[Federal Register Volume 87, Number 42 (Thursday, March 3, 2022)]
[Proposed Rules]
[Pages 12254-12336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03131]



[[Page 12253]]

Vol. 87

Thursday,

No. 42

March 3, 2022

Part III





 Nuclear Regulatory Commission





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





10 CFR Parts 20, 26, 50, et al.





Regulatory Improvements for Production and Utilization Facilities 
Transitioning to Decommissioning; Proposed Rule

  Federal Register / Vol. 87 , No. 42 / Thursday, March 3, 2022 / 
Proposed Rules  

[[Page 12254]]


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

NUCLEAR REGULATORY COMMISSION

10 CFR Parts 20, 26, 50, 51, 52, 72, 73, 140

[NRC-2015-0070]
RIN 3150-AJ59


Regulatory Improvements for Production and Utilization Facilities 
Transitioning to Decommissioning

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to 
amend its regulations that relate to the decommissioning of production 
and utilization facilities. The NRC's goals in amending these 
regulations are to maintain a safe, effective, and efficient 
decommissioning process; reduce the need for license amendment requests 
and exemptions from existing regulations; address other decommissioning 
issues deemed relevant by the NRC; and support the NRC's Principles of 
Good Regulation, including openness, clarity, and reliability. The NRC 
will hold a public meeting to promote full understanding of this 
proposed rule and to facilitate public comments.

DATES: Submit comments by May 17, 2022. Comments received after this 
date will be considered if it is practical to do so, but the Commission 
is able to ensure consideration only for comments received before this 
date.

ADDRESSES: You may submit comments by the following method (unless this 
document describes a different method for submitting comments on a 
specific subject); however, the NRC encourages electronic comment 
submission through the Federal rulemaking website:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2015-0070. Address 
questions about NRC dockets to Dawn Forder; telephone: 301-415-3407; 
email: [email protected]. For technical questions contact the 
individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     Email comments to: [email protected]. If you do 
not receive an automatic email reply confirming receipt, then contact 
us at 301-415-1677.
     Mail comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and 
Adjudications Staff.
    For additional direction on obtaining information and submitting 
comments, see ``Obtaining Information and Submitting Comments'' in the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Daniel I. Doyle, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001; telephone: 301-415-3748; email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Executive Summary

A. Need for the Regulatory Action

    The NRC is proposing to amend its regulations related to the 
decommissioning of production and utilization facilities. The 
Commission directed the NRC staff to proceed with an integrated 
rulemaking on nuclear power reactor decommissioning to address the 
following: A graded approach to emergency preparedness (EP), lessons 
learned from the licensees that have already gone through (or are 
currently going through) the decommissioning process, the advisability 
of requiring a licensee's post-shutdown decommissioning activities 
report (PSDAR) to be approved by the NRC, the appropriateness of 
maintaining the three existing options for decommissioning and the 
timeframes associated with those options, the appropriate role of State 
and local governments and non-governmental stakeholders in the 
decommissioning process, and any other issues deemed relevant by the 
NRC staff.
    Compared to an operating nuclear power reactor, the risk of an 
offsite radiological release is significantly lower, and the types of 
possible accidents are significantly fewer, at a nuclear power reactor 
that has permanently ceased operations and removed fuel from the 
reactor vessel. As a direct result, there is no need for the NRC to 
impose new requirements in the areas identified in this rulemaking to 
address safety or security concerns. Instead, the requirements in 
decommissioning should be aligned with the reduction in risk that 
occurs over time, while maintaining safety and security. The 
decommissioning process can be improved and made more efficient, open, 
and predictable by reducing the reliance on licensing actions (i.e., 
license amendment and exemption requests) that reflect this reduction 
in risk to achieve a sustainable regulatory framework during 
decommissioning.
    The NRC has also determined that changes to the regulations are 
appropriate with respect to drug and alcohol testing; cyber security; 
and foreign ownership, control, or domination of a production or 
utilization facility undergoing decommissioning.
    In several areas, the current regulations do not distinguish 
between provisions that apply to a nuclear power reactor that has 
permanently ceased operations and provisions that apply to an operating 
nuclear power reactor. To address this, the NRC is proposing to amend 
its regulations in several areas to provide a regulatory framework for 
the transition from operating to decommissioning. This proposed rule is 
a four-step graded approach that is commensurate with the reduction in 
radiological risk at four levels of decommissioning: (1) Permanent 
cessation of operations and permanent removal of all fuel from the 
reactor vessel, (2) sufficient decay of fuel in the spent fuel pool 
(SFP) such that it would not reach ignition temperature within 10 hours 
under adiabatic heatup conditions (i.e., a complete loss of SFP water 
inventory with no heat loss), (3) transfer of all fuel to dry storage, 
and (4) removal of all fuel from the site. The graded approach is a 
fundamental concept for this proposed rule.
    Because the current regulatory framework for decommissioning is 
adequate to protect public health and safety and the common defense and 
security, many of the new requirements in this proposed rule are 
alternatives to current requirements.

B. Major Provisions

    Major provisions of this proposed rule include changes in the 
following areas:
     Emergency preparedness. This proposed rule offers an 
alternative, graded approach to the current requirements for onsite and 
offsite radiological emergency preparedness at a nuclear power reactor. 
This approach would provide four levels of emergency planning standards 
that coincide with significant milestones in decommissioning that 
reflect the gradual reduction of the radiological risk during 
decommissioning.
     Physical security. This proposed rule would make certain 
changes that would apply once a nuclear power reactor enters 
decommissioning. These proposed changes would (1) permit a certified 
fuel handler (CFH) to approve the temporary suspension of security 
measures during certain emergency conditions or during severe weather, 
(2) remove the requirement that a licensee's physical protection 
program be

[[Page 12255]]

designed to prevent significant core damage, (3) remove the requirement 
that a licensee must designate the reactor control room as a ``vital 
area,'' and (4) replace the requirement for maintaining continuous 
communications between the alarm stations and the control room with a 
requirement for maintaining communications between alarm stations and 
the CFH or senior on shift licensee representative, or both. This last 
change would clarify the management role of the CFH in a manner that is 
consistent with Sec.  50.54(y) of title 10 of the Code of Federal 
Regulations (10 CFR). The NRC is also proposing to revise Sec.  
50.54(p) to add definitions for ``change'' and ``decrease in safeguards 
effectiveness,'' as those terms apply to the process for making changes 
to the security plans of licensees under 10 CFR part 50, ``Domestic 
Licensing of Production and Utilization Facilities,'' and 10 CFR part 
52, ``Licenses, Certifications, and Approvals for Nuclear Power 
Plants,'' with operating, decommissioning, or decommissioned reactor 
units. In addition, this proposed rule would provide an option for a 
licensee to protect a general license independent spent fuel storage 
installation (ISFSI) under the physical security requirements in Sec.  
73.51, ``Requirements for the physical protection of stored spent 
nuclear fuel and high-level radioactive waste,'' for a specific license 
ISFSI instead of the physical security requirements in Sec.  73.55, 
``Requirements for physical protection of licensed activities in 
nuclear power reactors against radiological sabotage,'' for a nuclear 
power reactor once all spent fuel has been moved to dry storage.
     Cyber security. This proposed rule would provide that the 
cyber security requirements in Sec.  73.54, ``Protection of digital 
computer and communication systems and networks,'' continue to apply to 
a nuclear power reactor after the licensee's permanent cessation of 
operations, until all the fuel has been removed from the reactor vessel 
and there has been sufficient decay of the fuel in the SFP such that it 
would not reach ignition temperature within 10 hours under adiabatic 
heatup conditions, at which point no digital computer and 
communications systems would be required to meet the criteria of Sec.  
73.54. This proposed rule would also provide for the removal of the 
cyber security license condition for 10 CFR part 50 nuclear power 
reactor licensees after the spent fuel decay period.
     Drug and alcohol testing. This proposed rule would correct 
inconsistencies in the NRC's regulations for fitness-for-duty (FFD) 
programs and clarify provisions regarding a nuclear power reactor 
licensee's insider mitigation program (IMP).
     Certified fuel handler definition and elimination of the 
shift technical advisor. This proposed rule would retain the existing 
definition for ``certified fuel handler'' and add an alternative that 
would eliminate the need for nuclear power reactor licensees to seek 
the Commission's approval of a fuel handler training program. The 
proposed provision would require the training program to address the 
safe conduct of decommissioning activities, safe handling and storage 
of spent fuel, and appropriate response to plant emergencies. The 
proposed alternative specifies that a CFH must be qualified in 
accordance with a fuel handler training program that meets the same 
requirements as training programs for non-licensed operators required 
by Sec.  50.120, ``Training and qualification of nuclear power plant 
personnel.'' This proposed rule would also clarify that a Shift 
Technical Advisor (STA) is not required for decommissioning nuclear 
power reactors.
     Decommissioning funding assurance. This proposed rule 
recommends several changes regarding decommissioning funding for 
nuclear power reactors. It would modify the reporting frequency in 
Sec.  50.75 to be consistent with the decommissioning funding assurance 
reporting frequency for ISFSIs in Sec.  72.30(c). For ISFSI funding 
reports, this proposed rule would allow licensees to combine the 
reports that are required by Sec.  50.82(a)(8)(v), Sec.  
50.82(a)(8)(vii), and Sec.  72.30 and remove the requirement for NRC 
approval of ISFSI reports filed under Sec.  72.30(c). It also would 
clarify that although the regulations establish a continuing obligation 
to provide reasonable assurance of decommissioning funding, when a 
licensee identifies a shortfall in the report required by Sec.  
50.75(f)(1), the licensee must obtain additional financial assurance to 
cover the shortfall and discuss that information in the next report. In 
addition, this proposed rule would make administrative changes to 
ensure consistency with Sec.  50.4, ``Written communications,'' 
regarding the submission of notifications and to eliminate Sec.  
50.75(f)(2) because Sec.  50.75(f)(1) fully encompasses paragraph 
(f)(2). Besides proposing conforming changes to 10 CFR part 52, the NRC 
is asking whether the NRC should maintain identical requirements in 
Sec.  52.110 and Sec.  50.82.
     Offsite and onsite financial protection requirements and 
indemnity agreements. This proposed rule would allow certain nuclear 
power reactor licensees in decommissioning to reduce the insurance 
amounts that they are required to maintain without obtaining exemptions 
from the NRC's regulations.
     Environmental considerations. This proposed rule would 
clarify that licensees must evaluate the environmental impacts of 
decommissioning and whether they are bounded by previous environmental 
reviews in the PSDAR. The proposed rule would also clarify 
environmental reporting requirements.
     Record retention requirements. This proposed rule would 
remove certain record retention requirements for structures, systems, 
and components (SSCs) that no longer remain in service during 
decommissioning and would remove requirements to keep multiple copies 
of certain spent fuel storage records. The NRC is also asking a 
specific question concerning the recordkeeping requirements for 
facilities licensed under 10 CFR part 52.
     Low-level waste transportation. This proposed rule would 
allow a 45-day window for notification of receipt of shipments of low-
level radioactive waste (LLW). This increase from the current 20-day 
notification window is based on operating experience that shows that 45 
days is an appropriate amount of time for notification of LLW 
shipments.
     Spent fuel management planning. This proposed rule would 
clarify requirements that the decommissioning documents contain 
information on spent fuel management planning in accordance with the 
regulatory requirements in Sec.  72.218, ``Termination of licenses.''
     Backfit rule. This proposed rule would clarify how the NRC 
applies Sec.  50.109, ``Backfitting,'' to nuclear power reactor 
licensees in decommissioning and would make conforming changes to Sec.  
72.62.
     Foreign ownership, control, or domination. This proposed 
rule would specify the criteria for when a facility is no longer a 
production or utilization facility and that the foreign ownership, 
control, or domination (FOCD) prohibition found in Sec.  50.38, 
``Ineligibility of certain applicants,'' no longer applies to a person 
seeking a license for such a facility.
     Clarification of scope of license termination plan 
requirement. This proposed rule would clarify that the requirement for 
a license termination plan in Sec. Sec.  50.82(a)(9) and 52.110(i) 
applies only to nuclear power reactor licensees that have loaded fuel 
into the reactor.
     Removal of license conditions and withdrawal of orders 
made redundant

[[Page 12256]]

by regulation. This proposed rule would deem removed conditions imposed 
upon individual licensees and withdraw NRC orders that have been 
identified as having been made redundant by subsequent regulation 
resulting in their requirements being generically applicable. License 
conditions deemed removed would be actually removed by administrative 
license amendment subsequent to the effective date of the final rule. 
The NRC is interested in obtaining stakeholder input to identify 
potential redundant requirements not listed in this proposed rule.
     Changes for consistent treatment of holders of combined 
licenses and operating licenses. The proposed rule would improve 
consistency in regulatory treatment for combined license (part 52) and 
operating license (part 50) holders by aligning regulatory 
applicabilities for combined license holders upon submittal of the 
Sec.  52.110(a) certifications with regulatory applicabilities for 
operating license holders upon submittal of the Sec.  50.82(a)(1) 
certifications.

C. Costs and Benefits

    The NRC prepared a draft regulatory analysis to determine the 
expected quantitative costs and benefits of this proposed rule, as well 
as qualitative factors to be considered in the NRC's rulemaking 
decision. The conclusion of the analysis is that this proposed rule 
would result in net savings to production and utilization facility 
licensees and the NRC. The analysis combines the costs and benefits 
from the decommissioning areas of EP, physical security, cyber 
security, drug and alcohol testing, CFH training, decommissioning 
funding assurance, offsite and onsite financial protection requirements 
and indemnity agreements, environmental considerations, records 
retention, low-level waste transportation, spent fuel management 
planning, application of the Backfit Rule, FOCD, and clarification of 
the scope of a license termination plan. The analysis discusses the 
economic impact to the nuclear industry, government, and society from 
the rulemaking and associated guidance.
    The draft regulatory analysis discusses the cost benefit analysis 
for the various alternatives of each area of decommissioning proposed 
by the NRC, and shows that the NRC's proposed rule and guidance 
development is overall cost beneficial to the nuclear industry, 
government, and society as shown in Table 1.

             Table 1--Summary of Costs and Benefits (7% NPV)
------------------------------------------------------------------------
        Benefits                  Costs                 Net benefit
------------------------------------------------------------------------
       $18,315,000               $(401,000)              $17,914,000
------------------------------------------------------------------------

    The draft regulatory analysis also considers, in a qualitative 
fashion, regulatory efficiency, public health and safety, and common 
defense and security. For the regulatory efficiency aspect, this 
proposed rule would enable the NRC to better maintain and administer 
regulatory activities over the decommissioning process and ensure that 
the requirements for decommissioning production and utilization 
facilities are clear and appropriate. This proposed rule would also 
continue to provide reasonable assurance of adequate protection of the 
public health and safety and promote the common defense and security 
and protect the environment at production and utilization facility 
sites that have started decommissioning.
    Based on these quantitative and qualitative factors, the draft 
regulatory analysis concludes that the proposed rule should be adopted. 
For more information, please see the draft regulatory analysis 
available at the NRC's Agencywide Documents Access and Management 
System (ADAMS) under Accession No. ML22019A132.

Table of Contents

I. Obtaining Information and Submitting Comments
    A. Obtaining Information
    B. Submitting Comments
II. Background
    A. 1988 Decommissioning Rule
    B. 1996 Decommissioning Rule
    C. Post-1996 Final Rule Decommissioning Activity
    D. Spent Fuel Pool Studies
    E. Changes in Nuclear Power Reactor Decommissioning at the NRC 
and Within the Nuclear Power Industry
    F. Decommissioning Lessons Learned Report
    G. Initiation of This Proposed Rule
    H. Advance Notice of Proposed Rulemaking
    I. Regulatory Basis
III. Discussion
    A. Current Regulatory Process
    B. Objectives of This Proposed Rule
    C. Applicability
    D. Applicability to NRC Licensees During Operations
    E. Applicability to ISFSI-Only and Standalone ISFSI/
Decommissioned Reactor Sites
    F. Graded Approach
    G. Technical Basis for Graded Approach
    H. Levels of Decommissioning
    1. Level 1
    2. Level 2
    3. Level 3
    4. Level 4
IV. Scope of the Proposal
    A. Emergency Preparedness
    1. Introduction
    2. Graded Approach for Emergency Preparedness
    3. Licensee Supporting Analyses
    4. Post-Shutdown Emergency Plans
    5. Permanently Defueled Emergency Plans
    6. Independent Spent Fuel Storage Installation-Only Emergency 
Plans
    7. All Spent Fuel Removed From Site
    8. Changes to Emergency Plans
    9. Program Element Review Under Sec.  50.54(t)
    10. Reasonable Assurance and Offsite Radiological Emergency 
Preparedness
    11. Clean-up of Regulations
    12. Revisions to Sec.  72.32
    B. Physical Security
    1. Security Plans
    2. Dry Cask Storage
    3. Significant Core Damage
    4. Vital Areas
    5. Communications
    6. Suspension of Security Measures
    C. Cyber Security
    D. Drug and Alcohol Testing
    1. Scope of 10 CFR Part 26
    2. Fitness-for-Duty Elements for Insider Mitigation Program
    3. Criminal Penalties
    E. Certified Fuel Handler Definition and Elimination of the 
Shift Technical Advisor
    1. Alternative Definition for Certified Fuel Handler
    2. Elimination of the Shift Technical Advisor
    F. Decommissioning Funding Assurance
    1. Clarification of Sec.  50.82(a) and Sec.  52.110(h)
    2. Changes to Reporting Requirements
    3. Shortfalls in Decommissioning Funding Assurance
    4. Conforming Changes to 10 CFR Part 52
    5. Change to 10 CFR Part 72
    G. Offsite and Onsite Financial Protection Requirements and 
Indemnity Agreements
    1. Proposed Revisions to Offsite Liability and Onsite Property 
Insurance Requirements
    2. Proposed Revision to Extraordinary Nuclear Occurrences 
Requirements
    3. Proposed New Rule Language in Sec.  50.54(w)(6)
    H. Environmental Considerations

[[Page 12257]]

    1. Clarifying Changes to 10 CFR Parts 50 and 52
    2. Consistency Changes to 10 CFR Part 51
    I. Record Retention Requirements
    J. Low-Level Waste Transportation
    K. Spent Fuel Management Planning
    1. Requirements for the IFMP in Sec.  50.54(bb) and the PSDAR in 
Sec.  50.82 and Sec.  52.110
    2. Requirements in Sec.  72.218 for Termination of the General 
License for Spent Fuel Storage
    L. Backfit Rule
    M. Foreign Ownership, Control, or Domination
    N. Clarification of Scope of License Termination Plan 
Requirement
    O. Removal of License Conditions and Withdrawal of Orders
    P. Changes for Consistent Treatment of Holders of Combined 
Licenses and Operating Licenses
V. Specific Requests for Comments
VI. Section-by-Section Analysis
VII. Regulatory Flexibility Certification
VIII. Regulatory Analysis
IX. Backfitting and Issue Finality
    A. Current and Future Applicants
    B. Existing Design Certifications
    C. Existing Licensees
    D. Backfit Analysis
    1. Introduction and Background
    2. Detailed Description of the Proposed Change Affecting Issue 
Finality
    3. Benefits: Substantial Increase in Public Health and Safety 
and Common Defense and Security
    4. Costs
    5. Determination of Substantial Benefits Justifying Costs of the 
Proposed Change Affecting Issue Finality
    6. Conclusion
    7. Evaluation of Factors in Sec.  50.109(c)(1) Through (9)
    E. Draft Regulatory Guidance
X. Cumulative Effects of Regulation
XI. Plain Writing
XII. National Environmental Policy Act
XIII. Paperwork Reduction Act
XIV. Criminal Penalties
XV. Voluntary Consensus Standards
XVI. Availability of Guidance
XVII. Public Meeting
XVIII. Availability of Documents

I. Obtaining Information and Submitting Comments

A. Obtaining Information

    Please refer to Docket ID NRC-2015-0070 when contacting the NRC 
about the availability of information for this action. You may obtain 
publicly available information related to this action by any of the 
following methods:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2015-0070.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly available documents online in the 
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, 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, at 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 of this document.
     NRC's PDR: You may examine and purchase copies of public 
documents, by appointment, at the NRC's PDR, Room P1 B35, One White 
Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make 
an appointment to visit the PDR, please send an email to 
[email protected] or call 1-800-397-4209 or 301-415-4737, between 
8:00 a.m. and 4:00 p.m. (ET), Monday through Friday, except Federal 
holidays.

B. Submitting Comments

    The NRC encourages electronic comment submission through the 
Federal rulemaking website (https://www.regulations.gov). Please 
include Docket ID NRC-2015-0070 in your comment submission.
    The NRC cautions you not to include identifying or contact 
information that you do not want to be publicly disclosed in your 
comment submission. The NRC will post all comment submissions at 
https://www.regulations.gov as well as enter the comment submissions 
into ADAMS. The NRC does not routinely edit comment submissions to 
remove identifying or contact information.
    If you are requesting or aggregating comments from other persons 
for submission to the NRC, then you should inform those persons not to 
include identifying or contact information that they do not want to be 
publicly disclosed in their comment submission. Your request should 
state that the NRC does not routinely edit comment submissions to 
remove such information before making the comment submissions available 
to the public or entering the comment into ADAMS.

II. Background

    Under 10 CFR part 50 and 10 CFR part 52, the NRC requires current 
and future holders of operating licenses and current and future holders 
of combined licenses, respectively, to comply with a variety of 
regulatory requirements related to decommissioning. This section 
discusses previous rules that set out the NRC's requirements for 
production and utilization facility decommissioning and activities that 
have led to the development of this proposed rule.

A. 1988 Decommissioning Rule

    On June 27, 1988, the NRC published a final rule titled, ``General 
Requirements for Decommissioning Nuclear Facilities'' (53 FR 24018) 
(referred to herein as the ``1988 Final Rule''), which established 
decommissioning requirements for various types of licensees. In this 
rule, the NRC amended its regulations to provide specific requirements 
for the decommissioning of nuclear facilities. Specifically, the final 
rule established regulations on acceptable decommissioning 
alternatives, planning for decommissioning, decommissioning timeliness, 
assurance of the availability of funds for decommissioning, and 
environmental review requirements related to decommissioning. The 1988 
Final Rule amended the regulations that applied to applicants and 
licensees under 10 CFR part 30, ``Rules of General Applicability to 
Domestic Licensing of Byproduct Material''; 10 CFR part 40, ``Domestic 
Licensing of Source Material''; 10 CFR part 50; 10 CFR part 70, 
``Domestic Licensing of Special Nuclear Material''; and 10 CFR part 72, 
``Licensing Requirements for the Independent Storage of Spent Nuclear 
Fuel, High-Level Radioactive Waste, and Reactor-Related Greater than 
Class C Waste.''
    In the 1988 Final Rule, the NRC defined decommissioning as the 
``removal of nuclear facilities safely from service and reduction of 
residual radioactivity to a level that permits release of the property 
for unrestricted use and termination of the license.'' The NRC also 
stated in the 1988 Final Rule that decommissioning activities do not 
include the removal and disposal of spent fuel, which is considered to 
be an operational activity, or the removal and disposal of 
nonradioactive structures and materials beyond that necessary to 
terminate the NRC license.
    The purpose of the 1988 Final Rule, in part, was to ensure that 
reactor decommissioning would be carried out with minimal impact on 
public and occupational health and safety and the environment. The 
NRC's objective was that decommissioned facility sites would ultimately 
be available for unrestricted use for any public or private purpose. 
The amended regulations provided a regulatory framework for efficient 
and consistent licensing actions related to decommissioning.
    The NRC noted in the 1988 Final Rule that, although decommissioning 
was not an imminent health and safety problem, the number and 
complexity of facilities that would require decommissioning

[[Page 12258]]

was expected to increase, and inadequate or untimely consideration of 
decommissioning, specifically in the areas of planning and financial 
assurance, could result in significant adverse health, safety, and 
environmental impacts. The 1988 Final Rule clearly states that the 
licensee is responsible for the funding and completion of 
decommissioning in a manner that protects public health and safety. The 
NRC stated, ``With the increased number of decommissionings expected, 
case-by-case procedures would make licensing difficult and increase NRC 
and licensee staff resources needed for these activities'' (53 FR 
24019).
    The 1988 Final Rule required that, within 2 years after a licensee 
permanently ceases operation of a licensed nuclear facility, the 
licensee must submit a detailed decommissioning plan to the NRC for 
approval along with a supplemental environmental report that addresses 
environmental issues that have not already been considered. Based on 
these submittals, the NRC reviewed the licensee's planned activities, 
prepared a safety evaluation report and an environmental assessment 
(EA), and either made a finding of no significant impact (the usual 
case) or prepared an environmental impact statement. Upon approval of 
the decommissioning plan, the NRC issued an order under Sec.  2.202, 
``Orders,'' permitting the licensee to decommission its facility in 
accordance with the approved plan. As part of the approval process for 
the decommissioning plan, the public had the opportunity to request a 
hearing under 10 CFR part 2, ``Agency Rules of Practice and 
Procedure.'' The NRC would terminate the license once the 
decommissioning process was completed and the NRC was satisfied that 
the facility had been radioactively decontaminated to an unrestricted 
release level under Sec.  20.1402, ``Radiological criteria for 
unrestricted use.'' \1\
---------------------------------------------------------------------------

    \1\ License termination based upon a facility meeting the 
unrestricted use criteria under Sec.  20.1402 is the most common 
license termination scenario. The NRC may also terminate a facility 
license under restricted conditions (Sec.  20.1403, ``Criteria for 
license termination under restricted conditions'') and under 
alternative criteria (Sec.  20.1404, ``Alternative criteria for 
license termination'').
---------------------------------------------------------------------------

    If the licensee chose to place the reactor in storage and dismantle 
it at a later time, the initial decommissioning plan submittal was not 
required to be as detailed as a plan for prompt dismantlement. However, 
before the licensee could begin dismantlement, the regulations required 
that the licensee submit a detailed plan and environmental report to 
the NRC for approval. Before the decommissioning plan was approved, the 
licensee could not perform any major decommissioning activities. If a 
licensee desired a reduction in requirements because of the permanent 
cessation of operations, it had to obtain a license amendment for 
possession-only status. This possession-only license amendment was 
usually granted after the licensee indicated that the reactor had 
permanently ceased operations and that fuel had been permanently 
removed from the reactor vessel. Three examples of licensees that were 
granted possession-only status are Yankee Atomic Electric Company for 
the Yankee Nuclear Power Station (Yankee Rowe) (August 5, 1992; ADAMS 
Accession No. ML17283A069), Portland General Electric Company for the 
Trojan Nuclear Power Plant (May 5, 1993; ADAMS Accession No. 
ML18095A126), and Sacramento Municipal Utility District for the Rancho 
Seco Nuclear Generating Station (March 17, 1992; ADAMS Accession No. 
ML17283A071).
    The 1988 Final Rule required licensees to provide assurance that, 
at any time during the life of the facility through termination of the 
license, adequate funds will be available to complete decommissioning. 
For operating reactors, the 1988 Final Rule prescribed the required 
amount of decommissioning funding in Sec.  50.75. The 1988 Final Rule 
also imposed the requirement that, 5 years before license expiration or 
cessation of operations, licensees must submit a preliminary 
decommissioning plan containing a site-specific decommissioning cost 
estimate and appropriately adjust the financial assurance mechanism. In 
addition, the 1988 Final Rule required licensees to submit a 
decommissioning plan, including a site-specific cost estimate for 
decommissioning and a correspondingly adjusted financial assurance 
mechanism, within 2 years after permanent cessation of operations. For 
delayed dismantlement of a nuclear facility, the 1988 Final Rule 
required licensees to submit an updated decommissioning plan with the 
estimated cost covering the delay of decommissioning and to 
appropriately adjust the financial assurance mechanism. Before approval 
of the decommissioning plan, the 1988 Final Rule specified that 
licensee use of the decommissioning funds would be determined on a 
case-specific basis for premature closure, when the accrual of required 
decommissioning funds may be incomplete.

B. 1996 Decommissioning Rule

    On July 29, 1996, the NRC amended its regulations for reactor 
decommissioning to clarify ambiguities, codify procedures that reduced 
regulatory burden, provide greater flexibility, and allow for greater 
public participation in the decommissioning process in a final rule 
titled, ``Decommissioning of Nuclear Power Reactors'' (61 FR 39278) 
(referred to herein as the ``1996 Final Rule''). The 1996 Final Rule 
made fundamental changes to nuclear power reactor decommissioning by 
streamlining the process and reducing both licensee and NRC resource 
expenditures while maintaining safety, protecting the environment, and 
encouraging public involvement.
    In the 1996 Final Rule, the NRC explained that the degree of 
regulatory oversight required for a nuclear power reactor in 
decommissioning is considerably less than that required for a facility 
during its operating stage. During the operating stage of the reactor, 
fuel in the reactor core undergoes a controlled nuclear fission 
reaction that generates a high neutron flux and large amounts of heat. 
Safe control of the nuclear reaction involves the use and operation of 
many complex systems. First, the nuclear reaction must be carefully 
controlled through neutron-absorbing mechanisms. Second, the heat 
generated must be removed so that the fuel and its supporting structure 
do not overheat. Third, the confining structure and ancillary systems 
must be maintained and degradation caused by radiation and mechanical 
and thermal stress ameliorated. Fourth, the radioactivity resulting 
from the nuclear reaction in the form of direct radiation (especially 
near the high neutron flux areas around the reactor vessel) and any 
radiologically contaminated materials and radiological effluents 
(gaseous and liquid) must be minimized and controlled. Moreover, proper 
operating procedures must be established and maintained, with 
appropriately trained staff to ensure that the reactor system is 
properly operated and maintained, and that operating personnel minimize 
their exposure to radiation when performing their duties. Finally, 
emergency response procedures must be established and maintained to 
protect the public in the event of an accident.
    Decommissioning of a nuclear power reactor begins when the nuclear 
fission reaction is stopped and the fuel (in the form of spent fuel 
assemblies) is permanently removed from the reactor

[[Page 12259]]

vessel and placed in the SFP until transferred to interim storage in an 
onsite ISFSI or transported offsite for storage or disposal. While the 
spent fuel is still highly radioactive and generates heat caused by 
radioactive decay, the fuel slowly cools as its energetic decay 
products diminish. The SFP, which contains circulating water, removes 
the decay heat and filters out any small radioactive contaminants 
escaping the spent fuel assemblies. The SFP system is relatively simple 
to operate and maintain compared to an operating nuclear power reactor. 
The remainder of the facility may contain radioactive contamination in 
areas that were directly impacted by reactor operation, and will be 
more highly contaminated in the area of the reactor vessel. However, no 
new radioactivity can be generated because the spent fuel is stored in 
a configuration that precludes the nuclear fission reaction. Once the 
nuclear fission process has permanently ceased and the fuel assemblies 
have been removed from the reactor vessel, safety concerns for an SFP 
are greatly reduced because there is no longer generation of large 
amounts of heat, high neutron flux and related materials degradation, 
and other related stresses that result from the functioning of an 
operating reactor system.
    Contaminated areas of the facility must still be controlled to 
minimize radiation exposure to personnel and control the spread of 
radioactive material. This situation is now similar to a contaminated 
materials facility and does not require the oversight that an operating 
reactor would require.
    The amendments issued in the 1996 Final Rule provided licensees 
with simplicity and flexibility in implementing the decommissioning 
process, especially with regard to premature closure. The amendments 
clarified ambiguities in the regulations existing at the time, codified 
procedures and terminology that had been used in a number of specific 
cases, and increased opportunities for the public to become informed 
about the licensee's decommissioning activities. The amendments 
established a level of NRC oversight commensurate with the level of 
safety concerns expected during decommissioning activities. 
Specifically, the 1996 Final Rule established or modified requirements 
with regard to initial decommissioning activities, major 
decommissioning activities, and license termination procedures.
    With regard to initial decommissioning activities, the 1996 Final 
Rule mandated that, once a licensee permanently ceases operation of the 
nuclear power reactor and removes the fuel assemblies from the reactor 
vessel, it could not undertake any major decommissioning activities 
until it provided the public and the NRC with additional information 
about the proposed decommissioning approach. The NRC required that the 
licensee submit this information in the form of a PSDAR, which consists 
of the licensee's proposed decommissioning activities and schedule 
through license termination, a discussion of the reasons for concluding 
that the environmental impacts associated with the proposed site-
specific decommissioning activities will be bounded by appropriate 
previously issued environmental impact statements, and a 
decommissioning cost estimate for the proposed activities. The NRC 
makes the PSDAR available to the public for comment and holds a public 
meeting concerning the PSDAR in the vicinity of the plant. The NRC, 
however, does not approve the PSDAR and the submission of the PSDAR and 
its review by the NRC does not require the licensee to request a 
license amendment or any other approval.
    The 1996 Final Rule also established that the licensee may not 
begin performing major decommissioning activities until 90 days after 
the NRC receives the PSDAR submittal and until the licensee submits the 
certifications under Sec.  50.82(a)(1) that operations have permanently 
ceased and that fuel has been permanently removed from the reactor 
vessel. The 1996 Final Rule also amended certain 10 CFR part 50 
technical requirements to cover the transition of the facility from 
operating to permanently shutdown status. Specifically, the 1996 Final 
Rule removed the requirement for a licensee that has permanently ceased 
operations and removed fuel from the reactor vessel to obtain a license 
amendment before proceeding with certain decommissioning activities 
within established regulatory constraints (i.e., in accordance with 
Sec.  50.59, ``Changes, tests and experiments''). These changes to the 
decommissioning requirements increased the flexibility in the type of 
actions that licensees could undertake without prior NRC approval.
    With regard to major decommissioning activities, the 1996 Final 
Rule implemented a major change from the 1988 Final Rule in that 
nuclear power reactor licensees would no longer be required to have an 
approved decommissioning plan before being permitted to perform major 
decommissioning activities. The 1996 Final Rule allowed licensees to 
perform activities that meet the criteria in Sec.  50.59, which the NRC 
amended to include additional criteria to ensure that licensees 
consider concerns specific to decommissioning. Based on NRC experience 
with licensee decommissioning activities at the time, the NRC 
recognized that the Sec.  50.59 process used by the licensee during 
reactor operations encompassed routine activities that were similar to 
those undertaken during the decommissioning process. The NRC concluded 
that the licensee could use the Sec.  50.59 process to perform major 
decommissioning activities if licensing conditions and the level of NRC 
oversight required during reactor operations continued during 
decommissioning, commensurate with the risk profile of the facility 
being decommissioned. The 1996 Final Rule also required the licensee to 
provide written notification to the NRC before performing any 
decommissioning activity that is inconsistent with, or makes 
significant schedule changes from, the actions and schedules described 
in the PSDAR.
    With regard to license termination, the 1996 Final Rule required 
that a licensee wishing to terminate its license submit a license 
termination plan for NRC approval. The approval process for the 
termination plan provides for a hearing opportunity under 10 CFR part 
2. The licensee must submit a supplemental environmental report that 
considers new and significant environmental changes associated with 
license termination activities. The 1996 Final Rule imposed an 
additional requirement for the purpose of keeping the public informed. 
A public meeting, similar to the one held after the PSDAR submittal, 
must take place after the licensee submits its license termination plan 
to the NRC.
    The 1996 Final Rule continued the same degree of decommissioning 
financial assurance that was previously required but provided more 
flexibility by allowing licensees to have limited, early use of 
decommissioning funds. The NRC presented this provision in a February 
3, 1994, draft policy statement titled, ``Use of Decommissioning Trust 
Funds before Decommissioning Plan Approval'' (59 FR 5216), which was 
published for comment and eventually incorporated into the 1996 Final 
Rule. Before issuance of the 1996 Final Rule, licensee use of these 
funds was determined on a case-specific basis for prematurely shutdown 
plants. However, the 1996 Final Rule eliminated the requirement for a 
decommissioning plan and instead required a PSDAR submittal, which 
requires a decommissioning cost estimate. The 1996 Final Rule permitted 
3 percent of the decommissioning funds generically

[[Page 12260]]

required by Sec.  50.75 to be available to the licensee for 
decommissioning planning purposes. Moreover, to allow the licensee to 
accomplish major decommissioning activities promptly, an additional 20 
percent of the generic funding amount would be made available 90 days 
after the NRC had received the PSDAR if the licensee had also submitted 
the certifications required by Sec.  50.82(a)(1). The use of any funds 
above those amounts required the licensee to submit a site-specific 
decommissioning cost estimate to the NRC prior to the use of those 
funds.

C. Post-1996 Final Rule Decommissioning Activity

    In a series of Commission papers issued between 1997 and 2001, the 
NRC staff provided options and recommendations to the Commission to 
address regulatory improvements related to nuclear power reactor 
decommissioning. To consolidate these recommendations, in the Staff 
Requirements Memorandum (SRM) for SECY-99-168, ``Staff Requirements--
SECY-99-168--Improving Decommissioning Regulations for Nuclear Power 
Plants,'' dated December 21, 1999 (ADAMS Accession No. ML003752190), 
the Commission directed the NRC staff to proceed with a single, 
integrated, and risk-informed decommissioning rule addressing the areas 
of EP, insurance, safeguards, staffing and training, and backfitting 
for decommissioning nuclear power reactors. The objective of the 
rulemaking was to clarify and remove certain regulations for 
decommissioning nuclear power reactors based in large part on the 
reduction in radiological risk compared to operating reactors.
    On June 28, 2000, the NRC staff submitted SECY-00-0145, 
``Integrated Rulemaking Plan for Nuclear Power Plant Decommissioning,'' 
to the Commission (ADAMS Accession No. ML003721626). In this paper, the 
NRC staff proposed an integrated decommissioning rulemaking plan and 
requested Commission approval to proceed with developing an integrated 
rulemaking for nuclear power plant decommissioning in accordance with 
the recommendations detailed in the rulemaking plan. The paper 
addressed the regulatory areas of EP, insurance, safeguards, staffing 
and training, and backfitting for decommissioning nuclear power 
reactors. The rulemaking plan was contingent on the completion of a SFP 
zirconium fire risk study. The Commission responded to SECY-00-0145 in 
an SRM dated September 27, 2000 (ADAMS Accession No. ML003754381). The 
Commission returned that SECY to the staff without a vote on the 
rulemaking plan pending further developments in the area and requested 
that the staff submit a revised paper to the Commission.

D. Spent Fuel Pool Studies

    In the late 1990s and early 2000s, the NRC was assessing the risk 
of an SFP accident at a nuclear power reactor site in decommissioning. 
Following the removal of spent fuel from the reactor, the principal 
radiological risks are associated with the storage of spent fuel on 
site. Generally, a few months after the reactor has been permanently 
shut down and defueled, there are no possible design-basis accidents 
that could result in a radiological release exceeding the limits 
established by the U.S. Environmental Protection Agency (EPA) early-
phase Protective Action Guides (PAGs) at the exclusion area boundary 
(EPA-400-R-92-001, ``Manual of Protective Action Guides And Protective 
Actions For Nuclear Incidents,'' issued May 1992, and final revision 
EPA-400/R-17/001, ``PAG Manual: Protective Action Guides and Planning 
Guidance for Radiological Incidents,'' issued January 2017). The only 
SFP accident scenario that might lead to a release with offsite 
consequences exceeding the PAGs at a decommissioning reactor is a 
zirconium fire. The zirconium fire scenario is a postulated, but highly 
unlikely, beyond-design-basis accident scenario that involves a major 
loss of water inventory from the SFP, resulting in a significant heatup 
of the spent fuel, and culminating in substantial zirconium cladding 
oxidation, fire, and fuel damage. The significance of spent fuel heatup 
scenarios that might result in a zirconium fire depends on the decay 
heat of the irradiated fuel stored in the SFP. Therefore, the 
probability of a zirconium fire scenario continues to decrease as a 
function of the time that the decommissioning reactor has been 
permanently shut down and defueled.
    In the 1980s, the NRC examined the risk of an SFP accident as 
Generic Safety Issue 82, ``Beyond Design Basis Accidents in Spent Fuel 
Pools,'' because of the increased use of high-density storage racks and 
laboratory studies that indicated the possibility of a zirconium fire 
spreading between assemblies in an air-cooled environment (see Section 
3 of NUREG-0933, ``Resolution of Generic Safety Issues,'' issued 
December 2011 (available at https://www.nrc.gov/sr0933/Section%203.%20New%20Generic%20Issues/082r3.html)). The risk assessment 
and cost benefit analyses developed through this effort (Section 6.2 of 
NUREG-1353, ``Regulatory Analysis for the Resolution of Generic Issue 
82, `Beyond Design Basis Accidents in Spent Fuel Pools,' '' issued 
April 1989 (ADAMS Accession No. ML082330232)) concluded that the risk 
of a severe accident in the SFP was low and appeared to meet the public 
health objectives of the Commission's Safety Goal Policy Statement (51 
FR 30028; August 21, 1986) and that no new regulatory requirements were 
warranted.
    To support the rulemaking for decommissioning nuclear power plants 
in the late 1990s, the NRC reevaluated the risk of an SFP accident. The 
NRC's assessment in NUREG-1738, ``Technical Study of Spent Fuel Pool 
Accident Risk at Decommissioning Nuclear Power Plants,'' issued 
February 2001 (ADAMS Accession No. ML010430066), conservatively assumed 
that if the water level in the SFP dropped below the top of the spent 
fuel, an SFP zirconium fire involving all of the spent fuel would occur 
and thereby bounded those conditions associated with air cooling of the 
fuel (including partial draindown scenarios) and fire propagation. Even 
with this conservative assumption, the study found the risk of an SFP 
fire to be low and well within the Commission's safety goals.
    Although NUREG-1738 did not completely rule out the possibility of 
a zirconium fire, it did demonstrate that storage of spent fuel in a 
high-density configuration in SFPs is safe and that the risk of 
accidental release of a significant amount of radioactive material to 
the environment is low. The study used simplified and sometimes 
bounding assumptions and models to characterize the likelihood and 
consequences of beyond-design-basis SFP accidents. Subsequent NRC 
regulatory activities and studies (described in more detail in this 
section) have reaffirmed the safety and security of spent fuel stored 
in pools and have demonstrated that SFPs are effectively designed to 
prevent accidents and minimize damage from malevolent attacks.
    In the wake of the terrorist attacks of September 11, 2001, the NRC 
took several actions to further reduce the possibility of an SFP fire. 
The NRC issued immediately effective nonpublic orders (see the cover 
letter at ADAMS Accession No. ML020510637) that required licensees to 
implement additional security measures, including increased patrols, 
augmented security forces and capabilities, and more restrictive site-
access controls to reduce the likelihood of an SFP accident resulting 
from a terrorist-initiated event. A memorandum to the Commission

[[Page 12261]]

titled, ``Documentation of Evolution of Security Requirements at 
Commercial Nuclear Power Plants with Respect to Mitigation Measures for 
Large Fires and Explosions,'' dated February 4, 2010 (ADAMS Accession 
No. ML092990438), provides a comprehensive discussion of these actions, 
some of which specifically address SFP safety and security.
    New requirements to mitigate a postulated loss of SFP water 
inventory were also implemented following the terrorist attacks of 
September 11, 2001; these requirements resulted in enhanced spent fuel 
coolability and the potential to recover SFP water level and cooling 
prior to a postulated SFP zirconium fire. Based on the implementation 
of these additional strategies, the probability and, accordingly, the 
risk to the public health and safety of an SFP zirconium fire scenario 
has decreased and is expected to be less than previously analyzed in 
NUREG-1738 and previous studies.
    After the events of September 11, 2001, the NRC also addressed by 
order the issue of potential aircraft impacts to the SFP by requiring 
licensees to have in place mitigating strategies for large fires or 
explosions at nuclear power plants. The Nuclear Energy Institute (NEI) 
provided detailed guidance in NEI 06-12, Revision 2, ``B.5.b Phase 2 & 
3 Submittal Guideline,'' dated December 2006 (ADAMS Accession No. 
ML070090060). The NRC found this guidance acceptable for use as 
documented in NUREG-0800, ``Standard Review Plan for the 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,'' Revision 0, dated June 2015 
(ADAMS Accession No. ML13316B202). The NRC's issuance of the final rule 
titled, ``Power Reactor Security Requirements,'' on March 27, 2009 (74 
FR 13926), made the requirements of the order generically applicable. 
In that final rule, the NRC added Sec.  50.54(hh)(2) to require 
licensees to develop and implement guidance and strategies to, among 
other things, maintain or restore SFP cooling capability in the event 
of loss of large areas of the plant resulting from fires or explosions, 
which further decreases the probability of an SFP fire.
    Under Sec.  50.54(hh)(2), nuclear power reactor licensees are 
required to implement strategies such as those provided in NEI 06-12. 
The NEI guidance specifies that portable, power independent pumping 
capabilities must be able to provide at least 500 gallons per minute of 
bulk water makeup to the SFP and at least 200 gallons per minute of 
water spray to the SFP. Recognizing that the SFP is more susceptible to 
a release when the spent fuel is in a nondispersed configuration (i.e., 
fuel assemblies with more decay heat are not dispersed among fuel 
assemblies with less decay heat), the guidance also specifies that the 
portable equipment should be capable of being deployed within 2 hours 
for a nondispersed configuration.
    Further, other organizations, such as Sandia National Laboratories 
(SNL), have confirmed the effectiveness of the additional mitigation 
strategies to maintain spent fuel cooling in the event that the pool is 
damaged and its initial water inventory is reduced or lost entirely. 
The analyses conducted by SNL (collectively referred to as the ``Sandia 
studies'') are sensitive security-related information and are not 
available to the public. The Sandia studies considered spent fuel 
loading patterns and other aspects of a pressurized water reactor SFP 
and a boiling water reactor SFP, including the role that the 
circulation of air plays in the cooling of spent fuel when there is a 
partial or complete loss of water. The Sandia studies indicated that 
there is a significant amount of time between the initiating event 
(i.e., the event that causes the SFP water level to drop) and the point 
at which the spent fuel assemblies become partially or completely 
uncovered. In addition, the Sandia studies indicated that for those 
hypothetical conditions in which air cooling may not be effective in 
preventing a zirconium fire, there is a significant amount of time 
between the spent fuel becoming uncovered and the possible onset of 
such a zirconium fire, thereby providing a substantial opportunity for 
event mitigation. The Sandia studies, which account for relevant heat 
transfer and fluid flow mechanisms, also indicated that air cooling 
spent fuel could be sufficient to prevent SFP zirconium fires at a 
point much earlier following fuel offload from the reactor than 
previously considered in NUREG-1738.
    In NUREG-2161, ``Consequence Study of a Beyond-Design-Basis 
Earthquake Affecting the Spent Fuel Pool for a U.S. Mark I Boiling 
Water Reactor,'' issued September 2014 (ADAMS Accession No. 
ML14255A365), the NRC evaluated the potential benefits of strategies 
required in Sec.  50.54(hh)(2). The report explains that successful 
implementation of mitigation strategies significantly reduces the 
likelihood of a release from the SFP in the event of a loss of cooling 
water. Additionally, the NRC found that the placement of spent fuel in 
a dispersed configuration in the SFP would have a positive effect in 
promoting natural circulation, which enhances air coolability and 
thereby reduces the likelihood of a release from a completely drained 
SFP. The NRC issued Information Notice 2014-14, ``Potential Safety 
Enhancements to Spent Fuel Pool Storage,'' dated November 14, 2014 
(ADAMS Accession No. ML14218A493), to all nuclear power reactor and 
ISFSI licensees to inform them of the insights from NUREG-2161. This 
information notice describes the benefits of storing spent fuel in more 
favorable configurations, placing spent fuel in dispersed patterns 
immediately after core offload, and taking action to improve mitigation 
strategies.
    In 2013, the NRC documented a regulatory analysis in COMSECY-13-
0030, ``Staff Evaluation and Recommendation for Japan Lessons Learned 
Tier 3 Issue on Expedited Transfer of Spent Fuel'' (ADAMS Accession No. 
ML13329A918), which considered a broad history of the NRC's oversight 
of spent fuel storage and SFP operating experience (domestic and 
international) and relied on information compiled in NUREG-2161. In 
COMSECY-13-0030, the NRC staff concluded that SFPs are robust 
structures with large safety margins and recommended to the Commission 
that further regulatory actions to require the expedited transfer of 
spent fuel from SFPs to dry cask storage were not warranted. The 
Commission subsequently approved the staff's recommendation in SRM-
COMSECY-13-0030, dated May 23, 2014 (ADAMS Accession No. ML14143A360).
    In addition, in response to the Fukushima Dai-ichi accident, the 
NRC implemented additional regulatory actions to further enhance 
reactor and SFP safety. On March 12, 2012, the NRC issued two orders: 
Order EA-12-051, ``Order Modifying Licenses with Regard to Reliable 
Spent Fuel Pool Instrumentation'' (ADAMS Accession No. ML12054A679), 
and Order EA-12-049, ``Order Modifying Licenses with Regard to 
Requirements for Mitigation Strategies for Beyond-Design-Basis External 
Events'' (ADAMS Accession No. ML12054A735). Order EA-12-051 required 
licensees to install 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. 
Although the primary purpose of the order was to ensure that operators 
were not distracted by uncertainties related to SFP conditions during 
the accident

[[Page 12262]]

response, the improved monitoring capabilities would help in the 
diagnosis and response to potential losses of SFP integrity. Order EA-
12-049 required licensees to, among other actions, develop, implement, 
and maintain guidance and strategies to maintain or restore SFP cooling 
capabilities independent of normal alternating current power systems 
following a beyond-design-basis external event. Further, the NRC issued 
the Mitigation of Beyond-Design-Basis Events final rule on August 9, 
2019 (84 FR 39684), which made these two orders generically applicable 
and moved the requirements of Sec.  50.54(hh)(2) to paragraph (b)(2) of 
the new Sec.  50.155, ``Mitigation of beyond-design-basis events.'' 
These requirements ensure that a more reliable and robust mitigation 
capability is in place to address degrading conditions in SFPs 
resulting from certain significant, but unlikely, events.
    The additional mitigation strategies implemented after the 
terrorist attacks of September 11, 2001, such as the issuance of Sec.  
50.54(hh)(2) (now Sec.  50.155(b)(2)) and the NRC's review and approval 
of NEI 06-12, and the issuance of Orders EA-12-049 and EA-12-051, made 
generically applicable as Sec.  50.155(b)(1) and Sec.  50.155(e), 
following the Fukushima Dai-ichi accident enhance spent fuel 
coolability and the potential to recover SFP water level and cooling 
before the initiation of a potential SFP zirconium fire. The Sandia 
studies also confirmed the effectiveness of additional mitigation 
strategies to maintain spent fuel cooling in the event that the pool is 
drained. Based on this information and the implementation of additional 
strategies, the probability of an SFP zirconium fire initiation in a 
draindown event is expected to be less than that reported in NUREG-1738 
and previous studies and therefore well within the Commission's 
expressed safety goals, as described previously.

E. Changes in Nuclear Power Reactor Decommissioning at the NRC and 
Within the Nuclear Power Industry

    On June 4, 2001, the NRC staff submitted SECY-01-0100, ``Policy 
Issues Related to Safeguards, Insurance, and Emergency Preparedness 
Regulations at Decommissioning Nuclear Power Plants Storing Fuel in 
Spent Fuel Pools'' (ADAMS Accession No. ML011450420), to the 
Commission. Before the Commission responded to SECY-01-0100, the 
terrorist attacks of September 11, 2001, occurred. Given the security 
implications of those events and the results of the NUREG-1738 
zirconium fire risk study that showed the risk of an SFP fire to be low 
and well within the Commission's safety goals, the NRC later redirected 
its rulemaking priorities and resources to focus on programmatic 
regulatory changes related to safeguards and security. In a memorandum 
to the Commission titled, ``Status of Regulatory Exemptions for 
Decommissioning Plants,'' dated August 16, 2002 (ADAMS Accession No. 
ML030550706), the NRC staff justified this redirection in part by 
observing that no additional permanent nuclear power reactor shutdowns 
were anticipated in the foreseeable future and that no immediate need 
existed to proceed with the decommissioning regulatory improvement work 
that was planned. The NRC staff concluded that, if any additional 
nuclear power reactors permanently shut down after the rulemaking 
effort was suspended, establishment of the decommissioning regulatory 
framework would continue to be addressed for each facility through the 
license amendment and exemption processes.
    Between 1998 and 2013, no nuclear power reactors permanently ceased 
operation. Between 2013 and 2021, however, 12 nuclear power reactors 
permanently shut down, defueled, and entered decommissioning. Notably, 
in 2013, four nuclear power reactor units permanently shut down without 
significant advance notice or preplanning: Crystal River Unit 3 Nuclear 
Generating Plant (Duke Energy Florida); Kewaunee Power Station 
(Dominion Energy); and San Onofre Nuclear Generating Station (SONGS), 
Units 2 and 3 (Southern California Edison). In addition, on December 
29, 2014, Entergy Nuclear Operations, Inc. (Entergy) permanently ceased 
operations at the Vermont Yankee Nuclear Power Station (VY); on October 
24, 2016, the Omaha Public Power District permanently ceased operations 
at Fort Calhoun Station, Unit 1; on September 17, 2018, Exelon 
Generation Company, LLC (Exelon) permanently ceased operations at 
Oyster Creek Nuclear Generating Station; on May 31, 2019, Entergy 
permanently ceased operations at Pilgrim Nuclear Power Station; on 
September 20, 2019, Exelon permanently ceased operations at Three Mile 
Island, Unit 1; on April 30, 2020, and April 30, 2021, respectively, 
Entergy permanently ceased operations at Indian Point Nuclear 
Generating, Unit Nos. 2 and 3; and on August 10, 2020, NextEra Energy 
Duane Arnold, LLC (NextEra) permanently ceased operations of Duane 
Arnold Energy Center. Licensees have also announced plans for 
additional near-term permanent shutdowns, including Palisades Nuclear 
Plant (Entergy) and Diablo Canyon Power Plant, Units 1 and 2 (Pacific 
Gas & Electric Co.).
    Decommissioning reactor licensees and the NRC have expended 
substantial resources processing licensing actions for nuclear power 
reactors during their transition period to decommissioning status. 
Consistent with the nuclear power reactors that permanently shut down 
in the 1990s, the licensees that are currently transitioning to 
decommissioning have been requesting NRC review and approval of 
licensing actions, informed by the low risk of an offsite radiological 
release posed by a decommissioning reactor. Specifically, the licensees 
are seeking NRC approvals of exemptions from requirements and license 
amendments to reflect the reduced operations and radiological risks 
posed by a permanently shutdown and defueled nuclear power reactor.

F. Decommissioning Lessons Learned Report

    In October 2016, the NRC published the ``Power Reactor Transition 
from Operations to Decommissioning: Lessons Learned Report'' (ADAMS 
Accession No. ML16085A029). The report documents the lessons learned by 
the NRC and stakeholders associated with permanent nuclear power 
reactor shutdowns during the period from 2013 to 2016. In particular, 
the report focuses on the transition from reactor operations to 
decommissioning for Kewaunee, Crystal River Unit 3, SONGS Units 2 and 
3, and VY. The transition process includes the NRC's review and 
approval of certain requests for exemptions from the NRC's regulations 
and for license amendments to modify the operating reactors' licensing 
bases to reflect those of decommissioning reactors. After these actions 
are complete, the NRC then transfers the project management and 
oversight responsibility from its Office of Nuclear Reactor Regulation 
to its Office of Nuclear Material Safety and Safeguards (NMSS). Project 
management support is provided by NMSS for these decommissioning 
reactors until license termination. The report also provides a number 
of best practices identified from recent experience with reactor 
shutdowns and the transition to decommissioning.
    The report highlights some of the challenges experienced by the NRC 
during the decommissioning transition licensing reviews from 2013 to 
2016 and the NRC's actions to address those challenges. The report also 
discusses external stakeholders' interest in the NRC's review of the 
decommissioning transition licensing activities, especially

[[Page 12263]]

those associated with SONGS Units 2 and 3 and VY, as represented by 
requests for hearings, public meetings, and questions to the NRC staff.
    In addition to the lessons learned and best practices, the report 
provides detailed project management guidance, recommendations, and 
documentation of precedent related to the reviews and evaluations 
specific to the types of licensing actions that the NRC expects to be 
processed during the decommissioning transition period, including 
oversight activities and communications. The NRC considered many of the 
lessons learned and recommendations described in this report during the 
development of this proposed rule.

G. Initiation of This Proposed Rule

    In light of the number of licensees deciding to permanently shut 
down their nuclear power reactors, the Commission directed the NRC 
staff to proceed with an integrated rulemaking on nuclear power reactor 
decommissioning in an SRM dated December 30, 2014 (ADAMS Accession No. 
ML14364A111), associated with SECY-14-0118, ``Request by Duke Energy 
Florida, Inc., for Exemptions from Certain Emergency Planning 
Requirements,'' dated October 29, 2014 (ADAMS Accession No. 
ML14219A444). The Commission further stated that this rulemaking should 
address:
     Issues discussed in SECY-00-0145 such as the graded 
approach to EP;
     Lessons learned from the plants that have already gone 
through (or are currently going through) the decommissioning process;
     The advisability of requiring a licensee's PSDAR to be 
approved by the NRC;
     The appropriateness of maintaining the three existing 
options for decommissioning (DECON, SAFSTOR, and ENTOMB) \2\ and the 
timeframes associated with those options;
---------------------------------------------------------------------------

    \2\ Additional information about the existing options for 
decommissioning is available in NUREG/BR-0521, Rev. 1, 
``Decommissioning Nuclear Power Plants,'' dated June 2017 (ADAMS 
Accession No. ML17177A253).
---------------------------------------------------------------------------

     The appropriate role of State and local governments and 
non-governmental stakeholders in the decommissioning process; and
     Any other issues deemed relevant by the NRC staff.
    In SECY-15-0014, ``Anticipated Schedule and Estimated Resources for 
a Power Reactor Decommissioning Rulemaking,'' dated January 30, 2015 
(ADAMS Accession No. ML15082A089, redacted), the NRC staff committed to 
proceed with a rulemaking on nuclear power reactor decommissioning and 
provided an anticipated schedule and estimate of the resources required 
for the completion of a decommissioning rulemaking.

H. Advance Notice of Proposed Rulemaking

    To begin the nuclear power reactor decommissioning rulemaking 
process, the NRC published an advance notice of proposed rulemaking 
(ANPR) in the Federal Register on November 19, 2015 (80 FR 72358). In 
the ANPR, the NRC sought public comment on specific questions and 
issues with respect to possible revisions of the NRC's decommissioning 
requirements. The NRC staff considered the comments received on the 
ANPR in its formulation of a draft regulatory basis for further 
regulatory action. Section 5 of the draft regulatory basis (ADAMS 
Accession No. ML17047A413) summarizes the public comments received on 
the ANPR.

I. Regulatory Basis

    The NRC published the draft regulatory basis in the Federal 
Register on March 15, 2017 (82 FR 13778). In the draft regulatory 
basis, the NRC staff presented draft recommendations for amendments to 
the NRC's regulations and guidance development to provide regulatory 
improvements for nuclear power reactors transitioning to 
decommissioning. The NRC requested public comment on these 
recommendations and asked specific questions regarding other possible 
revisions of the NRC's requirements. In addition, the NRC published a 
preliminary draft regulatory analysis on May 9, 2017 (82 FR 21481). The 
NRC held a public meeting from May 8-10, 2017, to discuss the draft 
regulatory basis and the associated preliminary draft regulatory 
analysis and issued a summary of the meeting on November 15, 2017 
(ADAMS Accession No. ML17157B211).
    The NRC received 40 public comment submissions on the draft 
regulatory basis and preliminary draft regulatory analysis, which it 
considered in its formulation of the revised regulatory basis. The NRC 
published a Federal Register notice announcing the public availability 
of the regulatory basis on November 27, 2017 (82 FR 55954).\3\
---------------------------------------------------------------------------

    \3\ At the time of publication of the regulatory basis, the 
rulemaking title was ``Regulatory Improvements for Power Reactors 
Transitioning to Decommissioning.'' During the development of the 
proposed rule, the scope of the rulemaking expanded to include all 
production and utilization facilities licensed under 10 CFR parts 50 
and 52. In order to reflect this change, the NRC has changed the 
title of the rulemaking to ``Regulatory Improvements for Production 
and Utilization Facilities Transitioning to Decommissioning.''
---------------------------------------------------------------------------

III. Discussion

A. Current Regulatory Process

    Decommissioning requirements for production and utilization 
facilities are codified in Sec. Sec.  50.82 and 52.110. Associated 
decommissioning funding requirements are codified in Sec. Sec.  50.75, 
50.82, and 52.110. A nuclear power reactor licensee formally begins the 
decommissioning process when it certifies its permanent cessation of 
operations and permanent removal of fuel from the reactor vessel under 
Sec. Sec.  50.82(a)(1) or 52.110(a). Once the NRC dockets these 
certifications, under Sec.  50.82(a)(2) or Sec.  52.110(b), the 10 CFR 
part 50 or 10 CFR part 52 license no longer authorizes operation of the 
reactor or emplacement or retention of fuel in the reactor vessel. 
Despite this withdrawal of authority to operate the reactor, a 
decommissioning nuclear power plant continues to retain a license under 
10 CFR part 50 or 10 CFR part 52. For this reason, the decommissioning 
plant continues to be subject to many of the requirements that apply to 
plants authorized to operate under 10 CFR part 50 or 10 CFR part 52.
    Regulations that are designed to protect the public against reactor 
operation related design-basis events that include conditions of normal 
operation, anticipated operational occurrences, and design-basis 
accidents (DBAs) are no longer applicable at a permanently shutdown and 
defueled reactor. For example, certain accident sequences for a nuclear 
power reactor that is operating, such as loss of coolant accidents and 
anticipated transients without scram, are no longer relevant to a 
permanently shutdown and defueled reactor. In addition, some 
regulations may not be relevant to certain SSCs because the SSCs are no 
longer required to be maintained, to operate, or to mitigate certain 
accidents, events, or transients, regardless of whether they are 
safety-related or security-related SSCs. Other regulations, although 
based on power operation of the plant, may continue to be applicable to 
the permanently defueled facility for a limited time, such as the 
standards for offsite radiological emergency preparedness (REP) plans 
under 10 CFR part 50 or 10 CFR part 52. Typically, the scope of NRC 
requirements can be reduced to those regulations and requirements that 
primarily pertain to the safe storage of the spent fuel in the SFP, as 
described in the site's final safety analysis report (FSAR).

[[Page 12264]]

    Upon permanent cessation of reactor operations and removal of fuel 
from the reactor vessel, the licensee is likely to submit a significant 
number of licensing actions (license amendment and exemption requests) 
to the NRC for review and approval based primarily on the reduced 
radiological risk to public health and safety. As discussed previously 
in this document, the types of potential accidents at decommissioning 
reactors are fewer, and the risks of radiological releases are reduced, 
when compared to those at an operating reactor. Therefore, to reflect 
this reduction in risk, licensees of decommissioning reactors typically 
request certain amendments to their licenses and certain exemptions 
from the NRC's regulations. These licensing actions, which are 
processed by the NRC during licensees' transition from operating to 
decommissioning status, establish the regulatory framework for reactors 
that have permanently shut down and defueled.
    For non-power reactor facilities, Sec.  50.82(b) requires that the 
licensee apply for license termination within two years following 
permanent cessation of operation. Each application for termination of a 
license must be accompanied, or preceded, by a proposed decommissioning 
plan (DP). In addition to the DP required by Sec.  50.82, Sec.  
50.75(f)(4) requires each licensee to submit a preliminary DP. The 
preliminary DP must be submitted at or about 2 years before the 
projected end of operation. In addition to the DP, Sec.  51.53(d) 
requires each applicant for a license amendment approving a DP to 
submit a supplement to its environmental report (ER).
    The decommissioning process for non-power reactor licensees begins 
with the removal of fuel as soon as possible after reactor operations 
permanently cease and the shipment of the fuel offsite in accordance 
with the U.S. Department of Energy, NRC, and U.S. Department of 
Transportation regulations. Under some circumstances, the licensee can 
apply for a possession-only license amendment under Sec.  50.90, 
``Application for amendment of license, construction permit, or early 
site permit,'' after operations have ended and before decommissioning 
starts. The possession-only license amendment limits the licensee's 
authority to possessing specific nuclear material but does not 
authorize its use or the operation of a nuclear facility. If granted, a 
possession-only license amendment provides regulatory relief from the 
license and technical specification (TS) requirements for a non-power 
reactor in decommissioning. Further, the possession-only amendment 
permits the licensee to retain the facility, related radioactive 
byproduct material, and, in some cases, special nuclear material, 
pending approval of the DP.
    In addition to requesting license amendments and exemptions, 
nuclear power reactor licensees can make certain changes without prior 
NRC approval if the changes are permitted by an NRC regulation. 
Licensees primarily use an evaluation process with criteria in Sec.  
50.59 to make changes in a facility (or procedures) as described in the 
FSAR (as updated), including changes to the PSDAR, without prior NRC 
approval. The licensee's updated FSAR should reflect changes to the 
decommissioning design-basis analyses, SSCs, and the licensee's 
organizations, processes, and procedures. Licensees can also make 
changes without prior NRC approval as described in Sec.  50.54(p) and 
Sec.  50.54(q). In the case of non-power reactor facilities, the DP, 
which is put into effect with an order, provides for accommodation of 
any necessary changes in the DP and procedures through a process 
similar to the one in Sec.  50.59.
    The timing and implementation for some decommissioning licensing 
actions rely on an approach that recognizes the reduction in 
radiological risk after permanent cessation of power operation and 
removal of fuel from the reactor vessel. These risk reductions can be 
tied to several factors, including, but not limited to: (1) Reduction 
of the radiological source term after cessation of power operation and 
removal of fuel from the reactor vessel, (2) elapsed time after 
permanent shutdown, and (3) type of long-term onsite fuel storage. The 
two areas where these additional risk reductions are considered in the 
early decommissioning process are EP and facility insurance and 
indemnity. The NRC will not approve exemptions from EP and insurance 
coverage requirements until analyses confirm that there are no DBAs 
that would require protective actions for the public resulting from a 
release of radioactive material with a dose exceeding the EPA's PAGs at 
the exclusion area boundary. The analyses also must assess a postulated 
beyond-design-basis zirconium fire scenario.

B. Objectives of This Proposed Rule

    This proposed rule would amend the current requirements for 
production and utilization facility licensees during decommissioning. 
Experience has demonstrated that licensees for decommissioning nuclear 
power reactors seek several exemptions and license amendments per site 
to establish a long-term licensing basis for decommissioning. Non-power 
production or utilization facility licensees typically seek license 
amendments in decommissioning to change their 10 CFR part 50 operating 
licenses to possession-only licenses. By issuing this rule, the NRC 
would establish regulations that would maintain safety and security at 
sites transitioning to decommissioning without the need to grant 
specific exemptions or license amendments in certain regulatory areas. 
Specifically, the decommissioning rulemaking would: (1) Propose a 
regulatory regime that continues to provide reasonable assurance of 
adequate protection of public health and safety and the common defense 
and security at decommissioning sites; (2) ensure that the requirements 
for decommissioning are clear and appropriate; (3) adopt regulations to 
address generic issues applicable to all decommissioning nuclear power 
reactors that have historically been addressed through similarly worded 
exemptions or license amendments; and (4) identify, define, and resolve 
additional areas of concern related to the regulation of 
decommissioning licensees under 10 CFR parts 50 and 52.
    Given that the current regulatory framework regarding 
decommissioning is adequate to protect public health and safety and the 
common defense and security, many of the new requirements proposed by 
this rulemaking are alternatives to the current requirements.

C. Applicability

    This proposed rule would apply to the following categories of 
license holders:

 Nuclear power reactors currently licensed under 10 CFR part 50
 Future nuclear power reactors licensed under 10 CFR part 50
 Nuclear power reactors currently licensed under 10 CFR part 52
 Future nuclear power reactors licensed under 10 CFR part 52
 Non-power production or utilization facilities and fuel 
reprocessing plants currently licensed under 10 CFR part 50
     Future non-power production or utilization facilities and 
fuel reprocessing plants licensed under 10 CFR part 50

D. Applicability to NRC Licensees During Operations

    The proposed rule includes changes in three areas that would apply 
to NRC licensees during operations: (1) The process to change a 
licensee's security plan, (2) the timing of decommissioning

[[Page 12265]]

funding assurance reporting requirements, and (3) identification of 10 
CFR 26.3, ``Scope,'' as a regulation with substantive requirements that 
could result in criminal penalties if violated.
    The NRC's regulations in Sec.  50.54(p) establish processes that 
allow licensees to make changes to their security plans. The NRC is 
proposing that all nuclear power reactor licensees making a change 
under Sec.  50.54(p)(2) submit in their report of the change a summary 
of any analysis that was completed to make the determination that the 
change does not decrease the safeguards effectiveness of the security 
plan. Additionally, the NRC is proposing to revise Sec.  50.54(p) to 
include definitions of the terms ``change'' and ``decrease in 
safeguards effectiveness.'' The application of these definitions is 
limited to use with the revised Sec.  50.54(p) and will apply to all 
holders of 10 CFR part 50 operating licenses and 10 CFR part 52 
combined licenses.
    The proposed rule would change the timing of the decommissioning 
funding assurance reporting requirements in Sec.  50.75(f)(1) to 
coordinate them with the ISFSI decommissioning reporting requirements 
in Sec.  72.30, ``Financial assurance and recordkeeping for 
decommissioning.'' This change would convert the biennial 
decommissioning funding status report required for 10 CFR part 50 and 
10 CFR part 52 nuclear power reactor licensees to a triennial 
decommissioning funding status report as currently required for 10 CFR 
part 72 ISFSI licensees.
    Current Sec.  26.3 includes a substantive requirement and 
violations of this regulation should be subject to criminal penalties. 
Therefore, this proposed rule would remove Sec.  26.3 from the list of 
provisions that are not subject to criminal penalties if violated in 
Sec.  26.825(b).

E. Applicability to ISFSI-Only and Standalone ISFSI/Decommissioned 
Reactor Sites

    During the public comment period for the draft regulatory basis, 
the NRC received many comments on the applicability of the 
decommissioning rulemaking to ``standalone ISFSI'' \4\ sites where the 
associated reactor has already been decommissioned in comparison with 
``ISFSI-only'' sites. As part of this rulemaking effort, the NRC 
recommends standardizing the terms ``ISFSI-only'' and ``standalone 
ISFSI/Decommissioned Reactor'' as follows:
---------------------------------------------------------------------------

    \4\ Given that the public comments referred to ``standalone 
ISFSIs,'' this proposed rule uses that same terminology. However, in 
accordance with Inspection Manual Chapter 2690, ``Inspection Program 
for Dry Storage of Spent Reactor Fuel at Independent Spent Fuel 
Storage Installations and for 10 CFR part 71 Transportation 
Packagings,'' dated March 9, 2012, the NRC uses the term ``away-
from-reactor (AFR) ISFSI'' to refer to ``any general licensed ISFSI 
where decommissioning and final survey activities related to reactor 
operations are completed and the only remaining operation conducted 
under the 10 CFR part 50 license is the operation of the general 
licensed ISFSI.''
---------------------------------------------------------------------------

     ``ISFSI-only'' sites contain nuclear power reactor 
facilities that are still involved in decommissioning activities, but 
the spent fuel has been completely transferred from the SFPs to dry 
storage in an onsite ISFSI. For these facilities, the remaining 
decommissioning activities are primarily related to remediation of any 
remaining residual radioactivity at the site to meet the license 
termination and decommissioning criteria in 10 CFR part 20, subpart E. 
The ``ISFSI-only'' term refers to the location of the spent fuel; the 
term reflects that no spent fuel is stored in the SFP, and all of the 
spent fuel is in dry storage in an onsite ISFSI.
     ``Standalone ISFSI/Decommissioned Reactor'' sites are 
those former nuclear power reactor facilities where the license 
termination and decommissioning criteria in 10 CFR part 20, subpart E, 
have already been met, with the exception of the ISFSI area. The 
licensee's 10 CFR part 50 license for the site has been reduced to an 
area that only encompasses the ISFSI facility (unless the facility 
ISFSI is licensed under a 10 CFR part 72 specific license, in which 
case the 10 CFR part 50 license is wholly terminated). The remaining 
activities at these facilities that are regulated by the NRC are spent 
fuel storage and the eventual decommissioning of the ISFSI itself, once 
the spent fuel has been permanently removed from the site. A 10 CFR 
part 72 specific license ISFSI is decommissioned in accordance with 10 
CFR 72.54, ``Expiration and termination of licenses and decommissioning 
of sites and separate buildings or outdoor areas.''
    Accordingly, the proposed requirements would not apply to 
standalone ISFSI/Decommissioned Reactor sites because those licensees 
have already decommissioned their 10 CFR part 50 facilities and met the 
decommissioning and license termination criteria in 10 CFR part 20, 
subpart E, with the exception of the area encompassed by the remaining 
ISFSI. The proposed requirements are consistent with the licensing 
actions that the NRC has already approved for these licensees. In 
addition, the proposed requirements of this rulemaking provide an 
alternative to the existing decommissioning regulations and would not 
impose new requirements on ISFSI-only licensees.

F. Graded Approach

    As the NRC reviewed the exemption and license amendment requests 
related to the recent nuclear power reactor decommissionings and noted 
the growing list of future planned permanent shutdowns, as discussed in 
the ``Background'' section of this document, the NRC realized that the 
existing regulatory framework could and should be revised to provide 
for a more efficient decommissioning process. As early as the late 
1990's, the NRC contemplated an integrated rulemaking to provide an 
appropriate graded approach to the decommissioning process. A graded 
approach is a process by which the safety requirements and criteria 
adjust during the decommissioning process commensurate with several 
factors. These factors include the magnitude of any credible hazard 
involved, the particular characteristics of a facility, and the balance 
between radiological hazards and non-radiological hazards (e.g., fire, 
flood, chemical spill) as applicable to specific points in time within 
the decommissioning process. This approach would be a risk-informed 
process.
    Currently, no explicit regulatory provisions distinguish 
requirements in several technical areas for a nuclear power reactor 
that has permanently ceased operations from those for an operating 
nuclear power reactor. To address this, the NRC is proposing to amend 
its regulations to provide an efficient regulatory framework for the 
transition to decommissioning. Under this proposed rule, the NRC would 
adopt an optional graded approach for several technical areas that 
provides a set of requirements commensurate with the reductions in 
radiological risk at each of the following four levels of 
decommissioning: (1) Permanent cessation of operations and permanent 
removal of all fuel from the reactor vessel, (2) sufficient decay of 
fuel in the SFP such that it would not reach ignition temperature for 
the zirconium alloy cladding of the fuel within 10 hours under 
adiabatic heatup conditions (i.e., a complete loss of SFP water 
inventory with no heat loss), (3) transfer of all fuel to dry storage, 
and (4) removal of all fuel from the site. Four technical areas of this 
proposed rule (Emergency Preparedness, Physical Security, Cyber 
Security, and Offsite and Onsite Insurance) use all or some of this 
graded approach.

[[Page 12266]]

G. Technical Basis for Graded Approach

    The NRC has approved exemptions from the emergency planning 
regulations in Sec.  50.47, ``Emergency plans,'' and appendix E, 
``Emergency Planning and Preparedness for Production and Utilization 
Facilities,'' to 10 CFR part 50 at several permanently shutdown and 
defueled nuclear power reactor sites. Licensees that have been granted 
EP exemptions must maintain an onsite emergency plan addressing the 
classification of an emergency, notification of emergencies to licensee 
personnel and offsite authorities, and coordination with designated 
offsite government officials following an event declaration so that, if 
needed, offsite authorities may initiate appropriate response actions. 
At the appropriate points in decommissioning, the EP exemptions may 
also relieve the licensee from certain requirements of Sec.  50.47 and 
appendix E to 10 CFR part 50 as they pertain to offsite radiological 
EP, including the requirement to maintain the 10-mile plume exposure 
pathway and the 50-mile ingestion pathway emergency planning zones 
(EPZs). The NRC granted these exemptions based, in part, on its 
determination that there are no applicable design-basis accidents at a 
decommissioning licensee's facility that could result in an offsite 
radiological release exceeding the limits established by the EPA's 
early-phase PAGs at the exclusion area boundary.
    The NRC also relied on analyses from NUREG-1738 that showed that 
emergency planning would be of marginal benefit in reducing the risk of 
a beyond-design-basis zirconium fire in the SFP if the accident evolved 
slowly enough to allow mitigative measures and, if necessary, to allow 
offsite protective actions to be implemented without preplanning. This 
conclusion was based, in part, on the assumption that it would take at 
least 10 hours for spent fuel to heat up to the temperature at which 
the onset of fission product release is expected during an SFP rapid 
draindown event. This 10-hour period would provide a substantial amount 
of time for the licensee to take onsite mitigation measures and, if 
necessary, for offsite authorities to take appropriate response actions 
to protect the public. To support the approval of exemptions from 
portions of the EP regulations, licensees had to demonstrate through 
site-specific analyses that in a draindown event at their SFP the fuel 
would not reach the zirconium fuel cladding ignition temperature for at 
least 10 hours under adiabatic heatup conditions.
    A 10-hour timeframe has been justified in the past for similar 
purposes. In the Low Power Rule (47 FR 30232; July 13, 1982), the NRC 
amended its regulations to clarify that no NRC or Federal Emergency 
Management Agency (FEMA) review, findings, and determinations 
concerning the state or adequacy of offsite emergency preparedness were 
necessary for issuance of operating licenses authorizing fuel loading 
and low power operation (i.e., up to 5 percent of rated power). The NRC 
determined that several factors contributed to a substantial reduction 
in risk and potential accident consequences for low power testing as 
compared to the higher risks in continuous full power operation. These 
factors included consideration of the reduced source term, the 
capability of mitigation systems, and the time scale for taking actions 
to identify and mitigate an accident. Even for a postulated low-
likelihood, design-basis accident during low power operations, which 
eventually results in release of fission products into the containment, 
at least 10 hours would be available to allow adequate precautionary 
actions to be taken to protect the public near the site.
    To support a graded approach during decommissioning, the NRC 
further examined the certainty and margin provided by a 10-hour 
timeframe for the fuel to heat up in relation to the time for taking 
mitigating actions and appropriate EP response actions. The NRC 
conducted an applied research study (``Transmittal of Reports to Inform 
Decommissioning Plant Rulemaking for User Need Request NSIR-2015-001,'' 
dated May 31, 2016 (ADAMS Accession No. ML16110A416)) with three tasks: 
(1) To perform a task analysis that includes a timeline of responder 
actions at representative SFP configurations to mitigate a draindown 
event and determine its likelihood of success, (2) to analyze 
representative spent fuel to determine the decay time necessary for the 
fuel to remain below zirconium clad ignition temperature for at least 
10 hours assuming adiabatic heatup conditions, and (3) to analyze the 
offsite dose rate from the radionuclides released during a hypothetical 
spent fuel zirconium clad ignition accident. As demonstrated in these 
analyses, for many initiating events at decommissioning reactors, 
mitigative actions would have a high likelihood of preventing 
uncontrolled spent fuel heatup. In cases where an uncontrolled heatup 
is not prevented, the heatup would be relatively slow, providing 
significant time before a radiological release. In the case of a 
radiological release, dose rates would be low enough such that 
significant additional time is available to take offsite actions to 
protect the public.
    The NRC's analysis of spent fuel decay times provided information 
on the time required for fuel to heat up to 900 degrees Celsius (C) 
(i.e., the temperature at which the onset of fission product release is 
expected for a zirconium fuel cladding fire) as a function of decay 
time for both pressurized water reactor (PWR) and boiling water reactor 
(BWR) assemblies. The analysis also included sensitivities to the mass 
of the racks and the fuel configuration in the SFP. The NRC notes that 
the decay periods provided for PWRs and BWRs are based on studies that 
consider current operating parameters in the nuclear power industry 
(e.g., fuel types, enrichment, and fuel burnup levels). Based on this 
analysis, the NRC concluded that after a decay period of 10 months for 
BWRs or 16 months for PWRs, beginning when the reactor permanently 
shuts down, the spent fuel cannot reasonably heat up to clad ignition 
temperature within 10 hours after a draindown event. These decay 
periods are based on an adiabatic heatup to 900 degrees C assuming the 
decay heat value for the hottest assembly (as opposed to an average 
assembly), a burnup of 60 gigawatt days per metric ton of heavy metal 
(GWd/MTHM), and accounting for the mass of the racks. The analysis 
assumption of 60 GWd/MTHM conservatively bounds current industry 
burnups and enrichments for zirconium clad fuel and provides margin for 
potentially higher burnup rates, up to 72 GWd/MTHM. This analysis does 
not account for the additional time margin that would be provided if 
additional cooling mechanisms were available or would be provided by a 
more favorable SFP configuration such that the heat load is more 
uniformly distributed.
    The NRC's analysis of dose rates shows that even in the event of a 
beyond-design-basis accident leading to a rapid draindown of the SFP 
and subsequent zirconium fire, there would be additional time margin on 
the order of several hours beyond the 10-hour heatup time during which 
protective actions could be taken to protect the public before the dose 
levels associated with EPA PAGs would be exceeded offsite.
    In addition to the analyses performed by the NRC to support this 
rulemaking, as discussed in the ``Background'' section of this 
document, the conclusions of NUREG-2161 and NUREG-1738 support the 
technical

[[Page 12267]]

basis for a graded approach during decommissioning as they provide 
insight into the risk of an offsite release and the effectiveness of 
mitigation measures.
     In NUREG-2161, the NRC considered various spent fuel 
cooling mechanisms and additional heat from oxidation. Because previous 
studies found that earthquakes present the dominant risk for SFPs, this 
analysis considered a severe earthquake with ground motion stronger 
than the maximum earthquake reasonably expected to occur for the 
reference plant, which would challenge the SFP integrity. The study 
considered two spent fuel configurations: High-density and low-density 
loading. The study also analyzed two cases for each scenario: One that 
credited the mitigation measures of Sec.  50.54(hh)(2) (i.e., the 
strategies to maintain or restore SFP cooling in the event of a loss of 
large areas of the plant as a result of fire or explosion), and one in 
which those measures were not used or were unsuccessful. The study 
results showed that successful mitigation reduces the likelihood of a 
release and that the likelihood of a release was equally low for both 
high- and low-density loading in the SFP. The study found that a 
release is not expected to occur at the nuclear power reactor site 
studied for at least 72 hours following a beyond-design-basis seismic 
event that occurs more than 60 days after shutdown.
     In NUREG-1738, the NRC presented the results of its 
evaluation of the potential accident risk for an SFP at a 
decommissioning nuclear power reactor in the United States. NUREG-1738 
identified a zirconium cladding fire resulting from a substantial loss 
of water from the SFP as the only postulated scenario at a 
decommissioning nuclear power reactor that could result in a 
significant radiological release. While highly unlikely, the 
consequences of such an accident could lead to an offsite dose in 
excess of the EPA PAGs. Based on spent fuel storage design 
characteristics and operating practices considered in the analysis, the 
scenarios that lead to this condition have very low probabilities of 
occurrence. Accordingly, these scenarios are considered to be beyond 
the facility's design basis. Furthermore, as the spent fuel ages, the 
generation of decay heat decreases. After a certain amount of time, the 
overall risk of a zirconium fire becomes extremely low because of: (1) 
The large amount of time available for preventive and mitigating 
actions and (2) the increased probability that the decay heat will be 
low enough that the fuel will be air-coolable in the post-event 
configuration.

H. Levels of Decommissioning

    Using the aforementioned analyses as its technical basis, the NRC 
is proposing to amend its regulations to provide an efficient 
regulatory framework during decommissioning using a graded approach in 
several technical areas. This graded approach is commensurate with the 
reductions in radiological risk at four levels of decommissioning: 
(Level 1) permanent cessation of operations and permanent removal of 
all fuel from the reactor vessel, (Level 2) sufficient decay of fuel in 
the SFP such that it would not reach ignition temperature within 10 
hours under adiabatic heatup conditions, (Level 3) transfer of all 
spent fuel to dry storage, and (Level 4) removal of all fuel from the 
site. These levels are discussed further as follows:
1. Level 1
    Licensees in Level 1 include nuclear power reactor licensees that 
have docketed certifications of permanent cessation of operations and 
permanent removal of fuel from the reactor vessel pursuant to Sec.  
50.82, ``Termination of license,'' or Sec.  52.110, ``Termination of 
license.'' In this level, a decommissioning nuclear power reactor is 
defueled and permanently shut down, but the spent fuel in the SFP is 
still susceptible to a zirconium fuel cladding fire within 10 hours 
under adiabatic heatup conditions.
2. Level 2
    In Level 2, the reactor is defueled and permanently shut down, and 
spent fuel in the SFP has decayed and cooled sufficiently such that it 
cannot heat up to the zirconium cladding ignition temperature within 10 
hours under adiabatic conditions. The NRC has determined that this 
condition is reached after spent fuel has decayed for a minimum of 
either 10 months for a BWR or 16 months for a PWR or an alternative 
site-specific timeframe to be approved by the NRC. The decay period 
could begin when the fuel is still in the reactor vessel but the 
reactor has permanently ceased operations. In order to verify that a 
licensee has met the condition, the NRC would rely upon the date of 
permanent cessation of operation provided by a licensee under Sec.  
50.4(b)(8) or Sec.  52.3(b)(8), updated as necessary under Sec.  50.9 
or Sec.  52.6, both entitled ``Completeness and accuracy of 
information.'' Because the identified date of permanent cessation of 
operations would determine transition from Level 1 to Level 2, the NRC 
would consider a change in the planned date initially certified to the 
NRC for permanent cessation of operations to the actual date as 
information ``having a significant implication for public health and 
safety or common defense and security'' under Sec.  50.9 or Sec.  52.6. 
At this point, the site may also possess a radioactive inventory of 
liquid radiological waste, radioactive reactor components, and 
contaminated structural materials. The radioactive inventory may 
change, depending on the licensee's proposed shutdown activities and 
schedule.
3. Level 3
    In Level 3, all spent nuclear fuel (SNF) is in dry cask storage 
pursuant to the terms and conditions of a license granted under 10 CFR 
part 72, including the general license issued in Sec.  72.210. However, 
the licensee may still hold a 10 CFR part 50 or 10 CFR part 52 license, 
and the site may contain a radioactive inventory of liquid radiological 
waste, radioactive reactor components, and contaminated structural 
materials.
4. Level 4
    At this point in the facility's life cycle, all SNF has been 
removed from the site. The site may possess a radioactive inventory of 
liquid radiological waste, radioactive reactor components, and 
contaminated structural materials. The radioactive inventory during 
this configuration may change, depending on the licensee's proposed 
decommissioning activities and schedule.
    As a facility transitions from being operational to having all SNF 
in dry cask storage, the proposed rule's regulatory requirements are 
graded to provide for reasonable assurance of the health and safety of 
the public commensurate with the risk profile of the facility. Table 2 
summarizes the proposed changes to decommissioning requirements in the 
technical areas that use aspects of this graded approach.

[[Page 12268]]

[GRAPHIC] [TIFF OMITTED] TP03MR22.000

IV. Scope of the Proposal

    This rulemaking proposes revising requirements in 16 technical 
areas.

A. Emergency Preparedness

1. Introduction
    In 1978, an NRC and EPA task force established the planning basis 
for EP for nuclear power reactor accidents in NUREG-0396, ``Planning 
Basis for the Development of State and Local Government Radiological 
Emergency Response Plans in Support of Light Water Nuclear Power 
Plants'' (ADAMS Accession No. ML051390356). This guidance provides a 
basis for offsite radiological EP efforts for large light-water nuclear 
power reactor facilities. In NUREG-0396, the task force determined that 
no single accident sequence should be identified as a planning basis 
and chose to provide recommendations in terms of the consequences and 
characteristics of accidents that would be important in determining the 
extent of the planning effort. The task force concluded that the EP 
planning basis requires consideration of a spectrum of accidents, 
informed by probability considerations. The scope of the planning 
effort was based on three key planning elements: (1) The distance to 
which planning for the initiation of predetermined protective actions 
is warranted, (2) the time-dependent characteristics of potential 
releases and exposures, and (3) the kinds of radioactive materials that 
can potentially be released to the environment. The risk-informed 
planning basis for EP, established in NUREG-0396, was endorsed for use 
in the NRC's policy statement, ``Planning Basis for Emergency Responses 
to Nuclear Power Reactor Accidents,'' dated October 23, 1979 (44 FR 
61123). This planning basis results in emergency plans that are 
effective, regardless of the accident probability.
    The rationale in NUREG-0396 and the planning basis elements can 
also be applied to light water nuclear power reactors in 
decommissioning to scope the planning effort. The NRC applied the 
NUREG-0396 methodology (i.e., consideration of a spectrum of accident 
consequences and the three key planning elements) to establish a graded 
approach to EP for decommissioning nuclear power reactors that 
maintains public health and safety. As discussed in NUREG-0396, no 
single specific accident sequence should be isolated as the one for 
which to plan because each accident could have different consequences, 
both in nature and degree. Further, the range of possible selections 
for a planning basis is very large, starting with a zero point of 
requiring no planning at all, because significant offsite radiological 
accident consequences are unlikely to occur to planning for the worst 
possible accident regardless of its extremely low likelihood. 
Fundamentally, the spectrum of possible accidents is significantly 
smaller and the risk of an offsite radiological release is 
significantly lower at a nuclear power facility that has permanently 
shut down

[[Page 12269]]

and removed fuel from the reactor vessel than at an operating nuclear 
power reactor. All such accidents would be associated with hazards 
based on the storage of spent fuel, either in the SFP or in dry cask 
storage, until its permanent removal from the site. In NUREG-1738, the 
NRC found that the event sequences important to risk at decommissioning 
sites are limited to large earthquakes and cask drop events. For EP 
assessments, this is an important difference relative to operating 
nuclear power reactors, where typically a large number of different 
sequences make significant contributions to risk.
    Although the NRC considered the full spectrum of accidents 
applicable to a decommissioning nuclear power reactor, the number of 
events that can have significant offsite consequences is greatly 
reduced, and the events are dominated by the zirconium fire scenario--a 
postulated, but highly unlikely, beyond-design-basis accident that 
involves a major loss of water inventory from the SFP, resulting in a 
significant heatup of the spent fuel and culminating in substantial 
zirconium cladding oxidation, fire, and fuel damage. The guidance in 
NUREG-0396 states that while it is not appropriate to develop specific 
plans for the most severe and most improbable events, the 
characteristics of these events should be considered ``in judging 
whether emergency plans based primarily on smaller accidents can be 
expanded to cope with larger events.'' This approach provides 
reasonable assurance that capabilities exist to minimize the impacts of 
even the most severe events. Consistent with this guidance, the NRC 
considered the potential impacts of a zirconium fire, even with the 
assurance that mitigating strategies are in place to prevent an offsite 
release from occurring for this highly unlikely beyond-design-basis 
event.
    In addition to the three analyses performed by the NRC to support 
this rulemaking (ADAMS Accession No. ML16110A416), the NRC has 
previously conducted SFP studies, including NUREG-2161 and NUREG-1738, 
the conclusions of which support the technical basis for a graded 
approach to EP. Overall, these analyses: (1) Demonstrate that a period 
of 10 hours provides sufficient time to implement mitigation measures 
for design-basis events at decommissioning sites, (2) provide a 
conservative basis for a spent fuel decay time beyond which the fuel in 
the SFP can reasonably be expected to take longer than 10 hours to heat 
up to ignition temperature, and (3) provide additional understanding of 
the amount of time available for taking action in response to beyond-
design-basis events, including the margin of time that offsite agencies 
have to decide upon and initiate actions to protect public health and 
safety. The NRC applied these analyses and the considerations from 
previous studies of SFP risk to the planning basis elements from NUREG-
0396 to develop the proposed regulations for EP at various levels 
during decommissioning.
2. Graded Approach for Emergency Preparedness
    A graded approach to EP has a longstanding regulatory history. The 
16 planning standards for operating reactors, outlined in Sec.  
50.47(b), and the associated evaluation criteria in NUREG-0654/FEMA-
REP-1, Revision 1, ``Criteria for Preparation and Evaluation of 
Radiological Emergency Response Plans and Preparedness in Support of 
Nuclear Power Plants,'' issued November 1980 (ADAMS Accession No. 
ML040420012) or Revision 2 issued December 2019 (ADAMS Accession No. 
ML19347D139), are one part of a continuum of planning standards for 
radiological EP. The regulations in Sec.  50.47(c)(2) for case-by-case 
EPZ size determinations; the EP regulations for research and test 
reactors and other non-power production or utilization facilities, fuel 
cycle facilities, and ISFSIs; and the EP considerations for small 
modular reactors and other new technologies (see the Proposed Rule for 
``Emergency Preparedness for Small Modular Reactors and Other New 
Technologies'' (85 FR 28436 and 85 FR 32308)), are also part of a 
graded approach to EP that is commensurate with the relative 
radiological risk, source term, and potential hazards, among other 
considerations.
    Consistent with the concept of a graded approach, the NRC is 
proposing four levels of emergency planning standards that coincide 
with the same milestones as the graded approach:

 Post-Shutdown Emergency Plan (PSEP) (Level 1)
     Permanently Defueled Emergency Plan (PDEP) (Level 2)
 ISFSI-Only Emergency Plan (IOEP) (Level 3)
 No emergency planning (Level 4)

    In developing this proposed rule, the NRC considered the 
appropriateness of the EP requirements in 10 CFR part 50 and 10 CFR 
part 72 for decommissioning sites, including those requirements that 
have historically been addressed in approved exemptions and those that 
have not. The proposed planning standards within the levels are based 
on the current set of operating reactor EP standards informed by the 
analyses and considerations supporting a graded approach to EP as 
previously described, as well as public comments on the ANPR and on the 
draft regulatory basis for this rulemaking. The NRC also considered the 
criteria of safety, implementation costs, efficiency, transparency, 
flexibility, and responsiveness. The following discussion describes the 
proposed graded approach to EP.
Post-Shutdown Emergency Plan
    For a decommissioning site, once all the fuel is in the SFP, the 
spectrum of accidents that can have significant offsite consequences is 
greatly reduced and is dominated by the highly unlikely occurrence of a 
zirconium fire. The primary consideration for the planning basis for a 
PSEP is the potential consequences and timing of this narrow spectrum 
of accidents in relation to the time needed to initiate protective 
actions.
    From a regulatory perspective, the purpose of a PSEP is to provide 
a transition period to ensure that an appropriate level of EP is 
maintained onsite and offsite to respond to applicable DBAs and to 
ensure a prompt response to the highly unlikely rapid draindown of the 
SFP and subsequent zirconium fire and release occurring in less than 10 
hours. A nuclear power reactor licensee would be permitted to 
transition to a PSEP after the NRC's docketing of the licensee's 
certifications of permanent cessation of operations and permanent 
removal of fuel from the reactor vessel pursuant to Sec. Sec.  50.82 or 
52.110. The NRC anticipates that licensees will maintain a PSEP from 
the date that the NRC dockets the licensee's certifications of 
permanent cessation of operations and permanent removal of fuel from 
the reactor vessel, until the spent fuel has decayed for a period of at 
least 10 months (for BWRs) or 16 months (for PWRs) from the date of 
permanent cessation of operations, unless a different period is 
justified. During this time, the licensee would be relieved of the 
regulatory burden of requirements that are not needed to support an 
appropriate level of EP as preparations are made to implement a PDEP. 
The PSEP is a transition period for both onsite and offsite emergency 
planning in which the regulatory requirements for periodic updates, 
reviews, and audits that were necessary to support operating reactor EP 
programs should not interfere with efforts to establish an appropriate 
level of EP for a PDEP. The NRC does not intend for many significant 
changes to

[[Page 12270]]

occur to the emergency plan while the PSEP is used.
Permanently Defueled Emergency Plan
    For plants that have permanently shut down and defueled, the 
proposed EP approach is based primarily on conditions that: (1) A 
postulated radiological release would not exceed the EPA early-phase 
PAGs at the exclusion area boundary for DBAs applicable to a 
permanently shutdown and defueled reactor, and (2) sufficient time 
would exist to implement mitigative actions in response to a postulated 
zirconium fire beyond-design-basis accident scenario in the SFP and, if 
warranted, for offsite officials to initiate appropriate response 
actions using all-hazards planning to protect public health and safety. 
Because of the additional time available to take mitigative actions 
and, if necessary, to initiate protective actions, many requirements 
applicable under an operating reactor emergency plan or a PSEP would 
not be required to protect public health and safety and, therefore, 
would not be applicable to licensees with sufficiently decayed spent 
fuel under a PDEP.
    The NRC is proposing two regulatory alternatives to specify when 
the transition to a PDEP may occur: (1) After a specified amount of 
spent fuel decay time that starts from the date of permanent cessation 
of operations, or (2) after an alternative timeframe based on a site-
specific analysis that shows that the fuel in the SFP cannot heat up to 
zirconium fuel cladding ignition temperature (900 degrees C) within 10 
hours under adiabatic conditions. In either case, a licensee would be 
permitted to transition to a PDEP only after the NRC's docketing of the 
licensee's certifications of permanent cessation of operations and 
permanent removal of fuel from the reactor vessel pursuant to Sec.  
50.82 or Sec.  52.110. This proposed rule specifies an acceptable decay 
time to remove the requirement for licensees to provide a site-specific 
analysis. Licensees are provided the option to submit a site-specific 
analysis proposing an alternative decay period, but such an analysis 
would be subject to NRC review and approval before a transition to a 
PDEP.
Independent Spent Fuel Storage Installation-Only Emergency Plan
    The third level of decommissioning under the proposed rule would 
occur when all spent fuel is removed from the SFP and placed in dry 
cask storage. At this point, the licensee would have an ISFSI-only 
emergency plan, or IOEP. A licensee with all of its spent fuel in dry 
cask storage that terminates its 10 CFR part 50 or 10 CFR part 52 
license must first obtain a specific 10 CFR part 72 license. 
Accordingly, the licensee would then transition to the EP requirements 
for dry cask storage in Sec.  72.32, ``Emergency Plan.'' A licensee 
maintaining its 10 CFR part 50 or 10 CFR part 52 license may opt to 
change its EP program to align it with the requirements of Sec.  72.32 
once all spent fuel is transferred to dry cask storage. These two 
categories of licensees (i.e., 10 CFR part 72 specific licensees and 10 
CFR part 50 or 10 CFR part 52 licensees with ISFSIs licensed under the 
10 CFR part 72 general license) would be permitted to adopt an IOEP, 
consistent with the EP requirements that currently exist under Sec.  
72.32(a).
All Spent Fuel Removed From Site
    This proposed rule would allow a licensee to terminate its EP 
program once all the spent fuel has been permanently removed from the 
site, because the site no longer poses any risk of a radiological 
release from the spent fuel.
3. Licensee Supporting Analyses
    Decommissioning nuclear power reactor licensees submitting requests 
for exemptions under Sec.  50.12, ``Specific exemptions,'' from EP 
regulations have performed a series of supporting analyses for NRC 
review, as described in NSIR/DPR-ISG-02, ``Interim Staff Guidance: 
Emergency Planning Exemption Requests for Decommissioning Nuclear Power 
Plants'' (ADAMS Accession No. ML14106A057). To support the exemption 
requests, these analyses must demonstrate that: (1) Any radiological 
release for applicable DBAs (e.g., fuel handling accident in the spent 
fuel storage facility, waste gas system release, and cask handling 
accident if the cask handling system is not licensed as single-failure-
proof) would not exceed the limits of EPA PAGs at the exclusion area 
boundary, and (2) mitigation strategies and guidelines exist to provide 
an integrated response capability for beyond-design-basis events. In 
addition, licensees are required to demonstrate that, in the event of a 
complete loss of SFP water inventory with no heat loss (adiabatic 
heatup), a period of at least 10 hours would be available from the time 
all cooling is lost until any zirconium fuel cladding temperature 
reaches 900 degrees C.
    Under this proposed rule, the NRC would not require licensees to 
submit these analyses to the NRC for review and approval (separately 
from existing NRC oversight processes described later in this document) 
or to certify that these analyses have been completed to support a 
change between EP levels. The NRC anticipates that a licensee would 
analyze applicable DBAs using the process under Sec.  50.59 and reflect 
the analysis in the licensee's updated FSAR. The NRC expects that 
licensees have developed and maintained mitigation strategies for 
beyond-design-basis events as required by NRC Order EA-12-049. For the 
heatup analysis, the NRC has already performed analyses of 
representative PWR and BWR spent fuel to determine the decay time 
necessary for the fuel to remain below clad ignition temperature for at 
least 10 hours assuming adiabatic heatup conditions. These analyses 
contain numerous conservatisms, such that the decay times specified in 
the rule would bound the decay time required for plants with fuel 
assemblies from the final offload to the spent fuel pool with burnup 
less than 72 GWd/MTHM and zirconium cladding to attain the 10-hour 
criterion. This particular analysis supports a transition to PDEP 
requirements, as previously described. The NRC is proposing an option 
to allow licensees to develop their own site-specific analysis for this 
transition time; however, licensees would need to submit such analyses 
to the NRC for review and approval. This proposed rule details that 
process.
    The following sections describe the proposed EP planning standards 
and requirements for each graded level of EP (i.e., PSEP, PDEP, and 
IOEP) under proposed Sec. Sec.  50.54(q) and 50.200, ``Power reactor 
decommissioning emergency plans.'' The NRC is issuing draft Regulatory 
Guide (DG) DG-1346, ``Emergency Planning for Decommissioning Nuclear 
Power Reactors'' (ADAMS Accession No. ML21347A046), for public comment 
with this proposed rule that includes guidance on one method acceptable 
to the NRC for complying with these proposed requirements. This 
regulatory guide will supersede NSIR/DPR-ISG-02 upon publication of the 
final rule. This proposed rule contains a risk-informed, consequence-
oriented, graded approach to EP for decommissioning sites that 
maintains the defense-in-depth philosophy and provides reasonable 
assurance that adequate protective measures can and will be taken in 
the event of a radiological emergency.
4. Post-Shutdown Emergency Plans
    The NRC is proposing in Sec.  50.54(q)(7) that a licensee can 
transition to a PSEP after the NRC's docketing of the licensee's 
certifications of permanent

[[Page 12271]]

cessation of operations and permanent removal of all fuel from the 
reactor vessel pursuant to Sec. Sec.  50.82(a)(1) or 52.110(a). A PSEP 
provides a transition period from the EP requirements for an operating 
reactor to the PDEP requirements under proposed Sec.  50.200(b) and 
(c). The NRC is proposing regulations under new Sec.  50.200(a) that 
would clarify how the planning standards in Sec.  50.47(b) and 
requirements in appendix E to 10 CFR part 50 apply to a nuclear power 
reactor licensee's PSEP.
PSEP Staffing and Emergency Response Organization
    Currently, the following regulations govern the staffing of the 
emergency response organization (ERO):
     Section 50.47(b)(1), which states, in part, ``Primary 
responsibilities for emergency response by the nuclear facility . . . 
have been assigned . . . and each principal response organization has 
staff to respond and to augment its initial response on a continuous 
basis.''
     Section 50.47(b)(2), which states, in part, ``[A]dequate 
staffing to provide initial facility accident response in key 
functional areas is maintained at all times, timely augmentation of 
response capabilities is available. . . .''
     Appendix E to 10 CFR part 50, paragraph IV.A, which 
states, in part, ``The organization for coping with radiological 
emergencies shall be described, including definition of authorities, 
responsibilities, and duties of individuals assigned to the licensee's 
emergency organization. . . .''
    This proposed rule would allow a licensee transitioning to a PSEP 
to revisit staffing levels and the staffing analysis for the ERO 
performed under paragraph IV.A.9 of appendix E to 10 CFR part 50 to 
align staffing with the reduced spectrum of credible accidents for a 
permanently shutdown and defueled nuclear power reactor facility. The 
proposed requirement in Sec.  50.200(a) would acknowledge that the 
spectrum of credible accidents requiring a response from the ERO at a 
facility that is permanently shutdown and defueled is reduced as 
compared to that for an operating plant. The principal public safety 
concern involves the potential radiological risks associated with the 
storage of spent fuel on site in the SFP. For example, the reactor, 
reactor coolant system, and reactor support systems are no longer in 
operation and have no function related to the storage of spent fuel. 
Therefore, postulated accidents involving a failure or malfunction of 
these systems are no longer applicable. As such, certain ERO positions 
and emergency functions as detailed in NUREG-0654/FEMA-REP-1, Revision 
2, Table B-1, ``Emergency Response Organization (ERO) Staffing and 
Augmentation Plan,'' may not be applicable or necessary under a PSEP. 
Commensurate with the reduced spectrum of credible accidents, proposed 
Sec.  50.200(a) would allow licensees to change ERO staffing levels 
required by existing Sec.  50.47(b)(2) within their PSEPs. Reductions 
in facility staffing may be made as long as the facility operates with 
no loss of necessary EP functions and the reductions have no impact on 
the formal offsite radiological emergency response plans that are in 
effect. In conjunction with this proposed rule, the NRC is issuing for 
public comment DG-1346, which provides guidance on ERO capabilities to 
be maintained at facilities with PSEPs when reducing staffing levels.
PSEP Emergency Action Levels
    Currently, appendix E to 10 CFR part 50, paragraph IV.C requires 
licensees to develop a set of emergency action levels (EALs) based not 
only on onsite and offsite radiation monitoring information but also on 
readings from a number of sensors that indicate a potential emergency, 
such as the pressure in containment and the response of the emergency 
core cooling system. This proposed rule would allow licensees 
transitioning to a PSEP to revise EALs consistent with the profile of a 
permanently shutdown and defueled nuclear power reactor. Proposed Sec.  
50.54(q)(8)(iii) would state that changes to EALs resulting from 
changes in plant conditions due to the transition to decommissioning 
would not be reductions in effectiveness provided that the evaluation 
under Sec.  50.54(q)(3) demonstrates that the changes do not reduce the 
capability of the licensee to take timely and appropriate protective 
actions. Given the defueled nature of facilities in decommissioning, 
EALs associated with nuclear power reactor operations (e.g., reactor 
vessel water level, core temperature, and containment radiation levels) 
and EALs for mitigation systems not associated with the SFP would no 
longer contain applicable initiating conditions. Containment parameters 
do not indicate the conditions relevant to EP at a defueled facility, 
and emergency core cooling systems would no longer be required. Other 
indications such as SFP level or temperature can be used at sites that 
have spent fuel in the SFPs. Consistent with existing requirements, 
licensees transitioning to a PSEP would still be required to maintain a 
set of EALs based on onsite radiation monitoring information and in-
plant conditions and instrumentation applicable to EP for a defueled 
reactor.
    Guidance document NEI 99-01, Revision 6, ``Development of Emergency 
Action Levels for Non-Passive Reactors'' (ADAMS Accession No. 
ML12326A805), provides EALs for non-passive operating nuclear power 
reactors, permanently defueled reactors, and ISFSIs. The NRC found NEI 
99-01, Revision 6, acceptable for use in a letter dated March 28, 2013 
(ADAMS Accession No. ML12346A463). To accompany this proposed rule, the 
NRC drafted guidance in Attachment 1 of Appendix A in DG-1346, for how 
a permanently shutdown and defueled nuclear power reactor facility 
could make a partial EAL scheme change. Notwithstanding the proposed 
changes to Sec.  50.54(q), a licensee desiring to change its entire EAL 
scheme must receive prior NRC approval in accordance with appendix E to 
10 CFR part 50, paragraph IV.B.2.
PSEP Evacuation Time Estimate Studies
    Appendix E to 10 CFR part 50, paragraph IV.3 requires licensees to 
use evacuation time estimates (ETEs) in the formulation of protective 
action recommendations (PARs) and to provide the ETEs to State and 
local governmental authorities for use in developing offsite protective 
action strategies. Licensees must update ETEs on a periodic basis in 
accordance with the requirements in Sec.  50.47(b)(10) and appendix E 
to 10 CFR part 50, paragraphs IV.4, IV.5, and IV.6. The periodicity of 
these updates together with time needed to develop and implement the 
resulting protective action strategies may exceed the expected 
transition period covered by PSEPs. Therefore, the NRC is proposing to 
add a new paragraph IV.8 to appendix E to 10 CFR part 50 to clarify 
that the ETE requirements of paragraphs IV.4, IV.5, and IV.6 would no 
longer be applicable to licensees after permanent cessation of 
operations and permanent removal of fuel from the reactor vessel. 
Existing ETE analyses would remain effective within the emergency plan 
until no longer required for licensees with PDEPs.
    Under proposed Sec.  50.54(q)(7)(ii), a licensee transitioning to a 
PSEP would need to maintain a PSEP from the date that the NRC dockets 
the licensee's certifications of permanent cessation of operations and 
permanent removal of fuel from the reactor vessel, until the spent fuel 
has decayed for a period of at least 10 months (for BWRs) or 16 months 
(for PWRs) from the date of permanent cessation of operations for

[[Page 12272]]

burnups less than 72 GWd/MTHM, unless an alternative spent fuel decay 
period is proposed by the licensee and approved by the NRC. For fuel 
with burnups greater than 72 GWd/MTHM or non-zirconium cladding, an 
alternative spent fuel decay period would be proposed by the licensee 
for approval by the NRC under Sec.  50.54(q)(7)(ii). Updates to the ETE 
during this level of decommissioning would provide limited benefit for 
the enhancement of protective action strategies or offsite evacuation 
planning. Even if the criteria for updating the ETE analysis were met 
within the timeframe for a PSEP, updating an ETE report may take 
several months of analysis. After the ETE is updated, the regulations 
in appendix E to 10 CFR part 50, paragraph IV.6 require an additional 
180 days before an updated ETE can be used to inform PARs and offsite 
protective action strategies. The additional time and effort needed to 
develop and implement a revised protective action strategy may exceed 
the time that a facility would spend with a PSEP before transitioning 
to a PDEP. Based on the NRC's review of submitted ETEs, population 
changes within a period comparable to the post-shutdown timeframe are 
unlikely to impact ETEs enough to affect the formulation of protective 
action strategies. In addition, because licensees with PDEPs would not 
be required to have preplanned PARs to provide for a prompt response to 
a radiological emergency, updates to the ETE post-shutdown would 
provide no significant benefit.
PSEP Annual Dissemination of Public Information
    Appendix E to 10 CFR part 50, paragraph IV.D.2 currently requires 
licensees to make an annual dissemination of basic emergency planning 
information to the public within the plume exposure pathway EPZ. 
Section II.G of NUREG-0654/FEMA-REP-1, Revision 2, contains criteria 
for the information that should be included in the annual dissemination 
of public information, including educational information on radiation, 
points of contact, protective measures, and information for special 
needs populations. The NRC is not proposing changes related to the 
requirement for an annual dissemination of public information for a 
PSEP because the change in the plant's operating status and the ensuing 
changes to the EP program would be appropriate information to 
communicate to the public. However, consistent with the removal of 
regulatory standards for offsite radiological emergency plans for 
decommissioning sites (including the removal of EPZ requirements) as 
discussed later in this document, licensees with PDEPs would not be 
required to provide annual disseminations of information to the public. 
In DG-1346, the NRC provides guidance on one method acceptable to the 
NRC for a final dissemination of information to the public for 
licensees with PSEPs.
PSEP Hostile Action
    In the 2011 final rule, ``Enhancements to Emergency Preparedness 
Regulations'' (76 FR 72559; November 23, 2011) (2011 EP Final Rule), 
the NRC amended its regulations to include enhancements to EP in 
response to a hostile action event. Appendix E to 10 CFR part 50, 
paragraph IV.A.7 defines ``hostile action'' as an act directed toward a 
nuclear power plant or its personnel that includes the use of violent 
force to destroy equipment, take hostages, and/or intimidate the 
licensee to achieve an end. Appendix E to 10 CFR part 50, paragraph 
IV.B.1 requires nuclear power reactor licensees to have EALs for 
hostile action, paragraph IV.E.8.d requires nuclear power reactor 
licensees to have alternative facilities that would be accessible even 
if the site is under threat of or experiencing hostile action for the 
staging of ERO personnel, paragraph IV.l requires nuclear power reactor 
licensees to develop protective actions to protect onsite personnel 
during hostile action, and paragraph IV.F.2.c.4 and paragraph IV.F.2.i 
require nuclear power reactor licensees to have hostile action 
scenarios in drills and exercises. These EP requirements related to 
hostile action are separate and distinct from the physical protection 
regulations in 10 CFR part 73, ``Physical Protection of Plants and 
Materials.''
    The NRC is proposing to maintain EP requirements related to hostile 
action for nuclear power reactor licensees transitioning to a PSEP. 
Spent fuel at a nuclear power reactor facility that has a PSEP has not 
yet undergone a significant period of decay, necessitating the 
maintenance of formal offsite radiological emergency planning. The 
potential consequences and timing of an accident are the primary 
considerations for the EP planning basis at nuclear power reactor 
facilities transitioning to a PSEP. Although NUREG-1738 did not 
evaluate the potential consequences of a sabotage event that could 
directly cause offsite fission production dispersion, the NRC did study 
the potential consequences of the zirconium fire event at different 
spent fuel decay times. Within the timeframe proposed for nuclear power 
reactor facilities transitioning to a PSEP, the study in NUREG-1738 
shows that decay time is significant when considering short-term 
radiological consequences. Additionally, maintaining EP requirements 
related to hostile action during this transitional (and time-limited) 
level of decommissioning would help both the licensee and offsite 
response organizations (OROs) avoid immediate significant changes to 
the onsite and offsite emergency plans.
PSEP Drills and Exercises
    Current regulations in appendix E to 10 CFR part 50, paragraph IV.F 
and Sec.  50.47(b)(14) include requirements for periodic drills and 
exercises for nuclear power reactor licensees. Proposed paragraph 
IV.F.2.k would require licensees to follow the biennial exercise 
requirements of appendix E, paragraph IV.F.2 once the NRC dockets the 
licensee's certifications required under Sec.  50.82(a)(1) or Sec.  
52.110(a). After the NRC dockets this certification, exercise scenarios 
would be reduced commensurate with the permanent cessation of 
operations and permanent removal of fuel from the reactor vessel to 
reflect a smaller suite of potential accident scenarios.
    Current regulations in appendix E to 10 CFR part 50, paragraph 
IV.F.2.c require that offsite radiological emergency plans for each 
site be exercised biennially with full participation by each offsite 
authority having a role under the radiological emergency plan. Proposed 
paragraph IV.F.2.k would provide that biennial exercises of offsite 
emergency plans would be required after the NRC dockets a licensee's 
certifications under Sec.  50.82(a)(1) or Sec.  52.110(a) until 
transition to a PDEP.
    However, a licensee that conducts a full participation biennial 
exercise just prior to the NRC docketing the licensee's certifications 
required under Sec.  50.82(a)(1) or Sec.  52.110(a) may not be required 
to conduct another exercise before transitioning to a PDEP. If an 
exercise is conducted as part of the 8-year exercise cycle, as required 
under appendix E to 10 CFR part 50, paragraph IV.F.2.j, after the NRC 
dockets the licensee's certifications required under Sec.  50.82(a)(1) 
or Sec.  52.110(a), but prior to transitioning to a PDEP, the scenario 
would reflect actual plant conditions.
PSEP Emergency Response Data Systems
    Appendix E to 10 CFR part 50, section VI, ``Emergency Response Data 
System,'' outlines a set of system, testing, and

[[Page 12273]]

implementation requirements for the emergency response data system 
(ERDS). These systems transmit near-real-time electronic data directly 
between the licensee's onsite computer system and the NRC Operations 
Center. Nuclear power facilities that are shutdown permanently or 
indefinitely are currently not required to provide hardware to 
interface with the NRC receiving system under appendix E to 10 CFR part 
50, paragraph VI.2, and the NRC is not proposing any regulatory changes 
to section VI beyond minor corrections (see ``Clean-up of Regulations'' 
section in this document). Under Sec.  50.72, ``Immediate notification 
requirements for operating nuclear power reactors,'' licensees with 
PSEPs would maintain a capability to provide meteorological, 
radiological, and SFP data (e.g., level, flow, and temperature data) to 
the NRC within a reasonable timeframe following an event.
5. Permanently Defueled Emergency Plans
    Proposed Sec.  50.54(q)(7)(ii) describes the timeframe after which 
a licensee would be permitted to transition to a PDEP. As discussed in 
the ``Technical Basis for Graded Approach'' section of this document, 
the NRC concluded that after a decay period of 10 months (for BWRs) or 
16 months (for PWRs), the spent fuel cannot reasonably heat up to the 
zirconium fuel cladding ignition temperature within 10 hours. 
Therefore, the NRC is proposing that a licensee can transition to a 
PDEP after the NRC's docketing of the licensee's certifications of 
permanent cessation of operations and permanent removal of all fuel 
from the reactor vessel pursuant to Sec. Sec.  50.82(a)(1) or 52.110(a) 
and when at least 10 months (for BWR) or 16 months (for PWR) have 
elapsed since the date of permanent cessation of operations.
    Proposed Sec.  50.54(q)(7)(ii) would also allow licensees to submit 
an analysis for NRC approval demonstrating that an alternative spent 
fuel decay period would ensure that spent fuel would not heat up to 900 
degrees C in less than 10 hours under adiabatic conditions. Under the 
proposed rule, licensees would be required to submit this analysis 
under Sec.  50.90 and the analysis would need to be approved by the NRC 
in order for a licensee to transition to a PDEP in less than 10 months 
(for a BWR) or 16 months (for a PWR). While the NRC's research 
conducted to inform this proposed rule supports a required decay period 
of 10 months (for BWRs) or 16 months (for PWRs), it is possible that a 
licensee may be able to demonstrate, based on site-specific conditions, 
that a shorter decay period would still ensure that spent fuel cannot 
reasonably heat up to the zirconium fuel cladding ignition temperature 
within 10 hours; therefore, the NRC is allowing for the flexibility to 
submit an alternative decay period under proposed Sec.  
50.54(q)(7)(ii). The NRC is issuing DG-1346 for public comment in 
conjunction with this proposed rule; DG-1346 provides one method 
acceptable to the NRC for conducting the spent fuel heatup analysis.
    As demonstrated in the results of the NRC's task analysis of 
mitigation actions, ``A Human Reliability Analysis of the Spent Fuel in 
the Spent Fuel Pool of Decommissioning Nuclear Plants'' (ADAMS 
Accession No. ML16110A432), a period of 10 hours will provide 
sufficient time for plant staff to implement mitigation strategies to 
prevent spent fuel heatup damage. Additionally, as noted in the NRC's 
analysis, ``Offsite Dose Accumulation Rates Following a Hypothetical 
Spent Fuel Pool Accident'' (ADAMS Accession No. ML16110A430), even in 
the event of a highly unlikely beyond-design-basis accident leading to 
a rapid draindown of the SFP and subsequent zirconium fire, there may 
be an additional time margin of several hours beyond the 10-hour heatup 
time during which protective actions can be taken to protect the public 
before the dose levels associated with EPA PAGs would be exceeded 
offsite. Because of the additional time available to take mitigation 
actions and, if necessary, to initiate protective actions, many 
requirements applicable to licensees with PSEPs would not be applicable 
to licensees with sufficiently decayed spent fuel (i.e., licensees with 
PDEPs). The following discussion addresses the planning standards under 
proposed Sec.  50.200(b) and requirements under proposed Sec.  
50.200(c) that would be necessary to adequately protect public health 
and safety at facilities with PDEPs. The proposed requirements for 
facilities with PDEPs are consistent with the guidance contained in 
NSIR/DPR-ISG-02.
Offsite Radiological Emergency Response Plans
    Currently, Sec.  50.47(b) applies to both onsite and offsite 
radiological emergency response plans, and appendix E to 10 CFR part 50 
includes requirements for emergency plans to address offsite emergency 
response capabilities (e.g., public alert and notification systems, 
offsite PAR development, ETEs, and exercises of offsite emergency 
plans). Under this proposed rule, NRC planning standards would no 
longer be applied to offsite radiological emergency response plans for 
plants with PDEPs.
    In its review of several exemption requests, the NRC concluded that 
as long as a period of at least 10 hours is available to implement 
mitigation measures or initiate appropriate response actions offsite, 
formal offsite radiological emergency plans, required under 10 CFR part 
50, are not necessary for permanently shutdown and defueled nuclear 
power reactor licensees with a PDEP. In a hypothetical SFP accident 
scenario, 10 hours is a conservative estimate of the amount of time 
available to implement mitigation measures or to take other appropriate 
response actions. The 10 hours assumes that the spent fuel begins to 
heat up immediately after the initiating event occurs and does not 
include the expected amount of time it would take for water to drain 
from the pool. A beyond-design-basis accident that results in the water 
draining from the pool (whether a full or partial draindown) would 
likely take much longer than 10 hours because of the robust 
construction of the SFP and the large volume of water in the SFP, 
delaying the onset of heatup. Additionally, 10 hours is a conservative 
period of time during which preplanned mitigation measures to provide 
makeup water or spray to the SFP can be implemented reliably before the 
onset of a zirconium cladding ignition.
    If a release is projected to occur, 10 hours would be sufficient 
time for licensees to notify offsite agencies and for these agencies to 
initiate appropriate action to protect public health and safety. The 
NRC concludes that 10 hours provides ample time to take appropriate 
actions without the extensive preplanning and other requirements of the 
EP framework for operating plants, and, therefore, regulatory standards 
for offsite radiological emergency plans would no longer be necessary 
for the adequate protection of public health and safety. Licensees with 
PDEPs would still maintain a variety of onsite capabilities that may be 
available to support OROs in EP and response, including radiological 
training; regular coordination with OROs; radiological assessment 
capabilities; memoranda of understanding for firefighting, law 
enforcement, and ambulance/medical services; and the ability to make 
PARs upon request. For licensees with PDEPs, no action would be 
expected or required from State or local government organizations in 
response to an event at a decommissioning site other than firefighting, 
law enforcement, and ambulance/medical services. Requirements for 
licensees to maintain agreements for these services also exist

[[Page 12274]]

outside of radiological EP, including the requirement for licensees to 
maintain a fire protection plan in Sec.  50.48, ``Fire protection,'' 
and physical security requirements in 10 CFR part 73. Since the 
requirements of Sec.  50.47(b) continue to apply to offsite 
radiological emergency plans during decommissioning, the NRC is 
proposing to add Sec.  50.47(f) to clarify when the 16 planning 
standards in Sec.  50.47(b) no longer apply to offsite radiological 
emergency plans.
PDEP Staffing and Emergency Response Organization
    Currently, Sec.  50.47(b)(1) and (2) and paragraph IV.A of appendix 
E to 10 CFR part 50 require licensees to maintain adequate staffing for 
initial and augmented response in the case of an emergency and to 
describe ERO responsibilities in their emergency plans. Further, 
appendix E to 10 CFR part 50, paragraph IV.A.9 requires licensees to 
conduct a detailed staffing analysis demonstrating that on-shift 
personnel assigned emergency plan implementation functions are not 
assigned responsibilities that would prevent the timely performance of 
their assigned functions as specified in the emergency plan.
    Proposed Sec.  50.200(b)(1), (b)(2), and (c)(1)(i) would include 
similar staffing requirements for licensees with PDEPs, with the 
exception of changes made to reflect the small staffing levels required 
at a decommissioning facility and the removal of formal offsite 
radiological emergency response requirements for licensees with PDEPs. 
For example, licensees with PDEPs would not have to comply with the 
requirement under appendix E to 10 CFR part 50, paragraph IV.A.3 to 
augment the ERO with staff from licensee headquarters. Because of the 
much lower risk and much slower progression of events as compared to 
operating plants, decommissioning sites typically have a level of 
emergency response that does not require response by headquarters 
personnel. Licensees would not have to identify State and/or local 
officials responsible for protective actions, as currently required 
under appendix E to 10 CFR part 50, paragraph IV.A.8 because offsite 
emergency measures are limited to onsite support provided by local 
police, fire departments, and ambulance and hospital services, as 
appropriate. Proposed Sec.  50.200(c)(1)(i) would require licensees 
with PDEPs to include in their emergency plans plant staff emergency 
assignments.
    In addition, the staffing analysis required under appendix E to 10 
CFR part 50, paragraph IV.A.9 would no longer apply to licensees with 
PDEPs. In the 2011 EP Final Rule, the NRC concluded that the staffing 
analysis requirement was not necessary for non-power reactor licensees 
because of the small staffing levels required for those facilities. For 
this same reason, licensees with PDEPs would no longer be required to 
perform this analysis under the proposed rule.
    As licensees transition to a PDEP, staffing levels may be reduced 
but must remain commensurate with the need to safely store spent fuel 
at the facility in a manner that is protective of public health and 
safety. The NRC is issuing DG-1346 for public comment in conjunction 
with this proposed rule; DG-1346 provides guidance on ERO staffing 
levels for a PDEP. Licensees with PDEPs would need to be able to 
augment on-shift capabilities within two hours after declaration of an 
emergency. The augmented staff would need to include engineering 
capability appropriate for SFP accident mitigation, but may otherwise 
be reduced.
    Currently, a licensee is required to maintain staffing levels at 
its technical support center (TSC), operational support center (OSC), 
and emergency operations facility (EOF). In accordance with NUREG-0696, 
``Functional Criteria for Emergency Response Facilities'' (ADAMS 
Accession No. ML051390358), a TSC is an onsite facility located close 
to the control room that provides plant management and technical 
support to the reactor operating personnel located in the control room 
during emergency conditions; the OSC is an onsite area separate from 
the control room and the TSC where licensee operations support 
personnel will assemble in an emergency; and an EOF is an offsite 
support facility for the management of overall licensee emergency 
response (including coordination with Federal, State, and local 
officials), coordination of radiological and environmental assessments, 
and determination of recommended public protective actions. Because of 
the low probability of DBAs or other credible events that would be 
expected to exceed the EPA PAGs offsite and the available time to 
implement mitigation measures consistent with plant conditions and, if 
necessary, to initiate response actions, licensees with PDEPs would not 
need to maintain the TSC, OSC, and EOF designated staff or dedicated 
offsite dose assessment field teams.
PDEP Emergency Classification Levels and Emergency Action Levels
    Currently, Sec.  50.47(b)(4) and appendix E to 10 CFR part 50, 
paragraphs IV.B and IV.C specify the EAL and emergency classification 
level (ECL) requirements for operating reactors. Similar to Sec.  
50.47(b)(4), the proposed PDEP planning standard under Sec.  
50.200(b)(4) would require licensees with PDEPs to establish a standard 
ECL and EAL scheme, the bases of which would include facility system 
and effluent parameters. The NRC is proposing EAL and ECL requirements 
for licensees with PDEPs that are analogous to appendix E to 10 CFR 
part 50, paragraphs IV.B and IV.C with the exceptions of the 
requirements to base EALs on offsite monitoring information and the 
appendix E to 10 CFR part 50 paragraph IV.B.1 requirement to include 
hostile action-based EALs. Because licensees with PDEPs would not be 
required to maintain formal offsite radiological emergency response 
plans and ``hostile action'' does not apply (see discussion in ``PDEP 
Hostile Action'' and ``Offsite Radiological Emergency Response Plans'' 
sections in this document), these requirements are no longer relevant 
to these facilities. However, EALs for security-based events would 
still be required.
    Under proposed Sec.  50.200(c)(1)(ii)(A), licensees with PDEPs 
would continue to be required to describe in their emergency plans the 
EALs that are used as a criterion for determining the need for 
notification and participation of governmental agencies and the EALs 
that are used for determining when and what protective measures should 
be considered within the site boundary to protect public health and 
safety. In addition, licensees with PDEPs would be required to review 
EALs with State and local governmental authorities on an annual basis. 
Under proposed Sec.  50.200(c)(1)(iii)(A), licensees with PDEPs would 
continue to be required to describe in their emergency plans the 
spectrum of emergency conditions that involve the alerting or 
activating of the total emergency organization, the communication steps 
to be taken to alert or activate personnel, EALs for notification of 
offsite agencies, and the existence of a message authentication scheme. 
Under proposed Sec.  50.200(c)(1)(ii)(B), a licensee desiring to make 
an EAL scheme change as part of the PDEP must follow the requirements 
of appendix E to 10 CFR part 50, paragraph IV.B.2.
    For facilities with PDEPs, proposed Sec.  50.200(c)(1)(iii)(A) 
would specify that only the ECLs of Notification of Unusual Event and 
Alert would apply (and not the ECLs of Site Area Emergency and General 
Emergency, which apply to operating reactors). For these facilities, 
the probability of a condition reaching the level above an emergency

[[Page 12275]]

classification of Alert is very low. In the event of an accident at a 
facility with a PDEP, time will be available to implement mitigation 
measures consistent with plant conditions. As stated in NUREG-1738, 
small SFP leaks or loss of cooling scenarios evolve very slowly and 
generally leave many days for recovery efforts. Offsite radiation 
monitoring would be performed as the need arises. Because of the low 
probability of DBAs or other credible events that would reasonably be 
expected to exceed the EPA PAGs and the available time to implement 
mitigation measures consistent with plant conditions and, if necessary, 
to initiate appropriate response actions offsite, facilities with PDEPs 
would not require declarations of Site Area Emergency and General 
Emergency and the associated offsite radiation monitoring systems. The 
results from the NRC's analyses previously discussed support this 
conclusion.
    Consistent with the discussion on PSEPs, EALs for nuclear power 
reactor operations (e.g., reactor vessel water level, core temperature, 
and containment radiation levels) and EALs related to mitigation 
systems not associated with the SFP would no longer be applicable for 
facilities with PDEPs. The NRC is issuing DG-1346 for public comment in 
conjunction with this proposed rule; DG-1346 provides one method 
acceptable to the NRC for EALs for facilities with PDEPs. As discussed 
previously, proposed Sec.  50.54(q)(8)(iii) describes requirements for 
decommissioning licensees to conduct reduction in effectiveness 
determinations for EAL schemes.
PDEP Emergency Assessment, Classification, and Declaration
    Currently, appendix E to 10 CFR part 50, paragraph IV.C.2 requires 
licensees to maintain the capability to assess, classify, and declare 
an emergency condition within 15 minutes. A decommissioning nuclear 
power reactor has a low likelihood of a design-basis accident or other 
credible event resulting in radiological releases requiring offsite 
protective measures, and the event progression is much slower compared 
to that for operating reactors. For these reasons, under this proposed 
rule licensees with PDEPs would not be required to assess, classify, 
and declare an emergency condition within 15 minutes. Instead, the NRC 
is proposing under Sec.  50.200(c)(1)(iii)(B) that licensees with PDEPs 
must document and maintain the capability to assess, classify, and 
declare an emergency condition as soon as possible and within 60 
minutes after the availability of indications that an EAL has been 
exceeded and must promptly declare the emergency condition as soon as 
possible following identification of the appropriate ECL. Similar to 
the requirements in appendix E to 10 CFR part 50, paragraph IV.C, 
proposed Sec.  50.200(c)(1)(iii)(B) would clarify that PDEP licensees 
must not treat the timeframe as a grace period or delay the 
implementation of response actions. The 60-minute timeframe is 
commensurate with the slower progression of a credible event resulting 
in a radiological release requiring offsite protective measures (see 
discussion of the timeframe for potential releases and mitigation 
actions at decommissioning sites in the section ``Permanently Defueled 
Emergency Plans'' in this document).
PDEP Notification Requirement to State and Local Governmental Agencies
    Currently, appendix E to 10 CFR part 50, paragraph IV.D.3 requires 
licensees to have the capability to notify OROs of an emergency 
declaration within 15 minutes. Under proposed Sec.  
50.200(c)(1)(iv)(B), licensees with PDEPs would be required to promptly 
notify State and local governmental agencies and to make this 
notification as soon as possible and within 60 minutes after declaring 
an emergency. The NRC's research and analysis shows that licensees with 
PDEPs would have sufficient time to implement mitigation measures 
consistent with plant conditions and, if necessary, for OROs to 
initiate protective actions offsite. Notifying OROs as soon as possible 
and within 60 minutes after declaring an emergency would not 
significantly impact the time available for OROs to initiate 
appropriate response actions.
PDEP Public Alert and Notification Systems
    Currently, appendix E to 10 CFR part 50, paragraph IV.D.3 requires 
licensees to demonstrate that appropriate governmental authorities have 
the capability to make a decision on alerting and notifying the public 
promptly on being informed of an emergency condition. Because of the 
low probability of DBAs or other credible events that would be expected 
to exceed the limits of EPA PAGs offsite and the available time for 
event mitigation, under this proposed rule, the public alert and 
notification system specified in appendix E to 10 CFR part 50, 
paragraph IV.D.3 would not be required for licensees with PDEPs. 
Similarly, exercises of this system, as required under appendix E to 10 
CFR part 50, paragraph IV.F.2, would no longer be required for 
licensees with PDEPs. As previously discussed, licensees with PDEPs 
would still be required to maintain the capability to notify 
responsible State and local governmental agencies within 60 minutes 
after declaring an emergency, and, based on research and analysis 
showing that there would be at least 10 hours prior to a zirconium fuel 
cladding fire for licensees with PDEPs, sufficient time would be 
available for appropriate governmental authorities to inform the public 
and initiate protective actions, if necessary. Such actions would be 
within the capabilities of offsite response organizations and would be 
similar to actions required for other hazards that do not require a 
dedicated hazard-specific offsite response capability as is the case 
for operating reactors.
PDEP Emergency Planning Zones
    Currently, Sec.  50.47(b) and (c)(2) require licensees to conduct 
emergency planning for both the shorter-term plume exposure pathway EPZ 
(generally 10 miles) and the longer-term ingestion exposure pathway EPZ 
(generally 50 miles). Appendix E to 10 CFR part 50 contains additional 
emergency planning requirements for these two types of EPZs. However, 
the maintenance of the plume exposure pathway and ingestion exposure 
pathway EPZs for licensees with PDEPs is not warranted because of the 
low probability of DBAs or other credible events that would be expected 
to exceed the EPA PAGs off site and the available time to implement 
mitigation measures. Additionally, if necessary, sufficient time would 
be available for OROs to initiate appropriate response actions even for 
a highly unlikely severe accident. Therefore, consistent with the NRC's 
determination to not require the establishment of formal offsite 
radiological emergency response plans for licensees with PDEPs, the NRC 
is proposing to eliminate the requirements that EPZs be maintained for 
licensees with PDEPs. In other words, the plume exposure pathway EPZ 
for licensees with PDEPs does not exceed the site area boundary. 
Consequently, the planning standards for PDEPs under proposed Sec.  
50.200(b) and the requirements under proposed Sec.  50.200(c) do not 
include references to the EPZs.
    The NRC is also proposing to add a new paragraph (f) to Sec.  50.47 
that would clarify that the planning standards of Sec.  50.47(b) do not 
apply to offsite radiological emergency response plans if the 
licensee's emergency plan is not required to meet these planning 
standards or if the plume exposure

[[Page 12276]]

pathway EPZ does not exceed the site area boundary.
PDEP Offsite Radiological Protective Action Recommendations
    Currently, Sec.  50.47(b) requires licensees to develop a range of 
protective actions for the plume exposure pathway EPZ for emergency 
workers and the public and to give consideration to evacuation, 
sheltering, and the use of potassium iodide. Licensees also must 
develop and put in place guidelines for the choice of protective 
actions during an emergency and develop protective actions for the 
ingestion exposure pathway EPZ. Proposed Sec.  50.200(b)(10) would 
require licensees with PDEPs to continue to develop a range of 
protective actions for emergency workers and the public but, consistent 
with the removal of regulatory standards for offsite radiological EP 
for these licensees, would not reference specific offsite protective 
actions or pre-planned activities for the public in the EPZs. The 
proposed requirement would call for protective actions directed at 
emergency workers who may have to respond to the decommissioning site 
for firefighting, law enforcement, and ambulance/medical services and 
members of the public present within the owner-controlled area during a 
radiological emergency.
    For licensees with PDEPs, pre-planned offsite protective actions to 
ensure a prompt response to a radiological emergency on site are not 
necessary given the time available for OROs to initiate appropriate 
response actions. Although the likelihood is low for events that would 
result in doses in excess of the EPA PAGs to the public beyond the 
owner-controlled area boundary based on the permanently shutdown and 
defueled status of the reactor, the proposed rule would require 
licensees with PDEPs to determine the magnitude of and continually 
assess the impact of a radiological release under proposed Sec.  
50.200(c)(1)(ii)(A), and, if a release is occurring, the licensee would 
be required to communicate that information to offsite authorities as 
soon as possible for their consideration in taking appropriate response 
actions under proposed Sec.  50.200(c)(1)(iv)(B).
    In 2001, the NRC revised its EP regulations through the 
``Consideration of Potassium Iodide in Emergency Plans'' (66 FR 5427; 
January 19, 2001) final rule to include the consideration of potassium 
iodide as a protective measure for the general public to supplement 
sheltering and evacuation in the unlikely event of a severe nuclear 
power plant accident with an offsite radioactive plume that would 
include radioactive iodine. For licensees with PDEPs, in addition to 
not needing pre-planned protective action strategies, the iodine in the 
spent fuel has decayed sufficiently such that there is no need to 
consider a supplemental potassium iodide program to counteract the 
effects of radioactive iodine on the thyroid.
PDEP Evacuation Time Estimate Studies
    Currently, licensees are required to develop and update ETEs in 
accordance with the requirements in Sec.  50.47(b) and appendix E to 10 
CFR part 50, paragraph IV.3. Paragraph IV.3 requires licensees to use 
ETEs in the formulation of PARs and to provide ETEs to State and local 
governmental authorities for use in developing offsite protective 
action strategies. Because of the low probability of DBAs or other 
credible events that would be expected to exceed the limits of EPA PAGs 
offsite and the available time for event mitigation, as well as the 
minimal expected offsite response required, the proposed rule would not 
require licensees with PDEPs to maintain ETEs (see section ``PSEP 
Evacuation Time Estimate Studies'' in this document for additional 
discussion regarding the need for ETEs post-shutdown).
PDEP Emergency Facilities and Equipment
    Currently, appendix E to 10 CFR part 50, paragraph IV.E requires 
licensees to maintain and describe adequate provisions for emergency 
facilities and equipment, including equipment at the site for personnel 
monitoring, equipment for radiological assessment, facilities and 
supplies for decontaminating onsite individuals, first aid facilities 
and medical supplies, arrangements for qualified medical service 
providers and the transportation of contaminated injured individuals, 
and arrangements for the treatment of individuals injured in support of 
licensed activities. Decommissioning licensees have not received 
exemptions or license amendments for these requirements to date, and 
the NRC has determined that licensees with PSEPs and PDEPs would still 
need to maintain these capabilities under proposed Sec.  
50.200(c)(1)(v). Appendix E to 10 CFR part 50, paragraph VI.E.8 further 
includes emergency response facility requirements for a TSC, OSC, and 
EOF.
    For licensees with PDEPs, there is no longer a need for separate, 
dedicated facilities. The functions of the control room, TSC, OSC, and 
EOF could be combined into one or more locations while still adequately 
protecting public health and safety. Proposed Sec.  50.200(c)(1)(v)(H) 
would require licensees with PDEPs to establish a facility from which 
effective direction can be given and effective control can be exercised 
during an emergency. Because of the low probability of DBAs or other 
credible events that would be expected to exceed the limits of EPA PAGs 
offsite and the available time for event mitigation, the significantly 
reduced staff, and the minimal expected response required, offsite 
response would not be required at an EOF. Onsite actions may be 
directed from the control room or other location, without the 
requirements imposed on a TSC or EOF. Proposed Sec.  50.200(b)(3) would 
remove reference to the EOF as a location for response. Additionally, 
under this proposed rule, a separate OSC would no longer be required to 
meet its original purpose of an assembly area for plant logistical 
support during an emergency. The OSC function could be incorporated 
into another facility. The NRC is issuing DG-1346 for public comment in 
conjunction with this proposed rule; DG-1346 provides one acceptable 
method for meeting the proposed emergency response facility 
requirements for PDEPs.
    Appendix E to 10 CFR part 50, paragraph IV.E.9 addresses 
requirements for emergency communications systems, plans, and 
arrangements, including communications with OROs and between the 
control room, TSC, and EOF. Proposed Sec.  50.200(c)(1)(v)(I) would 
require licensees with PDEPs to continue to maintain an onsite and an 
offsite communications system with backup power and communication plans 
with arrangements for emergencies. These arrangements would need to 
include provisions for communications with contiguous State and local 
governments, Federal emergency response organizations, NRC 
Headquarters, and the appropriate NRC Regional Office Operations 
Center. Because licensees with PDEPs may combine emergency response 
facilities, the current requirements for communication between 
emergency response facilities would not apply to these licensees. Under 
the proposed rule, communications with State and local emergency 
operations centers would be maintained to allow coordination of 
assistance onsite if required.
PDEP Hostile Action
    Under this proposed rule, hostile action requirements would not 
apply to licensees with PDEPs. The definition of ``hostile action'' in 
appendix E to 10 CFR part 50, paragraph IV.A.7 applies

[[Page 12277]]

here to the capability of implementing EP during hostile action events. 
However, in the statement of considerations (SOC) for the 2011 EP Final 
Rule, the NRC excluded non-power reactors from the definition of 
``hostile action'' because a non-power reactor as defined in Sec.  
50.2, ``Definitions,'' is not a nuclear power plant, and a regulatory 
basis had not been developed to support the inclusion of non-power 
reactors in the definition of ``hostile action.'' A licensee with a 
PDEP would be similar to a non-power reactor in that both have a low 
likelihood of a credible accident resulting in radiological releases 
requiring response actions offsite. Additionally, regardless of how a 
disruption to the SFP cooling occurs, the spent fuel would take longer 
than 10 hours to heat up to ignition temperature, providing adequate 
time to coordinate a response between the ERO and law enforcement 
officials. As such, licensees with PDEPs would not fall within the 
scope of ``hostile action,'' and enhancements to EP in response to 
hostile action, such as alternative facilities for the staging of ERO 
personnel, protection of onsite personnel, and challenging drills and 
exercises involving hostile action, would not be warranted.
    Although this rationale justifies the exclusion of licensees with 
PDEPs from the definition of ``hostile action'' and its related 
requirements (including conducting hostile action exercises) as they 
apply to EP, elements for security-based events would still be 
maintained for these facilities, including EALs for security-based 
events. Under the proposed rule, licensees with PDEPs would be required 
to identify ORO resources that would respond to a security event, and 
the assistance licensees expect from those resources would be 
maintained in PDEPs. For physical security, the objective for these 
facilities relates to protection of the spent fuel against sabotage. A 
level of security commensurate with the consequences of a sabotage 
event is required and is evaluated on a site-specific basis. The 
severity of the consequences declines as fuel ages and thereby removes 
over time the underlying concern that a sabotage attack, under the 
current definition, could cause offsite radiological consequences.
PDEP Drills and Exercises
    Section 50.47(b)(14) and appendix E to 10 CFR part 50, paragraph 
IV.F provide training and drill and exercise requirements for nuclear 
power reactor licensees. Consistent with the language of Sec.  
50.47(b)(14), the proposed PDEP planning standard under Sec.  
50.200(b)(14) would require licensees with PDEPs to conduct periodic 
exercises to evaluate major portions of emergency response 
capabilities, to conduct periodic drills to develop and maintain key 
skills, and to correct deficiencies identified as a result of exercises 
and drills. The NRC is proposing new drill and exercise requirements 
for licensees with PDEPs under Sec.  50.200(c)(1)(vi) that differ from 
the existing requirements under appendix E to 10 CFR part 50, paragraph 
IV.F to account for changes in principal functional areas, offsite 
radiological emergency response requirements, offsite PAR requirements, 
and the spectrum of possible accidents.
    Similar to the requirements in appendix E to 10 CFR part 50, 
paragraph IV.F.1, proposed Sec.  50.200(c)(1)(vi)(A) would require 
licensees with PDEPs to describe in their emergency plan provisions for 
the training of employees, exercising the emergency plan by conducting 
periodic drills, and including other individuals in training and drills 
when those individuals may provide assistance in the event of a 
radiological emergency. Under the proposed rule, the emergency plan 
would be required to describe the training to be provided to several 
categories of emergency personnel, with the exception of licensees' 
headquarters support personnel. Headquarters support personnel would no 
longer be required to augment the ERO for licensees with PDEPs. 
Licensees with PDEPs would need to continue to make available a 
radiological orientation training program for local services personnel 
expected to provide support onsite. Because of the time available to 
coordinate offsite agency notification to the public, licensees with 
PDEPs would not be required to provide radiological orientation 
training to local news media persons. Similar to the requirements in 
appendix E to 10 CFR part 50, paragraph IV.F.2, proposed Sec.  
50.200(c)(1)(vi)(B) would require licensees with PDEPs to continue to 
describe provisions for the conduct of EP exercises that test the 
adequacy of timing and content of implementing procedures and methods, 
test emergency equipment and communications networks, and ensure 
emergency organization personnel are familiar with their duties. 
Licensees with PDEPs would not be required to test the public alert and 
notification system during their exercises because the system would no 
longer be required, as discussed previously in this document.
    Proposed Sec.  50.200(c)(1)(vi)(B)(1) and (2) would require 
licensees with PDEPs to conduct an exercise within two years of the 
last exercise of the onsite emergency plan conducted under paragraph 
IV.F.2.b of appendix E to 10 CFR part 50 and to continue to conduct 
subsequent biennial exercises of onsite emergency plans. Licensees with 
PDEPs would need to continue to conduct drills during the intervals 
between biennial exercises involving a combination of principal 
functional areas. The principal functional areas of emergency response 
for licensees with PDEPs would include all of the areas currently 
listed under appendix E to 10 CFR part 50, paragraph IV.F.2.b, with the 
exception of protective action development and protective action 
decision making (see discussion on protective action recommendations in 
the section ``PDEP Offsite Radiological Protective Action 
Recommendations'' in this document).
    Similar to the requirements in appendix E to 10 CFR part 50, 
paragraph IV.F.2.f, proposed Sec.  50.200(c)(1)(vi)(B)(4) would require 
licensees with PDEPs to conduct remedial exercises if the emergency 
plan is not satisfactorily tested during the biennial exercise. Like 
appendix E to 10 CFR part 50, paragraph IV.F.2.g, proposed Sec.  
50.200(c)(1)(vi)(B)(5) would require licensees with PDEPs to provide 
for formal critiques of exercises, drills, and training that provide 
performance opportunities to develop, maintain, or demonstrate key 
skills and to correct weaknesses or deficiencies identified in a 
critique.
    Proposed Sec.  50.200(c)(1)(vi)(B)(6) would require licensees with 
PDEPs to continue to use drills and exercise scenarios that provide 
reasonable assurance that anticipatory responses will not result from 
preconditioning of participants and that emphasize coordination among 
onsite and offsite response organizations. Unlike the current 
requirements under appendix E to 10 CFR part 50, paragraphs IV.F.2.b, 
IV.F.2.i, and IV.F.2.j, licensees with PDEPs would not be required to 
submit exercise scenarios 60 days before use in an exercise, 
demonstrate that exercise scenarios include a wide spectrum of 
radiological releases and events, or vary exercise scenarios across an 
eight calendar year exercise cycle to allow for the demonstration of 
responses to specified scenario elements, respectively. These 
requirements would no longer apply due to the limited types of events 
that could occur. The previously routine progression to a General 
Emergency, or even a Site Area Emergency, in nuclear power reactor site 
scenarios is not applicable for licensees with PDEPs.

[[Page 12278]]

    The NRC is issuing DG-1346 for public comment in conjunction with 
this proposed rule; DG-1346 provides one method acceptable to the NRC 
for licensees with PDEPs to comply with the proposed drill and exercise 
requirements.
PDEP Offsite Response Organization Participation in Drills and 
Exercises
    Appendix E to 10 CFR part 50, paragraph IV.F and Sec.  50.47(b)(14) 
include requirements for periodic EP drills and exercises for 
licensees. Appendix E to 10 CFR part 50, paragraphs IV.F.2.c and 
IV.F.2.d requires offsite radiological emergency plans for each site to 
be exercised biennially with full participation by offsite authorities 
having a role under the radiological response plan. Appendix E to 10 
CFR part 50, paragraphs IV.F.2.f and IV.F.2.h address State and local 
participation in remedial exercises and refusal of State and local 
governments to participate. Because no action is required from State 
and local government organizations in response to events other than 
firefighting, law enforcement, and ambulance/medical services, the 
requirements related to ORO participation in radiological drills and 
exercises would no longer be applicable to licensees with PDEPs. 
Proposed Sec.  50.200(c)(1)(vi)(B) would remove the requirement to 
exercise offsite emergency plans once the NRC has docketed the 
licensee's certifications required under Sec.  50.82(a)(1) or Sec.  
52.110(a) and the licensee elects under Sec.  50.54(q)(7)(ii) to 
transition to a PDEP. For facilities that are located either on the 
same site or on adjacent contiguous sites to reactors that continue to 
operate, the offsite emergency plans would continue to be exercised as 
required under appendix E to 10 CFR part 50, paragraph IV.2.f, until 
all reactors at the site cease operation and transition to a PDEP. 
Similar to the requirements under appendix E to 10 CFR part 50, 
paragraph IV.2.f.e, under proposed Sec.  50.200(c)(1)(vi)(B)(3), a 
licensee with a PDEP would be required to enable any State or local 
government to participate in the licensee's drills and exercises when 
requested.
6. Independent Spent Fuel Storage Installation-Only Emergency Plans
    In order to transition to an IOEP, the NRC is proposing under Sec.  
50.54(q)(7)(iii) that licensees must have all spent fuel in dry cask 
storage. Licensees with an IOEP must follow and maintain the 
effectiveness of an emergency plan that meets the requirements in Sec.  
72.32(a).
    Licensees with 10 CFR part 72 specific licenses or under the 10 CFR 
part 72 general license may hold an IOEP. A licensee with all of its 
spent fuel in dry cask storage that terminates its 10 CFR part 50 or 10 
CFR part 52 license must first obtain a 10 CFR part 72 specific license 
before transitioning to the EP requirements already provided in Sec.  
72.32(a). A licensee maintaining its 10 CFR part 50 or 10 CFR part 52 
license, and thus its 10 CFR part 72 general license authorized under 
Sec.  72.210, ``General license issued,'' may opt to change its EP 
program to align it with the requirements of Sec.  72.32 once all spent 
fuel is transferred to dry cask storage. In addition, licensees under 
the 10 CFR part 72 general license would need to continue to comply 
with all applicable 10 CFR part 50 and 10 CFR part 52 requirements 
until the 10 CFR part 50 or 10 CFR part 52 license is terminated 
consistent with Sec.  50.82 or Sec.  52.110, respectively.
    Under proposed Sec.  50.54(q)(7)(iii), a licensee may choose not to 
comply with the EP requirements under Sec.  72.32 and may instead 
maintain a PSEP or PDEP. Licensees with dry cask storage must ensure 
that the emergency plan includes an appropriate EAL scheme.
    The NRC is issuing DG-1346 for public comment in conjunction with 
this proposed rule; DG-1346 provides guidance on transitioning to and 
maintaining an IOEP.
7. All Spent Fuel Removed From Site
    During the fourth level of decommissioning, the proposed rule would 
allow a licensee to terminate its EP program under proposed Sec.  
50.54(q)(7)(iv) or proposed Sec.  72.44(f). Once all spent fuel has 
been permanently removed from the site, the site no longer poses any 
risk of a radiological release. The licensee must then continue to 
follow its PSDAR submitted under Sec.  50.82 until decommissioning is 
completed.
8. Changes to Emergency Plans
    Existing Sec.  50.54(q)(2) requires nuclear power reactor licensees 
to follow and maintain the effectiveness of an emergency plan that 
meets the planning standards in Sec.  50.47(b) and the requirements in 
appendix E to 10 CFR part 50. In addition, Sec.  50.54(q)(3) contains 
the conditions under which the licensee may make changes to its 
emergency plan without prior application to and approval by the NRC, 
provided that the changes do not reduce the effectiveness of the plan 
and that the plan, as changed, continues to meet the standards in Sec.  
50.47(b) and the requirements in appendix E to 10 CFR part 50. The NRC 
is proposing to add several new paragraphs that, similar to Sec.  
50.54(q)(2) and (3), would reference the requirements that emergency 
plans for decommissioning nuclear power reactors must meet and the 
process for making these plan changes. In particular, proposed Sec.  
50.54(q)(7) would reference the applicable emergency plan requirements 
after the NRC dockets a licensee's certifications under Sec.  
50.82(a)(1) or Sec.  52.110(a), and proposed Sec.  50.54(q)(8) would 
stipulate the conditions under which decommissioning nuclear power 
reactor licensees may make changes to their emergency plans without 
prior approval by the NRC. The NRC also would revise Sec.  50.54(q)(1) 
to clarify that the definitions in paragraph (q) apply to only 
paragraph (q).
    The existing change process under Sec.  50.54(q) does not establish 
whether a proposed change would impact the agency's determination that 
there is reasonable assurance that a licensee can and will take 
adequate protective measures in the event of a radiological emergency; 
the change process establishes only whether the licensee has the 
authority to implement the proposed change without prior NRC approval. 
The change process uses the characteristic ``reduction in 
effectiveness'' to exclude from the requirement to seek prior NRC 
approval those changes that would likely not reduce the effectiveness 
of the licensee's emergency plan. Because these changes would not 
reduce the effectiveness of the plan, the NRC expects that the changes 
should not have an impact on the agency's reasonable assurance 
determination. A licensee's determination that a proposed change would 
reduce the effectiveness of the emergency plan does not mean that the 
licensee could not or would not implement adequate protective measures 
to protect public health and safety in the event of a radiological 
accident, but only that prior NRC review is required to evaluate the 
impact of the change on the reasonable assurance determination. As part 
of routine oversight, the NRC screens emergency plan changes, including 
EAL changes, and reviews a sample of changes documented in reports 
submitted under Sec.  50.54(q)(5) that could potentially reduce 
effectiveness. These reviews do not constitute the NRC's approval of 
the plan changes, and all such changes remain subject to future 
inspection and enforcement actions. The NRC documents its approval of 
plan changes under Sec.  50.54(q)(4) in its decisions to grant license 
amendment requests.

[[Page 12279]]

    The licensee cannot properly evaluate a proposed change to the 
emergency plan if it has not considered the basis for the NRC's 
approval of the original plan or the basis for any subsequent changes 
to the plan--whether those changes were approved by the NRC or 
implemented by the licensee without prior NRC approval under Sec.  
50.54(q). Regulatory Guide (RG) 1.219, Revision 1, ``Guidance on Making 
Changes to Emergency Plans for Nuclear Power Reactors'' (ADAMS 
Accession No. ML16061A104), describes a method that the NRC considers 
acceptable to implement the requirements in Sec.  50.54(q) as they 
relate to EP and specifically to making changes to emergency response 
plans. As provided in RG 1.219, the licensee should consider its 
licensing basis to inform a Sec.  50.54(q) evaluation, and, 
principally, applicable regulatory requirements, which are binding on 
the licensee unless the NRC explicitly exempts the licensee from them. 
The NRC is issuing DG-1346 for public comment in conjunction with this 
proposed rule to provide guidance for decommissioning nuclear power 
reactors in evaluating changes to emergency plans under proposed Sec.  
50.54(q).
    The change process is meant to ensure that emergency plans are 
maintained up to date and that the level of planning does not fall 
below the standards to which the licensee has committed. The 
regulations in Sec.  50.54(q) define ``reduction in effectiveness'' as 
a change in an emergency plan that results in reducing the licensee's 
capability to perform an emergency planning function in the event of a 
radiological emergency. ``Emergency planning function'' is currently 
defined as a capability or resource necessary to prepare for, and 
respond to, a radiological emergency, as established in the planning 
standards of Sec.  50.47(b) and the elements of appendix E to 10 CFR 
part 50, section IV. The NRC is proposing to remove the references to 
the planning standards of Sec.  50.47(b) and appendix E to 10 CFR part 
50 from this definition because this proposed rule would establish 
alternative emergency planning standards under proposed Sec.  50.200, 
and the NRC does not consider the references essential to the 
definition.
    When the NRC considers exemptions from EP requirements for a 
decommissioning nuclear power reactor licensee, the NRC considers 
whether there are special circumstances present as defined in Sec.  
50.12(a)(2). In particular, the NRC determines whether application of 
the EP regulations for which exemptions are under consideration in the 
particular circumstances would not serve their underlying purpose or 
are not necessary to achieve their underlying purpose, which is to 
provide reasonable assurance that adequate protective measures can and 
will be taken in the event of a radiological emergency. Once the NRC 
grants a licensee exemptions from EP requirements, the exempted 
regulations no longer apply to the licensee. The licensee may need to 
submit a separate license amendment request if the planned changes 
conflict with an element of the current licensing basis. If not, the 
licensee need not submit a separate license amendment request for NRC 
approval of the emergency plan changes unless the plan changes go 
beyond those resulting from the exemptions granted. The NRC intends 
that this proposed rule would establish clear regulatory requirements 
for EP, reducing the need to request certain exemptions. As such, the 
NRC is proposing to add Sec.  50.54(q)(8) to establish the process for: 
(1) Transitions from one decommissioning level's EP planning standards 
and requirements to the next level's EP planning standards and 
requirements, and (2) changes to emergency plans within a 
decommissioning level.
    In considering a graded approach to EP, the NRC recognizes that a 
transition between the EP planning standards and requirements of each 
decommissioning level is not equivalent to making changes to the 
emergency plan within a level. The transition between the EP planning 
standards and requirements of each decommissioning level is 
fundamentally a licensee's commitment to a different set of EP 
standards and associated emergency planning functions, and the change 
process should facilitate this transition.
    For transitions from one decommissioning level to the next, the NRC 
would require licensees to establish emergency plans that meet the EP 
planning standards and requirements of the next level. The transition 
is optional, and a licensee that maintains its current level of 
emergency planning would satisfy the requirements of the next level; 
however, doing so would mean maintaining emergency planning functions 
above the commensurate level of planning for the risk involved. Under 
the proposed Sec.  50.54(q)(8), a licensee would be able to make 
changes to the emergency plan to commit to the EP planning standards 
and requirements of the next decommissioning level (i.e., PSEP, PDEP, 
or IOEP) using the Sec.  50.54(q)(3) change process, but would only 
need to consider whether the changes meet the next level's planning 
standards and requirements. Licensees making changes to their emergency 
plans to commit to the EP planning standards and requirements of a 
decommissioning level would not be required to determine if the changes 
are reductions in effectiveness. Instead, the NRC would have already 
made this determination through its issuance of the regulations 
promulgating the EP planning standards and requirements of the 
decommissioning levels. The NRC's proposed regulatory approach to 
transitions between EP decommissioning levels does not go beyond the 
authority currently granted to licensees to make changes to their 
emergency plan under Sec.  50.54(q)(3). Additionally, any change to the 
emergency plan that is not made to comply with the EP planning 
standards and requirements of the next decommissioning level would 
require a licensee to make a determination as to whether the change 
would be a reduction in effectiveness.
    After the Three Mile Island accident in 1979, the NRC issued a 
final rule (45 FR 55402; August 19, 1980) (1980 EP Final Rule) that 
included Sec.  50.54(u), which required licensees to upgrade their 
emergency plans to meet the then-new planning standards of Sec.  
50.47(b) and requirements in appendix E to 10 CFR part 50 and to submit 
those plans to the NRC. In the 2011 EP Final Rule, the NRC removed and 
reserved Sec.  50.54(u). The NRC's proposed approach to transitions 
between EP planning standards and requirements of decommissioning 
levels is analogous to the approach taken by the NRC when the 16 EP 
planning standards went into effect in 1980 (see ``Reasonable Assurance 
and Offsite Radiological Emergency Preparedness'' section in this 
document). Under this approach, the NRC would not be relinquishing its 
oversight authority, as some commenters on the ANPR and draft 
regulatory basis supposed. As proposed, Sec.  50.54(q)(8)(i) would 
require initial emergency plan changes made to transition between EP 
decommissioning levels to be submitted to the NRC at least 60 days 
prior to implementation, and emergency plans would remain subject to 
future inspection and enforcement. The proposed submittal is not 
intended to be a licensing action. It would provide a current copy of 
the emergency plan to the NRC prior to implementation in support of 
future inspection activities. This submittal would provide an 
opportunity for the NRC to assure that the licensee maintains the 
effectiveness of its emergency plan. Subsequent emergency plan changes 
would need to follow the

[[Page 12280]]

existing change control process under Sec.  50.54(q)(3) and (4). 
Hearing rights would not attach to transitions between EP 
decommissioning levels; however, the public has the opportunity to 
comment on the graded EP planning standards and requirements themselves 
in response to this proposed rule and the drafts of the supporting 
guidance documents. In addition, all emergency plan changes submitted 
under Sec.  50.54(q)(5) and proposed Sec.  50.54(q)(8) would be 
publicly available.
    In addition to the general requirements in proposed Sec.  
50.54(q)(8)(i) governing transitions between EP decommissioning levels, 
proposed Sec.  50.54(q)(8) would address changes specific to SSCs and 
EALs. Proposed Sec.  50.54(q)(8)(ii) would specify that, for SSCs that 
are no longer needed to provide support for an emergency planning 
function (as defined under proposed Sec.  50.54(q)(1)(iii)), a licensee 
may make a determination under Sec.  50.54(q)(3) that emergency plan 
changes are not a reduction in effectiveness if the updated FSAR 
demonstrates that these SSCs are no longer required to be in service 
due to the decommissioning status of the facility. Proposed Sec.  
50.54(q)(8)(iii) would state that changes to EALs based on plant 
conditions that are not physically achievable or instrumentation that 
is no longer in service due to the transition to decommissioning are 
not reductions in effectiveness provided that a Sec.  50.54(q)(3) 
evaluation demonstrates that the change does not reduce the capability 
of taking timely and appropriate protective actions. The NRC is 
proposing these requirements to provide clarity on Sec.  50.54(q)(3) 
evaluations and alleviate the burden on licensees from submitting 
emergency plan changes that result from SSCs and instrumentation that 
are no longer required to be in service due to decommissioning.
    After the implementation of a PSEP, PDEP, or IOEP, licensees would 
be required by proposed Sec.  50.54(q)(7)(i) to continue to follow and 
maintain the effectiveness of the plan and by proposed Sec.  
50.54(q)(8)(i)-(iii) to comply with the change process described under 
existing Sec.  50.54(q)(3) and (q)(4). Therefore, licensees would be 
allowed to make changes to these emergency plans without prior 
application to and approval by the NRC, provided that the changes would 
not reduce the effectiveness of the plan and that the plan, as changed, 
would continue to meet the EP planning standards and requirements for 
the applicable decommissioning level. Current Sec.  50.54(q)(5) would 
require decommissioning licensees to submit to the NRC a report of each 
such change within 30 days after the change is put into effect. And, 
consistent with current requirements, decommissioning licensees would 
have to submit changes that would reduce the effectiveness of the plan 
for prior NRC review and approval in accordance with Sec.  50.54(q)(4) 
so that the NRC could make the requisite reasonable assurance 
determination. For subsequent emergency plan changes once all fuel is 
in dry cask storage (i.e., for changes to an IOEP), proposed Sec.  
50.54(q)(8)(i) would allow licensees to follow the change process under 
Sec.  72.44(f).
    The proposed amendments to the regulatory change process are 
necessary because:
     The regulation in existing Sec.  50.54(q)(2), which 
provides that a licensee must follow and maintain the effectiveness of 
the emergency plan, should continue to apply in order to ensure that 
emergency plans are followed and kept up to date.
     The existing Sec.  50.54(q) change process and the 
associated regulatory guidance currently do not address how a licensee 
could change its emergency plans to comply with the emergency plan 
standards as the licensee transitions to each level of decommissioning.
     This proposed rule would allow the NRC to maintain, 
through a regulatory change process, reasonable assurance that a 
licensee can and will take adequate protective measures in the event of 
a radiological emergency.
    The proposed amendments to Sec.  50.54(q), and related regulatory 
guidance, would ensure that licensees would maintain the effectiveness 
of the emergency plans. Emergency plans that comply with the proposed 
graded EP planning standards and requirements would continue to provide 
reasonable assurance that adequate protective measures can and will be 
taken in the event of a radiological emergency. Any plan that did not 
meet these standards and requirements and, if applicable, the reduction 
in effectiveness criterion, would be subject to inspection and 
enforcement actions. The proposed approaches to transitioning between 
EP decommissioning levels and to making emergency plan changes within 
decommissioning levels would provide an efficient and effective 
regulatory change process and would promote consistent and predictable 
implementation and enforcement.
9. Program Element Review Under Sec.  50.54(t)
    Under current Sec.  50.54(t), licensees must conduct reviews of EP 
program elements either: (1) At intervals not to exceed 12 months or 
(2) as necessary, based on an assessment by the licensee against 
performance indicators and as soon as reasonably practicable after a 
change occurs in personnel, procedures, equipment, or facilities that 
potentially could adversely affect EP. If a licensee chooses the second 
option, it must still review all program elements at least once every 
24 months. For several reasons, the proposed rule would provide 
decommissioning licensees with an alternative approach to reviewing EP 
program elements.
    First, the NRC expects licensees to remain in the first level of 
decommissioning (i.e., with a PSEP) for less than 24 months, and the 
scope of a PSEP is largely unchanged from the scope of an operating 
reactor's emergency plan. Conversely, the second level of 
decommissioning (i.e., licensees with a PDEP) will involve more 
significant changes, and the NRC anticipates that licensees would 
remain in the second level of decommissioning for a longer period of 
time. Therefore, in order to support program continuity and minimize 
changes during the transition to a PDEP, the NRC is proposing to amend 
Sec.  50.54(t) such that, starting after licensees enter the second 
level of decommissioning, licensees would be able to conduct program 
element reviews under Sec.  50.54(t) at intervals not to exceed 24 
months (rather than 12 months) without conducting an assessment against 
performance indicators. The NRC is proposing to add new Sec.  
50.54(t)(3) to remove the requirement to conduct periodic EP program 
element reviews once all fuel is in dry cask storage (i.e., the third/
IOEP level of decommissioning), consistent with the EP requirements for 
ISFSIs under 10 CFR part 72.
10. Reasonable Assurance and Offsite Radiological Emergency 
Preparedness
    The regulations in Sec. Sec.  50.47 and 50.54, ``Conditions of 
licenses,'' prescribe how the NRC will make licensing decisions or take 
appropriate enforcement actions by using findings of reasonable 
assurance that adequate protective measures can and will be taken to 
protect public health and safety in the event of a radiological 
emergency. Every 10 CFR part 50 or 10 CFR part 52 license includes as a 
condition of the license the requirements of Sec.  50.54(s)(2)(ii) and 
(s)(3) regarding findings and determinations of reasonable assurance.

[[Page 12281]]

The NRC has the authority and responsibility to make licensing findings 
on the overall adequacy of onsite and offsite emergency planning and 
preparedness. Commensurate with the NRC's responsibility to make such 
findings, the NRC has the authority to collect, review, and evaluate 
any information it needs to support its findings on EP. If available, 
the NRC must consider FEMA findings and determinations regarding the 
status of offsite EP. The relationship between the NRC and FEMA 
concerning findings of reasonable assurance of offsite EP is based on 
the Atomic Energy Act of 1954, as amended (AEA); the Energy 
Reorganization Act of 1974, as amended; the NRC Authorization Act for 
Fiscal Year 1980, the NRC's regulations; a memorandum of understanding 
between the two agencies (``Memorandum of Understanding Between the 
Department of Homeland Security/Federal Emergency Management Agency and 
Nuclear Regulatory Commission Regarding Radiological Emergency 
Response, Planning, and Preparedness'') first established in 1980 and 
last updated in 2015 (ADAMS Accession No. ML15344A371); and case law 
(e.g., Massachusetts v. United States, 856 F.2d 378, 382 (1st Cir. 
1988); State of Ohio ex rel. Celebrezze v. NRC, 868 F.2d 810, 815-16 
(6th Cir. 1989)).
    Not all licensing decisions involving EP require findings and 
determinations on the adequacy of offsite plans. In the EP regulations 
for research and test reactors, fuel cycle facilities, and ISFSIs, 
there are no regulatory standards or requirements for offsite 
radiological emergency plans. As such, FEMA findings and determinations 
are not needed to support NRC licensing decisions for such facilities. 
The absence of NRC regulatory standards for offsite radiological EP at 
those facilities does not imply that offsite emergency planning, in 
general, is not adequate to protect the public health and safety. In 
addition, the support provided by offsite organizations does not 
automatically necessitate the need for findings and determinations. In 
the Low Power Rule (47 FR 30232; July 13, 1982), the NRC concluded that 
findings and determinations on the state of offsite EP were not needed 
to support issuance of a license for fuel loading and low-power testing 
because there was sufficient time (at least 10 hours) in which to take 
action to protect the public in even the worst-case accident. 
Additionally, the NRC has concluded in its review of several EP 
exemption requests for permanently shutdown and defueled nuclear power 
reactor licensees that formal offsite radiological emergency plans are 
not necessary after the spent fuel in the SFP has sufficiently decayed 
such that it would not reach zirconium fuel cladding ignition 
temperature within 10 hours under adiabatic heatup conditions. As a 
result, continued consultation with FEMA regarding the adequacy of the 
offsite plans was also no longer necessary.
    For decommissioning nuclear power reactors, the NRC is proposing 
that if regulatory standards for offsite radiological EP are not 
required, then findings and determinations on the adequacy of offsite 
plans would not be needed in order for the NRC to make determinations 
regarding reasonable assurance under Sec.  50.54(s)(2)(ii). Therefore, 
the NRC is proposing changes to Sec.  50.54(s)(3) to clarify that FEMA 
findings and determinations are only necessary when the NRC's planning 
standards apply to offsite radiological emergency response plans. 
Additionally, the NRC staff is proposing to add a new Sec.  50.47(f) to 
clarify when the 16 planning standards apply to offsite radiological 
emergency plans. A licensee must follow and maintain the effectiveness 
of its emergency plan if the NRC is to continue to find, under Sec.  
50.54(s)(2)(ii), that there is reasonable assurance that adequate 
protective measures can and will be taken in the event of a 
radiological emergency, and Sec.  50.54(s)(2)(ii) would continue to 
apply to licensees as a condition of the license during 
decommissioning.
    In 1979, the NRC predicated the rationale for the EP proposed rule 
(44 FR 75167; December 19, 1979) on the Commission's considered 
judgment in the aftermath of the accident at Three Mile Island. At the 
time, the Commission concluded that it must be in a position to know 
that offsite governmental plans had been reviewed and found adequate. 
However, the Commission also noted that the proposed rule was 
considered an interim upgrade of NRC emergency planning regulations 
based on past experience, and that further changes to emergency 
planning regulations may be proposed as more experience is gained. The 
NRC viewed the 1979 proposed rule as a first step in improving 
emergency planning.
    The NRC recognizes the experience gained from implementing its 
regulations and also that significant advances in emergency planning 
have occurred over the decades following the accident at Three Mile 
Island. In particular, the terrorist attacks on September 11, 2001, led 
to the establishment of the U.S. Department of Homeland Security, and 
lessons learned from disasters such as Hurricane Katrina have resulted 
in a national effort to prepare for and respond to all hazards and 
disasters. Homeland Security Presidential Directive 5, ``Management of 
Domestic Incidents'' (February 28, 2003), and Presidential Policy 
Directive (PPD)-8, ``National Preparedness'' (issued March 30, 2011), 
established national initiatives for a common approach to preparedness 
and response. These initiatives include the National Incident 
Management System, National Preparedness Goal, Core Capabilities, 
National Preparedness System, National Planning Frameworks, and the 
development of comprehensive preparedness guides and exercise 
methodologies.
    The PPD-8 directed the development of a national preparedness goal 
that identifies the core capabilities necessary for preparedness and a 
national preparedness system to guide activities that will enable the 
nation to achieve the goal. Core capabilities are intended to help 
coordinate and unify efforts, improve training and exercise programs, 
promote innovation, and ensure that the administrative, finance, and 
logistics systems are in place to support these capabilities. The PPD-8 
is aimed at facilitating an integrated, all-of-nation, capabilities-
based approach to preparedness, under the assumption that national 
preparedness is the shared responsibility of the ``whole community,'' 
which includes all levels of government, the private and nonprofit 
sectors, and individual citizens. Acknowledging the national 
preparedness goal, the NRC maintains the sole legal authority to 
establish any regulations it deems necessary to ensure the adequate 
protection of public health and safety from radiological events.
    For a decommissioning site, the licensee, as part of the whole 
community, will maintain radiological EP capabilities. Only in the 
highly unlikely event of a zirconium fire--in which mitigation actions 
were not successful--would there be a potential need to initiate 
response actions offsite. But unlike the EP planning basis for an 
operating reactor, within a few months of cessation of operations, 
there is no longer a potential need to provide for prompt protective 
actions in the event of an accident. Additionally, protective actions 
such as evacuation are not unique to radiological events and occur in 
response to other unique hazards such as chemical spills, fires, and 
natural disasters, and are often initiated without any pre-planning. In 
NUREG-0396, the NRC states that ``It has been, and continues to be the 
Federal position

[[Page 12282]]

that it is possible (but exceedingly improbable) that accidents could 
occur calling for additional resources beyond those that are identified 
in specific emergency plans developed to support specific individual 
nuclear facilities. Further, the NRC and Federal position has been and 
continues to be, that as in other disaster situations, additional 
resources would be mobilized by State and Federal agencies.''
    State and local governments are responsible for the protection of 
public health and safety (including at industrial sites like 
decommissioning reactors), and the NRC has high confidence in the 
ability of OROs to implement appropriate response actions when 
necessary. This confidence is further strengthened by the NRC's 
recognition of national-level efforts, in which the NRC participates, 
to improve the state of emergency planning at all levels of government 
and within the whole community. Consequently, for facilities licensed 
by the NRC where radiological hazards are unlikely to have an offsite 
impact, the risk posed by the remaining low-level hazard is somewhat 
analogous to that posed by non-nuclear hazards (e.g., train derailments 
or oil spills) that are addressed by all-hazards planning and not by a 
separate radiological emergency plan. In such conditions, there is 
reasonable assurance that appropriate response actions can and will be 
taken in the event of a radiological emergency, without the need for 
regulatory standards for offsite radiological emergency response plans 
and the associated FEMA findings and determinations that offsite plans 
are adequate and can be implemented.
11. Clean-Up of Regulations
    The NRC is proposing to remove obsolete dates for certain one-time 
actions that were required as part of the 2011 EP Final Rule and other 
obsolete dates. These actions are complete, and the requirements are no 
longer binding on any current licensee. The dates of requirements 
proposed to be removed are:
    (1) Section 50.54(s)(2)(ii), which allows the NRC to shut down 
nuclear power reactors that did not provide reasonable assurance that 
adequate protective measures would be taken in the event of a 
radiological emergency after April 1, 1981. There is no longer a need 
for the date requirement of this provision because any future 
determinations made under Sec.  50.54(s) will be after April 1, 1981. 
The NRC is proposing to delete ``after April 1, 1981'' and retain the 
remainder of the provision.
    (2) Paragraph 6 of appendix E to 10 CFR part 50, section I, which 
was used to promulgate specific compliance dates for the Tennessee 
Valley Authority Watts Bar Nuclear Plant that was under construction at 
the time of the 2011 EP Final Rule. Because the Watts Bar Nuclear Plant 
is now operational and subject to all current requirements for 
operating reactors, the NRC is proposing to delete this provision.
    (3) Appendix E to 10 CFR part 50, paragraph IV.4, which required 
nuclear power licensees to develop an ETE analysis using decennial data 
published within 365 days of the later date of the most recent 
decennial data or December 23, 2011. There is no longer a need for the 
date requirement of this provision because the date has expired. The 
NRC is proposing to delete ``of the later of the date of'' and ``or 
December 23, 2011'' from this provision.
    (4) Appendix E to 10 CFR part 50, paragraph IV.A.7, which required 
licensees to identify and describe the expected assistance from 
appropriate local, State, and Federal agencies during an emergency, 
including a hostile act, by June 23, 2014. The NRC is proposing to 
delete ``by June 23, 2014'' from this provision because the date has 
expired.
    (5) Appendix E to 10 CFR part 50, paragraph IV.A.9, which required 
licensees to conduct a detailed analysis by December 24, 2012, 
demonstrating that on-shift personnel are not assigned responsibilities 
that would prevent the timely performance of assigned functions in the 
emergency plan. The NRC is proposing to delete ``By December 24, 2012'' 
from this provision because the date has expired.
    (6) Appendix E to 10 CFR part 50, paragraph IV.B.1, which required 
licensees, by June 20, 2012, to establish EALs that include hostile 
action that may adversely affect the nuclear power plant. There is no 
longer a need for the date requirement of this provision because the 
date has expired. The NRC is proposing to remove ``By June 20, 2012'' 
and retain the remainder of the provision.
    (7) Appendix E to 10 CFR part 50, paragraph IV.C.2, which required 
licensees, by June 20, 2012, to establish and maintain capability to 
assess, classify, and declare an emergency condition within 15 minutes 
after indications that an EAL had been exceeded. There is no longer a 
need for the date requirement of this provision as the date has 
expired. The NRC is proposing to delete ``By June 20, 2012'' and retain 
the remainder of the provision.
    (8) Appendix E to 10 CFR part 50, paragraph D.4, which included 
compliance periods for the backup alert and notification capability 
requirements under appendix E to 10 CFR part 50, paragraph D.3, 
including a final deadline of June 22, 2015. The NRC is proposing to 
remove this paragraph because the dates in the paragraph have expired, 
and any future applicants required to comply with appendix E to 10 CFR 
part 50 would be required to comply with the requirements of appendix E 
to 10 CFR part 50, paragraph D.3.
    (9) Appendix E to 10 CFR part 50, paragraph IV.E.8.c, which 
required licensees' EOFs to have the capabilities required under the 
section by June 20, 2012. Because the date requirement of this 
provision has expired, the NRC is proposing to delete ``By June 20, 
2012'' from this provision.
    (10) Appendix E to 10 CFR part 50, paragraph IV.E.8.d, which 
required licensees to identify an alternative facility that would be 
accessible in the event of hostile action by December 23, 2014, with 
the exception of the capability for staging ERO personnel at the 
alternative facility and communications capabilities with emergency 
responses facilities, which had to be implemented by June 20, 2012. 
There is no longer a need for the date requirements of this provision 
as the dates have expired. The NRC is proposing to delete the deadlines 
for the implementation of this provision.
    (11) Appendix E to 10 CFR part 50, paragraph IV.F.2.d, which 
required licensees to fully participate in one hostile action by 
December 31, 2015. Because the date requirement of this provision has 
expired, the NRC is proposing to delete ``and should fully participate 
in one hostile action exercise by December 31, 2015'' from this 
provision.
    (12) Appendix E to 10 CFR part 50, paragraph IV.F.2.j, which 
required licensees to conduct a hostile action exercise for each of 
their sites no later than December 31, 2015. Because the date 
requirement of this provision has expired, the NRC is proposing to 
delete the requirement from this provision.
    (13) Appendix E to 10 CFR part 50, paragraph IV.I, which required 
licensees, by June 20, 2012, to provide a range of protective actions 
to protect onsite personnel during hostile action. Because the date 
requirement of this provision has expired, the NRC is proposing to 
delete ``By June 20, 2012'' from this provision.
    (14) Appendix E to 10 CFR part 50, paragraph VI.4.a, which required 
licensees to develop and submit an ERDS implementation plan to the NRC 
by October 28, 1991. There is no longer

[[Page 12283]]

a need for the date requirement of this provision because the date has 
expired. The NRC is proposing to delete ``by October 28, 1991'' from 
this provision.
    (15) Appendix E to 10 CFR part 50, paragraph VI.4.d, which required 
licensees to complete the implementation of the ERDS by February 13, 
1993, or before escalation to full power, whichever comes later. There 
is no longer a need for the date requirement of this provision because 
the date has expired. The NRC is proposing to delete ``by February 13, 
1993, or'' and ``whichever comes later'' from this provision and to 
continue to require licensees to submit an ERDS implementation plan to 
NRC before escalation to full power.
    The NRC is proposing to eliminate these completed one-time 
requirements in the interest of regulatory clarity. Eliminating these 
requirements would not relax any currently effective regulatory 
requirement or cause any regulatory burden for current or future 
licensees or applicants.
12. Revisions to Sec.  72.32
    The NRC proposes to amend Sec.  72.32(a) to address the 
applicability of that provision's requirement that an application for a 
specific license ISFSI must include an emergency plan that includes the 
information in Sec.  72.32(a)(1) through (16). The proposed amendment 
would clarify that the requirement applies when the proposed ISFSI 
would not be located on the site or within the exclusion area of a 
nuclear power reactor licensed under 10 CFR parts 50 or 52. A nuclear 
power reactor licensed under 10 CFR parts 50 or 52 could be under 
construction, operating, or in decommissioning. The proposed revisions 
would consolidate the current language and remove redundancies by using 
standardized language consistent with other amendments in this proposed 
rule.
    The NRC proposes to amend Sec.  72.32(c) to clarify that the 
nuclear power reactor referenced in that provision need not be 
authorized to operate for the ISFSI licensee to use the emergency plan 
requirements in Sec.  50.47 to meet the requirements of Sec.  72.32. 
Currently, Sec.  72.32(c) applies to ISFSI licensees located on the 
site or within the exclusion area of a nuclear power reactor that is 
licensed to operate. Because a nuclear power reactor licensee is not 
authorized to operate once the NRC dockets the certifications required 
under Sec.  50.82(a)(1) or Sec.  52.110(a), Sec.  72.32(c) could be 
read not to apply to an ISFSI licensee at a decommissioning reactor 
site. However, the current language of Sec.  72.32 allows an ISFSI 
licensee with a reactor emergency plan to use that emergency plan to 
meet the applicable requirements for an ISFSI emergency plan. 
Therefore, the proposed rule would clarify that, when the nuclear power 
reactor is under construction, operating, or in decommissioning, the 
ISFSI licensee could rely on the emergency plan requirements in 
appendix E to part 50 of this chapter and 10 CFR 50.47(b), or the 
requirements of 10 CFR 50.200(a) or 10 CFR 50.200(b), to meet the 
requirements of Sec.  72.32.

B. Physical Security

    The NRC's regulations governing physical security at a nuclear 
power reactor typically do not distinguish between an operating nuclear 
power reactor and a nuclear power reactor that is in a decommissioning 
status. However, the security risk profile presented by a 
decommissioning reactor decreases significantly from that of an 
operating nuclear power reactor due to the reduction in the number of 
target sets \5\ and the reduced consequences of radiological sabotage. 
The radiological consequences of a security event decrease as reactors 
transition through each of the following four levels of 
decommissioning: (1) Permanent cessation of operations and permanent 
removal of all fuel from the reactor vessel, (2) sufficient decay of 
fuel in the SFP such that it would not reach the zirconium fuel 
cladding ignition temperature within 10 hours under adiabatic heatup 
conditions, (3) transfer of all fuel to dry storage, and (4) removal of 
all fuel from the site. Decommissioning nuclear power reactor licensees 
have sought NRC approval of exemptions from, license amendments for, 
and alternative measures to, certain physical security regulatory 
requirements because of the reduction in the number of target sets and 
the reduced consequences of radiological sabotage as the nuclear power 
reactor site transitions through these levels. The NRC is proposing 
options to allow nuclear power reactor licensees to make certain 
commonly-requested changes to their physical security plans based on 
these decommissioning levels without requesting exemptions, alternative 
measures, or license amendments.
---------------------------------------------------------------------------

    \5\ A target set is the minimum combination of equipment or 
operator actions which, if all are prevented from performing their 
intended safety function or prevented from being accomplished, would 
likely result in radiological sabotage.
---------------------------------------------------------------------------

1. Security Plans
    Upon the cessation of operations and removal of all fuel from the 
reactor vessel, licensees typically seek to modify their security plans 
to reflect changes in site conditions. The NRC's regulations in Sec.  
50.54(p) establish processes that allow licensees to make changes to 
their security plans. Section 50.54(p)(1) requires licensees to seek 
NRC review and approval of any changes that result in a decrease in 
safeguards effectiveness of their security plans. Section 50.54(p)(2) 
allows licensees to make changes to their security plans without prior 
NRC approval provided that the changes do not decrease the safeguards 
effectiveness of the plan.
    The current regulations do not define the term ``decrease in 
safeguards effectiveness'' nor do they include examples of the types of 
changes that would constitute a decrease in safeguards effectiveness. 
Additionally, there is no definition of the term ``change.'' This lack 
of clear definitions has resulted in difficulties for licensees 
implementing security plan changes. For example, some licensees have 
implemented changes under Sec.  50.54(p)(2) that the NRC later 
determined decreased the safeguards effectiveness of their security 
plan. Similarly, some licensees have unnecessarily requested NRC review 
and approval of changes that did not decrease the safeguards 
effectiveness of their security plan.
    The NRC is proposing to revise Sec.  50.54(p) to include 
definitions of the terms ``change'' and ``decrease in safeguards 
effectiveness.'' The application of these definitions would be limited 
to the revised Sec.  50.54(p) and would apply to all 10 CFR part 50 and 
10 CFR part 52 licensees with operating, decommissioning, and/or 
decommissioned reactor units. The term ``change'' would be defined in a 
new Sec.  50.54(p)(1)(i) to mean an action that results in a 
modification of, addition to, or removal from, the licensee's security 
plans. The term ``decrease in safeguards effectiveness'' would be 
defined in a new Sec.  50.54(p)(1)(ii) to mean a change or series of 
changes to an element or component of the security plans referenced in 
Sec.  50.54(p)(2) that reduces or eliminates the licensee's ability to 
perform or maintain the capabilities established in Sec.  
73.55(b)(3)(i) without compensating changes to other security plan 
elements or components.
    Currently, decommissioning (and operating) reactor licensees use 
the Sec.  50.54(p)(2) process to implement changes that they have 
determined do not decrease the safeguards effectiveness of their 
security plans. The Sec.  50.54(p)(2) process requires that licensees 
submit a report of these

[[Page 12284]]

changes to the NRC. In addition to a description of these changes, 
reactor licensees have typically included in their report supplemental 
information demonstrating that such changes do not constitute a 
decrease in safeguards effectiveness. The submittal of this 
supplemental information in the reports has been voluntary. The NRC's 
practice is to review these reports to confirm that the licensee 
properly concluded that the changes would not decrease the safeguards 
effectiveness of their Commission-approved security plan. The submittal 
of supplemental information in the reports allows the NRC to verify in 
a timely manner that the change does not result in a decrease in the 
safeguards effectiveness of the plan. Without this supplemental 
information, the NRC could only make this determination through the 
inspection process. The NRC is proposing to require that reactor 
licensees include with the required Sec.  50.54(p)(2) report a summary 
of the analysis performed to determine that the change does not 
decrease safeguards effectiveness of the security plan. The summary 
must be sufficient to demonstrate that the change does not decrease the 
safeguards effectiveness of the plan.
2. Dry Cask Storage
    An ISFSI located at a nuclear power reactor site is typically 
licensed under a general license issued pursuant to subpart K of 10 CFR 
part 72. Under a general license, licensees are required to protect the 
SNF in the ISFSI in accordance with the physical security requirements 
in Sec.  73.55, ``Requirements for physical protection of licensed 
activities in nuclear power reactors against radiological sabotage,'' 
with the additional conditions and exceptions noted in Sec.  72.212, 
``Conditions of general license issued under Sec.  72.210.'' The NRC 
also licenses certain ISFSIs under a 10 CFR part 72 specific license. 
Consistent with Sec.  72.180, ``Physical protection plan,'' licensees 
holding a specific license are required to protect the SNF in the ISFSI 
in accordance with the physical security requirements in Sec.  73.51, 
``Requirements for the physical protection of stored spent nuclear fuel 
and high-level radioactive waste.'' Although the physical security 
requirements that apply to general license ISFSIs and specific license 
ISFSIs provide equivalent levels of protection, there are differences. 
For instance, Sec.  73.55 requires licensees to ensure they maintain 
the capability to detect, assess, interdict, and neutralize threats. 
Section 73.51 requires licensees to detect and assess threats and 
communicate with an appropriate response organization. The additional 
requirements in Sec.  73.55 that support interdiction and 
neutralization of threats is only one example of differences that lead 
to licensee requests for exemptions once all fuel has been placed in 
dry cask storage.
    As stated at the beginning of this section, decommissioning 
reactors typically transition through four distinct levels during 
decommissioning. Many decommissioning licensees have submitted license 
amendment requests, requests for exemptions, and requests for approval 
of alternative measures to remove Sec.  73.55 physical security 
requirements that are no longer applicable once the licensee enters the 
third decommissioning level when all SNF has been moved to a dry cask 
storage system.
    The need for license amendments, exemptions, and approvals of 
alternative measures imposes a regulatory burden upon both licensees 
and the NRC. Accordingly, the NRC is proposing that once all SNF has 
been placed in dry cask storage, licensees may elect to follow the 
proposed Sec.  72.212(b)(9)(vii) and protect a general license ISFSI in 
accordance with the physical security requirements in Sec.  73.51. The 
applicability section of Sec.  73.51 would also be amended to reflect 
this change. A licensee would be able to use the process established in 
the revised and renumbered Sec.  50.54(p)(3) to make this change and 
submit its revised physical security plan to the NRC. These security 
plans would have to continue to address the applicable security-related 
orders associated with an ISFSI that are conditions of the license. The 
NRC is also proposing conforming changes to Sec.  72.13, 
``Applicability,'' to reflect the requirements that would apply to a 
licensee that elects to follow the proposed Sec.  72.212(b)(9)(vii).
3. Significant Core Damage
    The prevention of significant core damage and spent fuel sabotage 
is a general performance objective of the reactor licensee physical 
protection program required by Sec.  73.55. During the first level of 
decommissioning, when the NRC has docketed a licensee's certifications 
that the reactor has permanently ceased operating and all fuel has been 
removed from the reactor vessel and placed in the SFP, there is no 
longer fuel in the core and therefore the risk to public health and 
safety from significant core damage has been removed. This reduced risk 
allows licensees to eliminate requirements to protect against 
significant core damage or train security and operational personnel to 
protect and respond to core damage events.
    The NRC is proposing that a licensee of a decommissioning nuclear 
power reactor no longer be required to meet the requirement in Sec.  
73.55(b)(3) to protect against significant core damage once the NRC has 
docketed a licensee's certifications that the reactor has permanently 
ceased operating and all fuel has been removed from the reactor vessel. 
The requirement in Sec.  73.55(b)(3) to protect against spent fuel 
sabotage remains in effect as long as spent fuel remains in the spent 
fuel pool.
4. Vital Areas
    A vital area (VA) is defined in Sec.  73.2, ``Definitions,'' as any 
area that contains vital equipment. Under Sec.  73.2, vital equipment 
means any equipment, system, device, or material, the failure, 
destruction, or release of which could directly or indirectly endanger 
public health and safety by exposure to radiation. The NRC also 
considers the equipment or systems that would be required to function 
to protect public health and safety following such a failure, 
destruction, or release to be vital. There are specific physical 
security requirements for the protection of VAs and vital equipment. 
The current regulation in Sec.  73.55(e)(9)(v) specifies that the 
reactor control room shall be considered a VA.
    The role of the reactor control room at an operating plant, as 
described in Criterion 19, ``Control room,'' of appendix A, ``General 
Design Criteria for Nuclear Power Plants,'' to 10 CFR part 50, is to 
provide a protected space from which actions can be taken to operate 
the nuclear power plant safely without interruption under normal or 
accident conditions. For a permanently shutdown and defueled nuclear 
power reactor, the vital equipment associated with operating the 
reactor vessel is no longer needed. The remaining vital equipment 
(e.g., associated with SFP cooling) may no longer be needed or may be 
relocated to a VA separate from the reactor control room. Once a 
reactor has permanently ceased operations, the need for a reactor 
control room is eliminated if all of the vital equipment is removed and 
if the area does not serve as the VA boundary for other VAs. The 
proposed rule would revise Sec.  73.55(e)(9)(v) to provide that a 
licensee of a decommissioning nuclear power reactor would no longer 
need to designate the reactor control room as a VA if it does not 
otherwise meet the definition of a VA in Sec.  73.2.

[[Page 12285]]

5. Communications
    Currently Sec.  73.55(j)(4)(ii) requires continuous and redundant 
communications between the reactor control room and the central alarm 
station (CAS). Once a nuclear power reactor has permanently ceased 
operations, a licensee may no longer have a reactor control room or a 
licensed senior operator present in a reactor control room. Therefore, 
it would not be feasible for a licensee of a decommissioning nuclear 
power reactor to comply with the current regulatory requirement. 
Licensees typically request an exemption from this requirement and 
request that the CAS be allowed to establish continuous and redundant 
communications with the senior on-site licensee representative.
    The NRC is proposing to amend Sec.  73.55(j) to require continuous 
and redundant communications be maintained between the CAS and the CFH 
or senior on-shift licensee representative once the reactor has ceased 
operations and the licensee no longer has licensed senior operators in 
the control room. The intention of this change is to allow licensees 
flexibility in maintaining communications with one or both of these 
individuals.
    Communication requirements will continue to include all the 
conditions currently required: Continuous communication capability with 
onsite and offsite resources; radio or microwave transmitted two-way 
voice communication, in addition to conventional telephone service, 
between the alarm stations and local law enforcement authorities; and 
alternative communication measures in place in areas where 
communication could be interrupted or cannot be maintained.
6. Suspension of Security Measures
    Current regulations in Sec.  73.55(p) allow for the suspension of 
security measures in an emergency or during severe weather. A senior 
licensed operator must approve the suspension of security measures. 
Once a nuclear power reactor has entered decommissioning status and all 
fuel has been removed from the reactor, there may no longer be a 
licensed senior operator on site. Therefore, it may not be feasible for 
a licensee of a decommissioning nuclear power reactor to implement this 
requirement in the event of an emergency or severe weather.
    The NRC is proposing to amend the requirements in Sec.  73.55(p) to 
allow a CFH to suspend security measures in the event of an emergency 
or severe weather once the reactor has shutdown and all fuel has been 
removed from the reactor core.
    These proposed changes to Sec.  73.55(p) would be consistent with 
the existing regulations in Sec.  50.54(x) and (y) that govern 
approvals for reasonable actions that a licensee may take to depart 
from a license condition or a technical specification in an emergency. 
In accordance with the provisions of Sec.  50.54(y), licensee actions 
permitted by Sec.  50.54(x) must be approved (at a minimum) by a 
licensed senior operator or, at a decommissioning nuclear power reactor 
after submittal of the certifications required under Sec.  50.82(a)(1) 
or Sec.  52.110(a), by either a licensed senior operator or a CFH, 
before taking the action.

C. Cyber Security

    The NRC is proposing to update cyber security requirements in Sec.  
73.54, ``Protection of digital computer and communication systems and 
networks'' for nuclear power reactor licensees. This update would 
clarify the cyber security requirements applicable to a nuclear power 
reactor during each stage of the decommissioning process.
    As stated in Sec.  73.54, applicants and licensees must provide 
high assurance that their digital computer and communication systems 
and networks associated with safety and important-to-safety, security, 
and emergency preparedness (SSEP) functions are adequately protected 
against cyber attacks, up to and including the design basis threat 
described in Sec.  73.1, ``Purpose and scope.'' To accomplish this, 
each holder of a nuclear power reactor operating license under 10 CFR 
part 50 has submitted a cyber security plan (CSP) to the NRC that has 
been approved by the NRC. Further, each combined license (COL) 
applicant is required to submit its CSP as part of its COL application 
for review and approval. Each approved CSP is referenced in a license 
condition in each 10 CFR part 50 license, and this license condition 
requires a licensee to maintain its CSP until the license is terminated 
or the license condition is removed by license amendment. A COL holder 
does not have an equivalent cyber security license condition.
    The cyber security requirements in Sec.  73.54 apply to licensees 
currently licensed to operate a nuclear power plant. Once the NRC has 
docketed a licensee's Sec.  50.82(a)(1) or Sec.  52.110(a) 
certifications, that licensee is no longer authorized to operate a 
nuclear power plant. Therefore, the requirements in Sec.  73.54 would 
no longer apply to such a licensee. However, each 10 CFR part 50 
licensee has a license condition requiring the licensee to maintain its 
CSP, and this license condition remains in effect during 
decommissioning. A COL holder, without the license condition, is not 
required to maintain its CSP when it begins decommissioning.
    Although a licensee that has submitted its Sec.  50.82(a)(1) or 
Sec.  52.110(a) certifications is no longer operating, such a licensee 
may still have fuel recently removed from the reactor vessel in its 
SFP. As discussed in the ``Technical Basis for Graded Approach'' 
section of this document, if the spent fuel in the SFP has not 
sufficiently decayed, there is a risk that the spent fuel could heat up 
to clad ignition temperature and lead to a zirconium fire for 
postulated draindown scenarios in a timeframe that is too short to 
reliably implement mitigation measures or to take other appropriate 
response actions.
    As discussed in the ``Technical Basis for Graded Approach'' section 
of this document, in Level 2 there is little chance that the spent fuel 
in the SFP could heat up to clad ignition temperature within 10 hours. 
Accordingly, the NRC is proposing that the cyber security requirements 
in Sec.  73.54 continue to apply to licensees through Level 1. This 
continuation of the cyber security requirements would ensure that a 
compromise of digital systems cannot adversely impact the effective 
operation of the licensees' physical security programs and emergency 
preparedness functions prior to the time at which the spent fuel cannot 
reasonably heat up to clad ignition temperature within 10 hours after a 
draindown event. Although the cyber security requirements would 
continue to apply through Level 1, the number of critical digital 
assets would decrease as systems are removed from service, which in 
turn reduces the number of critical digital assets that must be 
protected by the CSP.
    To clarify the applicability of the cyber security rule to 
decommissioning nuclear power reactor licensees, the NRC is proposing 
to add two paragraphs to Sec.  73.54. A new Sec.  73.54(i) would state 
that the requirements of Sec.  73.54 will remain in effect until: (1) 
The NRC has docketed the licensee's Sec.  50.82(a)(1) or Sec.  
52.110(a) certifications, and (2) at least 10 months for a BWR or 16 
months for a PWR have elapsed since the date of permanent cessation of 
operations or an NRC-approved alternative to the 10 or 16 month spent 
fuel decay period, submitted under proposed Sec.  50.54(q)(7)(ii)(A) or 
(B), has elapsed. A new Sec.  73.54(j) would state that, after both 
requirements of Sec.  73.54(i) have been met, the licensee's license

[[Page 12286]]

condition that requires implementation and maintenance of a cyber 
security plan would be removed from the license. The NRC is also 
proposing the removal of the introductory paragraph of Sec.  73.54 in 
its entirety and revising the language of Sec.  73.54(a), (b), and (c). 
These are conforming changes to clarify that the applicability of Sec.  
73.54 is not limited to ``operating'' reactors (i.e., that Sec.  73.54 
would still be applicable after the NRC has docketed a licensee's Sec.  
50.82(a)(1) or Sec.  52.110(a) certifications), to remove language that 
is no longer needed concerning the initial submission of cyber security 
plans by existing licensees, and to add clarifying language to Sec.  
73.54(b) and (c). Further, the NRC is proposing a change to Sec.  
73.55(c)(6), which requires the licensee to establish, maintain, and 
implement a cyber security plan. This is a conforming change to reflect 
the scenario in which a decommissioning nuclear power reactor licensee 
is no longer required to maintain a cyber security plan (i.e., the NRC 
has docketed the certifications of permanent cessation of operations 
and permanent removal of fuel from the reactor vessel, and the fuel in 
the SFP has sufficiently decayed), but is still required to comply with 
Sec.  73.55(c).
    The proposed revision to Sec.  73.54(a) would not constitute 
backfitting for 10 CFR part 50 licensees. The proposed revision would 
constitute a change affecting the issue finality of COL holders; 
extending the requirement to maintain a CSP during decommissioning 
would be a new requirement imposed on COL holders. The NRC's proposed 
backfit analysis is located in the ``Backfitting and Issue Finality'' 
section of this document.

D. Drug and Alcohol Testing

1. Scope of 10 CFR Part 26
    The NRC is proposing to amend Sec.  26.3, ``Scope,'' to correct an 
inconsistency within Sec.  26.3(a) where the FFD requirements in 10 CFR 
part 26 apply differently to 10 CFR part 50 and 10 CFR part 52 
licensees with decommissioning nuclear power reactors. The Sec.  
26.3(a) provision lists those licensees that are required to comply 
with designated subparts of 10 CFR part 26, including licensees who are 
authorized to operate a nuclear power reactor under Sec.  50.57 and 
holders of a combined license under 10 CFR part 52 after the Commission 
has made the finding under Sec.  52.103(g). In accordance with this 
requirement, 10 CFR part 26 does not apply to a holder of a nuclear 
power reactor license issued under 10 CFR part 50 that is no longer 
authorized to operate a nuclear power reactor because the NRC has 
docketed the certifications required under Sec.  50.82(a)(1) (i.e., a 
decommissioning 10 CFR part 50 nuclear power reactor licensee). 
However, 10 CFR part 26 continues to apply to holders of combined 
licenses issued under 10 CFR part 52 throughout decommissioning. 
Therefore, there is an inconsistency in the application of FFD 
requirements to nuclear power reactor licensees during decommissioning.
    The NRC has determined that there is no technical basis for this 
inconsistency. In the 1989 10 CFR part 26 final rule (54 FR 24468; June 
7, 1989) (1989 FFD Final Rule), the Commission explained that the 
intent of that rule was to address the potential for worker impairment 
of any kind, including substance abuse that could affect the safe 
operation of nuclear power plants. The emphasis throughout the 1989 FFD 
Final Rule is that the rule is necessary to promote public health and 
safety when the plant is operational. The wording for 10 CFR part 52 
licensees described in the scope of the 2008 10 CFR part 26 final rule 
(73 FR 16966; March 31, 2008) (2008 FFD Final Rule), specifically Sec.  
26.3(a), was an oversight. The emphasis of the 1989 FFD final rule that 
FFD need only apply to operating 10 CFR part 50 sites should be the 
same for 10 CFR part 52 licensees. Due to the decreased risk to public 
health and safety during decommissioning, 10 CFR part 26 should not 
apply to these licensees during decommissioning.
    Therefore, the NRC proposes to clarify that 10 CFR part 26 does not 
apply to 10 CFR part 52 licensees once the NRC has docketed their Sec.  
52.110(a) certifications. Section 26.3(a) of the proposed rule would 
specify that each holder of an operating license for a nuclear power 
reactor under 10 CFR part 50 and each holder of a COL under 10 CFR part 
52 for which the Commission has made the finding under Sec.  52.103(g) 
must comply with the requirements of 10 CFR part 26, except for subpart 
K of 10 CFR part 26, until the NRC's docketing of the license holder's 
certifications described in Sec. Sec.  50.82(a)(1) or 52.110(a).
    For clarity, the NRC proposes to divide the current paragraph of 
Sec.  26.3(a) into two paragraphs. Paragraph (a)(1) would retain the 
requirement in the second sentence of current Sec.  26.3(a) to state 
the deadline by which licensees must implement their FFD program. 
Paragraph (a)(2) would retain the requirement in the first sentence of 
current Sec.  26.3(a) that these licensees must comply with the 
requirements of 10 CFR part 26, except subpart K, but clarify that this 
requirement ends when the NRC dockets the licensee's Sec. Sec.  
50.82(a)(1) or 52.110(a) certifications.
2. Fitness-for-Duty Elements for Insider Mitigation Program
    Under Sec.  73.55(b)(9), a licensee is required to establish, 
maintain, and implement an IMP to monitor the initial and continuing 
trustworthiness and reliability of individuals granted unescorted 
access authorization (UAA) or unescorted access (UA) to a protected 
area (PA) or vital area (VA).
    Section 73.55(b)(9)(ii)(B) requires that an IMP must contain 
elements of an FFD program described in 10 CFR part 26. However, the 
regulations do not identify which FFD program elements must be included 
in the IMP. Section 73.55(b)(9)(ii)(B)(1) and (2) of this proposed rule 
would amend Sec.  73.55(b)(9)(ii)(B) to establish an appropriate set of 
FFD provisions to be incorporated into the IMP of operating and 
decommissioning 10 CFR part 50 and 10 CFR part 52 licensees to provide 
reasonable assurance that individuals granted UAA or UA to the PA or VA 
are trustworthy and reliable.
    Section 73.55(b)(9)(ii)(B)(1) of this proposed rule would clarify 
Sec.  73.55(b)(9)(ii)(B) that licensees implementing 10 CFR part 26, 
regardless of whether they are required to do so, are in compliance 
with Sec.  73.55(b)(9)(ii)(B). A licensee's full 10 CFR part 26 FFD 
program (i.e., an FFD program that complies with all applicable 10 CFR 
part 26 requirements) would contain FFD elements appropriate for 
inclusion in the licensee's IMP. This would apply to both operating and 
decommissioning licensees.
    Section 73.55(b)(9)(ii)(B)(2)(i) and (ii) of this proposed rule 
describes the minimum 10 CFR part 26 elements necessary for a 10 CFR 
part 50 and 10 CFR part 52 decommissioning licensee's IMP. Section 
73.55(b)(9)(ii)(B)(2)(i) of the proposed rule states that individuals 
who have unescorted access to the VAs at a decommissioning site, 
perform certified fuel handler functions (i.e., individuals covered by 
Sec.  50.2) prior to all spent nuclear fuel at a site being placed in 
dry cask storage, perform security--related functions (i.e., 
individuals covered by Sec.  26.4(a)(5)), or administer the drug 
testing program (i.e., individuals covered by Sec.  26.4(g)) are 
subject to the requirements in 10 CFR part 26 except for subparts I and 
K. Individuals who have fuel handler certifications are essential to 
the safe movement of spent nuclear fuel. Individuals who have security-
related responsibilities or perform work around the spent fuel pool may 
have knowledge

[[Page 12287]]

of value to an adversary. In addition, security personnel generally 
carry weapons on site and would pose a significant challenge to site 
security if they were to perform as an active insider during an attack. 
Testing of individuals who administer a drug testing program is viewed 
as essential to the integrity of the program.
    Proposed Sec.  73.55(b)(9)(ii)(B)(2)(ii) states that individuals 
who have UA to the protected area, but do not perform certified fuel 
handling or security-related functions or administer the drug testing 
program would still be subject to pre-access and for-cause testing 
(Sec.  26.31(c)(1) and (2)) and behavior observation (Sec.  26.33), but 
would not be subject to random testing (Sec.  26.31(c)(5)). The NRC 
proposes to relax these requirements because while the reactor is in 
decommissioning the potential contribution of certain personnel to 
support an adversary as an insider is greatly reduced. Individuals who 
do not have any security-related responsibilities or regular SFP area 
UA will have less potential contribution as an insider threat.
    The NRC has determined that the FFD elements necessary for an IMP 
under this proposed rule are commensurate with the hazard and potential 
event consequences associated with a facility's operational status. 
Section 73.55(b)(3) states that the physical protection program must be 
designed to prevent significant core damage and spent fuel sabotage. 
Operating nuclear power reactor facilities contain many target sets 
located throughout the PA of potential interest to an adversary seeking 
to affect core damage or spent fuel sabotage, thus anyone who has UAA 
or UA to the PA could contribute significantly to an adversary.
    The hazard and potential event consequences associated with 
decommissioning facilities significantly decrease in comparison to 
those associated with the operating facilities. During decommissioning, 
the SFP becomes the primary focus of the licensee's obligation to 
protect against the radiological sabotage design basis threat, as it 
becomes the location where all spent fuel is located when a nuclear 
power reactor is no longer operating and prior to transitioning to an 
ISFSI. With this perspective, this proposed rule tailors applicability 
of the FFD elements commensurate with the duties and access of 
personnel who have been granted UAA and maintain UA to the PA or VA.
3. Criminal Penalties
    The NRC proposes to amend the criminal penalties section of 10 CFR 
part 26 by including Sec.  26.3 within Sec.  26.825(a). Existing Sec.  
26.825(a) applies the NRC's authority under the AEA to impose criminal 
penalties for willful violations of, attempts to violate, or 
conspiracies to violate NRC regulations. Section 26.825(b) lists Sec.  
26.3 as one of the 10 CFR part 26 provisions that is excluded from 
Sec.  26.825(a). In general, the criminal penalties sections of NRC 
regulations apply to substantive requirements, and administrative or 
procedural regulatory provisions are excluded from criminal penalties 
sections. The current Sec.  26.3 is entitled ``Scope'' and identifies 
which entities are within the scope of 10 CFR part 26. Scoping 
provisions typically do not contain substantive requirements, which may 
explain why Sec.  26.825(b) includes Sec.  26.3. However, the current 
Sec.  26.3(a) not only describes the entities that are subject to the 
requirements of 10 CFR part 26 but also includes a substantive 
requirement for certain entities to comply with requirements in 10 CFR 
part 26 by a specific deadline. This requirement was added to Sec.  
26.3(a) in the 2008 FFD Final Rule, but Sec.  26.825(b) was not updated 
to reflect this change, which was an oversight. This proposed rule 
would not change the substantive requirement in Sec.  26.3(a). Because 
proposed Sec.  26.3(a) would continue to impose a substantive 
requirement, the NRC proposes to remove Sec.  26.3 from Sec.  
26.825(b), thereby including Sec.  26.3 in Sec.  26.825(a).

E. Certified Fuel Handler Definition and Elimination of the Shift 
Technical Advisor

    The NRC is proposing two revisions to its regulations. The first 
change would be to amend the definition of a CFH in Sec.  50.2 to 
provide an alternative that would eliminate the need for licensees to 
seek NRC approval for fuel handler training programs by adding a 
provision that requires the training program to address the safe 
conduct of decommissioning activities, safe handling and storage of 
spent fuel, and appropriate response to plant emergencies, and 
specifies that a CFH must be qualified in accordance with a fuel 
handler training program that meets the same requirements as training 
programs for non-licensed operators required by Sec.  50.120. This 
proposal would provide consistency in the regulatory treatment of the 
training programs for non-licensed operators (which do not require NRC 
approval) and fuel handler training programs to qualify a non-licensed 
operator as a CFH (which do require NRC approval). The second change 
would clarify that an STA is not required for decommissioning reactors. 
These changes would provide clarity to the CFH's responsibilities and 
functions and the role of an STA by codifying current licensing 
practices. This proposed rule would also clarify the management role of 
the CFH in a manner that is consistent with Sec.  50.54(y) as discussed 
in section ``B. Physical Security'' in this document.
1. Alternative Definition for Certified Fuel Handler
    The current definition of a CFH in Sec.  50.2 does not specify what 
is in an NRC-approved fuel training program. Licensees have submitted 
requests for the approval of CFH training and retraining programs in 
connection with their decommissioning. After receiving NRC approval of 
a CFH training program, the licensee typically submits a license 
amendment request to propose changes to the Administrative Controls 
section of its Technical Specifications (TS) to include a CFH, among 
other applicable changes based on the approval of the CFH training 
program.
    For example, on May 12, 2014, the NRC approved the Shift Manager/
Certified Fuel Handler training program for Kewaunee Power Station 
(ADAMS Accessions No. ML14104A046). The NRC's safety evaluation 
supporting approval of the CFH training program used criteria that 
focused on whether the licensee trained CFHs on the following three 
objectives: (1) Safe conduct of decommissioning activities; (2) safe 
handling and storage of spent fuel; and (3) appropriate response to 
plant emergencies. These three objectives have subsequently been the 
basis for other NRC approvals of CFH training programs for licensees 
entering or planning to enter the decommissioning process: Entergy for 
VY (ADAMS Accession No. ML14162A209); Exelon for Oyster Creek Nuclear 
Generation Station, Clinton Power Station, and Quad Cities Nuclear 
Power Station (ADAMS Accession No. ML16222A787); and Entergy for 
FitzPatrick Nuclear Power Plant (ADAMS Accession No. ML16259A347).
    In the safety evaluations for those approved CFH training programs, 
the NRC discusses the 1996 Final Rule and its role in the development 
of the objectives for an acceptable CFH training program. The NRC 
recognized that the risks posed at decommissioning reactors are 
significantly less than those posed by operating reactors. The NRC 
noted specifically that:
     While the spent fuel is still highly radioactive and 
generates heat caused by radioactive decay, no neutron flux is

[[Page 12288]]

generated and the fuel slowly cools as its energetic decay products 
diminish.
     The systems required for maintaining the spent fuel in the 
spent fuel pool as well as the operations required to contain the 
remaining residual contamination in the facility and spent fuel pool 
are relatively simple.
     Because the spent fuel is stored in a configuration that 
precludes a nuclear fission reaction, no generation of new 
radioactivity can occur and the potential for consequences that could 
result from an inadvertent nuclear reaction are highly unlikely.
    Because of the reduced risks and relative simplicity of the systems 
needed for safe storage of the spent fuel, the NRC explained in the 
1996 Final Rule that the degree of regulatory oversight required for a 
nuclear power reactor during its decommissioning stage is considerably 
less than that required for the facility during its operating stage. In 
the 1995 decommissioning proposed rule (60 FR 37374; July 20, 1995), 
the NRC provided insights as to the responsibilities of the proposed 
new position of the CFH. Specifically, the NRC stated that a CFH is an 
individual who has the requisite knowledge and experience to evaluate 
plant conditions and make judgments about emergency action decisions 
necessary to protect the public health and safety.
    In addition to using the three objectives to evaluate the fuel 
handler training programs for licensees entering or planning to enter 
decommissioning, the NRC applied the criteria in Sec.  50.120, 
``Training and qualification of nuclear power plant personnel,'' and 
assessed the proposed fuel handler training programs against the 
elements of a systems approach to training (SAT) as defined in Sec.  
55.4, ``Definitions.'' Section 50.120 identifies individuals required 
to be subject to an SAT, including non-licensed operators such as CFHs, 
and necessary elements for training programs. These elements include 
the requirement to periodically evaluate and revise the training 
program, as appropriate, to reflect changes to the facility (e.g., 
decommissioning), procedures, regulations, and quality assurance 
requirements.
    Because it has developed succinct criteria to approve fuel handler 
training programs, the NRC proposes to include this criterion in its 
regulations as an alternative definition of a CFH to eliminate the need 
for licensees to submit requests for NRC approval of CFH training 
programs. Specifically, the NRC would codify current approval practices 
by amending Sec.  50.2 to add the three broad-scope objectives as 
responsibilities for which a CFH must be trained: (1) Safe conduct of 
decommissioning activities; (2) safe handling and storage of spent 
fuel; and (3) appropriate response to plant emergencies. In addition, 
the CFH would have to qualify in accordance with a fuel handler 
training program that meets the same requirements as training programs 
for non-licensed operators required by Sec.  50.120. Should a licensee 
not exercise the alternative definition, it would need to submit a 
request for approval of a fuel handler training program.
2. Elimination of the Shift Technical Advisor
    The STA is a position identified in licensees' TSs. The STA 
provides engineering expertise in the diagnosis of complex problems 
with SSCs during reactor operation. Once a licensee enters the 
decommissioning process, the STA function is no longer needed. The 
current regulations do not address the acceptability of discontinuing 
the STA position for a decommissioning reactor. Licensees have been 
removing the STA position and replacing that position with a CFH in 
their TSs through license amendments (see Duke Energy Florida for 
Crystal River Unit 3 Nuclear Generating Plant (ADAMS Accession No. 
ML14097A145); Exelon for Oyster Creek Nuclear Generating Station (ADAMS 
Accession No. ML16235A413); and Entergy for VY (ADAMS Accession No. 
ML14217A072)). The NRC proposes to revise a footnote to the table 
titled ``Minimum Requirements Per Shift for On-Site Staffing of Nuclear 
Power Units by Operators and Senior Operators Licensed Under 10 CFR 
part 55'' in Sec.  50.54(m)(2)(i) to state that an STA is not required 
upon the NRC's docketing of the license holder's certifications 
required under Sec. Sec.  50.82(a)(1) or 52.110(a).

F. Decommissioning Funding Assurance

    The NRC proposes to amend its regulations to modify decommissioning 
funding reporting requirements, clarify decommissioning funding 
assurance requirements, and eliminate duplicative regulations.
1. Clarification of Sec.  50.82(a) and Sec.  52.110(h)
    The NRC is proposing to amend the regulations in Sec.  
50.82(a)(8)(i)(A) and Sec.  52.110(h)(1)(i) to remove the term 
``legitimate.'' This term does not add any substance to the regulations 
and is potentially confusing. The intent of the regulation is to ensure 
that expenses fall within the NRC definition of decommission. Whether 
an expense falls within the definition of decommission would continue 
to be determined on a case-by-case basis by the licensee when 
considering whether to make a withdrawal from the decommissioning trust 
fund. Since this term is non-substantive, its removal would not change 
any of the existing requirements regarding the use of decommissioning 
funds.
2. Changes to Reporting Requirements
    In the ``Financial Assurance Requirements for Decommissioning 
Nuclear Power Reactors'' final rule (63 FR 50465; September 22, 1998), 
the NRC added the provisions currently in Sec.  50.75(f)(1) and (2) 
that require each nuclear power reactor licensee to file a report with 
the NRC on the status of its decommissioning funding for each reactor 
that it owns, by March 31st of every odd-numbered year or annually for 
plants that are within five years of their projected end of operation. 
This report must specify: (1) The amount of decommissioning funds 
estimated to be required pursuant to Sec.  50.75(b) and (c); (2) the 
amount of decommissioning funds accumulated to the end of the calendar 
year preceding the date of the report; (3) a schedule of the annual 
amounts remaining to be collected; (4) the assumptions used regarding 
rates of escalation in decommissioning costs, rates of earnings on 
decommissioning funds, and rates of other factors used in funding 
projections; (5) any contracts upon which the licensee is relying; (6) 
any modifications occurring to a licensee's current method of providing 
financial assurance since the last submitted report; and (7) any 
material changes to trust agreements.
    The NRC is proposing to change the reporting frequency in Sec.  
50.75(f)(1) to coordinate the reporting frequency with the ISFSI 
decommissioning reporting frequency in Sec.  72.30. This change would 
convert the biennial decommissioning funding status report required for 
10 CFR part 50 and 10 CFR part 52 nuclear power reactor licensees to a 
triennial decommissioning funding status report as currently is 
required for 10 CFR part 72 ISFSI licensees. This revision would not 
change the annual reporting frequency for a reactor licensee that is 
within 5 years of its projected end of operations, whether that 
projection is based on the license's expiration date or on a premature 
shutdown, and would not change the annual reporting frequency for a 
reactor that has permanently ceased operations. Also, the change in 
reporting frequency would not relieve the licensee from calculating 
annual adjustments as

[[Page 12289]]

required under Sec.  50.75(a)(2) and would not affect the Table of 
Minimum Amounts in Sec.  50.75(c) or its escalation factors. Therefore, 
a licensee would be required to continue to monitor its decommissioning 
funding on an annual basis but instead of reporting at least once every 
2 years to the NRC, it would report at least once every 3 years.
    Since 1999, the NRC's regulations have mandated that licensees 
report to the NRC the status of their decommissioning funding. Under 
Sec.  50.75(f)(1), the biennial decommissioning funding status report 
requires the disclosure of seven items, including the balance of the 
decommissioning trust fund as of December 31st of the prior year. The 
NRC conducted spot checks of licensee records related to this 
information. The NRC did not identify any major discrepancies related 
to this information, as explained in SECY-15-0005 (ADAMS Accession No. 
ML14210A554), dated January 15, 2015. Therefore, the NRC has confidence 
that changing from a biennial to a triennial reporting frequency will 
not subject the public to any additional risks associated with 
decommissioning funding assurance. In addition, even with a triennial 
reporting frequency, there would be ample time to resolve any 
decommissioning funding issue. Furthermore, the proposed revision does 
not change the requirement for more frequent reporting as a licensee 
approaches the permanent cessation of operations and while the licensee 
is in decommissioning or the requirement for a site-specific 
decommissioning cost estimate during this period.
    The NRC proposes a rule change in Sec.  50.75(h) in order to be 
consistent with the requirements of Sec.  50.4. Specifically, 
notifications would be sent directly to the Document Control Desk, and 
not to the Director, Office of Nuclear Reactor Regulation, or Director, 
Office of Nuclear Material Safety and Safeguards, as applicable. This 
change would provide one consistent location for licensees to docket 
all notifications to the NRC.
    The NRC proposes to delete Sec.  50.75(f)(2). The language of 
existing Sec.  50.75(f)(1) fully encompasses the language of paragraph 
(f)(2), and, therefore, paragraph (f)(2) is unnecessary and potentially 
confusing. By removing paragraph (f)(2) the NRC would not be removing 
the requirement on licensees to continue submitting decommissioning 
funding assurance status reports. Existing paragraphs (f)(3) through 
(5) would be redesignated as paragraphs (f)(2) through (4).
3. Shortfalls in Decommissioning Funding Assurance
    The requirement in Sec.  50.75 that the licensee provide reasonable 
assurance that sufficient funds will be available for radiological 
decommissioning is a continuing obligation. However, economic factors 
can cause the amount of a licensee's financial assurance to fall below 
the amount required (either by the NRC minimum formula in Sec.  
50.75(c), or by a licensee's site-specific decommissioning cost 
estimate), thereby creating a shortfall. The regulations do not 
explicitly discuss what to do when a licensee faces a funding 
shortfall, regardless of its cause. Instead, the NRC addressed the 
scenario in its guidance in RG 1.159, ``Assuring the Availability of 
Funds for Decommissioning Nuclear Reactors'' (ADAMS Accession No. 
ML003740066). This guidance provides that non-rate-regulated licensees 
should make up shortfalls in decommissioning funding within 2 years and 
electric utility licensees within 5 years.
    The NRC is proposing to amend its regulations in Sec.  50.75(f)(1) 
to clarify that, although the regulations establish a continuing 
obligation to provide reasonable assurance of decommissioning funding, 
when a licensee identifies a shortfall in the report required by Sec.  
50.75(f)(1), the licensee must identify additional financial assurance 
to cover the shortfall in the next report. Specifically, the proposed 
rule would require licensees to remedy shortfalls before permanent 
cessation of operations consistent with the methods identified in Sec.  
50.75(e) in the next Sec.  50.75(f) report. The proposed rule would 
clarify the expectations for how reasonable assurance of funds will be 
available for the decommissioning process. For electric utilities that 
currently submit biennial reports but correct their shortfalls within 5 
years, the NRC proposes that they would submit their decommissioning 
funding status reports triennially and explain in their reports how 
they plan to correct any existing shortfall. Electric utilities should 
continue to correct shortfalls within 5 years as explained in RG 1.159. 
For non-rate-regulated licensees that currently submit biennial reports 
and should correct shortfalls within a 2 year period, the NRC proposes 
that they correct any shortfalls within the 3 year reporting period. 
The NRC proposes to clarify the last sentence of current Sec.  
50.75(f)(1) to reduce the number of clauses and enhance readability.
    The NRC proposes to revise Sec.  50.82(a)(9)(ii)(F) to require 
licensees to identify the specific sources of funds for ``remaining 
decommissioning costs,'' including sources of funds for license 
termination, spent fuel management, and ISFSI decommissioning.
4. Conforming Changes to 10 CFR Part 52
    The NRC proposes to revise Sec.  52.110 to make the same changes 
proposed in Sec.  50.82 for the reasons previously discussed and for 
consistency. In addition, the NRC proposes to add paragraphs (h)(5) 
through (h)(7) with site-specific decommissioning cost estimate 
reporting requirements that are identical to the requirements in Sec.  
50.82(a)(8)(v) through (vii). Consistent with proposed Sec.  
52.110(h)(7), a report on irradiated fuel should only be submitted if 
irradiated fuel is on site.
5. Change to 10 CFR Part 72
    The NRC proposes to revise Sec.  72.30 so that the submittals 
subsequent to the initial decommissioning funding plan would no longer 
require NRC approval. The NRC found little benefit in approving 
subsequent decommissioning funding plans for ISFSIs because the 
financial assurance mechanisms employed are very similar to those used 
for nuclear power reactors. The experience to date is that 
decommissioning funding plans have not changed substantively because of 
the passive nature of the ISFSI design, the static nature of ISFSI 
operations after loading, and the fact that there are no liquids or 
liquid effluents present in dry cask storage facilities. In addition, 
the NRC expects that the frequency of events that could potentially 
impact the decommissioning funding plan (i.e., due to spills, facility 
modifications, or changes in possession limits that are cited in Sec.  
72.30(c)) would continue to be low. However, if they were to occur, it 
is important that these events be factored into the cost of 
decommissioning. This change would make the processes under Sec.  
72.30(c) more efficient and less burdensome to the licensee and the 
NRC, while still maintaining reasonable assurance of adequate funding 
for the decommissioning of ISFSIs.

G. Offsite and Onsite Financial Protection Requirements and Indemnity 
Agreements

    The NRC proposes to amend its financial protection regulations 
under 10 CFR part 140, ``Financial Protection Requirements and 
Indemnity Agreements,'' and Sec.  50.54(w) to address instances where a 
decommissioning reactor licensee may not need to maintain its full 
amounts of offsite liability insurance and onsite property insurance. 
Reductions in insurance

[[Page 12290]]

amounts may be warranted commensurate with the reduction in probability 
of an incident at a reactor in decommissioning and also a reduction in 
the offsite and onsite consequences from this event. The proposed 
financial protection requirements would codify the approach currently 
used by the NRC to approve exemptions from the financial protection 
requirements for decommissioning 10 CFR part 50 and 10 CFR part 52 
nuclear power reactor licensees. The proposed changes would also 
increase efficiency and transparency in this area by clarifying the 
requirements for financial protection of decommissioning plants, 
providing for regulatory certainty, and reducing regulatory burden 
without affecting public health and safety. Specifically, these 
proposed requirements would represent a graded approach, including the 
criteria to be considered, where the financial protection requirements 
for decommissioning sites are adjusted commensurate with the level of 
risk posed at two stages of the decommissioning process.
    Proposed revisions to 10 CFR part 140 and Sec.  50.54(w) would also 
address other regulatory topics including, for example, the 
applicability of procedures regarding extraordinary nuclear occurrences 
and a proposed new notification requirement for licensees when they 
make changes to the amount of onsite insurance.
1. Proposed Revisions to Offsite Liability and Onsite Property 
Insurance Requirements
    The NRC proposes to allow 10 CFR part 50 and 10 CFR part 52 nuclear 
power reactor licensees in decommissioning to reduce the offsite 
liability and onsite property insurance amounts that they are required 
to maintain under Sec. Sec.  140.11 and 50.54(w), respectively, without 
obtaining exemptions from the NRC's regulations. Instead, as proposed 
under Sec. Sec.  140.11(a)(5) and 50.54(w)(5), once certain criteria 
are satisfied, licensees could reduce their financial protection to the 
amounts in Level 2 in Table 3:

                                        Table 3--Two-Step Graded Approach
----------------------------------------------------------------------------------------------------------------
                                    Reactor site         Offsite requirement        Onsite requirement  (Sec.
            Level                   description            (Sec.   140.11)                  50.54(w))
----------------------------------------------------------------------------------------------------------------
1...........................  Operating or             $450 million;            $1.06 billion.
                               Permanently Ceased       participation in the
                               Operations and           industry retrospective
                               Permanently Defueled.    rating plan.
2...........................  Sufficiently Decayed     $100 million;            $50 million.
                               Fuel; >=1,000 gallons    withdrawal from the
                               of radioactive waste.    industry retrospective
                                                        rating plan.
----------------------------------------------------------------------------------------------------------------

    Licensees in Level 1 of the graded approach would be required to 
maintain the full amounts of offsite liability and onsite property 
insurance currently required in Sec. Sec.  140.11(a)(4) and 50.54(w), 
respectively, until the probability of a zirconium fuel cladding fire 
in the spent fuel pool is minimized. Maintaining the full level of 
insurance recognizes the potential for liability insurance claims 
following an accident of this type and the need for available resources 
to clean up the site.
    The transition to Level 2 financial protection amounts for 
licensees would be optional and could occur after the passage of a 
specified amount of time (i.e., 10 months for BWRs or 16 months for 
PWRs, beginning on the date of permanent cessation of operations, plus 
the NRC's docketing of the certifications required by Sec.  50.82(a)(1) 
or Sec.  52.110(a) or after the lapse of an NRC-approved alternative 
time period to the 10 or 16 month spent fuel decay period that is 
submitted under Sec.  50.54(q)(7)(ii)(A) or (B)). For the latter 
option, licensees would need to submit an analysis that demonstrates a 
reduced risk of a zirconium fuel cladding fire in the SFP. The 
reduction in the financial protection amounts as identified in Table 3 
(i.e., $100 million in offsite liability insurance and withdrawal from 
the industry retrospective rating plan) was modeled on the offsite 
liability claims experience from the accident at Three Mile Island Unit 
2 as documented in SECY-93-127, ``Financial Protection Required of 
Licensees of Large Nuclear Power Plants During Decommissioning'' (ADAMS 
Accession No. ML12257A628). SECY-93-127 provides a reasonable basis for 
using the Three Mile Island Unit 2 experience as a model for 
determining the appropriate liability insurance coverage level for a 
permanently shutdown reactor that has completed its respective spent 
fuel cooling period. Additionally, as documented in SECY-93-127, the 
reduced onsite financial protection amount in Table 3 (i.e., $50 
million in onsite property insurance coverage) was modeled on the 
potential onsite cleanup costs from a radiological incident involving 
the rupture of a large liquid radioactive waste storage tank (~450,000 
gallons) containing slightly radioactive water. This event was selected 
as conceivable and a bounding scenario having negligible radiological 
consequences offsite.
    The spent fuel heat-up analysis performed by the licensee for 
purposes of reducing its insurance amounts to those in Level 2 could be 
the same analysis that the licensee performs to relax the offsite 
emergency planning requirements under proposed Sec.  50.54(q)(7)(ii)(A) 
or (B). The transition to Level 2 would prompt the licensee to notify 
the NRC under Sec.  140.15(e) of a material change in financial 
protection--a reduction in offsite primary financial protection from 
$450 million to $100 million and withdrawal from the industry 
retrospective rating plan. The NRC proposes a conforming change to 
Sec.  50.54(w) for a similar notification of a material change to 
onsite property insurance amounts.
    The NRC is also proposing to periodically adjust the offsite and 
onsite financial protection amounts for decommissioned reactors to 
account for inflation. These adjustments would be in accordance with 
the aggregate percentage change in the Consumer Price Index and 
performed at intervals that coincide with the inflation adjustments for 
the retrospective premium under Section 170t of the AEA.
2. Proposed Revision to Extraordinary Nuclear Occurrences Requirements
    The NRC proposes to amend its regulations in Sec.  140.81, ``Scope 
and purpose,'' to clarify the applicability of the requirements for an 
Extraordinary Nuclear Occurrence (ENO) to reactors in decommissioning. 
Under Sections 11 and 170 of the AEA, and NRC regulations at subpart E, 
``Extraordinary Nuclear Occurrences,'' to 10 CFR part 140, the NRC is 
authorized to make a determination as to whether an event at a 
production or utilization facility causing a discharge or dispersal of 
source, special nuclear, or byproduct material that has resulted or 
will result in substantial damages to offsite members of the public or 
property is an

[[Page 12291]]

ENO. An event will qualify as an ENO if the NRC determines that the 
criteria in Sec.  140.84, ``Criterion I--Substantial discharge of 
radioactive material or substantial radiation levels offsite,'' and 
Sec.  140.85, ``Criterion II--Substantial damages to persons offsite or 
property offsite,'' have been met.
    The NRC recognizes that the radiological consequences resulting 
from an accident at a decommissioning reactor in Level 1 can be similar 
to those from an accident at an operating reactor. As presented in 
NUREG-1738, in the timeframe beginning immediately after the reactor is 
defueled and the fuel is placed in the SFP, the radiological 
consequences of a zirconium fire may be comparable to those from 
operating reactor postulated severe accidents. The existing potential 
consequences from a zirconium fire, until the fuel in the SFP has 
sufficiently decayed, provides the basis for the NRC's proposal to 
amend its regulations to include plants in decommissioning within the 
scope of Sec.  140.81.
3. Proposed New Rule Language in Sec.  50.54(w)(6)
    The NRC proposes to amend Sec.  50.54(w) to require a prompt 
notification to the Commission of any material change in proof of 
onsite property insurance filed with the Commission under 10 CFR part 
50. Specifically, the transition to Level 2 as proposed by the NRC 
would prompt the licensee to notify the NRC under Sec.  50.54(w)(6) of 
a reduction in onsite property insurance from $1.06 billion to $50 
million. This proposed amendment to Sec.  50.54(w)(6) would be a 
conforming change, for consistency, with the existing offsite financial 
protection requirements under Sec.  140.15(e).

H. Environmental Considerations

1. Clarifying Changes to 10 CFR Parts 50 and 52
    A nuclear power reactor licensee's transition from operating to 
decommissioning status does not involve an agency action that would 
trigger NRC responsibilities under environmental statutes, such as the 
National Environmental Policy Act (NEPA), the Endangered Species Act 
(ESA), or the National Historic Preservation Act (NHPA). However, Sec.  
50.82(a)(4)(i) (for nuclear power reactors licensed under 10 CFR part 
50) and Sec.  52.110(d)(1) (for nuclear power reactors licensed under 
10 CFR part 52) require that PSDARs provide the reasons for concluding 
that appropriate previously issued environmental impact statements 
(EIS) will bound the environmental impacts associated with site-
specific decommissioning activities. After the PSDAR is submitted, the 
licensee must remain in compliance with Sec.  50.82(a)(6)(ii) or Sec.  
52.110(f)(2), as applicable. These regulations state that licensees may 
not perform any decommissioning activities, as defined in Sec.  50.2, 
that result in significant environmental impacts not previously 
reviewed. As explained in the 1996 Final Rule, the requirement in Sec.  
50.82(a)(6)(ii) functions as a prohibition against the licensee 
performing a decommissioning activity that would result in a 
significant impact ``not previously reviewed'' (61 FR 39283, 39286, and 
39291; July 29, 1996). The NRC may develop updates to IMC 2561, 
``Decommissioning Power Reactor Inspection Program,'' and the related 
Inspection Procedure (IP) 71801, ``Decommissioning Performance and 
Status Review at Permanently Shutdown Reactors,'' dated August 11, 
1997, to provide guidance on inspections for compliance with Sec.  
50.82(a)(6)(ii) or Sec.  52.110(f)(2) with respect to environmental 
reviews.
    In certain circumstances, licensees may be unable to satisfy the 
requirement that licensees conclude in the PSDAR that all environmental 
impacts associated with site-specific decommissioning activities will 
be bounded by previous EISs. For example, NUREG-0586, Supplement 1, 
Volumes 1 and 2, ``Generic Environmental Impact Statement on 
Decommissioning of Nuclear Facilities: Regarding the Decommissioning of 
Nuclear Power Reactors'' (Decommissioning GEIS) (ADAMS Accession No. 
ML023470327), identified several resource areas that were not 
generically resolved. If the EISs previously prepared for the 
construction and initial operation of the plant, for license renewal, 
or for another licensing action did not include site-specific analyses 
for those resource areas not generically resolved under the 
Decommissioning GEIS, then the licensee would be unable to make the 
determination in the PSDAR that all impacts will be bounded. Therefore, 
the licensee would have to either change its planned decommissioning 
activities so that the impacts would be bounded or submit and have 
approved a license amendment request or an exemption request to satisfy 
Sec.  50.82(a)(4)(i) or Sec.  52.110(d)(1) prior to conducting the 
subject decommissioning activity.
    The NRC proposes to change the PSDAR requirements in Sec.  
50.82(a)(4)(i) and Sec.  52.110(d)(1) to require that licensees provide 
the basis for determining whether the environmental impacts from site-
specific decommissioning activities are bounded by previous 
environmental reviews. This proposed rule change would clarify that 
licensees, at the PSDAR stage, are required to evaluate the 
environmental impacts and provide in the PSDAR the basis for whether 
the proposed decommissioning activities are bounded by previously 
issued, site-specific or generic environmental reviews. Given that some 
decommissioning activities will occur well in the future, licensees 
might not be able to make the definitive conclusion that impacts will 
be bounded at the PSDAR stage. Therefore, the proposed change would 
provide licensees flexibility to address any unbounded environmental 
impacts closer to, but still prior to, the decommissioning activity 
being undertaken that could cause the unbounded impact. In that case, 
the licensee should identify in the PSDAR the decommissioning 
activities that are not bounded by previous environmental reviews and 
will be addressed in the future. This proposed change would be 
consistent with the purpose of the PSDAR, as noted in RG 1.185, 
Revision 1, ``Standard Format and Content for Post-Shutdown 
Decommissioning Activities Report'' (ADAMS Accession No. ML13140A038), 
as a mechanism for NRC oversight because it would alert the NRC to any 
potentially unbounded environmental impacts associated with planned 
site-specific decommissioning activities. If a licensee were to 
consider a proposed decommissioning activity that would otherwise be 
prohibited by Sec.  50.82(a)(6)(ii) or Sec.  52.110(f)(2), then prior 
to undertaking that activity, the licensee could submit a request for a 
license amendment or an exemption request, decide not to perform the 
proposed activity, or modify the proposed activity so that the 
unbounded environmental impact does not occur. If the licensee chose to 
submit a license amendment or exemption request, then the request would 
trigger NRC responsibilities under environmental statutes. In addition, 
prior to performing a decommissioning activity that is inconsistent 
with the PSDAR but permitted by Sec.  50.59, the licensee must notify 
the NRC in writing, with a copy to the affected States, in accordance 
with Sec.  50.82(a)(7). This Sec.  50.82(a)(7) requirement is in the 
current regulation and would not be changed in this proposed rule.
    The NRC also proposes to change the Sec.  50.82(a)(4)(i) and Sec.  
52.110(d)(1) regulations to allow licensees to use appropriate 
federally issued environmental review documents prepared in compliance 
with NEPA,

[[Page 12292]]

ESA, NHPA, or other environmental statutes instead of only EISs. One 
reason for replacing the phrase ``previously issued environmental 
impact statements'' with ``federally issued environmental review 
documents'' is the NRC can, in many instances, satisfy its NEPA 
compliance obligations by the preparation of an environmental 
assessment or through a categorical exclusion finding rather than 
preparing an EIS. A second reason is that this change allows licensees 
to use a wider range of documents that address various resources. 
Examples of appropriate federally issued environmental review documents 
include environmental assessments prepared for license amendments such 
as extended power uprates; documents prepared during Section 7 
consultations under the ESA such as biological opinions and biological 
assessments; or programmatic agreements prepared through Section 106 
consultations under the NHPA to resolve impacts to historic properties. 
Environmental review documents prepared by other Federal agencies could 
also be used if they were relevant to the impacts associated with the 
site-specific decommissioning activities.
    The regulations in Sec.  50.82(a)(6)(ii) and Sec.  52.110(f)(2) 
prohibit a licensee from undertaking a decommissioning activity that 
would result in a significant environmental impact not previously 
reviewed. The NRC is also proposing to change Sec.  50.82(a)(6)(ii) and 
Sec.  52.110(f)(2) to clarify that the previous review of any 
potentially significant environmental impact must be bounded by 
appropriate federally issued environmental review documents prepared in 
compliance with NEPA, ESA, NHPA, or other environmental statutes. In 
this regard, the determination of significance should be made in terms 
of the appropriate federal environmental resource protection statute. 
For example, if a proposed decommissioning activity were likely to 
result in a potential adverse effect upon a historic property, as the 
term ``adverse effect'' is described in the Advisory Council on 
Historic Preservation regulation, 36 CFR 800.5, ``Typical classes of 
action,'' then that potential adverse effect would most likely be 
equivalent to a potential significant impact under Sec.  
50.82(a)(6)(ii) or Sec.  52.110(f)(2). Similarly, for species listed 
under the ESA, the equivalent threshold would be a proposed 
decommissioning activity that could result in a ``take,'' as that term 
is defined in 16 U.S.C. 1532(19), of any listed species at the time of 
the proposed decommissioning activity.
    These proposed changes would reduce the regulatory burden on the 
licensee by removing the duplicative requirement to address unbounded 
environmental impacts at the PSDAR stage. Instead, licensees would only 
prepare an environmental report or provide other information as 
requested by the NRC under Sec.  51.41, ``Requirement to submit 
environmental information,'' before performing any decommissioning 
activity that is likely to result in a significant impact not 
previously bounded.
2. Consistency Changes to 10 CFR Part 51
    Currently, Sec.  51.53(d) requires that an applicant for a license 
amendment authorizing decommissioning activities for a production or 
utilization facility either for unrestricted use or continuing use 
restrictions submit an environmental report. The regulation at Sec.  
51.95(d) states that the NRC will prepare a supplemental EIS or an 
environmental assessment in connection with an amendment of a license 
to authorize decommissioning activities.
    The 1996 Final Rule eliminated the requirement for nuclear power 
reactor licensees to seek NRC authorization for decommissioning. 
Therefore, there was no need for licensees to submit a license 
amendment or to prepare and submit a supporting environmental report, 
and thus no federal action that would require the NRC to prepare a NEPA 
document. In response to the 1995 decommissioning proposed rule, 
commenters suggested that revisions should be made to then-Sec.  51.53, 
``Supplement to environmental report,'' and then-Sec.  51.95, 
``Supplement to final environmental impact statement,'' to reflect the 
rule change. However, the NRC at that time decided not to amend the 10 
CFR part 51 regulations because non-power reactor facilities were still 
required to submit a decommissioning plan.
    The NRC proposes to revise 10 CFR part 51 to reflect the changes 
made in the 1996 Final Rule that nuclear power reactor licensees are 
not required to submit license amendment requests for authorization to 
perform decommissioning activities. In Sec.  51.53(d), the NRC is 
proposing to remove language referencing an amendment for authorizing 
decommissioning activities and the requirement to prepare an 
environmental report for nuclear power reactors only. In Sec.  
51.95(d), the NRC is similarly proposing to remove language referencing 
an amendment for authorizing decommissioning activities. The NRC 
further proposes to revise Sec.  51.95(d) to indicate that the NRC 
would prepare the necessary NEPA document upon the submittal of a 
license amendment requesting approval of a license termination plan. 
The NRC also proposes to add a cross-reference to Sec.  52.110 in Sec.  
51.53, ``Postconstruction environmental reports,'' as reactors licensed 
under 10 CFR part 52 will perform decommissioning under Sec.  52.110, 
not Sec.  50.82.
    The NRC is not proposing to make any changes in 10 CFR part 51 that 
would impact non-power production or utilization facilities (e.g., 
research and test reactors) or fuel reprocessing plants. Non-power 
production or utilization facility and fuel reprocessing plant 
licensees must continue to submit a license amendment requesting 
approval for a decommissioning plan and to prepare and submit the 
appropriate supporting environmental report, and the NRC would continue 
to prepare the appropriate NEPA documentation.

I. Record Retention Requirements

    The NRC's regulations require nuclear power reactor licensees to 
retain the records associated with certain SSCs until the license is 
terminated and sometimes require that these records be kept in 
duplicate. To decrease the burden associated with long-term record 
storage and increase the overall efficiency of the decommissioning 
process, licensees that are transitioning to decommissioning frequently 
request exemptions from these requirements. Although this approach 
continues to meet the underlying purpose of the recordkeeping 
regulations, the process of preparing, submitting, and reviewing 
exemptions from the record retention requirements is not an efficient 
use of NRC or licensee resources given the fact that the subject 
records are no longer needed to support any NRC-regulated function. In 
addition, maintaining the current regulations with respect to record 
retention during decommissioning can create a situation wherein the 
facilities used to store records are ready to be dismantled in support 
of site decommissioning before the necessary exemptions can be 
processed. The NRC proposes to resolve these issues by amending its 
regulations in this rulemaking.
    The recordkeeping requirements at issue include the following:
     Criterion XVII, ``Quality Assurance Records,'' of appendix 
B, ``Quality Assurance Criteria for Nuclear Power Plants and Fuel 
Reprocessing Plants,'' to 10 CFR part 50 requires licensees to retain 
certain records consistent with

[[Page 12293]]

regulatory requirements for a duration established by the licensees.
     Sections 50.59(d)(3) and 52.63(b)(2) require licensees to 
maintain certain records until termination of a license issued under 10 
CFR part 50 or 10 CFR part 52.
     Section 50.71(c) requires licensees to maintain certain 
records consistent with various elements of the NRC regulations, 
facility TSs, and other licensing basis documents.
     Section 72.72(d) requires licensees to duplicate certain 
records of spent fuel and high-level radioactive waste and store them 
in a separate location sufficiently remote from the original records so 
that a single event would not destroy both sets.
    Licensees that have previously requested exemptions from these 
requirements used the justification that, when the SSCs associated with 
these records are removed from service and the licensing basis 
documents, the SSCs will no longer serve any NRC-regulated function. 
Therefore, it would no longer be necessary to retain the records. In 
addition, several licensees requesting an exemption from the 
requirements of Sec.  72.72(d) used the justification that they will 
store the ISFSI spent fuel records using the same procedures and 
processes used for the facility spent fuel (and other) records, which 
are typically stored in accordance with the NRC-approved quality 
assurance program (QAP).
    The NRC granted the previous record retention exemptions based on a 
finding of reasonable assurance that the licensee would continue to 
meet the underlying purpose of the recordkeeping regulations, which is 
to establish the minimum retention periods necessary for the NRC to 
ensure compliance with the safety and health aspects of the nuclear 
environment and for the NRC to accomplish its mission to protect the 
public health and safety. In ``Retention Periods for Records; Final 
Rule'' (53 FR 19240; May 27, 1988), the Commission explained that 
requiring licensees to maintain adequate records assists the NRC in 
judging compliance and noncompliance, to act on possible noncompliance, 
and to examine facts as necessary following any incident. Because the 
SSCs that were safety-related or important to safety during reactor 
operations or operation of the SFP are removed from the licensing 
basis, and subsequently removed from the plant during the 
decommissioning process, the records associated with those SSCs are no 
longer required to achieve the purpose of the recordkeeping and record 
retention regulations.
    Records associated with SSCs that maintain compliance with 
requirements or that protect public health and safety during the 
decommissioning process have been excluded from these exemptions. 
Examples include those SSCs associated with programmatic controls 
pertaining to residual radioactivity, security, and quality assurance 
(QA), and those SSCs associated with spent fuel assemblies or the SFP 
(while assemblies are still in the pool) and ISFSIs. These exemptions 
do not affect the record retention requirements of Sec.  50.75 or any 
other requirements of 10 CFR part 50 that apply to decommissioning.
    Based on these exemptions, the NRC proposes to change the 
recordkeeping and record retention requirements such that once the NRC 
dockets a licensee's notifications of permanent cessation of operation 
and permanent removal of fuel from the reactor vessel under Sec.  
50.82(a)(2) or Sec.  52.110(a), licensees can then eliminate records 
associated with SSCs that no longer serve any NRC-regulated function. 
The NRC would allow this record disposal as long as appropriate change 
mechanisms, such as the Sec.  50.59 evaluation process or NRC-approved 
TS changes, are used to assess the removal of those records to 
determine that elimination of the records would have no adverse impact 
on public health and safety.
    The records that would be subject to removal are associated with 
SSCs that had been important to safety during reactor operation or 
operation of the SFP, but that are no longer capable of causing an 
event, incident, or condition that would adversely impact public health 
and safety, as evidenced by their appropriate removal from the 
licensing basis documents. Since the SSCs no longer have the potential 
to cause these scenarios, it is reasonable to conclude that the records 
associated with these SSCs would not reasonably be necessary to assist 
the NRC in determining compliance, taking action on possible 
noncompliance, and examining facts following an incident. Therefore, 
retention of such records would not serve the underlying purpose of the 
recordkeeping regulations.
    The NRC proposes to make the following four changes to the 
recordkeeping and record retention requirements and regulatory guidance 
to enhance the efficiency of the decommissioning regulations:
    1. Clarify in RG 1.184, ``Decommissioning of Nuclear Power 
Reactors,'' that the requirements in appendix B to 10 CFR part 50, 
Criterion XVII, concerning record retention, such as duration, 
location, and assigned responsibility, continue to be met with the 
recommended changes to the recordkeeping and record retention 
requirements.
    2. Amend Sec.  50.71(c) to specify that licensees for which the NRC 
has docketed the certifications required under Sec.  50.82(a)(1) or 
Sec.  52.110(a) are not required to retain records associated with SSCs 
that have been removed from service using an NRC-approved change 
process. However, Sec.  50.71(c) would require licensees to retain 
records important to decommissioning as specified under Sec.  50.75(g).
    3. Amend Sec. Sec.  50.59(d)(3) and 52.63(b)(2) to clarify that 
records of changes in the facility must be maintained until the 
termination of the license except for records associated with SSCs 
removed from service using an NRC-approved change process after the NRC 
has docketed the certifications required under Sec.  50.82(a)(1) or 
Sec.  52.110(a).
    4. Amend Sec.  72.72(d) to allow that records of spent fuel, high-
level radioactive waste, and reactor-related greater than Class C 
(GTCC) waste containing special nuclear material no longer be kept in 
duplicate, as long as the licensee can demonstrate that it will store 
the records in the same manner as it would for other QA records using a 
single storage facility subject to the same procedures and processes 
outlined in an NRC-approved QAP.
    In most cases, an NRC-approved QAP involves document storage 
requirements that meet American National Standards Institute (ANSI) 
standard N45 2.91974, ``Requirements for Collection, Storage, and 
Maintenance of Quality Assurance Records,'' which specifies, in part, 
the design requirements for use in the construction of record storage 
facilities when the use of a single storage facility is desired. In 
approving the associated QAP, the NRC typically approves the single 
facility location used for the storage and maintenance of QA records at 
the facility, and the licensee typically affirms in the QAP that the 
record storage facility was constructed and is being maintained to meet 
the requirements of the NRC-approved QAP.
    Records for an ISFSI at a specific facility are typically 
classified as QA records and include all documents and records 
associated with the operation, maintenance, installation, repair, and 
modification of SSCs covered by the QAP. An ISFSI's records also 
include historical records that have been gathered and collected during 
plant and ISFSI operations. These records are either required in 
support of the dry cask storage systems used at the ISFSI

[[Page 12294]]

or for ultimate shipment of the fuel to a Federal repository. The QAP 
typically allows the storage of QA records, including ISFSI records, to 
be done in accordance with ANSI N45 2.9-1974 in a single storage 
facility designed and maintained to minimize the risk of damage from 
adverse conditions.
    The retention of records required by Sec.  50.59(d)(3); Sec.  
52.63(b)(2); Sec.  50.71(c); and appendix B to 10 CFR part 50, 
Criterion XVII provides assurance that records associated with SSCs 
will be captured, indexed, and stored in an environmentally suitable 
and retrievable condition. Although licensees retain the records 
required by their license as the plant transitions from operating 
conditions to a fully decommissioned state, plant dismantlement 
obviates the regulatory need for maintenance of most records. As the 
SSCs already removed from the licensing basis are subsequently 
dismantled and the need for the associated records is, on a practical 
basis, eliminated, the proposed rule changes would allow disposal of 
the records associated with SSCs and historical activities that are no 
longer relevant and thereby eliminate the associated regulatory and 
economic burdens of creating alternative storage locations, relocating 
records, or retaining irrelevant records. The proposed recordkeeping 
and record retention changes only expedite the schedule for disposition 
of the specified records. Considering the content of these records, 
their elimination on an advanced timetable has no reasonable potential 
of presenting any undue risk to public health and safety. In addition, 
upon dismantlement of the affected SSCs, the records have no functional 
purpose relative to maintaining the safe operation of the SSCs, 
maintaining conditions that would affect the ongoing health and safety 
of workers or the public, or informing decisions related to nuclear 
safety and security.
    In addition, the proposed change to the portion of Sec.  72.72(d) 
to eliminate the requirement for ISFSI licensees to keep a duplicate 
set of records for spent fuel in storage, would continue to meet the 
recordkeeping requirements of appendix B to 10 CFR part 50 and other 
applicable 10 CFR part 72 requirements for the storage and maintenance 
of spent fuel records in accordance with an NRC-approved QAP. 
Specifically, Sec.  72.140(d) states that a QA program that the NRC has 
approved as meeting the applicable requirements of appendix B to 10 CFR 
part 50, will be accepted as satisfying the requirements of Sec.  
72.140(b) for establishing an ISFSI QA program. However, the licensee 
must also meet the recordkeeping provisions of Sec.  72.174, ``Quality 
assurance records.'' In addition, the proposed rule change would not 
affect the record content, retrievability, or retention requirements 
specified in Sec.  72.72, ``Material balance, inventory, and records 
requirements for stored materials,'' or Sec.  72.174, such that the 
licensee will continue to meet all other applicable recordkeeping 
requirements for the ISFSI and associated special nuclear materials.
    In proposing these rule changes, the NRC determined that the 
process and procedures used to store the ISFSI records (i.e., in 
accordance with the QAP at a facility designed for protection against 
degradation mechanisms such as fire, humidity, and condensation) would 
help ensure that the licensee will adequately maintain the required 
spent fuel information. Therefore, changes to the duplicate record 
requirement of Sec.  72.72(d) would not affect public health and 
safety. In addition, allowing the ISFSI spent fuel records to be stored 
in the same manner as that of other QA records for the nuclear facility 
would provide for greater efficiency in the storage of all records once 
the facility enters the final stages of decommissioning, where only the 
ISFSI facility would remain after license termination.

J. Low-Level Waste Transportation

    Paragraph III.E of appendix G, ``Requirements for Transfers of Low-
Level Radioactive Waste Intended for Disposal at Licensed Land Disposal 
Facilities and Manifests,'' to 10 CFR part 20, ``Standards for 
Protection Against Radiation,'' contains requirements for 
investigating, tracing, and reporting shipments of low-level 
radioactive waste (LLW) if the shipper \6\ has not received 
notification of receipt within 20 days after transfer. In addition, 
paragraph III.E requires the shipper to report such missing shipments 
to the NRC. Licensees, primarily those that are involved in the 
decommissioning process, frequently request an exemption from the 
requirement related to the 20-day receipt notification window. The NRC 
proposes to amend this requirement to extend the receipt notification 
window because such an extension would provide licensees with 
flexibility while not impacting public health and safety or the common 
defense and security.
---------------------------------------------------------------------------

    \6\ Paragraph III.E of appendix G to 10 CFR part 20 uses the 
term ``shipper,'' which the regulation defines to mean ``the 
licensed entity (i.e., the waste generator, waste collector, or 
waste processor) who offers low-level radioactive waste for 
transportation, typically consigning this type of waste to a 
licensed waste collector, waste processor, or land disposal facility 
operator.''
---------------------------------------------------------------------------

    Licensees that have previously been granted these exemptions 
typically requested extension of the investigation notification window 
to 45 days using the justification that operating experience indicates 
that, while the 20-day receipt notification window is adequate for 
waste shipments by truck, waste shipments using other modes of shipment 
such as rail, barge, or mixed-mode shipments, such as combinations of 
truck and rail, barge and rail, and barge and truck shipments, may take 
more than 20 days to reach their destination due to delays in the route 
that are outside the shipper's control (e.g., rail cars in switchyards 
waiting to be included in a complete train to the disposal facility). 
The NRC granted the previous transportation investigation requirement 
exemptions based on a finding of reasonable assurance that the shipper 
would continue to meet the underlying purpose of the LLW transportation 
regulations--to require the shipper to investigate, trace, and report 
radioactive shipments that have not reached their destination, as 
scheduled, for unknown reasons.
    Under the current regulations, the shipper must investigate, trace, 
and report to the NRC any shipments of LLW for which the shipper has 
not received a notification of receipt within 20 days after transfer 
unless the shipper receives an exemption from the 20-day receipt 
notification requirement. The NRC has found that exempting licensees 
from this requirement does not undermine public health and safety, nor 
does it increase any security risk. Further, the preparation and 
submission of the exemption request, and its review, evaluation, and 
approval by the NRC, are not efficient uses of NRC or licensee 
resources. Specifically, the NRC notes that allowing the receipt 
notification to be made past 20 days would not impact public health, 
safety, or security even if the LLW transportation package was situated 
in a publicly accessible area and waiting for continuing transport to 
the waste disposal site because: (1) Individuals in the vicinity of the 
LLW transportation package would receive no additional radiological 
dose above background levels resulting from the disposal container; and 
(2) the LLW would remain secured in the transportation package until 
the package can be delivered to the waste disposal site. The NRC also 
notes that, for LLW waste shipments, most shippers will use an 
electronic data tracking system interchange or similar tracking systems 
that allow the carrier to monitor the

[[Page 12295]]

progress of the shipments daily. Because of the oversight and 
monitoring of radioactive waste shipments throughout the journey from 
the nuclear facility to the disposal site, the loss, misdirection, or 
diversion of a shipment without the knowledge of the carrier or the 
shipper is unlikely.
    Therefore, the NRC proposes to change the requirement for the 
investigation, tracing, and reporting timeframe for LLW transportation 
to extend the receipt notification window to 45 days after the shipper 
transfers LLW from a licensed facility to a disposal site. This change 
would continue to meet the underlying purpose of appendix G to 10 CFR 
part 20, paragraph III.E, which requires the shipper to investigate, 
trace, and report LLW shipments that have not reached their 
destination, as scheduled, for unknown reasons. Furthermore, extending 
the time period for notification of receipt to 45 days before requiring 
investigation, tracing, and reporting, would maintain a reasonable 
upper limit on shipment duration if a breakdown of normal tracking 
systems were to occur, based on operating experience.
    In addition, the NRC proposes correcting a typographical error in 
the current version of appendix G to 10 CFR part 20, paragraph III.E. 
Specifically, that paragraph states that LLW shipments must ``be 
investigated by the shipper if the shipper has not received 
notification or receipt within 20 days after transfer . . .'' (emphasis 
added). The ``or'' should be an ``of,'' consistent with the subsequent 
discussions in 10 CFR part 20 regarding notifications of receipt and 
the associated exemptions granted in this area. Therefore, the NRC 
proposes correcting this error as part of this proposed rule for 
consistency and clarity within 10 CFR part 20.

K. Spent Fuel Management Planning

    The regulation in Sec.  72.218(a) states that the Sec.  50.54(bb) 
spent fuel management program (i.e., the irradiated fuel management 
plan or IFMP) must include a plan for removing from the reactor site 
the spent fuel stored under the 10 CFR part 72 general license. The 
IFMP must show how the spent fuel will be managed before starting to 
decommission systems and components needed for moving, unloading, and 
shipping this spent fuel. Section 72.218(b) requires that an 
application for termination of a reactor operating license submitted 
under Sec.  50.82 or Sec.  52.110 must also describe how the spent fuel 
stored under the 10 CFR part 72 general license will be removed from 
the reactor site. Although Sec.  72.218 states what information the 
Sec.  50.54(bb) IFMP and the Sec.  50.82 and Sec.  52.110 application 
for termination of a reactor operating license must include, the 
regulations in Sec. Sec.  50.54(bb), 50.82, and 52.110 do not contain 
this information.
    As Sec. Sec.  50.54(bb), 50.82, and 52.110 do not reflect or 
otherwise reference the provisions in Sec.  72.218, this causes 
regulatory uncertainty. The NRC proposes to clarify and align the 
regulations in Sec. Sec.  50.54(bb), 50.82, 52.110, and 72.218 to 
provide regulatory clarity and enhance overall regulatory transparency 
and openness regarding decommissioning and spent fuel management 
planning.
1. Requirements for the IFMP in Sec.  50.54(bb) and the PSDAR in Sec.  
50.82 and Sec.  52.110
    The PSDAR and IFMP are planning documents for decommissioning and 
spent fuel management, respectively. The current requirements for the 
timing of the submittal of the PSDAR and IFMP are similar, as the NRC's 
regulations recognize that a licensee's ability to plan properly and 
safely for decommissioning is closely related to the licensee's ability 
to manage its spent fuel. Actions to manage spent fuel include 
activities taken prior to and subsequent to decommissioning. Therefore, 
a licensee's spent fuel management plans and its decommissioning plans 
should be consistent.
    Because Sec.  50.54(bb) already addresses the topic of spent fuel 
management planning, the NRC proposes including the Sec.  72.218 
provisions in Sec.  50.54(bb) to clarify that the Sec.  50.54(bb) IFMP 
must be submitted by the licensee and approved by the NRC before the 
licensee starts to decommission SSCs needed for moving, unloading, and 
shipping the spent fuel. Additionally, the NRC proposes that the IFMP 
must be submitted prior to or within 2 years following permanent 
cessation of operations.
    The NRC proposes to further restructure Sec.  50.54(bb) to clarify 
that the IFMP addresses both the safety and financial aspects of 
managing spent fuel. The IFMP would describe the licensee's planned 
actions for managing spent fuel, how those actions would be consistent 
with the NRC requirements for possession of spent fuel, and any actions 
related to spent fuel management that would require amendments to the 
license or certificate of compliance or exemptions from applicable 
regulations, which is consistent with the current rule language. The 
IFMP would also describe the projected cost of managing spent fuel and 
how the licensee would provide funding for the management of the spent 
fuel, until title to, and possession of, the spent fuel is transferred 
to the Department of Energy (DOE), which is also consistent with the 
current rule language. The regulation in Sec.  50.54(bb) would also 
continue to require licensees to retain a copy of the IFMP as a record, 
and the NRC proposes to clarify that the IFMP must be retained until 
termination of the 10 CFR part 50 or 10 CFR part 52 license.
    The NRC proposes to clarify the current IFMP approval process and 
the Sec.  50.54(bb) provisions regarding preliminary approval and final 
NRC review of the IFMP as part of any proceeding for continued 
licensing under 10 CFR part 50 or 10 CFR part 72. With regard to the 
NRC's final review of the IFMP ``as part of any proceeding for 
continued licensing under 10 CFR part 50 or 10 CFR part 72,'' these 
proceedings no longer exist as they did when Sec.  50.54(bb) was first 
promulgated in 1984. In the 1984 Final Rule, the Commission discussed 
the ``proceeding for continued licensing under part 50'' as the pre-
1996 reactor decommissioning process, where licensees were required to 
submit a license amendment request for approval of the decommissioning 
plan and to change the license from an operating license to a 
possession-only license before licensees could begin decommissioning. 
The NRC noted in the 1984 Final Rule that the IFMP would become part of 
the conditions of an amended 10 CFR part 50 license for a shutdown 
reactor facility. After the 1996 rulemaking, the NRC no longer requires 
submittal of a license amendment when a reactor ceases operations, and 
thus, there is no longer a ``proceeding for continued licensing under 
part 50'' for the NRC to review and approve the IFMP.
    The 1984 Final Rule discusses the ``proceeding for continued 
licensing under part 72'' as the application for, and NRC issuance of, 
a 10 CFR part 72 specific license for storage of spent fuel in an 
ISFSI. The 1984 issuance of Sec.  50.54(bb) preceded the general 
license ISFSI provisions, which were added to 10 CFR part 72 in 1990. 
Regarding the 10 CFR part 72 general license, storage of spent fuel in 
a general license ISFSI is authorized by operation of law via Sec.  
72.210, so there is no NRC ``licensing proceeding'' or approval needed 
for the 10 CFR part 72 general license. As most reactor licensees use 
the 10 CFR part 72 general license for storage of spent fuel in an 
ISFSI, there would be no ``proceeding for continued licensing under 
part 72'' for the NRC to review

[[Page 12296]]

and approve the IFMP. Therefore, the NRC proposes to require submittal 
of the IFMP to the NRC as a license amendment request. The NRC also 
proposes to require licensees to submit to the NRC any changes to the 
IFMP as an application for an amendment to its license.
2. Requirements in Sec.  72.218 for Termination of the General License 
for Spent Fuel Storage
    Because the current spent fuel management planning provisions of 
Sec.  72.218 are initiated by reactor shutdown and are related to 
reactor decommissioning, the requirements fit best in 10 CFR part 50 
and are not necessarily needed in 10 CFR part 72. Therefore, as the NRC 
proposes adding the spent fuel management provisions from Sec.  72.218 
into Sec.  50.54(bb), the NRC also proposes deleting those provisions 
from Sec.  72.218. In addition, the NRC proposes revising Sec.  72.218 
to address requirements related to termination of the 10 CFR part 72 
general license, as the current title of Sec.  72.218, ``Termination of 
licenses,'' suggests.
    The 10 CFR part 72 general license is issued to 10 CFR part 50 or 
10 CFR part 52 licensees, per the regulation in Sec.  72.210. It 
follows that the 10 CFR part 72 general license would terminate 
coincident with the termination of the 10 CFR part 50 or 10 CFR part 52 
license. In addition, since the general license ISFSI is part of the 10 
CFR part 50 or 10 CFR part 52 licensed site, decommissioning of the 
general license ISFSI would follow the reactor decommissioning process 
in Sec.  50.82 or Sec.  52.110, respectively. This approach would also 
be consistent with the NRC's approach to ISFSI decommissioning funding 
as discussed in the ``Decommissioning Funding Assurance'' section of 
this document.
    However, to provide regulatory clarity between 10 CFR parts 50, 52, 
and 72 in terms of decommissioning and termination of the 10 CFR part 
72 general license, the NRC proposes to revise Sec.  72.218 to include 
the following provisions: (1) The general license ISFSI must be 
decommissioned consistent with the requirements in Sec.  50.82 or Sec.  
52.110; and (2) the general license is terminated upon termination of 
the 10 CFR part 50 or 10 CFR part 52 license. This proposed change 
would provide regulatory clarity among 10 CFR parts 50, 52, and 72 in 
terms of decommissioning and termination of the 10 CFR part 72 general 
license, analogous to the provision in Sec.  72.210 that ties the 
issuance of the 10 CFR part 72 general license to the existence of the 
10 CFR part 50 or 10 CFR part 52 license.

L. Backfit Rule

    For nuclear power reactor licensees, the NRC's backfitting 
provisions are located in Sec.  50.109, ``Backfitting,'' and the issue 
finality provisions are in 10 CFR part 52 (hereinafter collectively 
referred to as the ``Backfit Rule''). The language of the Backfit Rule 
clearly applies to a licensee designing, constructing, or operating a 
nuclear power facility. For example, Sec.  50.109(a)(1) defines 
``backfitting'' to mean changes to, among other things, the procedures 
or organization required to design, construct or operate a facility. 
The application of the Backfit Rule to decommissioning plants is not as 
clear. In SECY-98-253, ``Applicability of Plant-Specific Backfit 
Requirements to Plants Undergoing Decommissioning,'' dated November 4, 
1998 (ADAMS Accession No. ML992870107), the NRC staff presented the 
Commission with a list of reasons underlying this uncertainty:
     The Backfit Rule has no end point when the rule no longer 
applies, ``thereby implying that backfit protection continues into 
decommissioning and up to the point of license termination.''
     The term ``operate'' could reasonably be interpreted as 
including activities to decommission the reactor.
     The Backfit Rule was developed when the decommissioning of 
plants was not an active area of regulatory concern.
     The Backfit Rule's definition of ``backfitting'' uses 
terms associated with the design, construction, and operation of a 
facility rather than with its decommissioning, although the staff noted 
in SECY-98-253 that ``prior to the 1996 decommissioning rule, the 
Commission regarded decommissioning as a phase of the plant's life 
cycle which is different from the operational phase.''
     Two of the factors used in evaluating a backfit--costs of 
construction delay/facility downtime, and changes in plant/operational 
complexity--are targeted to power operation and are ``conceptually 
inappropriate in evaluating the impacts of a backfit on a 
decommissioning plant.''
     The SOC for the 1970 (35 FR 5317; March 31, 1970), 1985 
(50 FR 38097; September 20, 1985), and 1988 (53 FR 20603; June 6, 1988) 
final Backfit Rules did not discuss any aspect of decommissioning, 
focusing instead on construction and operation.
     Proposed changes to decommissioning requirements usually 
focused on relaxing a requirement or on whether a requirement 
applicable to an operating reactor continued to be applicable to a 
decommissioning plant. Thus, ``the notion of a `substantial increase' 
in protection to public health and safety from a backfit does not 
appear to be particularly useful [in decommissioning].''
     The 1996 Final Rule did not directly respond to questions 
from the public on the applicability of the Backfit Rule to a 
decommissioning plant.
    Over the years, the NRC has tried to clarify the applicability of 
the Backfit Rule to nuclear power reactor licensees in decommissioning. 
In SECY-98-253, the NRC staff requested Commission approval to amend 
Sec.  50.109, among other regulations, so that the Backfit Rule would 
clearly apply to licensees in decommissioning. In that paper, the NRC 
staff also proposed that, until the rulemaking was finished, the staff 
would apply the Backfit Rule to plants undergoing decommissioning ``to 
the extent practical.''
    In the February 12, 1999, SRM for SECY-98-253 (ADAMS Accession No. 
ML003753746), the Commission approved development of a Backfit Rule for 
plants undergoing decommissioning. The Commission directed the NRC 
staff to continue to apply the then-current Backfit Rule to plants 
undergoing decommissioning until issuance of the final rule. The 
Commission directed the staff to develop a rulemaking plan, which the 
staff transmitted to the Commission in SECY-00-0145. In SECY-00-0145, 
the NRC staff proposed, among other decommissioning-related amendments 
to its regulations, amendments to Sec.  50.109 to show clearly that the 
Backfit Rule applies during decommissioning and to remove factors that 
are not applicable to nuclear power plants in decommissioning. As 
explained in the section titled ``Actions Leading to this 2018 Proposed 
Rule'' in this document, the NRC ultimately did not conduct that 
rulemaking. Therefore, the NRC has continued to apply the Backfit Rule 
to licensee facilities undergoing decommissioning to the extent 
practical.
    In addition to the Commission direction to clarify the application 
of the Backfit Rule for decommissioning nuclear power reactor 
licensees, the NRC's regulatory framework also supports application of 
the Backfit Rule to nuclear power reactor licensees in decommissioning. 
Under sections 101 and 103a. of the AEA (42 U.S.C. 2131 and 2133a.), 
the NRC's issuance of a nuclear power reactor operating license under 
10 CFR part 50 or a combined license under 10 CFR part 52 grants the

[[Page 12297]]

holder a license to, among other things, own, possess, and operate a 
``production facility'' or ``utilization facility,'' as those terms are 
defined in section 11 of the AEA. Once the licensee under 10 CFR part 
50 or 10 CFR part 52 submits its certifications of permanent cessation 
of reactor operations and permanent removal of fuel from the reactor 
vessel and the NRC dockets those certifications, the licensee is no 
longer authorized to operate the reactor under Sec.  50.82(a)(2) or 
Sec.  52.110(b), respectively. The license is no longer an ``operating 
license'' for the reactor because the licensee is not operating a 
production or utilization facility pursuant to sections 101 and 103a. 
of the AEA. Instead, as described in Sec.  50.51(b) for 10 CFR part 50 
licenses and Sec.  52.109, ``Continuation of combined license,'' for 10 
CFR part 52 combined licenses, when the reactor has permanently ceased 
operations, the license continues in effect beyond the expiration date 
and authorizes ownership and possession of the facility until the 
Commission terminates the license. Thus, when the licensee is no longer 
authorized to operate the reactor, it retains its possession and 
ownership authority under its 10 CFR part 50 or 10 CFR part 52 facility 
license.
    Although a decommissioning licensee's license no longer authorizes 
operation of the reactor because the licensee is not operating a 
production or utilization facility, the licensee still must ``operate'' 
certain SSCs at the site. Under Sec.  50.51(b) (with a similar 
requirement in Sec.  52.109 for combined license holders), when the 
licensee has only a possession and ownership license for the reactor, 
the licensee must not only decommission and decontaminate the facility, 
but also continue to maintain the facility, including storing, 
controlling and maintaining the spent fuel in a safe condition. 
Therefore, nuclear power reactor licensees store, control, and maintain 
spent fuel after permanent cessation of reactor operations through the 
``operation'' of an SFP and ISFSI.
    Although Sec.  50.109(a)(1) defines ``backfitting'' as changes to, 
among other things, the procedures or organization required to design, 
construct, or operate a facility, indicating that the Backfit Rule 
applies only to a holder of a license to ``operate a facility,'' the 
language of Sec.  50.51(b) shows that ``operating a facility'' can be 
interpreted to mean more than just operating a reactor. This is 
supported by the Commission direction in the SRM for SECY-98-253 that 
the NRC staff develop a Backfit Rule for plants undergoing 
decommissioning (i.e., when the licensee no longer operates a reactor) 
and continue to apply the then-current Backfit Rule to plants 
undergoing decommissioning until issuance of the final rule. Thus, the 
Backfit Rule still applies to a licensee that has a license to only 
possess and own a facility. For a facility in decommissioning, the 
phrase ``operate a facility'' in Sec.  50.109(a)(1) is read to 
encompass operating the SFP and associated SSCs necessary for 
compliance with Sec.  50.51(b).
    As the Commission and the NRC staff recognized in the 1990s, 
certain provisions of the Backfit Rule do not clearly apply to nuclear 
power reactor licensees in decommissioning. In this proposed rule, the 
NRC proposes to complete the process begun two decades ago to clarify 
the application of the Backfit Rule to nuclear power reactor licensees 
in decommissioning.
    The NRC proposes to amend Sec.  50.109 so that nuclear power 
reactor licensees, which have had their Sec.  50.82(a)(1) or Sec.  
52.110(a) certifications docketed by the NRC, are the subject of 
similar backfitting provisions as they were during their operating 
phase. A new backfitting provision for licensees in decommissioning 
would eliminate any confusion with the meaning of the words ``operate a 
facility'' in Sec.  50.109(a)(1), as compared to other uses of the term 
``operate'' in 10 CFR Chapter I.
    The NRC would make other revisions to Sec.  50.109. To make the 
section easier to read, the NRC proposes to insert paragraph headings. 
The NRC would remove current Sec.  50.109(b) regarding backfits imposed 
prior to October 21, 1985, because the language is obsolete and no 
longer needed. In the current Sec.  50.109(a)(6), the NRC proposes to 
insert a sentence explaining that a documented evaluation, which is 
used by the NRC to justify not performing a backfit analysis, must 
include a consideration of the costs of imposing the backfit if the 
basis for backfitting is bringing a facility into compliance with a 
license or the rules or orders of the Commission, or into conformance 
with the licensee's written commitments.
    Further, the NRC proposes to make conforming changes to Sec.  72.62 
to clarify that the corresponding backfit regulations in part 72 apply 
during the decommissioning of an ISFSI or a Monitored Retrievable 
Storage facility subject to those provisions.

M. Foreign Ownership, Control, or Domination

    The NRC is proposing to amend its regulations to address the 
circumstances when a facility licensed under 10 CFR part 50 or 10 CFR 
part 52 no longer meets the definition of a utilization facility or a 
production facility. The AEA has certain requirements specific to 
utilization or production facilities. By clarifying when a 10 CFR part 
50 or 10 CFR part 52 licensed facility is no longer a utilization or a 
production facility, the NRC can then specify whether these AEA 
requirements still apply to the licensee for that facility. For 
instance, the AEA prohibits the issuance of a license for a utilization 
or a production facility to an entity that the Commission knows or has 
reason to believe is foreign owned, controlled, or dominated. The 
Commission's regulations that implement this prohibition, however, are 
unclear as to when a facility undergoing decommissioning is no longer a 
utilization or a production facility. Given this uncertainty, licensees 
have requested exemptions from Sec.  50.38, ``Ineligibility of certain 
applicants,'' to transfer 10 CFR part 50 licenses for facilities that 
no longer meet the definition of utilization facility. The NRC proposes 
to amend its regulations to clarify when a facility licensed under 10 
CFR part 50 or part 52 is not considered a production or utilization 
facility and therefore, the FOCD prohibition no longer applies.
    The NRC's regulations in 10 CFR parts 50 and 52 provide for the 
issuance of a 10 CFR part 50 license for a utilization or a production 
facility and a 10 CFR part 52 license for a utilization facility. The 
AEA defines ``utilization facility'' as:

    (1) Any equipment or device, except an atomic weapon, determined 
by rule of the Commission to be capable of making use of special 
nuclear material in such quantity as to be of significance to the 
common defense and security, or in such manner as to affect the 
health and safety of the public, or peculiarly adapted for making 
use of atomic energy in such quantity as to be of significance to 
the common defense and security, or in such manner as to affect the 
health and safety of the public; or (2) any important component part 
especially designed for such equipment or device as determined by 
the Commission.

    The AEA defines ``production facility,'' in part, as:

    (1) Any equipment or device determined by rule of the Commission 
to be capable of the production of special nuclear material in such 
quantity as to be of significance to the common defense and 
security, or in such manner as to affect the health and safety of 
the public; or (2) any important component part especially designed 
for such equipment or device as determined by the Commission.

    As authorized by the AEA, the Commission has a rule defining 
utilization facility and production

[[Page 12298]]

facility. In Sec.  50.2, a utilization facility is defined as either 
(1) any nuclear reactor other than one designed or used primarily for 
the formation of plutonium or U-233; or (2) an accelerator-driven 
subcritical operating assembly used for the irradiation of materials 
containing special nuclear material and described in the application 
for the SHINE Medical Isotope Production Facility. A production 
facility is defined as a nuclear reactor designed or used primarily for 
the formation of plutonium or uranium-233; with certain exceptions not 
relevant here, a facility designed or used for the separation of the 
isotopes of plutonium; or, with certain exceptions not relevant here, a 
facility designed or used for the processing of irradiated materials 
containing special nuclear material.
    NRC case law provides insight as to when a facility licensed under 
10 CFR part 50 or 10 CFR part 52 is no longer a utilization or a 
production facility. In LBP-84-33, Cincinnati Gas & Electric Co. (Wm. 
H. Zimmer Nuclear Power Station, Unit 1), 20 NRC 765 (1984), an Atomic 
Safety and Licensing Board granted the licensee's motion to withdraw 
its application for a 10 CFR part 50 operating license for a nuclear 
power reactor, despite the fact that the facility was almost completely 
built. One of the conditions for granting the motion was that the 
nuclear steam supply system be modified to prevent the facility's 
operation as a utilization facility. The Board determined that because 
a utilization facility under the AEA is a facility that is capable of 
making use of special nuclear material, the facility must be modified 
to eliminate that capability for it to no longer be categorized as a 
utilization facility. The Board observed that this can be achieved, for 
example, by severing and welding caps on main feedwater lines and main 
steam lines and removing the fuel and the control rod drive mechanisms.
    The NRC proposes to add to its regulations language similar to the 
Zimmer decision to establish the criteria for when a facility licensed 
under 10 CFR part 50 or 10 CFR part 52 no longer meets the statutory or 
regulatory definition of a utilization or a production facility (i.e., 
is no longer capable of making use of special nuclear material or of 
the production of special nuclear material, separation of the isotopes 
of plutonium, or processing of irradiated materials containing special 
nuclear material (hereinafter collectively referred to as production-
facility activities)). The first criterion is that the facility must 
not be legally authorized to operate. The second criterion is the 
physical modification of the licensed facility to be incapable of 
making use of special nuclear material and of production-facility 
activities, without significant facility alterations necessary to 
restore the capability to make use of special nuclear material or to 
engage in production-facility activities. When a utilization facility 
is physically modified to be incapable of making use of special nuclear 
material, it is no longer designed or used to sustain nuclear fission 
in a self-supporting chain reaction.
    Sections 50.82(a)(2) and 52.110(b) already provide for the first 
criterion for nuclear power reactor licensees--that the facility is no 
longer legally authorized to operate. Sections 50.82(a)(2) and 
52.110(b) state, respectively, that a 10 CFR part 50 license and a 10 
CFR part 52 license no longer authorize operation of the reactor or 
emplacement or retention of fuel into the reactor vessel once the NRC 
has docketed the certifications for permanent cessation of operations 
and permanent removal of fuel from the reactor vessel, or when a final 
legally effective order to permanently cease operations has come into 
effect. The NRC would amend these regulations to add the second 
criterion--that the facility licensed under 10 CFR part 50 or 10 CFR 
part 52 is no longer a utilization facility once the licensee modifies 
the facility to be incapable of making use of special nuclear material 
without significant facility alterations.
    Because the NRC's regulations do not state when a non-power 
production or utilization facility or fuel reprocessing plant licensee 
is no longer authorized to operate (other than at license termination), 
the NRC proposes to amend Sec.  50.82(b) to add the criteria for when a 
non-power production or utilization facility or fuel reprocessing plant 
is no longer a production or utilization facility. The NRC would 
renumber current paragraph (b)(6) in Sec.  50.82 as paragraph (b)(8) 
and add new paragraphs (b)(6) and (b)(7). New paragraph (b)(6) would 
provide that a non-power production or utilization facility or fuel 
reprocessing plant is not legally capable of operating when the NRC 
removes the licensee's authority to operate the facility through a 
license amendment. The NRC can remove a non-power production or 
utilization facility or fuel reprocessing plant licensee's authority to 
operate by issuing a possession-only license amendment or by approving 
the licensee's decommissioning plan through a license amendment, either 
of which would explicitly remove the licensee's authority to operate. 
Licensees typically request a possession-only license amendment first 
and then submit a decommissioning plan via a second license amendment 
request. This proposed rule would offer licensees the option to request 
only one licensing action--the decommissioning plan license amendment--
that also would address the licensee's operating authority, rendering a 
separate ``possession-only license amendment'' unnecessary. To address 
those instances when the licensee is still operating the facility when 
the licensee submits its decommissioning plan license amendment 
request, the decommissioning plan license amendment would itself 
identify the date on which the authority to operate is removed.
    The NRC would also include in new Sec.  50.82(b)(6) the second 
criterion for when the non-power production or utilization facility or 
fuel reprocessing plant is no longer a production or a utilization 
facility (i.e., once the licensee modifies the facility to be incapable 
of production-facility activities and making use of special nuclear 
material without significant facility alterations).
    The NRC would add new Sec.  50.82(b)(7) and amend Sec.  50.82(a)(2) 
and Sec.  52.110(b) to affirm the continuation of the NRC's statutory 
authority over the existing 10 CFR part 50 or 10 CFR part 52 license 
after the performance of decommissioning activities that lead to the 
licensed facility no longer meeting the definition of a utilization or 
a production facility. This facility transition occurs with every 
licensee during decommissioning: Eventually, the facility will be 
dismantled to the point where it is incapable of making use of special 
nuclear material or of production-facility activities without 
significant facility alterations.
    Although the facility licensed under 10 CFR part 50 or 10 CFR part 
52 may no longer be a utilization or a production facility, the NRC 
maintains the authority to regulate the existing 10 CFR part 50 or 52 
license. A 10 CFR part 50 operating license for a production or 
utilization facility is issued under AEA sections 103 or 104, and a 10 
CFR part 52 combined license for a utilization facility is issued under 
AEA sections 103 and 185b. That license may contain authorities beyond 
those governed by 10 CFR parts 50 or 52. Under Sec.  50.52, ``Combining 
licenses,'' the Commission may combine in a single license the 
activities that would otherwise be licensed under separate licenses. 
Accordingly, a typical 10 CFR part 50 or 52 nuclear power reactor 
license also

[[Page 12299]]

includes in a single license the authority under 10 CFR parts 30, 40, 
and 70 of the NRC's regulations to perform activities or possess 
materials authorized by those parts. Parts 30, 40, and 70 of 10 CFR are 
authorized by sections 81, 63, and 53 of the AEA and concern the 
licensing of byproduct, source, and special nuclear materials, 
respectively. A typical 10 CFR part 50 non-power production or 
utilization facility license also includes the authority under 10 CFR 
parts 30 and 70 of the NRC's regulations to perform activities or 
possess materials authorized by those parts. When the facility is no 
longer a production or utilization facility, the NRC maintains the 
authority to regulate the facility and the 10 CFR part 50 or 52 license 
under a combination of AEA sections 53, 63, 81, and 161. Sections 
50.51(b) and 52.109 of the NRC's regulations also establish that the 10 
CFR part 50 or 52 license continues in effect until the NRC terminates 
the license, notwithstanding the fact that at some point in time during 
the dismantlement required for license termination, the licensed 
facility will be disassembled to such an extent that it no longer 
satisfies the definition of a utilization or a production facility. 
Therefore, the NRC would amend Sec.  50.82(a)(2), Sec.  50.82(b), and 
Sec.  52.110(b) to explicitly cite these statutory provisions as the 
basis for its retention of the authority to regulate the existing 10 
CFR parts 50 or 52 facility. The NRC proposes to make conforming 
changes to the authority citations for 10 CFR parts 50 and 52 to add 
sections 53, 63, and 81 of the AEA.
    The NRC proposes to amend Sec.  50.82(a)(2), Sec.  50.82(b), and 
Sec.  52.110(b) to state which requirements apply to the existing 10 
CFR part 50 or 52 license after the licensed facility is no longer a 
utilization or a production facility. As provided by section 161b of 
the AEA, the Commission is authorized to establish by regulation such 
standards to govern the possession and use of special nuclear material, 
source material, and byproduct material as the Commission may deem 
necessary or desirable to promote the common defense and security or to 
protect health or to minimize danger to life or property. Consistent 
with this statutory authority, the proposed amendments to Sec.  
50.82(a)(2), Sec.  50.82(b), and Sec.  52.110(b) will make clear that, 
after the facility licensed under 10 CFR part 50 or 52 is no longer a 
utilization or a production facility and until the termination of the 
10 CFR part 50 license pursuant to Sec.  50.82(a)(11) or Sec.  
50.82(b)(8) or the 10 CFR part 52 license pursuant to Sec.  52.110(k), 
the NRC regulations applicable to utilization or production facilities 
will continue to apply to the holder of the 10 CFR part 50 or 10 CFR 
part 52 license, as applicable, unless those regulations explicitly 
state otherwise. These proposed amendments would enable a licensee to 
maintain reasonable assurance of adequate protection of the common 
defense and security and the public health and safety by requiring the 
licensee to continue to comply with those regulations applicable to 
utilization or production facilities, as applicable to that licensee, 
unless stated otherwise.
    The NRC has identified that Sec.  50.38 should not apply to a 
facility that is no longer a utilization or a production facility. 
Specifically, the AEA prohibits the issuance of a license for a 
utilization or a production facility to an entity that the Commission 
knows or has reason to believe is foreign owned, controlled, or 
dominated. However, since the FOCD prohibition only applies to a 
utilization or production facility, it would not apply once a 10 CFR 
part 50 or part 52 facility is no longer a utilization or a production 
facility. Therefore, the NRC is proposing to amend Sec.  50.38 such 
that its prohibition on transferring a license to an entity that the 
Commission knows or has reason to believe is owned, controlled, or 
dominated by an alien, a foreign corporation, or a foreign government, 
is not applicable if the license is a 10 CFR part 50 or 10 CFR part 52 
license for a facility that no longer meets the definition of a 
utilization or a production facility.
    Section 50.80 governs the transfers of 10 CFR part 50 and 10 CFR 
part 52 licenses for production and utilization facilities. It requires 
the written consent of the NRC before the transfer of a production or 
utilization facility. This section also requires applicants for a 
license transfer to provide the same identifying, technical, and 
financial information that an initial license applicant is required to 
provide under Sec. Sec.  50.33 and 50.34. In particular, Sec.  50.33 
requires an application to state the citizenship of the applicant. 
Under Sec.  50.38, the applicant is ineligible to apply for and obtain 
a license if it is a foreign entity.
    Section 50.38 implements sections 103 and 104 of the AEA, which 
provide in part that a license for a utilization or production facility 
may not be issued to an alien or any corporation or other entity if the 
Commission knows or has reason to believe it is owned, controlled, or 
dominated by an alien, a foreign corporation, or a foreign government. 
Since sections 103 and 104 of the AEA apply to utilization and 
production facilities, the NRC is proposing to amend Sec.  50.38 to 
clarify that this prohibition does not apply to a person, corporation, 
or other entity seeking a license for a facility that is no longer a 
utilization or a production facility, as would be provided under 
revised Sec.  50.82(a)(2), Sec.  50.82(b)(6), or Sec.  52.110(b).
    The proposed amendment to Sec.  50.38 would maintain the common 
defense and security and public health and safety because, even though 
Sec.  50.38 would not prohibit the transfer to foreign entities of 10 
CFR part 50 and 10 CFR part 52 licenses for facilities that do not meet 
the definition of utilization or production facility, other regulations 
ensure that such transfers would not be inimical to the common defense 
and security or to the health and safety of the public. For instance, 
Sec.  50.80(c) states that the Commission will approve an application 
for the transfer of a license if the Commission determines that the 
proposed transferee is qualified to be the holder of the license and 
that the transfer of the license is otherwise consistent with 
applicable provisions of law, regulations, and orders issued by the 
Commission. In turn, under Sec.  50.57 or Sec.  52.97, the Commission 
may issue a 10 CFR part 50 or 10 CFR part 52 license, respectively, 
only if the Commission finds that the issuance of the license will not 
be inimical to the common defense and security or to the health and 
safety of the public.
    The proposed amendment to Sec.  50.38 is consistent with how the 
NRC analyzed requests for exemptions from Sec.  50.38 for Maine Yankee 
Atomic Power Station, Haddam Neck Plant, and Yankee Nuclear Power 
Station (78 FR 58571; September 24, 2013). Specifically, the NRC 
granted those exemptions because the reactor facilities had been 
dismantled and removed such that only ISFSIs remained on site; an 
ISFSI, whether licensed under 10 CFR parts 50 or 72, is not capable of 
making use of special nuclear material; and the AEA definition of a 
utilization facility does not include ISFSIs. The NRC found that the 
foreign ownership, control, or domination prohibition did not apply to 
ISFSIs and, thus, did not preclude the NRC from granting the 
exemptions.
    The NRC is also proposing to amend Sec. Sec.  50.1, 50.51, 52.0, 
and 52.109 in light of the proposed amendments to Sec. Sec.  50.38, 
50.82, and 52.110. The proposed amendments would make clear that the 
regulations in 10 CFR part 50, and the similar regulations in 10 CFR 
part 52, provide not only for the licensing of utilization and 
production facilities, but also for their decommissioning and the 
termination of their associated licenses. These changes

[[Page 12300]]

are clarifications; 10 CFR part 50 has included decommissioning and 
license termination since 1961 (``Creditors' Rights; and Transfer, 
Surrender, and Termination of Licenses,'' 26 FR 9546; October 10, 
1961). The NRC proposes to delete the language in Sec. Sec.  50.51 and 
52.109 that discusses what 10 CFR parts 50 and 52 licenses authorize in 
lieu of the more complete discussion provided in the proposed 
amendments to Sec.  50.82(a)(2), Sec.  50.82(b)(6) and (7), and Sec.  
52.110(b).
    The NRC is proposing to add a specific definition for ``non-power 
production or utilization facility'' to Sec.  50.2 to establish a term 
that is flexible enough to capture all non-power facilities licensed 
under Sec.  50.22, ``Class 103 licensees; for commercial and industrial 
facilities,'' and Sec.  50.21(a) or (c), except fuel reprocessing 
facilities. This proposed rule would address inconsistencies in 
definitions and terminology associated with non-power production and 
utilization facilities in Sec.  50.2 that result in challenges in 
determining the applicability of the regulations. Fuel reprocessing 
plants would be excluded from the definition because the consequences 
associated with the hazards at a fuel reprocessing plant would likely 
exceed those anticipated at the facilities within the ``non-power 
production or utilization facility'' definition, thereby affecting the 
applicability of the ``non-power production or utilization facility'' 
term.
    The only NRC-licensed fuel reprocessing plant is the Western New 
York Nuclear Service Center. The technical specifications of its NRC 
license are currently suspended by license amendment. Under the West 
Valley Demonstration Project Act, Public Law 96-368, 94 Stat. 1347 
(codified as a note to 42 U.S.C. 2021a), the Department of Energy (DOE) 
is currently decommissioning portions of the plant. The NRC licensee, 
the New York State Energy Research and Development Authority, will 
complete the decommissioning work after DOE has completed its work. 
There is currently no application for another fuel reprocessing plant 
and the NRC does not anticipate any application in the foreseeable 
future.
    The NRC proposes to revise the introductory text of Sec.  50.82(b) 
to replace the term ``non-power reactor licensees'' with ``non-power 
production or utilization facility licensees and fuel reprocessing 
plants'' to ensure that all non-power facilities licensed under Sec.  
50.22 or Sec.  50.21(a) or (c) are subject to the relevant termination 
and decommissioning regulations.

N. Clarification of Scope of License Termination Plan Requirement

    The NRC is proposing to amend its regulations to clarify that the 
requirement for a license termination plan in Sec.  50.82(a)(9) and 
Sec.  52.110(i) applies only to nuclear power reactor licensees that 
commenced operation. This clarification is being proposed in response 
to apparent confusion among combined license holders that have sought 
to surrender their licenses before operation. By letter dated November 
1, 2017 (ADAMS Accession No. ML17311A143), Duke Energy Florida informed 
the NRC that it would seek termination of the 10 CFR part 52 combined 
licenses for Levy Nuclear Plant Units 1 and 2 and would submit a 
license termination plan in accordance with Sec.  52.110(i). 
Subsequently, South Carolina Electric & Gas Company (SCE&G) submitted a 
letter dated December 27, 2017 (ADAMS Accession No. ML17361A088), 
seeking withdrawal of the 10 CFR part 52 combined licenses for Virgil 
C. Summer Nuclear Station Units 2 and 3. The SCE&G request neither 
cited Sec.  52.110 nor indicated that it would submit a license 
termination plan. Instead, SCE&G cited the Commission's final ``Policy 
Statement on Deferred Plants'' (52 FR 38077; October 14, 1987) (Policy 
Statement) to support its request for NRC approval to withdraw its 
combined licenses. The Policy Statement addresses holders of 
construction permits that defer or terminate plant construction. The 
Policy Statement provides that a permit holder can request to withdraw 
its permit and does not cite to the license termination provisions in 
10 CFR part 50. The Policy Statement was issued prior to the 
promulgation of 10 CFR part 52 and has not been updated since, but 
there is nothing to prevent holders of a combined license from 
following the applicable parts of the Policy Statement while continuing 
to comply with the Commission's regulations and the terms and 
conditions of the combined license.
    The requirement for a license termination plan in Sec.  52.110(i) 
does not apply to plants that have not begun operating. While Sec.  
52.110(i) does refer to ``[a]ll power reactor licensees,'' the 
regulatory history and context indicates that Sec.  52.110 as a whole 
applies only to plants that have started operation:
     The organization of Sec.  52.110 generally follows the 
license termination process for an operating plant, from permanent 
cessation of operations to permanent removal of fuel to decommissioning 
activities to license termination. The requirement for a license 
termination plan should be understood in this context.
     The vast majority of the requirements in Sec.  52.110 
(including Sec.  52.110(i)) either explicitly refer to, or make sense 
only in the context of, a plant that has operated and is undergoing 
decommissioning.
     The ``[a]ll power reactor licensees'' language also 
appears in Sec.  50.82(a)(9), the 10 CFR part 50 analogue to Sec.  
52.110(i). But the NRC does not apply the similar requirements in Sec.  
50.82 to holders of construction permits even though construction 
permits fall within the definition of ``License'' in Sec.  50.2. For 
example, the following construction permit terminations do not cite or 
otherwise address Sec.  50.82: ``Washington Public Power Supply System, 
Washington Nuclear Project, Unit 3; Order Revoking Construction Permit 
No. CPPR-154'' (64 FR 4725; January 29, 1999); ``Bellefonte Nuclear 
Plant, Units 1 and 2--Withdrawal of Construction Permit Nos. CPPR-122 
for Unit 1 and CPPR-123 for Unit 2'' (September 14, 2006) (ADAMS 
Accession No. ML061810505); and ``Energy Northwest Nuclear Project No. 
1--Termination of Construction Permit CPPR-134'' (February 8, 2007) 
(ADAMS Accession No. ML070220011). And the rule issuing the ``[a]ll 
power reactor licensees'' language in Sec.  50.82(a)(9)--the 1996 Final 
Rule--was directed at holders of operating licenses, not construction 
permits.
     According to the final rule issuing Sec.  52.110, 
``Licenses, Certifications, and Approvals for Nuclear Power Plants'' 
(72 FR 49351; August 28, 2007), Sec.  52.110 and its companion 
regulation Sec.  52.109 were intended to be analogous to the 
requirements in Sec.  50.51 and Sec.  50.82 for permanent shutdown of a 
nuclear power plant, its decommissioning, and the termination of the 
operating license.
    For these reasons, Sec.  52.110 is best understood to apply only to 
plants that began operation. However, to avoid confusion over the 
license termination plan requirement, the NRC proposes to amend Sec.  
52.110(i) so that it explicitly applies only to ``power reactor 
licensees that have loaded fuel into the reactor.'' As stated in the 
``Final Procedures for Conducting Hearings on Conformance With the 
Acceptance Criteria in Combined Licenses'' (81 FR 43266; July 1, 2016), 
the NRC has historically understood operation as beginning with the 
loading of fuel into the reactor. Therefore, Sec.  52.110(i) would 
apply to 10 CFR part 52 nuclear power reactor licensees that have begun 
to load fuel into the reactor.

[[Page 12301]]

    A conforming change is also proposed in Sec.  50.82(a)(9) to 
clarify that the requirement in that provision--that all 10 CFR part 50 
nuclear power reactor licensees must submit an application for 
termination of license--applies to only those 10 CFR part 50 nuclear 
power reactor licensees that have loaded fuel into the reactor.

O. Removal of License Conditions and Withdrawal of Orders

    The NRC is proposing to withdraw orders and remove license 
conditions that are substantively redundant with provisions in 10 CFR. 
Although NRC orders generally 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--when a subsequent 
rule replaces the orders in their entirety for all applicable 
licensees. Therefore, the NRC is proposing to find that good cause is 
shown to rescind Order EA-06-137, ``Order Modifying Licenses'' (ADAMS 
Accession No. ML061600076), concerning mitigation strategies for large 
fires or explosions at nuclear power plants. This order was issued to 
certain licensees who received Order EA-02-026, ``Order for Interim 
Safeguards and Security Compensatory Measures'' (ADAMS Accession No. 
ML020510635), which required licensees to take specific interim 
compensatory measures, including mitigation strategies for large fires 
or explosions at nuclear power plants, in light of the then-high-level 
threat environment. Order EA-06-137 required that licensees to 
incorporate key mitigation strategies for large fires or explosions 
into their security plans. The requirement that these strategies be 
incorporated in security plans was subsequently relaxed by letter dated 
August 28, 2006, which permitted licensees to consent to having their 
licenses amended to incorporate a license condition on the subject. 
Several licensees had these license conditions imposed by 
administrative license amendment (e.g., ``Browns Ferry Nuclear Plant, 
Units 1, 2, and 3--Conforming License Amendments To Incorporate the 
Mitigation Strategies Required by Section B.5.b. of Commission Order 
EA-02-026 and the Radiological Protection Mitigation Strategies 
Required by Commission Order EA-06-137,'' dated August 16, 2007). In 
its Power Reactor Security Requirements final rule, the NRC established 
in Sec.  50.54(hh)(2) a regulation that provides a performance-based 
requirement that encompasses the mitigation strategies required under 
Order EA-06-137 and its associated license condition. The Mitigation of 
Beyond-Design-Basis Events rule subsequently moved Sec.  50.54(hh)(2) 
to Sec.  50.155(b)(3). As a result, neither Order EA-06-137 nor the 
license condition is necessary. Accordingly, the NRC proposes finding 
that good cause is shown to rescind Order EA-06-137 for each licensee 
that received the order. In addition, because Sec.  50.155(b)(3) 
provides the same requirements as the license condition associated with 
Order EA-06-0137, the NRC proposes deeming the license condition 
removed from each applicable nuclear power reactor license.
    Order EA-02-026 included a section, numbered B.5.b, in its 
attachment 2, requiring mitigation strategies for large fires or 
explosions at nuclear power plants. Extensive interactions among the 
NRC, industry, and licensees refined the strategies required by the 
order. In 2007, the NRC issued to all then-operating nuclear power 
reactor licensees an administrative license amendment (e.g., ``Calvert 
Cliffs Nuclear Power Plant, Unit Nos. 1 and 2--Conforming License 
Amendments to Incorporate the Mitigation Strategies Required by Section 
B.5.b. of Commission Order EA-02-026,'' dated July 11, 2007), 
containing a license condition entitled, ``Mitigation Strategy License 
Condition,'' which required licensees to use 14 mitigation strategies. 
In the Power Reactor Security Requirements final rule, the NRC 
established in Sec. Sec.  50.54(hh), 50.34(i), and 52.80(d) regulations 
that made the requirements of Order EA-02-026 generically applicable to 
nuclear power reactor licensees and applicants. In the Power Reactor 
Security Requirements final rule, the Commission explained that 
operating nuclear power reactor licensees already had procedures in 
place that complied with the new Sec.  50.54(hh)(2). Licensees used the 
same implementation guidance to comply with the Mitigation Strategy 
License Condition as they used to comply with Sec.  50.54(hh)(2); 
consequently, compliance with Sec.  50.54(hh)(2) is sufficient to 
comply with the Mitigation Strategy License Condition. Subsequently, 
the NRC rescinded Order EA-02-026, section B.5.b by letter dated 
November 28, 2011, based on the fact that the regulations encompassed 
the order requirements. Because licensees comply with both the 
regulations and Mitigation Strategy License Condition via the same 
guidance, such that the former Sec.  50.54(hh)(2) requirements 
encompass the license condition requirements, the NRC proposes 
concluding that Sec.  50.155(b)(3) fully replaces the requirements that 
exist in the Mitigation Strategy License Condition and deeming that the 
Mitigation Strategy License Conditions imposed in 2007 are removed from 
the licenses for those licensees that received that license condition.
    As discussed in section I.C., ``Cyber Security,'' of this document, 
the NRC imposed a license condition referencing the approved CSP in 
each 10 CFR part 50 license in the course of review and approval of the 
CSP. This proposed rule would remove that license condition once 
sufficient time has passed since the permanent removal of fuel from the 
reactor vessel.
    Because this proposed rule would remove certain license conditions 
without actually amending the associated licenses, the NRC would issue 
by letter an administrative license amendment to each applicable 
licensee that would remove the relevant license condition(s) from that 
licensee's license and include revised license pages.

P. Changes for Consistent Treatment of Holders of Combined Licenses and 
Operating Licenses

    The NRC proposes to revise Sec.  50.36(c)(6), Sec.  50.44(b), Sec.  
50.46(a)(1)(i), Sec.  50.48(f), Sec.  50.54(y), Sec.  50.60(a), Sec.  
50.61(b)(1), Sec.  50.62(a), Sec.  50.71(e)(4), and 10 CFR part 50, 
Appendix I, Section IV.C., to provide consistent treatment for COL 
(Part 52) and operating license (Part 50) holders. These changes have 
the purpose of aligning regulatory applicabilities for COL holders upon 
submittal of the Sec.  52.110(a) certifications with regulatory 
applicabilities for operating license holders upon submittal of the 
Sec.  50.82(a)(1) certifications. In each section listed, the NRC would 
insert ``or Sec.  52.110(a)'' following each instance of ``Sec.  
50.82(a)(1).''
    The NRC proposes to revise incorrect references to Sec.  52.110 in 
Sec.  50.49(a), Sec.  50.54(o), Sec.  50.65(a)(1), and Sec.  52.110(e) 
by replacing ``Sec.  52.110(a)(1)'' with ``Sec.  52.110(a).'' The NRC 
proposes to insert a reference to Sec.  52.110 following an existing 
reference to Sec.  50.82 in Sec.  50.54(w)(4)(ii), Sec.  
50.54(w)(4)(iii), Sec.  50.75(e)(1)(ii)(B), Sec.  50.75(e)(1)(v), Sec.  
50.75(h)(1)(iv), and Sec.  50.75(h)(2). The NRC proposes to remove the 
words ``under this part'' from Sec.  50.54(w) introductory text because 
paragraph (w) is also applicable to holders of combined licenses issued 
under 10 CFR part 52 as stated in the introductory text for Sec.  
50.54. Finally, the NRC proposes to revise an incorrect reference in

[[Page 12302]]

Sec.  50.59(b) by replacing ``Sec.  50.110'' with ``Sec.  52.110(a).''

V. Specific Requests for Comments

    The NRC is seeking public comments on this proposed rule. The 
agency is particularly interested in comments and supporting rationale 
from the public on the following:
     PSDAR Approval: The current decommissioning regulations 
establish that once a licensee permanently ceases operation of the 
nuclear power reactor, it cannot undertake any major decommissioning 
activities until it provides the public and the NRC with additional 
information. The NRC requires that the licensee submit this information 
in the form of a PSDAR, which consists of the licensee's proposed 
decommissioning activities and schedule through license termination, a 
discussion of the reasons for concluding that the proposed activities 
will be bounded by existing analyses of environmental impacts, and a 
site-specific cost estimate for the proposed activities. The PSDAR is 
made available to the public for comment and is subject to NRC review 
(but not approval). Additionally, the current decommissioning 
regulations prohibit, at any time, the performance of any 
decommissioning activity that may result in significant environmental 
impacts not previously reviewed. Under this regulatory framework, 
licensees are not required to have an NRC-approved decommissioning 
plan; instead, 90 days after the NRC has received the licensee's PSDAR, 
licensees may perform, under 10 CFR 50.59, those major decommissioning 
activities that are bounded by existing environmental analyses. 
Therefore, no site-specific NEPA review is required and there is no 
hearing opportunity under 10 CFR part 2 before these decommissioning 
activities begin. To perform decommissioning activities that are not 
bounded by existing environmental analyses, however, a licensee would 
have to submit a request for a license amendment or an exemption 
request, which would trigger a site-specific NEPA review and hearing 
opportunity under 10 CFR part 2. Additionally, at least two years 
before termination of the license, the licensee must submit an 
application for termination of license and a license termination plan, 
which must be approved by the NRC. The requirement to approve the 
license termination plan also triggers a site-specific NEPA review and 
hearing opportunity under 10 CFR part 2.
    As part of the development of the proposed rule, the NRC staff 
evaluated whether the NRC should explicitly approve each licensee's 
PSDAR before allowing major decommissioning activities to begin. The 
staff concluded that based on lessons learned and experience, there is 
currently no indication that requiring approval of a PSDAR has any 
substantial impact on the public health and safety. However, the NRC is 
gathering additional feedback from the public.
    As part of this rulemaking, should the NRC require approval of the 
PSDAR, a site-specific environmental review, and hearing opportunity 
before a licensee undertakes any decommissioning activity? Other than 
NRC review and approval of the PSDAR, are there other activities that 
could help to increase transparency and public trust in the NRC 
regulatory framework for decommissioning? Should the rule provide a 
role for the states or local governments in the process? What should 
that role be? What are the advantages or disadvantages of various 
roles? Please provide an explanation for your response.
     Timeframe for Decommissioning: For nuclear power reactor 
licensees, 10 CFR 50.82(a)(3) and 10 CFR 52.110(c) state that 
decommissioning must be completed within 60 years of permanent 
cessation of operations. In this proposed rule, the NRC is not 
proposing changes to the decommissioning timeframe requirements.
    What are the advantages and disadvantages of requiring prompt 
decontamination rather than allowing up to 60 years to decommission a 
site? As part of its review of a PSDAR, what are the advantages and 
disadvantages of NRC evaluating and making a decision about the 
timeframe for decommissioning on a site-specific basis?
     Emergency Planning: As discussed in the ``Technical Basis 
for the Graded Approach'' and ``Emergency Preparedness'' sections of 
this document, although the spectrum of credible accidents and 
operational events requiring an emergency response is reduced at a 
decommissioning nuclear power reactor as compared to that for an 
operating nuclear power reactor, reliable emergency preparedness 
functions are still required to ensure public health and safety in the 
event of a zirconium fire scenario.
    The NRC has concluded that dry cask storage and spent fuel pools 
are both very safe. What are the advantages and disadvantages of 
requiring dedicated radiological emergency planning, including a 10-
mile EPZ, until all spent nuclear fuel at a site is removed from the 
spent fuel pool and placed in dry cask storage? Is there additional 
information the NRC should consider in evaluating whether all-hazards 
planning would be as effective as dedicated radiological emergency 
planning?
    The NRC has determined that 10 hours would be a sufficient amount 
of time for an emergency response to a spent fuel pool accident based 
on an all-hazards plan. Is there additional information the NRC should 
consider in evaluating this issue?
     Emergency Response Data Systems: Nuclear power facilities 
that are shutdown permanently or indefinitely are currently not 
required to maintain ERDS. These systems transmit near-real-time 
electronic data between the licensee's onsite computer system and the 
NRC Operation Center. Licensees in Level 1 would maintain a capability 
to provide meteorological, radiological, and spent fuel pool data to 
the NRC within a reasonable timeframe following an event. What are the 
advantages and disadvantages of requiring nuclear power plant licensees 
to maintain those aspects of ERDS until all spent fuel is removed from 
the pool?
     Cyber Security: The proposed rule applies cyber security 
requirements to Level 1 plants. However, a licensee in Level 2 would 
not be required to maintain a cyber security plan because the NRC has 
determined that there is little chance that the spent fuel in the SFP 
could heat up to clad ignition temperature within 10 hours. What are 
the advantages and disadvantages of extending cyber security 
requirements to shutdown nuclear power plants until all spent fuel is 
transferred to dry cask storage?
     Insurance: The proposed rule would allow nuclear power 
reactor licensees in decommissioning to reduce the offsite liability 
and onsite property insurance amounts that they are required to 
maintain once a plant enters Level 2. The transition to Level 2 
financial protection amounts would be optional for licensees and they 
would have to submit an analysis that demonstrates a reduced risk of a 
zirconium fuel cladding fire in the SFP. What are the advantages and 
disadvantages of requiring the existing level of insurance to be 
maintained until all spent fuel is in dry cask storage (Level 3)?
     Financial Assurance: Pursuant to Sec.  50.75, ``Reporting 
and recordkeeping for decommissioning planning,'' specifically 
paragraph (b)(1), nuclear power reactor licensees and applicants must 
certify that reasonable assurance for radiological decommissioning 
funding has been (for licensees) or will be (for applicants) provided 
in an amount that may be more, but not less,

[[Page 12303]]

than the generic amount provided by the Commission's regulations (i.e., 
the table of minimum amounts under Sec.  50.75(c)). Alternatively, 
under Sec.  50.75(b)(4), the certified amount of funding may be based 
on a site-specific cost estimate for decommissioning the facility.
    The current table of minimum amounts (also referred to as the 
minimum decommissioning formula) has not been updated for over 30 
years. The NRC is considering updates to the generic decommissioning 
funding formula to make it more reflective of current cost 
considerations.
    What are the advantages and disadvantages of updating the formula 
to reflect recent data and to cover all estimated radiological 
decommissioning costs rather than the bulk of the costs?
     Site-Specific Cost Analysis: Currently, licensees can use 
either the generic amount under 10 CFR 50.75(c) or a site-specific cost 
estimate under 10 CFR 50.75(b)(4) to determine the certified amount of 
radiological decommissioning funding. As provided in 10 CFR 
50.82(a)(8)(ii) and 10 CFR 52.110(h)(2), a licensee may withdraw funds 
from the decommissioning trust fund up to a cumulative total of 3 
percent of the generic amount calculated under 10 CFR 50.75(c) for 
decommissioning planning purposes at any time without prior 
notification to the NRC. After submittal of the certifications of 
permanent shutdown and fuel removal required under 10 CFR 50.82(a)(1) 
and 10 CFR 52.110(a) and commencing 90 days after the NRC has received 
the PSDAR, the licensee may use up to an additional 20 percent of the 
decommissioning funds prescribed in 10 CFR 50.75(c) for decommissioning 
purposes. The licensee is prohibited from using the remaining 77 
percent of the generic decommissioning funds until a site-specific 
decommissioning cost estimate is submitted to the NRC. Requirements in 
10 CFR 50.82(a)(8)(iii) and 10 CFR 52.110(h)(3) establish that a 
licensee shall provide a site-specific decommissioning cost estimate 
within 2 years following permanent cessation of operations. If the 
estimate of costs provided with the PSDAR is a site-specific cost 
estimate, this requirement can be satisfied with the PSDAR submittal.
    What are the advantages and disadvantages of requiring a full site 
investigation and characterization at the time of shutdown? What are 
the advantages and disadvantages of eliminating the formula and 
requiring a site-specific cost estimate during operations?
     Decommissioning Trust Fund: Under the NRC's existing 
regulations and this proposed rule, the amounts set aside for 
radiological decommissioning should not be used for the maintenance and 
storage of spent fuel in the spent fuel pool, or for the design or 
construction of spent fuel dry storage facilities, or for other 
activities not directly related to the long-term storage, radiological 
decontamination or dismantlement of the facility, or decontamination of 
the site.
    Should the NRC's regulations allow decommissioning trust fund 
assets to be used for spent fuel management if (1) there is a projected 
surplus in the fund based on a comparison to the expected costs 
identified in a site-specific cost estimate and (2) the assets are 
returned to the fund within an established period of time? What are the 
advantages and disadvantages of allowing decommissioning trust fund 
assets to be used for those purposes? What are the advantages and 
disadvantages of allowing decommissioning trust fund assets to be used 
for non-radiological site restoration prior to the completion of 
radiological decommissioning?
     Timing of Decommissioning Funding Assurance Reporting: 
This proposed rule would change the timing of the decommissioning 
funding assurance reporting requirements in Sec.  50.75(f)(1) to 
coordinate them with the ISFSI decommissioning reporting requirements 
in Sec.  72.30. Under this proposed rule, operating reactors would be 
permitted to submit decommissioning funding status reports triennially 
instead of biennially.
    What are the advantages and disadvantages to extending the 
reporting frequency from two years to three years? Does this change 
affect the risk of insufficient decommissioning funding? Please provide 
an explanation for your response.
     Backfit Rule: For nuclear power reactor licensees, the 
NRC's backfitting provisions are located in Sec.  50.109, 
``Backfitting,'' and the issue finality provisions are in 10CFRpart52 
(the ``Backfit Rule''). The language of the Backfit Rule clearly 
applies to a licensee designing, constructing, or operating a nuclear 
power facility. For example, Sec.  50.109(a)(1) defines ``backfitting'' 
to mean changes to, among other things, the procedures or organization 
required to design, construct, or operate a facility.
    This proposed rule states that the Backfit Rule applies to 
decommissioning nuclear power plants. What are the advantages and 
disadvantages of applying the Backfit Rule to decommissioning nuclear 
power plants?
     Exemptions: As stated in this proposed rule, one of the 
goals of amending these regulations is to reduce the need for 
regulatory exemptions. 10 CFR 50.12 states that the Commission may 
grant exemptions from the requirements of the regulations in 10 CFR 
part 50 if the request will not present an undue risk to the public 
health and safety, and is consistent with the common defense and 
security. What are the advantages and disadvantages of the current 10 
CFR 50.12 approach to decommissioning-related exemptions? What standard 
should the NRC apply in determining whether to grant exemptions from 
the new or amended regulations? What are the advantages and 
disadvantages of providing an opportunity for the public to weigh in on 
such exemption requests? Are there other process changes the NRC should 
consider in determining whether to grant exemptions from the new or 
amended regulations?
     Applicability: Section III of this document provides a 
discussion of the applicability of this proposed rule. Specifically, 
there is a discussion for the applicability to NRC licensees during 
operations and to ISFSI-Only and Standalone ISFSI/Decommissioned 
Reactor Sites. Permanently shutdown nuclear power plants will be at 
different stages of decommissioning when the new decommissioning 
regulations become effective and will have previously received varying 
regulatory exemptions.
    Can you foresee any implementation issues with the proposed rule as 
it is currently written? For any new or amended requirement included in 
this proposed rule, how should the requirement apply to sites currently 
in different stages of decommissioning?
     Insurance for Specific License ISFSI: A 10 CFR part 50 or 
10 CFR part 52 nuclear power reactor licensee with a 10 CFR part 72 
general license ISFSI at the reactor site is subject to the financial 
protection requirements under 10 CFR part 140, whereas a specific 
license ISFSI under 10 CFR part 72 is not. In SECY-04-0176, ``Exemption 
Requests to Reduce Liability Insurance Coverage for Decommissioning 
Reactors after Transfer of all Spent Fuel from a Spent Fuel Pool to Dry 
Cask Storage,'' dated September 29, 2004 (ADAMS Accession No. 
ML040850518), the NRC staff noted that general license ISFSIs subject 
to the requirements under 10 CFR part 72 were also subject to the 
requirements of a 10 CFR part 50 license and by virtue of this license, 
they are required to maintain some level of

[[Page 12304]]

liability insurance under section 170, ``Indemnification and Limitation 
of Liability,'' of the AEA (known as the Price-Anderson Act) and the 
NRC's implementing regulations at 10 CFR part 140. Further, the NRC 
staff acknowledged that there was little technical difference between a 
general license ISFSI and a specific license ISFSI.
    The NRC recognizes that as a reactor site is decommissioned, 
eventually all that remains of the 10 CFR part 50 or part 52 licensed 
site is a general license ISFSI under 10 CFR part 72, which is 
essentially the same as a specific license ISFSI under 10 CFR part 72. 
Considering that 10 CFR part 72 specific license ISFSIs have no 
financial protection requirements, should the NRC address the disparity 
between specific license and general license ISFSIs as a part of this 
rulemaking? Please provide an explanation for your response.
     Recordkeeping Requirements for Facilities Licensed under 
10 CFR part 52: The current appendices in 10 CFR part 52 contain 
section X, ``Records and Reporting,'' for all of the certified designs 
codified in 10 CFR part 52. Section X requires, in part, that all 
departures from the certified design be recorded and those records kept 
throughout the term of the license. However, as part of this 
rulemaking, the NRC is proposing to change the record retention 
requirements for nuclear power reactors in the decommissioning process 
such that they no longer need to retain certain records associated with 
SSCs that are no longer in service or necessary to keep the plant in a 
safe condition. The NRC is considering making conforming changes to 
section X of the applicable appendices to 10 CFR part 52 to allow this 
change to apply to records of departures from the certified design as 
well as the associated SSCs. Given the already existing change control 
procedures in the appendices to 10 CFR part 52, as well as the 
significant changes in recordkeeping technology since the NRC's record 
retention requirements were introduced (i.e., digital media instead of 
paper copies), should additional changes be made to the 10 CFR part 52 
appendices as a part of this rulemaking, and would such changes be 
beneficial to 10 CFR part 52 licensees or add efficiency to the 
decommissioning process for these facilities? Please provide an 
explanation for your response.
     Identical Requirements under Sec.  50.82 and Sec.  52.110: 
As part of this rulemaking, the NRC proposes to revise Sec.  52.110 to 
make the same changes proposed in Sec.  50.82 for the reasons 
previously discussed and for consistency. The NRC also proposes to add 
paragraphs (h)(5) through (h)(7) to Sec.  52.110 with site-specific 
decommissioning cost estimate reporting requirements that are identical 
to the requirements in Sec.  50.82(a)(8)(v) through (vii). Given that 
the decommissioning financial assurance requirements in Sec.  52.110 
are identical to the requirements in Sec.  50.82, should the NRC 
consider removing the specific requirements from Sec.  52.110(f)-(h) 
and instead add a reference in Sec.  52.110 to the identical 
regulations in Sec.  50.82(a)(6)-(8)? Are there any other provisions in 
Sec.  52.110 that the NRC should consider removing and replacing with a 
reference to an identical requirement in Sec.  50.82 (e.g., the 
decommissioning requirements under Sec.  52.110(c)-(e))? Please provide 
an explanation for your response.
     Removal of License Conditions and Withdrawal of Orders: 
This rulemaking seeks to improve regulatory efficiency by removing 
license conditions and withdrawing an order for which substantively 
identical requirements have been imposed by rulemaking. This would 
avoid the future administrative expenditures by licensees and the NRC 
to accomplish the removal of these requirements on a license-specific 
basis through a generic regulatory action either upon the effective 
date of the final rule or when conditions permit the removal during the 
decommissioning process. The NRC has identified certain orders that 
were issued following the terrorist events of September 11, 2001, 
license conditions regarding these orders, and license conditions 
regarding cyber security implementation as having substantively 
identical requirements made generically applicable through rulemaking. 
Because these license-specific requirements are duplicative with other 
generic requirements, the NRC concludes there would be no reduction in 
safety. Please provide any comments you may have on rescinding Order 
EA-06-137 and the related license conditions. As part of this 
rulemaking, are there other license-specific requirements in license 
conditions or orders that have substantively identical generic 
requirements that should be addressed in this rulemaking? Please 
provide an explanation for your response.
     Spent Fuel Management Planning: Section IV.K of this 
document discusses spent fuel management planning in the Sec.  
50.54(bb) regulation. The Sec.  50.54(bb) current rule language 
requires NRC preliminary approval and final review, as part of any 
proceeding for continued licensing under part 50 or part 72, of the 
IFMP. The discussion in Section IV.K points out that the proceedings 
for continued licensing under part 50 or part 72 no longer exist. 
Therefore, the proposed rule includes language intended to clarify the 
current IFMP approval process by requiring submittal of the IFMP for 
NRC review and approval by license amendment. What, if any, challenges 
do you foresee with implementing this part of the proposed rule? Please 
provide an explanation for your response.
    The Sec.  50.54(bb) current rule language requires licensees to 
notify the NRC of any significant changes to the IFMP. As discussed in 
section IV.K, the NRC proposes to revise this requirement to require 
licensees to submit to the NRC any changes to the IFMP as an 
application for an amendment to its license. The NRC is also 
considering replacing the notification requirement with a change 
control provision to specify what changes a licensee can make to the 
IFMP without NRC approval. Examples of change control provisions in the 
current NRC regulations include Sec.  50.54(a) for quality assurance 
programs and Sec.  50.54(q) for emergency plans. If the NRC includes a 
similar change control provision in Sec.  50.54(bb), what should the 
safety and environmental criteria be for determining whether a licensee 
could make a change to its IFMP without seeking NRC approval? For 
example, the NRC could permit changes that are not considered to be 
reductions in the commitments, including (1) changes to the planned 
actions for managing spent fuel that result in an addition of one or 
more SSCs that the licensee relies on for irradiated fuel management, 
and (2) changes to the projected cost or funding for managing 
irradiated fuel that is already included in the report required by 10 
CFR 50.82(a)(8)(vii) or 10 CFR 52.110(h)(7). Should the NRC also 
include recordkeeping and reporting provisions for a licensee to retain 
a record of each change to the IFMP made without prior NRC approval and 
submit a report to the NRC of those changes? If so, what should be the 
timeframe for the records to be retained and the timeframe for 
reporting to the NRC after the change is made, taking into 
consideration the estimated frequency of performing IFMP changes? 
Please provide an explanation for your response.

VI. Section-by-Section Analysis

    The following paragraphs describe the specific changes proposed by 
this rulemaking.

[[Page 12305]]

Appendix G to 10 CFR Part 20, Requirements for Transfers of Low-Level 
Radioactive Waste Intended for Disposal at Licensed Land Disposal 
Facilities and Manifests

    In section III, paragraph E.1., this proposed rule would remove the 
word ``or'' and add in its place the word ``of'' and it would also 
remove the phrase ``20 days'', and add in its place the phrase ``45 
days''.

Section 26.3 Scope

    In Sec.  26.3, this proposed rule would revise paragraph (a) by 
subdividing it into two subparagraphs, (a)(1) and (2), to include the 
NRC's docketing of a license holder's certifications required under 
Sec. Sec.  50.82 and 52.110(a).

Section 26.825 Criminal Penalties

    In Sec.  26.825, this proposed rule would revise paragraph (b) to 
remove the number ``26.3'' from the list of regulations in 10 CFR part 
26 that are excluded from Sec.  26.825(a).

Section 50.1 Basis, Purpose, and Procedures Applicable

    In Sec.  50.1, this proposed rule would add language clarifying 
that the regulations in 10 CFR part 50 provide for the licensing of 
production and utilization facilities through the termination of the 
associated 10 CFR part 50 licenses.

Section 50.2 Definitions

    In Sec.  50.2, this proposed rule would retain the existing 
definition of certified fuel handler and add an alternative definition 
for the purposes explained elsewhere in this document. This proposed 
rule also would add a definition for a non-power production or 
utilization facility.

Section 50.36 Technical Specifications

    In Sec.  50.36, this proposed rule would revise paragraph (c)(6) to 
insert ``or Sec.  52.110(a)'' following ``Sec.  50.82(a)(1).''

Section 50.38 Ineligibility of Certain Applicants

    This proposed rule would revise Sec.  50.38 by including the 
current text as paragraph (a) and by adding paragraph (b) to state that 
the prohibition in paragraph (a) of this section does not apply to a 
person, corporation, or other entity seeking a license for a facility 
that is not a production or utilization facility.

Section 50.44 Combustible Gas Control for Nuclear Power Reactors

    In Sec.  50.44, this proposed rule would revise paragraph (b) to 
insert ``or Sec.  52.110(a)'' following ``Sec.  50.82(a)(1).''

Section 50.46 Acceptance Criteria for Emergency Core Cooling Systems 
for Light-Water Nuclear Power Plants

    In Sec.  50.46, this proposed rule would revise paragraph (a)(1)(i) 
to insert ``or Sec.  52.110(a)'' following ``Sec.  50.82(a)(1).''

Section 50.47 Emergency Plans

    This proposed rule would make conforming changes to paragraph (b) 
in Sec.  50.47 and would add paragraph (f) denoting when the planning 
standards for offsite emergency plans in paragraph (b) of this section 
do not apply.

Section 50.48 Fire Protection

    In Sec.  50.48, this proposed rule would revise paragraph (f) to 
insert ``or Sec.  52.110(a)'' following ``Sec.  50.82(a)(1).''

Section 50.49 Environmental Qualification of Electric Equipment 
Important to Safety for Nuclear Power Plants

    In Sec.  50.49, this proposed rule would revise paragraph (a) by 
replacing ``Sec.  52.110(a)(1)'' with ``Sec.  52.110(a).''

Section 50.51 Continuation of License

    In Sec.  50.51, this proposed rule would remove the phrase, ``to 
authorize ownership and possession of the production or utilization 
facility,'' for reasons discussed elsewhere in this document.

Section 50.54 Conditions of Licenses

    In Sec.  50.54, this proposed rule would revise footnote 2 to the 
table in paragraph (m)(2)(i) to indicate when a Shift Technical Advisor 
is not required. Paragraph (o) would be revised by replacing 
``52.110(a)(1)'' with ``52.110(a).'' The NRC also would revise Sec.  
50.54(p) to include the definitions for change and decrease in 
safeguards effectiveness for use in paragraph (p), would revise and 
redesignate existing paragraphs (p)(1) and (2) as (p)(2) and (3), would 
redesignate paragraphs (p)(3) and (4) as paragraphs (p)(5) and (6), and 
would add new paragraphs (p)(1) and (4). A portion of the existing text 
in paragraphs (p)(1) and (2) would be used to create new paragraph 
(p)(4).
    This proposed rule would revise: Paragraph (q)(1) to clarify that 
the definitions are for use in paragraph (q), paragraph (q)(1)(iii) to 
remove the reference to appendix E to 10 CFR part 50, paragraph (q)(2) 
to add clarification to the applicability, paragraph (q)(3) to add 
applicable emergency planning requirements, paragraphs (q)(4) and (5) 
to remove the phrase ``after February 21, 2012,'' and add new 
paragraphs (q)(7) and (8) to add the requirements for licensees after 
the NRC dockets their certifications required for decommissioning under 
Sec.  50.82(a)(1) or Sec.  52.110(a).
    Paragraph (s)(2)(ii) would be revised by removing the phrase 
``after April 1, 1981,'' and paragraph (s)(3) would be revised by 
adding clarification at the beginning of the sentence that if the 
standards apply to offsite radiological response plans then the NRC 
will base its findings on a review of FEMA findings and determinations.
    Paragraph (t) would be revised by replacing ``.'' with ``or'' in 
the second sentence of paragraph (t)(1)(ii), adding new subparagraph 
(t)(1)(iii) to clarify the interval at which the licensee's emergency 
preparedness plan must be reviewed after the NRC has docketed the 
certifications required for decommissioning, and by adding new 
paragraph (t)(3) to state that the review requirement is no longer 
required once all fuel is in dry cask storage.
    Paragraph (w) would be revised by removing the words ``under this 
part'' from the introductory text, adding a reference to Sec.  52.110 
in paragraphs (w)(4)(ii) and (w)(4)(iii), and adding new paragraphs 
(w)(5) and (6) to include the financial protection requirements for 
production or utilization facilities undergoing decommissioning.
    Paragraph (y) would be revised to insert ``or Sec.  52.110(a)'' 
following ``Sec.  50.82(a)(1).''
    Paragraph (bb) would be revised by restructuring the paragraph and 
revising the requirements of an irradiated fuel management plan.

Section 50.59 Changes, Tests, and Experiments

    In Sec.  50.59, this proposed rule would revise paragraph (b) to 
correct a reference to Sec.  52.110(a). It would also revise paragraph 
(d)(3) to include the exception for when the records of changes 
requirement in paragraph (d)(3) applies.

Section 50.60 Acceptance Criteria for Fracture Prevention Measures for 
Lightwater Nuclear Power Reactors for Normal Operation

    In Sec.  50.60, this proposed rule would revise paragraph (a) to 
insert ``or Sec.  52.110(a)'' following ``Sec.  50.82(a)(1).''

Section 50.61 Fracture Toughness Requirements for Protection Against 
Pressurized Thermal Shock Events

    In Sec.  50.61, this proposed rule would revise paragraph (b)(1) to 
insert ``or Sec.  52.110(a)'' following ``Sec.  50.82(a)(1).''

[[Page 12306]]

Section 50.62 Requirements for Reduction of Risk From Anticipated 
Transients Without Scram (ATWS) Events for Light-Water-Cooled Nuclear 
Power Plants

    In Sec.  50.62, this proposed rule would revise paragraph (a) to 
insert ``or Sec.  52.110(a)'' following ``Sec.  50.82(a)(1).''

Section 50.65 Requirements for Monitoring the Effectiveness of 
Maintenance at Nuclear Power Plants

    In Sec.  50.65, this proposed rule would revise paragraph (a)(1) by 
replacing ``Sec.  52.110(a)(1)'' with ``Sec.  52.110(a).''

Section 50.71 Maintenance of Records, Making of Reports

    In Sec.  50.71, this proposed rule would revise paragraph (c) by 
including the current text as paragraph (c)(1) and it would add new 
paragraph (c)(2) to add records requirements for licensees for whom the 
NRC has docketed the certifications required for decommissioning.
    Paragraph (e)(4) would be revised to insert ``or Sec.  52.110(a)'' 
following ``Sec.  50.82(a)(1).''

Section 50.75 Reporting and Recordkeeping for Decommissioning Planning

    In Sec.  50.75, this proposed rule would revise paragraph (a) by 
clarifying the availability of funds to decommission a facility as 
defined in Sec.  50.2.
    Paragraph (b)(1) would be revised by replacing ``financial'' with 
``reasonable'' assurance and other conforming changes; paragraph (b)(3) 
would be revised by removing the phrase ``as acceptable to the NRC'' 
from the end of the paragraph; paragraph (b)(4) would be revised to 
include a site-specific decommissioning cost estimate and the second 
sentence of current paragraph (b)(4) would be moved to become a new 
paragraph (b)(5).
    Paragraph (e)(1) would be revised to include the term ``reasonable 
assurance of funds to decommission,'' and paragraphs (e)(1)(i) and (ii) 
would be revised to include the description of ``decommissioning cost'' 
before the word estimate throughout each paragraph. Paragraphs 
(e)(1)(ii)(B) and (e)(1)(v) would be revised to add a reference to 
Sec.  52.110.
    Paragraph (f) would be amended by revising (f)(1) to include the 
requirement for a report to include information regarding any potential 
decommissioning shortfall, it would be further amended by removing 
paragraph (f)(2) and redesignating (f)(3) through (5) as (f)(2) through 
(4) with minor revisions.
    Paragraphs (h)(1)(iii) and (iv) and (h)(2) would be revised to 
remove the reference to three office directors within the NRC for the 
submission of written notice of the intention to make a payment or 
disbursement of funds and replace it with the Document Control Desk. 
Paragraphs (h)(1)(iv) and (h)(2) would be revised to add a reference to 
Sec.  52.110.

Section 50.82 Termination of License

    In Sec.  50.82, this proposed rule would revise paragraph (a)(2) to 
provide clarification as to when a licensed nuclear power reactor is no 
longer considered to be a utilization facility. It also would revise 
paragraph (a)(4)(i) to clarify that licensees provide the basis for 
whether the environmental impacts from site-specific decommissioning 
activities are bounded by federally issued environmental review 
documents. The phrase ``including the projected cost of managing 
irradiated fuel'' would be removed at the end of the last sentence. 
Paragraph (a)(4)(ii) would be revised to include the requirement for 
the NRC to include the irradiated fuel management plan in the notice of 
the receipt of the PSDAR in the Federal Register and to allow the 
public to comment.
    Paragraph (a)(6)(ii) would be revised to provide clarification.
    Paragraph (a)(8)(i)(A) would be revised to remove the words 
``legitimate decommissioning'' and to replace the word 
``decommissioning'' with ``decommission.'' Paragraph (a)(8)(ii) would 
be revised to clarify paragraph (c) to Sec.  50.75 is where the 
specified amount is located.
    Paragraph (a)(8)(v) would be revised to spell out the acronym DCE, 
decommissioning cost estimate, and to include the ability for the 
licensee to combine the reporting requirements of 10 CFR part 72, Sec.  
50.82(a)(8)(v), and Sec.  50.82(a)(8)(vii).
    Paragraph (a)(8)(vii) would be revised to spell out the acronym 
DCE, decommissioning cost estimate.
    Paragraph (a)(9) would be revised to clarify that all nuclear power 
reactors that have loaded fuel into the reactor must submit an 
application for termination of a license and paragraph (a)(9)(ii)(F) 
would be revised to include the requirement to identify funding sources 
for license termination, spent fuel management, and ISFSI 
decommissioning.
    The introductory text of paragraph (b) would be revised to replace 
the term ``non-power reactor licensees'' with ``non-power production or 
utilization facilities and fuel reprocessing plants.''
    Paragraph (b)(6) would be redesignated as (b)(8) and new paragraphs 
(b)(6) and (7) would be added to include the criteria for when a non-
power production or utilization facility or fuel reprocessing plant 
licensed under 10 CFR part 50 is no longer considered a production or 
utilization facility.

Section 50.109 Backfitting

    This proposed rule would revise Sec.  50.109 in its entirety to 
provide backfitting provisions for reactors both before and during 
decommissioning and to require that a documented evaluation for a 
modification necessary to bring a facility into compliance with a 
license or the rules or orders of the Commission, or into conformance 
with the licensee's written commitments, must include a consideration 
of the costs of imposing the modification.

Section 50.155 Mitigation of Beyond-Design-Basis Events

    This proposed rule would add new paragraphs (h)(6), (h)(7) and 
(h)(8) that would deem removed certain license conditions and withdraw 
certain orders made redundant by regulations imposing substantively 
identical requirements.

Section 50.200 Power Reactor Decommissioning Emergency Plans

    This proposed rule would add new Sec.  50.200 that would contain 
alternate emergency preparedness requirements for nuclear power reactor 
facilities in decommissioning.

Appendix E to 10 CFR Part 50, Emergency Planning and Preparedness for 
Production and Utilization Facilities

    This proposed rule would revise section I. Introduction of appendix 
E to 10 CFR part 50 by removing paragraph 6.
    Section IV. Content of Emergency Plans of appendix E to 10 CFR part 
50 would be revised by removing from paragraph 4 the phrases ``of the 
later of the date'' and ``or December 23, 2011,'' from the first 
sentence; new paragraph 8 would be added to inform licensees that the 
requirements of paragraphs 4, 5, and 6 of this section are no longer 
required once the NRC dockets the licensee's certifications required 
for decommissioning; paragraphs A.7., A.9., B.1., C.2., E.8.c., and I. 
would all be revised by removing the ``by date'' phrases; paragraph 
D.4. would be removed; the last sentence of paragraph E.8.d. would be 
removed; in paragraph F.2.d., the end of the 3rd sentence beginning 
with the word ``and'' would be removed; paragraph F.2.j(v) would be

[[Page 12307]]

removed and reserved; and new paragraph F.2.k would be added to require 
licensees to follow the biennial exercise requirements in paragraph F.2 
of appendix E to 10 CFR part 50 after the NRC dockets the 
certifications required for decommissioning.
    This proposed rule would revise section VI. Emergency Response Data 
System of appendix E to 10 CFR part 50 by removing the date in 
paragraph 4.a. and the date in paragraph 4.d., also in paragraph 4.d. 
it would remove the phrase ``, whichever comes later'' from the first 
sentence.

Appendix I to 10 CFR Part 50, Numerical Guides for Design Objectives 
and Limiting Conditions for Operation To Meet the Criterion ``As Low as 
Is Reasonably Achievable'' for Radioactive Material in Light-Water-
Cooled Nuclear Power Reactor Effluents

    This proposed rule would revise section IV.C of appendix I to 10 
CFR part 50 by inserting ``or Sec.  52.110(a)'' following ``Sec.  
50.82(a)(1).''

Section 51.53 Postconstruction Environmental Reports

    This proposed rule would revise the first sentence in paragraph (d) 
to include applicants for a license amendment approving an irradiated 
fuel management plan under Sec.  50.54(bb). The proposed rule would 
also add references to Sec.  50.82 and Sec.  52.110 after ``license 
termination plan.''

Section 51.95 Postconstruction Environmental Impact Statements

    This proposed rule would revise the first sentence in paragraph (d) 
to refer to an amendment approving an irradiated fuel management plan 
under Sec.  50.54(bb), the license termination plan under Sec.  50.82 
or Sec.  52.110, or a decommissioning plan under Sec.  50.82.

Section 52.0 Scope

    In Sec.  52.0, this proposed rule would add language clarifying 
that the regulations in 10 CFR part 52 remain effective through the 
termination of the associated 10 CFR part 52 licenses.

Section 52.63 Finality of Standard Design Certifications

    This proposed rule would revise paragraph (b)(2) by removing the 
last sentence and by adding new paragraphs (b)(2)(i) and (ii) regarding 
the recordkeeping and retention requirements for departures from the 
design of a facility.

Section 52.109 Continuation of Combined License

    In Sec.  52.109, this proposed rule would remove the phrase, ``to 
authorize ownership and possession of the production or utilization 
facility,'' for reasons discussed elsewhere in this document.

Section 52.110 Termination of License

    This proposed rule would revise paragraph (b) as paragraph (b)(1) 
and would add paragraph (b)(2) to provide clarification as to when a 
facility licensed under 10 CFR part 52 is no longer considered to be a 
production or utilization facility. Paragraph (d)(1) would be revised 
to clarify that licensees provide the basis for whether the 
environmental impacts from site-specific decommissioning activities are 
bounded by federally issued environmental review documents, and the 
phrase ``site-specific decommissioning cost estimate'' would be added 
at the end of the last sentence. Paragraph (d)(2) would be revised to 
include the requirement for the NRC to include the irradiated fuel 
management plan in the notice of the receipt of the PSDAR in the 
Federal Register and to allow the public to comment.
    Paragraph (e) would be revised by replacing ``Sec.  52.110(a)(1)'' 
with ``Sec.  52.110(a).''
    Paragraph (f)(2) would be revised to clarify the decommissioning 
activities licensees shall not perform. Paragraph (h)(1)(i) would be 
revised to remove the phrase ``legitimate decommissioning,'' paragraph 
(h)(2) would be revised to include a more specific regulatory 
reference, and paragraphs (h)(5) through (8) would be added with 
requirements for the submission of financial status reports. Paragraph 
(i) would be revised to clarify that all nuclear power reactor 
licensees that have loaded fuel into the reactor must submit an 
application for termination of a license. Paragraph (i)(2)(vi) would be 
revised to include identification of sources of funds for license 
termination, spent fuel management, and ISFSI decommissioning, as 
applicable.

Section 72.13 Applicability

    This proposed rule would revise Sec.  72.13 by adding a new 
paragraph (e) to incorporate conforming changes to match technical 
changes elsewhere in the rule.

Section 72.30 Financial Assurance and Recordkeeping for Decommissioning

    This proposed rule would revise Sec.  72.30 by removing the second 
sentence in paragraph (c). The proposed revisions would create new 
paragraphs (b)(1) through(3) and redesignate the existing paragraphs 
(b)(1) through(6) as new (b)(3)(i) through(vi).

Section 72.32 Emergency Plan

    In Sec.  72.32, this proposed rule would clarify that the 
requirement for having an emergency plan applies when the proposed 
ISFSI would not be located on the site or within the exclusion area of 
a nuclear power reactor licensed under 10 CFR parts 50 or 52. The 
proposed revisions would consolidate the current language and remove 
redundancies by using standardized language consistent with other 
proposed rule provisions.

Section 72.44 License Conditions

    This proposed rule would revise Sec.  72.44 by adding a sentence to 
paragraph (f) to indicate that licensees need not comply with the 
requirements of paragraph (f) once all spent fuel has been removed from 
the site.

Section 72.62 Backfitting

    This proposed rule would revise paragraph (a)(2) to clarify that 
the backfitting provisions under this part continue to apply during 
decommissioning.

Section 72.72 Material Balance, Inventory, and Records Requirements for 
Stored Material

    This proposed rule would revise paragraph (d) by breaking it into 
three paragraphs. The last sentence of the current paragraph (d) would 
become paragraph (d)(3). New text is proposed for paragraph (d)(2) and 
minor revisions are proposed for paragraph (d)(1).

Section 72.212 Conditions of General License Issued Under Sec.  72.210

    This proposed rule would revise Sec.  72.212 by adding new 
paragraphs (b)(9)(vii)(A) and (B) regarding the protection of spent 
fuel after the NRC dockets the decommissioning certifications. 
Paragraph (b)(9)(vii)(A) would allow a licensee to voluntarily provide 
for physical protection of the spent fuel under Subpart H of this part 
and Sec.  73.51 of this chapter. Paragraph (b)(9)(vii)(B) would require 
a licensee who elects to provide physical protection under Subpart H of 
this part and Sec.  73.51 of this chapter to notify the NRC of this 
decision using the provisions of Sec.  50.54(p)(2).

Section 72.218 Termination of License

    This proposed rule would revise Sec.  72.218 by revising paragraphs 
(a) and (b) and removing paragraph (c). Paragraph (a) is revised to 
reference the decommissioning requirements in

[[Page 12308]]

Sec.  50.82 or Sec.  52.110 that apply to the general license and 
paragraph (b) is revised to state when the general license is 
considered terminated.

Section 73.51 Requirements for the Physical Protection of Stored Spent 
Nuclear Fuel and High-Level Radioactive Waste

    This proposed rule would revise Sec.  73.51 by removing text from 
paragraph (a), (a)(1), (a)(2), and adding new paragraph (a)(3). 
Paragraph (a)(3) would be added to require notification to the NRC 
under the provisions of Sec.  72.212(b)(9)(vii) of this chapter by a 
licensee who elects to provide physical protection under Subpart H of 
10 CFR part 72.

Section 73.54 Protection of Digital Computer and Communications Systems 
and Networks

    This proposed rule would revise Sec.  73.54 by removing the 
introductory text of the section and revising the introductory text of 
paragraphs (a), (b), and (c), and adding new paragraphs (i), and (j). 
The introductory text of paragraph (a) would be revised to capture that 
the rule applies during operation and decommissioning. Minor edits 
would be made to paragraphs (b) and (c). Paragraph (i) states that the 
requirements of Sec.  73.54 no longer apply once the criteria in (i)(1) 
and (2) are met. Paragraph (j) provides for the removal of the cyber 
security license condition.

Section 73.55 Requirements for Physical Protection of Licensed 
Activities in Nuclear Power Reactors Against Radiological Sabotage

    This proposed rule would revise Sec.  73.55 by clarifying in 
paragraph (b)(3) that a licensee's physical protection program must be 
designed to prevent significant core damage until the NRC dockets the 
certifications required for decommissioning.
    New paragraphs (b)(9)(ii)(B)(1), (2), (2)(i), and (2)(ii) would be 
added to provide additional clarification for licensees implementing 
fitness for duty programs.
    Paragraph (c)(6) would be revised by replacing the text beginning 
with the words ``that describes'' through the end of the sentence with 
the phrase, ``in accordance with the requirements of Sec.  73.54 of 
this part.''
    Paragraph (e)(9)(v)(A) would be revised to provide clarification 
for when the reactor control room would not be considered a vital area.
    Paragraph (j)(4)(ii) would be revised to include a system for 
communication with certified fuel handlers if the NRC had docketed the 
certifications required for decommissioning.
    Paragraph (p)(1)(i) and (ii) would be revised to allow a certified 
fuel handler or a licensed senior operator to approve the suspension of 
security measures if the NRC has docketed the certifications required 
for decommissioning.

Section 140.11 Amounts of Financial Protection Required for Certain 
Reactors

    This proposed rule would revise Sec.  140.11 by adding new 
paragraphs (a)(5), (a)(5)(i) and (ii) and by redesignating paragraph 
(b) as paragraph (c) and adding new paragraph (b) that would provide 
the requirements for the amounts of financial protection required for 
reactors in decommissioning.

Section 140.81 Scope and Purpose

    This proposed rule would revise Sec.  140.81 by clarifying the 
scope of who is subject to the requirements in this section and to 
further clarify that this section no longer applies once a licensee 
meets the requirements of Sec.  140.11(a)(5)(i) and (ii).

VII. Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the Commission certifies that this rule, if adopted, will not 
have a significant economic impact on a substantial number of small 
entities. This proposed rule affects only the licensing and operation 
of nuclear production and utilization facilities. The companies that 
own these plants do not fall within the scope of the definition of 
``small entities'' set forth in the Regulatory Flexibility Act or the 
size standards established by the NRC (Sec.  2.810).

VIII. Regulatory Analysis

    The NRC has prepared a draft regulatory analysis for this proposed 
rule. The analysis examines the costs and benefits of the alternatives 
considered by the NRC. The NRC requests public comment on the draft 
regulatory analysis. The draft regulatory analysis is available as 
indicated in the ``Availability of Documents'' section of this 
document. Comments on the draft analysis may be submitted to the NRC as 
indicated under the ADDRESSES section of this document.

IX. Backfitting and Issue Finality

    The NRC's backfitting provisions for holders of construction 
permits and operating licenses appear in Sec.  50.109, ``Backfitting.'' 
Issue finality provisions (analogous to the backfitting provisions in 
Sec.  50.109) for applicants and holders of combined licenses are 
located in Sec.  52.83, ``Finality of referenced NRC approvals; partial 
initial decision on site suitability,'' and Sec.  52.98, ``Finality of 
combined licenses; information requests.'' This section describes the 
backfitting and issue finality implications of the draft guidance 
documents described in section XVI, ``Availability of Guidance,'' in 
this document and this proposed rule as applied to applicants and 
holders of pertinent NRC approvals. As stated in section III, 
``Discussion,'' in this document, the proposed changes to 10 CFR part 
72 would not impose requirements on ISFSI-only licensees. Accordingly, 
the proposed rule would not constitute ``backfitting'' as that term is 
defined in Sec.  72.62, ``Backfitting.''

A. Current and Future Applicants

    Applicants and potential applicants (for licenses, permits, and 
regulatory approvals such as design certifications) are not, with 
certain exceptions, the subject of either the 10 CFR part 50 
backfitting provisions or any issue finality provisions under 10 CFR 
part 52. The backfitting and issue finality regulations include 
language delineating when those provisions begin; in general, they 
begin after the issuance of a license, permit, or approval (e.g., Sec.  
50.109(a)(1)(iii), Sec.  52.98(a)). Furthermore, neither the 10 CFR 
part 50 backfitting provisions nor the issue finality provisions under 
10 CFR part 52--with certain exclusions discussed below--were intended 
to apply to every NRC action that substantially changes the 
expectations of current and future applicants, and applicants have no 
reasonable expectation that future requirements will not change 
(``Early Site Permits; Standard Design Certifications; and Combined 
Licenses for Nuclear Power Plants; Final Rule,'' 54 FR 15372, at 15385-
15386; April 18, 1989).
    The exceptions to this general principle are applicable whenever a 
combined license applicant references a 10 CFR part 52 license (e.g., 
an early site permit) or NRC regulatory approval (e.g., a design 
certification rule) with specified issue finality provisions. The 
issues that are resolved in an early site permit or a design 
certification and accorded issue finality do not include 
decommissioning matters that are the subject of this proposed rule and 
draft guidance, and the proposed rule and draft guidance do not contain 
design requirements. Therefore, the proposed rule and draft guidance 
would not affect the issue finality accorded early site permits and 
design certifications. For the same reasons, the issue finality 
provision applicable to combined license applicants (Sec.  52.83) would 
not

[[Page 12309]]

apply to a combined license applicant referencing either an early site 
permit or a design certification with respect to compliance with this 
rule.

B. Existing Design Certifications

    The issues that are resolved in a design certification and accorded 
issue finality do not include decommissioning matters that are the 
subject of this proposed rule and draft guidance. Because the 
decommissioning matters that are the subject of this proposed rule and 
draft guidance are limited to nuclear power reactor decommissioning, 
they would not be applied to existing or future design certifications.

C. Existing Licensees

    Section IV.A of this document describes a proposed alternative 
approach to the current requirements for radiological emergency 
preparedness at a nuclear power reactor. The proposed addition of 10 
CFR 50.200 would not constitute backfitting or affect the issue 
finality of a COL because the proposed change would provide a voluntary 
alternative set of requirements. Backfitting is defined in Sec.  
50.109(a)(1) as, in relevant part, a modification of or addition to the 
systems, structures, or components (SSCs) or design of a facility, or 
the procedures or organization required to design, construct, or 
operate a facility, which results from a new or amended provision in 
the Commission's regulations. This proposed rule would not require 
holders of operating licenses and COLs to use the alternative emergency 
preparedness requirements, so the proposed change would not result in a 
modification or addition that would be backfitting or affect the issue 
finality of a COL.
    Section IV.A of this document also describes other proposed changes 
related to emergency preparedness. The NRC would revise Sec.  50.47 to 
add a paragraph (f) to explain when the planning standards of Sec.  
50.47(b) would no longer apply. Removing a requirement would not create 
a new requirement or amend a requirement because amending means the 
requirement still exists in some form. Without creating or amending a 
regulation, this proposed change would not meet the definition of 
``backfitting'' or affect the issue finality of a COL.
    The proposed changes to Sec.  50.54(q) would be made to allow a 
licensee using the emergency preparedness framework of 10 CFR 50.200 to 
also use Sec.  50.54(q). The proposed changes would not require a 
licensee to use the Sec.  50.54(q) emergency plan change process or 
result in a modification of or addition to SSCs or the design of a 
facility or the procedures or organization required to design, 
construct, or operate a facility. Therefore, the proposed changes would 
not meet the definition of ``backfitting'' or affect the issue finality 
of a COL.
    The proposed change to Sec.  50.54(s)(3) would clarify that FEMA 
findings and determinations are only necessary when the NRC's planning 
standards apply to offsite radiological emergency response plans. These 
changes to the NRC's and FEMA's review of emergency plans would not 
result in a modification of or addition to SSCs or the design of a 
facility or the procedures or organization required to design, 
construct, or operate a facility. Therefore, the proposed changes would 
not meet the definition of ``backfitting'' or affect the issue finality 
of a COL.
    The NRC is proposing to amend Sec.  50.54(t) so licensees in 
decommissioning would be able to conduct emergency preparedness program 
element reviews at intervals not to exceed 24 months (rather than the 
current requirement of 12 months) without conducting an assessment 
against performance indicators. This proposed change would not 
constitute backfitting or affect the issue finality of a COL because 
the proposed change would provide a voluntary alternative requirement.
    The NRC would add new Sec.  50.54(t)(3) to remove the requirement 
to conduct periodic emergency preparedness program element reviews once 
all fuel is in dry cask storage. This proposed change would not meet 
the definition of ``backfitting'' or affect the issue finality of a COL 
because the NRC would be removing a requirement.
    The addition of a new paragraph IV.8 to appendix E to 10 CFR part 
50 would clarify that the evacuation time estimate requirements of 
paragraphs IV.4, IV.5, and IV.6 would no longer be applicable to 
licensees after permanent cessation of operations and permanent removal 
of fuel from the reactor vessel. This proposed change would not meet 
the definition of ``backfitting'' or affect the issue finality of a COL 
because the NRC would be removing a requirement.
    The NRC would add a new paragraph k to part 50, appendix E, section 
IV.F.2 to state that licensees in decommissioning need to follow the 
biennial exercise requirements of section IV.F.2. This is the current 
requirement for these licensees, so this change to the regulations 
would not change a requirement. Therefore, the proposed change would 
not meet the definition of ``backfitting'' or affect the issue finality 
of a COL.
    The NRC is proposing to remove obsolete dates for certain one-time 
actions that were required as part of the 2011 emergency preparedness 
final rule and other obsolete dates. These actions are complete, and 
the requirements are no longer binding on any current licensee. These 
proposed changes would not meet the definition of ``backfitting'' or 
affect the issue finality of a COL because the NRC would be removing a 
requirement.
    The proposed changes to 72.32(a) would clarify the emergency plan 
requirements for an applicant of a specific license under 10 CFR part 
72. As discussed in section IX.A. of this document, applicants such as 
this one are outside the scope of the 10 CFR part 50 backfitting 
provisions and issue finality provisions.
    The proposed changes to 72.32(c) would clarify that the ISFSI 
licensee can rely on its 10 CFR part 50 emergency plan to meet the 
requirements of Sec.  72.32 when the nuclear power reactor is under 
construction, operating, or in decommissioning. Other provisions of 
Sec.  72.32 allow an ISFSI licensee with a reactor emergency plan to 
use that emergency plan to meet the applicable requirements for an 
ISFSI emergency plan. Therefore, this clarification would not meet the 
definition of ``backfitting'' or affect the issue finality of a COL 
because it would not result in a modification of or addition to SSCs or 
the design of a facility or the procedures or organization required to 
design, construct, or operate a facility.
    Section IV.B of this document describes proposed changes to 
physical security requirements. The NRC would permit a certified fuel 
handler to approve the temporary suspension of security measures once 
the reactor has shut down and all fuel has been removed from the 
reactor core. This proposed change would not constitute backfitting or 
affect the issue finality of a COL because the proposed change would 
provide a voluntary alternative requirement.
    The proposed changes to Sec.  50.54(p) would add definitions of 
``change'' and ``decrease in safeguard effectiveness'' and require that 
reactor licensees include with the required Sec.  50.54(p)(2) report a 
summary of the analysis performed to determine that the change does not 
decrease safeguards effectiveness of the security plan. The proposed 
changes would not require a licensee to use the Sec.  50.54(p) security 
plan change process unless the licensee voluntarily seeks to change its 
security plan and would not result in a modification of or addition to 
SSCs or the design of a facility or the procedures

[[Page 12310]]

or organization required to design, construct, or operate a facility. 
Therefore, the proposed changes would not meet the definition of 
``backfitting'' or affect the issue finality of a COL.
    The NRC would provide an option that, once all spent nuclear fuel 
has been placed in dry cask storage, licensees could protect a general 
license ISFSI under Sec.  73.51 instead of Sec.  73.55. This proposed 
change would not constitute backfitting or affect the issue finality of 
a COL because the proposed change would provide a voluntary alternative 
requirement.
    Current Sec.  73.55(b)(3) requires that a licensee's physical 
protection program be designed to prevent significant core damage. The 
NRC would remove this requirement once the NRC has docketed the 
licensee's certifications that its reactor has permanently ceased 
operating and all fuel has been removed from the reactor vessel. This 
proposed change would not constitute backfitting or affect the issue 
finality of a COL. The issue finality provision for COLs located in 
Sec.  52.98 provides, in relevant part, that the Commission may not 
modify, add, or delete any term or condition of a COL except in 
accordance with the provisions of Sec.  50.109. Under Sec.  50.109, 
removing a requirement as proposed with Sec.  73.55(b)(3) is not 
backfitting because removing a requirement does not create a new 
requirement and does not amend a requirement because amending means the 
requirement still exists in some form.
    The proposed change to Sec.  73.55(e)(9)(v) would remove the 
requirement that a licensee must designate the reactor control room as 
a ``vital area'' if the NRC has docketed the licensee's certifications 
that the reactor has permanently ceased operating and all fuel has been 
removed from the reactor vessel, and the licensee has documented that 
all vital equipment has been removed from the control room and the 
control room does not serve as the vital area boundary for other vital 
areas. This proposed change would not constitute backfitting or affect 
the issue finality of a COL because the proposed change would be a 
voluntary alternative requirement. Even if a licensee submitted and the 
NRC docketed the certifications that the reactor has permanently ceased 
operating and all fuel has been removed from the reactor vessel, the 
licensee could still designate the reactor control room as a vital 
area. If not all of the vital equipment has been removed from the 
control room or the control room still serves as the vital area 
boundary for other vital areas, then the licensee would not be required 
to, and in fact could not, document that all vital equipment has been 
removed from the control room or the control room does not serve as the 
vital area boundary for other vital areas, respectively.
    The NRC would revise Sec.  73.55(j)(4)(ii) to provide an 
alternative to the requirement for maintaining continuous 
communications between the alarm stations and the control room with a 
requirement for maintaining communications between alarm stations and 
the CFH or senior on shift licensee representative, once a licensee 
submits and the NRC dockets the certifications that the reactor has 
permanently ceased operating and all fuel has been removed from the 
reactor vessel. This proposed change would relax the requirement for 
these licensees. However, a licensee in decommissioning could maintain 
its control room such that its continuous communication system still 
communicates between the alarm stations and the control room. In this 
situation, the control room could redirect communications from the 
alarm stations to the certified fuel handler or the senior on-shift 
licensee representative as appropriate. Thus, a licensee could continue 
to comply with the current requirement to maintain continuous 
communications between the alarm stations and the control room and 
still satisfy the proposed rule. This makes the relaxation non-
mandatory and, as explained in MD 8.4, non-mandatory relaxations of 
regulations generally do not meet the definition of ``backfitting.'' 
This proposed change would provide the voluntary relaxation of a 
current requirement and, thus, not constitute backfitting or affect the 
issue finality of a COL.
    Section IV.C of this document describes proposed changes to cyber 
security requirements. The NRC would revise Sec.  73.54 so the cyber 
security requirements in Sec.  73.54 continue to apply to licensees 
through Level 1 of decommissioning. Each 10 CFR part 50 licensee has a 
license condition requiring the licensee to maintain its cyber security 
plan, and this license condition remains in effect during 
decommissioning. If the NRC issues an operating license for a nuclear 
power reactor before this final rule goes into effect, then the NRC can 
include a license condition similar to those issued to current holders 
of operating licenses for nuclear power reactors. Thus, this proposed 
change would not constitute backfitting for 10 CFR part 50 licensees.
    A COL holder without the license condition is currently not 
required to maintain its cyber security plan when it begins 
decommissioning. The proposed revision to Sec.  73.54 would constitute 
a change affecting the issue finality accorded these COL holders 
because extending the requirement to maintain a cyber security plan 
during decommissioning would modify the terms and conditions of a COL. 
Under Sec.  52.98, the NRC must apply the provisions of Sec.  50.109 to 
the proposed change. The proposed change would constitute backfitting 
under Sec.  50.109. The NRC's backfit analysis justifying this 
backfitting action is presented in section IX.D of this document. If 
the NRC issues a COL before this final rule goes into effect, then the 
NRC can include a license condition similar to those issued to current 
holders of operating licenses for nuclear power reactors.
    Section IV.D of this document describes proposed changes to fitness 
for duty requirements. The NRC proposes to amend Sec.  26.3(a) so the 
requirements of 10 CFR part 26 would not apply to COL holders once the 
NRC has docketed their Sec.  52.110(a) certifications. This proposed 
change would not affect the issue finality of a COL because the NRC 
would be removing a requirement.
    The proposed changes to Sec.  73.55(b)(9)(ii)(B) would provide 
minimum requirements for the fitness for duty elements of operating and 
decommissioning 10 CFR part 50 and 10 CFR part 52 licensees' insider 
mitigation programs. These licensees are already required to comply 
with the insider mitigation program requirements of Sec.  73.55(b)(9), 
so the proposed rule changes would clarify existing requirements and 
would not constitute backfitting or affect the issue finality of a COL.
    The NRC proposes to amend the criminal penalties section of 10 CFR 
part 26 by including Sec.  26.3 within Sec.  26.825(a) by removing 
Sec.  26.3 from Sec.  26.825(b). This proposed change would not revise 
Sec.  26.3 in any way. Enabling the NRC to impose criminal penalties 
for willful violations of, attempts to violate, or conspiracies to 
violate Sec.  26.3 would not result in a modification of or addition to 
SSCs or the design of a facility or the procedures or organization 
required to design, construct, or operate a facility. Therefore, the 
proposed change would not meet the definition of ``backfitting'' or 
affect the issue finality of a COL.
    Section IV.E of this document describes proposed changes to the 
``certified fuel handler'' definition and the elimination of the shift 
technical advisor. The NRC proposes to amend Sec.  50.2 to provide an 
alternative definition of ``certified fuel handler'' to eliminate the 
need for licensees to submit requests for NRC approval of

[[Page 12311]]

CFH training programs. This proposed change would not constitute 
backfitting or affect the issue finality of a COL because the proposed 
change would provide a voluntary alternative to submitting a request 
for approval of a fuel handler training program.
    The proposed change to Sec.  50.54(m)(2)(i) to state that a shift 
technical advisor is not required upon the NRC's docketing of the 
license holder's certifications required under Sec. Sec.  50.82(a)(1) 
or 52.110(a) would not result in a modification of or addition to SSCs 
or the design of a facility or the procedures or organization required 
to design, construct, or operate a facility. Therefore, the proposed 
change would not meet the definition of ``backfitting'' or affect the 
issue finality of a COL.
    Section IV.F of this document describes proposed changes to the 
NRC's decommissioning funding assurance requirements. The proposed 
change to Sec.  50.75(f)(1) would modify the reporting frequency for 
reactor decommissioning funding reports from at least once every 2 
years to at least once every 3 years. This reporting requirement would 
not result in a modification of or addition to SSCs or the design of a 
facility or the procedures or organization required to design, 
construct, or operate a facility. Therefore, the proposed change would 
not meet the definition of ``backfitting'' or affect the issue finality 
of a COL.
    The NRC would revise Sec.  50.75(h) to require certain 
notifications be sent directly to the NRC's Document Control Desk and 
not to the Director, Office of Nuclear Reactor Regulation, or Director, 
Office of Nuclear Material Safety and Safeguards, as applicable. This 
reporting requirement would not result in a modification of or addition 
to SSCs or the design of a facility or the procedures or organization 
required to design, construct, or operate a facility. Therefore, the 
proposed change would not meet the definition of ``backfitting'' or 
affect the issue finality of a COL.
    The NRC proposes to delete Sec.  50.75(f)(2). The language of 
existing Sec.  50.75(f)(1) fully encompasses the language of paragraph 
(f)(2), and, therefore, paragraph (f)(2) is unnecessary and potentially 
confusing. This change would not result in a modification of or 
addition to SSCs or the design of a facility or the procedures or 
organization required to design, construct, or operate a facility. 
Therefore, the proposed change would not meet the definition of 
``backfitting'' or affect the issue finality of a COL.
    The NRC is proposing to amend its regulations in Sec.  50.75(f)(1) 
to clarify that when a licensee identifies a shortfall in the 
decommissioning funding report required by Sec.  50.75(f)(1), the 
licensee must identify additional financial assurance to cover the 
shortfall in the next report. Licensees are already required to provide 
reasonable assurance of decommissioning funding on an ongoing basis. 
The proposed change would not change this obligation; the proposed rule 
would clarify how reasonable assurance of funds will be available for 
the decommissioning process. This change would not result in a 
modification of or addition to SSCs or the design of a facility or the 
procedures or organization required to design, construct, or operate a 
facility. Therefore, the proposed change would not meet the definition 
of ``backfitting'' or affect the issue finality of a COL.
    The proposed change to Sec.  50.82(a)(9)(ii)(F) would require 
licensees to identify the specific sources of funds for ``remaining 
decommissioning costs,'' including sources of funds for license 
termination, spent fuel management, and ISFSI decommissioning. This 
reporting requirement would not result in a modification of or addition 
to SSCs or the design of a facility or the procedures or organization 
required to design, construct, or operate a facility. Therefore, the 
proposed change would not meet the definition of ``backfitting'' or 
affect the issue finality of a COL.
    The NRC would revise Sec.  50.82(a)(8)(v) to allow licensees to 
combine the reports that are required by Sec. Sec.  50.82(a)(8)(v), 
50.82(a)(8)(vii) and 72.30(c). This proposed change would not 
constitute backfitting or affect the issue finality of a COL because 
the proposed change would provide a voluntary alternative requirement.
    The NRC proposes to revise Sec.  52.110 to make the same changes 
proposed in Sec.  50.82. For the reasons previously discussed, these 
proposed changes would not affect the issue finality of a COL. The NRC 
also proposes to add to Sec.  52.110 paragraphs (h)(5) through (h)(7) 
with site-specific decommissioning cost estimate reporting requirements 
that are identical to the requirements in Sec.  50.82(a)(8)(v) through 
(vii). These reporting requirements would not result in a modification 
of or addition to SSCs or the design of a facility or the procedures or 
organization required to design, construct, or operate a facility. 
Therefore, the proposed changes would not meet the definition of 
``backfitting'' and, under Sec.  52.98, would not affect the issue 
finality of a COL.
    The NRC proposes to revise Sec.  72.30 so that the submittals 
subsequent to the initial decommissioning funding plan would no longer 
require NRC approval. This proposed change would not meet the 
definition of ``backfitting'' or affect the issue finality of a COL 
because the NRC would be removing a requirement.
    The proposed changes to Sec.  72.30(b) would clarify the 
requirements for an applicant for a specific licensee and a holder of a 
general license to submit decommissioning funding plans for NRC review 
and approval. The current requirement requires applicants and holders 
of licenses under 10 CFR part 72 to submit decommissioning funding 
plans for NRC review and approval. These changes would not change any 
substantive requirement and would not result in a modification of or 
addition to SSCs or the design of a facility or the procedures or 
organization required to design, construct, or operate a facility. 
Accordingly, these proposed changes would not constitute backfitting or 
affect the issue finality of a COL.
    Section IV.G of this document describes proposed changes to the 
NRC's onsite and offsite financial protection requirements and 
indemnity agreements. These changes would include revisions to the 
following regulations: Sec. Sec.  140.11(a)(5) and 50.54(w)(5), to 
allow nuclear power reactor licensees in decommissioning to reduce the 
offsite liability and onsite property insurance amounts, respectively, 
that they are required to maintain; Sec.  140.81, to include plants in 
decommissioning within the scope of Sec.  140.81, thereby clarifying 
the applicability of the requirements for an Extraordinary Nuclear 
Occurrence ENO to reactors in decommissioning; and Sec.  50.54(w), to 
require a prompt notification to the Commission of any material change 
in proof of onsite property insurance filed with the Commission under 
10 CFR part 50.
    Changes to 10 CFR part 140 are not subject to the 10 CFR part 50 
backfitting provisions and the issue finality provisions in 10 CFR part 
52 because the Price-Anderson Act requires licensees to have offsite 
financial protection. Even if they were subject to the 10 CFR part 50 
backfitting provisions and the issue finality provisions in 10 CFR part 
52, the proposed changes would not result in a modification of or 
addition to SSCs or the design of a facility or the procedures or 
organization required to design, construct, or operate a facility. 
Therefore, the proposed changes would not meet the definition of 
``backfitting'' and would not affect the issue finality of a COL.
    Similarly, the onsite insurance requirements in Sec.  50.54(w) do 
not fall within the purview of the 10 CFR part

[[Page 12312]]

50 backfitting provisions or the issue finality provisions in 10 CFR 
part 52. In the backfitting discussion for the 1987 final rule, 
``Changes in Property Insurance Requirements for NRC Licensed Nuclear 
Power Plants'' (52 FR 28963, 28972; August 5, 1987), the Commission 
stated that requiring an increase in property damage insurance does not 
meet the definition of ``backfitting.'' The Commission took similar 
positions on backfitting in subsequent rulemakings to amend Sec.  
50.54(w) (e.g., 54 FR 11163, March 17, 1989; 55 FR 12163, April 2, 
1990).
    Section IV.H of this document describes proposed changes to the 
requirements concerning consideration of environmental effects of 
decommissioning activities. The NRC proposes to change Sec.  
50.82(a)(4)(i) and Sec.  52.110(d)(1) to require that licensees provide 
the basis for determining whether the environmental impacts of 
decommissioning activities are bounded by previous environmental 
reviews and include a description in the PSDAR of any activities that 
will not be bounded. These reporting requirements would not result in a 
modification of or addition to SSCs or the design of a facility or the 
procedures or organization required to design, construct, or operate a 
facility. Therefore, the proposed changes would not meet the definition 
of ``backfitting'' and would not affect the issue finality of a COL.
    The NRC also proposes to change Sec.  50.82(a)(4)(i) and Sec.  
52.110(d)(1) to allow licensees to use appropriate federally issued 
environmental review documents prepared in compliance with NEPA, ESA, 
NHPA, or other environmental statutes instead of only environmental 
impact statements. These reporting requirements would not result in a 
modification of or addition to SSCs or the design of a facility or the 
procedures or organization required to design, construct, or operate a 
facility. Therefore, the proposed changes would not meet the definition 
of ``backfitting'' and would not affect the issue finality of a COL.
    The NRC would change Sec.  50.82(a)(6)(ii) and Sec.  52.110(f)(2) 
to clarify that the previous review of any potentially significant 
environmental impact must be bounded by appropriate federally issued 
environmental review documents prepared in compliance with NEPA, ESA, 
NHPA, or other environmental statutes. These reporting requirements 
would not result in a modification of or addition to SSCs or the design 
of a facility or the procedures or organization required to design, 
construct, or operate a facility. Therefore, the proposed changes would 
not meet the definition of ``backfitting'' and would not affect the 
issue finality of a COL.
    The NRC proposes to revise 10 CFR part 51 to reflect the changes 
made in the 1996 Final Rule that nuclear power reactor licensees are 
not required to submit license amendment requests for authorization to 
perform decommissioning activities. These changes would not change any 
substantive requirement and would not result in a modification of or 
addition to SSCs or the design of a facility or the procedures or 
organization required to design, construct, or operate a facility. 
Accordingly, these proposed changes would not constitute backfitting or 
affect the issue finality of a COL.
    Section IV.I of this document describes proposed changes to record 
retention requirements. These changes would eliminate certain 
recordkeeping requirements and the requirement to keep certain 
duplicate records. These recordkeeping changes would not result in a 
modification of or addition to SSCs or the design of a facility or the 
procedures or organization required to design, construct, or operate a 
facility. Therefore, the proposed changes would not meet the definition 
of ``backfitting'' and would not affect the issue finality of a COL. 
The proposed changes also would not meet the definition of 
``backfitting'' or affect the issue finality of a COL because the NRC 
would be removing these requirements.
    Section IV.J of this document describes proposed changes to low-
level radioactive waste transportation requirements. The NRC would 
revise Paragraph III.E of appendix G to 10 CFR part 20 to increase from 
20 days to 45 days the window of time for notification of receipt of 
shipments of low-level waste before a shipper would be required to 
investigate, trace, and report to the NRC any shipments of low-level 
waste for which the shipper has not received a notification of receipt. 
This proposed change would relax the requirement. However, a shipper 
could still investigate, trace, and report shipments of low-level waste 
if the shipper has not received notification of receipt within 20 days. 
Thus, a shipper could continue to comply with the current 20-day 
requirement and still satisfy the proposed rule. This makes the 
relaxation non-mandatory and, as explained in MD 8.4, non-mandatory 
relaxations of regulations generally do not meet the definition of 
``backfitting.'' This proposed change would provide the voluntary 
relaxation of a current requirement and, thus, not constitute 
backfitting or affect the issue finality of a COL.
    Section IV.K of this document describes proposed changes to spent 
fuel management requirements. The NRC would revise Sec. Sec.  50.54(bb) 
and 72.218 to clarify the contents of an irradiated fuel management 
plan, which licensees are already required to submit to the NRC for 
approval. This clarification of a reporting requirement would not 
result in a modification of or addition to SSCs or the design of a 
facility or the procedures or organization required to design, 
construct, or operate a facility. Therefore, the proposed changes would 
not meet the definition of ``backfitting'' and would not affect the 
issue finality of a COL.
    The NRC proposes to change Sec.  72.218 to remove spent fuel 
management provisions that the NRC would move to Sec.  50.54(bb) and 
clarify provisions concerning termination of part 72 general licenses. 
The proposed changes would not result in a modification of or addition 
to SSCs or the design of a facility or the procedures or organization 
required to design, construct, or operate a facility. Therefore, the 
proposed changes would not meet the definition of ``backfitting'' and 
would not affect the issue finality of a COL.
    Section IV.L of this document describes proposed changes to the 
NRC's backfitting provisions in 10 CFR part 50 and part 72. The NRC 
proposes to change Sec.  50.109 to clarify application of the 10 CFR 
part 50 backfitting provisions to NRC actions constituting backfitting 
or affecting the issue finality of nuclear power reactor licensees in 
decommissioning. The NRC also would revise Sec.  50.109 to require a 
documented evaluation to include a consideration of the costs of 
imposing the backfit if the basis for backfitting is bringing a 
facility into compliance with a license or the rules or orders of the 
Commission, or into conformance with the licensee's written 
commitments. The proposed change to Sec.  72.62 would clarify that the 
backfit regulations in part 72 apply during the decommissioning of an 
independent spent fuel storage installation or a monitored retrievable 
storage facility. The proposed changes to backfitting provisions would 
be changes to requirements imposed on the NRC, not on a licensee, so 
the proposed changes would be outside the scope of backfitting and 
issue finality.
    Section IV.M of this document describes proposed changes to the 
NRC's regulations related to foreign ownership, control, or domination 
of a production or utilization facility. The NRC would revise Sec.  
50.38 to clarify when a facility licensed under 10 CFR

[[Page 12313]]

part 50 or part 52 is not considered a production or utilization 
facility and, therefore, the foreign ownership, control, or domination 
prohibition no longer applies. The proposed changes would not result in 
a modification of or addition to SSCs or the design of a facility or 
the procedures or organization required to design, construct, or 
operate a facility. Therefore, the proposed changes would not meet the 
definition of ``backfitting'' and would not affect the issue finality 
of a COL.
    The NRC also would amend Sec.  50.82(b) to add the criteria for 
when a non-power production or utilization facility or fuel 
reprocessing plant is no longer a production or utilization facility. 
The only part 50 licensees considered within the scope of the part 50 
backfitting provision are nuclear power reactor licensees. Further, the 
proposed changes would not result in a modification of or addition to 
SSCs or the design of a facility or the procedures or organization 
required to design, construct, or operate a facility. Therefore, the 
proposed changes would not meet the definition of ``backfitting.''
    The NRC would revise Sec.  50.82(a) and (b) and Sec.  52.110(b) to 
affirm the continuation of the NRC's statutory authority over the 
existing 10 CFR part 50 or 10 CFR part 52 license, and to state which 
regulations would still apply to the licensee, after the performance of 
decommissioning activities that lead to the licensed facility no longer 
meeting the definition of a utilization or a production facility. The 
proposed changes would not result in a modification of or addition to 
SSCs or the design of a facility or the procedures or organization 
required to design, construct, or operate a facility. Therefore, the 
proposed changes would not meet the definition of ``backfitting'' and 
would not affect the issue finality of a COL.
    In light of the proposed amendments to Sec. Sec.  50.38, 50.82, and 
52.110, the NRC would amend Sec. Sec.  50.1, 50.51, 52.0, and 52.109 to 
clarify that the regulations in 10 CFR part 50, and the similar 
regulations in 10 CFR part 52, provide not only for the licensing of 
utilization and production facilities, but also for their 
decommissioning and the termination of their associated licenses. The 
proposed changes would not result in a modification of or addition to 
SSCs or the design of a facility or the procedures or organization 
required to design, construct, or operate a facility. Therefore, the 
proposed changes would not meet the definition of ``backfitting'' and 
would not affect the issue finality of a COL.
    The NRC is proposing to add a definition for ``non-power production 
or utilization facility'' to Sec.  50.2 that captures all non-power 
facilities licensed under Sec.  50.22 and Sec.  50.21(a) or (c), except 
fuel reprocessing facilities. The only part 50 licensees considered 
within the scope of the part 50 backfitting provision are nuclear power 
reactor licensees. Further, the proposed definition would not result in 
a modification of or addition to SSCs or the design of a facility or 
the procedures or organization required to design, construct, or 
operate a facility. Therefore, the proposed changes would not meet the 
definition of ``backfitting.''
    Section IV.N of this document describes proposed changes to license 
termination plan requirements. The NRC would revise Sec.  50.82(a)(9) 
and Sec.  52.110(i) to clarify that only nuclear power reactor 
licensees that have loaded fuel into their reactors must submit license 
termination plans. The proposed change would not change this 
requirement; the proposed rule would only clarify that nuclear power 
reactor licensees that have not loaded fuel into their reactors would 
not need to submit license termination plans. This change would not 
result in a modification of or addition to SSCs or the design of a 
facility or the procedures or organization required to design, 
construct, or operate a facility. Therefore, the proposed change would 
not meet the definition of ``backfitting'' or affect the issue finality 
of a COL.
    Section IV.O of this document describes the proposed removal of 
license conditions and withdrawal of orders. These changes would not 
change any substantive requirement because the license conditions and 
orders are substantively redundant with NRC regulations issued after 
the license conditions and orders were issued. Because the NRC would 
not change a requirement, the proposed changes would not meet the 
definition of ``backfitting'' or affect the issue finality of a COL.

D. Backfit Analysis

1. Introduction and Background
    As part of this proposed rule, the NRC is proposing a modification 
to the cyber security requirements in Sec.  73.54. This proposed rule 
would ensure that these requirements continue to apply to nuclear power 
reactor licensees that have submitted their Sec.  50.82(a)(1) or Sec.  
52.110(a) certifications until such time that all spent fuel in the SFP 
has sufficiently decayed (i.e., at least 10 months for BWRs and 16 
months for PWRs after the date of permanent cessation of operations, or 
an NRC-approved alternative spent fuel decay period).
    This amendment would likely constitute a change affecting issue 
finality for 10 CFR part 52 COL holders, as defined in Sec.  52.98. 
These licensees are not currently required to maintain their cyber 
security programs past the date that they are no longer authorized to 
operate the reactor. If the proposal to require these licensees to 
maintain their cyber security program into the decommissioning phase 
would extend the duration that a COL holder would be required to 
maintain a cyber security program, then that extension would constitute 
a new or changed requirement for that licensee and, thus, affect that 
COL's issue finality.
2. Detailed Description of the Proposed Change Affecting Issue Finality
    The NRC sets forth the current cyber security requirements for 
nuclear power reactors in Sec.  73.54. The NRC established these 
requirements as part of the 2009 Power Reactor Security Requirements 
final rule. The preamble to Sec.  73.54 states, in part, that by 
November 23, 2009, each nuclear power reactor licensee ``currently 
licensed to operate'' must submit to the NRC a cyber security plan 
(CSP) for review and approval. The preamble further states that the 
requirements in Sec.  73.54 are applicable to current ``applicants for 
an operating license or combined license'' and mandates such applicants 
to amend their applications to include a CSP. In addition, every 10 CFR 
part 50 license for a nuclear power reactor that was operating in 2009 
contains a license condition to have and maintain a Commission-approved 
CSP. These license conditions were issued when the NRC approved each 
licensee's CSP that was submitted to the NRC as required by the Power 
Reactor Security Requirements final rule. The Tennessee Valley 
Authority's 10 CFR part 50 operating license for Watts Bar Nuclear 
Plant, Unit 2, issued in 2015, also contains a license condition to 
have and maintain a CSP.
    As an initial step in the decommissioning process, a nuclear power 
reactor licensee must submit written certifications that it has decided 
to permanently cease operations and has permanently removed all fuel 
from its reactor vessel, in accordance with Sec.  50.82(a)(1)(i) and 
(ii) for nuclear power reactor licensees under 10 CFR part 50, or Sec.  
52.110(a)(1) and (2) for 10 CFR part 52 combined license holders. As 
stated in Sec.  50.82(a)(2) and Sec.  52.110(b), upon the NRC's 
docketing of these certifications, the license no longer

[[Page 12314]]

authorizes operation of the reactor or the placement or retention of 
fuel in the reactor vessel. In a December 5, 2016 memorandum to the 
Commission, the NRC staff explained that Sec.  73.54 no longer applies 
to nuclear power reactor licensees once they have submitted, and the 
NRC has docketed, these certifications.
    As discussed in the ``Technical Basis for Graded Approach'' section 
of this document, the NRC has concluded that after 10 months for BWRs 
and 16 months for PWRs, the spent fuel in the SFP will have decayed and 
cooled sufficiently such that the fuel cannot heat up to clad ignition 
temperature within 10 hours under adiabatic conditions. The NRC has 
determined that until the fuel has decayed and cooled sufficiently, 
nuclear power reactor licensees must maintain reasonable assurance that 
their critical digital assets remain protected against cyber attacks. 
As such, this proposed rule would modify the cyber security 
requirements in Sec.  73.54 to ensure that they continue to apply to 
licensees of decommissioning nuclear power reactors until the spent 
fuel has decayed and cooled sufficiently (either through the 
application of a 10 month (BWR) or 16 month (PWR) decay period or an 
NRC-approved site-specific decay period). This proposed rule would also 
remove the CSP license condition from the 10 CFR part 50 licenses at 
the applicable 10 or 16 month interval.
    This proposed rule would not constitute backfitting for currently 
operating or recently shutdown 10 CFR part 50 reactor licensees. Their 
CSP license condition remains in effect until the termination of the 
license or the NRC removes the condition from the license (e.g., if the 
licensee submits a license amendment request and the NRC approves it). 
The NRC has determined that the requirements of the CSP license 
conditions are not necessary after the spent fuel in the SFP has 
sufficiently cooled. The proposed rule would codify, during Level 1 of 
decommissioning, the already-imposed requirements of the CSP license 
conditions. These requirements would continue to provide adequate 
protection of the public health and safety and common defense and 
security and continue to support the effective operation of licensees' 
security and emergency preparedness programs during the time when a 
draindown scenario can credibly lead to a zirconium fire. (See sections 
3 and 4 of this backfit analysis for additional cost/benefit 
discussion.) Therefore, this proposed rule would not impact these 
licensees' overall requirement to maintain a cyber security program, 
but would instead enable the automatic removal of cyber security 
requirements once fuel in the SFP has sufficiently cooled. Thus, the 
decommissioning rulemaking would not impose a new or changed 
requirement as the licensees are already implementing the requirement 
as part of their cyber security program license conditions.
    Conversely, this rulemaking would constitute a change affecting the 
issue finality for 10 CFR part 52 COL holders. Each currently approved 
COL includes a license condition to provide the NRC with the licensee's 
Operational Program Implementation Schedule. The operational programs 
(which include development and implementation of a security program, 
including a cyber security program) are requirements in the regulations 
and not separately identified as license conditions. As a result, a COL 
does not require the licensee to maintain the cyber security program 
throughout the duration of its license. COL holders are currently 
required to maintain a program only as long as Sec.  73.54 is 
applicable to them. Because Sec.  73.54 no longer applies to the 
licensee once it is not authorized to operate a nuclear power reactor, 
and a nuclear power reactor licensee is not authorized to operate a 
nuclear power reactor during decommissioning, COL holders are not 
required to maintain their CSP during decommissioning. This proposed 
rule, which would require licensees to maintain their cyber security 
program for 10 months (BWR) or 16 months (PWR) beyond the date of 
permanent cessation of operations (or for an NRC-approved alternative 
spent fuel decay period) could extend the duration over which a COL 
holder would be required to maintain a cyber security program. That 
extension would constitute a new or changed requirement for that 
licensee.
    Under Sec.  52.98, the Commission cannot modify any term or 
condition of an issued combined license except in accordance with the 
provisions of Sec.  52.103 or Sec.  50.109, as applicable. This 
proposed rule's amendment of the cyber security requirements would 
constitute a change affecting the issue finality of the COLs issued at 
the time of the final rule's effective date. The provisions of Sec.  
52.103 do not apply to this proposed rule, so the NRC must show that 
the amendment would meet the requirements of Sec.  50.109 to justify 
proceeding with this amendment. Because none of the exceptions to the 
requirement to prepare a backfit analysis in Sec.  50.109(a)(4) applies 
to this rulemaking, Sec.  50.109(a)(3) requires the NRC to prepare a 
backfit analysis that demonstrates that the proposed amendment would 
result in a substantial increase in the overall protection of the 
public health and safety or the common defense and security, and that 
the direct and indirect costs of implementation are justified in view 
of this increased protection.
3. Benefits: Substantial Increase in Public Health and Safety and 
Common Defense and Security
    The NRC identified qualitative (non-quantifiable) benefits that 
would occur if the proposed change affecting issue finality were 
implemented.
    The NRC identified two qualitative benefits to the common defense 
and security and public health and safety that would be realized if the 
proposed rule is implemented. Specifically, the NRC finds that 
extending the duration over which the licensee must maintain cyber 
security requirements would:

     Constitute a substantial increase in protection to common 
defense and security by ensuring that a compromise of digital systems 
cannot adversely impact the effective operation of licensees' physical 
security programs; and
 Constitute a substantial increase in public health and safety 
by ensuring that a compromise of digital systems cannot adversely 
impact the effective operation of emergency preparedness systems in the 
event of a zirconium fire scenario.

Effective Operation of Physical Security Program
    The NRC has previously determined that attacks on the SFP are 
credible and have the potential to lead to an unacceptable impact to 
common defense and security. Specifically, a physical attack by either 
an external force or malicious insiders could directly lead to a 
draindown scenario and subsequent zirconium fire.
    As established in Sec.  73.54, cyber security is an essential 
element of a licensee's physical security program that enables the 
licensee to effectively protect its site against the design basis 
threat of radiological sabotage defined in Sec.  73.1, in accordance 
with Sec.  73.55(b). Specifically, a physical attack that is augmented 
with a coincident cyber attack would, in many cases, have a higher 
chance of success over a purely physical attack. Thus, although there 
is no cyber attack that can directly lead to a draindown scenario, a 
cyber attack can be combined with a physical attack on the SFP to 
improve the physical attack's likelihood of success.
    Given a facility without adequate cyber security controls in place, 
several

[[Page 12315]]

mechanisms exist that could improve the effectiveness of a physical 
attack on the SFP. For example, a cyber attack could aid a physical 
assault on the SFP by an external attacker by:

 Disabling perimeter detection to delay or prevent onsite 
response to the physical assault prior to the attacker gaining entry to 
the SFP
 disrupting onsite and offsite security-related communication 
to reduce the effectiveness of the licensee's response to the physical 
assault
 disabling access control doors and gates to enable the 
attacker expedited physical access to the SFP

    In addition, inadequate cyber security controls on facilities' 
access control systems could enable an attacker to inject information 
into a licensee's access control system in a manner that would allow 
unauthorized individuals to obtain unescorted access into the protected 
or vital areas of the facility. This could allow one or more attackers 
direct access to the SFP, which could then be exploited to sabotage the 
SFP in a manner that would result in a draindown scenario.
    This factor, combined with the severity of the consequences of a 
draindown scenario and subsequent zirconium fire that could result from 
a successful physical attack, demonstrates that maintaining cyber 
security requirements during the period when a draindown scenario could 
reasonably result in a zirconium fire (i.e., prior to the fuel in the 
SFP sufficiently cooling) represents a substantial increase in 
security.
Effective Operation of Emergency Preparedness Systems
    As discussed in the ``Technical Basis for the Graded Approach'' and 
``Emergency Preparedness'' sections of this document, although the 
spectrum of credible accidents and operational events requiring an 
emergency response is reduced at a decommissioning nuclear power 
reactor as compared to that for an operating nuclear power reactor, 
reliable emergency preparedness functions are still required to ensure 
public health and safety in the event of a zirconium fire scenario.
    As established in Sec.  73.54, cyber security is an essential 
element of a licensee's physical security program that, in part, 
ensures that a compromise of digital systems cannot adversely impact 
emergency preparedness functions. For example, in the event of a 
zirconium fire scenario, the licensee's cyber security program prevents 
a cyber attack from adversely impacting the ability to:

 Notify state, local, and Federal personnel of the emergency
 Request and communicate with offsite support
 Assess and classify the emergency conditions
 Disseminate information to the public during an emergency
 Conduct a radiological accident assessment

    The NRC has determined that this factor demonstrates that 
maintaining cyber security requirements to ensure that a compromise of 
digital systems cannot adversely impact the operation of emergency 
preparedness functions until the time in which a SFP draindown would 
likely be mitigated prior to a zirconium fire scenario (i.e., once the 
fuel in the SFP has sufficiently cooled) represents a substantial 
increase in public health and safety.
4. Costs
    The NRC identified quantitative costs (i.e., costs that are 
amenable to quantitative evaluation) that would be incurred if the 
proposed change affecting issue finality were implemented.
    Based on a review of feedback received during recent inspections of 
the full implementation of licensees' cyber security programs, the NRC 
estimates that the cost to implement a cyber security program for a 
decommissioning nuclear power reactor is approximately $300,000 per 
site per year. As previously stated, this proposed change affecting 
issue finality would extend the duration that a licensee must maintain 
its cyber security program for 10 (BWR) or 16 (PWR) months. Thus, the 
cost associated with this extension is approximately $250,000 (BWR) or 
$400,000 (PWR).
    COLs have been issued at a total of 3 sites that utilize BWR units, 
and 4 sites that utilize PWR units. Assuming that all units are 
constructed and the per-site costs from the previous paragraph, the 
total cost associated with this proposed change affecting issue 
finality if all reactors entered decommissioning today would be 
approximately $2.35 million. If it is assumed that all sites with units 
licensed under 10 CFR part 52 decommission their reactors 40 years 
after the effective date of the final rule, with a discount rate of 7 
percent, then the total, combined cost for all affected licensees 
associated with this proposed change affecting issue finality would be 
approximately $157,000. Due to the potential that some of these 
facilities may not be constructed or that some licensees may have 
voluntarily chosen to maintain their cyber security programs during 
this timeframe, this estimate is expected to be an upper bound.
5. Determination of Substantial Benefits Justifying Costs of the 
Proposed Change Affecting Issue Finality
    The NRC finds that the proposed change affecting issue finality 
would provide a substantial increase in protection to public health and 
safety and common defense and security for current 10 CFR part 52 COL 
holders by ensuring that a compromise of digital systems cannot 
adversely impact the effective operation of licensees' security and 
emergency preparedness programs during the time when a draindown 
scenario can credibly lead to a zirconium fire. The NRC finds that this 
substantial increase would justify the $157,000 in costs that would 
accrue to the licensees.
6. Conclusion
    On the basis of this analysis, the NRC determines that the change 
affecting issue finality resulting from the cyber security portion of 
this proposed rule would be justified under Sec.  50.109(a)(3).
7. Evaluation of Factors in Sec.  50.109(c)(1) Through (9)
    In performing this analysis, the NRC considered the nine factors in 
Sec.  50.109(c), as follows:
Statement of the Specific Objectives That the Backfit Is Designed To 
Achieve
    The two objectives for the cyber security portion of the 
``Regulatory Improvements for Production and Utilization Facilities 
Transitioning to Decommissioning'' rulemaking are:

 To ensure the effectiveness of the physical protection program 
during the period over which a SFP draindown could realistically result 
in a zirconium fire scenario; and
 To ensure the effectiveness of emergency preparedness 
functions during the period over which a SFP draindown may not be 
mitigatable prior to the draindown resulting in a zirconium fire

    Note that the change affecting issue finality is only applicable to 
nuclear power reactors licensed under 10 CFR part 52 as of the 
effective date of the final rule.
General Description of the Activity That Will Be Required by the 
Licensee or Applicant in Order To Complete the Backfit
    The NRC is proposing a modification to the cyber security 
requirements in Sec.  73.54 to ensure that these requirements continue 
to apply to

[[Page 12316]]

licensees of decommissioning nuclear power reactors until such time 
that all spent fuel in the SFP has sufficiently decayed (i.e., 10 
months for BWRs and 16 months for PWRs since the date of permanent 
cessation of operations, or an NRC-approved alternative spent fuel 
decay period). The change affecting issue finality is only applicable 
to nuclear power reactors currently licensed under 10 CFR part 52 as of 
the effective date of the final rule.
Potential Change in the Risk to the Public From the Accidental Off-Site 
Release of Radioactive Material
    The rulemaking is intended to reduce risk of offsite releases as a 
result of breaches in security at nuclear power plants, and to ensure 
the functionality of emergency preparedness functions in the case of a 
zirconium fire scenario. However, the reduction in risk to the public 
from offsite releases of radioactive materials has not been fully 
quantified because there is insufficient information and modeling to 
support such quantification.
Potential Impact on Radiological Exposure of Facility Employees
    The rulemaking would provide added assurance that nuclear industry 
workers are not subjected to unnecessary radiological exposures as the 
result of a breach in security that causes a zirconium fire leading to 
a release of radiation that security personnel are exposed to as the 
result of their response activities. Further, the rulemaking would 
ensure that emergency preparedness functions, including evacuation 
procedures, are not adversely impacted by a cyber attack during the 
period when a draindown scenario could reasonably result in a zirconium 
fire, thus ensuring that nuclear industry workers are not subjected to 
unnecessary radiological exposures in the case of a zirconium fire 
scenario.
Installation and Continuing Costs Associated With the Backfit, 
Including the Cost of Facility Downtime or the Cost of Construction 
Delay
    The backfit analysis to support the change affecting issue finality 
resulting from this proposed rule includes the NRC's estimate of the 
total costs for maintaining a licensee's cyber security program until 
the fuel in the SFP has sufficiently cooled to adequately ensure that a 
SFP draindown does not result in a zirconium fire scenario. The 
estimated one-time industry net cost associated with the change 
affecting issue finality would be approximately $157,000.
The Potential Safety Impact of Changes in Plant or Operational 
Complexity, Including the Relationship to Final and Existing Regulatory 
Requirements
    The cyber security portion of this proposed rule would not impose 
any requirements beyond those in place while the nuclear power reactor 
is operational. As such, this rule is not expected to have an effect on 
facility complexity.
The Estimated Resource Burden on the NRC Associated With the Backfit 
and the Availability of Such Resources
    The rulemaking may result in a minor increase in the expenditure of 
agency resources, due to the potential for cyber security inspections 
to be conducted after the licensee has ceased operations and before 
fuel in the SFP has sufficiently cooled.
The Potential Impact of Differences in Facility Type, Design or Age on 
the Relevancy and Practicality of the Backfit
    The specific cost of this rulemaking to a facility does vary, 
depending on whether the facility utilizes BWR or PWR reactors. This is 
due to time required for fuel in the SFP to sufficiently cool for each 
type of reactor. Further, since the change affecting issue finality is 
only applicable to reactors licensed under 10 CFR part 52, the specific 
cost also depends on the percentage of reactors licensed under 10 CFR 
part 52 at the licensee's facility.
Whether the Backfit is Interim or Final and, if Interim, the 
Justification for Imposing the Backfit on an Interim Basis
    The change affecting issue finality would be final.

E. Draft Regulatory Guidance

    As described in Section XVI, ``Availability of Guidance,'' in this 
document, the NRC is issuing four draft regulatory guides (DGs) that, 
if finalized, would provide guidance on the methods acceptable to the 
NRC for complying with aspects of this proposed rule. The DGs would 
apply to all current holders of operating licenses under 10 CFR part 50 
and COLs under 10 CFR part 52. Issuance of the DGs in final form would 
not constitute backfitting under Sec.  50.109 and would not otherwise 
constitute a change affecting issue finality under 10 CFR part 52. As 
discussed in the ``Implementation'' section of each DG, the NRC has no 
current intention to impose the DGs on current holders of an operating 
license or COL.
    For the same reasons provided under ``Current and Future 
Applicants'' that explain why the proposed rule does not constitute 
backfitting or a change affecting issue finality for applicants, 
applying the DGs to applications for operating licenses or COLs would 
not constitute backfitting as defined in Sec.  50.109 and would not 
otherwise constitute a change affecting issue finality under 10 CFR 
part 52.

X. Cumulative Effects of Regulation

    The NRC is following its Cumulative Effects of Regulation (CER) 
process by engaging extensively with external stakeholders throughout 
this rulemaking and related regulatory activities. Public involvement 
has included: (1) The publication of an ANPR for public comment (80 FR 
72358) on November 19, 2015, to inform the NRC's efforts in drafting a 
proposed rule regulatory basis to address issues associated with 
nuclear power reactor decommissioning; (2) holding a public meeting on 
December 9, 2015, to afford external stakeholders an opportunity to ask 
the NRC staff clarifying questions regarding the ANPR; (3) the 
publication of the draft regulatory basis for public comment (82 FR 
13778) on March 15, 2017; (4) the publication of a preliminary draft of 
the regulatory analysis for public comment (82 FR 21481) on May 9, 
2017; and (5) holding a public meeting on May 8-10, 2017, to facilitate 
public comments on the development of the final regulatory basis and 
regulatory analysis.
    Another opportunity for comment is being provided to the public 
with this proposed rule. The NRC will be issuing the draft implementing 
guidance with this proposed rule to support more informed external 
stakeholder feedback. Further, the NRC will continue to hold public 
meetings throughout the rulemaking process. Section XVI, ``Availability 
of Guidance,'' of this document describes how the public can access the 
draft implementing guidance for which the NRC seeks external 
stakeholder feedback.
    Finally, the NRC is requesting CER feedback on the following 
questions:
    1. In light of any current or projected CER challenges, does the 
proposed rule's effective date provide sufficient time to implement the 
new proposed requirements, including changes to programs, procedures, 
and facilities?
    2. If CER challenges currently exist or are expected, what should 
be done to address them? For example, if more time is required for 
implementation of the new requirements, what period of time is 
sufficient?
    3. Do other (NRC or other agency) regulatory actions (e.g., orders, 
generic communications, license amendment requests, inspection findings 
of a generic nature) influence the

[[Page 12317]]

implementation of the proposed rule's requirements?
    4. Are there unintended consequences? Does the proposed rule create 
conditions that would be contrary to the proposed rule's purpose and 
objectives? If so, what are the unintended consequences, and how should 
they be addressed?
    5. Please comment on the NRC's cost and benefit estimates in the 
draft regulatory analysis that supports the proposed rule. The draft 
regulatory analysis is available as indicated in the ``Availability of 
Documents'' section of this document.

XI. 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 
31885). The NRC requests comment on this document with respect to the 
clarity and effectiveness of the language used.

XII. National Environmental Policy Act

    This proposed rule includes some actions that are of the types 
described in Sec.  51.22(c). The NRC has previously determined that 
these types of actions do not have a significant impact on the 
environment and has categorically excluded them from the requirement to 
prepare an environmental analysis. Specifically, the NRC has determined 
that some amendments in this proposed rule are the types of actions 
described in the Sec.  51.22(c) exclusions noted in Table 4. 
Accordingly, the NRC has not developed an environmental impact 
statement or an environmental assessment for these portions of the 
proposed rule.

   Table 4--Application of 10 CFR 51.22 Categorical Exclusions to the
                          Proposed Requirements
------------------------------------------------------------------------
                                              Applicable 10 CFR 51.22
                Regulation                           paragraph
------------------------------------------------------------------------
10 CFR part 26...........................  (c)(1), (c)(3).
10 CFR 50.2..............................  (c)(2), (c)(3).
10 CFR 50.54(bb).........................  (c)(3).
10 CFR 50.59(d)..........................  (c)(3).
10 CFR 50.71(c)..........................  (c)(3).
10 CFR 50.75(f)..........................  (c)(3).
Elimination of 10 CFR 50.75(f)(2)........  (c)(2).
10 CFR 50.82(a)..........................  (c)(2), (c)(3).
10 CFR 50.109............................  (c)(2).
10 CFR part 50, appendix A...............  (c)(3).
10 CFR part 20, appendix G...............  (c)(3).
10 CFR 51.53.............................  (c)(3).
10 CFR 51.95.............................  (c)(3).
10 CFR 52.63.............................  (c)(3).
10 CFR 52.110............................  (c)(2).
10 CFR 72.72.............................  (c)(3).
10 CFR 72.218............................  (c)(3).
10 CFR part 140..........................  (c)(1).
------------------------------------------------------------------------

Draft Finding of No Significant Impacts
    The NRC has prepared a draft environmental assessment (EA) for the 
portions of this proposed rule not categorically excluded under Sec.  
51.22. The draft EA is available in ADAMS at Accession No. ML22019A140. 
The NRC prepared the draft EA to determine environmental impacts of the 
proposed action: A rulemaking to update the NRC's regulations related 
to production and utilization facilities transitioning to 
decommissioning. Based on the draft EA, the NRC concludes that this 
proposed rule would not have significant environmental impacts because 
the changes would be administrative or procedural in nature and would 
have no nexus to the physical environment or would have no significant 
impact on the environment. Therefore, this proposed rule does not 
warrant preparation of an environmental impact statement. Accordingly, 
the NRC has determined that a finding of no significant impact (FONSI) 
is appropriate.

XIII. Paperwork Reduction Act

    This proposed rule contains new or amended collections of 
information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-21). This proposed rule has been submitted to the Office of 
Management and Budget for review and approval of the information 
collections.
    Type of submission, new or revision: Revision.
    The title of the information collection: Regulatory Improvements 
for Production and Utilization Facilities Transitioning to 
Decommissioning, Proposed Rule.
    The form number if applicable: Not applicable.
    How often the collection is required or requested: Annually and on 
occasion.
    Who will be required or asked to respond: Production and 
utilization facility licensees.
    An estimate of the number of annual responses: 102 (1 response for 
10 CFR part 20, 0 responses for 10 CFR part 26, 97 responses for 10 CFR 
part 50, 0 responses for 10 CFR part 52, 1 response for 10 CFR part 72, 
and 3 responses for 10 CFR part 73).
    The estimated number of annual respondents: 62 (1 respondent for 10 
CFR part 20, 0 respondents for 10 CFR part 26, 62 respondents for 10 
CFR part 50, 0 respondents for 10 CFR part 52, 20 respondents for 10 
CFR part 72, and 1 respondent for 10 CFR part 73).
    An estimate of the total number of hours needed annually to comply 
with the information collection requirement or request: -3,658 (-77.5 
hours for 10 CFR part 20, 0 hours for 10 CFR part 26, -3,114.5 hours 
for 10 CFR part 50, 0 hours for 10 CFR part 52, -436 hours for 10 CFR 
part 72, and -30 hours for 10 CFR part 73).
    Abstract: The proposed rule would result in changes in 
recordkeeping and reporting burden relative to existing rules by 
creating a regulatory framework for production and utilization facility 
licensees transitioning to decommissioning and amending existing 
regulations that relate to the decommissioning of production and 
utilization facilities. Decommissioning nuclear power reactor licensees 
and the NRC have expended substantial resources processing licensing 
actions for nuclear power reactors during their transition period to 
decommissioning status. Licensees that are currently transitioning to 
decommissioning have been requesting NRC review and approval of 
licensing actions, informed by the low risk of an offsite radiological 
release posed by a decommissioning reactor. Specifically, the licensees 
are seeking NRC approval of exemptions and license amendments to revise 
requirements to reflect the reduced operations and risks posed by a 
permanently shutdown and defueled reactor. The proposed rule would, on 
balance, reduce the paperwork burden imposed on production and 
utilization facility licensees transitioning to decommissioning by 
establishing a graded approach to the requirements imposed on these 
facilities. A graded approach would adjust the level of analysis, 
documentation, and actions necessary to comply with safety requirements 
and criteria commensurate with several factors, including magnitude of 
any credible hazard involved, and the balance between radiological and 
non-radiological hazards as applicable to the level within the 
decommissioning process. The NRC expects that these proposed changes 
would enhance the efficiency of the decommissioning process and reduce 
the overall burden on licensees.

[[Page 12318]]

    The NRC is seeking public comment on the potential impact of the 
information collections contained in this proposed rule and on the 
following issues:
    1. Is the proposed information collection necessary for the proper 
performance of the functions of the NRC, including whether the 
information will have practical utility?
    2. Is the estimate of the burden of the proposed information 
collection accurate?
    3. Is there a way to enhance the quality, utility, and clarity of 
the information to be collected?
    4. How can the burden of the proposed information collection on 
respondents be minimized, including the use of automated collection 
techniques or other forms of information technology?
    A copy of the OMB clearance package and proposed rule is available 
in ADAMS under Accession No. ML18039A192 or can be obtained free of 
charge by contacting the NRC's Public Document Room reference staff at 
1-800-397-4209, at 301-415-4737, or by email to [email protected]. 
You may obtain information and comment submissions related to the OMB 
clearance package by searching on https://www.regulations.gov under 
Docket ID NRC-2015-0070.
    You may submit comments on any aspect of these proposed information 
collections, including suggestions for reducing the burden and on the 
above issues, by the following methods:
     Federal rulemaking website: Go to https://www.regulations.gov and search for Docket ID NRC-2015-0070.
     Mail comments to: FOIA, Library, and Information 
Collections Branch, Office of the Chief Information Officer, Mail Stop: 
T6-A10M, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 
or to the OMB reviewer at: OMB Office of Information and Regulatory 
Affairs (3150-0014, -0146, -0011, -0151, -0132, -0002), Attn: Desk 
Officer for the Nuclear Regulatory Commission, 725 17th Street NW, 
Washington, DC 20503; email: [email protected].
    Submit comments by April 4, 2022. Comments received after this date 
will be considered if it is practical to do so, but the NRC staff is 
able to ensure consideration only for comments received on or before 
this date.

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.

XIV. Criminal Penalties

    For the purposes of Section 223 of the Atomic Energy Act of 1954, 
as amended (AEA), the NRC is issuing this proposed rule that would 
amend or add Sec. Sec.  26.3, 50.47, 50.54, 50.59, 50.71, 50.75, 50.82, 
50.200, 52.110, 72.30, 72.72, 72.212, 72.218, 73.51, 73.54, 73.55, and 
140.11 as well as appendix G to 10 CFR part 20, appendix A to 10 CFR 
part 50, and appendix E to 10 CFR part 50, under one or more of 
Sections 161b, 161i, or 161o of the AEA. Willful violations of these 
provisions would be subject to criminal enforcement. Criminal penalties 
as they apply to regulations in 10 CFR parts 20, 26, 50, 52, 72, 73 and 
140 are discussed in Sec. Sec.  20.2402, 26.825, 50.111, 52.303, 72.86, 
73.81 and 140.89.

XV. 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 proposed rule, the NRC 
would revise regulations associated with decommissioning in 10 CFR 
parts 20, 26, 50, 51, 52, 72, 73, and 140. This action would not 
constitute the establishment of a standard that contains generally 
applicable requirements.

XVI. Availability of Guidance

    The NRC is issuing for comment four draft regulatory guides to 
support the implementation of the proposed requirements in this 
proposed rule, as well as to support other recommendations made in the 
supporting regulatory bases regarding areas where the decommissioning 
guidance could be improved or enhanced. You may access information and 
comment submissions related to the Draft Guides (DGs) by searching on 
https://www.regulations.gov under Docket ID NRC-2015-0070. You may 
submit comments on this draft guidance by the methods outlined in the 
ADDRESSES section of this document.
    1. The DG-1346, ``Emergency Planning for Decommissioning Nuclear 
Power Reactors'' (ADAMS Accession No. ML21347A046), is a new regulatory 
guide.
    2. The DG-1347, ``Decommissioning of Nuclear Power Reactors,'' 
(ADAMS Accession No. ML21347A080), would be Revision 2 to the existing 
Regulatory Guide 1.184.
    3. The DG-1348, ``Assuring the Availability of Funds for 
Decommissioning Production or Utilization Facilities,'' (ADAMS 
Accession No. ML21347A081), would be Revision 2 to the existing 
Regulatory Guide 1.159.
    4. The DG-1349, ``Standard Format and Content for Post-Shutdown 
Decommissioning Activities Report,'' (ADAMS Accession No. ML21347A138), 
would be Revision 2 to the existing Regulatory Guide 1.185.

XVII. Public Meeting

    The NRC will conduct a public meeting on this proposed rule for the 
purpose of describing this proposed rule to the public and facilitating 
development of public comments on this proposed rule.
    The NRC will publish a notice of the location, time, and agenda of 
the meeting in the Federal Register, on Regulations.gov, and on the 
NRC's public meeting website at least 10 calendar days before the 
meeting. Stakeholders should monitor the NRC's public meeting website 
for information about the public meeting at: https://www.nrc.gov/public-involve/public-meetings/index.cfm.

XVIII. 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.

------------------------------------------------------------------------
                                                   ADAMS accession No./
                    Document                         web link/ Federal
                                                     Register citation
------------------------------------------------------------------------
                         Proposed Rule Documents
------------------------------------------------------------------------
Draft Regulatory Analysis.......................  ML22019A132.
Draft Environmental Assessment and FONSI........  ML22019A140.
Draft Information Collection Analysis...........  ML18039A192.
------------------------------------------------------------------------

[[Page 12319]]

 
                   Draft Regulatory Guidance Documents
------------------------------------------------------------------------
Draft Regulatory Guide DG-1346, ``Emergency       ML21347A046.
 Planning for Decommissioning Nuclear Power
 Reactors''.
Draft Regulatory Guide DG-1347,                   ML21347A080.
 ``Decommissioning of Nuclear Power Reactors''.
Draft Regulatory Guide DG-1348, ``Assuring the    ML21347A081.
 Availability of Funds for Decommissioning
 Production or Utilization Facilities''.
Draft Regulatory Guide DG-1349, ``Standard        ML21347A138.
 Format and Content for Post-Shutdown
 Decommissioning Activities Report''.
------------------------------------------------------------------------
                            Other References
------------------------------------------------------------------------
``Bellefonte Nuclear Plant, Units 1 and 2--       ML061810505.
 Withdrawal of Construction Permit Nos. CPPR-122
 for Unit 1 and CPPR-123 for Unit 2,'' dated
 September 14, 2006.
``Energy Northwest Nuclear Project No. 1--        ML070220011.
 Termination of Construction Permit CPPR-134,''
 dated February 8, 2007.
``Power Reactor Transition from Operations to     ML16085A029.
 Decommissioning: Lessons Learned Report,''
 dated October 31, 2016.
``Risk assessment for physical and cyber attacks  https://
 on critical infrastructures,'' Military           ieeexplore.ieee.org/
 Communications Conference, 2005. MILCOM 2005.     document/1605959/.
 Institute of Electrical and Electronics
 Engineers. October 2005.
``Status of Regulatory Exemptions for             ML030550706.
 Decommissioning Plants,'' dated August 16, 2002.
COMSECY-13-0030, ``Staff Evaluation and           ML13329A918.
 Recommendation for Japan Lessons Learned Tier 3
 Issue on Expedited Transfer of Spent Fuel''.
Documentation of Evolution of Security            ML092990438.
 Requirements at Commercial Nuclear Power Plants
 with Respect to Mitigation Measures for Large
 Fires and Explosions, dated February 4, 2010.
Draft Regulatory Basis for Public Comment--       ML17047A413.
 Regulatory Improvements for Power Reactors
 Transitioning to Decommissioning.
EPA-400-R-92-001, ``Manual of Protective Action   https://www.epa.gov/
 Guides And Protective Actions For Nuclear         sites/production/
 Incidents,'' issued May 1992.                     files/2016-03/
                                                   documents/pags.pdf.
EPA[dash]400/R-17/001, ``PAG Manual: Protective   https://www.epa.gov/
 Action Guides and Planning Guidance for           radiation/protective-
 Radiological Incidents,'' issued January 2017.    action-guides-pags.
Federal Register notice--``Washington Public      64 FR 4725.
 Power Supply System, Washington Nuclear
 Project, Unit 3; Order Revoking Construction
 Permit No. CPPR-154,'' dated January 29, 1999.
Federal Register notice--Advance Notice of        80 FR 72358.
 Proposed Rulemaking, ``Regulatory Improvements
 for Decommissioning Power Reactors,'' dated
 November 19, 2015.
Federal Register notice--Direct Final Rule,       79 FR 62329.
 ``Definition of a Utilization Facility,'' dated
 October 17, 2014.
Federal Register notice--Draft Policy Statement,  59 FR 5216.
 ``Use of Decommissioning Trust Funds before
 Decommissioning Plan Approval,'' dated February
 3, 1994.
Federal Register notice--Draft Regulatory Basis,  82 FR 13778.
 ``Regulatory Improvements for Power Reactors
 Transitioning to Decommissioning,'' dated March
 15, 2017.
Federal Register notice--Final ITAAC Hearing      81 FR 43266.
 Procedures, ``Final Procedures for Conducting
 Hearings on Conformance With the Acceptance
 Criteria in Combined Licenses,'' dated July 1,
 2016.
Federal Register notice--Final Policy Statement,  52 FR 38077.
 ``Commission Policy Statement on Deferred
 Plants,'' dated October 14, 1987.
Federal Register notice--Final Rule,              35 FR 5317.
 ``Backfitting of Production and Utilization
 Facilities; Construction Permits and Operating
 Licenses,'' dated March 31, 1970.
Federal Register notice--Final Rule,              66 FR 5427.
 ``Consideration of Potassium Iodide in
 Emergency Plans,'' dated January 19, 2001.
Federal Register notice--Final Rule,              26 FR 9546.
 ``Creditors' Rights; and Transfer, Surrender,
 and Termination of Licenses,'' dated October
 10, 1961.
Federal Register notice--Final Rule,              61 FR 39278.
 ``Decommissioning of Nuclear Power Reactors,''
 dated July 29, 1996.
Federal Register notice--Final Rule, ``Early      54 FR 15372.
 Site Permits; Standard Design Certifications;
 and Combined Licenses for Nuclear Power
 Reactors,'' dated April 18, 1989.
Federal Register notice--Final Rule, ``Emergency  47 FR 30232.
 Planning and Preparedness,'' dated July 13,
 1982.
Federal Register notice--Final Rule, ``Emergency  45 FR 55402.
 Planning,'' dated August 19, 1980.
Federal Register notice--Final Rule,              76 FR 72559.
 ``Enhancements to Emergency Preparedness
 Regulations,'' dated November 23, 2011.
Federal Register notice--Final Rule, ``Fitness    73 FR 16966.
 for Duty Programs,'' dated March 31, 2008.
Federal Register notice--Final Rule, ``General    53 FR 24018.
 Requirements for Decommissioning Nuclear
 Facilities,'' dated June 27, 1988.
Federal Register notice--Final Rule, ``Licenses,  72 FR 49351.
 Certifications, and Approvals for Nuclear Power
 Plants,'' dated August 27, 2007.
Federal Register notice--Final Rule,              84 FR 39684.
 ``Mitigation of Beyond-Design-Basis Events,''
 dated August 9, 2019.
Federal Register notice--Final Rule, ``Power      74 FR 13926.
 Reactor Security Requirements,'' dated March
 27, 2009.
Federal Register notice--Final Rule, ``Reporting  65 FR 63769.
 Requirements for Nuclear Power Reactors and
 Independent Spent Fuel Storage Installations at
 Power Reactor Sites,'' dated October 25, 2000.
Federal Register notice--Final Rule,              49 FR 34688.
 ``Requirements for Licensee Actions Regarding
 the Disposition of Spent Fuel Upon Expiration
 of Reactor Operating Licenses,'' dated August
 31, 1984.
Federal Register notice--Final Rule, ``Retention  53 FR 19240.
 Periods for Records; Final Rule,'' dated May
 27, 1988.
Federal Register notice--Final Rule, ``Revision   53 FR 20603.
 of Backfitting Process for Power Reactors,''
 dated June 6, 1988.

[[Page 12320]]

 
Federal Register notice--Final Rule, ``Revision   50 FR 38097.
 of Backfitting Process for Power Reactors,''
 dated September 20, 1985.
Federal Register notice--Policy Statement,        44 FR 61123.
 ``Planning Basis for Emergency Responses to
 Nuclear Power Reactor Accidents,'' dated
 October 23, 1979.
Federal Register notice--Policy Statement,        51 FR 30028.
 ``Safety Goals for the Operation of Nuclear
 Power Plants; Policy Statement; Correction and
 Republication,'' dated August 21, 1986.
Federal Register notice--Preliminary Draft        82 FR 21481.
 Regulatory Analysis, ``Regulatory Improvements
 for Power Reactors Transitioning to
 Decommissioning,'' dated May 9, 2017.
Federal Register notice--Proposed Rule,           60 FR 37374.
 ``Decommissioning of Nuclear Power Reactors,''
 dated July 20, 1995.
Federal Register notice--Proposed Rule,           44 FR 75167.
 ``Emergency Planning,'' dated December 19, 1979.
Federal Register notice--Proposed Rule,           85 FR 28436.
 ``Emergency Preparedness for Small Modular
 Reactors and Other New Technologies,'' dated
 May 12, 2020.
Federal Register notice--Correction to Proposed   85 FR 32308.
 Rule, ``Emergency Preparedness for Small
 Modular Reactors and Other New Technologies,''
 dated May 29, 2020.
Federal Register notice--Regulatory Basis,        82 FR 55954.
 ``Regulatory Improvements for Power Reactors
 Transitioning to Decommissioning,'' dated
 November 27, 2017.
Homeland Security Presidential Directive 5,       https://www.dhs.gov/
 ``Management of Domestic Incidents'' dated        publication/homeland-
 February 28, 2003.                                security-presidential-
                                                   directive-5.
IMC 2561, ``Decommissioning Power Reactor         ML031270502.
 Inspection Program''.
Information Notice 2014-14, ``Potential Safety    ML14218A493.
 Enhancements to Spent Fuel Pool Storage,''
 dated November 14, 2014.
Inspection Procedure (IP) 71801,                  https://www.nrc.gov/
 ``Decommissioning Performance and Status Review   reading-rm/doc-
 at Permanently Shutdown Reactors,'' dated         collections/insp-
 August 11, 1997.                                  manual/inspection-
                                                   procedure/
                                                   ip71801.pdf.
Issuance of Amendment No. 142 to Facility         ML17283A069.
 Operating License No. DPR-3--Yankee Nuclear
 Power Station (Rowe) (TAC No. M83024),dated
 August 5, 1992.
Issuance of Amendment No. 190 for Facility        ML18095A126.
 Operating License No. NPF-1 to Possession-Only
 License for Trojan Nuclear Plant (TAC No.
 M85647), dated May 5, 1993.
Management Directive 8.4, ``Management of         ML18093B087.
 Backfitting, Forward Fitting, Issue Finality,
 and Information Requests,'' dated September 20,
 2019.
Memorandum, ``Cyber Security Requirements for     ML16172A284.
 Decommissioning Nuclear Power Plants,'' dated
 December 5, 2016.
Memorandum of Understanding Between the           ML15344A371.
 Department of Homeland Security/Federal
 Emergency Management Agency and Nuclear
 Regulatory Commission Regarding Radiological
 Emergency Response, Planning, and Preparedness,
 dated December 7, 2015.
NEI 99-01, Revision 6, ``Development of           ML12326A805.
 Emergency Action Levels for Non-Passive
 Reactors,'' issued November 2012.
NEI 06-12, Revision 2, ``B.5.b Phase 2 & 3        ML070090060.
 Submittal Guideline,'' dated December 2006.
NEI 10-04, Revision 2, ``Identifying Systems and  ML12180A081.
 Assets Subject to the Cyber Security Rule,''
 issued July 2012.
NRC Regulatory Issue Summary 2001-07, Rev. 1, 10  ML083440158.
 CFR 50.75 Reporting and Recordkeeping for
 Decommissioning Planning, dated January 8, 2009.
NSIR/DPR-ISG-01, ``Interim Staff Guidance--       ML113010523.
 Emergency Planning for Nuclear Power Plants,''
 dated November 20, 2011.
NSIR/DPR-ISG-02, ``Interim Staff Guidance:        ML14106A057.
 Emergency Planning Exemption Requests for
 Decommissioning Nuclear Power Plants,'' dated
 May 11, 2015.
NUREG/BR-0314, Rev. 4, ``Protecting Our           ML15232A263.
 Nation,'' dated August 2015.
NUREG/BR-0521, Rev. 1, ``Decommissioning Nuclear  ML17177A253.
 Power Plants,'' dated June 2017.
NUREG-0396, ``Planning Basis for the Development  ML051390356.
 of State and Local Government Radiological
 Emergency Response Plans in Support of Light
 Water Nuclear Power Plants,'' December 1978.
NUREG-0586, Supplement 1, Volumes 1 and 2,        ML023470327.
 ``Generic Environmental Impact Statement on
 Decommissioning of Nuclear Facilities:
 Regarding the Decommissioning of Nuclear Power
 Reactors''.
NUREG-0654/FEMA-REP-1, Revision 1, ``Criteria     ML040420012.
 for Preparation and Evaluation of Radiological
 Emergency Response Plans and Preparedness in
 Support of Nuclear Power Plants,'' issued
 November 1980.
NUREG-0654/FEMA-REP-1, Revision 2, ``Criteria     ML19347D139.
 for Preparation and Evaluation of Radiological
 Emergency Response Plans and Preparedness in
 Support of Nuclear Power Plants: Final
 Report,'' issued December 2019.
NUREG-0696, ``Functional Criteria for Emergency   ML051390358.
 Response Facilities''.
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,'' Revision 0, dated June 2015.
NUREG-0933, ``Resolution of Generic Safety        https://www.nrc.gov/
 Issues,'' issued December 2011.                   sr0933/.
NUREG-1353, ``Regulatory Analysis for the         ML082330232.
 Resolution of Generic Issue 82, `Beyond Design
 Basis Accidents in Spent Fuel Pools,' '' issued
 April 1989.
NUREG-1738, ``Technical Study of Spent Fuel Pool  ML010430066.
 Accident Risk at Decommissioning Nuclear Power
 Plants,'' issued February 2001.
NUREG-2161, ``Consequence Study of a Beyond-      ML14255A365.
 Design-Basis Earthquake Affecting the Spent
 Fuel Pool for a U.S. Mark I Boiling Water
 Reactor,'' issued September 2014.
Order EA-02-026, ``Order for Interim Safeguards   ML020510637 (letter).
 and Security Compensatory Measures,'' dated      ML020510635 (order).
 February 25, 2002.
Order EA-06-137, ``Order Modifying Licenses,''    ML061600076.
 dated June 20, 2006.

[[Page 12321]]

 
Order EA-12-049, ``Order Modifying Licenses with  ML12054A735.
 Regard to Requirements for Mitigation
 Strategies for Beyond-Design[dash]Basis
 External Events,'' dated March 12, 2012.
Order EA-12-051, ``Order Modifying Licenses with  ML12054A679.
 Regard to Reliable Spent Fuel Pool
 Instrumentation'' dated March 12, 2012.
Presidential Policy Directive (PPD)-8,            https://www.dhs.gov/
 ``National Preparedness'' issued March 30, 2011.  presidential-policy-
                                                   directive-8-national-
                                                   preparedness.
Rancho Seco Nuclear Generating Station Amendment  ML17283A071.
 No. 117 for Facility Operating License No. DPR-
 54 to Possession Only License (TAC No. M76825).
RG 1.101, Revision 0, ``Emergency Planning for    ML13350A291.
 Nuclear Power Plants,'' dated November 1975.
RG 1.185, Revision 1, ``Standard Format and       ML13140A038.
 Content for Post-Shutdown Decommissioning
 Activities Report,'' dated June 2013.
RG 1.219, Revision 1, ``Guidance on Making        ML16061A104.
 Changes to Emergency Plans for Nuclear Power
 Reactors,'' dated July 2016.
SECY-93-127, ``Financial Protection Required of   ML12257A628.
 Licensees of Large Nuclear Power Plants During
 Decommissioning,'' dated May 10, 1993.
SECY-98-253, ``Applicability of Plant-Specific    ML992870107.
 Backfit Requirements to Plants Undergoing
 Decommissioning,'' dated November 4, 1998.
SECY-00-0145, ``Integrated Rulemaking Plan for    ML003721626.
 Nuclear Power Plant Decommissioning,'' dated
 June 28, 2000.
SECY-01-0100, ``Policy Issues Related to          ML011450420.
 Safeguards, Insurance, and Emergency
 Preparedness Regulations at Decommissioning
 Nuclear Power Plants Storing Fuel in Spent Fuel
 Pools,'' dated June 4, 2001.
SECY-04-0176, ``Exemption Requests to Reduce      ML040850518.
 Liability Insurance Coverage for
 Decommissioning Reactors after Transfer of all
 Spent Fuel from a Spent Fuel Pool to Dry Cask
 Storage,'' dated September 29, 2004.
SECY-14-0118, ``Request by Duke Energy Florida,   ML14219A444.
 Inc., for Exemptions from Certain Emergency
 Planning Requirements,'' dated October 29, 2014.
SECY-15-0005, ``Recommendation to Sunset to       ML14210A554.
 Decommissioning Trust Fund Spot-Check
 Program,'' dated January 15, 2015.
SECY-15-0014, ``Anticipated Schedule and          ML15082A089.
 Estimated Resources for a Power Reactor
 Decommissioning Rulemaking,'' dated January 30,
 2015--Redacted.
SECY-16-0142, ``Draft Final Rule--Mitigation of   ML16301A005.
 Beyond-Design-Basis Events,'' dated December
 15, 2016.
SECY-20-0001, ``Summary of Staff Review and       ML19346E375.
 Findings of the 2019 Decommissioning Funding
 Status Reports from Operating and
 Decommissioning Power Reactor Licensees,''
 dated December 31, 2019.
SRM-COMSECY-13-0030, ``Staff Evaluation and       ML14143A360.
 Recommendation for Japan Lessons-Learned Tier 3
 Issue on Expedited Transfer of Spent Fuel,''
 dated May 23, 2014.
SRM-SECY-16-0142, ``Final Rule: Mitigation of     ML19023A038.
 Beyond-Design-Basis Events,'' dated January 24,
 2019.
SRM-SECY-93-127, ``Financial Protection Required  ML003760936.
 of Licensees of Large Nuclear Power plants
 during Decommissioning,'' dated July 13, 1993.
SRM-SECY-99-168, ``Staff Requirements--SECY-99-   ML003752190.
 168--Improving Decommissioning Regulations for
 Nuclear Power Plants,'' dated December 21, 1999.
SRM-SECY-00-0145, ``Staff Requirements--SECY-00-  ML003754381.
 0145--Integrated Rulemaking Plan for Nuclear
 Power Plant Decommissioning,'' dated September
 27, 2000.
SRM-SECY-14-0118, ``Request by Duke Energy        ML14364A111.
 Florida, Inc., for Exemptions from Certain
 Emergency Planning Requirements,'' dated
 October 29, 2014.
Summary of Public Meeting May 8-10, 2017,         ML17157B211.
 Regulatory Improvements for Power Reactors
 Transitioning to Decommissioning Rulemaking
 dated November 15, 2017.
Technical Evaluation for the Endorsement of NEI   ML12346A463.
 99-01, Revision 6, dated March 28, 2013.
Transmittal of Reports to Inform Decommissioning  ML16110A416.
 Plant Rulemaking for User Need Request NSIR-
 2015-001, dated May 31, 2016.
V.C. Summer, Units 2 and 3--Request for           ML17361A088.
 Withdrawal of COLs, dated December 27, 2017.
------------------------------------------------------------------------

    Throughout the development of this rule, the NRC may post documents 
related to this rule, including public comments, on the Federal 
rulemaking website at https://www.regulations.gov under Docket ID NRC-
2015-0070.

List of Subjects

10 CFR Part 20

    Byproduct material, Criminal penalties, Hazardous waste, Licensed 
material, Nuclear energy, Nuclear materials, Nuclear power plants and 
reactors, Occupational safety and health, Packaging and containers, 
Penalties, Radiation protection, Reporting and recordkeeping 
requirements, Source material, Special nuclear material, Waste 
treatment and disposal.

10 CFR Part 26

    Administrative practice and procedure, Alcohol abuse, Alcohol 
testing, Appeals, Chemical testing, Drug abuse, Drug testing, Employee 
assistance programs, Fitness for duty, Management actions, Nuclear 
power plants and reactors, Privacy, Protection of information, 
Radiation protection, Reporting and recordkeeping requirements.

10 CFR Part 50

    Administrative practice and procedure, Antitrust, Backfitting, 
Classified information, Criminal penalties, Education, Emergency 
planning, 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.

[[Page 12322]]

10 CFR Part 51

    Administrative practice and procedure, Environmental impact 
statements, Hazardous waste, Nuclear energy, Nuclear materials, Nuclear 
power plants and reactors, Reporting and recordkeeping requirements.

10 CFR Part 52

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

10 CFR Part 72

    Administrative practice and procedure, Hazardous waste, Indians, 
Intergovernmental relations, Nuclear energy, Penalties, Radiation 
protection, Reporting and recordkeeping requirements, Security 
measures, Spent fuel, Whistleblowing.

10 CFR Part 73

    Criminal penalties, Exports, Hazardous materials transportation, 
Imports, Incorporation by reference, Nuclear energy, Nuclear materials, 
Nuclear power plants and reactors, Penalties, Reporting and 
recordkeeping requirements, Security measures.

10 CFR Part 140

    Criminal penalties, Extraordinary nuclear occurrence, Insurance, 
Intergovernmental relations, Nuclear materials, Nuclear power plants 
and reactors, Penalties, Reporting and recordkeeping requirements.

    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 proposing 
to amend 10 CFR parts 20, 26, 50, 51, 52, 72, 73, and 140 as follows:

PART 20--STANDARDS FOR PROTECTION AGAINST RADIATION

0
1. The authority citation for part 20 continues to read as follows:

    Authority:  Atomic Energy Act of 1954, secs. 11, 53, 63, 65, 81, 
103, 104, 161, 170H, 182, 186, 223, 234, 274, 1701 (42 U.S.C. 2014, 
2073, 2093, 2095, 2111, 2133, 2134, 2201, 2210h, 2232, 2236, 2273, 
2282, 2021, 2297f), Energy Reorganization Act of 1974, secs. 201, 
202 (42 U.S.C. 5841, 5842); Low-Level Radioactive Waste Policy 
Amendments Act of 1985, sec. 2 (42 U.S.C. 2021b); 44 U.S.C. 3504 
note.

Appendix G to Part 20 [Amended]

0
2. In appendix G to part 20, amend paragraph E.1. of section III by:
0
a. Removing the word ``or'' and adding in its place the word ``of''; 
and
0
b. Removing the phrase ``20 days'' and adding in its place the phrase, 
``45 days''.

PART 26--FITNESS FOR DUTY PROGRAMS

0
3. The authority citation for part 26 continues to read as follows:

    Authority:  Atomic Energy Act of 1954, secs. 53, 103, 104, 107, 
161, 223, 234, 1701 (42 U.S.C. 2073, 2133, 2134, 2137, 2201, 2273, 
2282, 2297f); Energy Reorganization Act of 1974, secs. 201, 202 (42 
U.S.C. 5841, 5842); 44 U.S.C. 3504 note.

0
4. Amend Sec.  26.3, by revising paragraph (a) to read as follows:


Sec.  26.3  Scope.

    (a)(1) Each holder of an operating license for a nuclear power 
reactor under part 50 of this chapter that receives the license after 
March 31, 2008, and holders of a combined license under part 52 of this 
chapter after the Commission has made the finding under Sec.  52.103(g) 
of this chapter must implement the FFD program before the receipt of 
special nuclear material in the form of fuel assemblies.
    (2) Each holder of an operating license for a nuclear power reactor 
under part 50 of this chapter 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 must comply with the 
requirements of this part, except for subpart K of this part, until the 
NRC's docketing of the license holder's certifications required under 
Sec.  50.82(a)(1) of this chapter or Sec.  52.110(a) of this chapter.
* * * * *


Sec.  26.825  [Amended]

0
5. In Sec.  26.825(b), remove ``26.3''.

PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION 
FACILITIES

0
6. Revise the authority citation for part 50 to read as follows:

    Authority:  Atomic Energy Act of 1954, secs. 11, 53, 63, 81, 
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, 2073, 2093, 2113, 
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.

0
7. Revise Sec.  50.1 to read as follows:


Sec.  50.1  Basis, purpose, and procedures applicable.

    The regulations in this part are promulgated by the Nuclear 
Regulatory Commission pursuant to the Atomic Energy Act of 1954, as 
amended (68 Stat. 919), and Title II of the Energy Reorganization Act 
of 1974 (88 Stat. 1242), to provide for the licensing of production and 
utilization facilities through the termination of the associated 10 CFR 
part 50 licenses. This part also gives notice to all persons who 
knowingly provide to any licensee, applicant, contractor, or 
subcontractor, components, equipment, materials, or other goods or 
services, that relate to a licensee's or applicant's activities subject 
to this part, that they may be individually subject to NRC enforcement 
action for violation of Sec.  50.5.
0
8. In Sec.  50.2, revise the definition for Certified fuel handler and 
add a definition for Non-power production or utilization facility in 
alphabetical order to read as follows:


Sec.  50.2  Definitions.

* * * * *
    Certified fuel handler means, for a nuclear power reactor facility, 
either
    (1) A non-licensed operator who has qualified in accordance with a 
fuel handler training program approved by the Commission; or
    (2) A non-licensed operator who meets the following criteria:
    (i) Has qualified in accordance with a fuel handler training 
program that meets the same requirements as training programs for non-
licensed operators required by Sec.  50.120, and
    (ii) Is responsible for decisions on:
    (A) Safe conduct of decommissioning activities;
    (B) Safe handling and storage of spent fuel; and
    (C) Appropriate response to plant emergencies.
* * * * *
    Non-power production or utilization facility means a non-power 
reactor, testing facility, or other production or utilization facility, 
licensed under Sec.  50.21(a), Sec.  50.21(c), or Sec.  50.22, that is 
not a nuclear power reactor or fuel reprocessing plant.
* * * * *


Sec.  50.36  [Amended]

0
9. In Sec.  50.36(c)(6), add ``or Sec.  52.110(a) of this chapter'' 
after ``Sec.  50.82(a)(1)''.
0
10. Revise Sec.  50.38 to read as follows:

[[Page 12323]]

Sec.  50.38  Ineligibility of certain applicants.

    (a) Any person who is a citizen, national, or agent of a foreign 
country, or any corporation, or other entity which the Commission knows 
or has reason to believe is owned, controlled, or dominated by an 
alien, a foreign corporation, or a foreign government, shall be 
ineligible to apply for and obtain a license.
    (b) The prohibition of paragraph (a) of this section does not apply 
to a person, corporation, or other entity seeking a license for a 
facility that meets the criteria of Sec.  50.82(a)(2)(ii), Sec.  
50.82(b)(6), or Sec.  52.110(b)(2) of this chapter.


Sec.  50.44  [Amended]

0
11. In Sec.  50.44(b) introductory text, add ``or Sec.  52.110(a) of 
this chapter'' after ``Sec.  50.82(a)(1)''.


Sec.  50.46  [Amended]

0
12. In Sec.  50.46(a)(1)(i), add ``or Sec.  52.110(a) of this chapter'' 
after ``Sec.  50.82(a)(1)''.
0
13. In Sec.  50.47, revise paragraph (b) introductory text and add 
paragraph (f) to read as follows:


Sec.  50.47  Emergency plans.

* * * * *
    (b) The onsite and, except as provided in paragraphs (d) and (f) of 
this section, offsite emergency response plans for nuclear power 
reactors must meet the following standards:
* * * * *
    (f) The planning standards of paragraph (b) of this section do not 
apply to offsite radiological emergency response plans if the 
licensee's emergency plan is not required to meet these planning 
standards or if the plume exposure pathway EPZ does not extend beyond 
the site boundary.


Sec.  50.48  [Amended]

0
14. In Sec.  50.48(f) introductory text, add ``or Sec.  52.110(a) of 
this chapter'' after ``Sec.  50.82(a)(1)''.


Sec.  50.49  [Amended]

0
15. In Sec.  50.49(a), remove ``Sec.  52.110(a)(1)'' and add in its 
place ``Sec.  52.110(a)''.


Sec.  50.51  [Amended]

0
16. In Sec.  50.51, in paragraph (b) introductory text, remove the 
words ``to authorize ownership and possession of the production or 
utilization facility,''.
0
17. In Sec.  50.54:
0
a. Amend paragraph (m)(2)(i) by:
0
i. Designating the table;
0
ii. Revising the heading of the newly designated table; and
0
iii. Revising footnote 2 to the table;
0
b. In paragraph (o), remove ``52.110(a)(1)'' and add in its place 
``52.110(a)'';
0
c. Redesignate paragraphs (p)(3) and (4) as paragraphs (p)(5) and (6);
0
d. Redesignate paragraphs (p)(1) and (2) as paragraphs (p)(2) and (3) 
and revise newly redesignated paragraphs (p)(2) and (3);
0
e. Add new paragraph (p) introductory text and paragraphs (p)(1) and 
(4);
0
f. Revise paragraphs (q)(1) introductory text and (q)(1)(iii) and 
(q)(2) and (3);
0
g. Remove the words ``after February 21, 2012'' wherever they appear in 
paragraphs (q)(4) and (5); and
0
h. Add paragraphs (q)(7) and (8);
0
i. Remove the words ``after April 1, 1981,'' in paragraph (s)(2)(ii);
0
j. In paragraph (s)(3), remove the words ``The NRC'' and add in their 
place the words ``If the planning standards for radiological emergency 
preparedness apply to offsite radiological emergency response plans, 
the NRC'';
0
k. In paragraph (t)(1)(ii), remove the period from the second sentence 
and add in its place the word ``or,'';
0
l. Add paragraphs (t)(1)(iii) and (t)(3);
0
m. In paragraph (w) introductory text, remove the words ``under this 
part'';
0
n. In paragraphs (w)(4)(ii) and (iii), add the words ``or Sec.  52.110 
of this chapter'' after the words ``Sec.  50.82'' wherever they appear;
0
o. Add paragraphs (w)(5) and (6);
0
p. In paragraph (y), add ``or Sec.  52.110(a) of this chapter'' after 
``Sec.  50.82(a)(1)''; and
0
q. Revise paragraph (bb).
    The revisions and additions read as follows:


Sec.  50.54  Conditions of licenses.

* * * * *
    (m) * * *
    (2) * * *
    (i) * * *
    Table 1 to paragraph (m)(2)(i)--Minimum Requirements \1\ Per Shift 
for On-Site Staffing of Nuclear Power Units by Operators and Senior 
Operators Licensed Under 10 CFR part 55
* * * * *
    \1\ Temporary deviations from the numbers required by this table 
shall be in accordance with criteria established in the unit's 
technical specifications.
    \2\ For the purpose of this table, a nuclear power unit is 
considered to be operating when it is in a mode other than cold 
shutdown or refueling as defined by the unit's technical 
specifications. A Shift Technical Advisor is not required upon the 
NRC's docketing of the license holder's certifications required 
under Sec.  50.82(a)(1) or Sec.  52.110(a) of this chapter.
* * * * *
    (p) Security plans--(1) Definitions for the purpose of this 
paragraph, (p):
    (i) Change means an action that results in modification of, 
addition to, or removal from, the licensee's security plans. All 
changes are subject to the provisions of this section except where the 
applicable regulations establish specific criteria for accomplishing a 
particular change.
    (ii) Decrease in safeguards effectiveness means a change or series 
of changes to an element or component of the security plans referenced 
in paragraph (p)(2) of this section that reduces or eliminates the 
licensee's ability to perform or maintain the capabilities set forth in 
Sec.  73.55(b)(3)(i) of this chapter without compensating changes to 
other security plan elements or components.
    (2) The licensee may not make a change which would decrease the 
effectiveness of a physical security plan, or guard training and 
qualification plan, or cyber security plan prepared under Sec.  
50.34(c) or Sec.  52.79(a) of this chapter, or part 73 of this chapter, 
or of the first four categories of information (Background, Generic 
Planning Base, Licensee Planning Base, Responsibility Matrix) contained 
in a licensee safeguards contingency plan prepared under Sec.  50.34(d) 
or Sec.  52.79(a) of this chapter, or part 73 of this chapter, as 
applicable, without prior approval of the Commission. A licensee 
desiring to make such a change shall submit an application for 
amendment to the licensee's license under Sec.  50.90.
    (3) The licensee may make changes to the security plans referenced 
in paragraph (p)(2) of this section, without prior Commission approval 
if the changes do not decrease the safeguards effectiveness of the 
plan. The licensee shall maintain records of changes to the plans made 
without prior Commission approval for a period of 3 years from the date 
of the change, and shall submit, as specified in Sec.  50.4 or Sec.  
52.3 of this chapter, a report containing a description of each change 
within 2 months after the change is made. The licensee shall include a 
summary of the analysis completed to determine that the change does not 
decrease the safeguards effectiveness of the plan.
    (4) The licensee shall prepare and maintain safeguards contingency 
plan procedures in accordance with appendix C of part 73 of this 
chapter for effecting the actions and decisions contained in the 
Responsibility Matrix of the safeguards contingency plan. Prior to the 
safeguards contingency plan being put into effect, the licensee shall 
have:

[[Page 12324]]

    (i) All safeguards capabilities specified in the safeguards 
contingency plan available and functional;
    (ii) Detailed procedures developed according to appendix C to part 
73 of this chapter available at the licensee's site; and
    (iii) All appropriate personnel trained to respond to safeguards 
incidents as outlined in the plan and specified in the detailed 
procedures.
* * * * *
    (q) Emergency plans--(1) Definitions for the purpose of this 
paragraph (q):
* * * * *
    (iii) Emergency planning function means a capability or resource 
necessary to prepare for and respond to a radiological emergency.
* * * * *
    (2) Except as provided in paragraph (q)(7) of this section, a 
holder of a license under this part, or a combined license under part 
52 of this chapter after the Commission makes the finding under Sec.  
52.103(g) of this chapter, shall follow and maintain the effectiveness 
of an emergency plan that meets the requirements in appendix E to this 
part and, for nuclear power reactor licensees, the planning standards 
of Sec.  50.47(b).
    (3) The licensee may make changes to its emergency plan without NRC 
approval only if the licensee performs and retains an analysis 
demonstrating that the changes do not reduce the effectiveness of the 
plan and the plan, as changed, continues to meet the applicable 
requirements in appendix E to this part and, for nuclear power reactor 
licensees, the planning standards of Sec.  50.47(b), or the applicable 
requirements of Sec.  50.200 or Sec.  72.32 of this chapter.
* * * * *
    (7) Upon the NRC's docketing of the nuclear power reactor 
licensee's certifications required under Sec.  50.82(a)(1) or Sec.  
52.110(a) of this chapter:
    (i) Licensees must follow and maintain the effectiveness of an 
emergency plan that meets the requirements of Sec.  50.200(a) or 
paragraph (q)(2) of this section.
    (ii) If the fuel assembly with the highest burnup from the final 
offload that is transferred to the spent fuel pool has a burnup of less 
than or equal to 72 gigawatt days per metric ton of heavy metal (GWd/
MTHM) and has zirconium cladding, then after at least 10 months (for a 
boiling water reactor) or 16 months (for a pressurized water reactor) 
have elapsed since the date of permanent cessation of operations, 
licensees must follow and maintain the effectiveness of an emergency 
plan that meets the planning standards of Sec.  50.200(b) and the 
requirements in Sec.  50.200(c) or paragraph (q)(7)(i) of this section.
    (A) In lieu of the 10- or 16-month spent fuel decay period in 
paragraph (q)(7)(ii) of this section, a licensee may submit under Sec.  
50.90 a request for NRC approval of an alternative spent fuel decay 
period.
    (B) If the fuel assembly with the highest burnup transferred to the 
spent fuel pool at the time of shutdown exceeds a burnup of 72 GWd/MTHM 
or does not have zirconium cladding, then the licensee must submit 
under Sec.  50.90 a request for NRC approval of an alternative spent 
fuel decay period.
    (C) In support of the request submitted in paragraph (q)(7)(ii)(A) 
or (B) of this section, the licensee must include an analysis 
demonstrating that the alternative spent fuel decay period ensures that 
the spent fuel would not heat up to 900 [deg]C in less than 10 hours 
under adiabatic heatup conditions.
    (iii) When all the spent fuel is in dry cask storage, licensees 
must follow and maintain the effectiveness of an emergency plan that 
meets the standards in Sec.  72.32(a)(1) through (16) of this chapter, 
or paragraph (q)(7)(ii) of this section.
    (iv) Licensees need not comply with the requirements of this 
section when all spent fuel has been removed from the site.
    (8) The following provisions apply to emergency plan changes to be 
implemented after the NRC's docketing of the nuclear power reactor 
licensee's certifications required under Sec.  50.82(a)(1) or Sec.  
52.110(a) of this chapter:
    (i) Initial plan changes made under paragraph (q)(3) of this 
section to comply with the requirements of Sec.  50.200 or Sec.  
72.32(a) of this chapter as permitted by paragraph (q)(7)(i), (ii), or 
(iii) of this section are not reductions in effectiveness of the plan 
and do not need to be submitted to the NRC for prior approval. These 
plan changes must be submitted to the NRC at least 60 days prior to 
implementation, as specified in Sec.  50.4. Subsequent plan changes 
must be made under paragraph (q)(3) or (4) of this section, or 
licensees may follow the change process under Sec.  72.44(f) of this 
chapter if the emergency plan meets the requirements in Sec.  72.32(a) 
of this chapter.
    (ii) For structures, systems, and components that are no longer 
needed to provide support for an emergency planning function as defined 
in paragraph (q)(1)(iii) of this section, licensees may make a 
determination under paragraph (q)(3) of this section that changes to 
the emergency plan related to these structures, systems, and components 
are not reductions in effectiveness if the Final Safety Analysis Report 
demonstrates that these structures, systems, and components are no 
longer required to be in service due to the decommissioning status of 
the facility.
    (iii) Changes to emergency action levels based on plant conditions 
that are not physically achievable or instrumentation that is no longer 
in service due to the decommissioning status of the facility, are not 
reductions in effectiveness provided that the evaluation under 
paragraph (q)(3) of this section demonstrates that these changes do not 
reduce the capability of the emergency plan to take timely and 
appropriate protective actions.
* * * * *
    (t) * * *
    (1) * * *
    (iii) At intervals not to exceed 24 months after the first required 
element review following transition to an emergency plan that meets the 
requirements of Sec.  50.200(b).
* * * * *
    (3) The review of the emergency preparedness program elements is no 
longer required once all fuel is in dry cask storage.
* * * * *
    (w) * * *
    (5) Each power reactor licensee for a production or utilization 
facility of the type described in Sec.  50.21(b) or Sec.  50.22 shall 
have and maintain financial protection in an amount of at least 
$50,000,000 for each reactor station site:
    (i) For which the NRC has docketed the certifications required 
under Sec.  50.82(a)(1) or Sec.  52.110(a) of this chapter; and
    (ii) For which at least 10 months (for a boiling water reactor) or 
16 months (for a pressurized water reactor) have elapsed since the date 
of permanent cessation of operations if the fuel meets the criteria of 
Sec.  50.54(q)(7)(ii), or for which an NRC-approved alternative to the 
10- or 16-month spent fuel decay period, submitted under Sec.  
50.54(q)(7)(ii)(A) or (B), has elapsed.
    (6) The licensee shall promptly notify the Commission of any 
material change in the insurance or other financial security 
information reported to the Commission under paragraph (w)(3) of this 
section.
* * * * *
    (bb) Irradiated Fuel Management Plan (1) Prior to or within 2 years 
following permanent cessation of operations, the licensee must submit 
an irradiated fuel management plan (IFMP) to the NRC as

[[Page 12325]]

an application for an amendment to its license. Licensees may not start 
to decommission structures, systems, and components needed for moving, 
unloading, and shipping the irradiated fuel until after the NRC 
approves the IFMP.
    (2) The IFMP must contain a discussion of the licensee's planned 
actions for managing irradiated fuel and how those actions will be 
consistent with NRC requirements for licensed possession of irradiated 
fuel until title to, and possession of, the irradiated fuel is 
transferred to the Secretary of Energy.
    (3) If any planned actions for managing irradiated fuel would 
require exemptions from applicable regulations or amendments to the 
licensee's license issued under this part or part 52 or 72 of this 
chapter or the certificate of compliance issued under part 72 of this 
chapter being used by the licensee, then the licensee shall identify 
them in the IFMP and state that these requests have been or will be 
made to the NRC.
    (4) The IFMP must contain the projected cost of managing irradiated 
fuel and discuss how the licensee will provide funding for the 
management of the irradiated fuel following permanent cessation of 
operations until title to, and possession of, the irradiated fuel is 
transferred to the Secretary of Energy.
    (5) Licensees shall submit to the NRC any changes to the IFMP as an 
application for an amendment to its license.
    (6) The licensee shall retain a copy of the IFMP as a record until 
termination of the operating license issued under this part or combined 
license issued under part 52 of this chapter.
* * * * *
0
18. In Sec.  50.59:
0
a. In paragraph (b), remove ``Sec.  50.110'' and add in its place 
``Sec.  52.110(a) of this chapter''; and
0
b. Revise paragraph (d)(3) to read as follows:


Sec.  50.59  Changes, tests and experiments.

* * * * *
    (d) * * *
    (3) Except as specified in Sec.  50.71(c)(2), the records of 
changes in the facility must be maintained until the termination of an 
operating license issued under this part, a combined license issued 
under part 52 of this chapter, or a renewed license issued under part 
54 of this chapter. Records of changes in procedures and records of 
tests and experiments must be maintained for a period of 5 years.


Sec.  50.60  [Amended]

0
19. In Sec.  50.60(a), add ``or Sec.  52.110(a) of this chapter'' after 
``Sec.  50.82(a)(1)''.


Sec.  50.61  [Amended]

0
20. In Sec.  50.61(b)(1), add ``or Sec.  52.110(a) of this chapter'' 
after ``Sec.  50.82(a)(1)''.


Sec.  50.62  [Amended]

0
21. In Sec.  50.62(a), add ``or Sec.  52.110(a) of this chapter'' after 
``Sec.  50.82(a)(1)''.


Sec.  50.65  [Amended]

0
22. In Sec.  50.65(a)(1), remove ``52.110(a)(1)'' and add in its place 
``52.110(a)''.
0
23. In Sec.  50.71, revise paragraphs (c) and (e)(4) to read as 
follows:


Sec.  50.71  Maintenance of records, making of reports.

* * * * *
    (c)(1) Records that are required by the regulations in this part or 
part 52 of this chapter, by license condition, or by technical 
specifications must be retained for the period specified by the 
appropriate regulation, license condition, or technical specification. 
If a retention period is not otherwise specified, these records must be 
retained until the Commission terminates the facility license, except 
as specified in paragraph (c)(2) of this section, or, in the case of an 
early site permit, until the permit expires.
    (2) Licensees for which the NRC has docketed the certifications 
required under Sec.  50.82(a)(1) or Sec.  52.110(a) of this chapter are 
not required to retain records associated with structures, systems, and 
components that have been permanently removed from service under the 
NRC license using an NRC-approved change process. Licensees shall 
continue to retain records as specified under Sec.  50.75(g).
* * * * *
    (e) * * *
    (4) Subsequent revisions must be filed annually or 6 months after 
each refueling outage provided the interval between successive updates 
does not exceed 24 months. The revisions must reflect all changes up to 
a maximum of 6 months prior to the date of filling. For nuclear power 
reactor facilities that have submitted the certifications required by 
Sec.  50.82(a)(1) or Sec.  52.110(a), subsequent revisions must be 
filed every 24 months.
* * * * *
0
24. In Sec.  50.75:
0
a. Revise the first sentence in paragraph (a);
0
b. Revise paragraphs (b)(1), (3), and (4) and add paragraph (b)(5);
0
c. Revise paragraph (e)(1) introductory text;
0
d. In paragraph (e)(1)(i):
0
i. Remove the phrase ``formulas in Sec.  50.75(c)'' and add in its 
place the phrase ``table of minimum amounts in paragraph (c)'';
0
ii. Remove the phrase ``site-specific estimate'' wherever it appears 
and add in its place the phrase ``site-specific decommissioning cost 
estimate'';
0
e. In paragraph (e)(1)(ii) introductory text, remove the phrase ``site-
specific estimate'' wherever it appears and add in its place the phrase 
``site-specific decommissioning cost estimate'';
0
f. In paragraph (e)(1)(ii)(B), add ``or Sec.  52.110 of this chapter'' 
after ``50.82 of this part'';
0
g. In paragraph (e)(1)(v), add ``or Sec.  52.110 of this chapter'' 
after ``or Sec.  50.82'';
0
h. Amend paragraph (f) by:
0
i. Revising paragraph (f)(1);
0
ii. Removing paragraph (f)(2);
0
iii. Redesignating paragraphs (f)(3) through (5) as (f)(2) through (4); 
and
0
iv. Revising newly redesignated paragraph (f)(2) and paragraph (f)(3) 
introductory text;
0
i. In paragraphs (h)(1)(iii) and (iv), remove the words ``Director, 
Office of Nuclear Reactor Regulation, or Director, Office of Nuclear 
Material Safety and Safeguards, as applicable,'' wherever they appear 
in the first sentence of each paragraph and add in their place the 
words, ``Document Control Desk as specified in Sec.  50.4''.
0
j. In paragraph (h)(1)(iv), add ``or Sec.  52.110(h) of this chapter'' 
after ``Sec.  50.82(a)(8)'' wherever it appears.
0
k. In paragraph (h)(2), remove the words ``given the Director, Office 
of Nuclear Reactor Regulation, or Director, Office of Nuclear Material 
Safety and Safeguards, as applicable,'' wherever they appear and add in 
their place, the words, ``given to the Document Control Desk as 
specified in Sec.  50.4''.
0
l. In paragraph (h)(2), add ``or Sec.  52.110(h) of this chapter'' 
after ``Sec.  50.82(a)(8)'' wherever it appears.
    The revisions and addition read as follows:


Sec.  50.75  Reporting and recordkeeping for decommissioning planning.

    (a) This section establishes requirements for indicating to NRC how 
a licensee will provide reasonable assurance that funds will be 
available to decommission the facility, as defined in Sec.  50.2. * * *
* * * * *
    (b) * * *
    (1) For an applicant for or holder of an operating license under 
this part, the report must contain a certification that reasonable 
assurance that funds will be available to decommission will be (for a 
license applicant), or has been (for a license holder), provided in an 
amount which may be more, but not less, than

[[Page 12326]]

the amount stated in the table of minimum amounts in paragraph (c)(1) 
of this section, adjusted using a rate at least equal to that stated in 
paragraph (c)(2) of this section. For an applicant for a combined 
license under subpart C of part 52 of this chapter, the report must 
contain a certification that reasonable assurance of funds to 
decommission will be provided no later than 30 days after the 
Commission publishes notice in the Federal Register under Sec.  
52.103(a) of this chapter in an amount which may be more, but not less, 
than the amount stated in the table of minimum amounts in paragraph 
(c)(1) of this section, adjusted using a rate at least equal to that 
stated in paragraph (c)(2) of this section.
* * * * *
    (3) The amount must be covered by one or more of the methods 
described in paragraph (e) of this section.
    (4) The amount stated in the applicant's or licensee's 
certification may be based on a site-specific decommissioning cost 
estimate for decommissioning the facility. The site-specific 
decommissioning cost estimate may be more, but not less, than the 
amount stated in the table of minimum amounts in paragraph (c)(1) of 
this section, adjusted using a rate at least equal to that stated in 
paragraph (c)(2) of this section.
    (5) As part of the certification, a copy of the financial 
instrument obtained to satisfy the requirements of paragraph (e) of 
this section must be submitted to NRC; provided, however, that an 
applicant for or holder of a combined license need not obtain such 
financial instrument or submit a copy to the Commission except as 
provided in paragraph (e)(3) of this section.
* * * * *
    (e)(1) Reasonable assurance of funds to decommission is to be 
provided by the following methods:
* * * * *
    (f)(1) Each power reactor licensee shall report, on a calendar-year 
basis, to the NRC by March 31, 2023, and at least once every 3 years 
thereafter on the status of its decommissioning funding provided by the 
financial assurance methods described in paragraph (e)(1) of this 
section for each reactor or part of a reactor that it owns. However, 
each holder of a combined license under part 52 of this chapter need 
not begin reporting until the date that the Commission has made the 
finding under Sec.  52.103(g) of this chapter. The information in this 
report must include, at a minimum, the amount of decommissioning funds 
estimated to be required pursuant to paragraphs (b) and (c) of this 
section; the amount of decommissioning funds accumulated to the end of 
the calendar year preceding the date of the report; a schedule of the 
annual amounts remaining to be collected; the assumptions used 
regarding rates of escalation in decommissioning costs, rates of 
earnings on decommissioning funds, and rates of other factors used in 
funding projections; any contracts upon which the licensee is relying 
pursuant to paragraph (e)(1)(v) of this section; any modifications 
occurring to a licensee's current method of providing financial 
assurance since the last submitted report; and any material changes to 
trust agreements. If any of the preceding items is not applicable, the 
licensee should so state in its report. If the projected balance of any 
decommissioning funds does not cover the estimated cost of 
decommissioning, the licensee must include additional financial 
assurance to cover the shortfall by the time the next report is due. 
Once a licensee has determined that it is within 5 years of permanent 
cessation of operations, or if it is involved in a merger or an 
acquisition, it shall submit this report annually. Once the plant has 
permanently ceased operations, the reporting requirements of Sec.  
50.82(a)(8)(v) (for 10 CFR part 50 licensees) or Sec.  52.110(h)(5) of 
this chapter (for 10 CFR part 52 licensees) shall apply.
    (2) Each power reactor licensee shall at or about 5 years prior to 
the projected end of operations submit a preliminary site-specific 
decommissioning cost estimate which includes an up-to-date assessment 
of the major factors that could affect the cost to decommission.
    (3) Each non-power reactor licensee shall at or about 2 years prior 
to the projected end of operations submit a preliminary decommissioning 
plan containing a site-specific decommissioning cost estimate and an 
up-to-date assessment of the major factors that could affect planning 
for decommissioning. Factors to be considered in submitting this 
preliminary decommissioning plan information include--
* * * * *
0
25. In Sec.  50.82:
0
a. Revise paragraphs (a)(2), (a)(4), (a)(6)(ii), (a)(8)(i)(A), 
(a)(8)(ii), (a)(8)(v) introductory text and (a)(8)(vii) introductory 
text;
0
b. Revise paragraphs (a)(9) introductory text and (a)(9)(ii)(F);
0
c. Revise paragraph (b) introductory text; and
0
d. Redesignate paragraph (b)(6) as (b)(8) and add new paragraphs (b)(6) 
and (7).
    The revisions and additions read as follows:


Sec.  50.82  Termination of license.

* * * * *
    (a) * * *
    (2)(i) Upon the NRC's docketing of the licensee's certifications 
required under paragraph (a)(1) of this section, or when a final 
legally effective order to permanently cease operations has come into 
effect, the 10 CFR part 50 license no longer authorizes operation of 
the reactor or emplacement or retention of fuel into the reactor 
vessel.
    (ii) The facility licensed under this part is no longer a 
utilization facility once the licensee meets the criteria of paragraph 
(a)(2)(i) of this section and modifies the facility to be incapable of 
making use of special nuclear material without significant facility 
alterations necessary to restore the capability to make use of special 
nuclear material. The NRC maintains the authority to regulate the 10 
CFR part 50 license with respect to the possession of special nuclear 
material, source material, and byproduct material under sections 53, 
63, 81, and 161 of the Act, as applicable. Until the termination of the 
10 CFR part 50 license under paragraph (a)(11) of this section, the 
regulations of this chapter applicable to a utilization facility 
continue to apply to the holder of the license unless the regulations 
explicitly state otherwise.
* * * * *
    (4)(i) Prior to or within 2 years following permanent cessation of 
operations, the licensee shall submit a post-shutdown decommissioning 
activities report (PSDAR) to the NRC, and a copy to the affected 
State(s). The PSDAR must contain a description of the planned 
decommissioning activities along with a schedule for their 
accomplishment, a discussion whether the environmental impacts 
associated with site-specific decommissioning activities will be 
bounded by appropriate federally issued environmental review documents, 
a description of any decommissioning activities whose environmental 
impacts will not be so bounded and will be evaluated prior to the 
performance of the activities, and a site-specific decommissioning cost 
estimate, including the projected cost of managing irradiated fuel.
    (ii) The NRC shall publish a notice in the Federal Register 
acknowledging the receipt of the PSDAR and the availability for public 
comment of the PSDAR. The NRC shall also schedule a public meeting in 
the vicinity of the licensee's facility upon receipt of the PSDAR. The 
NRC shall include a notice

[[Page 12327]]

in a forum, such as local newspapers, that is readily accessible to 
individuals in the vicinity of the site, and in the Federal Register 
notice required by this paragraph, announcing the date, time and 
location of the meeting, along with a brief description of the purpose 
of the meeting.
* * * * *
    (6) * * *
    (ii) Result in significant environmental impacts not bounded by 
appropriate federally issued environmental review documents; or
* * * * *
    (8) * * *
    (i) * * *
    (A) The withdrawals are for expenses for activities consistent with 
the definition of decommission in Sec.  50.2;
* * * * *
    (ii) Initially, 3 percent of the generic amount specified in Sec.  
50.75(c) may be used for decommissioning planning. For licensees that 
have submitted the certifications required under Sec.  50.82(a)(1) and 
commencing 90 days after the NRC has received the PSDAR, an additional 
20 percent may be used. A site-specific decommissioning cost estimate 
must be submitted to the NRC prior to the licensee using any funding in 
excess of these amounts.
* * * * *
    (v) After submitting its site-specific decommissioning cost 
estimate required by paragraph (a)(4)(i) of this section, and until the 
licensee has completed its final radiation survey and demonstrated that 
residual radioactivity has been reduced to a level that permits 
termination of its license, the licensee must annually submit to the 
NRC, by March 31, a financial assurance status report. The report may 
combine the reporting requirements of Sec.  72.30 of this chapter and 
Sec.  50.82(a)(8)(vii). The report must include the following 
information, current through the end of the previous calendar year:
* * * * *
    (vii) After submitting its site-specific decommissioning cost 
estimate required by paragraph (a)(4)(i) of this section, if spent fuel 
is on site, the licensee must annually submit to the NRC, by March 31, 
a report on the status of its funding for managing irradiated fuel. The 
report must include the following information, current through the end 
of the previous calendar year:
* * * * *
    (9) All power reactor licensees that have loaded fuel into the 
reactor must submit an application for termination of license. The 
application for termination of license must be accompanied or preceded 
by a license termination plan to be submitted for NRC approval.
* * * * *
    (ii) * * *
    (F) An updated site-specific estimate of remaining decommissioning 
costs and identification of sources of funds for license termination, 
spent fuel management, and ISFSI decommissioning, as applicable;
* * * * *
    (b) For non-power production or utilization facilities and fuel 
reprocessing plants--
* * * * *
    (6) The facility licensed under this part is no longer a production 
or utilization facility once the following criteria are met:
    (i) The NRC removes the licensee's authority to operate the 
facility through a license amendment; and
    (ii) The licensee modifies the facility to be incapable of the 
production of special nuclear material, separation of the isotopes of 
plutonium, processing of irradiated materials containing special 
nuclear material, or making use of special nuclear material, without 
significant facility alterations necessary to restore the capability to 
produce special nuclear material, separate the isotopes of plutonium, 
process irradiated materials containing special nuclear material, or 
make use of special nuclear material.
    (7) For a facility licensed under this part that is no longer a 
production or utilization facility under paragraph (b)(6) of this 
section, the NRC maintains the authority to regulate the 10 CFR part 50 
license with respect to the possession of special nuclear material, 
source material, and byproduct material under sections 53, 63, 81, and 
161 of the Act, as applicable. Until the termination of the 10 CFR part 
50 license under paragraph (b)(8) of this section, the regulations of 
this chapter applicable to a non-power production or utilization 
facility or fuel reprocessing plant continue to apply to the holder of 
the license unless the regulations explicitly state otherwise.
* * * * *
0
26. Revise Sec.  50.109 to read as follows:


Sec.  50.109  Backfitting.

    (a) Backfitting for nuclear power reactor licensees prior to 
decommissioning. (1)(i) Definition. Backfitting is defined as the 
modification of or addition to systems, structures, components, or 
design of a facility; or the design approval or manufacturing license 
for a facility; or the procedures or organization required to design, 
construct or operate a facility; any of which may result from a new or 
amended provision in the Commission's regulations or the imposition of 
a regulatory staff position interpreting the Commission's regulations 
that is either new or different from a previously applicable staff 
position after:
    (A) The date of issuance of the construction permit for the 
facility for facilities having construction permits issued after 
October 21, 1985;
    (B) Six (6) months before the date of docketing of the operating 
license application for the facility for facilities having construction 
permits issued before October 21, 1985;
    (C) The date of issuance of the operating license for the facility 
for facilities having operating licenses;
    (D) The date of issuance of the design approval under subpart E of 
part 52 of this chapter;
    (E) The date of issuance of a manufacturing license under subpart F 
of part 52 of this chapter;
    (F) The date of issuance of the first construction permit issued 
for a duplicate design under appendix N to this part; or
    (G) The date of issuance of a combined license under subpart C of 
part 52 of this chapter, provided that if the combined license 
references an early site permit, the provisions in Sec.  52.39 of this 
chapter apply with respect to the site characteristics, design 
parameters, and terms and conditions specified in the early site 
permit. If the combined license references a standard design 
certification rule under subpart B of 10 CFR part 52, the provisions in 
Sec.  52.63 of this chapter apply with respect to the design matters 
resolved in the standard design certification rule, provided however, 
that if any specific backfitting limitations are included in a 
referenced design certification rule, those limitations shall govern. 
If the combined license references a standard design approval under 
subpart E of 10 CFR part 52, the provisions in Sec.  52.145 of this 
chapter apply with respect to the design matters resolved in the 
standard design approval. If the combined license uses a reactor 
manufactured under a manufacturing license under subpart F of 10 CFR 
part 52, the provisions of Sec.  52.171 of this chapter apply with 
respect to matters resolved in the manufacturing license proceeding.
    (ii) Proposed backfitting. Except as provided in paragraph 
(a)(1)(iv) of this section, the Commission shall require a systematic 
and documented analysis pursuant to paragraph (a)(2) of this section 
for backfits which it seeks to impose.
    (iii) Backfit analysis. Except as provided in paragraph (a)(1)(iv) 
of this

[[Page 12328]]

section, the Commission shall require the backfitting of a facility 
only when it determines, based on the analysis described in paragraph 
(a)(2) of this section, that there is a substantial increase in the 
overall protection of the public health and 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 this increased protection.
    (iv) Exceptions. The provisions of paragraphs (a)(1)(ii) and (iii) 
of this section are inapplicable and, therefore, backfit analysis is 
not required and the standards in paragraph (a)(1)(iii) of this section 
do not apply where the Commission or staff, as appropriate, finds and 
declares, with appropriated documented evaluation for its finding, 
either:
    (A) That a modification is necessary to bring a facility into 
compliance with a license or the rules or orders of the Commission, or 
into conformance with written commitments by the licensee; or
    (B) That regulatory action is necessary to ensure that the facility 
provides adequate protection to the health and safety of the public and 
is in accord with the common defense and security; or
    (C) That the regulatory action involves defining or redefining what 
level of protection to the public health and safety or common defense 
and security should be regarded as adequate.
    (v) Mandatory backfitting. The Commission shall always require the 
backfitting of a facility if it determines that such regulatory action 
is necessary to ensure that the facility provides adequate protection 
to the health and safety of the public and is in accord with the common 
defense and security.
    (vi) Documented evaluation. The documented evaluation required by 
paragraph (a)(1)(iv) of this section shall include a statement of the 
objectives of and reasons for the modification and the basis for 
invoking the exception. If immediately effective regulatory action is 
required, then the documented evaluation may follow rather than precede 
the regulatory action. The documented evaluation required by paragraph 
(a)(1)(iv)(A) of this section must include a consideration of the costs 
of imposing the modification.
    (vii) Implementation. If 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. However, should it be necessary or appropriate for the 
Commission to prescribe a specific way to comply with its requirements 
or to achieve adequate protection, then cost may be a factor in 
selecting the way, provided that the objective of compliance or 
adequate protection is met.
    (2) Backfit analysis factors. In reaching the determination 
required by paragraph (a)(1)(iii) of this section, the Commission will 
consider how the backfit should be scheduled in light of other ongoing 
regulatory activities at the facility and, in addition, will consider 
information available concerning any of the following factors as may be 
appropriate and any other information relevant and material to the 
proposed backfit:
    (i) Statement of the specific objectives that the proposed backfit 
is designed to achieve;
    (ii) General description of the activity that would be required by 
the licensee or applicant in order to complete the backfit;
    (iii) Potential change in the risk to the public from the 
accidental off-site release of radioactive material;
    (iv) Potential impact on radiological exposure of facility 
employees;
    (v) Installation and continuing costs associated with the backfit, 
including the cost of facility downtime or the cost of construction 
delay;
    (vi) The potential safety impact of changes in plant or operational 
complexity, including the relationship to proposed and existing 
regulatory requirements;
    (vii) The estimated resource burden on the NRC associated with the 
proposed backfit and the availability of such resources;
    (viii) The potential impact of differences in facility type, design 
or age on the relevancy and practicality of the proposed backfit;
    (ix) Whether the proposed backfit is interim or final and, if 
interim, the justification for imposing the proposed backfit on an 
interim basis.
    (3) Impact on licensing actions. No licensing action will be 
withheld during the pendency of backfit analyses required by the 
Commission's rules.
    (b) Backfitting for decommissioning nuclear power reactor 
licensees.
    (1) Definition. Backfitting is defined as the modification of or 
addition to systems, structures, or components in use after permanent 
cessation of operations and certification of permanent removal of fuel 
from the reactor vessel has been docketed as required under Sec.  
50.82(a)(1) or Sec.  52.110(a) of this chapter, or the design of the 
licensee's facility, or the procedures or organization required to 
decommission the facility, any of which may result from a new or 
amended provision in the Commission rules or the imposition of a 
regulatory staff position interpreting the Commission rules that is 
either new or different from a previously applicable staff position, 
after the date of issuance of the operating license issued under this 
part or combined license issued under subpart C of part 52 of this 
chapter.
    (2) Proposed backfits. Except as provided in paragraph (b)(4) of 
this section, the Commission shall require a systematic and documented 
analysis pursuant to paragraph (b)(8) of this section for backfits that 
it seeks to impose.
    (3) Backfit analysis. Except as provided in paragraph (b)(4) of 
this section, the Commission shall require the backfitting of a 
facility only when it determines, based on the analysis described in 
paragraph (b)(8) of this section, that there is a substantial increase 
in the overall protection of the public health and 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 this increased protection.
    (4) Exceptions. The provisions of paragraphs (b)(2) and (3) of this 
section are inapplicable and, therefore, backfit analysis is not 
required and the standards in paragraph (b)(3) of this section do not 
apply where the Commission or staff, as appropriate, finds and 
declares, with appropriated documented evaluation for its finding, 
either:
    (i) That a modification is necessary to bring a facility into 
compliance with a license or the rules or orders of the Commission, or 
into conformance with written commitments by the licensee;
    (ii) That regulatory action is necessary to ensure that the 
facility provides adequate protection to the health and safety of the 
public and is in accord with the common defense and security; or
    (iii) That the regulatory action involves defining or redefining 
what level of protection to the public health and safety or common 
defense and security should be regarded as adequate.
    (5) Mandatory backfitting. The Commission shall always require the 
backfitting of a facility if it determines that such regulatory action 
is necessary to ensure that the facility provides adequate protection 
to the health and safety of the public and is in accord with the common 
defense and security.

[[Page 12329]]

    (6) Documented evaluation. The documented evaluation required by 
paragraph (b)(4) of this section shall include a statement of the 
objectives of and reasons for the modification and the basis for 
invoking the exception. If immediately effective regulatory action is 
required, then the documented evaluation may follow rather than precede 
the regulatory action. The documented evaluation required by paragraph 
(b)(4)(i) of this section must include a consideration of the costs of 
imposing the modification.
    (7) Implementation. If 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 that is adequate, then ordinarily the 
licensee is free to choose the way that best suits its purposes. 
However, should it be necessary or appropriate for the Commission to 
prescribe a specific way to comply with its requirements or to achieve 
adequate protection, then cost may be a factor in selecting the way, 
provided that the objective of compliance or adequate protection is 
met.
    (8) Backfit analysis factors. In reaching the determination 
required by paragraph (b)(3) of this section, the Commission will 
consider how the backfit should be scheduled in light of other ongoing 
regulatory activities at the facility and, in addition, will consider 
information available concerning any of the following factors as may be 
appropriate and any other information relevant and material to the 
proposed backfit:
    (i) Statement of the specific objectives that the proposed backfit 
is designed to achieve;
    (ii) General description of the activity that would be required by 
the licensee in order to complete the backfit;
    (iii) Potential change in the risk to the public from the 
accidental off-site release of radioactive material;
    (iv) Potential impact on radiological exposure of facility 
employees;
    (v) Installation and continuing costs associated with the backfit, 
including the cost of decommissioning delay;
    (vi) The potential safety impact of changes in major 
decommissioning activities, including the relationship to proposed and 
existing regulatory requirements;
    (vii) The estimated resource burden on the NRC associated with the 
proposed backfit and the availability of such resources;
    (viii) The potential impact of differences in facility type and the 
percentage of decommissioning completed on the relevancy and 
practicality of the proposed backfit; and
    (ix) Whether the proposed backfit is interim or final and, if 
interim, the justification for imposing the proposed backfit on an 
interim basis.
    (9) Impact on licensing actions. No licensing action will be 
withheld during the pendency of backfit analyses required by the 
Commission's rules.
    (c) Responsibility for implementation. The Executive Director for 
Operations shall be responsible for implementation of this section, and 
all analyses required by this section shall be approved by the 
Executive Director for Operations or his designee.
0
27. In Sec.  50.155, add paragraphs (h)(6), (7), and (8) to read as 
follows:


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

* * * * *
    (h) * * *
    (6) On [EFFECTIVE DATE OF THE FINAL RULE], Order EA-06-137, ``Order 
Modifying Licenses,'' is rescinded for each licensee that was issued 
Order EA-06-137.
    (7) On [EFFECTIVE DATE OF THE FINAL RULE], the Mitigation 
Strategies License Condition is deemed removed from the power reactor 
license of each licensee subject to this section.
    (8) On [EFFECTIVE DATE OF THE FINAL RULE], the license condition 
associated with Order EA-06-137 is deemed removed from the power 
reactor license of each applicable licensee subject to this section.
* * * * *
0
28. Add Sec.  50.200 to read as follows:


Sec.  50.200  Power reactor decommissioning emergency plans.

    (a) Post-shutdown emergency plans (PSEP). If the licensee elects in 
Sec.  50.54(q)(7)(i) to comply with this section, then the licensee's 
onsite emergency response plans must meet the planning standards of 
Sec.  50.47(b) and the requirements in appendix E to this part. For a 
PSEP, emergency response organization (ERO) staffing required by Sec.  
50.47(b)(2) and appendix E to this part may be commensurate with a 
reduced spectrum of credible accidents for a permanently shutdown and 
defueled power reactor facility.
    (b) Permanently defueled emergency plans (PDEP). If the licensee 
elects in Sec.  50.54(q)(7)(ii) to comply with this section, then the 
licensee's onsite emergency response plans must meet the requirements 
in paragraph (c) of this section and the following planning standards:
    (1) Primary responsibilities for emergency response by the nuclear 
facility licensee and by State and local organizations have been 
assigned, the emergency responsibilities of the various supporting 
organizations have been specifically established, and each principal 
response organization has staff to respond and to augment its initial 
response on a continuous basis.
    (2) On-shift facility licensee responsibilities for emergency 
response are unambiguously defined, adequate staffing to provide 
initial facility accident response in key functional areas is 
maintained at all times, timely augmentation of response capabilities 
is available, and the interfaces among various onsite response 
activities and offsite support and response activities are specified.
    (3) Arrangements for requesting and effectively using assistance 
resources have been made, and other organizations capable of augmenting 
the planned response have been identified.
    (4) A standard emergency classification and action level scheme, 
the bases of which include facility system and effluent parameters, is 
in use by the nuclear facility licensee.
    (5) Procedures have been established for notification, by the 
licensee, of State and local response organizations and for 
notification of emergency personnel by all organizations; the content 
of initial and followup messages to response organizations has been 
established.
    (6) Provisions exist for prompt communications among principal 
response organizations to emergency personnel.
    (7) The principal points of contact with the news media for 
dissemination of information during an emergency are established in 
advance, and procedures for coordinated dissemination of information to 
the public are established.
    (8) Adequate emergency facilities and equipment to support the 
emergency response are provided and maintained.
    (9) Adequate methods, systems, and equipment for assessing and 
monitoring actual or potential consequences of a radiological emergency 
condition are in use.
    (10) A range of protective actions has been developed for emergency 
workers and the public.
    (11) Means for controlling radiological exposures in an emergency 
are established for emergency workers.
    (12) Arrangements are made for medical services for contaminated 
injured individuals.
    (13) General plans for recovery and reentry are developed.
    (14) Periodic exercises will be conducted to evaluate major 
portions of emergency response capabilities,

[[Page 12330]]

periodic drills will be conducted to develop and maintain key skills, 
and deficiencies identified as a result of exercises or drills will be 
corrected.
    (15) Radiological emergency response training is provided to those 
who may be called on to assist in an emergency.
    (16) Responsibilities for plan development and review and for 
distribution of emergency plans are established, and planners are 
properly trained.
    (c) Content of emergency plans. (1) Emergency plans must contain, 
but not necessarily be limited to, information needed to demonstrate 
compliance with the elements set forth in this paragraph, i.e., 
organization for coping with radiological emergencies, assessment 
actions, activation of emergency organization, notification procedures, 
emergency facilities and equipment, training, maintaining emergency 
preparedness, and recovery.
    (i) Organization. (A) The organization for coping with radiological 
emergencies must be described, including definition of authorities, 
responsibilities, and duties of individuals assigned to the licensee's 
emergency organization and the means for notification of such 
individuals in the event of an emergency. Specifically, the following 
must be included:
    (1) A description of the normal plant organization.
    (2) A description of the onsite ERO with a detailed discussion of:
    (i) Authorities, responsibilities, and duties of the individual(s) 
who will take charge during an emergency;
    (ii) Plant staff emergency assignments;
    (iii) Authorities, responsibilities, and duties of an onsite 
emergency coordinator who shall be in charge of the exchange of 
information with offsite authorities responsible for coordinating and 
implementing offsite emergency measures.
    (3) Identification, by position and function to be performed, of 
persons within the licensee organization who will be responsible for 
making dose projections, and a description of how these projections 
will be made and the results transmitted to State and local 
authorities, NRC, and other appropriate governmental entities.
    (4) A description of the local offsite services to be provided in 
support of the licensee's emergency organization.
    (5) Identification of assistance expected from appropriate State, 
local, and Federal agencies with responsibilities for coping with 
emergencies, including an act directed toward a nuclear power plant or 
its personnel that includes the use of violent force to destroy 
equipment, take hostages, and/or intimidate the licensee to achieve an 
end. This includes attack by air, land, or water using guns, 
explosives, projectiles, vehicles, or other devices used to deliver 
destructive force.
    (B) [Reserved]
    (ii) Assessment actions. (A) The means to be used for determining 
the magnitude of, and for continually assessing the impact of, the 
release of radioactive materials must be described, including emergency 
action levels that are to be used as criteria for determining the need 
for notification and participation of local and State agencies, the 
Commission, and other Federal agencies, and the emergency action levels 
that are to be used for determining when and what type of protective 
measures should be considered within the site boundary to protect 
health and safety. The emergency action levels must be based on in-
plant conditions and instrumentation in addition to onsite monitoring. 
Emergency action levels must be reviewed with the State and local 
governmental authorities on an annual basis.
    (B) A licensee desiring to change its entire emergency action level 
scheme must submit an application for an amendment to its license and 
receive NRC approval before implementing the change. Licensees must 
follow the change process in Sec.  50.54(q) for all other emergency 
action level changes.
    (iii) Activation of emergency organization. (A) The entire spectrum 
of emergency conditions that involve the alerting or activating of 
progressively larger segments of the total emergency organization must 
be described. The communication steps to be taken to alert or activate 
emergency personnel under each class of emergency must be described. 
Emergency action levels, based not only on onsite radiation monitoring 
information but also on readings from a number of sensors that indicate 
a potential emergency for notification of offsite agencies, must be 
described. The existence, but not the details, of a message 
authentication scheme must be noted for such agencies. The emergency 
classes defined must include:
    (1) Notification of unusual events; and
    (2) Alert.
    (B) Licensees must establish and maintain the capability to assess, 
classify, and declare an emergency condition as soon as possible and 
within 60 minutes after the availability of indications to plant 
operators that an emergency action level has been exceeded and must 
promptly declare the emergency condition as soon as possible following 
identification of the appropriate emergency classification level. 
Licensees must not construe these criteria as a grace period to attempt 
to restore plant conditions to avoid declaring an emergency action due 
to an emergency action level that has been exceeded. Licensees must not 
construe these criteria as preventing implementation of response 
actions deemed by the licensee to be necessary to protect public health 
and safety provided that any delay in declaration does not deny the 
State and local authorities the opportunity to implement measures 
necessary to protect the public health and safety.
    (iv) Notification procedures. (A) Administrative and physical means 
for notifying local, State, and Federal officials and agencies must be 
described. This description must include identification of the State 
and local government agencies.
    (B) A licensee must have the capability to notify responsible State 
and local governmental agencies as soon as possible and within 60 
minutes after declaring an emergency.
    (v) Emergency facilities and equipment. Adequate provisions must be 
made and described for emergency facilities and equipment, including:
    (A) Equipment at the site for personnel monitoring;
    (B) Equipment for determining the magnitude of and for continuously 
assessing the impact of the release of radioactive materials to the 
environment;
    (C) Facilities and supplies at the site for decontamination of 
onsite individuals;
    (D) Facilities and medical supplies at the site for appropriate 
emergency first aid treatment;
    (E) Arrangements for medical service providers qualified to handle 
radiological emergencies onsite;
    (F) Arrangements for transportation of contaminated injured 
individuals from the site to specifically identified treatment 
facilities outside the site boundary;
    (G) Arrangements for treatment of individuals injured in support of 
licensed activities on the site at treatment facilities outside the 
site boundary;
    (H) A licensee facility from which effective direction can be given 
and effective control can be exercised during an emergency;
    (I) At least one onsite and one offsite communications system; each 
system must have a backup power source. All communication plans must 
have arrangements for emergencies, including titles and alternates for 
those in charge

[[Page 12331]]

at both ends of the communication links and the primary and backup 
means of communication. Where consistent with the function of the 
governmental agency, these arrangements will include:
    (1) Provision for communications with contiguous State and local 
governments. Such communications must be tested monthly.
    (2) Provision for communications with Federal emergency response 
organizations. Such communications systems must be tested annually.
    (3) Provisions for communications by the licensee with NRC 
Headquarters and the appropriate NRC Regional Office Operations Center 
from the facility. Such communications must be tested monthly.
    (vi) Training. (A) The training program must provide for:
    (1) The training of employees and exercising, by periodic drills, 
of emergency plans to ensure that employees of the licensee are 
familiar with their specific emergency response duties, and
    (2) The participation in the training and drills by other persons 
whose assistance may be needed in the event of a radiological 
emergency. The plan must include a description of specialized initial 
training and periodic retraining programs to be provided to each of the 
following categories of emergency personnel:
    (i) Directors and/or coordinators of the plant emergency 
organization;
    (ii) Personnel responsible for accident assessment;
    (iii) Radiological monitoring teams;
    (iv) Fire control teams (fire brigades);
    (v) Repair and damage control teams;
    (vi) First aid and rescue teams;
    (vii) Medical support personnel; and
    (viii) Security personnel.
    (3) In addition, a radiological orientation training program must 
be made available to local services personnel, such as local emergency 
services and local law enforcement personnel.
    (B) The plan must describe provisions for the conduct of emergency 
preparedness exercises as follows: Exercises must test the adequacy of 
timing and content of implementing procedures and methods, test 
emergency equipment and communications networks, and ensure that 
emergency organization personnel are familiar with their duties.\1\
---------------------------------------------------------------------------

    \1\ Use of site-specific simulators or computers is acceptable 
for any exercise.
---------------------------------------------------------------------------

    (1) Within two years of the last exercise of the onsite emergency 
plan performed under section IV.F.2.b of appendix E to this part, each 
licensee must conduct an exercise of its onsite emergency plan.
    (2) Each licensee at each site must conduct a subsequent exercise 
of its onsite emergency plan every 2 years. In addition, the licensee 
must take actions necessary to ensure that adequate emergency response 
capabilities are maintained during the interval between biennial 
exercises by conducting drills, including at least one drill involving 
a combination of some of the principal functional areas of the 
licensee's onsite emergency response capabilities. The principal 
functional areas of emergency response include activities such as 
management and coordination of emergency response, accident assessment, 
event classification, notification of offsite authorities, assessment 
of the onsite impact of radiological releases, system repair, and 
mitigative action implementation. During these drills, activation of 
all of the licensee's emergency response facilities is not necessary, 
licensees have the opportunity to consider accident management 
strategies, supervised instruction is permitted, operating staff in all 
participating facilities have the opportunity to resolve problems 
(success paths) rather than have controllers intervene, and the drills 
may focus on the onsite exercise training objectives.
    (3) Each licensee shall enable any State or local government to 
participate in the licensee's drills and exercises when requested by 
such State or local government.
    (4) Remedial exercises will be required if the emergency plan is 
not satisfactorily tested during the biennial exercise, such that NRC 
cannot:
    (i) Find reasonable assurance that adequate protective measures can 
and will be taken in the event of a radiological emergency; or
    (ii) Determine that the ERO has maintained key skills specific to 
emergency response.
    (5) All exercises, drills, and training that provide performance 
opportunities to develop, maintain, or demonstrate key skills must 
provide for formal critiques in order to identify weak or deficient 
areas that need correction. Any weaknesses or deficiencies that are 
identified in a critique of exercises, drills, or training must be 
corrected.
    (6) Each licensee shall use drill and exercise scenarios that 
provide reasonable assurance that anticipatory responses will not 
result from preconditioning of participants. Exercise and drill 
scenarios as appropriate must emphasize coordination among onsite and 
offsite response organizations.
    (vii) Maintaining emergency preparedness. (A) Provisions to be 
employed to ensure that the emergency plan, its implementing 
procedures, and emergency equipment and supplies are maintained up to 
date must be described.
    (B) [Reserved]
    (viii) Recovery. (A) Criteria to be used to determine when, 
following an accident, reentry of the facility would be appropriate 
must be described.
    (B) [Reserved]
    (2) [Reserved]
* * * * *
0
29. Amend appendix E to part 50 by:
0
a. Removing paragraph I.6;
0
b. In paragraph IV.4, removing the words ``of the later of the date'' 
and ``or December 23, 2011,'';
0
c. Adding paragraph IV.8;
0
d. In paragraph IV.A.7, removing the words, ``By June 23, 2014, 
identification'' and adding in their place the word, 
``Identification'';
0
e. In paragraph IV.A.9, removing the words, ``By December 24, 2012, 
for'' and adding in their place the word, ``For'';
0
f. In paragraph IV.B.1, removing the words, ``By June 20, 2012, for'' 
and adding in their place the word, ``For'';
0
g. In paragraph IV.C.2, removing the words, ``By June 20, 2012, 
nuclear'' and adding in their place the word, ``Nuclear'';
0
h. In paragraph IV.E.8.c introductory text, removing the words, ``By 
June 20, 2012, for'' and adding in their place the word, ``For'';
0
i. In paragraph IV.E.8.d, removing the last sentence;
0
j. In paragraph IV.F.2.d removing the words ``and should fully 
participate in one hostile action exercise by December 31, 2015'';
0
k. Removing and reserving paragraph IV.F.2.j(v);
0
l. Adding paragraph IV.F.2.k;
0
m. In paragraph IV.I, removing the words, ``By June 20, 2012, for'' and 
adding in their place the word, ``For'';
    The revisions and addition read as follows:

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

* * * * *
    IV. * * *
    8. A nuclear power reactor licensee is not subject to the 
requirements of paragraphs 4, 5, and 6 of this section once the NRC 
dockets the licensee's certifications required under Sec.  
50.82(a)(1) or Sec.  52.110(a) of this chapter.
* * * * *
    F. * * *
    2. * * *

[[Page 12332]]

    k. For each nuclear reactor for which the NRC has docketed the 
certifications required under Sec.  50.82(a)(1) or Sec.  52.110(a) 
of this chapter, the nuclear reactor's licensee must follow the 
biennial exercise requirements of paragraph 2 of this section.
* * * * *

Appendix I to Part 50 [Amended]

0
30. In section IV.C, add ``or Sec.  52.110(a) of this chapter'' after 
``Sec.  50.82(a)(1)''.

PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC 
LICENSING AND RELATED REGULATORY FUNCTIONS

0
31. The authority citation for part 51 continues to read as follows:

    Authority: Atomic Energy Act of 1954, secs. 161, 193 (42 U.S.C. 
2201, 2243) Energy Reorganization Act of 1974, secs. 201, 202 (42 
U.S.C. 5841, 5842); National Environmental Policy Act of 1969 (42 
U.S.C. 4332, 4334, 4335); Nuclear Waste Policy Act of 1982, sec. 
144(f), 121, 135, 141, 148 (42 U.S.C. 10134(f), 10141, 10155, 10161, 
10168); 44 U.S.C. 3504 note.

Sec.  51.53  [Amended]

0
32. In Sec.  51.53, in paragraph (d), remove the words ``Each applicant 
for a license amendment authorizing decommissioning activities for a 
production or utilization facility either for unrestricted use or based 
on continuing use restrictions applicable to the site; and each 
applicant for a license amendment approving a license termination plan 
or decommissioning plan under Sec.  50.82 of this chapter'' and add in 
their place the words ``Each applicant for a license amendment 
approving an irradiated fuel management plan under Sec.  50.54(bb) of 
this chapter; each applicant for a license amendment approving a 
license termination plan under Sec.  50.82 of this chapter or Sec.  
52.110 of this chapter or a decommissioning plan under Sec.  50.82 of 
this chapter''.


Sec.  51.95  [Amended]

0
33. In Sec.  51.95, in paragraph (d) remove the words ``of an operating 
or combined license authorizing decommissioning activities at a 
production or utilization facility covered by Sec.  51.20,'' and add in 
their place the words ``approving an irradiated fuel management plan 
under Sec.  50.54(bb) of this chapter, or the amendment approving a 
license termination plan under Sec.  50.82 of this chapter or Sec.  
52.110 of this chapter or a decommissioning plan under Sec.  50.82 of 
this chapter''.

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

0
34. Revise the authority citation for part 52 to read as follows:

    Authority: Atomic Energy Act of 1954, secs. 53, 63, 81, 103, 
104, 147, 149, 161, 181, 182, 183, 185, 186, 189, 223, 234 (42 
U.S.C. 2073, 2093, 2113, 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
35. In Sec.  52.0, revise paragraph (a) to read as follows:


Sec.  52.0  Scope; applicability of 10 CFR Chapter I provisions.

    (a) This part governs the issuance of early site permits, standard 
design certifications, combined licenses, standard design approvals, 
and manufacturing licenses for nuclear power facilities licensed under 
Section 103 of the Atomic Energy Act of 1954, as amended (68 Stat. 
919), and Title II of the Energy Reorganization Act of 1974 (88 Stat. 
1242) through the termination of the associated 10 CFR part 52 
licenses. This part also gives notice to all persons who knowingly 
provide to any holder of or applicant for an approval, certification, 
permit, or license, or to a contractor, subcontractor, or consultant of 
any of them, components, equipment, materials, or other goods or 
services that relate to the activities of a holder of or applicant for 
an approval, certification, permit, or license, subject to this part, 
that they may be individually subject to NRC enforcement action for 
violation of the provisions in Sec.  52.4.
* * * * *
0
36. In Sec.  52.63, revise paragraph (b)(2) to read as follows:


Sec.  52.63  Finality of standard design certifications.

* * * * *
    (b) * * *
    (2) Subject to Sec.  50.59 of this chapter, a licensee who 
references a design certification rule may make departures from the 
design of the nuclear power facility, without prior Commission 
approval, unless the proposed departure involves a change to the design 
as described in the rule certifying the design.
    (i) The licensee shall maintain records of all departures from the 
design of the facility and these records must be maintained and 
available for audit until the date of termination of the license.
    (ii) Licensees for which the NRC has docketed the certifications 
required under Sec.  52.110(a) are not required to retain records of 
departures from the design of the facility associated solely with 
structures, systems, and components that have been permanently removed 
from service using an NRC-approved change process.
* * * * *


Sec.  52.109  [Amended]

0
37. In Sec.  52.109, remove the words ``to authorize ownership and 
possession of the production or utilization facility,''.
0
38. In Sec.  52.110, revise paragraphs (b), (d), (e), (f)(2), 
(h)(1)(i), and (h)(2), add paragraphs (h)(5) through (7), and revise 
paragraph (i) introductory text and paragraph (i)(2)(vi) to read as 
follows:


Sec.  52.110  Termination of license.

* * * * *
    (b)(1) Upon the NRC's docketing of the licensee's certifications 
required under paragraph (a) of this section, or when a final legally 
effective order to permanently cease operations has come into effect, 
the 10 CFR part 52 license no longer authorizes operation of the 
reactor or emplacement or retention of fuel into the reactor vessel.
    (2) The facility licensed under this part is no longer a 
utilization facility once the licensee meets the criteria of paragraph 
(b)(1) of this section and modifies the facility to be incapable of 
making use of special nuclear material without significant facility 
alterations necessary to restore the capability to make use of special 
nuclear material. The NRC maintains the authority to regulate the 10 
CFR part 52 license with respect to the possession of special nuclear 
material, source material, and byproduct material under sections 53, 
63, 81, and 161 of the Act, as applicable. Until the termination of the 
10 CFR part 52 license under paragraph (k) of this section, the 
regulations of this chapter applicable to a utilization facility 
continue to apply to the holder of the license unless the regulations 
explicitly state otherwise.
* * * * *
    (d)(1) Prior to or within 2 years following permanent cessation of 
operations, the licensee shall submit a post-shutdown decommissioning 
activities report (PSDAR) to the NRC, and a copy to the affected 
State(s). The PSDAR must contain a description of the planned 
decommissioning activities along with a schedule for their 
accomplishment, a discussion whether the environmental impacts 
associated with site-specific decommissioning activities will be 
bounded by appropriate federally issued environmental review documents, 
a description of any decommissioning activities whose environmental 
impacts

[[Page 12333]]

will not be so bounded and will be evaluated prior to the performance 
of the activities, and a site-specific decommissioning cost estimate, 
including the projected cost of managing irradiated fuel.
    (2) The NRC shall notice in the Federal Register the receipt of the 
PSDAR and the availability for public comment of the PSDAR. The NRC 
shall also schedule a public meeting in the vicinity of the licensee's 
facility upon receipt of the PSDAR. The NRC shall include a notice in a 
forum, such as local newspapers, that is readily accessible to 
individuals in the vicinity of the site, and in the Federal Register 
notice required by this paragraph (d)(2), announcing the date, time and 
location of the meeting, along with a brief description of the purpose 
of the meeting.
    (e) Licensees shall not perform any major decommissioning 
activities, as defined in Sec.  50.2 of this chapter, until 90 days 
after the NRC has received the licensee's PSDAR submittal and until 
certifications of permanent cessation of operations and permanent 
removal of fuel from the reactor vessel, as required under Sec.  
52.110(a), have been submitted.
    (f) * * *
    (2) Result in significant environmental impacts not bounded by 
appropriate federally issued environmental review documents; or
* * * * *
    (h) * * *
    (1) * * *
    (i) The withdrawals are for expenses for activities consistent with 
the definition of decommission in Sec.  52.1;
* * * * *
    (2) Initially, 3 percent of the generic amount specified in Sec.  
50.75(c) of this chapter may be used for decommissioning planning. For 
licensees that have submitted the certifications required under 
paragraph (a) of this section and commencing 90 days after the NRC has 
received the PSDAR, an additional 20 percent may be used. A site-
specific decommissioning cost estimate must be submitted to the NRC 
before the licensee may use any funding in excess of these amounts.
* * * * *
    (5) After submitting its site-specific decommissioning cost 
estimate required by paragraph (d)(1) of this section, and until the 
licensee has completed its final radiation survey and demonstrated that 
residual radioactivity has been reduced to a level that permits 
termination of its license, the licensee must annually submit to the 
NRC, by March 31, a financial assurance status report. The report may 
combine the reporting requirements of Sec.  72.30 of this chapter and 
Sec.  52.110(h)(7). The report must include the following information, 
current through the end of the previous calendar year:
    (i) The amount spent on decommissioning, both cumulative and over 
the previous calendar year, the remaining balance of any 
decommissioning funds, and the amount provided by other financial 
assurance methods being relied upon;
    (ii) An estimate of the costs to complete decommissioning, 
reflecting any difference between actual and estimated costs for work 
performed during the year, and the decommissioning criteria upon which 
the estimate is based;
    (iii) Any modifications occurring to a licensee's current method of 
providing financial assurance since the last submitted report; and
    (iv) Any material changes to trust agreements or financial 
assurance contracts.
    (6) If the sum of the balance of any remaining decommissioning 
funds, plus earnings on such funds calculated at not greater than a 2 
percent real rate of return, together with the amount provided by other 
financial assurance methods being relied upon, does not cover the 
estimated cost to complete the decommissioning, the financial assurance 
status report must include additional financial assurance to cover the 
estimated cost of completion.
    (7) After submitting its site-specific decommissioning cost 
estimate required by paragraph (d)(1) of this section, if spent fuel is 
on site, the licensee must annually submit to the NRC, by March 31, a 
report on the status of its funding for managing irradiated fuel. The 
report must include the following information, current through the end 
of the previous calendar year:
    (i) The amount of funds accumulated to cover the cost of managing 
the irradiated fuel;
    (ii) The projected cost of managing irradiated fuel until title to 
the fuel and possession of the fuel is transferred to the Secretary of 
Energy; and
    (iii) If the funds accumulated do not cover the projected cost, a 
plan to obtain additional funds to cover the cost.
    (i) All power reactor licensees that have loaded fuel into the 
reactor must submit an application for termination of license. The 
application for termination of license must be accompanied or preceded 
by a license termination plan to be submitted for NRC approval.
* * * * *
    (2) * * *
    (vi) An updated site-specific estimate of remaining decommissioning 
costs and identification of sources of funds for license termination, 
spent fuel management, and ISFSI decommissioning, as applicable;
* * * * *

PART 72--LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF 
SPENT NUCLEAR FUEL, HIGH-LEVEL RADIOACTIVE WASTE, AND REACTOR-
RELATED GREATER THAN CLASS C WASTE

0
39. The authority citation for part 72 continues to read as follows:

    Authority:  Atomic Energy Act of 1954, secs. 51, 53, 57, 62, 63, 
65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 223, 234, 274 (42 
U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2210e, 
2232, 2233, 2234, 2236, 2237, 2238, 2273, 2282, 2021); Energy 
Reorganization Act of 1974, secs. 201, 202, 206, 211 (42 U.S.C. 
5841, 5842, 5846, 5851); National Environmental Policy Act of 1969 
(42 U.S.C. 4332); Nuclear Waste Policy Act of 1982, secs. 117(a), 
132, 133, 134, 135, 137, 141, 145(g), 148, 218(a) (42 U.S.C. 
10137(a), 10152, 10153, 10154, 10155, 10157, 10161, 10165(g), 10168, 
10198(a)); 44 U.S.C. 3504 note.

0
40. In Sec.  72.13, add paragraph (e) to read as follows:


Sec.  72.13  Applicability.

* * * * *
    (e) The following sections apply to activities associated with a 
general license, where the licensee has elected to provide for physical 
protection of the spent fuel in accordance with Sec.  
72.212(b)(9)(vii)(A): Sec.  72.1; Sec.  72.2(a)(1), (b), (c), and (e); 
Sec. Sec.  72.3 through 72.6(c)(1); Sec. Sec.  72.7 through Sec.  
72.13(a) and (e); Sec.  72.30(b), (c), (d), (e), and (f); Sec.  
72.32(c) and (d); Sec.  72.44(b) and (f); Sec.  72.48; Sec.  72.50(a); 
Sec.  72.52(a), (b), (d), and (e); Sec.  72.60; Sec.  72.62; Sec. Sec.  
72.72 through 72.80(f); Sec. Sec.  72.82 through 72.86; Sec. Sec.  
72.104 through 72.106; Sec. Sec.  72.122 through 72.126; Sec. Sec.  
72.140 through 72.176; Sec. Sec.  72.180 through 72.186; Sec.  72.190; 
Sec.  72.194; Sec. Sec.  72.210 through 72.220; and Sec.  72.240(a).
0
41. In Sec.  72.30, revise paragraph (b) and paragraph (c) introductory 
text to read as follows:


Sec.  72.30  Financial assurance and recordkeeping for decommissioning.

* * * * *
    (b)(1) Each applicant for a specific license under this part must 
submit, as part of its application, a decommissioning funding plan for 
NRC review and approval.
    (2) Each holder of a general license under this part must submit, 
prior to the

[[Page 12334]]

initial storage of spent fuel under Sec.  72.212(a)(3), a 
decommissioning funding plan for NRC review and approval.
    (3) The decommissioning funding plans required by paragraphs (b)(1) 
and (2) of this section must contain:
    (i) Information on how reasonable assurance will be provided that 
funds will be available to decommission the ISFSI or MRS.
    (ii) A detailed cost estimate for decommissioning, in an amount 
reflecting:
    (A) The cost of an independent contractor to perform all 
decommissioning activities;
    (B) An adequate contingency factor; and
    (C) The cost of meeting the Sec.  20.1402 of this chapter criteria 
for unrestricted use, provided that, if the applicant or licensee can 
demonstrate its ability to meet the provisions of Sec.  20.1403 of this 
chapter, the cost estimate may be based on meeting the Sec.  20.1403 
criteria.
    (iii) Identification of and justification for using the key 
assumptions contained in the decommissioning cost estimate.
    (iv) A description of the method of assuring funds for 
decommissioning from paragraph (e) of this section, including means for 
adjusting cost estimates and associated funding levels periodically 
over the life of the facility.
    (v) The volume of onsite subsurface material containing residual 
radioactivity that will require remediation to meet the criteria for 
license termination.
    (vi) A certification that financial assurance for decommissioning 
has been provided in the amount of the cost estimate for 
decommissioning.
    (c) At the time of license renewal and at intervals not to exceed 3 
years, the decommissioning funding plan must be resubmitted with 
adjustments as necessary to account for changes in costs and the extent 
of contamination. The decommissioning funding plan must update the 
information submitted with the original or prior plan and must 
specifically consider the effect of the following events on 
decommissioning costs:
* * * * *
0
42. In Sec.  72.32, revise paragraphs (a) introductory text and (c) to 
read as follows:


Sec.  72.32  Emergency Plan.

    (a) Each application for an ISFSI that is licensed under this part 
which is not located on the site or within the exclusion area, as 
defined in 10 CFR part 100, of a nuclear power reactor licensed under 
part 50 of this chapter or part 52 of this chapter must be accompanied 
by an Emergency Plan that includes the following information:
* * * * *
    (c) For an ISFSI that is located on the site or within the 
exclusion area, as defined in 10 CFR part 100, of a nuclear power 
reactor licensed under parts 50 or 52 of this chapter, an emergency 
plan that meets the requirements in appendix E to part 50 of this 
chapter and Sec.  50.47(b) of this chapter, or the requirements of 10 
CFR 50.200(a) or 10 CFR 50.200(b) shall be deemed to satisfy the 
requirements of this section.
0
43. In Sec.  72.44, revise paragraph (f) to read as follows:


Sec.  72.44  License conditions.

* * * * *
    (f) A licensee shall follow and maintain in effect an emergency 
plan that is approved by the Commission. The licensee may make changes 
to the approved plan without Commission approval only if such changes 
do not decrease the effectiveness of the plan. Within six months after 
any change is made, the licensee shall submit, in accordance with Sec.  
72.4, a report containing a description of any changes made in the plan 
addressed to Director, Division of Fuel Management, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
with a copy to the appropriate NRC Regional Office shown in appendix D 
to part 20 of this chapter. Proposed changes that decrease the 
effectiveness of the approved emergency plan must not be implemented 
unless the licensee has received prior approval of such changes from 
the Commission. Licensees need not comply with the requirements of this 
paragraph when all spent fuel has been removed from the site.
0
44. In Sec.  72.62, revise paragraph (a)(2) to read as follows:


Sec.  72.62  Backfitting.

    (a) * * *
    (2) Procedures or organization required to operate or decommission 
an ISFSI or MRS.
* * * * *
0
45. In Sec.  72.72, revise paragraph (d) to read as follows:


Sec.  72.72  Material balance, inventory, and records requirements for 
stored materials.

* * * * *
    (d)(1) Except as provided in paragraph (d)(2) of this section, 
records of spent fuel, high-level radioactive waste, and reactor-
related GTCC waste containing special nuclear material meeting the 
requirements in paragraph (a) of this section must be kept in 
duplicate. The duplicate set of records must be kept at a separate 
location sufficiently remote from the original records that a single 
event would not destroy both sets of records.
    (2) A single copy of the records described in paragraph (d)(1) of 
this section may be maintained in a single storage facility provided 
the facility meets the requirements of an NRC-approved quality 
assurance program for the storage of records.
    (3) Records of spent fuel or reactor-related GTCC waste containing 
special nuclear material transferred out of an ISFSI or records of 
spent fuel, high-level radioactive waste, or reactor-related GTCC waste 
containing special nuclear material transferred out of an MRS must be 
preserved for a period of five years after the date of transfer.
0
46. In Sec.  72.212, add paragraph (b)(9)(vii) to read as follows:


Sec.  72.212  Conditions of general license issued under Sec.  72.210.

* * * * *
    (b) * * *
    (9) * * *
    (vii)(A) Upon NRC docketing of the certifications required under 
Sec.  50.82(a)(1) of this chapter or Sec.  52.110(a) of this chapter, 
and when all spent fuel has been placed in dry cask storage at the 
facility, the licensee may, as an alternative to the requirements of 
Sec.  72.212(b)(9)(i) through (vi), provide for physical protection of 
the spent fuel under subpart H of this part and Sec.  73.51 of this 
chapter.
    (B) A licensee who elects to provide physical protection under 
subpart H of this part and Sec.  73.51 of this chapter will submit 
their physical security plan to the NRC under Sec.  50.54(p) of this 
chapter.
* * * * *
0
47. Revise Sec.  72.218 to read as follows:


Sec.  72.218  Termination of licenses.

    (a) Upon removal of the spent fuel stored under this general 
license from the reactor site, the licensee must decommission the ISFSI 
consistent with requirements in Sec.  50.82 of this chapter or Sec.  
52.110 of this chapter, as applicable.
    (b) The general license under this part is terminated upon 
termination of the 10 CFR part 50 or 10 CFR part 52 license under Sec.  
50.82(a)(11) of this chapter or Sec.  52.110(k) of this chapter, 
respectively.

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

0
48. The authority citation for part 73 continues to read as follows:

    Authority:  Atomic Energy Act of 1954, secs. 53, 147, 149, 161, 
170D, 170E, 170H,

[[Page 12335]]

170I, 223, 229, 234, 1701 (42 U.S.C. 2073, 2167, 2169, 2201, 2210d, 
2210e, 2210h, 2210i, 2273, 2278a, 2282, 2297f); Energy 
Reorganization Act of 1974, secs. 201, 202 (42 U.S.C. 5841, 5842); 
Nuclear Waste Policy Act of 1982, secs. 135, 141 (42 U.S.C. 10155, 
10161); 44 U.S.C. 3504 note.
    Section 73.37(b)(2) also issued under sec. 301, Pub. L. 96-295, 
94 Stat. 789 (42 U.S.C. 5841 note).

0
49. In Sec.  73.51, revise paragraphs (a) introductory text, (a)(1) 
introductory text, and (a)(2) and add paragraph (a)(3) to read as 
follows:


Sec.  73.51  Requirements for the physical protection of stored spent 
nuclear fuel and high-level radioactive waste.

    (a) Applicability. Notwithstanding the provisions of Sec.  73.20, 
Sec.  73.50, or Sec.  73.67, the physical protection requirements of 
this section apply to each licensee that stores spent nuclear fuel and 
high-level radioactive waste:
    (1) Under a specific license issued pursuant to part 72 of this 
chapter:
* * * * *
    (2) At a geologic repository operations area (GROA) licensed 
pursuant to part 60 or 63 of this chapter; or
    (3) Under a general license issued pursuant to part 72 of this 
chapter and upon the NRC's docketing of the certifications required 
under Sec.  50.82(a)(1) of this chapter or Sec.  52.110(a) of this 
chapter, when all spent fuel has been placed in dry cask storage at the 
facility, and notification has been made to the NRC under the 
provisions of Sec.  72.212(b)(9)(vii) of this chapter.
* * * * *
0
50. In Sec.  73.54, remove the introductory text, revise the paragraph 
(a) introductory text, paragraph (b) introductory text, and paragraph 
(c) introductory text, and add paragraphs (i) and (j) to read as 
follows:


Sec.  73.54  Protection of digital computer and communication systems 
and networks.

    (a) Each holder of an operating license for a nuclear power reactor 
under part 50 of this chapter 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 provide high 
assurance that its digital computer and communication systems and 
networks are adequately protected against cyber attacks, up to and 
including the design basis threat as described in Sec.  73.1.
* * * * *
    (b) To accomplish the objectives in paragraph (a) of this section, 
the licensee shall:
* * * * *
    (c) The licensee's cyber security program must be designed to:
* * * * *
    (i) The requirements of this section no longer apply once the 
following criteria are satisfied:
    (1) The NRC has docketed the licensee's certifications required 
under Sec.  50.82(a)(1) of this chapter or Sec.  52.110(a) of this 
chapter; and
    (2) At least 10 months (for a boiling water reactor) or at least 16 
months (for a pressurized water reactor) have elapsed since the date of 
permanent cessation of operations if the fuel meets the criteria of 
Sec.  50.54(q)(7)(ii) of this chapter, or an NRC-approved alternative 
spent fuel decay period, submitted under Sec.  50.54(q)(7)(ii)(A) or 
(B) of this chapter, has elapsed.
    (j) Removal of cyber security license condition. The cyber security 
plan license condition, which requires the licensee to fully implement 
and maintain in effect all provisions of the Commission-approved cyber 
security plan including changes made pursuant to the authority of Sec.  
50.90 of this chapter and Sec.  50.54(p) of this chapter, is removed 
from the license once the conditions in paragraph (i) of this section 
are satisfied.
0
51. In Sec.  73.55:
0
a. Revise paragraph (b)(3) introductory text;
0
b. Add paragraphs (b)(9)(ii)(B)(1) and (2);
0
c. Revise paragraphs (c)(6), (e)(9)(v)(A), (j)(4)(ii), and (p)(1)(i) 
and (ii).
    The revisions and additions read as follows:


Sec.  73.55  Requirements for physical protection of licensed 
activities in nuclear power reactors against radiological sabotage.

* * * * *
    (b) * * *
    (3) The physical protection program must be designed to prevent 
significant core damage until the NRC has docketed the certifications 
required under Sec.  50.82(a)(1) of this chapter or Sec.  52.110(a) of 
this chapter. The physical protection program must also be designed to 
prevent spent fuel sabotage. Specifically, the program must:
* * * * *
    (9) * * *
    (ii) * * *
    (B) * * *
    (1) Licensees who are implementing 10 CFR part 26, regardless of 
whether they are required to do so, are in compliance with paragraph 
(b)(9)(ii)(B) of this section.
    (2) Licensees, upon the NRC's docketing of their certifications 
required under Sec.  50.82(a)(1) of this chapter or Sec.  52.110(a) of 
this chapter, will be in compliance with paragraph (b)(9)(ii)(B) of 
this section by implementing the following:
    (i) A fitness for duty program in which individuals who maintain 
unescorted access authorization and have unescorted access to a vital 
area, individuals who perform certified fuel handler duties under Sec.  
50.2 of this chapter prior to all spent nuclear fuel at a site being 
placed in dry cask storage, individuals who perform the duties under 
Sec.  26.4(a)(5) of this chapter, and individuals who perform duties 
under Sec.  26.4(g) of this chapter, are subject to the requirements in 
10 CFR part 26 except for subparts I and K; and
    (ii) A fitness for duty program in which those individuals who 
maintain unescorted access authorization and have unescorted access to 
the protected area who are not included in paragraph 
(b)(9)(ii)(B)(2)(i) of this section, are subject to the requirements of 
Sec. Sec.  26.31(c)(1) and (2) and 26.33 of this chapter.
* * * * *
    (c) * * *
    (6) Cyber Security Plan. The licensee shall establish, maintain, 
and implement a Cyber Security Plan in accordance with the requirements 
of Sec.  73.54. The licensee no longer needs to maintain and implement 
its Cyber Security Plan once the criteria in Sec.  73.54(i) have been 
satisfied.
* * * * *
    (e) * * *
    (9) * * *
    (v) * * *
    (A) The reactor control room, unless the licensee has submitted and 
the NRC has docketed the certifications required under Sec.  
50.82(a)(1) of this chapter or Sec.  52.110(a) of this chapter, and the 
licensee has documented that all vital equipment has been removed from 
the control room and the control room does not serve as the vital area 
boundary for other vital areas;
* * * * *
    (j) * * *
    (4) * * *
    (ii) A system for communication with the control room, or, if the 
NRC has docketed the certifications required under Sec.  50.82(a)(1) of 
this chapter or Sec.  52.110(a) of this chapter, a system for 
communication with the certified fuel handler or the senior on-shift 
licensee representative responsible for overall safety and security of 
the permanently shutdown and defueled facility.
* * * * *
    (p) * * *
    (1) * * *

[[Page 12336]]

    (i) In accordance with Sec.  50.54(x) and (y) of this chapter, the 
licensee may suspend any security measures under this section in an 
emergency when this action is immediately needed to protect the public 
health and safety and no action consistent with license conditions and 
technical specifications that can provide adequate or equivalent 
protection is immediately apparent. This suspension of security 
measures must be approved as a minimum by a licensed senior operator, 
or, if the certifications required under Sec.  50.82(a)(1) of this 
chapter or Sec.  52.110(a) of this chapter have been docketed by the 
NRC, by either a licensed senior operator or a certified fuel handler, 
before taking this action.
    (ii) During severe weather when the suspension of affected security 
measures is immediately needed to protect the personal health and 
safety of security force personnel and no other immediately apparent 
action consistent with the license conditions and technical 
specifications can provide adequate or equivalent protection. This 
suspension of security measures must be approved, as a minimum, by a 
licensed senior operator, or, if the certifications required under 
Sec.  50.82(a)(1) of this chapter or Sec.  52.110(a) of this chapter 
have been docketed by the NRC, by either a licensed senior operator or 
a certified fuel handler, with input from the security supervisor or 
manager, before taking this action.
* * * * *

PART 140--FINANCIAL PROTECTION REQUIREMENTS AND INDEMNITY 
AGREEMENTS

0
52. The authority citation for part 140 continues to read as follows:

    Authority:  Atomic Energy Act of 1954, secs. 161, 170, 223, 234 
(42 U.S.C. 2201, 2210, 2273, 2282); Energy Reorganization Act of 
1974, secs. 201, 202 (42 U.S.C. 5841, 5842); 44 U.S.C. 3504 note.

0
53. In Sec.  140.11, add paragraph (a)(5), redesignate paragraph (b) as 
paragraph (c), revise newly redesignated paragraph (c), and add new 
paragraph (b) to read as follows:


Sec.  140.11  Amounts of financial protection for certain reactors.

    (a) * * *
    (5) In the amount of at least $100,000,000, for each nuclear 
reactor:
    (i) For which the NRC has docketed the certifications required 
under Sec.  50.82(a)(1) of this chapter or Sec.  52.110(a) of this 
chapter, and
    (ii) For which at least 10 months (for a boiling water reactor) or 
16 months (for a pressurized water reactor) have elapsed since the date 
of permanent cessation of operations if the fuel meets the criteria of 
Sec.  50.54(q)(7)(ii) of this chapter, or for which an NRC-approved 
alternative to the 10- or 16-month spent fuel decay period, submitted 
under Sec.  50.54(q)(7)(ii)(A) or (B) of this chapter, has elapsed.
    (b) Secondary financial protection (in the form of private 
liability insurance available under an industry retrospective rating 
plan providing for deferred premium charges) will no longer be required 
once the criteria in Sec.  140.11(a)(5)(i) and (ii) have been met.
    (c) In any case where two or more nuclear reactors at the same 
location are licensed under parts 50, 52, or 54 of this chapter, the 
total financial protection required of the licensee for all such 
reactors (excluding any applicable secondary financial protection) is 
the highest amount which would otherwise be required for any one of 
those reactors; provided, that such financial protection covers all 
reactors at the location.
0
54. In Sec.  140.81, revise paragraph (a) to read as follows:


Sec.  140.81  Scope and purpose.

    (a) Scope. This subpart applies to applicants for and holders of 
operating licenses issued under part 50 of this chapter, combined 
licenses issued under part 52 of this chapter, or renewed licenses 
issued under part 54 of this chapter, authorizing operation of 
production facilities and utilization facilities, and to other persons 
indemnified with respect to such facilities. This subpart shall cease 
to apply to licensees under part 50, part 52, and part 54 of this 
chapter once the licensee satisfies the criteria in Sec.  
140.11(a)(5)(i) and (ii).
* * * * *

    Dated: February 9, 2022.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2022-03131 Filed 3-2-22; 8:45 am]
BILLING CODE 7590-01-P