[Federal Register Volume 91, Number 12 (Tuesday, January 20, 2026)]
[Rules and Regulations]
[Pages 2287-2290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-00904]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 50
[NRC-2024-0189]
Commercial Non-Power Production or Utilization Facilities
AGENCY: Nuclear Regulatory Commission.
ACTION: Notification of interpretation; request for comment.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing an
interpretation of its regulations to include non-power production or
utilization facilities (NPUFs) licensed under section 103 of the Atomic
Energy Act of 1954, as amended (AEA), within the scope of the NRC's
backfitting regulations and to exclude non-commercial NPUFs licensed
under section 104 of the AEA from the scope of the NRC's backfitting
regulations. The interpretation is effective immediately
[[Page 2288]]
with a 30-day post-promulgation comment period.
DATES: This interpretation is effective January 20, 2026. Submit
comments by February 19, 2026. Comments received after this date will
be considered if it is practical to do so, but the Commission is able
to ensure consideration of only comments received by this date.
ADDRESSES: You may submit comments by any of the following methods;
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-2024-0189. Address
questions about NRC dockets to Helen Chang; telephone: 301-415-3228;
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.
Fax comments to: Secretary, U.S. Nuclear Regulatory
Commission at 301-415-1101.
Mail comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and
Adjudications Staff.
Hand deliver comments to: 11555 Rockville Pike, Rockville,
Maryland 20852, between 7:30 a.m. and 4:15 p.m. eastern time, Federal
workdays; telephone: 301-415-1677.
You can read a plain language description of this interpretation at
https://www.regulations.gov/docket/ NRC-2024-0189. 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: Christopher Prescott, Office of
Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-001; telephone: 301-287-9452; email:
[email protected]. For technical questions contact Jeff
Rady, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-001; telephone: 301-415-3724; email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Obtaining Information and Submitting Comments
A. Obtaining Information
Please refer to Docket ID NRC-2024-0189 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-2024-0189.
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 ADAMS Public Search.''
For problems with ADAMS, please contact the NRC's Public Document Room
(PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to
[email protected]. For the convenience of the reader, instructions
about obtaining materials referenced in this document are provided in
the ``Availability of Documents'' section.
NRC's PDR: The NRC Public Document Room (PDR), where you
may examine and order copies of publicly available documents, is open
by appointment. 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 a.m. and 4 p.m. eastern time, 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-2024-0189 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
An NPUF is defined in section 50.2, ``Definitions,'' in part 50,
``Domestic Licensing of Production and Utilization Facilities,'' of
title 10 of the Code of Federal Regulations (10 CFR) as a production or
utilization facility, licensed under paragraph (a) or (c) of 10 CFR
50.21, ``Class 104 licenses; for medical therapy and research and
development facilities,'' or 10 CFR 50.22, ``Class 103 licenses; for
commercial and industrial facilities,'' as applicable, that is not a
nuclear power reactor or a production facility as defined under
paragraphs (1) and (2) of the definition of ``production facility'' in
10 CFR 50.2. The NRC's regulatory history and practice has excluded
NPUFs licensed under section 104 of the AEA (i.e., research reactors
and testing facilities) from the scope of 10 CFR 50.109,
``Backfitting'' (the Backfit Rule). The NRC has always considered
nuclear power reactors licensed under section 103 or 104b of the AEA
(i.e., commercial nuclear power reactors) to be within the scope of the
Backfit Rule.\1\ The NRC only recently issued a construction permit for
a commercial NPUF under section 103 of the AEA for the first time, so
no history or long-standing practice for whether commercial NPUFs are
within the scope of the Backfit Rule exists.
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\1\ More than half of the currently licensed commercial nuclear
power plants in the United States are licensed under section 104b of
the AEA. Section 104b requires the NRC to impose the minimum amount
of regulation to permit the NRC to fulfill its AEA obligations. The
Commission has historically subjected commercial 10 CFR part 50
facilities licensed under section 103 or 104b of the AEA (i.e.,
nuclear power reactors) to the same public health and safety and
common defense and security requirements. In the preamble to the
1991 final rule for 10 CFR part 54, ``Requirements for Renewal of
Operating Licenses for Nuclear Power Plants,'' the Commission stated
that for all practical purposes, there is little technical
distinction between the class of nuclear power plants licensed under
section 103 and the class licensed under section 104b. Only the 1970
change in the AEA separates these two classes of plants. See the
final rule, ``Nuclear Power Plant License Renewal'' (56 FR 64943,
64962; December 13, 1991).
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In the original version of the Backfit Rule, which was published by
the Atomic Energy Commission in 1970, neither the regulation nor the
preamble could be read as excluding NPUFs from the scope of the rule.
In both the proposed and final rules, as well as the associated
preambles, the Atomic Energy Commission referred simply to
``facility,'' ``facilities,'' ``production and utilization facility,''
and ``production and utilization facilities.'' No reference
[[Page 2289]]
was made to either ``power'' or ``non-power'' facilities.
The NRC amended the Backfit Rule in 1985 and 1988. The NRC did not
make any revisions to the rule text in the 1985 or 1988 amendments to
indicate that the Commission intended to modify the scope of the
Backfit Rule. In the 1985 rulemaking, the Commission revised the
definition of ``backfitting'' in 10 CFR 50.109 from the 1970 version to
remove the reference to a ``production and utilization facility'' and
replaced it with the general, undefined term ``facility.'' Neither
``power'' nor ``non-power'' is referenced in the rule text.
Although not indicated by the revised rule text, the Commission did
clarify the scope of the Backfit Rule with the 1985 and 1988
rulemakings. The regulatory basis for the 1985 and 1988 rulemakings was
expressed solely in terms of nuclear power reactors. The titles and
pages of the NRC's advance notice of proposed rulemaking and policy
statement on backfitting in 1983, and the titles and preambles of the
proposed and final rules for those amendments to Sec. 50.109 involved
only nuclear power reactors. The 1985 final rule stated that its
purpose was to establish requirements for the future management of
backfitting for power reactors.\2\
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\2\ ``Revision of Backfitting Process for Power Reactors'' (50
FR 38097; September 20, 1985).
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Moreover, the NRC practice has been to apply the Backfit Rule to
only nuclear power reactors. In a 1980s rulemaking that would have
required research reactors and testing facilities to switch from highly
enriched uranium to low enriched uranium, the Commission declined to
apply the Backfit Rule in that rulemaking, stating in its staff
requirements memorandum, ``[T]he backfit rule should not be applied to
this amendment of the regulations which relates only to non-power
reactors.'' In a 2012 final rule concerning non-power reactors, the
Commission stated that the NRC determined that the backfit provisions
in Sec. 50.109 do not apply to test, research, or training reactors
because the rulemaking record for Sec. 50.109 indicates that the
Commission intended to apply this provision to only power reactors, and
NRC practice has been consistent with this rulemaking record.
In 2019, the Commission updated Management Directive (MD) 8.4,
``Management of Backfitting, Forward Fitting, Issue Finality, and
Information Requests.'' That MD provides the Commission's policies and
direction to the NRC staff on, among other things, the agency's
backfitting ``of nuclear power reactor facilities and select nuclear
materials facilities.'' The MD does not mention NPUFs. This silence is
consistent with the Commission position articulated in the 2012 final
rule preamble that NPUFs are not within the scope of the Backfit Rule.
Underlying the practice of excluding NPUFs from the scope of the
Backfit Rule are statutory restrictions on the amount of regulation
that the NRC can impose on facilities licensed under section 104 of the
AEA. NPUFs have typically been licensed under section 104a or 104c of
the AEA for non-commercial medical therapy or non-commercial research
and development facilities, respectively. Sections 104a and 104c
require the NRC to impose, in general, the minimum amount of regulation
to permit the NRC to fulfill its AEA obligations. The NRC's record
demonstrates the agency's adherence to the ``minimum regulation''
standard for NPUFs. Since 1990, the NRC has imposed requirements on
NPUFs through only four rulemakings and six orders (that were not
issued in response to a request or application).
In 2016, the NRC issued a construction permit under 10 CFR part 50
to SHINE Medical Technologies, Inc. (SHINE). SHINE applied for an
operating license under 10 CFR part 50 in 2019. SHINE proposes to
operate a medical isotope production facility to produce molybdenum-99.
The facility would meet the definition of an NPUF if the NRC issues
SHINE an operating license because the facility would not be a nuclear
power reactor, and the facility would not be a production facility as
defined under paragraphs (1) and (2) of the definition of ``production
facility'' in Sec. 50.2. SHINE would be issued an operating license
pursuant to section 103 of the AEA and 10 CFR 50.22, because SHINE
proposes to engage in activities that satisfy the statutory and
regulatory provisions for commercial licenses. Therefore, SHINE would
be a commercial NPUF. The NRC is clarifying whether commercial NPUFs
like SHINE are within the scope of the Backfit Rule.
III. Interpretation
The NRC interprets its regulations to include within the scope of
10 CFR 50.109 commercial NPUFs licensed under section 103 of the AEA
and exclude from the scope of 10 CFR 50.109 non-commercial NPUFs
licensed under section 104 of the AEA.
Commercial facilities licensed under section 103 or 104b of the AEA
have always been considered within the scope of the Backfit Rule. In
contrast, the Commission has excluded from the scope of the Backfit
Rule non-commercial facilities licensed under section 104a or 104c of
the AEA. Consistent with this approach, the Commission concludes that
commercial NPUFs licensed under section 103 of the AEA and 10 CFR 50.22
are within the scope of the Backfit Rule and non-commercial facilities
licensed under section 104a or 104c of the AEA and 10 CFR 50.21 are
outside the scope of the Backfit Rule.
IV. Request for Comment
The NRC is requesting comments on this interpretation. The NRC will
publish a document in the Federal Register containing an evaluation of
the significant comments and any revisions to this interpretation made
as a result of the comments and their evaluation.
V. 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.
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ADAMS accession No./ web link/Federal
Document Register citation
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SRM-M240904: Affirmation Session-- ML24248A208 (package).
SECY-19-0062, ``Final Rule: Non-
power Production or Utilization
Facility License Renewal (RIN
3150-AI96, NRC-2011-0087),''
September 4, 2024.
Management Directive (MD) 8.4, ML18093B087.
``Management of Backfitting,
Forward Fitting, Issue Finality,
and Information Requests,''
September 20, 2019.
Federal Register Notice--Final 89 FR 106234.
Rule; Non-Power Production or
Utilization Facility License
Renewal, December 30, 2024.
Federal Register Notice--Final 56 FR 64943, 64962.
Rule; Nuclear Power Plant
License Renewal; Final Rule,
December 13, 1991.
[[Page 2290]]
Federal Register Notice--Final 53 FR 20603.
Rule; Revision of Backfitting
Process for Power Reactors;
Final Rule, June 6, 1988.
Federal Register Notice--Final 50 FR 38097.
Rule; Revision of Backfitting
Process for Power Reactors,
September 20, 1985.
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VI. Paperwork Reduction Act
This proposed interpretation does not contain any new or amended
collections of information subject to the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.). Existing collections of information were
approved by the Office of Management and Budget (OMB), approval number
3150-0011.
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.
VII. Regulatory Planning and Review
Executive Order (E.O.) 12866, as amended by E.O. 14215, provides
that the Office of Information and Regulatory Affairs (OIRA) will
determine whether a regulatory action is significant as defined by E.O.
12866 and will review all significant regulatory actions. OIRA
determined that this notice of interpretation is not a significant
regulatory action under E.O. 12866.
VIII. Congressional Review Act
This notification of interpretation is a rule as defined in the
Congressional Review Act (5 U.S.C. 801-808). However, the Office of
Management and Budget has not found it to be a major rule as defined in
the Congressional Review Act.
Dated: January 14, 2026.
For the Nuclear Regulatory Commission.
Jeremy Groom,
Acting Director, Office of Nuclear Reactor Regulation.
[FR Doc. 2026-00904 Filed 1-16-26; 8:45 am]
BILLING CODE 7590-01-P