[Federal Register Volume 64, Number 207 (Wednesday, October 27, 1999)]
[Rules and Regulations]
[Pages 57769-57774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28049]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 64, No. 207 / Wednesday, October 27, 1999 /
Rules and Regulations
[[Page 57769]]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 71
RIN 3150-AF58
Fissile Material Shipments and Exemptions; Response to Comments
and Request for Information
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule: Response to public comments and request for
information.
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SUMMARY: The Nuclear Regulatory Commission (NRC) published on February
10, 1997; 62 FR 5907, an emergency final rule which amended its
regulations regarding the shipment of exempt quantities of fissile
material and the shipment of fissile material under a general license.
The NRC issued the emergency final rule without a notice of proposed
rulemaking and the accompanying opportunity for public comment prior to
the rule's finalization, because NRC found good cause to dispense with
these steps as being impracticable and contrary to the public interest,
as permitted under the Administrative Procedure Act. Notwithstanding
the final status of the rule, NRC solicited public comments on the rule
during a 30-day comment period following publication in accordance with
the Commission's regulations. This notice contains the NRC response to
public comments received on the rule. These comments essentially stated
that the emergency rule, although needed for shipments with special
moderators, caused an unnecessary economic burden to shippers of
fissile material exempt and general licensed shipments that use water
as the moderator. In order to quantify any unintended economic impact
caused by the emergency rule, the NRC is requesting information on the
costs of implementing the emergency final rule.
DATES: The final rule became effective February 10, 1997. Comments on
the costs associated with shipments of fissile material made under the
fissile material exemption and general license provisions of Part 71
are requested by January 10, 2000.
ADDRESSES: Comments on the costs associated with shipments of fissile
material made under the fissile material exemption and general license
provisions of Part 71 should be sent to: Secretary, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001; Attn: Rulemakings and
Adjudications Staff. Hand deliver comments to 11555 Rockville Pike,
Rockville, MD, between 7:30 am and 4:15 p.m. on Federal workdays.
You may also provide comments via the NRC's interactive rulemaking
web site (http://ruleforum.llnl.gov). This site provides the
availability to upload comments as files (any format) if your web
browser supports that function. For information about the interactive
rulemaking site, contact Ms. Carol Gallagher, (301) 415-5905; e-mail
[email protected].
Certain documents related to the emergency final rule, including
comments received by the NRC on the costs associated with shipments of
fissile material made under the fissile material exemption and general
license provisions of Part 71, may be examined at the NRC Public
Document Room, 2120 L Street NW., (Lower Level), Washington, DC. These
same documents also may be viewed and downloaded electronically via the
interactive rulemaking website established by NRC for the emergency
final rule.
FOR FURTHER INFORMATION CONTACT: Naiem S. Tanious, Office of Nuclear
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, telephone (301) 415-6103, e-mail
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On February 10, 1997; 62 FR 5907, the NRC published an emergency
final rule to expeditiously correct a defect in its fissile material
regulations, that was discovered 5 months earlier by Babcock & Wilcox,
Naval Nuclear Fuel Division (B&W). B&W, an NRC licensee, had notified
the NRC by telephone on September 11, 1996, that it had discovered that
the NRC and the U.S. Department of Transportation (DOT) regulations (10
CFR 71.53 and 49 CFR 173.453, respectively) on fissile exempt shipments
did not provide adequate criticality safety for certain shipments of
fissile material 1 (enriched uranium containing beryllium
oxide.) Specifically, B&W demonstrated through calculations that a
shipment, containing large amounts of an exempt concentration of
enriched uranium in the presence of beryllium, intended to be shipped
pursuant to the then existing 10 CFR 71.53(d), could result in a
nuclear criticality.2 B&W indicated that a beryllium oxide-
enriched uranium mixture would be produced as a waste product from its
processing of strategic material resulting from operations to
commercially downblend weapons-usable fissile material from the former
Soviet Union. B&W promptly notified the NRC of its concern, provided
its calculations to the NRC, and made commitments not to make any such
shipments. The NRC staff subsequently reviewed and verified B&W's
calculations and determined that expeditious revisions to NRC
regulations were needed to correct the deficiency because an
inadvertent nuclear criticality in the public domain could involve
fatalities, health effects from the resulting radiation exposures, and
extensive cleanup costs.
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\1\ Fissile is defined in 10 CFR Part 71 and 49 CFR Part 173 as:
plutonium-238, plutonium-239, plutonium-241, uranium-233, uranium-
235, or any combination of these radionuclides. Packages used for
shipment of materials containing these radionuclides must meet
specific standards and operating limits designed to preclude nuclear
criticality during transport, unless excepted by specific
regulations (e.g., 10 CFR 71.53 or 49 CFR 173.453).
\2\ For transportation purposes, nuclear criticality means a
condition in which an uncontrolled, self-sustaining and neutron-
multiplying fission chain reaction occurs. Nuclear criticality is
generally a concern when sufficient concentrations and masses of
fissile material and neutron moderating material exist together in a
favorable configuration. The neutron moderating material cannot
achieve criticality by itself in any concentration or configuration.
It can enhance the ability of fissile material to achieve
criticality by slowing down neutrons or reflecting neutrons.
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The NRC also brought this problem immediately to the attention of
the DOT and the U.S. Department of Energy (DOE). The DOT is a
coregulator of fissile material shipments, and the DOE makes many
shipments of fissile exempt
[[Page 57770]]
material each year. The NRC informed the DOT of its intent to issue an
emergency final rule. The DOT decided to defer any rulemaking until DOT
staff could review the public comments on the NRC's emergency final
rule.
The criticality safety problem brought to NRC's attention with
respect to Sec. 71.53 caused the NRC staff to review Part 71 to
determine whether any other provisions of this part might be similarly
deficient. The general licenses in Secs. 71.18 and 71.22 provide for
criticality control by limiting the quantity of fissile material in a
single package (i.e., similar to the quantity-based fissile exemptions
in Sec. 71.53). Section 71.18 (General license: Fissile material,
limited quantity per package) also assigns a criticality transport
index 3 (pursuant to Sec. 71.4) to each package. These
sections were found to have deficiencies comparable to those discovered
in Sec. 71.53, where there were no restrictions placed on special
moderating materials (i.e., materials which would increase the number
of neutrons available to cause fission as compared with ordinary water.
Section 71.22 (General license: Fissile material, limited quantity,
controlled shipment) had the additional deficiency of not limiting the
total amount of fissile material in a conveyance. During the NRC
staff's review, Secs. 71.20 and 71.24, which also provide general
licenses, were found to be adequate in that the moderators of concern
were excluded.
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\3\ Transport index is defined in 10 CFR Part 71 as: the
dimensionless number (rounded to the next tenth) placed on the label
of a package, to designate the degree of control to be exercised by
the carrier during transportation. For a fissile material package,
the transport index is considered to be the larger of two numbers:
the first is for external radiation control and is calculated based
on the maximum radiation level at one meter from the external
surface of the package, and the second is for criticality control
purposes and is calculated based on the allowable number of packages
stacked together during transportation.
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Packages for shipments made in accordance with a fissile material
exemption in Sec. 71.53 or the general license in Sec. 71.18 or
Sec. 71.22, are not required to be certified by the NRC. The intent of
Secs. 71.53, 71.18, and 71.22, is that any materials packaged and
shipped in accordance with the limits in these sections (and the other
applicable sections of 10 CFR Part 71 and 49 CFR Part 173) were
inherently safe (incapable of an inadvertent criticality). The B&W
analyses demonstrated that a deficiency existed in these requirements.
The safety problem uncovered by the B&W calculations, and verified
by the NRC, involved quantities, geometries, and concentrations of
fissile materials and moderators that could result in criticality when
shipped in compliance with sections of the regulations for which
criticality analyses are not required. Fissile exemptions in Sec. 71.53
and the general licenses in Secs. 71.18 and 71.22, were originally
based on the assumption that water is the only moderator that might be
present in fissile exempt shipments. In these cases, these rules
provide inherent criticality safety without a need for shippers to
perform separate analyses. However, some moderators (herein referred to
as special moderating materials) can increase the number of neutrons
available to cause fission as compared to ordinary water and result in
the potential for criticality in shipments where these moderators are
present, even though the shipments are in compliance with 10 CFR 71.53
and 49 CFR 173.453.
When the issue was identified to the NRC in September 1996, the
presence of special moderating materials in significant quantities in
NRC-regulated shipments of fissile exempt materials had not been
anticipated. However, certain international initiatives, including
efforts to reduce stockpiles of strategic weapons material by
processing for commercial use, have resulted in the greater likelihood
of inclusion of these materials in NRC regulated shipments. The
materials proposed to be shipped by B&W resulted from such a source.
B&W had been awarded a contract to process weapons-usable enriched
uranium materials from the Republic of Kazakstan. The waste product of
the processing, a uranium-beryllium filtercake, met the fissile
exemption provisions in then existing 10 CFR 71.53(d) and 49 CFR
173.453(d). However, B&W used a computer model of the enriched uranium-
beryllium oxide waste packages to demonstrate that, if the packages
were loaded for shipment into a sea-land container at the regulatory
fissile exempt concentration limit, adequate confidence in nuclear
criticality safety would not have been provided. NRC had verified
through independent analyses that the concerns raised by the B&W
analysis were valid and apply to other geometries and moderating
characteristics as well. To avoid inadvertent criticality, the NRC
determined that it was necessary to restrict shipments of fissile
material with three special moderating materials: beryllium, graphite,
and deuterium.
However, the NRC concluded that limiting beryllium, graphite, and
deuterium to trace quantities would not completely eliminate the
possibility of criticality in fissile exempt or generally licensed
shipments. There was also a need to limit the quantity of material in a
single consignment (the B&W criticality model calculations were
performed using 200-centimeter high infinite slab configuration). The
problem of a lack of control on the total amount of fissile exempt
material in an exempt shipment was originally identified during the
revision process for the 1996 Edition of the International Atomic
Energy Agency's (IAEA's) ``Regulations for the Safe Transport of
Radioactive Material,'' Safety Requirement No. ST-1. The problem was
addressed in ST-1 by adopting a consignment limit on the amount of
fissile exempt material that a shipper could transport as a private
carrier (400g for Uranium-235, and 250g for other fissile material), or
deliver to a common carrier for shipment. Before the emergency final
rule, the NRC could not enforce a limit on the total quantity of
fissile material in a common carrier shipment because the regulations
did not require a transport index for each package or require shipment
by exclusive use. The latter would restrict the ability to use common
carriers, while requiring a transport index would negate much of the
advantage gained by the exemption. Consignment limits are enforceable
and represent a practical operating limit that would prevent the
potentially unsafe accumulation of fissile exempt materials during
shipment.
The NRC addressed these regulatory defects by issuing the emergency
final rule in February 1997. The final rule amended Secs. 71.18, 71.22,
and 71.53 by restricting the quantity of fissile material in a
shipment--if trace quantities of special moderating materials (i.e.,
beryllium, graphite, or deuterium) were present. The final rule also
restricted the quantity of fissile material shipped under a general
license or exempt shipment to a consignment limit of no greater than
400 grams.
The NRC issued the emergency final rule without a notice of
proposed rulemaking and opportunity for public comment prior to
finalization because the Commission found good cause for dispensing
with these steps as being impracticable and contrary to the public
interest under the good cause tests for omitting notice and comment of
the Administrative Procedure Act (5 U.S.C. 553(b)(B)). Notwithstanding
the final status of the rule, the Commission solicited public comments
on the final rule during a 30-day comment period following publication
of the rule, in accordance with the provisions of 10 CFR 2.804(e). The
Commission stated
[[Page 57771]]
that it would publish a statement in the Federal Register containing an
evaluation of the significant comments received and any revisions to
the rule to be made as a result of the comments. The comment period
ended on March 12, 1997. Following publication of the emergency rule
and receipt of public comments, the NRC staff sought to study the
technical issues raised by the public comments, and to perform an
independent evaluation of part 71 regulations relating to the fissile
material exemption and general license limits. The NRC awarded a
contract to the Oak Ridge National Laboratory (ORNL). The results of
the ORNL study were published by NRC in July 1998 and noticed in the
Federal Register on August 13, 1998. This notice responds to the
comments received on the rule and the results of the ORNL study.
II. Discussion
In developing the emergency final rule, NRC staff noted that the
regulatory and technical bases for the fissile exemption and general
license provisions of Part 71 were internally inconsistent and not
thoroughly documented. Based on these regulatory/technical bases
questions and the public comments received on the rule, the NRC issued
a contract to Oak Ridge National Laboratory (ORNL) to: (1) perform an
independent evaluation of Part 71 regulations relating to the fissile
material exemption and general license limits; (2) review the technical
issues raised by public comments on the emergency final rule; (3)
perform independent calculations of the minimum critical mass limits
for different combinations of fissile material and moderating material;
and (4) identify potential changes to the fissile material exemption
and general license limits which may be warranted. The results of the
ORNL study are contained in NUREG/CR-5342,4 Assessment and
Recommendations for Fissile Material Packaging Exemptions and General
Licenses Within 10 CFR Part 71, issued July 1998. Publication of NUREG/
CR-5342 was noticed in the Federal Register (63 FR 44777; August 13,
1998).
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\4\ Copies of NUREGS may be purchased from the Reproduction and
Distribution Section, Office of the Chief Information Officer, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001. Copies are
also available from the National Technical Information Service, 5285
Port Royal Road, Springfield, VA 22161. A copy is also available for
inspection and/or copying for a fee at the NRC Public Document Room,
2120 L street, NW. (Lower Level), Washington, DC.
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ORNL researched the historical bases for the fissile material
exemption and general license regulations in Part 71 and discussed the
impact of the emergency final rule's restrictions on NRC licensees.
ORNL also performed calculations of keff (k-effective) for
various combinations of fissile material and moderating material,
including beryllium, carbon, deuterium, silicon-dioxide, and water, to
verify the accuracy of minimum critical mass values. These minimum
critical mass values were applied to the regulatory structure contained
in the current Part 71, and revised mass limits for both the general
license and exemption provisions to Part 71 were determined. ORNL
concluded, and NRC staff agreed, that the restrictions imposed by the
emergency final rule on shipments with special moderating material were
necessary to protect public health and safety; however, the
restrictions are excessive for water-moderated shipments. Based on its
new keff calculations, we also agree that: (1) The mass
limits in the general license and exemption provisions could be safely
increased and thereby provide greater flexibility to licensees shipping
fissile radioactive material; and (2) additional revisions to Part 71
were appropriate to provide greater clarification and simplification of
the regulations. We believe these changes will resolve the issues
raised in the public comments on the emergency final rule, and provide
greater usability to these Part 71 regulations.
III. Response to Comments on the Emergency Final Rule
The NRC received eight letters commenting on the emergency final
rule. Four were from NRC fuel-cycle licensees; one from a remediation
and decommissioning company, one from DOE, one from the Nuclear Energy
Institute (NEI); and one from a member of the public (same comments as
DOE's). None of the commenters objected to the rule insofar as it
imposes restrictions on the shipments of fissile material when special
moderating materials (i.e., beryllium, graphite, or deuterium) are
present. However, all the commenters also believed that the changes to
Part 71 that imposed consignment limits when special moderating
materials are not used, were too restrictive and imposed an unnecessary
burden on licensees. Several commenters believed that the final rule
would significantly increase the number of shipments and would increase
licensee costs and paperwork burdens to transport the same quantity of
fissile material. Some commenters indicated that the number of
shipments of fissile material involving the presence of special
moderators was only a small percentage of the total number of shipments
involving fissile exempt and general license material which occur each
year, and that the negative aspects of the rule for all shipments were
not balanced by the accompanying increase in public health and safety.
Some commenters requested that the consignment limits be removed,
others requested that the table after 10 CFR 71.53(a) be clarified to
indicate that it applied only to shipments with special moderating
material present. Overall, the commenters indicated that the final rule
was excessively burdensome for a large number of shipments that do not
contain special moderators and requested that further rulemaking be
accomplished to address their concerns. Detailed discussion of the
comments is presented below. Response to this general comment is
presented first, with responses to other specific comments presented
later. Copies of the comment letters are available for public
inspection and copying, for a fee, at the Commission's Public Document
Room, located at 2120 L Street NW. (Lower Level), Washington, DC 20003-
1527.
General Comment: All eight commenters objected to the imposition of
the 400-gram limit of fissile material per consignment when special
moderating materials (i.e., beryllium, graphite, or deuterium) are not
present. The commenters stated that the 400-gram limit was
unnecessarily restrictive for the majority of shipments (i.e., water-
moderated), and imposed a penalty on shippers for what had been
considered perfectly safe controls under the old requirements without a
justification being provided. Two commenters stated that this new limit
would double or triple the number of separate shipments needed to
transport the same amount of fissile material, and that this increase
in the number of shipments of fissile material would cause a
corresponding increase in probability of worker injuries and
transportation accidents, and would increase licensee costs and
paperwork burdens to ship the same amount of fissile material. Two
commenters indicated that the rule will impose unnecessary accounting
and recordkeeping requirements on licensees to assure compliance with
the rule. These commenters also believe that shippers will now need to
more accurately determine the concentration of fissile material present
in a package to assure compliance with this rule. One commenter was
concerned that these negative aspects of the rule were not balanced by
the accompanying increase in public health and safety. One
[[Page 57772]]
commenter stated that instead of globally restricting shipments which
do not contain special moderating materials, the NRC should have
identified a category of material descriptive of the special moderator-
containing material, and restricted only that category.
Response: The 400-gram limit of fissile material per consignment is
essential to preclude an inadvertent criticality occurring during a
transportation accident involving fissile material shipments with
special moderators. However, the Commission agrees with the commenters
that the 400-gram limit may have caused an unintended and unnecessary
economic burden to licensees whose fissile material exempt and general
licensed shipments use water as the moderator because the 400-gram
consignment limit may be too restrictive, in some cases. The Commission
will address these unintended economic impact issues in an upcoming
rulemaking currently being developed to revise Part 71 to make it
compatible with the 1996 IAEA standards. This rulemaking effort will
more thoroughly examine these issues, however, the Commission has not,
as yet, been able to obtain specific information regarding the burden
claim made by the commenters. The staff is currently seeking specific
information from the commenters to quantify this burden. The NRC needs
this cost/benefit data from the fissile material shipping industry to
quantify the unintended impact of the emergency rule. Therefore, the
Commission is taking this opportunity to explicitly request this
information from the commenters, the industry and the DOE.
The Commission had imposed the 400-gram consignment limit because
of the regulatory latitude given to these fissile exempt and general
license shippers. Shipments of exempt quantities of fissile material
under Sec. 71.53 occur without NRC prior review or imposition of any
additional requirements on the quantity of fissile material which may
be placed on a conveyance. Therefore, the Commission imposed a 400-gram
limit on the amount of fissile material that could be shipped in a
single package. This limit was intended to ensure that a nuclear
criticality accident would be precluded under highly unlikely, but
theoretically conceivable, circumstances by restricting the quantity of
fissile material that could be inadvertently assembled to less than
one-half that of a critical mass needed for criticality to occur. These
circumstances could exist when exempt quantities of fissile material,
from two different shippers, wind up on the same conveyance and that
conveyance is subsequently involved in an accident.
Additionally, in the emergency final rule the Commission simplified
the regulations to require that control be maintained over one
parameter (e.g., the mass of the fissile material), rather than
controlling five separate parameters (e.g., the mass of fissile
material, the fissile material concentration, moderation, reflection,
and geometry (i.e., the spatial arrangement of the fissile material,
moderating material, and any reflecting material)). This was
accomplished by limiting the quantity of fissile material to less than
one-half of a critical mass, while using bounding assumptions for the
other parameters. Therefore, the fissile material can be in any
geometrical configuration or concentration, and water can be present in
any density (i.e., moderating effectiveness and reflection) and the
fissile material still remains subcritical. Further reductions in the
mass limit were imposed if nuclides other than uranium \235\ (e.g.,
uranium \233\ or any isotope of plutonium) were present or if
moderating materials with a hydrogen density greater than water (i.e.,
oil or plastic) were present.
Licensees desiring to ship fissile materials in quantities that do
not meet the limits of the fissile material exemption, or the general
license regulations, may use other provisions of Part 71 to submit an
application to the NRC for approval of the design of a transportation
package to ship the fissile material (e.g., Type A(F) or Type B(F)
packages), or may use previously approved Type A(F) or B(F) packages.
[Note, the use of a Type B(F) package would also require a licensee to
have a quality assurance program in place which meets the requirements
of Part 71, Subpart H.]
Taken with the 0.1 percent limit on the presence of special
moderating materials (i.e., beryllium, deuterium, or graphite), the
final rule sought to achieve a balanced approach with relaxation of
controls over concentration, moderation, and reflection, while
requiring greater control on the quantity of fissile mass, and assuming
that prior NRC review and approval were not obtained.
The NRC has reviewed the factors which initiated the emergency
final rulemaking, the ORNL evaluation, and public comments received on
the emergency final rule, and concluded that the changes imposed by the
emergency final rule were clearly warranted to protect public health
and safety and the environment from an accidental criticality occurring
during the transport of a special class of fissile material shipments
(i.e., those with special moderators). Although the Commission believes
that the commenters may have valid concerns with respect to the
unintended burden imposed by the emergency final rule on a large number
of shipments that do not use special moderators, the staff has not been
able to obtain specific information regarding the burden estimates. The
Commission has decided to consider an additional rulemaking revising
the fissile exemptions and general license regulations of Part 71 to:
(1) Address the concerns raised by public comments; (2) provide greater
clarity and simplicity to these Part 71 regulations; and (3) provide
increased flexibility for licensees who use these regulations. This
rulemaking is scheduled to revise Part 71 to make it consistent with
the IAEA transportation standards, and would be undertaken in
coordination with the DOT and the Agreement States.
Specific Comments
Comment: One commenter stated that the rule will double the number
of water-moderated shipments that will be needed to transport the same
amount of fissile material. The commenter further stated that the
increase in the number of shipments will increase the cost of shipping
the material, increase the chance of injury to workers due to increased
probability of loading accidents, and will increase the probability of
highway accidents due to the increased number of transport vehicles on
the road.
Response: The Commission agrees that there may be an increase in
the number of water-moderated shipments. [See response to the general
comment.] Although the staff has not been able to quantify the cost,
the Commission will consider the costs for fissile material shipments
in the scheduled Part 71 rulemaking as part of the regulatory analysis.
Comment: One commenter stated that the term ``unpackaged material''
may be inadequate or misunderstood.
Response: The Commission agrees. The term ``unpackaged material''
is not currently defined in Part 71. In Sec. 71.53(a)(1), the
Commission considered imposing a 15-gram limit on fissile material in
an individual package. For fissile material which is not contained in
discrete packages (i.e., unpackaged material or bulk material), the 15-
gram limit is instead applied to all of the fissile material being
transported on a specific conveyance. The Commission will address this
issue in a future rulemaking.
[[Page 57773]]
Comment: One commenter stated that changes in the emergency final
rule that are not directly associated with the special moderating
materials (i.e., total mass per consignment), may be needed, but these
should be issued only after they go through the normal rulemaking
review process.
Response: As stated in the emergency final rule (at 62 FR 5910),
``[t]he Commission is promulgating this emergency final rule because
the problem of regulatory safety limits over quantities and
concentrations of fissile material and moderators * * * is an important
safety issue meriting immediate corrective action. An accidental
criticality in the public domain would very likely involve fatalities,
health effects from the resulting radiation, and extensive cleanup
costs.'' Consequently, for this reason, and as described in the general
comment above, the changes made to Part 71 in the emergency final rule
were necessary and met the good cause test of the Administrative
Procedure Act (5 U.S.C. 553(b)(B)), to dispense with notice and
prepromulgation public comment as being impracticable and contrary to
the public interest.
Comment: One commenter stated that because this special moderators
issue was known for more than 2 years, they failed to understand why an
emergency action was needed at this time.
Response: The Commission disagrees. The NRC was unaware of the
regulatory defect that existed in Part 71 until it was notified by B&W
in September 1996. Once the NRC became aware of the potential to affect
public health and safety and the environment, the Commission deemed
that prompt action was necessary to ensure that public health and
safety and the environment remained protected; and hence the emergency
final rule was issued.
Comment: One commenter stated that the emergency final rule
addressed only a small number of specialized shipments, the size of a
large freight container, and that the final rule appeared to be too
conservative for smaller packages.
Response: The Commission agrees in part. The emergency final rule
was too restrictive for small packages with water as the moderator. The
Commission will address this issue in a future rulemaking. Also, see
response to general comment.
Comment: One commenter stated that the rulemaking failed to address
the value and impact of the rule change and that the rule does not
consider the type and number of shipments that have been or will be
impacted.
Response: The Commission agrees in part. A separate regulatory
analysis was not prepared for the final rule because of its emergency
nature. However, the Commission considered the values and impacts of
the final rule in the discussion entitled ``Alternatives Considered''
on page 5909 of the Federal Register notice (62 FR 5907). The value of
this rule was in preventing the possibility of an accidental
criticality from occurring in the public domain during the transport of
fissile material. As stated earlier, an accidental criticality could
result in fatalities or other adverse health effects and would require
extensive cleanup efforts. The Commission did consider that a limited
number of licensees possess quantities of fissile material which could
be affected by this change in regulations. However, the emergency
nature of this rulemaking did not allow time for the NRC to complete as
thorough a review of the type and number of impacted shipments as would
occur during normal rulemaking. The NRC will address this issue in a
future rulemaking. The NRC staff is currently attempting to collect
cost/benefit data for this rulemaking. However, the NRC staff has had
difficulty in collecting this data from affected licensees and
shippers, and is working to obtain the necessary information. The NRC
is requesting comments on the costs associated with shipments of
fissile material made under the fissile material exemption and general
license provisions of Part 71 implementing the emergency final rule.
Comment: One commenter stated that the rationale for limiting the
mass of special moderating material to only 0.1 percent of the fissile
mass is not clear.
Response: The Commission's basis for using the 0.1 percent limit
was that it was consistent with the limit contained in the 1996 IAEA
standard ST-1. The NRC believed that given the emergency nature of the
rulemaking and absent sufficient time to develop a national standard,
the use of an international consensus technical standard was a
reasonable alternative. The NRC did depart from the standard
established in ST-1 by including graphite in the list of special
moderating material. The Commission will continue to impose limits on
the allowable fissile mass if special moderators are present; however,
the Commission will solicit comment on the continued use of a consensus
technical standard in a future rulemaking. This effort will be a major
rulemaking which will revise Part 71 to make it compatible with the
IAEA ST-1, to revise fissile material exempt and general license
provisions, and to revise other Non-IAEA provisions.
Comment: One commenter stated that it is not clear from the wording
of the rule whether the 0.1 percent limit applies to all of the
deuterium present in a shipment or only to the quantity that exceeds
the amount of naturally occurring deuterium.
Response: The Commission intended that the 0.1 percent limit apply
to all of the deuterium present in a shipment because the ability of
deuterium to moderate neutrons is not dependent upon whether the
deuterium is natural or created via a man-made process. The NRC will
clarify this ambiguity in the rule language as part of its planned
revision of Part 71.
Comment: One commenter stated that it is not so much the average
hydrogen density that is important as it is the moderating effect of
the material. The commenter suggested replacing ``average hydrogen
density greater than that of water,'' with ``moderating effect greater
than that of water.''
Response: The Commission agrees that moderating effectiveness is
the parameter of concern. However, in the past, the concept of average
hydrogen density has been substituted for moderator effectiveness,
because the principal focus was on moderation by ordinary water. The
NRC believes this terminology, which had been widely used, is still
appropriate and did not change this approach in the emergency final
rule. The NRC will address this terminology issue in a future
rulemaking.
Comment: One commenter stated that the use of absolute moderator
limitations was too restrictive. The commenter believes that waste
shipments from remediation and decommissioning of nuclear facilities
often contain incidental quantities of special moderating materials
(e.g., process materials, motors, charcoal filters, batteries, and
pencils). The commenter suggested that the rule be revised to specify a
quantitative limit only for those deformable materials that can form a
homogenous or latticed mixture of fissile and moderating material.
Further, intact components, blocks, or articles would be considered
exempt from consideration as special moderating materials. The
commenter also recommended that the NRC encourage the DOT to make
equivalent or similar changes to 49 CFR Part 173.
Response: The Commission agrees that the original problem with
beryllium and enriched uranium involved homogenous mixtures of these
substances and that discrete articles, blocks, or components would be
less
[[Page 57774]]
effective as moderating agents. The Commission will address this issue
of homogenous versus heterogeneous mixture in a future rulemaking.
IV. Request for Cost Information
As stated above, the NRC has received comments on the emergency
final rule which indicated that the rule had an unintended economic
impact. NRC staff has attempted to solicit information on the costs
associated with implementing the emergency final rule so as to quantify
the unintended impact of the emergency final rule. However, staff has
not been successful in obtaining this information. Consequently, the
Commission is using this opportunity to explicitly request information
from the public, industry, and the DOE on the costs of shipments made
under the fissile material exemption and general license provisions of
Part 71 prior to the emergency rule; and those costs and/or changes in
costs resulting from implementation of the emergency final rule. The
Commission is requesting that comments be submitted to the NRC by
January 10, 2000.
V. Conclusion
The NRC staff is in the process of developing a rulemaking plan to
revise Part 71 to make it compatible with the 1996 IAEA transportation
standard ST-1, as well as to include other non-IAEA amendments. The
staff intends to include in this rulemaking plan, proposed revisions to
the fissile material exemption and general license limits, based on the
ORNL recommendations.
As stated previously, the DOT deferred any rulemaking on 49 CFR
173.453 until DOT staff could review the public comments received on
the NRC's emergency final rule and review the NRC's study on the
fissile exemptions contained in NUREG/CR-5342. The NRC staff is
currently coordinating with the DOT the resolution of these issues and
the development of the rulemaking plan for the Part 71 revisions. In
addition, NRC will coordinate the rulemaking plan with the Agreement
States for issues that are a matter of compatibility.
Dated at Rockville, Maryland, this 20th day of October, 1999.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary for the Commission.
[FR Doc. 99-28049 Filed 10-26-99; 8:45 am]
BILLING CODE 7590-01-P