee to diagnose the symptoms 
and verify system response to confirm the success of actions taken 
or to select actions that should be taken in response to the 
symptoms. Engineering evaluations and/or calculational aids needed 
to facilitate the interpretation of readings from such 
instrumentation when taken under the beyond-design-basis external 
event conditions expected should be performed as part of the 
planning process for the mitigating strategies, and should identify 
constraints and limitations of such capabilities, including 
uncertainties in the results.
---------------------------------------------------------------------------

E. Multiple Source Term Dose Assessment

    As a result of the NRC's consideration of NTTF recommendations 9.1 
and 9.3, the proposed MBDBE rule included a requirement for licensees 
to determine the magnitude of, and continually assess the impact of, 
the release of radioactive materials, including from all reactor core 
and SFP sources. This proposed requirement is referred to as ``multiple 
source term dose assessment,'' as each source (e.g., core or SFP) has a 
specific ``source term'' of radionuclides that could be released in an 
accident.
    The NRC received a public comment concerning its Sec.  50.109 
backfitting justification for the proposed multiple source term dose 
assessment requirements. The comment indicated that while the NRC had 
correctly identified these requirements as backfits, it had failed to 
justify their proposed imposition as satisfying the criterion under 
Sec.  50.109(a)(4)(ii) that these proposed requirements are necessary 
for adequate protection of public health and safety. The commenter 
stated that the NRC's analysis failed to overcome the presumption that 
current regulations and orders ensure adequate protection and noted 
that the statement of considerations supporting issuance of the Backfit 
Rule in 1988 states that ``that presumption can be overcome only by 
significant new information or some showing that the regulations do not 
address some significant safety issue.'' The commenter also noted that 
beyond the extensive, required actions that licensees are already 
taking, the industry is voluntarily implementing multiple source term 
dose assessment capabilities to assist in the mitigation of remote, yet 
potentially serious beyond-design-basis external events. The commenter 
stated that the NRC needs to provide a systematic and documented 
analysis that imposition of the new requirements would result in a 
cost-justified substantial increase in public health and safety.
    The NRC agrees that the backfit justification supporting the 
proposed multiple source term dose assessment requirements was 
insufficient. Based on the current emergency preparedness regulations 
in appendix E to 10 CFR part 50, ``Emergency Planning and Preparedness 
for Production and Utilization Facilities,'' and the Mitigation 
Strategies Order requirements, which were implemented broadly to 
provide an enhanced onsite emergency response capability, the NRC 
concludes that there is no evidence of a safety issue that rises to the 
level of undue risk that would warrant imposition of multiple source 
term dose assessment requirements as necessary for adequate protection 
of public health and safety.
    The NRC additionally concludes that imposition of the multiple 
source term dose assessment requirement would not provide a substantial 
increase in the protection of public health and safety under Sec.  
50.109(a)(3), taking into account the factors in Sec.  50.109(c). This 
conclusion is based on the following:
    1. The events that would challenge multiple source terms are rare 
events, and the risk associated with such events is a very small 
portion of the total plant risk. Furthermore, licensees' implementation 
of the requirements of the Mitigation Strategies Order provides a 
substantially enhanced mitigation capability for these events and 
lowers the probability that such rare events would challenge multiple 
source terms. These requirements constitute a significant portion of 
the MBDBE rule.
    2. The NRC concludes that the risk of offsite consequences from the 
beyond-design-basis events addressed by the rule is very small based 
upon a review of the recent work to understand plant risk. This 
conclusion is based on both the state-of-the-art reactor consequence 
analyses (see NUREG-1935, ``State-of-the-Art Reactor Consequence 
Analyses (SOARCA) Report,'' November 2012), and the work performed for 
the containment protection and release reduction regulatory effort (see 
SECY-15-0085, ``Evaluation of the Containment Protection & Release 
Reduction for Mark I and Mark II Boiling Water Reactors Rulemaking 
Activities (10 CFR part 50) (RIN-3150-AJ26),'' dated June 18, 2015, 
specifically the enclosure entitled, ``Containment

[[Page 39692]]

Protection and Release Reduction (CPRR) Rulemaking: Draft Regulatory 
Basis''). The staff's evaluation took into account the safety 
enhancements related to prevention of radioactive releases that were 
achieved through implementation of the Mitigation Strategies Order and 
implementation of the requirements of Order EA-13-109, ``Order 
Modifying Licenses with Regard to Reliable Hardened Containment Vents 
Capable of Operation under Severe Conditions,'' dated June 6, 2013, in 
reaching this conclusion.
    3. Further, the NRC concludes that the portion of overall plant 
risk associated with the rare events that might challenge multiple 
source terms is very small. As a result, the potential safety 
enhancement associated with the multiple source term dose assessment 
requirements cannot be considered to be substantial.
    Accordingly, the NRC concludes that because there would not be a 
substantial increase in the overall protection of public health and 
safety, and, because the risk to public health and safety is very 
small, backfitting a requirement for multiple source term dose 
assessment cannot be justified as a matter of adequate protection or as 
a cost-justified substantial safety improvement.
    Finally, operating plants have installed this multiple source term 
dose assessment capability and have committed to maintain the 
capability. The NRC anticipates that licensees will maintain this 
multiple source term assessment capability, even without an explicit 
requirement. This installed capability for multiple source term dose 
assessment is a computer capability installed in the existing emergency 
preparedness infrastructure and serves to meet the existing 
requirements in appendix E to 10 CFR part 50 to monitor and assess the 
reactor source term. The NRC concludes that the optimal regulatory 
approach for operating licensees is to continue to maintain the 
multiple source term dose assessment as a voluntary initiative 
following the endorsed guidance that supports this rule.
    The final rule was revised to remove the multiple source term dose 
assessment requirements.

F. Removal of the Proposed Staffing and Communications Requirements

    The NRC received public comment that the proposed wording for 
staffing and communications requirements to be located in a new section 
VII of appendix E to 10 CFR part 50 could be interpreted by future 
readers to mean that those proposed requirements must be described in 
the licensee's emergency plan, notwithstanding the NRC language to the 
contrary. A commenter noted that the clarity of these proposed 
provisions could be improved if they were moved into Sec.  50.155. The 
commenter proposed that these requirements could be incorporated into 
Sec.  50.155 as a separate sub-paragraph.
    The NRC agrees that locating the staffing and communications 
requirements in a new section VII of appendix E to 10 CFR part 50 would 
detract from clarity. Additionally, the NRC recognizes that the 
staffing and communications requirements in the proposed MBDBE rule 
were not requirements in the Mitigation Strategies Order. Instead, the 
issue of staffing was addressed in the implementation of the order 
through the inclusion of regulatory guidance on the subject in section 
11.7 of each version of the industry document NEI 12-06 as endorsed by 
the respective versions of JLD-ISG-2012-01 and taken into consideration 
by licensees in developing and implementing their strategies and 
guidelines. The issue of internal communications was addressed in 
section 3.2.2.8 of NEI 12-06 and taken into consideration by licensees 
in developing and implementing their strategies and guidelines. The 
issue of communications between the site and offsite response 
organizations was a subject covered in the March 12, 2012 request for 
information issued under Sec.  50.54(f), which resulted in licensees 
making commitments to upgrade their communications capabilities. These 
upgraded communications capabilities became part of the licensees' 
final integrated plans for the strategies and guidelines under the 
Mitigation Strategies Order.
    The NRC concludes that the requirements imposed by the Mitigation 
Strategies Order were sufficient to provide reasonable assurance of 
adequate protection and no new information was developed with regard to 
staffing and communications that would modify this conclusion. The NRC 
concludes that the imposition of requirements for staffing and 
communications would not result in a substantial increase in the 
overall protection of public health and safety or the common defense 
and security. This follows the Commission's direction in SRM-SECY-11-
0124 that

[i]n order to be effective, approaches should be flexible and able 
to accommodate a diverse range of circumstances and conditions. In 
consideration of events beyond the design basis, a regulatory 
approach founded on performance-based requirements will foster 
development of the most effective and efficient, site-specific 
mitigation strategies, similar to how the agency approached the 
approval of licensee response strategies for the ``loss of large 
area'' event under its B.5.b program.

    As a result, the imposition of requirements for staffing and 
communications would not meet the provisions of the Backfit Rule.
    The final rule was revised to remove the staffing and 
communications requirements.

G. Cumulative Effects of Regulation Feedback, Removal of Requirements 
for Drills or Exercises, Removal of Requirements for Command and 
Control, and Withdrawal of Orders

    The NRC was aware that the nuclear industry would be challenged by 
the proposed 2-year compliance date for the MBDBE rule, and requested 
feedback focused on whether this provided sufficient time to address 
the reevaluated hazard information. Additionally, the proposed rule 
contained the standard CER questions that also sought feedback on 
whether the implementation of the MBDBE requirements might involve CER.
    The NRC received feedback that indicated that the degree to which 
the proposed reevaluated seismic or flooding hazards could impact the 
implementation of mitigation strategies varies widely across the 
operating reactor fleet and the various evaluations necessary to 
prepare for any necessary modifications are in different stages of 
completion. The NRC considered using a flexible scheduling provision in 
the final rule to address this concern but concluded that this would 
not be necessary in light of the removal of requirements to address the 
reevaluated hazards from the final rule. From a more general 
perspective, CER feedback indicated that circumstances of each plant's 
implementation of the final rule requirements would be unique and there 
may be instances where licensees would need to request additional time 
for full implementation of the rule. One commenter stated that there 
will likely be instances where conflicts will arise in the 
implementation of the MBDBE rule requirements, and that the NRC should 
allow licensees the latitude to resolve the conflicts in a manner that 
best meets the objectives of safety and security, including allowing 
licensees to prioritize regulatory activities where conflicts in 
schedule are identified or provide alternative means for compliance in 
instances where conflicts require an alternative to be established. The 
commenter also advocated that the NRC support the use of risk-informed 
decision making consistent with the Commission direction on SECY-15-

[[Page 39693]]

0050, ``Cumulative Effects of Regulation Process Enhancements and Risk 
Prioritization Initiative,'' dated April 1, 2015.
    Other CER feedback concerned a potential unintended consequence 
that may occur if implementation of the MBDBE rule conflicts with the 
existing order requirements. The commenter said that the NRC should set 
forth a transparent transition from the Mitigation Strategies and SFPI 
Orders to Sec.  50.155. All operating power reactor licensees have 
achieved compliance with the orders using approved guidance (JLD-ISG-
2012-01, ``Compliance with Order EA-12-049, Order Modifying Licenses 
with Regard to Requirements for Mitigation Strategies for Beyond-
Design-Basis External Events,'' and JLD-ISG-2012-03, ``Compliance with 
Order EA-12-051, Reliable Spent Fuel Pool Instrumentation''). The MBDBE 
rule and the supporting RGs could be perceived to specify actions that 
are in addition to, or different from, the actions taken by licensees 
following the approved guidance to achieve compliance with the NRC 
orders, including actions that could be less restrictive than the 
corresponding actions needed for compliance with the orders. Further, 
the NRC received a comment that there is a lack of clarity regarding 
the difference between compliance with the orders and issuance of Sec.  
50.155 and the associated RGs. To avoid unintended consequences 
associated with two similar--but potentially not identical--sets of 
requirements, it was commented that the NRC should withdraw the 
Mitigation Strategies and SFPI Orders once Sec.  50.155 becomes 
effective.
    Additionally, stakeholders provided CER feedback concerning a 
potential schedule conflict for new plants regarding the need to 
perform analyses that were proposed as section VII to appendix E to 10 
CFR part 50 and the completion of the inspections, tests, and analyses 
under the 10 CFR part 52 framework.
    Finally, the NRC held a public meeting to discuss CER. During this 
meeting, a representative of the Boiling-Water Reactor Owners Group 
pointed out that those licensees that received Order EA-13-109, which 
was issued more than a year after the Mitigation Strategies and SFPI 
Orders, would have less time after attaining full compliance with Order 
EA-13-109 than other licensees to complete training and verify that 
they have completed all preparations to comply with the MBDBE rule.
    The NRC agrees that the group of licensees that received Order EA-
13-109 would achieve full compliance with each of the orders issued in 
response to the Fukushima Dai-ichi event approximately one year after 
the remaining licensees. In order to alleviate CER for this group of 
licensees, the final rule is revised to provide an additional year for 
implementation, giving this group of licensees the same amount of time 
after full compliance with the orders to attain compliance with the 
rule.
    The NRC also agrees that redundancy would exist between 
requirements in the Mitigation Strategies and SFPI Orders and those in 
the MBDBE rule. The final rule contains language that is intended to 
ensure a smooth transition between the order requirements and the MBDBE 
rule, including withdrawing the orders, to alleviate this issue.
    Finally, the schedule issue associated with new reactors was 
resolved as a result of the removal of the staffing and communication 
requirements in favor of their treatment in the regulatory guidance for 
the rule. As a result of the revision made to the MBDBE rule, the 
scheduling requirements that were of concern are no longer operative.
    Additionally, the NRC received feedback suggesting that licensees 
that received Order EA-13-109 be allowed an additional year for 
conducting an initial drill or exercise under the proposed rule. 
Holders of operating licenses for power reactors (including those that 
received Order EA-13-109) would have been required to conduct an 
initial drill or exercise within 4 years of the effective date of the 
final MBDBE rule under this paragraph. The NRC noted that the conduct 
of drills or exercises was not included as a requirement in the 
Mitigation Strategies Order, instead being an element of an acceptable 
approach to meeting the order's requirement for training. Drills are 
addressed in the regulatory guidance for the Mitigation Strategies 
Order contained in section 11.6.5 of NEI 12-06, as endorsed by JLD-ISG-
2012-01 and carried forward to the regulatory guidance for the final 
rule. NEI 12-06, Revisions 0 and 2 contained guidance on the content 
and periodicity of these drills, specifying the same 8-year period as 
was proposed for this rule. NEI 12-06, Revision 4, which is endorsed by 
the final version of Regulatory Guide 1.226, incorporates by reference 
further guidance on the performance of drills contained in the industry 
document NEI 13-06, Revision 1, ``Enhancements to Emergency Response 
Capabilities for Beyond Design Basis Accidents and Events,'' which also 
specifies the 8-year period that was proposed for drill performance for 
this rule. In addition, Appendix E of NEI 12-06, Revisions 2 and 4 
includes guidance on the validation of time sensitive actions. 
Validation of the time sensitive actions has been performed by all 
operating power reactor licensees in order to ascertain that they are 
capable of executing the time sensitive actions necessary to perform 
the strategies and guidelines required under the Mitigation Strategies 
Order and under the final rule in sufficient time to meet the time 
constraints determined by a plant-specific thermal-hydraulic analysis. 
These validations included, for example, the use of timed drills in 
simulators for control room actions or physical walkthroughs for 
actions in the field to demonstrate that the operating staff could 
perform the time sensitive actions within the identified time 
constraints.
    The NRC concludes that the requirements imposed by the Mitigation 
Strategies Order were sufficient to provide reasonable assurance of 
adequate protection and no new information was developed with regard to 
drills or exercises that would modify this conclusion. The NRC 
similarly concludes that imposing a requirement for drills and 
exercises would not provide a substantial increase in the overall 
protection of public health and safety. Therefore, the imposition of a 
requirement for drills or exercises would not meet the provisions of 
the Backfit Rule. The requirement for drills and exercises has been 
removed from the final rule. The removal of the requirement for an 
initial drill or exercise from the final rule addresses the commenter's 
concerns with scheduling of drills for licensees that received Order 
EA-13-109.
    The NRC also received feedback on CER suggesting that flexible 
scheduling be extended to licensees that received Order EA-13-109 for 
reasons other than addressing reevaluated hazards. No changes were made 
to the final MBDBE rule as a result of this feedback. The NRC concludes 
that any need for further schedule flexibility can be addressed under 
Sec.  50.12 on an individual basis if it becomes necessary.
    The NRC also received stakeholder feedback supporting the command 
and control requirements in proposed Sec.  50.155(b)(6). The proposed 
MBDBE rule would have required licensees to have a supporting 
organizational structure with defined roles, responsibilities, and 
authorities for directing and performing the strategies, guidelines, 
and alternative approaches required by proposed Sec.  50.155(b).
    The need for defined command and control structures and 
responsibilities

[[Page 39694]]

for use in beyond-design-basis conditions was recognized in the course 
of the development of the guidance and strategies for EDMGs. As stated 
in the industry's guidance document for that set of requirements, NEI 
06-12, Revision 2, ``[e]xperience with large scale incidents has shown 
that command and control execution can be a key factor to mitigation 
success.'' The guidance and strategies developed for that effort 
include an EDMG for initial response to provide a bridge between normal 
operational command and control and the command and control that is 
provided by the emergency response organization personnel in the event 
that the normal command and control structure is disabled. The NRC 
considers that the actions taken in the development of the EDMGs for 
initial response for the guidance and strategies for Sec.  50.155(b)(2) 
are adequate to support implementation of the MBDBE rule requirements. 
Evidence of this was demonstrated in the implementation of the EDMGs 
and Mitigation Strategies Order without specific command and control 
requirements.
    The NRC concludes that the requirements imposed by the Mitigation 
Strategies Order were sufficient to provide reasonable assurance of 
adequate protection and no new information was developed with regard to 
command and control that would modify this conclusion. The NRC 
concludes that the imposition of requirements for command and control 
would not result in a substantial increase in the overall protection of 
public health and safety or the common defense and security. This 
follows the Commission's direction in SRM-SECY-11-0124 that

[i]n order to be effective, approaches should be flexible and able 
to accommodate a diverse range of circumstances and conditions. In 
consideration of events beyond the design basis, a regulatory 
approach founded on performance-based requirements will foster 
development of the most effective and efficient, site-specific 
mitigation strategies, similar to how the agency approached the 
approval of licensee response strategies for the ``loss of large 
area'' event under its B.5.b program.

    As a result, the imposition of requirements for command and control 
would not meet the provisions of the Backfit Rule.
    The final rule has been modified to allow one additional year for 
implementation for operating power reactor licensees that received NRC 
Order EA-13-109, to remove the proposed requirement for drills or 
exercises, to remove the proposed requirement for command and control, 
and to provide for the withdrawal of the Mitigation Strategies and SFPI 
Orders and associated license conditions.

H. Change Control Enhancements

    The NRC requested and received comments on the proposed MBDBE 
change control provisions. Commenters suggested that the NRC should 
consider a ``prior review and approval'' type of regulatory approach, 
and cited as an example the ``reduction in effectiveness'' criterion 
that is used in several existing change control requirements. The 
concern expressed by commenters is associated with the potential for 
licensees to make changes to the implementation of the MBDBE rule 
requirements that are outside endorsed guidance. Another commenter 
echoed this concern, citing examples of licensees not properly 
implementing the mitigation strategies and citing violations associated 
with the implementation of the requirements of Sec.  50.59, ``Changes, 
tests, and experiments.'' The NRC also received a comment recommending 
a reporting requirement be part of the change control provisions. The 
NRC received comments concerning the statement of considerations, which 
confused stakeholders and suggested that prior review and approval may 
still be required. Finally, the NRC received comments suggesting 
revisions to the change control requirements that were intended to 
clarify the requirements.
    The NRC finds that its basic approach to change control does not 
need revision. Specifically, the NRC continues to conclude that it does 
not need to include reporting requirements or criteria for prior NRC 
review and approval of changes. The suggestion for use of a ``reduction 
in effectiveness'' criterion was understood to be an example of a 
``prior review and approval'' type criterion, and the NRC considered 
both of those specific examples and any others that it could identify. 
First, the NRC concluded that use of a ``reduction in effectiveness'' 
or equivalent type of change control criterion would not clearly 
differentiate significant changes (that would warrant NRC prior review) 
from changes not warranting prior review.
    Second, given the deterministic regulatory approach followed for 
development and implementation of the strategies under the Mitigation 
Strategies Order, many potential changes could have aspects that tend 
to reduce the effectiveness while also having aspects that tend to 
improve the effectiveness of the mitigation strategies. For example, 
replacing a portable diesel-driven pump with a similar one of a larger 
size could improve the effectiveness of a mitigation strategy by 
allowing for greater flow rates of makeup water but reduce its 
effectiveness because of a higher fuel usage rate and an associated 
shorter run time without refueling. Judging such changes using a prior 
review and approval type of approach is challenging at best and would 
very likely result in an unwarranted diversion of licensee and NRC 
resources to review and approve changes.
    Other beyond-design-basis provisions currently applicable to 
operating reactors in Sec.  50.62, ``Requirements for reduction of risk 
from anticipated transients without scram (ATWS) events for light-
water-cooled nuclear power plants,'' Sec.  50.63, and Sec.  50.54(hh) 
do not contain change control requirements. The only comparable set of 
requirements addressing beyond-design-basis events containing 
provisions that address the control of changes is Sec.  50.150, 
``Aircraft impact assessment,'' which is applicable to new reactors. 
Reviewing that requirement, and noting that the Aircraft Impact 
Assessment Rule requires that changes meet certain assessment 
requirements, the NRC concluded that the provisions in Sec.  50.155(f) 
for documentation of changes are well aligned with the Aircraft Impact 
Assessment Rule's control of changes provisions because the NRC is 
requiring that changes be demonstrated to satisfy the requirements of 
Sec.  50.155.
    Finally, the NRC concludes that its regulatory approach that relies 
on inspection and enforcement will identify any substantial problems 
with a licensee's MBDBE change control process well before such 
problems present a safety problem. Based on consideration of the 
feedback provided, the NRC did not find a suitable criterion (or 
criteria) that the NRC judged would result in a substantial improvement 
over what was proposed for addressing changes in the proposed rule, and 
accordingly the final rule continues with the same approach: Licensees 
must demonstrate that the proposed change will result in continued 
compliance with the requirements of Sec.  50.155, licensees must 
maintain documentation of those changes, and the NRC will oversee 
through inspection the changes and take enforcement action as 
appropriate.
    Notwithstanding this conclusion, the NRC clarified Section VI of 
this document to address changes that apply neither to endorsed 
guidance nor approved alternatives. This section now includes examples 
of cases that the NRC concludes would not result in demonstrated 
compliance.

[[Page 39695]]

    The NRC agrees that there was confusion created when it described 
the potential for licensees that may wish to consult with the NRC 
concerning changes to the implementation of the MBDBE rule 
requirements. This was not intended to suggest that the NRC was 
requiring a prior review of changes, and this document is revised 
accordingly.
    Finally, the NRC agrees with suggested revisions to the provisions 
that result in clarification of the requirements. The NRC clarified the 
final requirements to refer to them as ``Documentation of Changes,'' 
simplified the provisions by combining two of the proposed provisions, 
clarified the provision that addresses the application of other change 
control processes, and removed the word ``all'' from the rule regarding 
the need to maintain documentation of changes. As a result, the NRC 
concludes it is necessary to provide additional description in the 
statement of considerations to clarify what constitutes a ``change'' 
with regard to the documentation that the NRC requires licensees to 
maintain. Changes to the implementation of the MBDBE requirements that 
do not result in a significant change to the functional performance of 
the equipment and also do not significantly impact the strategies and 
guidelines would not constitute a ``change'' for this purpose. The NRC 
recognizes that licensees would maintain all of this documentation as 
part of their normal procurement and configuration control processes, 
but for the regulatory purposes of Sec.  50.155(f), these types of 
changes would not be significant in terms of implementation of the 
MBDBE requirements. For example, a replacement of a FLEX pump with a 
pump having the equivalent functional performance (i.e., no significant 
impact to functional performance), equivalent weight, size, and 
mobility (i.e., no significant impact to staging and deploying the 
pump), and equivalent connections would not constitute a ``change'' for 
the purposes of Sec.  50.155(f).

I. Spent Fuel Pool Instrumentation Requirements

    The NRC received several comments that the MBDBE rule must keep the 
requirements for SFPI separate and distinct from the requirements for 
mitigation strategies. The commenters noted that the requirement for 
SFPI was issued by the SFPI Order, while the requirement for mitigation 
strategies was issued by the Mitigation Strategies Order. The 
commenters further noted that while the two orders were in response to 
lessons learned from the Fukushima Dai-ichi event, they are distinctly 
different in underlying purpose and character.
    The NRC agrees with these comments and revised the final rule to 
keep SFPI and mitigation strategies requirements separate. The MBDBE 
rule provisions in Sec.  50.155(b)(1), which were initially imposed 
through the Mitigation Strategies Order, require strategies and 
guidelines to maintain or restore core cooling, containment, and SFP 
cooling capabilities for beyond-design-basis external events, and these 
requirements are independent of those initially imposed in the SFPI 
Order and now located in Sec.  50.155(e). The SFPI requirements ensure 
that information regarding the SFP is provided to decision makers to 
enable the prioritization of resources. The SFPI requirements were not 
intended to support mitigation action, but to simply provide 
information. Accordingly, the NRC moved the SFPI requirement to Sec.  
50.155(e) and decoupled the requirement from Sec.  50.155(b)(1) to 
ensure it remains independent of mitigation strategies requirements.
    As part of the industry response to the Mitigation Strategies 
Order, licensees used the SFPI to support mitigation strategies to 
maintain or restore SFP cooling. If licensees use the SFPI to comply 
with Sec.  50.155(b)(1), then the SFPI would be subject to the 
requirements of Sec.  50.155(b)(1).

J. Drill Frequency

    The NRC received comments regarding the proposed 8-year frequency 
for performance of drills under the proposed rule. One commenter 
expressed the view that there is a relatively high frequency of extreme 
events, and given the potentially high consequences associated with 
such events, the final rule must require an exercise interval no longer 
than once every 3 years. The commenter noted that an 8-year frequency 
was too infrequent, resulting in a steady decline in capabilities 
between tests. Finally, the commenter expressed the view that these 
drills need to be comprehensive and as realistic as possible.
    Another commenter suggested drills be conducted annually or every 2 
years. The remaining commenters supported the proposed 8-year 
frequency.
    As discussed in Section IV.G, ``Cumulative Effects of Regulation 
Feedback, Removal of Requirements for Drills or Exercises, and 
Withdrawal of Orders,'' of this document, the NRC concludes that the 
requirements imposed by the Mitigation Strategies Order were sufficient 
to provide reasonable assurance of adequate protection of public health 
and safety and no new information was developed with regard to drills 
or exercises that would modify this conclusion. The NRC then considered 
whether there would be a substantial increase in the overall protection 
of the public health and safety or the common defense and security that 
would result from including requirements in the final rule for drills 
or exercises rather than continuing the practice of addressing them in 
the regulatory guidance as had been done for the Mitigation Strategies 
Order. The NRC concluded that, while there would be some benefit in the 
form of clarity as to what had been found acceptable for compliance 
with the orders being made generically applicable in this rulemaking, 
the recharacterization of drills or exercises from regulatory guidance 
to requirements would not constitute a substantial increase in the 
overall protection of the public health and safety or the common 
defense and security.
    Because of this, the NRC concludes that a separate requirement for 
drills or exercises would not be needed, but could constrain an 
existing licensee or an applicant for a new licensee from developing 
innovative training techniques that do not rely on drills or exercises. 
This follows the Commission's direction in SRM-SECY-11-0124 that

[i]n order to be effective, approaches should be flexible and able 
to accommodate a diverse range of circumstances and conditions. In 
consideration of events beyond the design basis, a regulatory 
approach founded on performance-based requirements will foster 
development of the most effective and efficient, site-specific 
mitigation strategies, similar to how the agency approached the 
approval of licensee response strategies for the ``loss of large 
area'' event under its B.5.b program.

    In addition, the NRC did not revise the MBDBE drill frequency 
because it is specified in the regulatory guidance for the final rule 
in response to these comments. The NRC concluded that the 8-year 
periodicity strikes the correct balance in terms of providing an 
appropriate level of regulatory assurance, and, by aligning with the 
current emergency preparedness exercise requirements, it provides 
licensees with flexibility should they choose to implement the drills 
in conjunction with emergency preparedness drills or exercises.

[[Page 39696]]

K. Consideration of Explicit Requirements for a Three-Phase Response

    The NRC received a comment that the MBDBE rule should maintain the 
three-phase response structure for mitigation that was described in the 
Mitigation Strategies Order rather than use the proposed rule's 
performance-based requirements. The commenter stated that the 
substitution of ``higher level, performance-based requirements'' 
reduces confidence that the MBDBE measures will be successful if 
needed. It is the commenter's view that the nuclear industry and the 
NRC have consistently disagreed on what constitutes appropriate 
compensatory measures and associated administrative controls and 
provided an example to support the comment. The commenter expressed the 
view that the three-phase structure provides clearer definition of what 
is expected, better enabling licensees to meet those expectations and 
NRC inspectors to independently verify that this desired outcome has 
been achieved.
    The NRC did not revise the MBDBE rule as a result of this comment. 
The Mitigation Strategies Order included a separate attachment 3 for 
the imposition of requirements on Vogtle Electric Generating Plant, 
Units 3 and 4 to reflect their use of the AP1000 design. In the 
Mitigation Strategies Order, attachment 3, the NRC documented that the 
inherent features of the AP1000 design obviate the need for phase two 
of the three-phase response required of currently operating power 
reactors that is addressed in attachment 2 of the Mitigation Strategies 
Order. The RG 1.226 provides implementation guidance for the three-
phase approach as one acceptable method of complying with the MBDBE 
rule. Future designers may be able to develop and implement strategies 
and guidelines that do not rely on a three-phase approach, and may 
propose alternative approaches as updates to the existing guidance or 
in their applications.
    This framework is consistent with the Commission's direction in 
SRM-SECY-11-0124 to follow performance-based approaches for beyond-
design-basis events, while harmonizing the treatment of currently 
operating and new power reactors. Such approaches allow greater 
flexibility and enable more effective and efficient implementation of 
the requirements. The NRC, through its current review, audit, and 
inspection activities supporting implementation of the Mitigation 
Strategies Order, is identifying differences of interpretation such as 
those noted by the commenter and ensuring that they are resolved.

L. Clarifications to Decommissioning Provisions

    The NRC received comments concerning the proposed MBDBE provisions 
in Sec.  50.155(a)(3) regarding the applicability of the MBDBE rule to 
licensees with reactors in a decommissioning phase. The commenters 
agreed with the underlying approach to the MBDBE decommissioning 
provision and suggested revisions to clarify those provisions and 
eliminate unnecessary language.
    The NRC agrees with some of the suggestions, and the final rule 
reflects those changes. Section 50.155(a)(2) in the final rule 
explicitly identifies which portions of the MBDBE rule apply to a 
licensee as it proceeds through the decommissioning process.

M. Clarifications to Equipment Requirements and Removal of Proposed 
Maintenance Requirement

    The NRC requested feedback concerning the proposed maintenance 
provision in Sec.  50.155(c)(3). The Mitigation Strategies Order did 
not contain a specific maintenance requirement, but instead contained a 
performance-based requirement ``to develop, implement and maintain 
strategies.'' This same language was included in proposed Sec.  
50.155(b)(1), so that a failure to perform adequate maintenance would 
likely lead to a failure to meet this requirement.
    The feedback indicated that commenters did not see a need for a 
separate maintenance provision in Sec.  50.155(c)(3) for the Sec.  
50.155(b)(1) equipment. Commenters noted that the proposed maintenance 
requirement of Sec.  50.155(b), along with the guidance in NEI 12-06, 
as endorsed by JLD-ISG-2012-01 for the Mitigation Strategies Order (now 
endorsed in RG 1.226), adequately addresses equipment maintenance. The 
NRC agrees with this feedback. The intent is to carry forward the 
maintenance requirements of the Mitigation Strategies Order as it was 
included within the order's requirement for licensees to develop, 
implement, and maintain the strategies. The corresponding requirement 
for development, implementation and maintenance of the strategies is 
included in Sec.  50.155(b) and the proposed separate maintenance 
requirement is removed from the final rule.
    Regarding maintenance, the NRC also received feedback suggesting 
that the MBDBE rule be revised to state that the Maintenance Rule, 
Sec.  50.65, ``Requirements for monitoring the effectiveness of 
maintenance at nuclear power plants,'' does not apply to FLEX equipment 
or SFPI whose primary design function is to support strategies 
developed to solely comply with the MBDBE rule. The NRC agrees that the 
criteria in Sec.  50.65(b) do not include FLEX equipment in the scope 
of Sec.  50.65 if the FLEX equipment is used solely for compliance with 
Sec.  50.155.\2\ Accordingly, the suggested revision is not necessary. 
Furthermore, such an addition could result in complications if a 
licensee chooses to use FLEX equipment in a future regulatory 
application (separate from Sec.  50.155) that would result in the 
equipment meeting the scoping criteria in Sec.  50.65.
---------------------------------------------------------------------------

    \2\ In the event that a licensee relies upon the mitigation 
strategies equipment for other purposes such as mitigation of a 
design-basis event, the application of scoping criteria for reliance 
on the equipment for those purposes would govern. As a result, 
equipment that has multiple purposes could have design-basis 
functions that fall within the scope of the Maintenance Rule for one 
purpose, and a mitigation strategy function that is not covered by 
the Maintenance Rule, but instead within scope for the maintenance 
programs established under Sec.  50.155 through the guidance of 
Regulatory Guide 1.226 and NEI 12-06. For example, a turbine-driven 
auxiliary feedwater (TDAFW) pump in a pressurized-water reactor 
would fall within the scope of the monitoring requirements of Sec.  
50.65(a) under the criteria of Sec.  50.65(b) for those functions 
that meet the criteria, but not for the performance of beyond-design 
basis functions for the strategies and guidelines required by Sec.  
50.155. As a result, the monitoring under Sec.  50.65(a) would be 
with the goal of providing reasonable assurance that the TDAFW pump 
is capable of fulfilling its intended safety function (i.e., 
specific function) within the reference bounds of the design bases 
as defined in Sec.  50.2 for the functions that result in its 
inclusion in the scope of Sec.  50.65. The capability of the TDAFW 
pump to remain functional in the context of a loss of all ac power 
concurrent with an LUHS, which could expose the pump to 
environmental and operational constraints outside the reference 
bounds of the design bases for the events resulting in inclusion in 
the scope of Sec.  50.65(a) due to a longer period with an absence 
of normally available cooling, would not be addressed by the Sec.  
50.65(a) monitoring program, but instead by the maintenance and 
testing programs established under Sec.  50.155 through the guidance 
of RG 1.226 and NEI 12-06.
    Similarly, some licensees rely on a portable, ac-power 
independent pump for the strategies and guidelines developed under 
Sec.  50.155(b)(1), (2), or (3). These strategies and guidelines may 
be referred to in the licensee's EOPs, but are not necessary in 
order to conform to the NRC-approved emergency planning guidelines 
that form the basis for the EOPs. Therefore, because the portable, 
ac-power independent pump is not used in the EOPs, it would not be 
one of the nonsafety-related SSCs included within the scope of Sec.  
50.65(a)(1) under Sec.  50.65(b)(2)(i), unless otherwise required by 
Sec.  50.65(b). Further details on scoping of equipment under Sec.  
50.65 are provided in NUMARC 93-01, ``Industry Guideline for 
Monitoring the Effectiveness of Maintenance at Nuclear Power 
Plants.''
---------------------------------------------------------------------------

    In response to one comment, the NRC changed Sec.  50.155(c)(1) in 
the final rule to more clearly communicate the equipment capacity and 
capability requirements. The remaining changes to

[[Page 39697]]

paragraph (c) in Sec.  50.155 are discussed in the ``Reasonable 
Protection,'' ``Spent Fuel Pool Instrumentation,'' and ``Removal of the 
Proposed Staffing and Communications Requirements'' sections of this 
portion of the document.

N. Removal of Integration Requirements

    In the proposed MBDBE rule, the NRC had included a potential 
requirement for an overarching integrated response capability including 
the mitigation strategies for beyond-design-basis external events and 
the EDMGs and an organizational structure specific to the integrated 
response capability. In addition, the proposed MBDBE rule included a 
potential requirement for integration of the integrated response 
capability with the existing emergency operating procedures. In 
reexamining the requirements of the proposed MBDBE rule, the NRC 
recognized that the implementation of the strategies and guidelines 
under Order EA-02-026, ``Interim Safeguards and Security Compensatory 
Measures,'' dated February 25, 2002, which resulted in the EDMGs 
included in Sec.  50.155(b)(2), and the implementation of the 
strategies and guidelines under the Mitigation Strategies Order that 
constitute the remainder of the proposed integrated response 
capability, had both included a need for integration at the regulatory 
guidance level. For example, the regulatory guidance in NEI 12-06 for 
the Mitigation Strategies Order covers the interactions between the 
procedures developed under the order and their interfaces with various 
accident mitigation procedures to result in an overall coherent and 
comprehensive structure in section 11.4, ``Procedure Guidance.'' In 
addition, this regulatory guidance, which provides one acceptable means 
of complying with the order, includes a need for validation of the 
resulting strategies to show they are feasible; this validation 
included drills and walkthroughs of the resulting procedural 
documentation to show that it can be executed by the personnel that 
would need to use the strategies in an actual event. The NRC concludes 
that the requirements imposed by the Mitigation Strategies and the 
Interim Safeguards and Security Compensatory Measures Orders were 
sufficient to provide reasonable assurance of adequate protection and 
no new information was developed with regard to integration that would 
modify this conclusion. In addition, the NRC concludes that 
requirements for integration would not result in a substantial increase 
in the overall protection of public health and safety. Therefore, 
imposing requirements for an integrated response capability and 
integration with the existing emergency operating procedures would not 
meet the provisions of the Backfit Rule. The final rule has been 
revised to remove the proposed requirements for an integrated response 
capability and integration with the existing emergency operating 
procedures.

O. Training

    The proposed MBDBE rule included potential requirements for 
training that included qualification of personnel and the use of the 
systems approach to training as defined in Sec.  55.4, ``Definitions.'' 
The training requirement in the proposed rule carried forward a 
requirement for training from the Mitigation Strategies Order. The 
elements of this requirement for qualification and the use of the 
systems approach to training were addressed in the regulatory guidance 
for the Mitigation Strategies Order. The NRC concluded that the 
requirements imposed by the orders were sufficient to provide 
reasonable assurance of adequate protection of public health and safety 
and no new information was developed with regard to qualification or 
the systems approach to training that would modify this conclusion. The 
NRC also considered whether there would be a substantial increase in 
the overall protection of the public health and safety or the common 
defense and security that would result from including requirements in 
the final rule for qualification or the systems approach to training 
rather than continuing the practice of addressing them in the 
regulatory guidance as had been done for the orders. The NRC concluded 
that, while there would be some benefit in the form of clarity as to 
what had been found acceptable for compliance with the orders being 
made generically applicable in this rulemaking, the recharacterization 
of those items from regulatory guidance to requirements would not 
constitute a substantial increase in the overall protection of the 
public health and safety or the common defense and security.
    The NRC concludes that a separate requirement for qualification and 
the systems approach to training is not needed, but could constrain an 
existing licensee or an applicant for a new licensee from developing 
innovative mitigation strategies that do not rely on them. This follows 
the Commission's direction in SRM-SECY-11-0124 that

[i]n order to be effective, approaches should be flexible and able 
to accommodate a diverse range of circumstances and conditions. In 
consideration of events beyond the design basis, a regulatory 
approach founded on performance-based requirements will foster 
development of the most effective and efficient, site-specific 
mitigation strategies, similar to how the agency approached the 
approval of licensee response strategies for the ``loss of large 
area'' event under its B.5.b program.

    The final rule has been revised to remove requirements for 
qualification and the use of the systems approach to training.

P. Discussion of Four Topics That Were Addressed Generically

    The NRC received a number of comments that fell into four topical 
areas. The comments were considered and addressed generically. These 
comments did not result in changes to the MBDBE rule. A discussion of 
these topics is provided below.
1. Comments That Suggest a Completely Different Approach to Mitigation 
of Beyond-Design-Basis Events
    Several commenters provided feedback that the MBDBE rule should 
contain requirements that address various specific external events. The 
suggestions included geomagnetic disturbances (which are addressed 
separately in Section III, ``Petitions for Rulemaking,'' of this 
document because they are the subject of a petition for rulemaking 
currently under consideration by the NRC), cyber events that might 
disable the electric grid, attacks involving devices that may disable 
the electric grid, malicious attacks on a nuclear facility, and 
explosions from gas lines running in the vicinity of a nuclear 
facility. These comments suggest that the NRC take a different 
regulatory approach in the MBDBE rule than the NRC took under the 
Mitigation Strategies Order following the Fukushima Dai-ichi event. The 
comments tend to explicitly identify external events or conditions that 
commenters believe should be addressed by the MBDBE rule.
    Rather than following the approach suggested by these commenters, 
the NRC is continuing with the regulatory approach taken with the 
issuance of the Mitigation Strategies Order. The order requires 
licensees to postulate a challenging damage state that exceeds the 
design basis, and to develop and implement the mitigation strategies to 
address that damage state. These strategies give licensees a capability 
for the mitigation of beyond-design-basis external events. This 
regulatory approach provides additional mitigation capability as well. 
Given the unbounded nature of the beyond-design-basis external events 
to which these

[[Page 39698]]

requirements are directed, the NRC determined that licensees need to 
address uncertainty by assuming a challenging damage state that such 
events might create, and then adding to that damage state the 
consideration of the effects the initiating event may have on the 
physical protection of equipment and strategies. For a more detailed 
explanation of this response, refer to the NRC response to General 
Comment 9 in the Comment Response Document (see Section XIX of this 
document).
2. Comments That Suggest the NRC Revisit Issues Associated With SFP 
Safety
    These comments included suggestions that the NRC, as part of the 
MBDBE rule, should reconsider SFP fires, events that can lead to SFP 
fires, malicious attacks involving SFPs, SFP integrity during and 
following extreme events, and longer-term SFP aging issues. The 
Commission has previously considered these issues, and the NRC 
concluded that it was not within the scope of the MBDBE rule to revisit 
these SFP safety issues. Moreover, the MBDBE rule is addressing and 
enhancing SFP safety through the imposition of regulations that (1) 
require licensees to have strategies that maintain or restore SFP 
cooling capabilities for beyond-design-basis external events, and (2) 
provide information, through the use of SFPI, that enables operators to 
appropriately prioritize the use of resources following a beyond-
design-basis external event. Explanations of the NRC's considerations 
of the commenters' issues are provided in the NRC response to General 
Comment 8 in the Comment Response Document. (See Section XIX of this 
document.)
3. Comment Regarding Decommissioning
    The NRC received comments from stakeholders that were directed 
towards the basis for previous NRC exemption decisions regarding power 
reactor licensees in decommissioning. While the MBDBE rule does include 
provisions that facilitate the reduction of its requirements at the 
appropriate points within the decommissioning process, the rulemaking's 
regulatory scope does not include revisiting the bases for previous 
decisions on decommissioning exemptions. Instead, the MBDBE rule is 
enabling systematic removal of the mitigation strategies requirements 
as a facility proceeds through the process of decommissioning. The NRC 
enables these requirements to be removed through regulation, rather 
than requiring removal by the more resource-intensive exemption 
process, based on the same set of acceptance criteria that were used in 
granting the exemptions to licensees in decommissioning. Concerns about 
the NRC's decommissioning regulations should be raised in the ongoing 
regulatory effort to more broadly address decommissioning issues for 
all applicable requirements. (See ``Regulatory Improvements for 
Decommissioning Power Reactors; Advance notice of proposed rulemaking'' 
(80 FR 72358; November 19, 2015).) If, as a result of that regulatory 
effort, the NRC changes its position with regard to the bases for 
decommissioning and, specifically, if those changes affect the 
decommissioning provisions that are part of the MBDBE rule, then the 
NRC will make future conforming changes to the MBDBE rule to align it 
with the revised decommissioning requirements.
4. Comments on Geomagnetic Disturbances
    The NRC received comments on the subject of geomagnetic 
disturbances. While these could be viewed as comments on a specific 
beyond-design-basis external event, the NRC determined that the issue 
warrants discussion given the NRC's ongoing consideration of 
geomagnetic disturbances. Although the MBDBE rule puts in place 
mitigation strategies that could be initially deployed and used to 
address the effects of geomagnetic disturbances (should such 
disturbances lead to adverse impacts on the transmission system and an 
associated loss-of-offsite power), the rulemaking's regulatory scope 
does not address the issue of geomagnetic disturbances in its entirety. 
The impact of geomagnetic disturbances is the subject of PRM-50-96, 
which the NRC accepted for consideration within its rulemaking process. 
The NRC published this determination in the Federal Register on 
December 18, 2012 (77 FR 74788). Accordingly, while not fully addressed 
within the MBDBE rule, the issue of geomagnetic disturbances will be 
addressed as part of the NRC's consideration of PRM-50-96, as discussed 
in Section III of this document.

V. Discussion

A. Rulemaking Objectives

    The MBDBE rule accomplishes the following objectives: (1) Makes the 
requirements in the Mitigation Strategies and SFPI Orders generically 
applicable, giving consideration to lessons learned from implementation 
of the orders and public comment on the MBDBE proposed rule and (2) 
addresses issues raised by PRMs that were submitted to the NRC.
    1. Makes the requirements in the Mitigation Strategies and SFPI 
Orders generically applicable, giving consideration to lessons learned 
from implementation of the orders and public comment on the MBDBE 
proposed rule.
    This final rule places the requirements in the Mitigation 
Strategies Order and SFPI Order into the NRC's regulations so that they 
apply to all current and future power reactor applicants and provides 
regulatory clarity and stability to power reactor licensees. In the 
absence of this rule, these requirements would need to be imposed on 
new reactor applicants or licensees through additional orders or 
license conditions (as was done for all combined licenses (COLs) issued 
to date). As part of this rulemaking, the NRC considered stakeholder 
feedback and lessons learned from the implementation of the orders, 
including any challenges or unintended consequences associated with 
implementation. The NRC reflected this stakeholder input in the final 
rule as discussed in the previous section of this document as well as 
in regulatory guidance for this rule.
    2. Addresses a number of PRMs submitted to the NRC.
    This rulemaking addresses, and completes the regulatory actions 
planned for, the five PRMs filed by the NRDC that raise issues that 
pertain to the technical aspects of this rulemaking. The petitions rely 
solely on the NTTF Report and request that the NRC undertake rulemaking 
in a number of areas that are addressed by this rule. This rule also 
addresses, in part, PRM-50-96 submitted by Mr. Thomas Popik; however, 
broader issues raised in that petition regarding geomagnetic 
disturbances remain under consideration by the NRC.

B. Rulemaking Scope

    The MBDBE rule addresses a significant number of regulatory issues 
that stem from NRC review of the NTTF recommendations that provided the 
regulatory impetus for this rule:
    1. NTTF recommendations 4 and 7 and portions of NTTF recommendation 
11.1 regarding onsite emergency resources to support multi-unit events 
with SBO, including the need to deliver equipment to the site despite 
degraded offsite infrastructure. The implementation of licensees' 
responses to these provisions of the MBDBE rule is largely complete, 
because they were implemented under the Mitigation Strategies Order.

[[Page 39699]]

    2. NTTF recommendation 8, and the command and control issues in 
NTTF recommendation 10.2.
    3. Numerous requirements regarding onsite emergency response 
actions implemented by the Mitigation Strategies Order, including 
supporting guidance to implement the emergency response aspects of this 
rule. The specific regulatory actions related to emergency response in 
this rule and the associated NTTF recommendations follow:
    a. Staffing and communications guidance that address NTTF 
recommendation 9.3 and were also discussed in NTTF recommendations 9.1 
and 9.2. These regulatory issues were initially addressed in the 
implementation of the Mitigation Strategies Order through the 
regulatory guidance supporting the order. The regulatory guidance for 
the MBDBE rule addresses supporting facilities and equipment, as 
discussed in the same NTTF recommendations.
    b. Training requirements and drill guidance that address NTTF 
recommendation 9.3 and were also discussed in NTTF recommendations 9.1 
and 9.2. These regulatory issues were implemented under the Mitigation 
Strategies Order.
    Accordingly, the MBDBE rule addresses NTTF recommendations 4, 7, 8, 
9.1, 9.2, 9.3 (except for maintenance of ERDS capability throughout a 
beyond-design-basis external event), 10.2, and 11.1.
    The MBDBE rule also addresses NTTF recommendation 9.4 to modernize 
ERDS. This action differs from the other regulatory actions because 
ERDS is not an essential component of a licensee's capability to 
mitigate a beyond-design-basis external event. However, ERDS is an 
important form of communication between the licensee and the NRC. A 
modernization effort for ERDS was completed voluntarily by industry 
prior to issuance of this rule. The NRC includes amendments in this 
rule to remove the technology-specific references to outdated equipment 
in 10 CFR part 50, appendix E, section VI, ``Emergency Response Data 
System.''
Severe Accident Management Guideline and Multiple Source Term Dose 
Assessment
    The Commission considered a proposed SAMG backfit analysis, 
provided as part of SECY-15-0065, ``Proposed Rulemaking: Mitigation of 
Beyond-Design-Basis Events (RIN 3150-AJ49),'' dated April 30, 2015. The 
Commission concluded that the imposition of SAMG requirements was not 
warranted and, consequently, SAMGs were removed as requirements in the 
MBDBE rule (refer to SRM-SECY-15-0065, dated August 27, 2015). Instead, 
SAMGs continue to be implemented and maintained through an industry 
initiative. For more information on the industry implementation of 
SAMGs, refer to the MBDBE proposed rule.
    Multiple source term dose assessment requirements were part of the 
proposed MBDBE rule and addressed NTTF recommendations 9.3 and 9.1. 
These proposed requirements are removed in the final MBDBE rule and 
instead have been implemented by licensees as discussed in Section 
IV.E, ``Multiple Source Term Dose Assessment,'' of this document.
Procedure and Guideline Integration
    Procedure and guideline integration were part of the proposed MBDBE 
rule and addressed NTTF recommendation 8. These proposed requirements 
are removed in the final MBDBE rule and instead have been implemented 
by licensees as discussed in Section IV.N, ``Removal of Integration 
Requirements,'' of this document.

C. Final Rule Regulatory Bases

Applicability
    This final rule applies, in whole or in part, to applicants for and 
holders of an operating license for a nuclear power reactor under 10 
CFR part 50 or COL under 10 CFR part 52.
    This rule does not apply to applicants for, or holders of, an 
operating license for a non-power reactor under 10 CFR part 50, because 
non-power reactors pose lower radiological risks to the public from 
accidents than power reactors. These reduced risks result from two 
primary features of non-power reactors: (1) The core radionuclide 
inventories are lower than in power reactors as a result of their lower 
power levels and often shorter operating cycle lengths and (2) non-
power reactors have lower decay heat associated with a lower risk of 
core melt and fission product release in a loss-of-coolant accident 
than power reactors.
    A holder of a general or specific 10 CFR part 72 independent spent 
fuel storage installation (ISFSI) license for dry cask storage is not 
subject to this rule for the ISFSI because the decay heat load of the 
irradiated fuel is sufficiently low prior to movement to dry cask 
storage that it can be air-cooled. This situation would also meet the 
criteria for ``sunsetting,'' or phased removal, of requirements 
(discussed later in this section of this document) if the rule were to 
apply to holders of such licenses.
    The GE Morris facility in Illinois, which is the only SFP licensed 
under 10 CFR part 72 as an ISFSI, does not need to comply with this 
rule and is excluded by the rule applicability described in Sec.  
50.155(a). The NRC considered including the GE Morris facility within 
the scope of this rule but found that the age and corresponding low 
decay heat load of the fuel in the facility made it unnecessary. The GE 
Morris facility would also meet this rule's sunsetting criteria if the 
rule were to apply to GE Morris. While this rule leaves in force the 
EDMG requirements of Sec.  50.155(b)(2), those requirements are not 
applicable to GE Morris because it is not a 10 CFR part 50 licensee. In 
the course of the development and implementation of the guidance and 
strategies required by Sec.  50.155(b)(2), the NRC evaluated whether 
additional mitigation strategies were warranted at GE Morris and 
concluded that no mitigation strategies were warranted beyond existing 
measures, due to the extended decay time since the last criticality of 
the fuel stored there, the resulting low decay heat levels, and the 
assessment that a gravity drain of the GE Morris SFP is not possible 
due to the low permeability of the surrounding rock and the high level 
of upper strata groundwater.
Decommissioning Reactors
    The MBDBE rule contains a regulatory structure for phasing out the 
mitigation strategies requirements for a licensee as its reactor 
decommissioning process proceeds. This structure consists of three 
phases:
    1. Once fuel is removed permanently from the reactor, the 
mitigation strategies associated with the reactor and primary 
containment are no longer needed. Consequently, the requirements of 
Sec.  50.155 continue to apply, but only for the SFP.
    2. When the decay heat of the spent fuel is reduced to a level that 
provides ample time to enable ad hoc action to be taken in response to 
an event to sustain the SFP cooling function indefinitely, then all the 
requirements of Sec.  50.155 can be removed with the exception of Sec.  
50.155(b)(2).
    3. Once all fuel is removed from the SFP, all requirements of the 
MBDBE rule no longer apply.
    The following provides a more detailed discussion of this structure 
and the regulatory decisions made for decommissioning licensees that 
provide the basis for this structure.
    Once a licensee has permanently ceased operation, permanently 
removed

[[Page 39700]]

fuel from the reactor vessel, and submitted the certifications of 
permanent cessation of operations and permanent removal of fuel from 
the reactor vessel required in Sec.  50.82(a)(1) or Sec.  52.110(a), 
that licensee need only comply with the requirements of Sec.  50.155(b) 
through (d), and (f) associated with maintaining or restoring SFP 
cooling. As discussed previously, these proposed requirements are based 
on the Mitigation Strategies Order. The licensees for the Kewaunee 
Power Station, Crystal River Unit 3 Nuclear Generating Plant, San 
Onofre Nuclear Generating Station, Units 2 and 3, Fort Calhoun Station, 
Vermont Yankee Nuclear Power Station, and Oyster Creek Nuclear 
Generating Station submitted certifications of permanent fuel removal 
required by Sec.  50.82(a)(1)(ii) after issuance of the Mitigation 
Strategies Order. The NRC has withdrawn the Mitigation Strategies Order 
for this group of NPP licensees (Shutdown NPP Group). These withdrawals 
were based on the NRC's conclusion that the lack of fuel in the 
licensee's reactor core and the absence of challenges to the 
containment rendered unnecessary the development of guidance and 
strategies to maintain or restore core cooling and containment 
capabilities. Consistent with these withdrawals, the MBDBE rule 
relieves licensees in decommissioning from the requirement to comply 
with the Sec.  50.155(b) requirements to have mitigation strategies and 
guidelines to maintain or restore core cooling and containment 
capabilities. Moreover, these licensees do not need to comply with any 
of the other requirements in this final rule that support compliance 
with the Sec.  50.155(b) requirements to have mitigation strategies and 
guidelines for maintaining or restoring core cooling and containment 
capabilities.
    This MBDBE rule treats the EDMG requirements in a manner similar to 
the requirements for mitigation strategies developed under the 
Mitigation Strategies Order as made generically applicable under Sec.  
50.155(b)(1). For a licensee that has submitted the Sec.  50.82(a)(1) 
or Sec.  52.110(a) certifications, the lack of fuel in its reactor core 
and the absence of challenges to the containment would render 
unnecessary EDMGs for core cooling and containment capabilities. This 
licensee would not need to comply with the requirements in the MBDBE 
rule associated with core cooling or containment capabilities; rather, 
the licensee would be required to comply with the requirement to have 
EDMGs based on the presence of fuel in the SFP.
    Once the licensee has submitted the certifications required in 
Sec.  50.82(a)(1) or Sec.  52.110(a), that licensee does not need to 
comply with the requirement in Sec.  50.155(e) that the licensee 
provide reliable means to remotely monitor wide-range SFP levels to 
support effective prioritization of event mitigation and recovery 
actions. The requirement in Sec.  50.155(e) makes generically 
applicable the requirements in the SFPI Order. This order requires a 
reliable means of remotely monitoring wide-range SFP levels to support 
effective prioritization of event mitigation and recovery actions in 
the event of a beyond-design-basis external event with the potential to 
challenge both the reactor and SFP.
    The NRC also withdrew the SFPI Order for the Shutdown NPP Group. 
These withdrawals were based, in part, on the NRC's conclusions that 
once a licensee certifies the permanent removal of the fuel from its 
reactor vessel, the safety of the fuel in the SFP becomes the primary 
safety function for site personnel. In the event of a challenge to the 
safety of fuel stored in the SFP, decision makers would not have to 
prioritize actions and the focus of the licensee staff would be the SFP 
condition. Therefore, once fuel is permanently removed from the reactor 
vessel, the basis for the SFPI Order no longer applies. Consistent with 
the NRC order withdrawals, the NRC no longer requires licensees in 
decommissioning to have a reliable means to remotely monitor wide-range 
SFP levels to support effective prioritization of event mitigation and 
recovery actions in the event of a beyond-design-basis external event 
with the potential to challenge both the reactor and SFP.
    The Mitigation Strategies Order also required power reactor 
licensees to have certain SFP cooling capabilities. In the withdrawal 
letters to the licensees for the Shutdown NPP Group, the NRC determined 
that the passage of time, the fuel's low decay heat, and the long time 
to boil off the water inventory in the SFP obviated the need for the 
Shutdown NPP Group licensees to have guidance and strategies necessary 
for compliance with the Mitigation Strategies Order. The withdrawal of 
the Mitigation Strategies Order for those licensees eliminated the 
requirement for them to comply with the order's requirements concerning 
beyond-design-basis event strategies and guidelines for SFP cooling 
capabilities. Consistent with the basis for the order withdrawals, 
licensees in decommissioning are relieved from the requirements 
concerning beyond-design-basis event strategies and guidelines for SFP 
cooling capabilities and any related requirements. These licensees have 
to perform and retain an analysis demonstrating that sufficient time 
has passed since the fuel within the SFP was last irradiated, such that 
the fuel's low decay heat and boil-off period provide sufficient time 
for the licensee to obtain offsite resources to sustain the SFP cooling 
function indefinitely. Licensees in decommissioning may use the 
equipment in place for EDMGs should that equipment be available, 
recognizing that the protection for that equipment is against the 
hazards posed by events that result in losses of large areas of the 
plant due to fires or explosions rather than beyond-design-basis 
external events resulting from natural phenomena. If the EDMG equipment 
is not available, offsite resources would be used by the licensee for 
onsite emergency response (i.e., SFP cooling). This relief from the 
requirements related to the Mitigation Strategies Order does not impact 
any commitments licensees have made to support their requests for 
exemptions from offsite emergency planning requirements. The NRC's 
approval of such exemptions is based on the low radiological 
consequences of a beyond-design-basis event in which a loss of SFP 
inventory could result in a zirconium cladding fire and, 
conservatively, do not consider the ability to use offsite resources to 
mitigate such an event.
    The NRC is maintaining the EDMG requirement for decommissioning 
plants because an event for which EDMGs would be required is not based 
on the condition of the fuel but may instead result from an aircraft 
impact or a beyond-design-basis security event that could introduce 
additional heat into the SFP independent from the decay heat of the 
fuel. These types of events and their potential consequences were 
considered as a part of the final rule dated March 7, 2009, on Power 
Reactor Security Requirements (74 FR 13926). In the course of that 
rulemaking, the NRC took into account stakeholder input and determined 
that it would be inappropriate to apply the EDMG requirements to 
permanently shutdown and defueled reactors where the fuel was removed 
from the site or moved to an ISFSI. However, the resulting rule 
inadvertently removed the EDMG requirements once the certifications of 
permanent cessation of operations and removal of fuel from the reactor 
vessel were submitted rather than upon removal of fuel from the SFP. 
The NRC is correcting this error from the 2009

[[Page 39701]]

final rule in this final rule as explained in the ``EDMGs'' portion of 
this section.
    The NRC is excluding from Sec.  50.155 the licensee for Millstone 
Power Station, Unit 1, Dominion Nuclear Connecticut, Inc. Dominion 
Nuclear Connecticut, Inc. is also the licensee for Millstone Power 
Station, Units 2 and 3, but this exclusion applies to Dominion Nuclear 
Connecticut, Inc. in its capacity as licensee for only Unit 1, which is 
not operating but has irradiated fuel in its SFP and satisfies the 
proposed criteria for not having to comply with this final rule except 
for the EDMG requirements. In the course of the development and 
implementation of the guidance and strategies required by new Sec.  
50.155(b)(2), the NRC evaluated whether additional mitigation 
strategies were warranted at Millstone Power Station, Unit 1 and 
concluded that no mitigation strategies were warranted beyond existing 
measures. This conclusion is based principally on the extended decay 
time since the last criticality occurred on November 4, 1995 and the 
fact that this results in low decay heat levels that allow sufficient 
time for the use of existing strategies. The exclusion for Millstone 
Power Station, Unit 1 in this rule is based upon that conclusion, with 
the understanding that additional mitigation capabilities will be 
present because of the licensee's implementation of the Sec.  
50.155(b)(2) strategies at the co-located Millstone Power Station, 
Units 2 and 3.
Mitigating Strategies for Beyond-Design-Basis External Events
    The requirements in Sec.  50.155(b)(1) for mitigating strategies 
make generically applicable requirements previously imposed on 
licensees by the Mitigation Strategies Order, as well as by license 
conditions included in the COLs held by Detroit Edison Company (for 
Enrico Fermi Nuclear Plant, Unit 3), Duke Energy Carolinas, LLC (for 
William States Lee III Nuclear Station, Units 1 and 2), Dominion 
Virginia Power (for North Anna Unit 3) and Florida Power and Light 
Company (for Turkey Point, Units 6 and 7).\3\
---------------------------------------------------------------------------

    \3\ License No. NPF-95, condition 2.D(12)(g); License No. NPF-
101, condition 2.D(12)(j) and License No. NPF-102, condition 
2.D(12)(j); and License No. NPF-103, condition 2.D(12)(f) and 
License No. NPF-104, condition 2.D(12)(h) and License No. NPF-105, 
condition 2.D(12)(h).
---------------------------------------------------------------------------

    Recognizing that beyond-design-basis external events are unbounded, 
and that these events can result in a multitude of damage states and 
associated accident conditions, a significant regulatory challenge is 
developing bounded requirements that meaningfully address the 
regulatory issue. From a practical standpoint, development of 
mitigation strategies requires that there be a reasonable definition 
(or boundary conditions established) for an onsite damage state that 
the strategies would then address and thereby provide an additional 
capability to mitigate beyond-design-basis external event conditions 
that might occur. The assumed damage state should ideally capture a 
reasonable range of potential damage states that might occur as a 
result of beyond-design-basis external events and it should present an 
immediate challenge to the key safety functions for the facilities, so 
that the resultant strategies provide greater capabilities and can 
improve safety. An assumed damage state that accomplishes this 
objective is the loss of all ac power.
    The MBDBE rule and the Mitigation Strategies Order both require the 
mitigation of a loss of all ac power condition. Both the MBDBE rule and 
the Mitigation Strategies Order address this requirement in two parts: 
(1) Through an assumed damage stage that is used to develop the 
strategies and guidelines for the mitigation of beyond-design-basis 
external events, and (2) through supporting contingencies within the 
strategies that address conditions that are more severe than those 
assumed to develop the strategies and guidelines. The assumed damage 
state for this rule is the same as that assumed to implement the 
requirements of attachment 2 to the Mitigation Strategies Order for 
currently operating power reactors: A loss of all ac power condition 
concurrent with an LUHS. This assumed damage state is effective at 
immediately challenging the key safety functions of core cooling, 
containment, and SFP cooling following a beyond-design-basis external 
event. Requiring strategies to maintain or restore these key functions 
under such circumstances results in an additional mitigation capability 
consistent with the Commission's objective when it issued the 
Mitigation Strategies Order.
    As discussed in Section IV.D, ``Loss of All Alternating Current 
Power,'' of this document, the public comments provided on the MBDBE 
proposed rule showed some confusion regarding the requirement for loss 
of all ac power. The proposed rule contained the language ``extended 
loss of all ac power.'' The requirements in Sec.  50.155(b)(1) provide 
for a capability to maintain or restore key functional capabilities 
indefinitely, or until sufficient site functional capabilities can be 
maintained without the need for mitigation strategies. As such, the 
word ``extended'' was unnecessary, and the NRC deleted it to reduce 
confusion with the ``ELAP'' term used in industry guidance; 
implementation of the requirements in Sec.  50.155(b)(1) involves the 
use of contingencies that address damage states more severe than an 
assumed ELAP. Together, therefore, the assumed ELAP and the 
contingencies are the means for meeting a loss of all ac power 
requirement.
    This MBDBE rule is not prescriptive in terms of the specific set of 
initial and boundary conditions assumed for the loss of all ac power 
and LUHS condition. The damage state for currently operating reactors, 
defined in more detail in RG 1.226, reflects currently operating power 
reactor designs and the reliance of those designs on ac power, while 
the assumed damage state for a future design may be different depending 
upon the design features. Specifically, the damage state of a loss of 
all ac power condition concurrent with an LUHS in the Mitigation 
Strategies Order was implemented first through the assumption of an 
ELAP, while allowing ac power from the inverters to be assumed 
available. This assumption is used to establish event sequence and the 
associated times for when mitigation actions would be assumed to be 
required. Secondly, to address the MBDBE rule and the Mitigation 
Strategies Order requirement for a loss of all ac power, including ac 
power from the batteries (through inverters), contingencies are 
included in the mitigation strategies to enable actions to be taken 
under those circumstances (e.g., sending operators to immediately take 
manual control over a non ac-powered core cooling pump). As such, this 
provision makes generically applicable the current implementation under 
the Mitigation Strategies Order with no intent to either relax or 
impose new requirements and is performance-based to allow some 
flexibility for future designs. As an example, some reactor designs 
(e.g., Westinghouse AP1000 and General Electric Economic Simplified 
Boiling Water Reactor (ESBWR)) use passive safety systems to meet NRC 
requirements for maintaining key safety functions. The inherent design 
of those passive safety systems makes certain assumptions, such as 
LUHS, inappropriate. Accordingly, the assumed condition for the 
mitigation strategies requirements for passive reactors is the loss of 
normal access to the normal heat sink, discussed further in this 
section. Nevertheless, in this rule the NRC is requiring that the 
strategies and guidelines be capable of

[[Page 39702]]

implementation during a loss of all ac power.
    Regarding the assumed LUHS for COLs or applications referencing the 
AP1000 or the ESBWR designs, the assumption was modified to be a loss 
of normal access to the normal heat sink (see, e.g., attachment 3 to 
the Mitigation Strategies Order and the Enrico Fermi Nuclear Plant, 
Unit 3 license, License No. NPF-95, condition 2.D(12)(g)). This 
modified language reflects the passive design features of the AP1000 
and the ESBWR that provide core cooling, containment, and spent fuel 
cooling capabilities for 72 hours without reliance on ac power. These 
features do not rely on access to any external water sources for the 
first 72 hours because the containment vessel and the passive 
containment cooling system serve as the safety-related ultimate heat 
sink for the AP1000 design and the isolation condenser system serves as 
the safety-related ultimate heat sink for the ESBWR design.
    As discussed previously, the range of beyond-design-basis external 
events is unbounded. The MBDBE rule is not intended, and should not be 
understood, to mean that the mitigation strategies can adequately 
address all postulated beyond-design-basis external events. It is 
always possible to postulate a more severe event that causes greater 
damage and for which the mitigation strategies may not be able to 
maintain or restore the functional capabilities (e.g., meteorite 
impact). Instead, the MBDBE requirements provide additional mitigation 
capability in light of uncertainties associated with external events, 
consistent with the NRC's regulatory objective for issuance of the 
Mitigation Strategies Order.
    The MBDBE rule requires that the mitigating strategies for beyond-
design-basis external events in Sec.  50.155(b)(1) be capable of being 
implemented site-wide. This recognizes that severe external events are 
likely to impact the entire reactor site and for multi-unit sites, 
damage all the power reactor units on the site. This requirement means 
that there needs to be sufficient equipment and supporting staff to 
enable the maintenance or restoration of core cooling, containment, and 
SFP cooling functions for all the power reactor units on the site. This 
is a distinguishing characteristic of this set of mitigation strategies 
from those in Sec.  50.155(b)(2), for which the damage state is a more 
limited, albeit large area of a single plant, reflecting the hazards 
for which that set of strategies was developed.
    The NRC gave consideration to whether there should be changes made 
to Sec.  50.63 (the Station Blackout Rule) to link those requirements 
with this rule. This consideration stemmed from recommendation 4.1 of 
the NTTF Report to ``initiate rulemaking to revise 10 CFR 50.63'' and 
the understanding that this rule could result in an increased SBO 
coping capability, in addition to the regulatory objectives of the 
MBDBE rule, which provide additional beyond-design-basis external event 
mitigation. Because of the substantive differences between the 
requirements of Sec.  50.63 for licensees to be able to withstand and 
recover from an SBO and the MBDBE requirements, the NRC determined that 
such a linkage is not necessary and could lead to regulatory confusion.
    The principal regulatory objective of Sec.  50.63 was to establish 
SBO coping durations for a specific scenario: The loss of offsite power 
coincident with a failure of all trains of emergency onsite ac power 
(typically, the failure of multiple emergency diesel generators). In 
meeting this regulatory objective, the NRC understood that there would 
be safety benefits accrued through the provision of an alternate ac 
source diverse from the emergency diesel generators and therefore 
defined ``alternate ac source'' in Sec.  50.2. The NRC defined the 
event a licensee must withstand and recover from as a ``station 
blackout'' rather than a ``loss of all ac power.'' An SBO allows for 
continued availability of ac power to buses fed by station batteries 
through inverters or by alternate ac sources. The MBDBE rule requires 
an additional capability to mitigate beyond-design-basis external 
events. Because the condition assumed for the mitigation strategies to 
establish the additional mitigation capability includes a loss of all 
ac power, which is more conservative than an SBO as defined in Sec.  
50.2 (because it covers an indefinite period, not a loss for a certain 
amount of time, and it also assumes the loss of alternate ac sources), 
there can be a direct relationship between the two different sets of 
requirements with regard to the actual implementation at the facility. 
Specifically, implementation of the mitigation strategies links into 
the SBO procedures (e.g., the applicable strategies would be 
implemented to maintain or restore the key safety functions when the 
EOPs reach a ``response not obtained'' juncture).\4\
---------------------------------------------------------------------------

    \4\ One of the formats for symptom-based EOPs that are used in 
the operating power reactors has the operators take an action and 
verify that the system responds to the action in a manner that 
confirms that the action was effective. For example, a step in an 
EOP could be to open a valve in order to allow cooling water flow, 
and the verification would be obtained by confirming there are 
indications that flow has commenced, such as a decrease in 
temperature of the system being cooled. If those indications are not 
obtained, the procedure would provide instructions on the next step 
to accomplish in a separate column labeled ``response not 
obtained.''
---------------------------------------------------------------------------

    Step-by-step procedures are not necessary for many aspects of the 
mitigation strategies and guidelines. Rather, the strategies and 
guidelines are intended to be flexible, and enable plant personnel to 
adapt them to the conditions that result from the beyond-design-basis 
external event. The provisions typically would result in strategies and 
guidelines that use both installed and portable equipment, instead of 
only relying on installed ac power sources (with the exception of 
protected battery power) to maintain or restore core cooling, 
containment, and SFP cooling capabilities. By using equipment that is 
separate from the normal installed ac-powered equipment, the strategies 
and guidelines have a diverse attribute. By having available multiple 
sets of portable equipment that can be deployed and used in multiple 
ways depending on the circumstances of the event, operators are able to 
implement strategies and guidelines that are flexible and adaptable.
    The mitigation strategies requirements are both performance-based 
and functionally-based. The performance-based requirements recognize 
that the new requirements provide most benefit to future reactors whose 
designs could differ significantly from current power reactor designs 
and as such, use of more prescriptive requirements could be problematic 
and create unnecessary regulatory impact and need for exemptions. Use 
of functionally-based requirements results from the need to have 
requirements that can address a wide range of damage states that might 
exist following beyond-design-basis external events. Maintaining or 
restoring three key functions (core cooling, containment, and SFP 
cooling) supports maintenance of the fission product barriers (i.e., 
fuel clad, reactor coolant pressure boundary, and containment) and 
results in an effective means to mitigate these events, while remaining 
flexible such that the strategies and guidelines can be adapted to the 
damage state that occurs. Functionally-based requirements also result 
in strategies that align well with the symptom-based procedures used by 
power reactors to respond to accidents. Accordingly, the Mitigation 
Strategies Order contained requirements for a three-phased approach for 
current operating reactors. The MBDBE rule does not specify a number of 
phases; instead, it establishes higher-level, performance-based

[[Page 39703]]

requirements consistent with this discussion. Section IV.K, 
``Consideration of Explicit Requirements for a Three-Phase Response,'' 
of this document contains further discussion of this aspect of the 
MBDBE rule.
    The NRC considered incorporating into this rule a requirement that 
licensees be capable of implementing the strategies and guidelines 
``whenever there is irradiated fuel in the reactor vessel or spent fuel 
pool.'' This provision would have been a means of making generically 
applicable the requirement from the Mitigation Strategies Order that 
licensees be capable of implementing the strategies and guidelines ``in 
all modes.'' The NRC considered the terminology ``whenever there is 
irradiated fuel in the reactor vessel or spent fuel pool'' to be a 
better means to address the order requirement because the phrase did 
not use technical specification type language (i.e., modes), which is 
in effect when a licensee completely offloads the fuel from the reactor 
vessel into the SFP during an outage. The NRC did not use the phrases, 
``whenever there is irradiated fuel in the reactor vessel or spent fuel 
pool,'' or, ``in all modes,'' in the MBDBE rule and instead structured 
the applicability provisions to achieve this same objective by 
requiring licensees to have mitigation strategies for beyond-design-
basis external events for the various configurations that can exist for 
the reactor and SFPs throughout the operational, refueling, and 
decommissioning phases.
    The mitigation strategies and guidelines implemented under the 
Mitigation Strategies Order assume a demanding condition that maximizes 
decay heat that would need to be removed from the reactor core and SFP 
source terms on site. This implementation results in a more restrictive 
timeline (i.e., mitigation actions required sooner to maintain or 
restore cooling to these source terms) and a greater resulting 
additional capability. These assumed at-power conditions are 100 days 
at 100 percent power prior to the occurrence of the beyond-design-basis 
event for the reactor core, consistent with the assumption used for 
Sec.  50.63. This assumption establishes a conservative decay heat for 
the reactor source term. The assumed SFP conditions include the design 
basis heat load for the SFP, which is typically a full core offload 
following a refueling outage, as the heat load that is used for the 
sizing of FLEX equipment. For the purposes of determining the response 
time for the SFP strategies when fuel is in the reactor vessel, the 
rate of inventory loss of the SFP is calculated based on the worst case 
conditions for SFP heat load assuming the plant is at power. The NRC 
considers the development of timelines for the mitigation strategies 
using these assumptions for the reactor core and SFP to be appropriate.
    The NRC recognizes the difficulty of developing engineered 
strategies for the extraordinarily large number of possible plant and 
equipment configurations that might exist under shutdown conditions 
(i.e., at shutdown when equipment may be removed from service, when 
there is ongoing maintenance and repairs or refueling operations, or 
modifications are being implemented). Licensees must be cognizant of 
such configurations, equipment availability, and decay heat states that 
could present greater challenges under these conditions and design 
mitigation strategies that can be implemented under such circumstances.
    The NRC considered incorporating requirements into the MBDBE rule 
that would require strategies to be developed that specifically assume 
that delays in the receipt of offsite resources occur as a result of 
damage to the transportation infrastructure. While severe events could 
damage local infrastructure, and could create challenges with regard to 
the delivery of offsite resources, the NRC concluded that having this 
level of specificity in the MBDBE rule is not necessary. Instead, this 
rule contains provisions that are more performance-based, requiring 
continued maintenance or restoration of the functional capabilities 
until acquisition of offsite assistance and resources. Potential delays 
and other challenges presented by extreme events that affect 
acquisition and use of offsite resources are addressed by licensee 
programs that implement the provisions of this rule.
    The Mitigation Strategies Order included a requirement that 
licensees develop guidance and strategies to obtain ``sufficient 
offsite resources to sustain [the functions of core cooling, 
containment, and SFP cooling] indefinitely.'' The NRC considered using 
this language in this rule, but concluded that this would be better 
phrased as ``indefinitely, or until sufficient site functional 
capabilities can be maintained without the need for the mitigation 
strategies.'' The NRC concluded that this phrase more clearly 
communicates the existence of a transition from the use of the 
mitigation strategies to recovery operations.
EDMGs
    In recognition of the similarity of the existing EDMGs formerly in 
Sec.  50.54(hh)(2) to the strategies required by Sec.  50.155(b)(1), 
the NRC relocated the EDMGs into the MBDBE rule as Sec.  50.155(b)(2). 
In addition to moving the text, the NRC made a few editorial changes. 
The wording used to describe these requirements has evolved from 
``guidance and strategies,'' in Order EA-02-026, ``Interim Safeguards 
and Security Compensatory Measures,'' dated February 25, 2002, to 
``strategies,'' in the corresponding license conditions, to ``guidance 
and strategies,'' in Sec.  50.54(hh)(2), to its current form, 
``strategies and guidelines.'' The word ``guidelines'' was chosen 
rather than ``guidance'' to more accurately reflect the nature of the 
instructions that a licensee could develop and to avoid confusion with 
the term ``regulatory guidance.'' The word ``strategies'' is used in 
this rule to reflect its meaning, ``plans of action.'' The resulting 
plans of action may include plant procedures, methods, or other 
guideline documents, as deemed appropriate by the licensee during the 
development of these strategies. These plans of action also include the 
arrangements made with offsite responders for support during an actual 
event. No substantive change to the requirements is intended by this 
change in the wording.
    The final rule clarifies the Sec.  50.155(b)(2) requirements by 
adding the phrase ``impacted by the event'' in order to differentiate 
these requirements from those located in Sec.  50.155(b)(1). The 
requirements in Sec.  50.155(b)(2), which address the loss of large 
areas of the plant, are limited to the areas of the plant impacted by 
the event, and as such, are not intended to address a site-wide event. 
This clarification was necessary as a result of the relocation of these 
requirements to the MBDBE rule and their juxtaposition with the 
mitigation strategies for beyond-design-basis external events in Sec.  
50.155(b)(1), which are for a site-wide event. The events for which 
EDMGs would be used can impact key equipment that is shared between 
power reactor units (i.e., SFPs), and that is why the NRC did not use 
language that would have limited the application of these requirements 
to an individual power reactor unit. This clarification is to preserve 
the scope of this requirement and specifically avoid an unintended 
imposition of a new requirement.
    Applicability of the requirements of Sec.  50.155(b)(2) was 
formerly governed by Sec.  50.54(hh)(3), which made these requirements 
inapplicable following the submittal of the certifications required 
under Sec.  50.82(a) or Sec.  52.110(a)(1). As discussed in the Power 
Reactor Security Requirements final rule, the NRC concludes that it is 
inappropriate for the requirements for EDMGs to apply to a

[[Page 39704]]

permanently shutdown, defueled reactor, where the fuel was removed from 
the site or moved to an ISFSI. The NRC is requiring EDMGs for a 
licensee with permanently shutdown defueled reactors, but with 
irradiated fuel still in its SFP, because the licensee must be able to 
implement effective mitigation measures for large fires and explosions 
that could impact the SFP while it contains irradiated fuel. The MBDBE 
rule corrects the former Sec.  50.54(hh)(3) to implement the sunsetting 
of the associated requirement as intended by the Commission in 2009. 
This change does not constitute backfitting for currently operating 
reactors (except Watts Bar Nuclear Plant, Unit 2), current COL holders, 
and currently decommissioning reactors with spent irradiated fuel in 
their SFP (except Millstone Power Station, Unit 1, as it is not subject 
to Sec.  50.155) because the EDMGs are also required by the licensee's 
license conditions. Watts Bar Nuclear Plant, Unit 2, does not have the 
license condition, but TVA has consented to the imposition of this 
requirement without the NRC conducting a backfit analysis for this 
imposition on Watts Bar Nuclear Plant, Unit 2. The NRC request for 
TVA's consent and TVA's response are referenced in Section XIX, 
``Availability of Documents,'' of this document.
    In the proposed MBDBE rule, the NRC discussed secondary containment 
aspects of the mitigation strategies in the decommissioning provisions 
of Sec.  50.155(a) for licensees that rely on secondary containment as 
a fission product barrier for their SFPs. The intent of the proposed 
requirement was to document the requirement without changing the 
requirements that had been imposed under the Mitigation Strategies 
Order and Sec.  50.54(hh)(2). In the course of interactions with the 
ACRS and during the CER meeting, the NRC received feedback that this 
phrasing of the requirement was confusing. Therefore, the NRC has 
revised the final MBDBE rule to eliminate the discussion of secondary 
containment in the decommissioning provisions of Sec.  50.155(a).
Equipment
    The MBDBE rule contains requirements for licensee equipment that is 
relied upon for use in mitigation strategies and guidelines. This final 
rule makes generically applicable requirement (2) in attachments 2 and 
3 of the Mitigation Strategies Order, which reads as follows: ``These 
strategies must . . . have adequate capacity to address challenges to 
core cooling, containment, and SFP cooling capabilities at all units on 
a site subject to this Order.''
    The industry guidance of NEI 12-06, as endorsed by NRC interim 
staff guidance JLD-ISG-2012-01, included specifications for each 
licensee's provision of a spare capability in order to assure the 
reliability and availability of the equipment required to provide the 
capacity and capability requirements of the Mitigation Strategies 
Order. This ``spare capability'' was also referred to within the 
guidance as an ``N+1'' capability, where ``N'' is the number of power 
reactor units on a site. The NRC considered including requirements 
similar to the spare capability specification of NEI 12-06 in this rule 
but determined that such an inclusion would be too prescriptive and 
could result in the need to grant exemptions for alternate approaches 
that provide an effective and efficient means to provide the required 
capability. One example of this is in the area of flexible hoses, for 
which a strict application of the spare capability guidance could 
necessitate a licensee's provision of spare hose or cable lengths 
sufficient to replace the longest run of hoses being used by the 
licensee, when significant operating experience with similar hoses for 
fire protection does not show a failure rate that would support the 
need for such a spare capability.
    The development of the mitigation strategies in response to the 
Mitigation Strategies Order relied upon a variety of initial and 
boundary conditions that were provided in the regulatory guidance of 
JLD-ISG-2012-01 and NEI 12-06. These initial and boundary conditions 
followed the philosophy of the basis for imposition of the requirements 
of the Mitigation Strategies Order, which was to require additional 
defense-in-depth measures to provide continued reasonable assurance of 
adequate protection of public health and safety. As a result, the 
industry response to the Mitigation Strategies Order includes diverse 
and flexible means of accomplishing safety functions rather than 
providing an additional further hardened train of safety equipment. 
These requirements and conditions included the acknowledgement that, 
due to the fact that initiation of an event requiring use of the 
strategies would include multiple failures of safety-related SSCs, it 
is inappropriate to postulate further failures that are not 
consequential to the initiating event. As a result, the NRC has 
determined that the conditions to which the instrumentation (as a class 
of equipment), that would be relied on for the mitigation strategies, 
would be exposed do not include conditions stemming from fuel damage. 
Instead, those conditions are limited to the initial and boundary 
conditions set forth in the guidance and include the conditions assumed 
to result from a postulated beyond-design-basis external event used in 
developing the guidelines and strategies under the MBDBE rule. The NRC 
has determined that it should not be necessary for the instrumentation 
to be designed specifically for use in the mitigation strategies and 
guidelines, but instead it would be necessary that the design and 
associated functional performance be sufficient to meet the demands of 
those strategies (i.e., a licensee may rely upon existing 
instrumentation that is capable of operating in the conditions 
anticipated for the required strategies and guidelines rather than 
replacing it with new instrumentation specifically designed for those 
conditions). For example, NEI 12-06, which is endorsed in RG 1.226, 
includes a discussion in section 3.2.1.12 regarding the basis that 
should be provided for plant equipment that is relied upon in the 
mitigation strategies.
    The MBDBE requirements cover events that are not included in 
design-basis events as that term is used in the Sec.  50.2 definition 
of ``safety-related structures, systems, and components.'' Because of 
this, reliance on equipment for use in the mitigation strategies does 
not result in the applicability of the PDC as described in GDC 2 of 
appendix A to 10 CFR part 50. The MBDBE rule requires reasonable 
protection for the equipment relied on for the mitigation strategies 
against the effects of natural phenomena that are equivalent in 
magnitude to the phenomena assumed for developing the design basis for 
the facility.
    Because the events for which the mitigation strategies are to be 
used are outside the scope of the design-basis events considered in 
establishing the basis for the design of the facility, equipment that 
is relied upon solely for those mitigation strategies does not fall 
within the scope of Sec.  50.65 (the Maintenance Rule). Nevertheless, 
the equipment used to implement the mitigation strategies must receive 
adequate maintenance in order to assure that it is capable of 
fulfilling its intended function, and thereby ensure that the 
requirement to develop, implement, and maintain the mitigation 
strategies continues to be met.
    This rulemaking does not revise the regulatory treatment of 
equipment relied upon for the EDMGs now relocated to Sec.  
50.155(b)(2). The regulatory treatment of that equipment remains as it 
is described in NEI 06-12, the endorsed

[[Page 39705]]

guidance document for those strategies and guidelines.
    The NRC recognizes that existing nuclear power reactors with 
operating licenses issued under 10 CFR part 50 and those new nuclear 
power reactors with COLs issued under 10 CFR part 52 or operating 
licenses issued under 10 CFR part 50 may establish different approaches 
in developing strategies to mitigate beyond-design-basis events. For 
example, new nuclear power plants may use installed plant equipment for 
both the initial and long-term response to a loss of all ac power with 
less reliance on offsite resources than existing nuclear power 
reactors. Under Sec.  50.155(c), the NRC will consider the specific 
plant approach when evaluating the SSCs relied on as part of the 
mitigation strategies for beyond-design-basis events.
Training
    The mitigation of the effects of beyond-design-basis events using 
the strategies and guidelines is principally accomplished through 
manual actions rather than automated plant responses. Additionally, the 
instructions provided for event mitigation may be largely provided as 
high level strategies and guidelines rather than step-by-step 
procedures. The use of strategies and guidelines supports the ability 
to adapt the mitigation measures to the specific plant damage and 
operational conditions presented by the event. However, effective use 
of this flexibility depends upon the knowledge and abilities of 
personnel to select appropriate strategies or guidelines from a range 
of options and implement mitigation measures using equipment or methods 
that may differ from those employed for normal operation or design-
basis event response. As a result, the NRC considers personnel training 
necessary to ensure that individuals are capable of effectively 
performing the roles and responsibilities established in the strategies 
and guidelines that are required by this rule.
Spent Fuel Pool Monitoring
    The MBDBE rule requires licensees to have a means to remotely 
monitor wide-range SFP level as a separate requirement within the MBDBE 
rule, which makes the requirements of the SFPI Order generically 
applicable. While many licensees make use of this instrumentation to 
support implementation of the mitigation strategies, the 
instrumentation requirement was imposed under the SFPI Order to address 
the potential for the licensee personnel to be distracted from other 
issues by the status of the SFP and thereby enable the operators to re-
prioritize resources, if necessary, following a beyond-design-basis 
external event. This requirement has a separate purpose from the 
mitigation strategies requirements: To provide a reliable indication of 
the water level in the SFP to allow prioritization of response actions 
between the core and the SFP. Therefore, this requirement was moved to 
paragraph (e) in the final rule to ensure a continued separation of the 
requirements. The NRC considered including the detailed requirements 
from the SFPI Order within the MBDBE rule but determined that the more 
performance-based approach taken with this rule allows an applicant for 
a new reactor license or design certification to provide innovative 
solutions to address the need to effectively prioritize event 
mitigation and recovery actions between the source term contained in 
the reactor vessel and that contained within the SFP.
    In the course of implementation of the SFPI Order requirements, one 
lesson learned was that the need for prioritization of event mitigation 
and recovery actions is inapplicable to SFPs for which the decay heat 
load is sufficiently low that SFP cooling is not challenged in the same 
time frame as event progression for the reactor core. This was 
documented in the regulatory guidance of JLD-ISG-2012-03 and NEI 12-02, 
``Industry Guidance for Compliance with NRC Order EA-12-051, `To Modify 
License with Regard to Reliable Spent Fuel Pool Instrumentation,' '' 
Revision 1, which eliminates from the definition of an applicable SFP a 
pool that does not contain fuel used for the generation of power within 
the preceding 5 years. This is clarified in the MBDBE rule in Sec.  
50.155(e) by including a termination of the requirement once 5 years 
have elapsed since the fuel within the pool was last used for power 
generation in a reactor vessel.
Documentation of Changes
    Because the MBDBE rule requirements address beyond-design-basis 
events, currently existing change control processes, including most 
notably Sec.  50.59, may not address all aspects of a contemplated 
change to the strategies and guidelines under this rule. Therefore, the 
MBDBE rule includes a provision intended to supplement the existing 
change control processes and focus on the beyond-design-basis aspects 
of proposed changes. The MBDBE rule does not contain criteria typically 
included in other change control processes that are used as a threshold 
for determining when a licensee needs to seek NRC review and approval 
prior to implementing the proposed change. Instead, the MBDBE rule 
requires that licensees perform evaluations of proposed changes 
sufficient to reach a conclusion that the MBDBE rule requirements 
continue to be met and to document and maintain this evaluation to 
support NRC oversight of these activities. The final rule is revised to 
more clearly reflect this approach by referring to these requirements 
in Sec.  50.155(f) as ``Documentation of Changes.''
    The NRC requested stakeholder feedback concerning the change 
control provisions for the MBDBE rule. The feedback provided is 
discussed in Section IV of this document. The NRC concludes that the 
final rule will follow the same approach contained in the proposed rule 
as discussed in Section VI of this document. Notwithstanding this 
conclusion, the NRC is revising the discussion in this document for 
this provision to clarify its meaning and intent.
    The NRC determined that the changes whose acceptability would be 
most difficult to judge are those that do not fall within endorsed 
guidance or are not NRC-approved alternative approaches taken at 
another licensed facility that can be demonstrated to apply to the 
licensee's facility. Changes to the implementation of the MBDBE 
requirements that remain consistent with regulatory guidance are 
clearly acceptable because such changes ensure continued compliance 
with the MBDBE requirements. The NRC recognizes that licensees may wish 
to make changes to the implementation of these requirements that do not 
follow current regulatory guidance for this rulemaking and that are not 
an approved alternative that the licensee can demonstrate applies to 
their facility. To clarify the MBDBE rule requirements for 
documentation of changes, the NRC added additional information to 
Section VI of this document that discusses potential changes, which are 
outside endorsed guidance or approved alternatives, that would clearly 
not constitute ``demonstrated compliance.''
    During public discussions before issuance of the proposed rule, a 
stakeholder suggested that the NRC should consider a provision to allow 
a licensee to request NRC review of a proposed change, and that if the 
NRC did not act upon the request for a suggested time period (e.g., 180 
days), then the request would be considered ``acceptable,'' similar to 
the process for changes to the quality assurance program description 
under

[[Page 39706]]

Sec.  50.54(a)(4)(iv). The NRC did not include this form of tacit 
approval process in the MBDBE rule and instead included provisions in 
the MBDBE rule to place on licensees the responsibility for ensuring 
that proposed changes result in continued compliance with the rule, 
subject to NRC oversight, or are otherwise submitted to the NRC under 
the Sec.  50.12 exemption process.
    A licensee may intend to change its facility, procedures, or 
guideline sets to revise some aspect of beyond-design-basis mitigation 
governed by the MBDBE rule in a manner that can impact multiple aspects 
of the facility, including ``design basis'' aspects of the facility 
subject to other regulations and change control processes. As 
previously discussed, the NRC anticipates that licensees will ensure 
that changes to the implementation of the MBDBE requirements are 
consistent with endorsed guidance, or otherwise demonstrate continued 
compliance with the MBDBE rule. This same change also could impact 
safety-related SSCs, either directly (e.g., a proposed change that 
impacts a physical connection of mitigation strategies equipment to a 
safety-related component or system) or indirectly (e.g., a proposed 
change that involves the physical location of mitigation equipment in 
the vicinity of safety-related equipment that presents a potential for 
adverse physical/spatial interactions with safety-related components). 
As a result, Sec.  50.59 and other change control processes, as 
appropriate, would need to be applied to evaluate the proposed change 
for acceptability under any other applicable change control process.
    Additionally, proposed changes can impact numerous aspects of the 
facility beyond the safety-related impacts, including implementation of 
fire protection requirements, security requirements, emergency 
preparedness requirements, or safety/security interface requirements. A 
licensee must therefore ensure that all applicable change control 
provisions are used to judge the acceptability of facility changes. 
Additionally, recognizing the nature of mitigation strategies and the 
reliance on human actions, a licensee also needs to ensure that the 
proposed changes satisfy the safety/security interface requirements of 
Sec.  73.58. While the obligation of a licensee to comply with all 
applicable requirements might be viewed as making the provision in 
Sec.  50.155(f)(2) unnecessary, the NRC recognizes the potential 
complexity of proposed facility changes and the complexity of existing 
regulatory requirements that govern change control. Therefore, the NRC 
concluded that adding the Sec.  50.155(f)(2) provision for 
documentation of changes was warranted for the purposes of regulatory 
clarity.
Implementation
    Section 50.155(g) provides a 2-year implementation period to 
provide sufficient time to allow licensees to review their previous 
compliance with the Mitigation Strategies and SFPI Orders and make any 
necessary changes to programs, plans, procedures, and guidelines to 
reflect and reference the newly issued Sec.  50.155 requirements. This 
implementation period is 3 years for licensees that received Order EA-
13-109. These licensees are allowed an additional year of 
implementation in order to alleviate CER by allowing the same amount of 
time following achievement of full compliance with that order, which 
was issued a year after the Mitigation Strategies and SFPI Orders.
    In contrast with the portions of the final MBDBE rule that make the 
Mitigation Strategies and SFPI Orders generically applicable, Sec.  
50.155(b)(2) continues the requirements that were previously in Sec.  
50.54(hh)(2). Currently operating power reactor licensees have all 
achieved compliance with these requirements. Therefore, Sec.  50.155(g) 
requires that licensees subject to the requirements of Sec.  
50.155(b)(2) continue to comply with those requirements during the 
implementation period for the remainder of the final MBDBE rule.
Order Withdrawal and Removal of License Conditions
    The NRC is including in the final rule specific terms that withdraw 
orders and remove license conditions that are substantively redundant 
with provisions in the final rule. As discussed in this section, a 
primary objective of this rulemaking is to make the requirements of the 
Mitigation Strategies and SFPI Orders generically applicable to power 
reactor licensees and applicants, taking into account lessons learned 
in the orders' implementation and stakeholder feedback received through 
the regulatory process. As such, the requirements of Sec.  50.155 fully 
replace the requirements of those orders. Although the orders provide 
for their relaxation or rescission on a licensee-specific basis, use of 
that process would be an inefficient and unnecessary administrative 
burden on licensees and the NRC--with no impact on public health and 
safety--because the final rule simultaneously replaces the orders in 
their entirety for all applicable licensees. Therefore, the NRC finds 
that good cause is shown to withdraw the Mitigation Strategies and SFPI 
Orders for all licensees that received those orders once the MBDBE rule 
goes into effect and licensees are in compliance with it. The 
withdrawal date for these orders was set to be the latest date for 
compliance by licensees in receipt of the orders to prevent a 
regulatory gap.
    The NRC is also removing certain license conditions contained 
within the COLs held by Detroit Edison Company (for Enrico Fermi 
Nuclear Plant, Unit 3), Duke Energy Carolinas, LLC (for William States 
Lee III Nuclear Station, Units 1 and 2), Dominion Virginia Power (for 
North Anna Unit 3) and Florida Power and Light Company (for Turkey 
Point, Units 6 and 7). These licensees did not receive the Mitigation 
Strategies and SFPI Orders because the NRC had not issued COLs to these 
licensees at the time the NRC issued the Orders. When the NRC issued 
those COLs, it included license conditions that are equivalent to the 
orders' requirements. Because the license conditions contain the same 
requirements as the orders, and the provisions of Sec.  50.155 replace 
the requirements imposed by the orders, the license conditions contain 
requirements equivalent to Sec.  50.155 and will not be necessary once 
the MBDBE rule goes into effect. Therefore, the mitigation strategies 
for beyond-design-basis external events license conditions will be 
deemed removed from the Enrico Fermi Nuclear Plant, Unit 3, William 
States Lee III Nuclear Station, Units 1 and 2, North Anna Unit 3, and 
Turkey Point, Units 6 and 7 COLs on September 9, 2019.
    In addition to license conditions corresponding to the Mitigation 
Strategies Orders, the COLs for Enrico Fermi Nuclear Plant, Unit 3, 
William States Lee III Nuclear Station, Units 1 and 2, North Anna Unit 
3, and Turkey Point, Units 6 and 7 included license conditions for the 
performance of staffing and communications assessments that correspond 
to the requests for information on those subjects in the NRC letter 
issued under Sec.  50.54(f) on March 12, 2012. As discussed in COMSECY-
13-0010, ``Schedule and Plans for Tier 2 Order on Emergency 
Preparedness for Japan Lessons Learned,'' with regard to the 
interaction between licensee response to the Sec.  50.54(f) letter and 
compliance with the Mitigation Strategies Order, ``the implementation 
of NEI 12-06 has a dependency on NEI 12-01, `Guideline for Assessing 
Beyond Design Basis Accident Response Staffing and Communications 
Capabilities,' which was developed to address Tier 1 NTTF 9.3 
Recommendation regarding staffing

[[Page 39707]]

and communications. NEI 12-06 will utilize the staffing and 
communication resources identified in NEI 12-01.'' Because the 
implementation of the final rule uses the same guidance as an 
acceptable means of compliance, there is no longer a need to collect 
this information for these licensees because there will be no 
additional regulatory action taken to modify, suspend, or revoke their 
licenses and the licensees are obligated to instead comply with the new 
requirements. Therefore, the license conditions calling for staffing 
and communications assessments for these licensees will be deemed 
removed on September 9, 2019.
    Because the final rule removes certain license conditions without 
actually amending the associated licenses, the NRC will issue by letter 
an administrative license amendment to each applicable licensee that 
will remove the relevant license condition(s) from that licensee's 
license and include revised license pages.
    For each of these orders being withdrawn and license conditions 
being removed, the NRC is replacing it with equivalent requirements in 
the MBDBE rule. Although the NRC did not include these measures in the 
MBDBE proposed rule, the NRC provided sufficient notice and an 
opportunity to comment under the Administrative Procedure Act (5 U.S.C. 
553(b)) when it issued the MBDBE proposed rule. In the proposed rule, 
the Commission explained that the NRC would make generically applicable 
certain requirements in the Mitigation Strategies and SFPI Orders and 
related license conditions. The Commission's decision to remove these 
license conditions now that they are unnecessary was reasonably 
foreseeable, just as it was foreseeable that the Commission would 
withdraw the orders. Additionally, the Commission was informed by 
comments from the public that warned of potential unintended 
consequences from having duplicate requirements in orders, license 
conditions, and regulations. Thus, this aspect of the final rule, like 
the rest of the final rule, is a logical outgrowth of the proposed 
rule. Under the logical outgrowth line of legal decisions (e.g., Long 
Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007); National Mining 
Ass'n v. Mine Safety and Health Administration, 512 F.3d 696 (D.C. Cir. 
2008)), the public had adequate notice and opportunity to comment on 
the withdrawal of orders and removal of license conditions.
Technology-Neutral Emergency Response Data System
    The requirements of section VI of appendix E to 10 CFR part 50, for 
the ERDS are amended to reflect the use of up-to-date technologies and 
remain technology-neutral so that the equipment supplied by the NRC 
continues to be replaced as needed, without the need for future 
rulemaking as equipment becomes obsolete. In 2005, the NRC initiated a 
comprehensive, multi-year effort to modernize aspects of the ERDS, 
including the hardware and software that constitute the ERDS 
infrastructure at NRC headquarters, as well as the technology used to 
transmit data from licensed power reactor facilities. As described in 
NRC Regulatory Issue Summary 2009-13, ``Emergency Response Data System 
Upgrade from Modem to Virtual Private Network Appliance,'' the NRC 
engaged licensees in a program that replaced the existing modems used 
to transmit ERDS data with virtual private network devices. The 
licensees now have less burdensome testing requirements, faster data 
transmission rates, and increased system security.

VI. Section-by-Section Analysis

Sec.  50.8 Information Collection Requirements: OMB Approval

    This section, which lists all information collections in 10 CFR 
part 50 that have been approved by the Office of Management and Budget 
(OMB), is revised by adding a reference to Sec.  50.155, the MBDBE 
rule. As discussed in Section XIV, ``Paperwork Reduction Act,'' of this 
document, the OMB has approved the information collection and reporting 
requirements in the MBDBE rule. No specific requirement or prohibition 
is imposed on applicants or licensees in this section.

Sec.  50.34 Contents of Applications; Technical Information

    Section 50.34 identifies the technical information that must be 
provided in applications for construction permits and operating 
licenses. Paragraphs (a) and (b) of this section identify the 
information to be submitted as part of the preliminary or final safety 
analysis report, respectively. Revised paragraph (i) of this section 
identifies information to be submitted as part of an operating license 
application but not necessarily included in the final safety analysis 
report.
    The NRC is making an administrative change to Sec.  50.34(a)(13) 
and (b)(12) to remove the word ``stationary'' from the requirement for 
power reactor applicants who apply for a construction permit or 
operating license, respectively. Section 50.34(a)(13) and 50.34(b)(12) 
were added to the regulations in 2009 to reflect the requirements of 
Sec.  50.150(b) regarding the inclusion of information within the 
preliminary or final safety analysis reports for applicants subject to 
Sec.  50.150. Section 50.34(a)(13) and (b)(12) were inadvertently 
limited to ``stationary power reactors,'' matching the wording of Sec.  
50.34(a)(1), (a)(12), (b)(10), and (b)(11), which pertain to seismic 
risk hazards for stationary power reactors. The NRC is not changing the 
meaning of this requirement by removing the word ``stationary'' from 
these requirements. This change is to ensure consistency in describing 
the types of applications to which the requirements apply.
    Section 50.34(i) requires each application for an operating license 
to include the applicant's plans for implementing the requirements of 
Sec.  50.155 including a schedule for achieving full compliance with 
these requirements. This paragraph also requires the application to 
include a description of the equipment upon which the strategies and 
guidelines required by Sec.  50.155(b)(1) rely, including the planned 
locations of the equipment and how the equipment and SSCs would meet 
the design requirements of Sec.  50.155(c).

Sec.  50.54 Conditions of Licenses

    This rulemaking redesignates Sec.  50.54(hh)(3) as Sec.  
50.54(hh)(2) to reflect the movement of the requirements formerly in 
Sec.  50.54(hh)(2) to Sec.  50.155(b)(2). Section 50.54(hh)(2) is 
revised to reflect that Sec.  50.54(hh)(1) applies to the licensee 
rather than the facility and to correct the section numbers for the 
required certifications. To avoid an unnecessary backfit in Sec.  
50.54(hh)(2), in the final rule the NRC removed the words ``once the 
NRC has docketed those certifications'' from the proposed Sec.  
50.54(hh)(2).

Sec.  50.155 Mitigation of Beyond-Design-Basis Events

    This final rule adds new Sec.  50.155, ``Mitigation of beyond-
design-basis events,'' to 10 CFR part 50. The details of each paragraph 
within Sec.  50.155 are explained in greater detail in the following 
paragraphs in this section.
Paragraph (a), ``Applicability''
    Paragraph (a) describes which entities are subject to the MBDBE 
rule. Paragraph (a)(1) provides that each holder of an operating 
license for a

[[Page 39708]]

nuclear power reactor under 10 CFR part 50, as well as each holder of a 
COL under 10 CFR part 52 for which the Commission has made the finding 
under Sec.  52.103(g) that the acceptance criteria are met, is required 
to comply with the requirements of this rule until the time when the 
NRC has docketed the certifications described in Sec.  50.82(a)(1) or 
Sec.  52.110(a). These certifications inform the NRC that the licensee 
has permanently ceased to operate the reactor and permanently removed 
all fuel from the reactor vessel. The permanent removal of fuel from 
the reactor vessel removes the possibility of core damage and 
containment failure, making it appropriate to terminate the 
requirements for strategies and guidelines to maintain or restore core 
cooling and containment capabilities. At the time the licensee submits 
these certifications, control of the applicability of the requirements 
of Sec.  50.155 for licensees transitions to Sec.  50.155(a)(2).
    Although neither an applicant for an operating license under 10 CFR 
part 50 nor a COL holder before the Sec.  52.103(g) finding is required 
to comply with Sec.  50.155 until issuance of the operating license or 
the Sec.  52.103(g) finding, respectively, these entities must include 
in their applications information under Sec.  50.34(i) or Sec.  
52.80(d), respectively, including a schedule for achieving full 
compliance with the requirements of Sec.  50.155.
    Paragraph (a)(2) addresses power reactor licensees that permanently 
stop operating and defuel their reactors and begin decommissioning the 
reactors. Paragraph (a)(2)(i) provides that when an entity subject to 
the requirements of Sec.  50.155 submits to the NRC the certifications 
described in Sec.  50.82(a)(1) or Sec.  52.110(a), then that licensee 
is required to comply only with the requirements of Sec.  50.155(b) 
through (d), and (f) associated with maintaining or restoring SFP 
cooling capabilities for the reactor described in the Sec.  50.82(a)(1) 
or Sec.  52.110(a) certifications. In other words, the licensee may 
discontinue compliance with the requirements in Sec.  50.155 associated 
with maintaining or restoring core cooling or the containment 
capability for the reactor described in the Sec.  50.82(a)(1) or Sec.  
52.110(a) certifications. Compliance with the requirements of Sec.  
50.155(b) through (d), and (f) associated with maintaining or restoring 
SFP cooling capabilities continues as long as spent fuel remains in the 
SFPs associated with the reactor described in the Sec.  50.82(a)(1) or 
Sec.  52.110(a) certifications, or until the criterion of Sec.  
50.155(a)(2)(ii) can be satisfied. Once those conditions are satisfied, 
control of the applicability of the requirements of Sec.  50.155 for 
licensees transitions to paragraphs (a)(2)(iv) or (a)(2)(ii), 
respectively.
    Paragraph (a)(2)(ii) discontinues all the requirements of Sec.  
50.155 except those provided in Sec.  50.155(b)(2) once the decay heat 
of the fuel in the SFP can be removed solely by heating and boiling of 
water within the SFP and the boil-off period provides sufficient time 
for the licensee to obtain off-site resources to sustain the SFP 
cooling function indefinitely. To comply with the requirement of Sec.  
50.155(a)(2)(ii), licensees must perform and retain an analysis 
demonstrating that sufficient time has passed since the fuel within the 
SFP was last irradiated such that the fuel's low decay heat and boil-
off period provide sufficient time in an emergency for the licensee to 
obtain off-site resources to sustain the SFP cooling function 
indefinitely.
    Paragraph (a)(2)(iii) exempts the licensee for Millstone Power 
Station, Unit 1, Dominion Nuclear Connecticut, Inc. from the 
requirements of Sec.  50.155.
    Paragraph (a)(2)(iv) allows holders of operating licenses or COLs 
for which the certifications described in Sec.  50.82(a)(1) or Sec.  
52.110(a) have been submitted to cease compliance with all requirements 
in Sec.  50.155, once a power reactor licensee has permanently stopped 
operating, defueled its reactor, and removed all irradiated fuel from 
the SFP(s) associated with the reactor described in the Sec.  
50.82(a)(1) or Sec.  52.110(a) certifications.
Paragraph (b), ``Strategies and Guidelines''
    Paragraph (b) requires that each applicant or licensee develop, 
implement, and maintain mitigation strategies for beyond-design-basis 
external events and EDMGs. The intent of this requirement is that the 
operating license and COL holders described in Sec.  50.155(a) be able 
to mitigate the consequences of a wide range of initiating beyond-
design-basis events and plant damage states that can challenge public 
health and safety.
    Paragraph (b) specifies that the mitigation strategies for beyond-
design-basis external events and EDMGs be ``developed, implemented, and 
maintained.'' The term ``implement'' is used in Sec.  50.155(b) to mean 
that the mitigation strategies for beyond-design-basis external events 
and EDMGs are established and available to respond, if needed (e.g., 
the licensee has approved the strategies, guidelines, and procedures 
for use). The term ``maintain'' as used in Sec.  50.155(b) reflects the 
NRC's intent that licensees ensure that the mitigation strategies for 
beyond-design-basis external events and EDMGs, once established, be 
preserved, including the need to maintain equipment relied on for the 
mitigation strategies such that the equipment is capable of fulfilling 
its intended function, and consistent with the provisions for 
documentation of changes in Sec.  50.155(f).
    Paragraph (b)(1) requires applicants and licensees to develop, 
implement and maintain strategies and guidelines to mitigate beyond-
design-basis external events from natural phenomena. These strategies 
and guidelines are developed assuming a loss of all ac power concurrent 
with either an LUHS or, for passive reactor designs, a loss of normal 
access to the normal heat sink. These provisions require that the 
strategies and guidelines be capable of being implemented site-wide and 
include the following:
    i. Maintaining or restoring core cooling, containment, and SFP 
cooling capabilities; and
    ii. Enabling the use and receipt of offsite assistance and 
resources to support the continued maintenance of the functional 
capabilities for core cooling, containment, and SFP cooling 
indefinitely, or until sufficient site functional capabilities can be 
maintained without the need for the mitigation strategies.
    New reactors may establish different approaches from those of 
operating reactors in developing strategies to mitigate beyond-design-
basis events. For example, new reactors may use installed plant 
equipment for both the initial and long-term response to a loss of all 
ac power with less reliance on portable equipment and offsite resources 
than currently operating nuclear power plants. The NRC would consider 
the specific plant approach when evaluating the SSCs relied on as part 
of the mitigation strategies for beyond-design-basis events. Additional 
information on these strategies is provided in RG 1.226, which endorses 
an updated version of the industry guidance, for use by applicants and 
licensees, that incorporates lessons learned and feedback stemming from 
the implementation of the Mitigation Strategies Order, consistent with 
Commission direction.
    Paragraph (b)(1) limits the requirements for mitigation strategies 
to addressing ``external events from natural phenomena.'' This language 
is meant to differentiate these requirements from those that previously 
existed in Sec.  50.54(hh)(2) that are now located in Sec.  
50.155(b)(2), and which address beyond-design-basis external

[[Page 39709]]

events leading to loss of large areas of the plant due to explosions 
and fire.
    The requirement to enable ``the acquisition and use of offsite 
assistance and resources to support the functions required by Sec.  
50.155(b)(1)(i) of this section indefinitely, or until sufficient site 
functional capabilities can be maintained without the need for the 
mitigation strategies'' means that licensees need to plan for obtaining 
sufficient resources (e.g., fuel for generators and pumps, cooling and 
makeup water) to continue removing decay heat from the irradiated fuel 
in the reactor vessel and SFP as well as to remove heat from 
containment as necessary until an alternate means of removing heat is 
established. The alternate means of removing heat could be achieved 
through repairs to existing SSCs, commissioning of new SSCs, or 
reduction of decay heat levels through the passage of time sufficient 
to allow heat removal through losses to the ambient environment. More 
detailed planning for offsite assistance and resources is necessary for 
the initial period following the event; less detailed planning is 
necessary as the event progresses and the licensee can mobilize 
additional support for recovery.
    Paragraph (b)(2) contains the requirements for EDMGs that 
previously existed in Sec.  50.54(hh)(2) and are described in the Power 
Reactor Security Requirements final rule. The movement of these 
requirements consolidates the requirements for beyond-design-basis 
strategies and guidance into a single section to promote efficiency in 
their consideration and allow for better integration. Although the 
wording of Sec.  50.155(b)(2) differs from that of previous Sec.  
50.54(hh)(2), no substantive change in the requirements is intended.
    The introductory text of Sec.  50.155(b)(2) that is contained in 
Sec.  50.155(b) is worded so that it requires that licensees ``develop, 
implement, and maintain'' the strategies and guidance required in Sec.  
50.155(b)(2) rather than using the wording of previous Sec.  
50.54(hh)(2) to require that licensees ``develop and implement'' the 
described guidance and strategies. The addition of the word 
``maintain'' is to correct an inconsistency with the wording of Sec.  
50.54(hh)(1), which was issued along with Sec.  50.54(hh)(2) in the 
Power Reactor Security Requirements final rule. The requirement as it 
was originally issued in Order EA-02-026 was worded to require 
licensees to ``develop'' specific guidance, while the corresponding 
license conditions imposed by the conforming license amendment was 
worded to require each affected licensee to ``develop and maintain'' 
strategies. The NRC concludes that the phrase ``develop, implement, and 
maintain'' provides better clarity of what is necessary for compliance 
with the requirements without substantively changing the requirements.
Paragraph (c), ``Equipment''
    Paragraph (c)(1) requires that equipment relied on for the 
mitigation strategies and guidelines of Sec.  50.155(b)(1) must have 
sufficient capacity and capability to perform the functions required by 
Sec.  50.155(b)(1).
    The phrase ``sufficient capacity and capability'' in Sec.  
50.155(c)(1) means that the equipment, and the instrumentation relied 
on to support the decision making necessary to accomplish the 
associated mitigation strategies of Sec.  50.155(b)(1), has the design 
specifications necessary to assure that it functions and provides the 
requisite information on plant status when subjected to the conditions 
it is expected to be exposed to in the course of the execution of those 
mitigation strategies. These design specifications include appropriate 
consideration of environmental conditions that are predicted in the 
thermal-hydraulic and room heat up analyses used in the development of 
the mitigation strategies required by Sec.  50.155(b)(1).
    Paragraph (c)(2) requires reasonable protection of the equipment in 
Sec.  50.155(b)(1) from the effects of natural phenomena that are 
equivalent in magnitude to the phenomena assumed for developing the 
external design basis of the facility. ``Reasonable protection'' is the 
means by which the NRC applies the appropriate level of treatment to 
equipment and SSCs that are required to function for Sec.  50.155, 
without regard to whether the equipment is ``FLEX equipment,'' as 
defined in NEI 12-06, or ``plant equipment,'' as that term is used in 
NEI 12-06. Safety-related SSCs that function initially in response to 
beyond-design-basis external events have two sets of functions: Safety-
related functions and beyond-design-basis functions. The requirements 
placed on these SSCs to perform their safety-related functions for the 
design-basis events are extensive and are intended to result in an 
increased level of assurance that the SSCs will perform those safety-
related functions, during and/or following the design-basis events as 
applicable.
    For these dual-function SSCs, the regulatory requirements and 
resulting level of regulatory assurance for the beyond-design-basis 
functions addressed by Sec.  50.155(b)(1) for these dual-function SSCs 
are intended to be less stringent than the requirements associated with 
their safety-related functions. The ``reasonable protection'' 
requirement is the means for applying a reduced level of treatment for 
the beyond-design-basis functions and establishes an appropriate level 
of assurance. The phrase ``reasonable protection'' was initially 
proposed in recommendation 4.2 of the NTTF Report in the context of a 
recommendation for the NRC to issue an order to licensees to provide 
``reasonable protection'' of equipment required by the former Sec.  
50.54(hh)(2) from the effects of design-basis external events along 
with providing additional sets of equipment as an interim measure 
during a subsequent rulemaking on prolonged SBO. The NTTF based this 
recommendation on the potential usefulness of the EDMGs in 
circumstances that do not involve the loss of a large area of the plant 
and explained that reasonable protection from external events as used 
in the NTTF Report meant that the equipment must ``be stored in 
existing locations that are reasonably protected from significant 
floods and involve robust structures with enhanced protection from 
seismic and wind-related events.''
    The NRC carried forward the use of the phrase ``reasonable 
protection'' in the Mitigation Strategies Order with regard to the 
protection required for equipment associated with the mitigation 
strategies. That order did not, however, define ``reasonable 
protection.'' The NRC guidance in JLD-ISG-2012-01, Revision 0, 
discussed ``reasonable protection'' as follows:

    Storage locations chosen for the equipment must provide 
protection from external events as necessary to allow the equipment 
to perform its function without loss of capability. In addition, the 
licensee must provide a means to bring the equipment to the 
connection point under those conditions in time to initiate the 
strategy prior to expiration of the estimated capability to maintain 
core and spent fuel pool cooling and containment functions in the 
initial response phase.

    In JLD-ISG-2012-01, Revision 0, the NRC endorsed NEI 12-06, 
Revision 0, as providing an acceptable method to provide reasonable 
protection, storage, and deployment of the equipment associated with 
the Mitigation Strategies Order. NEI 12-06, Revision 0, also omitted a 
definition for the phrase ``reasonable protection,'' but did provide 
guidelines for licensees for protecting the equipment from the hazards 
that would be commonly applicable: (1) Seismic hazards; (2) flooding 
hazards; (3) severe storms with high winds; (4) snow, ice and extreme 
cold; and (5) high temperatures. Later revisions to the guidance for 
the

[[Page 39710]]

Mitigation Strategies Order included further discussions on reasonable 
protection. NEI 12-06, Revision 2, defined reasonable protection as 
``[s]toring on-site FLEX equipment in configurations such that no one 
external event can reasonably fail the site FLEX capability (N) when 
the required FLEX equipment is available.'' The JLD-ISG-2012-01, 
Revision 1, endorsed the approach of NEI 12-06, Revision 2, as an 
acceptable method of providing reasonable protection to the equipment 
associated with the strategies and guidelines developed under the 
Mitigation Strategies Order, clarifying that the elements of the 
approach that should be addressed are the following:

--Identification of the natural phenomena for which reasonable 
protection is necessary,
--determination of the method of protection to be used,
--establishment of controls on unavailability of the equipment, and
--provision of a method of transporting the portable equipment from its 
storage location to the site in which it will be used.

    The RG 1.226 carries forward this guidance on reasonable 
protection, endorsing the current version of NEI 12-06 as providing an 
acceptable method of complying with Sec.  50.155(c)(2).
    The guidance of RG 1.226 and NEI 12-06 includes the use of 
structures designed to, or evaluated as equivalent to, American Society 
for Civil Engineers Standard 7-10, ``Minimum Design Loads for Buildings 
and Other Structures,'' for the seismic and high winds hazards, rather 
than requiring the use of a structure that meets the plant's design 
basis for the safe shutdown earthquake or high winds hazards including 
missiles. The NEI 12-06 guidelines also allow storage of the equipment 
above the flood elevation from the most recent site flood analysis, 
storage within a structure designed to protect the equipment from the 
flood, or storage below the flood level if sufficient time would be 
available and plant procedures would address the need to relocate the 
equipment above the flood level based on the timing of the limiting 
flood scenario(s). The NEI 12-06 guidelines further provide that 
multiple sets of equipment may be stored in diverse locations in order 
to provide assurance that sufficient equipment could be deployed to 
assure the success of the strategies following an initiating event. The 
NRC-endorsed guidelines in NEI 12-06 do not consider concurrent, 
unrelated beyond-design-basis external events to be within the scope of 
the initiating events for the mitigation strategies. There is an 
assumption of a beyond-design-basis external event that establishes the 
event conditions for reasonable protection, and then it is assumed in 
NEI 12-06 that the event leads to an ELAP and LUHS. There is not, for 
example, an assumption of multiple beyond-design-basis external events 
occurring at the same time. As a result, reasonable protection for the 
purposes of compliance with Sec.  50.155(c)(2) allows the provision of 
specific sets of equipment for specific hazards with the required 
protection for those sets of equipment being against the hazard for 
which the equipment is intended to be used.
    The NRC use of the phrase ``reasonable protection'' in Sec.  
50.155(c)(2) is intended to distinguish this approach from the approach 
of the PDCs, consistent with GDC 2, which requires that SSCs important 
to safety be designed to withstand the effects of natural phenomena. 
Section 50.155(c)(2) allows damage to, or loss of, specific pieces of 
equipment so long as the capability to use sufficient sets of the 
remaining equipment to accomplish strategies and guidelines is 
retained. ``Reasonable protection'' also allows for protection of the 
equipment using structures that could deform as a result of natural 
phenomena, so long as the equipment could be deployed from the 
structure to its place of use.
    The remaining portion of Sec.  50.155(c)(2) sets the hazard level 
for which ``reasonable protection'' of the equipment must be provided. 
The hazard level is the level determined for the design basis for the 
facility for protection of safety-related SSCs from the effects of 
natural phenomena under Sec.  50.155(c)(2).
Paragraph (d), ``Training Requirements''
    Paragraph (d) requires that each licensee specified in Sec.  
50.155(a) provide for the training of licensee personnel that perform 
activities in accordance with the capabilities required under Sec.  
50.155(b).
Paragraph (e), ``Spent Fuel Pool Monitoring''
    Paragraph (e) requires each licensee to provide a reliable means to 
remotely monitor wide-range water level for each SFP at its site until 
5 years have elapsed since all of the fuel within that SFP was last 
used in a reactor vessel for power operation. This requirement enables 
effective prioritization of event mitigation and recovery actions 
following beyond-design-basis external events. This provision does not 
apply to General Electric Mark III upper containment pools. These pools 
are referred to in the UFSARs for the applicable plants, Clinton Power 
Station, Grand Gulf Nuclear Station, Perry Nuclear Power Plant, and 
River Bend Station, by different terms, such as ``upper containment 
fuel storage pool,'' ``upper containment fuel pool,'' and ``containment 
upper pool.'' The use of the term ``upper containment pool'' in Sec.  
50.155(e) and in this discussion of the paragraph means the pools 
described in those UFSARs by those terms. The Mark III upper 
containment pools are only to store fuel during refueling outages, at 
which time the upper pool and reactor coolant system are merged, 
mitigating the potential for operator distraction should an extreme 
event happen at that time. After refueling is completed, and the 
reactor is critical, no fuel can be stored in the upper pool, and 
instead fuel must either be in the reactor and used to generate power 
or it is spent fuel and stored in the SFP.
Paragraph (f), ``Documentation of Changes''
    Paragraph (f) establishes requirements that govern changes in the 
implementation of the requirements of Sec.  50.155. Prior to 
implementing a change, Sec.  50.155(f)(1) requires the licensee to 
demonstrate that the provisions of Sec.  50.155 continue to be met and 
to maintain documentation of changes until the requirements of Sec.  
50.155 no longer apply. This documentation requirement applies to all 
changes that impact the implementation of Sec.  50.155. The NRC 
recognizes that the licensee will maintain documentation of non-
significant changes as part of their normal procurement and 
configuration management programs.
    Regarding the meaning of demonstrated compliance, changes to the 
implementation of Sec.  50.155 that are consistent with the regulatory 
guidance supporting the MBDBE rule are acceptable. Additionally, 
changes to the implementation of the MBDBE requirements that are 
approved alternative approaches, which are shown to apply to the 
licensee's facility consistent with the NRC's approval, are also 
acceptable. Changes that are outside of endorsed guidance or approved 
alternatives can be demonstrated to comply with Sec.  50.155; however, 
in this regard the NRC emphasizes that licensees should be mindful of 
the following context.
    1. The NRC initially issued requirements for the mitigation of 
beyond-design-basis external events in the Mitigation Strategies Order 
under the adequate protection provision of

[[Page 39711]]

Sec.  50.109(a)(4)(ii). The NRC seeks to ensure through Sec.  50.155(f) 
that the resulting capabilities are maintained. A failure to maintain 
the functional capabilities first imposed by the Mitigation Strategies 
Order and now part of the MBDBE rule would challenge the continued 
reasonable assurance of adequate protection of public health and safety 
and not equate to demonstrated compliance with Sec.  50.155.
    2. The mitigation strategies are intended to address uncertainties 
associated with beyond-design-basis external events, and the 
requirements as implemented provide a capability that can be used and 
adapted to any event that exceeds the external design basis of the 
facility. While it was necessary for practical reasons to make 
assumptions concerning a damage state and conditions that could then be 
used to provide this additional capability, it is equally important to 
preserve the attributes of the mitigation strategies that provide 
flexibility, and enable adaptation to unknown events. Significantly 
impacting these attributes would reduce the capability for a licensee 
to successfully apply the strategies to real events. Such a change 
would not constitute demonstrated compliance with Sec.  50.155. For 
example, the mitigation strategies use multiple sets of equipment, use 
strategies and guidelines rather than step-by-step procedures, have 
contingencies for conditions more severe than the assumed damage state 
used to develop the capability, employ alternate connection points, and 
are supported with offsite resources to provide for an indefinite 
capability. All of these are important elements of the additional 
mitigation capability for beyond-design-basis external events required 
by Sec.  50.155. Changes that result in a significant reduction of 
these attributes would result in the mitigation strategies being less 
flexible and adaptable and therefore being less likely to be 
successfully deployable following a beyond-design-basis external event. 
Such changes would not constitute demonstrated compliance. For example, 
permanent removal of a set of equipment clearly removes flexibility and 
lessens the potential for successful mitigation of a beyond-design-
basis external event.
    Paragraph (f)(2) requires that changes in the implementation of the 
requirements of Sec.  50.155 subject to other change control 
requirements be processed via their respective change control 
processes, unless the changes being evaluated impact only the 
implementation of Sec.  50.155. Changes to the implementation of Sec.  
50.155 can impact multiple aspects of the facility. Paragraph (f)(2) is 
intended to clearly identify that other change control requirements 
such as those in Sec. Sec.  50.59, 50.54(p), 50.54(q), 73.58, and fire 
protection change controls may apply depending on the extent of the 
change and the aspects of the facility that are impacted. This 
requirement is not essential because it is the licensee's obligation to 
comply with all applicable regulations; however, given the complexity 
of facility changes, the NRC is maintaining this requirement to provide 
regulatory clarity in the final rule, consistent with public comment. 
For example, a change to an SSC having both a beyond-design-basis 
function for Sec.  50.155 and a design-basis function, would have the 
aspects of the change involving its beyond-design-basis functions 
addressed under Sec.  50.155(f), and the aspects of the change 
involving the design-basis functions addressed under Sec.  50.59 or any 
other applicable change control requirement. Another example may be a 
change to deploy in place equipment for Sec.  50.155, that in turn 
impacts ingress and egress for an area of the facility important for 
security, and therefore needs to be evaluated under Sec.  73.58.
Paragraph (g), ``Implementation''
    Paragraph (g) establishes the compliance schedule for the MBDBE 
rule. Paragraph (g) establishes a compliance date of 3 years following 
the effective date of the MBDBE rule for each holder of a 10 CFR part 
50 operating license who received NRC Order EA-13-109 and a compliance 
date of 2 years following the effective date of the MBDBE rule for each 
holder of a 10 CFR part 50 operating license that did not receive NRC 
Order EA-13-109 and each holder of a 10 CFR part 52 combined license 
for which the Commission has made the Sec.  52.103(g) finding as of the 
effective date of the rule.
Paragraph (h), ``Withdrawal of Orders and Removal of License 
Conditions''
    Under Sec.  50.155(h)(1), the Mitigation Strategies and SFPI Orders 
will be withdrawn on September 9, 2022.
    Under Sec.  50.155(h)(2), the reliable SFP/buffer pool level 
instrumentation, mitigation strategies for beyond-design-basis external 
events, and emergency planning license conditions, except for license 
condition 2.D(12)(g)1, will be deemed removed from the Enrico Fermi 
Nuclear Plant, Unit 3 license on September 9, 2019.
    Under Sec.  50.155(h)(3), the mitigation strategies for beyond-
design-basis external events, reliable SFP instrumentation, and 
emergency planning license conditions will be deemed removed with the 
exception of license conditions 2.D(12)(j)1, from the William States 
Lee III Nuclear Station, Units 1 and 2 licenses September 9, 2019.
    Under Sec.  50.155(h)(4), the reliable SFP/buffer pool level 
instrumentation, mitigation strategies for beyond-design-basis external 
events, and emergency planning license conditions will be deemed 
removed with the exception of license condition 2.D(12)(f)1 from the 
North Anna Unit 3 license on September 9, 2019.
    Under Sec.  50.155(h)(5), the mitigation strategies for beyond-
design-basis external events, reliable SFP instrumentation, and 
emergency planning license conditions will be deemed removed with the 
exception of license condition 2.D(12)(h)1 from the Turkey Point, Units 
6 and 7 licenses on September 9, 2019.

10 CFR Part 50, Appendix E, Section IV, Training

    This final rule modifies the reference in the Sec.  50.54(hh)(2) 
exercise requirement within 10 CFR part 50, appendix E, section 
IV.F.2.j, to Sec.  50.155(b)(2) to reflect the movement of the EDMG 
requirement. The final rule also includes administrative changes to use 
the numeral ``8'' rather than the word ``eight'' in the phrases ``8-
year'' and ``8-calendar-year'' for consistency with other sections.

10 CFR Part 50, Appendix E, Section VI, Emergency Response Data Systems

    The NRC is amending its Emergency Response Data Systems regulations 
to allow the use of technology-neutral equipment. The requirements in 
appendix E, section VI, paragraph 3.c are amended to replace the phrase 
``onsite modem'' with ``equipment'' and remove the word ``unit.''

Sec.  52.80 Contents of Applications; Additional Technical Information

    Section 52.80 identifies the required additional technical 
information to be included in an application for a combined license. 
Paragraph (d) is amended to require a combined license applicant to 
include the applicant's plans for implementing the requirements of 
Sec.  50.155, including a schedule for achieving full compliance with 
these requirements. This paragraph requires the application to include 
a description of the equipment upon which the strategies and guidelines 
that are required by Sec.  50.155(b)(1) rely, including the planned 
locations of the equipment and how the equipment and

[[Page 39712]]

SSCs meet the design requirements of Sec.  50.155(c).

VII. Regulatory Flexibility Certification

    Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC 
certifies that this rule does not have a significant economic impact on 
a substantial number of small entities. This 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 established 
in Sec.  2.810, ``NRC size standards.''

VIII. Availability of Regulatory Analysis

    The NRC has prepared a regulatory analysis on this regulation. The 
analysis examined the costs and benefits of the alternatives considered 
by the NRC. The regulatory analysis is available as indicated in 
Section XIX of this document.

IX. Availability of Guidance

    The NRC is issuing regulatory guidance for the implementation of 
the MBDBE rule. The guidance is available in ADAMS under Accession Nos. 
ML19058A012 and ML19058A013. You may access information and comment 
submissions related to the guidance by searching on http://www.regulations.gov under Docket ID NRC-2014-0240. The guidance to 
implement the MBDBE rule consists of two RGs which are discussed below.
    The RG 1.226, ``Flexible Mitigation Strategies for Beyond-Design-
Basis Events,'' endorses, with clarifications, the methods and 
procedures in NEI 12-06, ``Diverse and Flexible Coping Strategies 
(FLEX) Implementation Guide.'' This regulatory guidance provides 
licensees and applicants with an acceptable method of implementing the 
MBDBE rule primarily with regard to the provisions in Sec.  
50.155(b)(1), (c), and (f) regarding measures for the mitigation of 
beyond-design-basis external events. Previous versions of this guidance 
were endorsed to support compliance with the Mitigation Strategies 
Order. Licensees who used previous endorsed versions of NEI 12-06 are 
not required to revise their implementation under the Mitigation 
Strategies Order to address the MBDBE rule requirements. The later 
revisions of the endorsed guidance contain additional information for 
addressing reevaluated hazard information, frequently asked questions, 
and acceptable alternatives, and accordingly provide a larger set of 
guidance that licensees may use to implement the MBDBE rule, or to 
consult when deciding on the acceptability of changes to the 
implementation of the MBDBE rule requirements.
    The RG 1.227, ``Wide-Range Spent Fuel Pool Level Instrumentation,'' 
endorses with exceptions and clarifications NEI 12-02, Revision 1. This 
guidance provides an acceptable method of implementing the MBDBE rule 
requirement in Sec.  50.155(e). This RG does not differ in a 
significant manner from previously endorsed guidance for the SFPI 
Order, which was JLD-ISG-2012-03.
    The NRC is discontinuing further regulatory action on Draft 
Regulatory Guide (DG) DG-1319, ``Integrated Response Capabilities for 
Beyond-Design-Basis Events.'' Draft Regulatory Guide DG-1319 was a 
proposed new regulatory guide (RG 1.228) developed by the staff to 
provide implementing guidance for provisions that have been removed 
from the final rule for the reasons discussed in Section IV, ``Public 
Comments and Changes to the Rule.'' Because the relevant regulatory 
requirements have been removed from the final rule, further NRC action 
to develop and adopt DG-1319 as a final guidance document is not 
needed. Therefore, this notice announces the NRC's decision to 
discontinue further action on DG-1319 and documents the final NRC 
action on DG-1319.

X. Backfitting and Issue Finality

Rule

    As required by Sec. Sec.  50.109 and 52.98, the Commission has 
completed a backfitting and issue finality assessment for this rule. 
The Commission finds that the change to the types of certifications 
that COL holders must submit before the requirements of Sec.  
50.54(hh)(1) no longer apply is inconsistent with the issue finality 
provisions of 10 CFR part 52. The change is justified as necessary for 
adequate protection of public health and safety or common defense and 
security. Availability of the backfit and issue finality assessment is 
indicated in Section XIX of this document.

Regulatory Guidance

    The NRC is issuing two RGs that provide guidance for the 
implementation of this rule: RG 1.226 and RG 1.227. These RGs provide 
guidance on the methods acceptable to the NRC for complying with this 
final rule. The RGs apply to all current holders of, and applicants for 
operating licenses under 10 CFR part 50 and COLs under 10 CFR part 52.
    Issuance of the RGs does not constitute backfitting under Sec.  
50.109 and is not otherwise inconsistent with the issue finality 
provisions under 10 CFR part 52. As discussed in the ``Implementation'' 
section of each RG, the NRC has no current intention to impose the RGs 
on current holders of an operating license or COL.
    Applying the RGs to applications for operating licenses or COLs 
does not constitute backfitting as defined in Sec.  50.109 and is not 
otherwise inconsistent with issue finality under 10 CFR part 52, 
because such applicants are not within the scope of entities protected 
by Sec.  50.109 or the applicable issue finality provisions in 10 CFR 
part 52.

XI. Cumulative Effects of Regulation

    The NRC engaged extensively with external stakeholders throughout 
this rulemaking and related regulatory activities. Public involvement 
has included: (1) Issuance of two ANPRs and two draft regulatory basis 
documents that requested stakeholder feedback; (2) issuance of 
conceptual and preliminary proposed rule language in support of public 
meetings; (3) numerous public meetings with the ACRS; (4) issuance of 
draft final rule language to support meeting with the ACRS, (5) a 
public meeting held during the final rule stage to gather additional 
feedback concerning CER, and (6) many more public meetings that 
supported both the development of the draft regulatory basis documents 
as well as development of the implementing guidance for the two orders 
that this rulemaking makes generically applicable (i.e., the Mitigation 
Strategies and SFPI Orders). Section II, ``Opportunities for Public 
Involvement,'' of this document provides a more detailed discussion of 
public involvement.
    The NRC requested and received feedback following its CER process. 
The feedback received is discussed in more detail in conjunction with 
the consideration of a flexible scheduling provision, in Section IV of 
this document. Most significantly, this final rule includes an 
additional year for implementation for licensees that received Order 
EA-13-109 that is intended to address the CER feedback received.
    Regarding the CER process requirements for issuance of guidance, 
the NRC is issuing two RGs in conjunction with the issuance of the 
final rule as discussed in Section IX of this document. Additionally, 
the NRC issued draft guidance with the proposed rule for comment, which 
enabled more informed external stakeholder feedback to be obtained.

[[Page 39713]]

XII. Plain Writing

    The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal 
agencies to write documents in a clear, concise, and 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 June 10, 1998 (63 FR 
31883).

XIII. Environmental Assessment and Finding of No Significant 
Environmental Impact

    The Commission has determined under the National Environmental 
Policy Act of 1969, as amended, and the Commission's regulations in 
subpart A of 10 CFR part 51, that this rule is not a major Federal 
action significantly affecting the quality of the human environment, 
and therefore an environmental impact statement is not required. The 
basis of this determination reads as follows: The action will not 
result in any radiological effluent impact as it will not change any 
design basis structures, systems, or components that function to limit 
the release of radiological effluents during or after an accident. This 
final rule does not change the standards and requirements for 
radiological releases and effluents. None of the revisions or additions 
in this rule affect current occupational or public radiation exposure. 
The final rule will not cause any significant non-radiological impacts, 
as it will not affect any historic sites or any non-radiological plant 
effluents. The NRC concludes that this rule will not cause any 
significant radiological or non-radiological impacts on the human 
environment.
    The NRC requested the views of the States on the environmental 
assessment for this rule. No views were received.
    The determination of this environmental assessment is that there 
will be no significant effect on the quality of the human environment 
from this action. The environmental assessment is available as 
indicated in Section XIX of this document.

XIV. Paperwork Reduction Act

    This 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.). The collections of information were approved 
by the Office of Management and Budget, approval numbers 3150-0011 and 
3150-0151.
    The burden to the public for the information collections is 
estimated to average 415 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.
    The information collection is being conducted to make changes to 
existing programs, plans, procedures, and guidelines implemented as a 
result of the Mitigating Strategies and SFPI Orders to reflect the new 
requirements of this rule, which replaces the order requirements. This 
information will be used by the NRC to support oversight activities 
associated with these requirements. Responses to this collection of 
information are mandatory.
    You may submit comments on any aspect of the information 
collections, including suggestions for reducing the burden, by the 
following methods:
     Federal rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2014-0240.
     Mail comments to: Information Services Branch, Office of 
the Chief Information Officer, Mail Stop: T6-A10M, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001 or to: OMB Office of 
Information and Regulatory Affairs (3150-0011), Attn: Desk Officer for 
the Nuclear Regulatory Commission, 725 17th Street NW, Washington, DC 
20503; email: [email protected].

Public Protection Notification

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

XV. Congressional Review Act

    This final rule is a rule as defined in the Congressional Review 
Act (5 U.S.C. 801-808). However, the Office of Management and Budget 
has not found it to be a major rule as defined in the Congressional 
Review Act.

XVI. Criminal Penalties

    For the purposes of Section 223 of the Atomic Energy Act of 1954, 
as amended (AEA), the NRC is issuing this rule that amends 10 CFR parts 
50 and 52 under one or more of Sections 161b, 161i, or 161o of the AEA. 
Willful violations of the rule are subject to criminal enforcement. 
Criminal penalties as they apply to regulations in 10 CFR parts 50 and 
52 are discussed in Sec. Sec.  50.111 and 52.303.

XVII. Compatibility of Agreement State Regulations

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement State 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 category ``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 
title 10 of the Code of Federal Regulations, and 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 a particular State's administrative procedure laws, but 
does not confer regulatory authority on the State.

XVIII. Voluntary Consensus Standards

    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 the use of such a standard is inconsistent with 
applicable law or otherwise impractical. In this rule, the NRC is 
adding requirements for the mitigation of beyond-design-basis events. 
This action does not constitute the establishment of a standard that 
contains generally applicable requirements.

XIX. Availability of Documents

    The documents identified in the following table are available to 
interested persons through one or more of the following methods, as 
indicated.

[[Page 39714]]



------------------------------------------------------------------------
                                                   ADAMS accession No./
                    Document                         web link/Federal
                                                     Register citation
------------------------------------------------------------------------
                      Primary Rulemaking Documents
------------------------------------------------------------------------
Regulatory Analysis Addendum--Final Rule to       ML19058A009
 Address Mitigation of Beyond-Design-Basis
 Events.
Backfitting and Issue Finality Assessment         ML19059A150
 Supporting the Mitigation of Beyond-Design-
 Basis Events Final Rule.
Environmental Assessment Supporting the           ML19058A008
 Mitigation of Beyond-Design-Basis Events Final
 Rule.
Supporting Statement for Information Collections  ML19058A010
 Contained in Mitigation of Beyond-Design-Basis
 Events Final Rule--10 CFR Part 50.
Supporting Statement for Information Collections  ML19058A011
 Contained in Mitigation of Beyond-Design-Basis
 Events Final Rule--10 CFR Part 52.
NRC Response to Public Comments--Final Rule:      ML19058A007
 Mitigation of Beyond-Design-Basis Events.
------------------------------------------------------------------------
                            Regulatory Guides
------------------------------------------------------------------------
RG 1.226, Flexible Mitigation Strategies for      ML19058A012
 Beyond-Design-Basis Events.
RG 1.227, Wide-Range Spent Fuel Pool Level        ML19058A013
 Instrumentation.
------------------------------------------------------------------------
                            Other References
------------------------------------------------------------------------
ACRS Transcript--Fukushima Subcommittee,          ML14337A671
 ``Discuss Preliminary Mitigation of Beyond-
 Design-Basis Events Rulemaking Language,''
 November 21, 2014.
ACRS Transcript--Full Committee, ``Discuss        ML14223A631
 Consolidation of Station Blackout Mitigation
 Strategies and Onsite Emergency Response
 Capabilities Rulemakings,'' July 10, 2014.
ACRS Transcript--Full Committee, ``Discuss        ML14345A387
 Preliminary Mitigation of Beyond-Design-Basis
 Events Rulemaking Language,'' December 4, 2014.
ACRS Transcript--Full Committee, ``Discuss the    ML13175A344
 Station Blackout Mitigation Strategies
 Regulatory Basis,'' June 5, 2013.
ACRS Transcript--Joint Fukushima and              ML14265A059
 Probabilistic Risk Assessment Subcommittees,
 ``Discuss CPRR Technical Analysis,'' August 22,
 2014.
ACRS Transcript--Plant Operations and Fire        ML13063A403
 Protection Subcommittee, ``Discuss the Onsite
 Emergency Response Capabilities Regulatory
 Basis,'' February 6, 2013.
ACRS Transcript--Regulatory Policies and          ML13148A404
 Practices Subcommittee, ``Discuss the Station
 Blackout Mitigation Strategies Regulatory
 Basis,'' December 5, 2013, and April 23, 2013.
ACRS Transcript--Reliability and Probabilistic    ML14337A651
 Risk Assessment Subcommittee, ``Discuss CPRR
 Technical Analysis,'' November 19, 2014.
American National Standards Institute/American    http://www.ans.org/
 Nuclear Society 3.2-2012, ``Administrative        store/
 Controls and Quality Assurance for the
 Operational Phase of Nuclear Power Plants''.
American Society for Civil Engineers Standard 7-  http://
 10, ``Minimum Design Loads for Buildings and      www.ascelibrary.org/
 Other Structures,'' 2013.
COMGBJ-11-0002, ``NRC Actions Following the       ML110800456
 Events in Japan,'' March 21, 2011.
COMSECY-13-0002, ``Consolidation of Japan         ML13011A037
 Lessons Learned Near-Term Task Force
 Recommendations 4 and 7 Regulatory
 Activities,'' January 25, 2013.
COMSECY-13-0010, ``Schedule and Plans for Tier 2  ML12339A262
 Order on Emergency Preparedness for Japan
 Lessons Learned,'' March 27, 2013.
COMSECY-14-0037, ``Integration of Mitigating      ML14309A256
 Strategies for Beyond-Design-Basis External
 Events and The Reevaluation of Flooding
 Hazards,'' November 21, 2014.
``Consolidated Rulemaking--Proof of Concept''     ML14052A057
 (Conceptual Consolidated Preliminary Proposed
 Rule Language for NTTF Recommendations 4, 7, 8
 and 9), February 21, 2014.
``Crystal River Unit 3--NRC Response to Duke      ML13325A847
 Energy's Final Response to the March 2012
 Request for Information Letter,'' January 22,
 2014.
``Crystal River Unit 3 Nuclear Generating Plant-- ML13212A366
 Rescission of Order EA-12-049, `Order Modifying
 Licenses with Regard to Requirements for
 Mitigation Strategies for Beyond Design Basis
 External Events,''' August 27, 2013.
``Crystal River Unit 3--Final Response to March   ML13274A341
 12, 2012 Information Request Regarding
 Recommendations 2.1, 2.3 and 9.3,'' September
 25, 2013.
``Crystal River Unit 3 Nuclear Generating Plant-- ML13203A161
 Rescission of Order EA-12-051, `Order Modifying
 Licenses with Regard to Reliable Spent Fuel
 Pool Instrumentation,''' August 27, 2013.
``Draft Regulatory Basis for Containment          ML15022A214
 Protection and Release Reduction for Mark I and
 Mark II Boiling Water Reactors (10 CFR Part
 50),'' May 2015.
Executive Order 13744, ``Coordinating Efforts To  81 FR 71573
 Prepare the Nation for Space Weather Events,''
 October 13, 2016.
Federal Register Notice--Enhancements to          76 FR 72560
 Emergency Preparedness Regulations, Final Rule,
 November 23, 2011.
Federal Register Notice--Mitigation of Beyond-    80 FR 70609
 Design-Basis Events, Proposed Rule, November
 13, 2015.
Federal Register Notice--Mitigation of Beyond-    80 FR 74717
 Design-Basis Events, Proposed Rule; correction,
 November 30, 2015.
Federal Register Notice--Onsite Emergency         77 FR 23161
 Response Capabilities, Advance Notice of
 Proposed Rulemaking, April 18, 2012.
Federal Register Notice--Onsite Emergency         78 FR 1154
 Response Capabilities, Draft Regulatory Basis,
 January 8, 2013.
Federal Register Notice--Onsite Emergency         78 FR 68774
 Response Capabilities, Preliminary Proposed
 Rule Language, November 15, 2013.
Federal Register Notice--Onsite Emergency         78 FR 63901
 Response Capabilities, Regulatory Basis,
 October 25, 2013.
Federal Register Notice--Power Reactor Security   74 FR 13926
 Requirements, Final Rule, March 27, 2009.

[[Page 39715]]

 
Federal Register Notice--PRM-50-100, Petition     78 FR 44034
 for Rulemaking Submitted by the Natural
 Resources Defense Council, Inc., July 23, 2013.
Federal Register Notice--PRM-50-101, Petition     77 FR 16483
 for Rulemaking Submitted by the Natural
 Resources Defense Council, Inc., March 21, 2012.
Federal Register Notice--PRM-50-102, Petition     77 FR 25104
 for Rulemaking; Submitted by the Natural
 Resources Defense Council, Inc., April 27, 2012.
Federal Register Notice--PRM-50-96, Long-Term     77 FR 74788
 Cooling and Unattended Water Makeup of Spent
 Fuel Pools, Consideration in the Rulemaking
 Process, December 18, 2012.
Federal Register Notice--PRM-50-97, PRM-50-98,    76 FR 58165
 PRM-50-99, PRM-50-100, PRM-50-101, PRM-50-102,
 Petitions for Rulemaking Submitted by the
 Natural Resources Defense Council, Inc., Notice
 of Receipt, September 20, 2011.
Federal Register Notice--Regulatory Improvements  80 FR 72358
 for Decommissioning Power Reactors, Advance
 Notice of Proposed Rulemaking, November 19,
 2015.
Federal Register Notice--Risk-Informed            69 FR 68008
 Categorization and Treatment of Structures,
 Systems and Components for Nuclear Power
 Reactors; Final Rule, November 22, 2004.
Federal Register Notice--Statement of Principles  62 FR 46517
 and Policy for the Agreement State Program;
 Policy Statement on Adequacy and Compatibility
 of Agreement State Programs, Final Policy
 Statements, September 3, 1997.
Federal Register Notice--Station Blackout,        77 FR 16175
 Advance Notice of Proposed Rulemaking, March
 20, 2012.
Federal Register Notice--Station Blackout         78 FR 21275
 Mitigation Strategies, Draft Regulatory Basis
 and Draft Rule Concepts, April 10, 2013.
Federal Register Notice--Station Blackout         78 FR 44035
 Mitigation Strategies, Regulatory Basis, July
 23, 2013.
``Fort Calhoun Station, Unit 1--Relaxation of     ML16277A509
 the Schedule Requirements for Order EA-12-049,
 `Issuance of Order to Modify Licenses with
 Regard to Requirements for Mitigation
 Strategies for Beyond-Design-Basis External
 Events' (CAC No. MF0969),'' November 21, 2016.
``Fort Calhoun Station, Unit 1--Rescission of     ML16320A287
 Order EA-12-051, `Order Modifying Licenses with
 Regard to Reliable Spent Fuel Pool
 Instrumentation' (CAC No. MF0968),'' December
 8, 2016.
Inspection Manual Chapter (IMC) 0308, ``Reactor   ML062890421
 Oversight Process Basis Document,'' Attachment
 2, ``Technical Basis for Inspection Program,''
 October 16, 2006.
Interim Staff Guidance, NSIR/DPR-ISG-01,          ML113010523
 ``Emergency Planning for Nuclear Power
 Plants,'' November 2011.
JLD-ISG-2012-01, ``Compliance with Order EA-12-   ML12229A174
 049, Order Modifying Licenses with Regard to
 Requirements for Mitigation Strategies for
 Beyond-Design-Basis External Events,'' Revision
 0, August 29, 2012.
JLD-ISG-2012-01, ``Compliance with Order EA-12-   ML15357A163
 049, Order Modifying Licenses with Regard to
 Requirements for Mitigation Strategies for
 Beyond-Design-Basis External Events,'' Revision
 1, January 22, 2016.
JLD-ISG-2012-01, ``Compliance with Order EA-12-   ML16277A617
 049, Order Modifying Licenses with Regard to
 Requirements for Mitigation Strategies for
 Beyond-Design-Basis External Events,'' Draft
 Revision 2, November 4, 2016.
JLD-ISG-2012-03, ``Compliance with Order EA-12-   ML12221A339
 051, Reliable Spent Fuel Pool
 Instrumentation,'' Revision 0, August 29, 2012.
``Kewaunee Power Station--60-Day Response to      ML13123A004
 March 12, 2012, Information Request Regarding
 Recommendation 2.1, Seismic Reevaluations,''
 April 29, 2013.
``Kewaunee Power Station--Rescission of Order EA- ML14059A411
 12-049, `Order Modifying Licenses with Regard
 to Requirements for Mitigation Strategies for
 Beyond Design Basis External Events' (TAC No.
 MF2774)'' June 10, 2014.
``Kewaunee Power Station--Response to Request     ML13322B255
 for Relief from Responding Further to the March
 2012 Request for Information Letter for
 Recommendation 9.3,'' January 22, 2014.
Letter from Anne T. Boland, NRC, to J.W. Shea,    ML17040A353
 TVA, ``Watts Bar Nuclear Plant, Unit 2--Request
 for Tennessee Valley Authority's Consent to
 Imposition of New Requirement Related to
 Mitigation of Beyond-Design-Basis Events,''
 February 15, 2017.
Letter from Anthony R. Pietrangelo, NEI, to Mark  ML15217A314
 A. Satorius, NRC, ``Use of Qualitative Factors
 in Regulatory Decision Making,'' May 11, 2015.
Letter from Eric J. Leeds to Holders of Licenses  ML111220447
 for Operating Power Reactors as Listed in the
 Enclosure, ``Rescission or Partial Rescission
 of Certain Power Reactor Security Orders
 Applicable to Nuclear Power Plants,'' November
 28, 2011.
Letter from J. E. Dyer, NRC, to Holders of        ML062300304
 Licenses for Operating Power Reactors Listed in
 the Enclosure, ``Order Requiring Compliance
 with Key Radiological Protection Mitigation
 Strategies,'' August 28, 2006.
Letter from J. Sam Armijo, ACRS Chairman, to Mr.  ML12072A197
 R. W. Borchardt, ``Response to February 27,
 2012 Letter Regarding Final Disposition of
 Fukushima-Related ACRS Recommendations in
 Letters Dated October 13, 2011, and November 8,
 2011,'' March 13, 2012.
Letter from J. W. Shea to NRC Document Control    ML17061A121
 Desk, ``Watts Bar Nuclear Plant, Unit 2--
 Response to NRC Request for TVA's Consent to
 Imposition of New Requirement Related to
 Mitigation of Beyond-Design-Basis Events,''
 March 1, 2017.
Letter from John W. Stetkar, ACRS Chairman, to    ML15111A271
 Chairman Stephen G. Burns, NRC, ``Draft SECY
 Paper Proposed Rulemaking: Mitigation of Beyond-
 Design-Basis Events (RIN 3150-AJ49),'' April
 22, 2015.
Letter from Mark A. Satorius to John W. Stetkar,  ML15125A485
 ACRS, ``Draft SECY Paper `Proposed Rulemaking:
 Mitigation of Beyond-Design-Basis Events (RIN
 3150-AJ49)','' May 15, 2015.
Letter from Said Abdel-Khalik, ACRS Chairman, to  ML11284A136
 Chairman Gregory B. Jaczko, NRC, ``Initial ACRS
 Review of: (1) the NRC Near-Term Task Force
 Report on Fukushima and (2) Staff's Recommended
 Actions To Be Taken Without Delay,'' October
 13, 2011.
Memorandum from R. W. Borchardt to J. Sam         ML12030A198
 Armijo, ACRS Chairman, ``Final Disposition of
 the Advisory Committee on Reactor Safeguards'
 Review of (1) the U.S. Nuclear Regulatory
 Commission Near-Term Task Force Report on
 Fukushima, (2) Staff's Recommended Actions To
 Be Taken Without Delay
 (SECY[dash]11[dash]0124), and (3) Staff's
 Prioritization of Recommended Actions To Be
 Taken in Response to Fukushima Lessons-Learned
 (SECY-11-0137),'' February 27, 2012.
NEI 06-12, ``B.5.b Phase 2 & 3 Submittal          ML070090060
 Guideline,'' Revision 2, December 2006.

[[Page 39716]]

 
NEI 10-05, ``Assessment of On-Shift Emergency     ML111751698
 Response Organization Staffing and
 Capabilities,'' Revision 0, June 2011.
NEI 12-01, ``Guideline for Assessing Beyond       ML12125A412
 Design Basis Accident Response Staffing and
 Communications Capabilities,'' Revision 0, May
 2012.
NEI 12-02, ``Industry Guidance for Compliance     ML122400399
 with NRC Order EA[dash]12[dash]051, `To Modify
 License with Regard to Reliable Spent Fuel Pool
 Instrumentation','' Revision 1, August 2012.
NEI 12-06, ``Diverse and Flexible Coping          ML12242A378
 Strategies (FLEX) Implementation Guide,''
 Revision 0, August 2012.
NEI 12-06, ``Diverse and Flexible Coping          ML15279A426
 Strategies (FLEX) Implementation Guide,''
 Revision 1A, October 2015.
NEI 12-06, ``Diverse and Flexible Coping          ML16005A625
 Strategies (FLEX) Implementation Guide,''
 Revision 2, December 2015.
NEI 12-06, ``Diverse and Flexible Coping          ML16267A274
 Strategies (FLEX) Implementation Guide,''
 Revision 3, September 2016.
NEI 13-06, ``Enhancements to Emergency Response   ML14269A230
 Capabilities for Beyond Design Basis Events and
 Severe Accidents,'' Revision 0, September 2014.
NEI 13-06, ``Enhancements to Emergency Response   ML16224A618
 Capabilities for Beyond Design Basis Events and
 Severe Accidents,'' Revision 1, February 2016.
NEI 14-01, ``Emergency Response Procedures and    ML14269A236
 Guidelines for Beyond Design Basis Events and
 Severe Accidents,'' Revision 0, September 2014.
NEI 14-01, ``Emergency Response Procedures and    ML16224A619
 Guidelines for Beyond Design Basis Events and
 Severe Accidents,'' Revision 1, February 2016.
NEI 91-04, ``Severe Accident Issue Closure        ML072850981
 Guidelines,'' Revision 1, December 1994.
Non-concurrence NCP-2015-003....................  ML15091A646
Non-concurrence NCP-2016-018....................  ML16312A020
NUREG-0654/FEMA-REP-1, ``Criteria for             ML040420012
 Preparation and Evaluation of Radiological
 Emergency Response Plans and Preparedness in
 Support of Nuclear Power Plants,'' Revision 1,
 November 1980.
NUREG-0660, Vol. 1, ``NRC Action Plan Developed   ML072470526
 as a Result of the TMI-2 Accident,'' May 1980.
NUREG-0660, Vol. 2, ``NRC Action Plan Developed   ML072470524
 as a Result of the TMI-2 Accident,'' May 1980.
NUREG-0711, ``Human Factors Engineering Program   ML12324A013
 Review Model,'' Revision 3, November 2012.
NUREG-0737, ``Clarification of TMI Action Plan    ML102560051
 Requirements,'' November 1980.
NUREG-0737, ``Clarification of TMI Action Plan    ML102560009
 Requirements,'' Supplement 1, January 1983.
NUREG-0800, ``Standard Review Plan for the        ML13316B202
 Review of Safety Analysis Reports for Nuclear
 Power Plants: LWR Edition,'' Section 19.4,
 ``Strategies and Guidance To Address Loss-of-
 Large Areas of the Plant Due to Explosions and
 Fires,'' June 2015.
NUREG-1935, ``State-of-the-Art Reactor            ML12332A057
 Consequence Analyses (SOARCA) Report,''
 November 2012.
``Omaha Public Power District's Overall           ML13116A208
 Integrated Plan in Response to March 12, 2012,
 Commission Order Modifying Licenses with Regard
 to Requirements for Mitigation Strategies for
 Beyond Design Basis External Events (Order
 Number EA-12-049,'' February 28, 2013.
Order EA-02-026, ``Order for Interim Safeguards   ML020510635
 and Security Compensatory Measures,'' February
 25, 2002.
Order EA-06-137, ``Order Modifying Licenses,''    ML061600076
 June 20, 2006.
Order EA-12-049, ``Order Modifying Licenses With  ML12054A735
 Regard to Requirements for Mitigation
 Strategies for Beyond-Design-Basis External
 Events,'' (Mitigation Strategies Order), March
 12, 2012.
Order EA-12-051, ``Order Modifying Licenses with  ML12056A044
 Regard to Reliable Spent Fuel Pool
 Instrumentation'' (SFPI Order), March 12, 2012.
Order EA-13-109, ``Order Modifying Licenses with  ML13130A067
 Regard to Reliable Hardened Containment Vents
 Capable of Operation under Severe Accident
 Conditions,'' June 6, 2013.
``Preliminary Proposed Rule Language for          ML14218A253
 Mitigation of Beyond-Design-Basis Events
 Rulemaking,'' August 15, 2014.
``Preliminary Proposed Rule Language for          ML14336A641
 Mitigation of Beyond-Design-Basis Events
 Rulemaking,'' made available to the public on
 November 13, 2014, and December 8, 2014, to
 support public discussion with the ACRS.
PRM-50-96, ``Petition for Rulemaking Submitted    ML110750145
 by Thomas Popik on Behalf of the Foundation for
 Resilient Societies To Adopt Regulations that
 Would Require Facilities Licensed by the NRC
 under 10 CFR Part 50 To Assure Long-Term
 Cooling and Unattended Water Makeup of Spent
 Fuel Pools,'' March 14, 2011.
PRM-50-97, ``NRDC's Petition for Rulemaking To    ML11216A237
 Require Emergency Preparedness Enhancements for
 Prolonged Station Blackouts,'' July 26, 2011.
PRM-50-98, ``NRDC's Petition for Rulemaking To    ML11216A238
 Require Emergency Preparedness Enhancements for
 Multiunit Events,'' July 26, 2011.
PRM-50-100, ``NRDC's Petition for Rulemaking To   ML11216A240
 Require Licensees to Improve Spent Nuclear Fuel
 Pool Safety,'' July 26, 2014.
PRM-50-101, ``NRDC's Petition for Rulemaking To   ML11216A241
 Revise 10 CFR Sec.   50.63,'' July 26, 2011.
PRM-50-102, ``NRDC's Petition for Rulemaking To   ML11216A242
 Require More Realistic Training on Severe
 Accident Mitigation Guidelines,'' July 26, 2011.
Regulatory Issue Summary 2009-13, ``Emergency     ML092670124
 Response Data System Upgrade from Modem to
 Virtual Private Network Appliance,'' September
 28, 2009.
``Request for Information Pursuant to Title 10    ML12053A340
 of the Code of Federal Regulations 50.54(f)
 Regarding Recommendations 2.1, 2.3, and 9.3, of
 the Near-Term Task Force Review of Insights
 from the Fukushima Dai-Ichi Accident,'' March
 12, 2012.
San Onofre Nuclear Generating Station Units 2     ML13276A020
 and 3, ``Final Response to the March 12, 2012
 Information Request Regarding Near-Term Task
 Force Recommendations 2.1, 2.3, and 9.3 and
 Corresponding Commitments San Onofre Nuclear
 Generating Station (SONGS) Units 2 and 3,''
 September 30, 2013.
``San Onofre Nuclear Generating Station, Units 2  ML13329A826
 and 3--NRC Response to Southern California
 Edison's Final Response to the March 2012
 Request for Information Letter,'' January 22,
 2014.
``San Onofre Nuclear Generating Station, Units 2  ML14113A572
 and 3--Rescission of Order EA-12-049, `Order
 Modifying Licenses with Regard to Requirements
 for Mitigation Strategies for Beyond Design
 Basis External Events' (TAC Nos. MF2657 and
 MF2658),'' June 30, 2014.

[[Page 39717]]

 
``San Onofre Nuclear Generating Station, Units 2  ML14111A069
 and 3--Rescission of Order EA-12-051, `Order
 Modifying Licenses with Regard to Reliable
 Spent Fuel Pool Instrumentation' (TAC Nos.
 MF0917 and MF0918),'' June 30, 2014.
SECY-11-0093, ``Near-Term Report and              ML11186A950
 Recommendations for Agency Actions Following
 the Events in Japan,'' July 12, 2011.
SECY-11-0124, ``Recommended Actions To Be Taken   ML11245A127
 Without Delay from the Near-Term Task Force
 Report,'' September 9, 2011.
SECY-11-0137, ``Prioritization of Recommended     ML11272A111
 Actions To Be Taken in Response to Fukushima
 Lessons Learned,'' October 3, 2011.
SECY-12-0025, ``Proposed Orders and Requests for  ML12039A103
 Information in Response to Lessons Learned from
 Japan's March 11, 2011, Great T[omacr]hoku
 Earthquake and Tsunami,'' February 17, 2012.
SECY-13-0132, ``Plan for Updating the U.S.        ML13274A495
 Nuclear Regulatory Commission's Cost Benefit
 Guidance,'' January 2, 2014.
SECY-14-0046, ``Fifth 6-Month Status Update on    ML14064A523
 Response to Lessons Learned from Japan's March
 11, 2011, Great T[omacr]hoku Earthquake and
 Subsequent Tsunami,'' April 17, 2014.
SECY-15-0050, ``Cumulative Effects of Regulation  ML15034A360
 Process Enhancements and Risk Prioritization
 Initiative,'' April 1, 2015.
SECY-15-0065, ``Proposed Rulemaking: Mitigation   ML15049A201
 of Beyond-Design-Basis Events (RIN 3150-
 AJ49),'' April 30, 2015.
SECY-15-0085, ``Evaluation of the Containment     ML15005A079
 Protection & Release Reduction for Mark I and
 Mark II Boiling Water Reactors Rulemaking
 Activities (10 CFR Part 50) (RIN-3150-AJ26),''
 enclosure entitled, ``Containment Protection
 and Release Reduction (CPRR) Rulemaking: Draft
 Regulatory Basis,'' June 18, 2015.
SECY-16-0142, ``Draft Final Rule--Mitigation of   ML16301A005
 Beyond-Design-Basis Events (RIN 3150-AJ49),''
 December 15, 2016.
SECY-89-012, ``Staff Plans for Accident           ML19126A278
 Management Regulatory and Research Programs,''
 January 18, 1989.
SECY-97-132, ``Status of the Integration Plan     ML992930144
 for Closure of Severe Accident Issues and the
 Status of Severe Accident Research,'' June 23,
 1997.
SECY-98-131, ``Status of the Integration Plan     ML992880008
 for Closure of Severe Accident Issues and the
 Status of Severe Accident Research,'' June 8,
 1998.
SRM-COMSECY-13-0002, ``Consolidation of Japan     ML13063A548
 Lessons Learned Near-Term Task Force
 Recommendations 4 and 7 Regulatory
 Activities,'' March 4, 2013.
SRM-COMSECY-14-0037, ``Integration of Mitigating  ML15089A236
 Strategies for Beyond-Design-Basis External
 Events and The Reevaluation of Flooding
 Hazards,'' March 30, 2015.
SRM-SECY-11-0093, ``Near-Term Report and          ML112310021
 Recommendations for Agency Actions Following
 the Events in Japan,'' August 19, 2011.
SRM-SECY-11-0124, ``Recommended Actions To Be     ML112911571
 Taken Without Delay From the Near-Term Task
 Force Report,'' October 18, 2011.
SRM-SECY-11-0137, ``Prioritization of             ML113490055
 Recommended Actions To Be Taken in Response to
 Fukushima Lessons Learned,'' December 15, 2011.
SRM-SECY-13-0132, ``U.S. Nuclear Regulatory       ML14139A104
 Commission Staff Recommendation for the
 Disposition of Recommendation 1 of the Near-
 Term Task Force Report,'' May 19, 2014.
SRM-SECY-15-0065, ``Proposed Rulemaking:          ML15239A767
 Mitigation of Beyond-Design-Basis Events (RIN
 3150-AJ49),'' August 27, 2015.
SRM-M190124A: Affirmation Session-SECY-16-0142:   ML19023A038
 Final Rule: Mitigation of Beyond-Design-Basis
 Events (RIN 3150-AJ49), January 24, 2019.
Temporary Instruction 2515/191, ``Inspection of   ML14273A444
 the Licensee's Responses to Mitigation
 Strategies Order EA-12-049, Spent Fuel Pool
 Instrumentation Order EA-12-051 and Emergency
 Preparedness Information Requested in NRC March
 12, 2012,'' March 12, 2012.
``Vermont Yankee Nuclear Power Station--          ML14321A685
 Rescission of Order EA[dash]12[dash]049, `Order
 Modifying Licenses with Regard to Requirements
 for Mitigation Strategies for Beyond Design
 Basis External Events' (TAC No. MF4763),''
 March 2, 2015.
``Vermont Yankee Nuclear Power Station--          ML14321A696
 Rescission of Order EA[dash]12[dash]051, `Order
 Modifying Licenses with Regard to Reliable
 Spent Fuel Pool Instrumentation' (TAC No.
 MF4764),'' March 2, 2015.
------------------------------------------------------------------------

    The NRC may post documents related to this rulemaking, including 
public comments, on the Federal rulemaking website at http://www.regulations.gov under Docket ID NRC-2014-0240. The Federal 
rulemaking website allows you to receive alerts when changes or 
additions occur in a docket folder. To subscribe: (1) Navigate to the 
docket folder (NRC-2014-0240); (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).

List of Subjects

10 CFR Part 50

    Administrative practice and procedure, Antitrust, Backfitting, 
Classified information, Criminal penalties, Education, Fire prevention, 
Fire protection, Incorporation by reference, Intergovernmental 
relations, Nuclear power plants and reactors, Penalties, Radiation 
protection, Reactor siting criteria, Reporting and recordkeeping 
requirements, Whistleblowing.

10 CFR Part 52

    Administrative practice and procedure, Antitrust, Backfitting, 
Combined license, Early site permit, Emergency planning, Fees, 
Incorporation by reference, Inspection, Limited work authorization, 
Nuclear power plants and reactors, Penalties, Probabilistic risk 
assessment, Prototype, Reactor siting criteria, Redress of site, 
Reporting and recordkeeping requirements, Standard design, Standard 
design certification.


[[Page 39718]]


    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 50 and 52:

PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION 
FACILITIES

0
1. The authority citation for 10 CFR part 50 continues to read as 
follows:

    Authority:  Atomic Energy Act of 1954, secs. 11, 101, 102, 103, 
104, 105, 108, 122, 147, 149, 161, 181, 182, 183, 184, 185, 186, 
187, 189, 223, 234 (42 U.S.C. 2014, 2131, 2132, 2133, 2134, 2135, 
2138, 2152, 2167, 2169, 2201, 2231, 2232, 2233, 2234, 2235, 2236, 
2237, 2239, 2273, 2282); Energy Reorganization Act of 1974, secs. 
201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); Nuclear Waste 
Policy Act of 1982, sec. 306 (42 U.S.C. 10226); National 
Environmental Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 
note; Sec. 109, Pub. L. 96-295, 94 Stat. 783.


Sec.  50.8  [Amended]

0
2. In Sec.  50.8(b), add the number ``50.155,'' sequentially.

0
3. In Sec.  50.34, remove the word ``stationary'' from paragraphs 
(a)(13) and (b)(12), and revise paragraph (i).
    The revision reads as follows:


Sec.  50.34  Contents of applications; technical information.

* * * * *
    (i) Mitigation of beyond-design-basis events. Each application for 
a power reactor operating license under this part must include the 
applicant's plans for implementing the requirements of Sec.  50.155, 
including a schedule for achieving full compliance with these 
requirements and a description of the equipment upon which the 
strategies and guidelines required by Sec.  50.155(b)(1) rely, 
including the planned locations of the equipment and how the equipment 
meets the requirements of Sec.  50.155(c).

0
4. In Sec.  50.54, remove paragraph (hh)(2), redesignate paragraph 
(hh)(3) as (hh)(2) and revise it.
    The revision reads as follows:


Sec.  50.54  Conditions of licenses.

* * * * *
    (hh) * * *
    (2) Paragraph (hh)(1) of this section does not apply to a licensee 
that has submitted the certifications required under Sec.  50.82(a)(1) 
or Sec.  52.110(a) of this chapter.
* * * * *

0
5. Add Sec.  50.155 to read as follows:


Sec.  50.155  Mitigation of beyond-design-basis events.

    (a) Applicability. (1) Each holder of an operating license for a 
nuclear power reactor under this part and each holder of a combined 
license under part 52 of this chapter for which the Commission has made 
the finding under Sec.  52.103(g) of this chapter shall comply with the 
requirements of this section until submittal of the license holder's 
certifications described in Sec.  50.82(a)(1) or Sec.  52.110(a) of 
this chapter.
    (2)(i) Once the certifications described in Sec.  50.82(a)(1) or 
Sec.  52.110(a) of this chapter have been submitted by a licensee 
subject to the requirements of this section, that licensee need only 
comply with the requirements of paragraphs (b) through (d) and (f) of 
this section associated with spent fuel pool cooling capabilities.
    (ii) Holders of operating licenses or combined licenses for which 
the certifications described in Sec.  50.82(a)(1) or Sec.  52.110(a) of 
this chapter have been submitted need not meet the requirements of this 
section except for the requirements of paragraph (b)(2) of this section 
associated with spent fuel pool cooling capabilities once the decay 
heat of the fuel in the spent fuel pool can be removed solely by 
heating and boiling of water within the spent fuel pool and the boil-
off period provides sufficient time for the licensee to obtain off-site 
resources to sustain the spent fuel pool cooling function indefinitely, 
as demonstrated by an analysis performed and retained by the licensee.
    (iii) The holder of the license for Millstone Power Station, Unit 
1, is not subject to the requirements of this section.
    (iv) Holders of operating licenses or combined licenses for which 
the certifications described in Sec.  50.82(a)(1) or Sec.  52.110(a) of 
this chapter have been submitted need not meet the requirements of this 
section once all irradiated fuel has been permanently removed from the 
spent fuel pool(s).
    (b) Strategies and guidelines. Each applicant or licensee shall 
develop, implement, and maintain:
    (1) Mitigation strategies for beyond-design-basis external events--
Strategies and guidelines to mitigate beyond-design-basis external 
events from natural phenomena that are developed assuming a loss of all 
ac power concurrent with either a loss of normal access to the ultimate 
heat sink or, for passive reactor designs, a loss of normal access to 
the normal heat sink. These strategies and guidelines must be capable 
of being implemented site-wide and must include the following:
    (i) Maintaining or restoring core cooling, containment, and spent 
fuel pool cooling capabilities; and
    (ii) The acquisition and use of offsite assistance and resources to 
support the functions required by paragraph (b)(1)(i) of this section 
indefinitely, or until sufficient site functional capabilities can be 
maintained without the need for the mitigation strategies.
    (2) Extensive damage mitigation guidelines--Strategies and 
guidelines to maintain or restore core cooling, containment, and spent 
fuel pool cooling capabilities under the circumstances associated with 
loss of large areas of the plant impacted by the event, due to 
explosions or fire, to include strategies and guidelines in the 
following areas:
    (i) Firefighting;
    (ii) Operations to mitigate fuel damage; and
    (iii) Actions to minimize radiological release.
    (c) Equipment. (1) The equipment relied on for the mitigation 
strategies and guidelines required by paragraph (b)(1) of this section 
must have sufficient capacity and capability to perform the functions 
required by paragraph (b)(1) of this section.
    (2) The equipment relied on for the mitigation strategies and 
guidelines required by paragraph (b)(1) of this section must be 
reasonably protected from the effects of natural phenomena that are 
equivalent in magnitude to the phenomena assumed for developing the 
design basis of the facility.
    (d) Training requirements. Each licensee shall provide for the 
training of personnel that perform activities in accordance with the 
capabilities required by paragraphs (b)(1) and (2) of this section.
    (e) Spent fuel pool monitoring. In order to support effective 
prioritization of event mitigation and recovery actions, each licensee 
shall provide reliable means to remotely monitor wide-range water level 
for each spent fuel pool at its site until 5 years have elapsed since 
all of the fuel within that spent fuel pool was last used in a reactor 
vessel for power generation. This provision does not apply to General 
Electric Mark III upper containment pools.
    (f) Documentation of changes. (1) A licensee may make changes in 
the implementation of the requirements in this section without NRC 
approval, provided that before implementing each such change, the 
licensee demonstrates that the provisions of this section continue to 
be met and maintains documentation of changes until the

[[Page 39719]]

requirements of this section no longer apply.
    (2) Changes in the implementation of requirements in this section 
subject to change control processes in addition to paragraph (f) of 
this section must be processed via their respective change control 
processes, unless the changes being evaluated impact only the 
implementation of the requirements of this section.
    (g) Implementation. Each holder of an operating license for a 
nuclear power reactor under this part on September 9, 2019, and each 
holder of a combined license under part 52 of this chapter for which 
the Commission made the finding specified in 10 CFR 52.103(g) as 10 CFR 
52.103(g) as of September 9, 2019, shall continue to comply with the 
provisions of paragraph (b)(2) of this section, and shall comply with 
all other provisions of this section no later than September 9, 2022, 
for licensees that received NRC Order EA-13-109 or September 9, 2021, 
for all other applicable licensees.
    (h) Withdrawal of orders and removal of license conditions. (1) On 
September 9, 2022, Order EA-12-049, ``Order Modifying Licenses With 
Regard to Requirements for Mitigation Strategies for Beyond-Design-
Basis External Events,'' and Order EA-12-051, ``Order Modifying 
Licenses With Regard to Reliable Spent Fuel Pool Instrumentation,'' are 
withdrawn for each licensee or construction permit holder that was 
issued those Orders.
    (2) On September 9, 2019, Enrico Fermi Nuclear Plant Unit 3, 
License No. NPF-95, license conditions 2.D(12)(h), ``Reliable Spent 
Fuel Pool/Buffer Pool Level Instrumentation,'' 2.D(12)(i), ``Emergency 
Planning Actions,'' and 2.D(12)(g), ``Mitigation Strategies for Beyond-
Design-Basis External Events,'' except for 2.D(12)(g)1, are deemed 
removed from that license.
    (3) On September 9, 2019, William States Lee III Nuclear Station, 
Unit 1, License No. NPF-101, license conditions 2.D(12)(d)11 regarding 
reliable spent fuel pool instrumentation, 2.D(12)(g), ``Emergency 
Planning Actions,'' and 2.D(12)(j), ``Mitigation Strategies for Beyond-
Design-Basis External Events,'' except for 2.D(12)(j)1, and William 
States Lee III Nuclear Station, Unit 2, License No. NPF-102, license 
conditions 2.D(12)(d)11 regarding reliable spent fuel pool 
instrumentation, 2.D(12)(g), ``Emergency Planning Actions,'' and 
2.D(12)(j), ``Mitigation Strategies for Beyond-Design-Basis External 
Events,'' except for 2.D(12)(j)1, are deemed removed from those 
licenses.
    (4) On September 9, 2019, North Anna Unit 3, License No. NPF-103, 
license conditions 2.D(12)(g), ``Reliable Spent Fuel Pool/Buffer Pool 
Level Instrumentation,'' 2.D(12)(h), ``Emergency Planning Actions,'' 
and 2.D(12)(f), ``Mitigation Strategies for Beyond-Design-Basis 
External Events,'' except for 2.D(12)(f)1, are deemed removed from the 
license.
    (5) On September 9, 2019, Turkey Point, Unit 6, License No. NPF-
104, license conditions 2.D(12)(e)11 regarding reliable spent fuel pool 
instrumentation, 2.D(12)(g), ``Emergency Planning Actions,'' and 
2.D(12)(h), ``Mitigation Strategies for Beyond-Design-Basis External 
Events,'' except for 2.D(12)(h)1, and Turkey Point, Unit 7, License No. 
NPF-105, license conditions 2.D(12)(e)11 regarding reliable spent fuel 
pool instrumentation, 2.D(12)(g), ``Emergency Planning Actions,'' and 
2.D(12)(h), ``Mitigation Strategies for Beyond-Design-Basis External 
Events,'' except for 2.D(12)(h)1, are deemed removed from those 
licenses.

0
6. In appendix E to part 50 revise paragraphs IV.F.2.j and VI.3.c to 
read as follows:

Appendix E to Part 50--Emergency Planning and Preparedness for 
Production and Utilization Facilities

* * * * *
    IV. * * *
    F. * * *
    2. * * *
    j. The exercises conducted under paragraph 2 of this section by 
nuclear power reactor licensees must provide the opportunity for the 
ERO to demonstrate proficiency in the key skills necessary to 
implement the principal functional areas of emergency response 
identified in paragraph 2.b of this section. Each exercise must 
provide the opportunity for the ERO to demonstrate key skills 
specific to emergency response duties in the control room, TSC, OSC, 
EOF, and joint information center. Additionally, in each 8-calendar-
year exercise cycle, nuclear power reactor licensees shall vary the 
content of scenarios during exercises conducted under paragraph 2 of 
this section to provide the opportunity for the ERO to demonstrate 
proficiency in the key skills necessary to respond to the following 
scenario elements: hostile action directed at the plant site, no 
radiological release or an unplanned minimal radiological release 
that does not require public protective actions, an initial 
classification of or rapid escalation to a Site Area Emergency or 
General Emergency, implementation of strategies, procedures, and 
guidance under Sec.  50.155(b)(2), and integration of offsite 
resources with onsite response. The licensee shall maintain a record 
of exercises conducted during each 8-year exercise cycle that 
documents the content of scenarios used to comply with the 
requirements of this paragraph. Each licensee shall conduct a 
hostile action exercise for each of its sites no later than December 
31, 2015. The first 8-year exercise cycle for a site will begin in 
the calendar year in which the first hostile action exercise is 
conducted. For a site licensed under 10 CFR part 52, the first 8-
year exercise cycle begins in the calendar year of the initial 
exercise required by section IV.F.2.a of this appendix.
* * * * *
    VI. * * *
    3. * * *
    c. In the event of a failure of NRC-supplied equipment, a 
replacement will be furnished by the NRC for licensee installation.
* * * * *

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

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

    Authority: Atomic Energy Act of 1954, secs. 103, 104, 147, 149, 
161, 181, 182, 183, 185, 186, 189, 223, 234 (42 U.S.C. 2133, 2134, 
2167, 2169, 2201, 2231, 2232, 2233, 2235, 2236, 2239, 2273, 2282); 
Energy Reorganization Act of 1974, secs. 201, 202, 206, 211 (42 
U.S.C. 5841, 5842, 5846, 5851); 44 U.S.C. 3504 note.


0
8. In Sec.  52.80, revise paragraph (d) to read as follows:


Sec.  52.80  Contents of applications; additional technical 
information.

* * * * *
    (d) The applicant's plans for implementing the requirements of 
Sec.  50.155 of this chapter including a schedule for achieving full 
compliance with these requirements, and a description of the equipment 
upon which the strategies and guidelines required by Sec.  50.155(b)(1) 
of this chapter rely, including the planned locations of the equipment 
and how the equipment meets the requirements of Sec.  50.155(c) of this 
chapter.

    Dated at Rockville, Maryland, this 30th day of July, 2019.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.

The following will not appear in the Code of Federal Regulations:

Views of the Commission

    Following the Fukushima Dai-ichi accident in Japan, the NRC 
embarked on a program of work that has taken eight years and 
involved a wide variety of people from the agency, from the 
regulated industry and from our interested stakeholders. The 
Commission's action on this final rule provides a holistic 
conclusion to a large portion of this work, which has already 
resulted in undeniable safety improvements throughout the operating 
power reactor fleet in the United States. Other work continues 
outside of the

[[Page 39720]]

rulemaking context; there is some analysis to determine whether 
additional safety improvements are appropriate and further 
evaluation is ongoing of the actual risk posed by external hazards 
needed to make such determinations. This work is being performed and 
will continue in the disciplined, site-specific processes that are 
in use and are appropriate for resolving these issues. The 
Commission's action on the final rule does not undermine, stop, or 
modify these risk-informed, site-specific activities.
    As our colleagues note, the final rule omits many provisions of 
the draft final rule; we did not arrive at this result lightly. 
Rather, as discussed in our votes and fully explained over the 
course of the lengthy revisions to this document, after carefully 
considering whether imposition of the underlying requirements would 
comply with our existing regulations, specifically the Backfit Rule 
in 10 CFR 50.109, we supported only those provisions for which such 
compliance was substantiated by the staff's analysis in the decision 
record. In that consideration, we primarily analyzed whether the new 
requirements were necessary for adequate protection or provided a 
cost-justified, substantial safety benefit. In general, we concluded 
that the requirements already imposed by the Commission by the 
Mitigation Strategies Order following the Fukushima Dai-ichi 
accident are sufficient and no new information in the record before 
us, including information developed by the staff or submitted by the 
public, indicates otherwise.
    Our colleagues also claim that the Staff Requirements Memorandum 
(SRM) on COMSECY-14-0037, ``Integration of Mitigating Strategies for 
Beyond-Design-Basis External Events and the Reevaluation of Flooding 
Hazards,'' established that it is necessary that the mitigation 
strategies under this final rule address the reevaluated seismic and 
flooding hazards to ensure adequate protection of public health and 
safety. To the extent our colleagues suggest that SRM-COMSECY-14-
0037 redefined the requirements needed for adequate protection 
stated in the March 2012 Mitigation Strategies Order, that 
suggestion is inconsistent with the agency's long standing practice 
and with applicable procedural and safety requirements.
    Staff Requirements Memoranda provide direction to the agency 
staff from the Commission and are not appropriate vehicles for 
imposing requirements on licensees and applicants. Under the 
Administrative Procedure Act, such vehicles are generally 
regulations and orders. Subsequent to COMSECY-14-0037, neither the 
Commission nor the staff undertook any additional action to modify 
and re-issue the March 2012 Mitigation Strategies Order or to issue 
a new order as was done for the hardened containment venting system 
orders when the NRC concluded venting systems should be capable of 
use in a severe accident. It would be inappropriate and without 
precedent for the agency to establish with finality what is required 
of our licensees in a process lacking either the hearing rights of 
our process for issuing orders or the public notice and comment of 
our deliberative rulemaking process.
    Moreover, our colleagues' suggestion regarding adequate 
protection finds no support within the four corners of the SRM. As 
noted in our underlying votes, seeking clear direction within the 
plain text of that document is difficult. The SRM did not approve 
the entirety of the staff's planned approach and in our view should 
not be read to approve the staff's bases for their plan. Indeed, 
COMSECY-14-0037 itself did not address the issue of the reevaluation 
of seismic hazards.
    Most importantly, the assertion that the Commission made an 
adequate protection determination in its action on COMSECY-14-0037 
is inconsistent with the Commission's conduct in the wake of the 
issuance of the SRM. Under long-standing agency policy, when the NRC 
identifies a need to impose a new or revised requirement to maintain 
a reasonable assurance of adequate protection, the agency must next 
determine whether an ``imminent threat'' to public health and safety 
exists. If so, the agency must implement the requirement 
immediately. In this case, the record surrounding SRM-COMSECY-14-
0037 does not contain any evidence that the Commission or staff 
conducted such an imminent threat assessment. The lack of such an 
assessment severely undercuts any suggestion that the SRM somehow 
expanded the requirements in our March 2012 Mitigation Strategies 
Order to maintain a reasonable assurance of adequate protection.
    Moreover, to the extent our colleagues observe that SRM-COMSECY-
14-0037 directed the staff to include certain provisions in a draft 
rule, the absence of those provisions in the final rule is not 
surprising or problematic. Rather, this absence is a normal part of 
the rulemaking process. As the Supreme Court has observed, ``Since 
[a] proposed rule [is] simply a proposal, its presence mean[s] that 
the [regulator is] considering the matter; after that consideration 
the [regulator] might choose to adopt the proposal or to withdraw 
it'' Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 175 
(2007) (emphasis in the original). We certainly have the option, as 
we have exercised here, to adopt certain aspects of a proposal and 
to reject others.
    Our colleagues appear to suggest that we are ignoring the actual 
flooding and earthquake hazards that our licensees have determined 
could occur at our nation's nuclear power plants. This is not the 
case; we are simply choosing to complete the Commission-directed 
site-specific process already underway rather than to enact 
additional requirements on a generic basis. The hazard reevaluations 
conducted by licensees at the Commission's request under 10 CFR 
50.54(f) have been developed using the best available methods for 
siting nuclear power plants and include conservative assumptions and 
margin sufficient to show that the reevaluated hazards will not 
affect the plants. Work continues on the assessment of the results 
of these reevaluations to determine just what the actual hazards to 
the plants are on a site-specific basis. To facilitate these 
assessments, the Commission specifically directed the staff, in the 
course of determining what regulatory actions are appropriate, to 
``introduce more realism for the purpose of identifying potential 
safety enhancements for operating reactors'' (SRM-COMSECY-14-0037) 
and ``continue to look for additional opportunities to address any 
over conservatism in the flood hazard evaluations and to streamline 
the process as additional lessons are learned'' (SRM-COMSECY-15-
0019). The staff continues to make good progress in this area as it 
completes its work under Sec.  50.54(f) to determine whether 
individual licenses ``should be modified, suspended, or revoked.'' 
These efforts are, in our view, sufficient to provide reasonable 
assurance of adequate protection at each facility.
    Finally, our colleagues note the lack of specific requirements 
in this final rule for items that have already been resolved in the 
nuclear industry's response to the Mitigation Strategies Order. This 
is, however, in keeping with our regulatory processes. Our Backfit 
Rule itself provides that ``[i]f there are two or more ways to 
achieve compliance with a license or the rules or orders of the 
Commission, or with written licensee commitments, or there are two 
or more ways to reach a level of protection which is adequate, then 
ordinarily the applicant or licensee is free to choose the way which 
best suits its purposes'' (10 CFR 50.109(a)(7)). Although we may 
certainly constrain the manner in which applicants or licensees 
develop their mitigation strategies to comply with this final rule, 
we will not do so absent a sufficiently documented basis. We have 
not been provided in the record before us--or anywhere else--a basis 
for artificially constraining the means and methods of future 
compliance as our colleagues would have us do. We have confidence 
that all of the nation's currently operating power reactors are 
capable of complying with the requirements of this final rule using 
industry-developed and NRC-approved guidance because they have been 
able to achieve compliance with the Mitigation Strategies Order, 
which is made generically applicable by this Commission action.

Chairman Kristine L. Svinicki, Commissioners Annie Caputo and David 
A. Wright

Separate Views of Commissioner Baran

    This rule was meant to be the capstone of the agency's response 
to the Fukushima Dai-ichi accident in Japan. The draft final rule 
presented to the Commission by the NRC staff in December 2016 was 
the culmination of years of work to establish new requirements for 
the mitigation of beyond-design-basis events at nuclear power 
plants. The draft final rule would have responded to Near-Term Task 
Force (NTTF) recommendations 2 and 4 by requiring licensee 
strategies to mitigate beyond-design-basis events to address each 
plant's re-evaluated seismic and flooding hazards. The rule also 
would have responded to NTTF recommendations 8 and 9 by requiring an 
integrated emergency response capability and ``sufficient staffing, 
command and control, training, drills, communications capability, 
and documentation of changes to support the integrated response 
capability.'' To address NTTF recommendations 10 and 11, the rule

[[Page 39721]]

would have set requirements for enhanced onsite emergency response 
capabilities.
    I strongly support requiring these updated standards and 
critical safety improvements, which are necessary to provide 
adequate protection of public health and safety. But the majority of 
the Commission has decided to gut this key post-Fukushima safety 
rule.
    In the aftermath of Fukushima, licensees and the NRC staff spent 
years using the latest science and modern methods to determine the 
present-day flooding and earthquake hazards for the nation's nuclear 
power plants. Now, the majority of the Commission has decided that 
licensees can ignore these reevaluated hazards with their strategies 
to mitigate beyond-design-basis events. Instead of requiring nuclear 
power plants to be prepared for the actual flooding and earthquake 
hazards that could occur at their sites, NRC will allow them to be 
prepared only for the old, outdated hazards typically calculated 
decades ago when the science of seismology and hydrology was far 
less advanced than it is today. This decision is nonsensical.
    The requirement for licensees to develop and maintain mitigating 
strategies for beyond-design-basis events based on the modern, 
reevaluated hazards was at the core of this rulemaking, and the 
majority of the Commission has voted to jettison it. Under the final 
rule written by the majority, the FLEX equipment at nuclear power 
plants is not required to be reasonably protected from the up-to-
date flooding and earthquake hazards. Other vital safety protections 
were completely excised from the rule. Licensees will not be 
required to have sufficient staffing or communications capabilities 
to implement the mitigating strategies. And there will be no 
requirement for drills and exercises to test licensees' ability to 
respond to these kinds of extreme events. Instead of establishing 
these commonsense and non-controversial safety standards, the 
majority of the Commission has opted to require only what was 
already required in the Commission's March 2012 Mitigation 
Strategies Order. That order was supposed to be a first step towards 
improved safety, not the last. But the majority's version of this 
rule does nothing to enhance the safety of nuclear power plants.
    This outcome is a complete U-turn for NRC. In the 2012 order, 
the Commission made it clear that mitigating strategies for beyond-
design-basis events were necessary to ensure adequate protection of 
public health and safety. The Commission did not require the 
mitigating strategies to account for the reevaluated hazards at that 
time because the seismic and flooding analyses had not yet been 
performed. But the NRC staff clearly understood that the mitigating 
strategies would ultimately need to address the reevaluated hazards. 
In 2014, the staff recommended that ``licensees' mitigating 
strategies address the reevaluated flooding hazards as part of the 
[mitigating beyond-design-basis-events] rulemaking.'' \5\ The 
Commission unanimously approved that recommendation.\6\ As a result, 
the proposed rule was written to ``resolve and clarify the necessary 
actions a licensee must take to continue to show adequate protection 
of public health and safety, in light of the reevaluated hazards.'' 
\7\ This central aspect of the proposed rule was likewise 
unanimously approved by the Commission. In the comments submitted on 
the proposed rule, no stakeholder disagreed that these requirements 
should be included in the rule or disputed that they were necessary 
for adequate protection of public health and safety. Thus, the 
majority of the Commission has now voted for a final rule that bears 
no resemblance to the proposed rule or any of the public comments 
submitted to the agency in response to the proposed rule. Despite 
the fact that the Commission had repeatedly and unanimously found 
that updated safety standards were necessary to adequately protect 
the public, those safety standards have now been abruptly dropped 
from the final rule at the last minute, without any warning or 
notice to stakeholders.
---------------------------------------------------------------------------

    \5\ COMSECY-14-0037 at 6-7. There was no ambiguity on this 
point. The staff paper also stated: ``The NRC staff is asking the 
Commission to support the planned approach by affirming that the 
MBDBE rulemaking needs to require mitigating strategies that are 
able to address the reevaluated flooding hazards developed in 
response to the Sec.  50.54(f) letters in order to ensure reasonable 
assurance of adequate protection of the public health and safety.'' 
Id. at 7. The paper further stated: ``The results of the 
reevaluation of the flooding hazard are important to define the 
necessary attributes of the mitigating strategies equipment and 
actions to adequately protect against external events. The NRC staff 
plans to include this requirement in the pending MBDBE rulemaking. 
As such, the strategies required by the MBDBE rulemaking cannot be 
completed without information about the site-specific reevaluated 
flooding hazards.'' Id. at 6.
    \6\ Staff Requirements Memorandum for COMSECY-14-0037.
    \7\ SECY-15-0065 at 7. See also Proposed Rule Draft Federal 
Register Notice at 22, 69, 71, 102, 118-119, 124-125.
---------------------------------------------------------------------------

    The guidance that has been developed by the NRC staff and 
industry was intended to facilitate compliance with the requirements 
included in the draft final rule. Licensees have been preparing for 
years to implement mitigating strategies that account for the 
reevaluated flooding and earthquake hazards at nuclear power plant 
sites. This guidance is not a substitute for a regulation. It is not 
a legally binding requirement.
    This rule was always intended to be the agency's response to 
several key Near-Term Task Force recommendations. Instead of 
following through on these planned safety improvements, critical 
aspects of those recommendations to enhance mitigation and 
strengthen emergency preparedness are simply left unaddressed. As a 
result, the rule fails to confront a fundamental lesson of the 
Fukushima accident--that nuclear power plants must be fully prepared 
for the natural hazards that could threaten their safe operation. 
The majority of the Commission has chosen to leave this important 
safety work for a future Commission. The unfortunate reality is that 
this hollow shell of a rule does nothing beyond what the Commission 
already did more than six years ago. Nuclear power plants will be no 
safer with this rule than they are today.

Separate Views of Commissioner Burns

    The version of the final rule supported by the majority of the 
Commission will, in my view, significantly weaken what will be the 
agency's most enduring action as a result of lessons learned from 
the Fukushima Daiichi accident. In doing so, the Commission will 
have systematically and inexplicably unraveled a framework for 
addressing beyond-design-basis external events carefully crafted as 
a collaborative effort between the NRC staff and our external 
stakeholders in the years since the accident occurred in March 2011.
    I am chiefly concerned with the position the Commission majority 
has taken with respect to the reevaluated hazard analyses performed 
by licensees. This position is particularly disconcerting given that 
the accident at Fukushima was a direct result of the operator and 
regulator failing to take action to account for new scientific 
knowledge related to natural hazards, especially flooding hazards. 
In this regard, I believe that the majority has undermined the 
Commission's past position on these issues. In their edits to the 
statements of consideration for the final rule as well as to the 
supporting backfitting assessment, the majority has mischaracterized 
the Commission decision on COMSECY-14-0037. In its March 2015 Staff 
Requirements Memorandum on COMSECY-14-0037, the Commission approved 
the staff's recommendation ``that licensees for operating nuclear 
power plants need to address the reevaluated flooding hazards within 
their mitigation strategies for beyond-design-basis external 
events.'' The staff was explicit in COMSECY-14-0037 about what it 
was asking of the Commission:
    The NRC staff is asking the Commission to support the planned 
approach by affirming that the MBDBE rulemaking needs to require 
mitigating strategies that are able to address the reevaluated 
flooding hazards developed in response to the Sec.  50.54(f) letters 
in order to ensure reasonable assurance of adequate protection of 
the public health and safety. (emphasis added)
    The staff followed the Commission's unequivocal direction when 
it presented the proposed rulemaking on the Mitigation of Beyond-
Design Basis Events to the Commission in April 2015. In the draft 
proposed rule, the staff clearly stated that the proposed rulemaking 
would apply to power reactor applicants and licensees and include 
proposed ``requirements for the reasonable protection of mitigation 
equipment for beyond-design-basis external events that reflect the 
reevaluated hazards determined through regulatory efforts stemming 
from the 10 CFR 50.54(f) request issued on March 12, 2012.'' In the 
Commission paper transmitting the proposed rule (SECY-15-0065), the 
staff highlighted the fact that the proposed rule would ``resolve 
and clarify the necessary actions a licensee must take to continue 
to show adequate protection of public health and safety, in light of 
the reevaluated hazards, as directed in SRM-COMSECY-14-0037.'' The 
Commission unanimously approved publication of the draft proposed 
rule and noted only two exceptions it was taking to the staff's 
proposals, neither of which involved the need for mitigation 
strategies to reflect the reevaluated hazards.
    We should recall that, in the SRM for SECY-11-0124, 
``Recommended Actions to

[[Page 39722]]

be Taken Without Delay from the Near-Term Task Force Report,'' the 
Commission approved the staff's intent to issue a request for 
information to all operating reactor licensees to address, among 
other things, reevaluations of seismic and flooding hazards in 
accordance with Near-Term Task Force (NTTF) Recommendation 2.1. The 
request for information, issued under the provisions of 10 CFR 
50.54(f) on March 12, 2012, (Sec.  50.54(f) letter) stated that the 
hazard evaluation developed consistent with Recommendation 2.1 would 
be implemented in two phases. The first phase involved the 
reevaluation of the seismic and flooding hazards at all sites. In 
the second phase, the NRC staff was to determine, based upon the 
results of Phase 1, whether additional regulatory actions were 
necessary (e.g., updating the design basis and SSCs important to 
safety) to provide additional protection against the updated 
hazards.
    As former Commissioner Apostolakis pointed out in his 2011 vote 
on the NTTF Report, ``there is growing evidence that the historical 
record of tsunamis had not been used properly to determine the 
design basis at Fukushima Daiichi and, consequently, the protection 
of the plants was not sufficient.'' In the United States, there 
exists incontrovertible evidence that the current design bases for 
some plants do not address a flood hazard identified by the 
licensees' own analyses. Had the final rule been approved as 
proposed by the staff, the Commission's carefully crafted strategy 
would have dealt with this situation appropriately and effectively 
by requiring that the mitigation strategies for all sites be able to 
address the reevaluated hazards developed in response to the Sec.  
50.54(f) letters as a matter of adequate protection of the public 
health and safety. For plants with the most extreme exceedances from 
their current design basis, additional actions may have been 
necessary, but those decisions would only be made once their final 
flooding and/or seismic evaluations (e.g., integrated assessments or 
seismic PRAs) were completed. Absent a requirement in the MBDBE 
final rule to protect the mitigation strategies from the reevaluated 
hazard, the process for closing out NTTF Recommendation 2.1 and the 
Sec.  50.54(f) letter for all plants will be made much more 
burdensome for both licensees and the NRC staff and the outcome with 
respect to protecting plants from beyond-design-basis external 
events much more uncertain.
    In addition, the majority's approach calls into question the 
degree to which the NRC will be able to give credit for the 
existence of the mitigation strategies in a number of risk-informed 
regulatory initiatives like adaptation of alternative treatment 
requirements for SSCs under 10 CFR 50.69, ``Risk-informed 
categorization and treatment of structures, systems and components 
for nuclear power reactors,'' and risk-informed technical 
specifications. Licensees are also seeking credit for mitigation 
strategies in the Reactor Oversight Process and have expressed 
interest in pursuing credit for use of the strategies in the 
physical security program. The assessment of the degree to which 
credit for the mitigation strategies is possible will be much more 
complex now that the mitigation strategies will not be required to 
address the reevaluated hazards.
    Moreover, the decision to strip out the draft final rule 
requirements for an integrated response capability, as well as 
requirements for sufficient staffing levels, means of communication, 
and drills, also ignores primary lessons from the Fukushima Daiichi 
accident. These requirements were approved by the Commission in the 
proposed rule, and nothing has occurred in the interceding years to 
change the need for these requirements to ensure a holistic approach 
to the response to beyond-design basis accidents.
    The decision of the Commission majority to reverse course now, 
when the lion's share of the actions that would be required under 
the rule have already been completed by industry, is baffling. It is 
difficult to understand how the arguments put forth of regulatory 
over-reach are defensible with anyone who was at the agency when the 
accident occurred and has followed the activities of the agency, 
including the decisions made by the Commission, in the intervening 
years. It is equally baffling that some in the majority should lay 
the blame on the shoulders of the NRC staff for the perceived 
misapplication of the backfit rule when the staff was merely 
following Commission direction in producing the draft final rule.
    I would also point out that the changes reflected in the final 
rule are troubling in two other respects. First, the changes seem to 
be based in part on a presumption that the orders developed by staff 
and approved by the Commission in 2012 were a fully informed and 
complete regulatory solution to the Fukushima Daiichi accident. I do 
not mean to suggest that the Commission and the staff didn't 
implement thoughtful and effective solutions given what was known at 
the time. However, the orders were approved by the Commission just 
one year after the accident, and significant gaps still remained in 
the NRC's and industry's knowledge. To now suggest, as the majority 
has done, that the NRC could not improve upon the requirements of 
the orders or address these gaps in knowledge through this 
rulemaking makes little sense. I am also troubled that the final 
rule eliminates a substantial number of requirements that were 
included in the proposed rule for which no adverse public comments 
were received.
    Finally, although I have long supported the NRC's pursuit of a 
rigorous application of its backfitting regulations and adherence to 
its Principles of Good Regulation, this pursuit must be rational. In 
defense of this rulemaking proposal, the staff produced appropriate 
backfitting and regulatory analyses, which were consistent with 
previous Commission direction. The majority has decided to reverse 
these previous Commission decisions and takes issue with the staff's 
supporting analysis based on little more than conclusory statements 
in Commission votes that some of the requirements in the draft final 
rule are not ``necessary'' or would not result in a ``substantial 
increase in the overall protection of the public health and 
safety.'' Such an approach is entirely inconsistent with the 
principles of clarity, reliability, and openness that are supposed 
to drive this agency's work.
    In the official report of the National Diet of Japan's Fukushima 
Nuclear Accident Independent Investigation Commission, Chairman 
Kiyoshi Kurokawa noted:
    The earthquake and tsunami of March 11, 2011 were natural 
disasters of a magnitude that shocked the entire world. Although 
triggered by these cataclysmic events, the subsequent accident at 
the Fukushima Daiichi Nuclear Power Plant cannot be regarded as a 
natural disaster. It was a profoundly manmade disaster--that could 
and should have been foreseen and prevented. And its effects could 
have been mitigated by a more effective human response.
    The issuance of the NRC's final rule was meant to be the 
culmination of the agency's efforts to learn the lessons of the 
Fukushima Daiichi accident. Given the final form of the rule 
approved by the Commission majority, it will be difficult to 
convince others that the agency has learned those lessons well.

[FR Doc. 2019-16600 Filed 8-8-19; 8:45 am]
 BILLING CODE 7590-01-P