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###### Nuclear Regulatory Commission

          - [NRC-2009-0365]

# AGENCY:

Nuclear Regulatory Commission.

# ACTION:

Notice of extension of comment period.

# SUMMARY:

                        The U.S. Nuclear Regulatory Commission (NRC) published a notice of opportunity for public comment in the                         **Federal Register**                         (74 FR 42699) on August 24, 2009, proposing to issue a regulatory issue summary (RIS) to clarify the process for making emergency plan changes. This FRN version of the draft Regulatory Issue Summary (RIS) does not include the Attachments and Enclosures as described in the body of the RIS. To view these attachments and enclosures, refer to the NRC's Agencywide Documents Access and Management System (ADAMS), document number                               ( print page 50841)                            ML080710029. The NRC's internal non-concurrence process “Draft Management Directive 10.158, ‘NRC Non-Concurrence Process’,” has been invoked by a member of the NRC staff regarding draft RIS 2005-01, Revision 1. The non-concurrence and supporting information is publically available through ADAMS Accession No. ML092250622.                    

# DATES:

The public comment period ends on October 8, 2009. This notice announces a fifteen-day extension of the public comment period until October 23, 2009. Comments submitted after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except for comments received on or before this date.

# ADDRESSES:

You may submit comments by any one of the following methods. Please include Docket ID NRC-2009-0365 in the subject line of your comments. Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site Regulations.gov. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed.

The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.

*Federal Rulemaking Web Site:*                         Go to                         *http://www.regulations.gov*                         and search for documents filed under Docket ID NRC-2009-0365. Address questions about NRC dockets to Carol Gallagher 301-492-3668; e-mail                         *Carol.Gallagher@nrc.gov*.                    

*Mail comments to:*                         Michael T. Lesar, Chief, Rulemaking and Directives Branch (RDB), Division of Administrative Services, Office of Administration, Mail Stop: TWB-05-B01M, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by fax to RDB at (301) 492-3446.                    

# FOR FURTHER INFORMATION CONTACT:

                        Don A. Johnson at 301-415-4040 or by e-mail at                         *don.johnson@nrc.gov*.                    

# SUPPLEMENTARY INFORMATION:

## NRC Regulatory Issue Summary 2005-02, Revision 1; Clarifying the Process for Making Emergency Plan Changes

### Addressees

All holders of licenses for nuclear power reactors under the provisions of Title 10 of the Code of Federal Regulations (10 CFR) Part 50, “Domestic Licensing of Production and Utilization Facilities,” including those that have permanently ceased operations and have certified that fuel has been permanently removed from the reactor vessel.

All holders of licenses for research and test reactors under Part 50.

All holders of and applicants for nuclear power plant construction permits, early site permits and limited work authorizations under Part 50.

All holders of a combined license for a nuclear power plant under the provisions of  10 CFR Part 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants.”

All holders of licenses for fuel facilities under the provisions of 10 CFR Part 40 “Domestic Licensing of Source Material” required to have an emergency plan under § 40.31(j)(1)(ii).

All holders of licenses for fuel facilities under the provisions of 10 CFR Part 70 “Domestic Licensing of Special Nuclear Material” required to have an emergency plan under § 70.22(i)(1)(ii).

All holders of certifications for gaseous diffusion plants under the provisions of 10 CFR Part 76 “Certification of Gaseous Diffusion Plants” required to have an emergency plan under § 76.35(f).

All holders of site-specific licenses for Independent Spent Fuel Storage Installations under 10 CFR Part 72 “Licensing Requirements for the Independent Storage of Spent Nuclear Fuel and High-Level Radioactive Waste, and Reactor-Related Greater Than Class C Waste.”

### Intent

The U.S. Nuclear Regulatory Commission (NRC) is issuing this regulatory issue summary (RIS) revision to inform stakeholders that reactor emergency plan changes that require prior NRC approval, in accordance with 10 CFR 50.54(q), will need to be submitted as license amendment requests in accordance with 10 CFR 50.90, “Application for Amendment of License, Construction Permit, or Early Site Permit.” In addition, this revision will (1) clarify the meaning of “decrease in effectiveness”, as stated in 10 CFR 50.54(q); (2) clarify the process for evaluating proposed changes to emergency plans; (3) provide a method for evaluating proposed changes to emergency plans; (4) provide clarifying guidance on the appropriate content and format of applications submitted to the NRC for approval prior to implementation; and (5) clarify what constitutes a report of emergency plan changes to be submitted to the NRC in accordance with 10 CFR 50.54(q). This revision supersedes RIS 2005-02, dated February 14, 2005, in its entirety due to the extent of changes.

                    (1) For non-reactor facilities, the regulations in 10 CFR 40.35(f), 70.32(i), and 76.91(o) provide direction to licensees seeking to revise their emergency plan. An emergency plan includes the plan as originally approved by the NRC and all subsequent changes made by the licensee with, and without, prior NRC review and approval under these regulations. The current practice for non-reactor facilities concerning emergency plan changes that require prior NRC approval is to submit the changes as a license amendment request. Current regulatory guidance for non-reactor emergency plans is contained within Regulatory Guide 3.67, “Standard Format and Content for Emergency Plans for Fuel Cycle and Materials Facilities.” The NRC staff is working on updating Regulatory Guide 3.67 to include applicable elements of this RIS for fuel cycle facilities. The NRC will publish a                     **Federal Register**                     Notice of the issuance for public comment and availability of the draft updated Regulatory Guide.                

(2) For Independent Spent Fuel Storage Installations (ISFSI), the emergency plan change process should be followed in accordance with 10 CFR 72.44(f). The information in this RIS provides useful examples of the type of evaluations NRC expects ISFSI licensees to conduct in reviewing changes to their Part 72 approved emergency plans (refer to § 72.24(k) and § 72.32) and determining if the changes may be made without prior NRC approval as required by § 72.44(f). The current practice for non-reactor facilities concerning emergency plan changes that require prior NRC approval is to submit the changes as a license amendment request. Additional guidance on emergency planning for ISFSI licensees is provided in Spent Fuel Storage and Transportation Interim Staff Guidance-16, “Emergency Planning.”

This RIS revision requires no action or written response on the part of addressees.

### Background Information

                    The regulation in 10 CFR 50.54(q) provides direction to licensees seeking to revise their emergency plan. The                           ( print page 50842)                        requirements related to nuclear power plant emergency plans are given in the standards in 10 CFR 50.47, “Emergency Plans,” and the requirements of Appendix E, “Emergency Planning and Preparedness for Production and Utilization Facilities” to 10 CFR Part 50. The standards in § 50.54(q) and Appendix E to Part 50 also establish the requirements related to emergency plans for research and test reactors. Based upon feedback from the nuclear power industry, the research and test reactor community, and experience gained by the NRC staff after reviewing emergency plan changes, the NRC staff has identified a need to clarify the process for making changes to an emergency plan and to provide licensees with a consistent method for evaluating proposed emergency plan changes.                

                    In addition, the NRC staff clarifies herein that the license amendment process is the correct process to use when reviewing decrease (reduction) in effectiveness submittals. Courts have found that Commission actions that expand licensees' authority under their licenses without formally amending the licenses constitute license amendments and should be processed through the Commission's license amendment procedures.                     *See Citizens Awareness Network, Inc.*                     v.                     *NRC,*                     59 F.3d 284 (1st Cir. 1995);                     *Sholly*                     v.                     *NRC,*                     651 F.2d 780 (DC Cir. 1980) (                    *per curiam*), vacated on other grounds, 459 U.S. 1194 (1983); and In re Three Mile Island Alert, 771 F.2d 720, 729 (3rd Cir. 1985), cert. denied, 475 U.S. 1082 (1986).                     *See also*                     Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-96-13, 44 NRC 315 (1996). A proposed emergency plan change that would reduce the effectiveness of the plan would give the licensee a capability to operate at a level of effectiveness that was not previously authorized by the NRC. In this situation, the licensee's operating authority would be expanded beyond the authority granted by the NRC as reflected in the emergency plan without the proposed change. Thus, an emergency plan change that would reduce the effectiveness of the plan would expand the licensee's operating authority under its license. A change expanding the licensee's operating authority is, according to the courts, a license amendment and must be accomplished through a license amendment process.                

The staff also stated in SECY-08-0024, “Delegation of Commission Authority to Staff to Approve or Deny Emergency Plan Changes that Represent a Decrease in Effectiveness,” dated February 25, 2008, “To make the process by which the NRC will address proposed 10 CFR 50.54(q) changes that represent a decrease in effectiveness clearer, the staff intends to incorporate language similar to that which currently exists in 10 CFR 50.54(p)(1), as part of the planned rulemaking.” The current schedule for the staff's emergency preparedness (EP) rulemaking calls for the final rule to be issued no earlier than the summer of 2010. Because of the timeframe associated with the rulemaking, the staff has determined that the prudent action is to issue a RIS to clarify that licensees must submit proposed emergency plan changes which represent a decrease in effectiveness for NRC approval as specified in § 50.54(q), and the license amendment process is the correct process for the staff to use in reviewing the proposed change. For purposes of discussion and to incorporate the possibility of future regulatory changes, the term “decrease in effectiveness” is considered synonymous with “reduction in effectiveness (RIE).”

### Summary of Issue

Licensees routinely evaluate proposed revisions to their emergency plan, to determine if these changes reduce the effectiveness of their current approved emergency plan or adversely affect their ability to implement the emergency plan. Clarification is needed of an acceptable method for licensees to use in consistently evaluating proposed changes to the emergency plan to ensure the licensee's ability to maintain and implement the approved emergency plan. Additionally, licensees should understand the process for submitting proposed emergency plan changes to the NRC for approval prior to implementation when there is a determination of a decrease (reduction) in effectiveness.

The change process is described below and clarified by providing a screening criterion that would ensure consistency of emergency plan change determinations of a decrease (reduction) in effectiveness. Enclosure 1, “10 CFR 50.54(q) Evaluation Procedure,” presents a suggested outline for applying the screening criteria for the evaluation of a proposed emergency plan change, which is graphically depicted in Attachment 1 to Enclosure 1, “10 CFR 50.54(q) Flowchart.” In addition, Enclosure 2, “Guidance for Content of Emergency Plan Submittals to NRC Requiring Prior NRC Approval,” provides guidance to licensees in the development of their application for NRC prior approval of proposed emergency plan changes. The information in this RIS revision clarifies the process for changing emergency plans to ensure that licensees maintain effective emergency plans thereby maintaining reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. This RIS revision also provides a consistent methodology for licensees to evaluate changes to their emergency plans and provides clarifying guidance for the development of applications for NRC prior approval. This will help ensure that NRC review activities and decisions are effective, efficient, predictable, and consistent.

The regulations require licensees to submit a report of each change within a specified period of time after the change is made. The NRC Inspectors use this report to evaluate the effectiveness of a licensee's emergency plan change management program in accordance with NRC Inspection Procedures, and although not required, the inclusion of the applicable licensee evaluation and justification for the change as part of this report would be beneficial to the staff.

#### Regulation

In part, 10 CFR 50.54(q) states the following:

The nuclear power reactor licensee may make changes to these plans without Commission approval only if the changes do not decrease the effectiveness of the plans and the plans, as changed, continue to meet the standards of § 50.47(b) and the requirements of appendix E to this part. The research reactor and/or the fuel facility licensee may make changes to these plans without Commission approval only if these changes do not decrease the effectiveness of the plans and the plans, as changed, continue to meet the requirements of appendix E to this part * * *. Proposed changes that decrease the effectiveness of the approved emergency plans may not be implemented without application to and approval by the Commission.

#### Definitions

(1) Decrease (Reduction) in Effectiveness (RIE).

(a) 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.

                    (i) Note that other licensee activities could affect the ability to implement the emergency plan effectively. Licensees must maintain the effectiveness of their NRC approved emergency plans, up to and including ensuring that changes made to other programs, structures,                           ( print page 50843)                        systems or components do not adversely impact the licensee's ability to effectively implement its emergency plan.                     *See*                     Information Notice 2005-19, “Effect of Plant Configuration Changes on the Emergency Plan,” dated July 18, 2005, for additional information.                

(1) An RIE will occur if there is a change or reduction in an emergency planning function without a commensurate reduction or change in the bases for that emergency planning function or without measures put in place to reduce the impact of the proposed change to the emergency plan. The overall impact of proposed changes on the effectiveness of the emergency plan or its implementation is to be determined, not just the effect that individual changes have on a specific part of the emergency plan.

(2) The following provides some examples of RIEs that would require prior NRC approval without a commensurate reduction or change in the bases for that emergency planning function or without measures put in place to reduce the impact of the proposed change to the emergency plan. These examples should not be viewed as being all-inclusive or exclusive; rather, licensees should use them to inform decisions involving various changes being considered. It is also possible that site-specific situations may make a particular example inapplicable to a site. Even if a particular example completely encompasses the change being considered, the licensee's emergency plan change evaluation should explain why the site-specific implementation of the change would not be an RIE for that particular site. It is not sufficient for such an analysis to simply cross-reference an example in this RIS revision.

(a) A change that would cause any of the major functional areas or major tasks identified in the emergency plans to be unassigned. An example of this would be a technical specification change eliminating on-shift radiation technician coverage without making an alternative arrangement for providing the requisite technical expertise in a timely manner.

(b) A change that would impede site access for offsite assistance relied on in the plan without viable alternate arrangements being made. An example would be the closure or planned closure of a major river bridge in a case where the route via the nearest available crossing would incur a substantial increase in response time.

(c) A change to the emergency response organization (ERO) callout procedures or hardware that would delay ERO notification such that the augmentation times in the emergency plans can no longer be achieved. A change to communications hardware that would reduce the capability to initiate and complete required emergency notifications within 15 minutes of the emergency declaration.

(d) A change to the onsite meteorological measurements program such that meteorological data currently readily available in emergency response facilities in accordance with the emergency plan would no longer be readily available.

(e) A change to hazard assessment and radiation protection assignments in re-entry and recovery procedures that would not provide an adequate level of personal protection in uncertain reentry conditions.

                    (f) A change that reduces the availability of site familiarization training currently presented to offsite assistance groups (                    *e.g.,*                     firefighters, local law enforcement, and medical services, including mutual aid companies that would support these groups).                

                    (g) A change that delegates the responsibility for performance of various aspects of emergency plan maintenance to contractors or other external groups without adequate supervisory oversight to ensure that program elements continue to be met (                    *e.g.,*                     a change delegating testing and maintenance of the Alert and Notification System to an external group not subject to typical nuclear facility work process and configuration controls).                

                    (3) For proposed changes to individual emergency action levels (EALs) (                    *i.e.,*                     not an entire EAL scheme change), an RIE will occur in the following cases:                

                    (a) The proposed change to the EAL would potentially cause an underclassification, (                    *e.g.,*                     what was considered an Alert in the approved emergency plan would now be considered an Unusual Event or not classified at all).                

                    (b) The proposed change to the EAL would potentially cause an overclassification, (                    *e.g.,*                     what was considered a Site Area Emergency in the approved emergency plan would now be considered a General Emergency with potential consequences for public health and safety).                

(c) If the proposed change to the EAL is to change an Initiating Condition setpoint (or threshold) without a commensurate change in the regulatory basis for the EAL Initiating Condition setpoint (or threshold).

(d) The actual numerical setpoint of a given EAL may be revised without prior NRC approval under the following conditions via the 10 CFR 50.54(q) emergency plan change process:

(i) The regulatory basis for the EAL setpoint has been revised and is approved via a letter to the licensee or a Safety Evaluation (SE). For example, a site receives NRC approval (via a SE) for power up-rate. Power up-rate implementation causes the “normal” radiation levels to increase, thus necessitating an increase in EAL setpoints based on “normal” radiation levels. The regulatory basis for the setpoint has been changed, thus this change can be processed via the emergency plan change process because the effectiveness of the emergency plan has not been reduced.

(ii) The regulatory basis for the EAL setpoint has not been changed but the method for detection of the setpoint has been changed. For example, a given EAL setpoint is based upon exceeding 1 Rem total effective dose equivalent (TEDE). The radiation monitor reading setpoint is based upon a reading that would give the equivalent of exceeding 1 Rem TEDE. The radiation monitor is replaced and operates differently. The actual numerical value of the EAL needs to be revised to that which is equivalent to 1 Rem TEDE. The regulatory basis for the setpoint has not been changed, thus this change can be processed via the emergency plan change process as the effectiveness of the emergency plan has not been reduced.

(2) Emergency plan.

(a) The document(s) prepared and maintained by the licensee that identify and describe the licensee's methods for maintaining and performing emergency planning functions. An emergency plan includes the plans as originally approved by the NRC and all subsequent changes made by the licensee with, and without, prior NRC review and approval under 10 CFR 50.54(q).

(i) The licensee's emergency plan consists of:

(1) The emergency plan as approved by the NRC via a Safety Evaluation Report, SE, or license amendment (LA) from the Office of Nuclear Reactor Regulation (NRR) or the Office of Federal and State Materials and Environmental Management Programs (FSME).

(2) Changes to the emergency plan explicitly reviewed by the NRC through an SE, or LA from NRR or FSME, and found to meet the applicable regulations.

                    (3) Changes to the emergency plan explicitly reviewed by the NRC through an SE, or LA, and found to be an approved amendment to the licensee's emergency plan.                          ( print page 50844)    

(4) Changes made by the licensee without NRC review and approval after the licensee concluded that the change(s) do not constitute a RIE.

#### Emergency Plan Change Process

#### 1. Process Overview

Reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency is based on the licensee's emergency plan, and the successful implementation of that emergency plan. The body of an emergency plan contains statements that describe how a licensee will meet regulatory requirements. The standards of 10 CFR 50.47(b) and the requirements of Appendix E to 10 CFR Part 50 establish the contents of the nuclear power reactor emergency plan. The standards in § 50.54(q) and Appendix E to Part 50 establish the requirements related to emergency plans for research and test reactors. Subsequent changes to the emergency plan must comply with § 50.54(q). Enclosure 1 outlines the emergency plan change process, and Attachment 1 to Enclosure 1 graphically depicts the process in a flowchart.

#### 2. Emergency Plan Review

Changes to an emergency plan may result from advances in technology, new or revised rules, site-specific needs, processes, guidance (such as Nuclear Energy Institute guidance endorsed by the NRC), technical specification changes, or modifications to instrumentation. Changes that the licensee has identified as RIEs must be submitted to the NRC for review and prior approval. The NRC staff will review the emergency plan change against the standards, regulations, guidance documents and the approved emergency plan. The NRC will review and approve submittals on a case-by-case basis. An emergency plan change approved for one licensee does not mean that the same or similar change would be approved for another licensee.

For the purposes of determining whether a change to a licensee's emergency plan constitutes an RIE, the licensee should use the last emergency plan reviewed and approved by the NRC. If the emergency plan change process has been properly implemented over the years, comparing a proposed emergency plan change to either the latest emergency plan reviewed and approved by the NRC or the emergency plan as changed by the licensee should result in the same RIE determination. For example, if a licensee made a series of changes over time to the same specific provision of the emergency plan, where each change was separately determined not to constitute an RIE, then there should be no RIE. Therefore, there should be no RIE when comparing the latest emergency plan to the emergency plan reviewed and approved by the NRC. If a licensee or the NRC concludes that there is a RIE due to a series of changes over time, then the provisions of the emergency plan change process have not been correctly followed.

The EP requirements are a framework for how the licensee will meet the applicable standards and requirements of the regulations. If a licensee has determined that an EP requirement should be increased in order to meet the planning standards or Appendix E to Part 50 requirements, these changes must follow the emergency plan change process and revise the emergency plan to reflect this increase to the EP requirement. Nevertheless, whether or not an emergency plan change results in a RIE is not determined by assessing whether NRC regulatory requirements continue to be met after the EP requirement has been changed. The licensee's emergency plan may include EP requirements that exceed the baseline standards and requirements as set forth in § 50.47(b) and Appendix E to Part 50. For the RIE determination, the change or changes should be evaluated against the capability to perform the functions and the associated time requirement of performing the function, if applicable. The evaluation should document whether the capability or timeliness to perform a function is lost and/or degraded. In addition to the RIE determination, the change or changes should also be evaluated to verify that they continue to meet the standards and requirements as set forth in § 50.47(b) and Appendix E to Part 50.

The current Commission requirements for document retention in § 50.54(q), specify that changes that do not warrant NRC approval must be retained for 3 years. The licensee must retain changes that reduce the effectiveness of the emergency plan until the Commission terminates the license. It may be prudent to save emergency plan change documentation to show the historical progression of changes, since the Commission, through its staff, may review at any time, the emergency plan changes that have been made.

#### Related Topics Regarding Emergency Plan Changes

#### 1. Regulatory Process for Evaluating Licensee Requests for NRC Prior Approval of Emergency Plan Changes Determined To Be a RIE in Accordance With 10 CFR 50.54(q)

Similar to security plan changes submitted via 10 CFR 50.54(p)(1), emergency plan changes that result in the reduction in the effectiveness of the approved emergency plan require prior NRC approval, under § 50.54(q), and should be submitted as license amendment requests under § 50.90.

#### 2. Emergency Action Level Changes

                    A revision to an entire EAL scheme, from NUREG-0654, “Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants,” to another NRC-endorsed EAL scheme, must be submitted for prior NRC approval as specified in Section IV.B. of Appendix E to 10 CFR Part 50. The Statement of Considerations for the final rule amending the NRC's regulations relating to NRC approval of EAL changes, dated January 26, 2005, stated in part, “The Commission believes a licensee's proposal to convert from one EAL scheme (                    *e.g.,*                     NUREG-0654-based) to another EAL Scheme (NUMARC/NESP-007 or NEI 99-01 based)  * * *  is of sufficient significance to require prior NRC review and approval. NRC review and approval for such major changes in EAL methodology is necessary to ensure that there is reasonable assurance that the final EAL change will provide an acceptable level of safety.” Regulatory Guide 1.101, Revisions 3 and 4, “Emergency Planning and Preparedness for Nuclear Power Reactor,” endorsed NUMARC/NESP-007 and NEI 99-01 EAL guidance, respectively, as acceptable alternatives to the guidance provided in NUREG-0654 for development of EALs to comply with § 50.47 and Appendix E to Part 50. A change in an EAL scheme to incorporate the improvements provided in NUMARC/NESP-007 or NEI 99-01 would not decrease the overall effectiveness of the emergency plan and would not expand a licensee's operating authority beyond that previously authorized by NRC, but due to the potential safety significance of the change, the change needs prior NRC review and approval. This approval is given via SE and letter.                

                    Revisions of an individual EAL that results in a decrease in effectiveness must be submitted for NRC approval as specified in § 50.54(q), and the license                           ( print page 50845)                        amendment process is the correct process for the staff to use in reviewing the proposed change. As discussed previously, an emergency plan change that would reduce the effectiveness of the plan would expand the licensee's operating authority under its license. A change expanding the licensee's authority is, according to the courts, a license amendment and must be accomplished through a license amendment process. For research and test reactors, NUREG-0849, “Standard Review Plan for the Review and Evaluation of Emergency Plans for Research and Test Reactors,” issued October 1983, provides guidance on EALs and how changes should be made on a case-by-case basis with consideration of the provisions of § 50.54(q).                

#### 3. Inspection Activities

For power reactors, the NRC inspectors use Inspection Procedure (IP) 71114.04 to conduct a review of the effectiveness of the licensee's implementation of the 10 CFR 50.54(q) change process. For research and test reactors, the NRC inspectors use IP 69011, “Class I Research and Test Reactor Emergency Preparedness,” and IP 69001, “Class II Research and Test Reactors.” The inspector will perform a screening review of the change relative to the emergency plan; however, this will not constitute NRC approval of the plan as changed.

The documentation of the change reviewed by the inspectors will be the report provided by the licensee as stated in § 50.54(q). Although not required, the inclusion of the applicable licensee evaluation and justification for the change as part of this report would assist the staff in the review.

#### 4. Lower Tier Documents

If a licensee has incorporated a lower tier document into the emergency plan or the emergency plan explicitly references a lower tier document as a method to implement a specific requirement in the emergency plan, then, it is considered part of the plan and subject to § 50.54(q) review. Historically, some licensees have developed emergency plan implementing procedures that included the necessary information needed for activities that are required to meet the regulations, for example, procedures for notifications, dose assessment, protective action recommendations, emergency classifications and emergency action levels. The staff is not making the use of § 50.54(q) to review all changes to lower tier documents a requirement, but acknowledges that using § 50.54(q) as the regulation to provide revision control of these lower tier documents has been in place and supported by the NRC through the inspection and licensing process.

### Backfit Discussion

This RIS revision does not require any action or written response. This RIS revision provides non-regulatory review guidance for licensees and clarifies existing regulatory requirements licensees must follow when proposing changes to their emergency plans. The NRC's Backfit Rule, 10 CFR 50.109, applies to, among other things, the procedures necessary to operate a nuclear power plant. To the extent that using a license amendment process for making modifications to emergency plans that reduce the effectiveness of the plans is considered a change, it would be a change to the NRC's regulatory process for addressing modifications to the emergency plan. The NRC's regulatory review process is not a licensee procedure required for operating a plant that would be subject to backfit limitations.

Further, the Backfit Rule protects licensees from Commission actions that arbitrarily change license terms and conditions. In 10 CFR 50.54(q), a licensee requests Commission authority to do what is not currently permitted under its license. The licensee has no valid expectations protected by the Backfit Rule regarding the means for obtaining the new authority that is not permitted under the current license. For these reasons, this RIS revision does not constitute a backfit under 10 CFR 50.109, and the staff did not perform a backfit analysis.

### Federal Register Notification

To be done after the public comments periods.

### Paperwork Reduction Act Statement

                    This RIS revision does not contain information collections and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501*et seq*.).                

## Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid Office of Management and Budget control number.

### Contact

                    Please direct any questions about this matter to Don A. Johnson at (301) 415-4040, or by e-mail:                     *don.johnson@nrc.gov*.                

## End of Draft Regulatory Issue Summary

                    Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,                     *http://www.nrc.gov/​NRC/​ADAMS/​index.html*. If you do not have access to ADAMS or if you have problems in accessing the documents in ADAMS, contact the NRC Public Document Room (PDR) reference staff at 1-800-397-4209 or 301-415-4737 or by e-mail to                     *pdr@nrc.gov*.                

Dated at Rockville, Maryland, this 24th day of September 2009.

For the Nuclear Regulatory Commission.

Martin C. Murphy,

Chief, Generic Communications Branch, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation.

[FR Doc. E9-23683 Filed 9-30-09; 8:45 am]

BILLING CODE 7590-01-P