The Nuclear Regulatory Commission has issued a long-awaited draft regulatory basis assessing the need to “clarify” 10 CFR Part 21, the agency’s regulation governing the reporting of defects and noncompliances in nuclear components. For several years, the NRC staff has been engaged in an effort to relook at Part 21, resulting from NRC Office of the Inspector General conclusions in 2010 and 2011 that inconsistencies between the regulation and its implementing guidance could cause compliance issues. The draft regulatory basis describes the rationale for simplifying and clarifying the regulation. That rationale has not received universal support among nuclear reactor operators, vendors, and suppliers.

The draft basis document reveals for the first time the NRC staff’s proposal for the comprehensive rewording of the regulations. The draft regulatory basis also captures the principal topics of concern with respect to Part 21 that have been identified over the last few years through the reviews by the NRC staff, NRC Office of Inspector General, and industry discussions with the NRC. The basis discusses regulatory options for addressing each topic, but gives few recommendations as to the preferred option at this point. The NRC staff acknowledges that the industry (through the Nuclear Energy Institute) has submitted proposed guidance that it believes would address the topics of concern. The staff is reviewing that proposal. But the regulatory basis expresses in no uncertain terms the staff’s position that taking no action (i.e., no rulemaking and no updated regulatory guidance) is not acceptable.

We continue to question the little credit that the NRC staff has given to the existing Orange Book (an extensive 1977 Q&A on Part 21, NUREG-0302). The Orange Book, when coupled with additional clarifications such as those in NEI’s proposed guidance, provides extraordinary guidance on Part 21 – delving into wording nuances that are absent from most of today’s guidance. More fundamentally, the industry does not concede that Part 21 implementation has been as difficult as characterized by the NRC. And when considering what the staff is trying to achieve – simplification and clarification – we remain skeptical about new challenges that would inevitably flow from revising the rule. Would we simply be trading off old implementation challenges for new ones (with an enormous expenditure of agency and industry resources)? That concern, on top of the cumulative effects of all of the NRC’s regulations, should give pause when considering moving forward with a wholesale rewrite (aka “clarification”) of Part 21.

In any event, the draft regulatory basis is not the end of the road. The NRC staff plans to host a public meeting to obtain stakeholder feedback.