__________________

POLICY ISSUE 

(Notation Vote)

January 17, 2017 SECY-17-0007 

FOR: The Commissioners 

FROM: Victor M. McCree 

Executive Director for Operations 

SUBJECT: PETITIONS TO MODIFY A COMBINED LICENSE AND PETITIONS TO 

MODIFY, SUSPEND, OR REVOKE AN EARLY SITE PERMIT 

PURPOSE: 

This paper requests that the Commission delegate to the U.S. Nuclear Regulatory Commission 

(NRC) staff the authority to approve or deny petitions to modify a combined license (COL) in 

accordance with Title 10 of the Code of Federal Regulations (10 CFR) 52.103(f) and petitions to 

modify, suspend, or revoke an early site permit (ESP) in accordance with 10 CFR 52.39(c)(2). 

The requested delegations include any immediate action determinations necessary during staff 

review. This paper also seeks Commission approval of certain recommendations for the 

10 CFR 52.103(f) process. This paper does not address any new commitments or resource 

implications. 

SUMMARY: 

Petitions under 10 CFR 52.103(f) and 10 CFR 52.39(c)(2) must be processed in accordance 

with 10 CFR 2.206, “Requests for action under this subpart,” but further guidance is needed for 

the 10 CFR 52.103(f) process. The staff seeks Commission approval of the following proposals: 

• The staff recommends that the opportunity to file 10 CFR 52.103(f) petitions begin with 

license issuance and end with the 10 CFR 52.103(g) finding, which allows operation to 

begin. Allowing petition filings upon license issuance promotes efficiency and early 

issue resolution. The filing opportunity should end with the 10 CFR 52.103(g) finding 

because 10 CFR 52.103(f) is intended to address the decision to allow operation. 

CONTACT: Andrea Johnson, NRO/DEIA 

301-415-2890 

Michael Spencer, OGC 

301-287-9115 
The Commissioners - 2 - 

• If review of a 10 CFR 52.103(f) petition is ongoing, 10 CFR 52.103(f) requires an 

immediate action determination before the licensed activity allegedly affected by the 

petition begins. The staff recommends that the Commission interpret the term “licensed 

activity” to refer to operational activities because 10 CFR 52.103(f) focuses on the 

decision to allow operation and the licensed activities listed in the regulation (“fuel 

loading, low power testing”) relate to operation. In deciding whether to impose 

substantive requirements on a licensee as part of an immediate action determination, 

the staff recommends that the NRC determine whether such requirements are 

necessary for reasonable assurance of adequate protection of the public health and 

safety. This standard is consistent with the standard used for immediately effective 

orders and for interim operation pending the completion of hearings on inspections, 

tests, analyses, and acceptance criteria (ITAAC). 

• The staff recommends that for the period before the 10 CFR 52.103(g) finding, the NRC 

establish a process for coordinating action on 10 CFR 2.206 petitions, 10 CFR 52.103(f) 

petitions, and petitions for rulemaking regarding certified design information that a COL 

holder incorporates by reference. The staff also recommends that if one of these 

petitions addresses safe operation at a specific facility, the 10 CFR 52.103(f) immediate 

action determination process be applied to address commencement of operational 

activities pending a decision on the petition. 

Finally, the staff recommends that the Commission delegate the authority to make decisions on 

10 CFR 52.103(f) and 10 CFR 52.39(c)(2) petitions to the staff. Delegation of these decisions 

would be consistent with the delegation of authority to the staff for similar decisions, would 

promote efficiency, and would ensure coordination with related regulatory decisions. In 

addition, the Commission would still have an opportunity to become involved in the 

10 CFR 52.103(f) process consistent with 10 CFR 2.206, wherein the Commission may exercise 

its supervisory power over the staff or review the staff’s decision. Also, the Commission may 

directly rule on the petition if the issues it raises are of sufficient public importance. 

BACKGROUND: 

A. Commencement of Operation Under a Combined License 

The regulation at 10 CFR 52.103, “Operation under a combined license,” governs the 

commencement of operation under a COL and includes requirements associated with meeting 

the ITAAC in the COL and requirements for ITAAC hearings. A COL authorizes both the 

construction of the facility and, subject to meeting the conditions set forth in the COL, the 

operation of the facility. The ITAAC provide reasonable assurance that if the inspections, tests, 

and analyses are performed and the acceptance criteria are met, the facility has been 

constructed and will be operated in accordance with the COL, the Atomic Energy Act of 1954, 

as amended (AEA), and the NRC’s rules and regulations. A licensee cannot operate the facility 

until the Commission finds, in accordance with AEA Section 185b. and 10 CFR 52.103(g), that 

the acceptance criteria in the COL are met. 

The AEA provides an opportunity for a hearing on conformance with the acceptance criteria in 

the COL. The AEA imposes special requirements for this hearing process, including the 

following three: 
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(1) Hearing requests must show prima facie that the acceptance criteria have not been or 

will not be met and that the specific operational consequences of nonconformance are 

contrary to reasonable assurance of adequate protection of the public health and safety. 

(2) Hearing procedures may be formal or informal. 

(3) Interim operation is allowed while the hearing is ongoing if there is reasonable 

assurance of adequate protection of the public health and safety during the interim 

period of operation. 

The ITAAC hearing process begins late in the construction period, and the AEA directs the 

NRC, to the maximum possible extent, to resolve the hearing issues within 180 days of the 

notice of intended operation or by scheduled fuel load, whichever is later. 

The staff addressed interim operation in SECY-13-0033, “Allowing Interim Operation under 

Title 10 of the Code of Federal Regulations Section 52.103,” dated April 4, 2013 (Agencywide 

Documents Access and Management System (ADAMS) Accession No. ML12289A928). In the 

NRC staff requirements memorandum (SRM) dated July 19, 2013 (ADAMS Accession 

No. ML13200A115), the Commission approved the staff’s recommendation that the Commission 

delegate the 10 CFR 52.103(g) finding to the staff, and the Commission directed the 

development of options for ITAAC hearing formats for Commission review and approval. The 

General Counsel submitted draft ITAAC hearing procedures with SECY-15-0010, “Final 

Procedures for Hearing on Conformance with the Acceptance Criteria in Combined Licenses,” 

dated January 20, 2015 (ADAMS Accession No. ML14343A747). In the SRM dated 

April 1, 2016 (ADAMS Accession No. ML16092A102), the Commission approved the publication 

of the final procedures for ITAAC hearings, subject to changes directed by the Commission. 

The final procedures were published on July 1, 2016, in Volume 81 of the Federal Register

(FR), page 43266 (81 FR 43266). 

B. Petitions to Modify a Combined License 

The public may submit petitions to modify the terms and conditions of the COL under 

10 CFR 52.103(f). Such petitions must be filed with the Secretary of the Commission and 

processed as requests for action in accordance with 10 CFR 2.206. If review of a 10 CFR 

52.103(f) petition is ongoing, the Commission must determine whether any immediate action is 

required before commencement of the licensed activity the petition allegedly affects (e.g., fuel 

loading, low-power testing). Then, if the petition is granted, the Commission will issue an 

appropriate order. The granting of the petition will not affect fuel loading and operation under 

the COL unless the order is made immediately effective. The 10 CFR 52.103(f) process is 

separate from, but could occur in parallel with, ITAAC hearing activities. ITAAC hearings focus 

solely on whether the acceptance criteria in the ITAAC are satisfied, and 10 CFR 52.103(f) 

petitions address issues outside of the ITAAC hearing process. 

The NRC established the 10 CFR 52.103(f) process in the original rule for 10 CFR Part 52, 

dated April 18, 1989 (54 FR 15372). The Commission contemplated that the Commission itself 

would make the ultimate decision on the 10 CFR 52.103(f) petition, as well as the immediate 

action determination, based on a recommendation from the staff. This has not changed since 

the 1989 rule. 
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A 10 CFR 52.103(f) petition is not a petition for enforcement even though it must be processed 

under 10 CFR 2.206. Normally, decisions on 10 CFR 2.206 petitions are considered 

enforcement decisions not subject to judicial review on the merits of the decision. However, in 

litigation on the 1989 10 CFR Part 52 rule, the NRC stated that a decision on a 

10 CFR 52.103(f) petition would be judicially reviewable because it is part of the decision to 

allow plant operation. The U.S. Court of Appeals for the District of Columbia, sitting en banc, 

agreed with this view, stating, “Part 52 employs § 2.206 not as a means for requesting 

enforcement, but as an integral part of the licensing process itself.” Nuclear Info. Res. Serv. v. 

NRC, 969 F.2d 1169, 1178 (D.C. Cir. 1992). 

C. Petitions to Modify, Suspend, or Revoke an Early Site Permit 

Part 52 provides that a COL application may reference other NRC approvals, such as an ESP 

and/or a design certification. A referenced ESP has regulatory finality, but 10 CFR 52.39(c)(2) 

states that any person may file a petition requesting modification of the site characteristics, 

design parameters, or terms and conditions of an ESP, or requesting suspension or revocation 

of the permit. Similar to 10 CFR 52.103(f), the 10 CFR 52.39(c)(2) petition is processed in 

accordance with 10 CFR 2.206. Before construction commences, the Commission must 

consider the petition and determine whether any immediate action is required.1 If the 

Commission grants the petition, it will issue an appropriate order. Granting the petition will not 

affect construction under the construction permit or COL unless the order is made immediately 

effective. The NRC has issued five ESPs, including three in 2007; a 10 CFR 52.39(c)(2) petition 

has never been filed. 

DISCUSSION: 

A. Processing 10 CFR 52.103(f) Petitions 

The regulation at 10 CFR 52.103(f) directs the NRC staff to process petitions to modify a COL in 

accordance with 10 CFR 2.206, which permits any person to file a request to institute a 

proceeding pursuant to 10 CFR 2.202, “Orders,” to modify, suspend, or revoke a license, or for 

any other enforcement-related action as may be proper. Requests must specify the action 

requested and set forth the facts that constitute the basis for the request. The NRC Executive 

Director for Operations assigns the request to an office director. 

The NRC staff uses Management Directive 8.11, “Review Process for 10 CFR 2.206 Petitions,” 

to implement this regulation. In accordance with this management directive, the staff reviews 

requests that raise health and safety issues without requesting enforcement action, such as 

allegations, by means other than the 10 CFR 2.206 process. In addition, the staff will not review 

a petition under 10 CFR 2.206 if the petitioner can seek to have its concerns addressed through 

participation in an ongoing adjudicatory proceeding. Finally, the 10 CFR 2.206 process is not 

used to address claims of deficiencies within existing NRC rules; such requests should be 

addressed as petitions for rulemaking. 

 

1 An immediate action determination might be necessary, for example, if the NRC issues a COL or 

construction permit referencing the ESP. 
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If the NRC determines that a request qualifies as a 10 CFR 2.206 petition, upon evaluation of 

the request, the appropriate office director would issue a decision, and, if warranted, the NRC 

would take appropriate enforcement action. The NRC may grant a request for 

enforcement-related action in whole or in part and may take other action to satisfy the concerns 

raised by the petition. The NRC may also deny the petition. Management Directive 8.11 also 

describes a process for making immediate action determinations during staff review. 

A director’s decision is filed with the Office of the Secretary. As stated in 10 CFR 2.206(c), the 

Commission will not entertain requests for review of a director’s decision. However, within 

25 days of a director’s decision not to institute a proceeding or take other action in whole or in 

part, the Commission may on its own motion review that decision, in whole or in part, to 

determine whether the office director “abused his [or her] discretion.” This review power does 

not limit in any way the Commission’s supervisory power over delegated staff actions or the 

Commission’s power to consult with the staff on a formal or informal basis about the institution 

of proceedings under 10 CFR 2.206. 

The 10 CFR 2.206 petition process does not address all aspects of the 10 CFR 52.103(f) 

process. Therefore, the NRC staff recommends implementation of the following high-level 

guidance. The staff will update internal guidance as appropriate to reflect the Commission’s 

decisions on the proposals made in this paper. 

1. Staff Recommendation on Timing of a 10 CFR 52.103(f) Petition 

The NRC staff recommends that the opportunity to file a 10 CFR 52.103(f) 

petition begin when a COL is issued. Allowing 10 CFR 52.103(f) petitions to be 

filed as soon as the COL is issued promotes efficiency and is consistent with the 

10 CFR Part 52 policy of early issue resolution. An alternative of only allowing 

10 CFR 52.103(f) petitions late in the construction period would be undesirable 

for several reasons: (1) the NRC would have less time to resolve petitions before 

operation, (2) petition resolution would be delayed until the most resourceintensive part of the construction period, and (3) resolving deficiencies identified 

at an advanced stage of construction may be more difficult than if the problems 

were identified earlier. 

Also, while not explicitly addressed by 10 CFR 52.103(f), the staff infers from the 

surrounding regulatory context that the opportunity to file a 10 CFR 52.103(f) 

petition ends once the 10 CFR 52.103(g) finding is made. The focus of 

10 CFR 52.103 is on processes related to the commencement of operation, so it 

is reasonable to conclude that 10 CFR 52.103(f) has a similar focus. This is 

consistent with the NRC’s litigation position that 10 CFR 52.103(f) petitions are 

part of the NRC’s decision to allow operation to begin. After the 10 CFR 

52.103(g) finding, the decision on commencement of operation has already been 

made, so any subsequent petition to modify the terms and conditions of the COL 

should be processed as an enforcement action under 10 CFR 2.206, just as it 

would be for any other operating plant. The alternative of allowing 10 CFR 

52.103(f) petitions after the 10 CFR 52.103(g) finding would blur the distinction 

between the 10 CFR 52.103(f) and 10 CFR 2.206 processes, could create 
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confusion over whether decisions on 10 CFR 52.103(f) petitions are subject to 

judicial review, and would unnecessarily duplicate functions already addressed 

by the existing 10 CFR 2.206 process. 

2. Staff Recommendations on Immediate Action Determinations for a 

10 CFR 52.103(f) Petition 

The staff recommends that the Commission interpret 10 CFR 52.103(f) so that 

immediate action determinations focus on the commencement of operational 

activities before an NRC decision on the petition. The staff concludes that this is 

the proper scope of immediate action determinations because 10 CFR 52.103(f) 

focuses on the commencement of operation and because the licensed activities 

listed in the regulation (“fuel loading, low power testing”) relate to operation. 

If this recommendation is adopted, an immediate action determination would only 

be necessary if (1) a decision on the petition is still pending, (2) the petition 

allegedly implicates some operational phase, such as fuel loading or low-power 

testing, and (3) such operational phase is imminent. Thus, the staff processing 

10 CFR 52.103(f) petitions will need to maintain awareness of the ITAAC hearing 

schedule and the licensee’s fuel load and operation schedule to determine 

whether and when an immediate action determination is needed. Depending on 

when the petition is filed and how quickly the NRC staff can make a decision on 

it, an immediate action determination may be unnecessary. However, if a 

10 CFR 52.103(f) petition is filed late in the construction period, the staff will need 

to expeditiously assess the petition for immediate action purposes. 

When the NRC makes an immediate action determination, it should 

communicate this decision to the petitioner in writing. If the NRC determines that 

licensee action is needed, then an order would be necessary to require these 

actions. Further, 10 CFR 52.103(f) states that fuel loading and operation under 

the COL would not be affected if the petition is granted unless the order is made 

immediately effective. Consistent with this, if NRC review of the petition is still 

pending, fuel loading and operation shall be permitted in accordance with the 

COL and NRC regulations unless there is an immediately effective order 

(resulting from an immediate action determination) prohibiting or constraining fuel 

loading or operation. 

In deciding whether to impose substantive requirements on a licensee as part of 

an immediate action determination, the staff recommends that the NRC 

determine whether such requirements are necessary to provide reasonable 

assurance of adequate protection of the public health and safety during operation 

while the petition is under review. This aligns with the adequate protection 
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standard used for immediately effective orders2 and for interim operation 

decisions. Using the same standard is appropriate because an immediately 

effective order is necessary to require immediate action. Also, immediate action 

determinations are like interim operation decisions to the extent that both are 

used to determine whether the plant is allowed to operate, or whether there 

should be constraints on operation, pending completion of a process to assess 

the validity of an alleged safety issue.3 

If this recommendation is adopted, the NRC should consider the following when 

determining whether immediate actions related to 10 CFR 52.103(f) petitions are 

necessary: 

• Based on the NRC’s assessment of the petition, is there reasonable 

assurance of adequate protection of the public health and safety during 

operation while the petition is under review? 

• Can mitigation measures be taken to preclude potential safety 

consequences while the NRC is reviewing the petition? 

3. Staff Recommendations for Coordinating 10 CFR 2.206 Petitions, 

10 CFR 52.103(f) Petitions, and Petitions for Rulemaking Involving Certified 

Design Material 

The staff recommends that for the period before the 10 CFR 52.103(g) finding, 

the NRC set up a process to coordinate action on 10 CFR 2.206 petitions, 

10 CFR 52.103(f) petitions, and petitions for rulemaking regarding certified 

design material that licensed plants incorporate by reference. Petition processes 

are somewhat more complicated for COLs than for the operating fleet. Before 

the 10 CFR 52.103(g) finding is made, a petition to modify the terms and 

conditions of COLs might be filed under either 10 CFR 2.206 or 

10 CFR 52.103(f). Also, the NRC might receive petitions regarding certified 

 

2 The NRC’s Enforcement Manual, Part I, Section 2.7.2, states that immediately effective orders should 

discuss the NRC’s finding that it “no longer has reasonable assurance that activities will be conducted 

without undue risk to the public's health and safety.” The “without undue risk” and “adequate protection” 

formulations are equivalent. See “Revision of Backfitting Process for Power Reactors” (53 FR 20603, 

20606; June 6, 1988). 

3 In other respects, however, immediate action determinations and the interim operation process are 

different because interim operation decisions occur in the context of an ITAAC hearing and only after the 

Commission has determined that the petitioner has made a prima facie showing of a nonconformance 

with the acceptance criteria that is contrary to reasonable assurance of adequate protection of the public 

health and safety. The 10 CFR 52.103(f) process is not connected to the ITAAC hearing, and no robust 

showing is required to accept a 10 CFR 52.103(f) petition for further review. Thus, in making an 

immediate action determination, the NRC should independently assess the merits of the petitioner’s 

claims rather than follow the interim operation practice, wherein a determination on the merits of the 

prima facie showing is avoided. 
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design information that the licensee has incorporated by reference. Petitions 

regarding certified design information might present a generic challenge to the 

design or might implicate the design only as it applies to a site- or plant-specific 

feature or practice. Moreover, it is possible that a member of the public would file 

a petition in accordance with one process when another process should be 

used.4 Depending on how the petition is filed, different NRC organizations would 

receive or process the petition. The petition might also be filed late in the 

construction period, when there is a greater need for expedited decision making. 

As part of this coordination process, the NRC should promptly perform an initial 

assessment as to the appropriate process for the petition. This initial 

assessment should be made in a centralized fashion, and participants should 

include the NRC organizations that receive and process the various types of 

petitions, including the Office of the General Counsel. The staff recommends 

that it make the initial assessment, consistent with the requested delegations 

discussed herein. Such an integrated process would promote efficient and 

consistent decision making and would be especially beneficial for petitions 

submitted later in the construction period. The alternative of coordinating action 

on an ad hoc basis would result in inefficiency and delay. 

Although the NRC might determine that a petition should be handled through a 

process other than 10 CFR 52.103(f), the petition might also assert that operation 

of a specific facility is unsafe (e.g., a generic challenge to a certified design that 

also challenges operation of a specific facility). Therefore, to the extent that a 

petition addresses safe operation at a specific facility, the staff recommends that 

the 10 CFR 52.103(f) immediate action determination process be applied. This 

recommendation is of particular importance for generic challenges to certified 

designs that should be processed as petitions for rulemaking. Although 

10 CFR 2.802(e) provides that a petitioner may request the suspension of 

adjudicatory proceedings involving licensing pending a decision on a petition for 

rulemaking, the NRC staff does not believe that this remedy is well suited to 

10 CFR Part 52 plants nearing operation. By its terms, 10 CFR 2.802(e) applies 

to licensing, but the 10 CFR 52.103(g) finding is a technical finding, not a 

licensing action. Also, the relevant adjudicatory proceeding would be the ITAAC 

hearing, but ITAAC hearings are limited to conformance with the ITAAC and do 

not encompass challenges to plant design. Further, the AEA directs the NRC to 

complete the ITAAC hearing on an accelerated schedule, which cautions against 

suspending the hearing pending the completion of a process outside the 

hearing’s scope. For these reasons, the 10 CFR 52.103(f) immediate action 

 

4 For example, the NRC might receive a 10 CFR 52.103(f) petition asserting that the certified design 

contains an error, but the Commission has stated a general policy preference for correcting certified 

design errors through rulemaking. See “Licenses, Certifications, and Approvals for Nuclear Power Plants” 

(72 FR 49352, 49382; August 28, 2007). Also, requests to suspend or revoke a COL would be 

cognizable only under 10 CFR 2.206, not 10 CFR 52.103(f). In addition, because the 10 CFR 52.103(f) 

process addresses the commencement of operation, a petition focusing on construction issues should be 

considered as a request for enforcement action under 10 CFR 2.206. 
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determination process seems superior to the 10 CFR 2.802(e) process in the 

context of generic challenges to certified designs referenced by 10 CFR Part 52 

plants nearing operation. 

In applying the 10 CFR 52.103(f) immediate action determination process to 

certified design information, the NRC might decide it is necessary to impose 

additional requirements on a plant-specific basis. A plant-specific order imposing 

requirements on certified design information must meet the requirements of 

10 CFR 52.63(a)(4). This section requires, among other things, a showing that 

the additional requirements are necessary to secure compliance with the 

Commission’s regulations applicable and in effect at the time the certification was 

issued, or to assure adequate protection of the public health and safety or the 

common defense and security. 

4. The Commission Should Delegate 10 CFR 52.103(f) Decisions to the Staff 

The staff recommends that the Commission delegate authority for 10 CFR 

52.103(f) decisions to the staff, consistent with the Commission’s previous 

delegation of the 10 CFR 52.103(g) finding in the SRM on SECY-13-0033. In 

SECY-13-0033, the NRC staff recommended that the 10 CFR 52.103(g) finding 

be delegated to the staff for several reasons: 

• Similarly important decisions are also made by the staff, such as the 

issuance of COLs and operating licenses and the decision on restarting 

North Anna Power Station Units 1 and 2 (ADAMS Accession No. 

ML11308B405) following the August 2011 earthquake. 

• The 10 CFR 52.103(g) finding is the culmination of the staff’s construction 

inspection program and ITAAC notification reviews. 

• There would be practical difficulties associated with the Commission 

making the 10 CFR 52.103(g) finding in support of interim operation given 

the Commission’s role as the ultimate arbiter of contested issues in the 

hearing process. 

In the SRM dated July 19, 2013, the Commission approved the staff’s 

recommendation. In SECY-13-0033, the staff also informed the Commission that 

the NRC’s review of a petition under 10 CFR 52.103(f) needs to be coordinated 

with decisions having the effect of allowing operation, including interim operation. 

The staff believes several benefits may be gained by also delegating the 

authority for 10 CFR 52.103(f) decisions to the staff. Delegating these decisions 

to the staff will (1) promote consistency with the 10 CFR 2.206 process, in which 

the staff makes determinations, (2) ensure coordination with decisions having the 

effect of allowing operation, since the staff will make the 10 CFR 52.103(g) 

finding and implement any Commission decision allowing interim operation, 

(3) align with the Commission’s 10 CFR 52.103(g) delegation to the staff, 

(4) reduce the number of steps in the decision making process, and (5) position 
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the Commission to efficiently focus on other important 10 CFR 52.103 activities 

(e.g., decisions on the hearing request, contentions after the deadline, interim 

operation, and any appeals). 

The staff has the requisite expertise and infrastructure to properly evaluate these 

petitions. This includes established, effective communication protocols with the 

technical and construction inspection staff. Moreover, the Commission will still 

have an opportunity to become involved in the 10 CFR 52.103(f) process. 

Consistent with 10 CFR 2.206, the Commission may exercise its supervisory 

power over the staff or review the staff’s decision. Also, as stated in Yankee 

Atomic Electric Co. (Yankee Rowe Nuclear Power Station), CLI-91-11, 34 NRC 

3, 6 (1991), the Commission may directly rule on the petition if the issues it raises 

are of sufficient public importance. 

Finally, delegation to the staff fully complies with the language of 10 CFR 

52.103(f). Although 10 CFR 52.103(f) states that the Commission will make the 

immediate action determination, 10 CFR 52.1(b) makes 10 CFR Part 52 subject 

to the definitions in 10 CFR 50.2, “Definitions.” “Commission” is defined by 

10 CFR 50.2 as “the Nuclear Regulatory Commission or its duly authorized 

representatives.” Therefore, the Commission can delegate this determination to 

the staff. For these reasons, the staff recommends that decisions on 10 CFR 

52.103(f) petitions be delegated to the staff. 

B. The Commission Should Delegate 10 CFR 52.39(c)(2) Decisions to the Staff 

For reasons similar to those described above, the staff also recommends that the Commission 

delegate authority to the NRC staff for decisions on petitions to modify, suspend, or revoke an 

ESP in accordance with 10 CFR 52.39(c)(2). Delegating authority for 10 CFR 52.39(c)(2) 

petitions to the staff will (1) promote consistency with the 10 CFR 2.206 process, in which the 

staff makes determinations, (2) ensure coordination with decisions having the effect of allowing 

construction, since the staff would be responsible for issuing COLs or construction permits, 

(3) align with the Commission’s 10 CFR 52.103(g) delegation to the staff, and (4) reduce the 

number of steps in the decision making process. 

RECOMMENDATION: 

The NRC staff recommends that the Commission delegate to the staff decisions on petitions 

filed under 10 CFR 52.103(f) for COLs and 10 CFR 52.39(c)(2) for ESPs. The staff also 

recommends that the Commission approve the staff proposals for the 10 CFR 52.103(f) process 

discussed in this paper as follows: 

• The opportunity to file 10 CFR 52.103(f) petitions should begin with license issuance and 

end with the 10 CFR 52.103(g) finding. 

• Immediate action determinations under 10 CFR 52.103(f) should focus on the 

commencement of operational activities prior to a decision on the petition. When 

deciding whether to impose substantive requirements on a licensee as part of an 
The Commissioners - 11 - 

immediate action determination, the NRC should determine whether these requirements 

are necessary for reasonable assurance of adequate protection of the public health and 

safety. 

• For the period before the 10 CFR 52.103(g) finding, the NRC should establish a process 

for coordinating action on 10 CFR 2.206 petitions, 10 CFR 52.103(f) petitions, and 

petitions for rulemaking regarding certified design information that a COL holder 

incorporates by reference. If one of these petitions addresses safe operation at a 

specific facility, the 10 CFR 52.103(f) immediate action determination process should be 

used to address commencement of operational activities pending a decision on the 

petition. 

COORDINATION: 

The Office of the General Counsel has reviewed this paper and has no legal objection. 

 /RA/ 

 Victor M. McCree 

 Executive Director 

 for Operations
The Commissioners - 11 - 

immediate action determination, the NRC should determine whether these requirements 

are necessary for reasonable assurance of adequate protection of the public health and 

safety. 

• For the period before the 10 CFR 52.103(g) finding, the NRC should establish a process 

for coordinating action on 10 CFR 2.206 petitions, 10 CFR 52.103(f) petitions, and 

petitions for rulemaking regarding certified design information that a COL holder 

incorporates by reference. If one of these petitions addresses safe operation at a 

specific facility, the 10 CFR 52.103(f) immediate action determination process should be 

used to address commencement of operational activities pending a decision on the 

petition. 

COORDINATION: 

The Office of the General Counsel has reviewed this paper and has no legal objection. 

 /RA/ 

 Victor M. McCree 

 Executive Director 

 for Operations

ADAMS Accession No. ML16159A251 SECY-012 

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DATE 07/20/16 08/03/16 07/28/16 08/18/16 09/29/16 

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DATE 01/17/17 

OFFICIAL RECORD COPY