[Federal Register Volume 64, Number 212 (Wednesday, November 3, 1999)]
[Proposed Rules]
[Pages 59677-59684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28594]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 72

RIN 3150-AG15


Clarification and Addition of Flexibility

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend 
its regulations on spent fuel storage to specify those sections of 10 
CFR Part 72 that apply to general licensees, specific licensees, 
applicants for a specific license, certificate holders, and applicants 
for a certificate. The proposed amendment is consistent with past NRC 
staff licensing practice and would eliminate any ambiguity for these 
persons by clarifying which portions of Part 72 apply to their 
activities. This proposed rule would eliminate the necessity for 
repetitious Part 72 specific license hearing reviews of cask design 
issues that the Commission previously considered and resolved during 
approval of the cask design. This proposed rule would also allow an 
applicant for a Certificate of Compliance (CoC) to begin cask 
fabrication under an NRC-approved quality assurance (QA) program before 
the CoC is issued.

DATES: Submit comments by January 18, 2000. Comments received after 
this date will be considered if it is practical to do so, but the 
Commission is able to ensure consideration only for comments received 
on or before this date.

ADDRESSES: Comments may be sent by mail to the Secretary, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, Attention: 
Rulemakings and Adjudications Staff.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland, between 7:30 am and 4:15 pm on Federal workdays.
    You may also provide comments via the NRC's interactive rulemaking 
web site through the NRC home page (http://www.nrc.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 this rulemaking, including comments 
received, the regulatory analysis, and a Table of Applicability, 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 this rulemaking.

FOR FURTHER INFORMATION CONTACT: Anthony DiPalo, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, telephone (301) 415-6191, or e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Commission's regulations at 10 CFR Part 72 were originally 
designed to provide specific licenses for the storage of spent nuclear 
fuel in an independent spent fuel storage installation (ISFSI) (45 FR 
74693; November 12, 1980). In 1990, the Commission amended Part 72 to 
include a process for approving the design of spent fuel storage casks 
and issuing a CoC (Subpart L) and for granting a general license to 
reactor licensees (Subpart K) to use NRC-approved casks for the storage 
of spent nuclear fuel (55 FR 29181; August 17, 1990). Although the 
Commission intended that the requirements imposed in Subpart K for 
general licensees be used in addition to, rather than in lieu of, 
appropriate existing requirements, ambiguity exists as to which Part 72 
requirements, other than those in Subpart K, are applicable to general 
licensees.
    In addition, the Commission has identified two aspects of Part 72 
where it would be desirable to reduce the regulatory burden and provide 
additional flexibility to applicants for a specific license or for a 
CoC.
    First, the staff anticipates that the Commission may receive 
several applications for specific licenses for ISFSI's that will 
propose using storage cask designs previously approved by NRC under the 
provisions of Subpart L of Part 72 (i.e., cask designs that have been 
issued a CoC and are listed in Sec. 72.214). Section 72.18, 
``Elimination of repetition,'' permits an applicant to incorporate by 
reference information contained in previous applications, statements, 
or reports filed with the NRC, including cask designs approved under 
Subpart L. Section 72.46 requires that in an application for a license 
under Part 72, the Commission shall issue or cause to be issued a 
notice of proposed action and opportunity for a license hearing in 
accordance with 10 CFR Part 2. Under current Part 72 regulations, the 
adequacy of the design of these previously approved casks could be at 
issue during a Sec. 72.46 license hearing for a specific license

[[Page 59678]]

application (i.e., issues on the cask design which have been previously 
addressed by the Commission, including resolution of public comments, 
that could be the subject of license hearings).
    Second, Sec. 72.234(c), which was part of the 1990 amendments to 
Part 72, prohibits an applicant for a CoC from beginning fabrication of 
a spent fuel cask before the NRC issues a CoC for the cask design. 
However, an applicant for a specific license is currently allowed to 
begin fabrication of spent fuel storage casks before the license is 
issued. At the time the 1990 rule was proposed, a commenter suggested 
that a fabricator (i.e. applicant for a CoC) be allowed to take the 
risk of beginning fabrication before the receipt of the CoC. However, 
the Commission took the position, ``[i]f a vendor has not received the 
certificate, then the vendor does not have the necessary approved 
specifications and may design and fabricate casks to meet incorrect 
criteria,'' ( 55 FR 29185; August 17, 1990).
    Since 1990, the Commission has reviewed and approved several cask 
designs. These reviews and follow-up requests for additional 
information have established the NRC's expectation as to how its 
criteria for cask design and fabrication should be met. In January 
1997, the NRC published NUREG-1536, ``Standard Review Plan for Dry Cask 
Storage Systems,'' informing CoC applicants of its expectations in 
reviewing cask designs. Since then, the Commission has granted six 
exemptions from Sec. 72.234(c) allowing applicants to begin fabrication 
prior to issuance of the CoC. One exemption request is currently under 
review by NRC. Additional exemption requests from Sec. 72.234(c) 
requirements are anticipated.

Discussion

Clarification

    This proposed rulemaking would eliminate the regulatory uncertainty 
that now exists in Part 72 by adding a new section Sec. 72.13 which 
specifies which Part 72 regulations apply to general licensees, 
specific licensees, applicants for a specific license, certificate 
holders, and applicants for a CoC.

Flexibility

    First, this proposed rule would eliminate the necessity for 
repetitious Sec. 72.46 specific license hearing board reviews of cask 
design issues that the Commission has previously considered during 
approval of the cask design. The Commission anticipates receipt of 
several applications, for specific ISFSI licenses, that will propose 
using storage cask designs previously approved by the NRC. Applicants 
for a specific license presently have the authority under Sec. 72.18 to 
incorporate by reference into their application, information contained 
in previous applications, statements, or reports filed with the 
Commission, including information from the Safety Analysis Report on a 
cask design previously approved by the NRC under the provisions of 
Subpart L. The Commission believes previously reviewed cask design 
issues should be excluded from the scope of a license hearing. This is 
because the public had the right during the Subpart L approval process 
to comment on the adequacy of the cask design. The right of the public 
to comment on cask designs would not be affected by this rulemaking. 
For new cask design issues, this rulemaking would not limit the scope 
of staff's review of the application or of license hearings. For 
example, a cask's previously reviewed and approved thermal, 
criticality, and structural designs could not be raised as issues in a 
licensing hearing. However, design interface issues between the 
approved cask design and specific site characteristics (e.g., 
meteorological, seismological, radiological, and hydrological) or 
changes to the cask's approved design may be raised as issues at a 
potential hearing. Furthermore, the rights of the public to petition 
the Commission under Sec. 2.206 to raise new safety issues on the 
adequacy of the cask design would not be affected by this rulemaking.
    Second, the proposed rule would permit an applicant for approval of 
a spent fuel storage cask design under Subpart L to begin fabrication 
of casks before the NRC has approved the cask design and issued the 
CoC. Currently, an applicant for a CoC is not permitted under 
Sec. 72.234(c) to begin cask fabrication until after the CoC is issued. 
Applicants for a specific license, and their contractors, are currently 
allowed to begin fabrication of casks before the Commission issues 
their license. However, general licensees and their contractors (i.e, 
the certificate holder) are not allowed to begin fabrication before the 
CoC is issued. Consequently, this proposed rule would eliminate NRC's 
disparate treatment between general and specific licensees. In addition 
to allowing an applicant for a CoC to begin fabrication of a cask, 
comments would be requested on the need for a general licensee to also 
begin fabrication of a cask before issuance of the CoC. The Commission 
and the staff have previously determined that exemptions from the 
fabrication prohibition are authorized by law and do not endanger life 
or property, the common defense, or security and are otherwise in the 
public interest. The Commission anticipates that additional cask 
designs will be submitted to the NRC for approval and expects that 
these designs will be similar in nature to those cask designs that have 
already been approved. The Commission also expects that exemption 
requests to permit fabrication would also be received. This rulemaking 
would eliminate the need for such exemption requests.
    This proposed rule would revise the quality assurance regulations 
in Subpart G of Part 72 to require that an applicant for a CoC, who 
voluntarily wishes to begin cask fabrication, must conduct cask 
fabrication under an NRC-approved QA program. Currently, applicants for 
a CoC are required by Sec. 72.234(b) to conduct design, fabrication, 
testing, and maintenance activities under a QA program that meet the 
requirements of Subpart G. Prior NRC approval of the applicant's QA 
program is not required by Sec. 72.234(b). However, Sec. 72.234(c) 
precludes cask fabrication until after the CoC is issued. The 
Commission believes this proposed rule is a conditional relaxation to 
permit fabrication before the CoC is issued. Since NRC staff would 
approve the applicant's QA program as part of issuance of a CoC, staff 
approval of the QA program prior to fabrication is a question of timing 
(e.g., when the program is approved, as opposed to imposing a new 
requirement for approval of a program). The Commission expects that any 
financial or scheduler risks associated with fabrication of casks prior 
to issuance of the CoC would be borne by the applicant. The Commission 
believes that the proposed rule is not a backfit because Sec. 72.62 
applies to licensees after the license is issued and does not apply to 
applicants prior to issuance of the license or CoC. This rule would 
require that a cask for which fabrication was initiated before issuance 
of the CoC must conform to the issued CoC before it may be used.
    This proposed rule would also require an applicant for a specific 
license, who voluntarily wishes to begin fabrication of casks before 
the license is issued, to conduct fabrication under an NRC-approved QA 
program. Currently, an applicant for a specific license is required by 
Sec. 72.140(c) to obtain NRC approval of its QA program before spent 
fuel is loaded into the ISFSI. The Commission does not believe this 
proposed rule would impose a separate requirement, rather it would 
require

[[Page 59679]]

different timing on when the QA program is approved.
    This proposed rule would also revise Sec. 72.140(d) to allow a 
licensee, applicant for a license, certificate holder, and applicant 
for a CoC to use an existing Part 50, 71, or 72 QA program that was 
previously approved by the NRC.
    As a result of this proposed rule, both licensees and certificate 
holders will be required to accomplish any fabrication activities under 
an NRC-approved QA program. The Commission believes this proposed 
rule's increase in flexibility and change in timing of approval of a QA 
program is not a backfit.
    In addition to an applicant's fabrication of a cask design prior to 
issuance of the CoC, the Commission is requesting comments on the need 
for a general licensee to also begin fabrication of a cask design, 
before the cask design is approved and the CoC is issued.

Section-by-Section Discussion of Proposed Amendments

    This proposed rule would make several amendment changes to Part 72 
which are characterized as follows. This proposed rule would eliminate 
the regulatory uncertainty that now exists in Part 72 and explicitly 
specifies which regulations apply to general licensees, specific 
licensees, and certificate holders. The proposed rule would eliminate 
the necessity for repetitious reviews in a specific license hearing of 
cask design issues that the Commission previously considered during 
approval of the cask design. The proposed rule would permit an 
applicant for approval of a spent fuel storage cask design to begin 
cask fabrication, at its own risk, before the NRC has issued the CoC. 
The proposed rule would require that NRC approval of the quality 
assurance program be obtained before cask fabrication can commence.

Section 72.13  Applicability

    This new section identifies those sections of Part 72 that apply to 
specific licenses, general licenses, and Certificates of Compliance. No 
changes to the underlying regulations would result from this amendment, 
it is intended for clarification only.

Section 72.46  Public Hearings

    A new paragraph (e) would be added to this section to indicate that 
the scope of any license hearing, for an application for an ISFSI 
license, shall not include any issues that were previously resolved by 
the Commission during the approval process of the design of a spent 
fuel storage cask, when the application incorporates by reference, 
information on the design of an NRC-approved spent fuel storage cask. 
The Commission considers rereview of cask design issues, which have 
been previously resolved as an unnecessary regulatory burden on 
applicants causing unnecessary expenditure of staff and hearing board 
resources. For example, the cask's previously reviewed and approved 
thermal, criticality, and structural designs could not be raised as 
issues in a hearing. However, design interface issues between the 
approved cask design and specific site characteristics (e.g., 
meteorological, seismological, radiological, and hydrological) or 
changes to the cask's approved design may be raised as issues at a 
potential hearing.
    This proposed rulemaking would not limit the scope of staff's 
review of the application or of license hearings, for new cask design 
issues that were not considered by the Commission during previous 
approval of the cask design. In addition, the rights of the public to 
petition the Commission under Sec. 2.206 to raise new safety issues on 
the adequacy of the cask design would not be affected by this 
rulemaking.

Section 72.86  Criminal Penalties

    Paragraph (b) of this section lists those Part 72 regulations for 
which criminal sanctions may not be issued, because the Commission 
considers these sections to be non-substantive regulations issued under 
the provisions of Sec. 161(b), (i), or (o) of the Atomic Energy Act of 
1954 (AEA).
    Substantive regulations are those regulations that create duties, 
obligations, conditions, restrictions, limitations, and prohibitions 
(see final rule on ``Clarification of Statutory Authority for Purposes 
of Criminal Enforcement'' (57 FR 55062; November 24, 1992)). The 
Commission considers that the new Sec. 72.13 would not be a substantive 
regulation, issued under the provisions of Sec. 161(b), (i), or (o) of 
the AEA. Therefore, paragraph (b) of this section would be revised to 
add Sec. 72.13 to indicate that willful violations of this new section 
would not be subject to criminal penalties.

Section 72.140  Quality Assurance Requirements

    Paragraph (c)(1) would be revised to add applicants for a specific 
license and applicants for a CoC. Paragraph (c)(2) would be revised to 
add the requirement that an applicant for a specific license shall 
obtain NRC-approval of its QA program before beginning fabrication or 
testing of a spent fuel storage cask. Paragraph (c)(3) would be revised 
to indicate that an applicant for a CoC shall obtain NRC-approval of 
its QA program requirement before beginning fabrication or testing of a 
spent fuel storage cask. These revisions would result in consistent 
treatment of general licensees, specific licensees, applicants for a 
specific license, certificate holders, and applicants for a CoC. These 
revisions would also ensure that the NRC has reviewed and approved a QA 
program before commencement of any fabrication or testing activities.
    Paragraph (d) would be revised to clarify the use of previously 
approved QA programs by a licensee, applicant for a license, 
certificate holder, and applicant for a CoC. The Commission expects 
these persons to notify the NRC of their intent to use a QA program 
previously approved by the NRC under the provisions of Parts 50, 71, or 
72.

Section 72.234  Conditions of approval

    Paragraph (c) of this section would be revised to permit an 
applicant for a CoC to begin fabrication of spent fuel storage casks 
(under an NRC-approved QA program), at the applicant's own risk, before 
the NRC issues the CoC. The Commission expects that any risks 
associated with fabrication (e.g., rewelding, reinspection, or even 
abandonment of the cask) would be borne by the applicant. The NRC would 
also require that a cask fabricated before the CoC was issued conform 
to the issued CoC before spent fuel is loaded. Requiring an applicant 
to conform a fabricated cask to the issued CoC would not be subject to 
the backfit review provisions of Sec. 72.62.

Section 72.236  Specific Requirements For Spent Fuel Storage Cask 
Approval

    The introductory text in this section before paragraph (a) would be 
revised as a conforming change to Sec. 72.234(c) to indicate that all 
of the requirements in this section apply to both certificate holders 
and applicants for a CoC.

Criminal Penalties

    For the purposes of Section 223 of the Atomic Energy Act (AEA), the 
Commission is issuing the proposed rule to amend 10 CFR 72.140, 72.234, 
and 72.236 under one or more of Sections 161b, 161i, or 161o of the 
AEA. Willful violations of the rule would be subject to criminal 
enforcement.

Agreement State Compatibility

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' approved by the Commission on June 30, 1997, 
and published in the Federal Register on September 3, 1997 (62 FR 
46517), this

[[Page 59680]]

proposed rule is classified as Category NRC. Compatibility is not 
required for Category NRC regulations. The NRC program elements in this 
category are those that relate directly to areas of regulation reserved 
to the NRC by the AEA or the provisions of Title 10 of the Code of 
Federal Regulations.

Plain Language

    The Presidential Memorandum dated June 1, 1998, entitled, ``Plain 
Language in Government Writing,'' directed that the government's 
writing be in plain language. The NRC requests comments on this 
proposed rule specifically with respect to the clarity and 
effectiveness of the language used. Comments should be sent to the 
address listed under the heading ADDRESSES above.

Voluntary Consensus Standards

    The National Technology Transfer Act of 1995, (Pub. L. 104-113), 
requires that Federal agencies use technical standards that are 
developed or adopted by voluntary consensus standards bodies unless the 
use of such a standard is inconsistent with applicable law or otherwise 
impractical. The NRC is proposing to amend its regulations on spent 
fuel storage in those sections of 10 CFR Part 72 that apply to general 
licensees, specific licensees, applicants for a specific license, 
certificate holders, and applicants for a certificate. This proposed 
rule would eliminate the necessity for repetitious Part 72 specific 
license hearing reviews of cask design issues that the Commission 
previously considered and resolved during approval of the cask design. 
This proposed rule would also allow an applicant for a Certificate of 
Compliance (CoC) to begin cask fabrication before the CoC is issued. 
This action does not constitute the establishment of a standard that 
establishes generally applicable requirements.

Environmental Impact: Categorical Exclusion

    The NRC has determined that this proposed rule is the type of 
action described in the categorical exclusion in 10 CFR 51.22(c)(2) and 
(3). This action represents amendments to the regulations which are 
corrective or of a minor or nonpolicy nature and do not substantially 
modify the existing regulations. Therefore, neither an environmental 
impact statement nor an environmental assessment has been prepared for 
this proposed rule.

Paperwork Reduction Act Statement

    This proposed rule would decrease the burden on licensees by 
eliminating the requirement to request an exemption to begin cask 
design before a license is issued, and by allowing all licensees and 
CoC holders to reference previously approved QA programs. The public 
burden reduction for this information collection would average 200 
hours per exemption request. However, because no burden has previously 
been approved for exemption requests and no licensees are expected to 
reference previously approved QA programs in the foreseeable future, no 
burden reduction can be taken for this rulemaking. Existing 
requirements were approved by the Office of Management and Budget, 
approval number 3150-0132.

Public Protection Notification

    If a means used to impose an information collection does not 
display a currently valid OMB control number, the NRC may not conduct 
or sponsor, and a person is not required to respond to, the information 
collection.

Regulatory Analysis

Statement of the Problem and Objective

    The Commission's regulations at 10 CFR Part 72 were originally 
designed to provide specific licenses for the storage of spent nuclear 
fuel in independent spent fuel storage installations (ISFSIs) (45 FR 
74693; November 12, 1980). In 1990, the Commission amended Part 72 to 
include a process for approving the design of spent fuel storage casks 
and issuance of a CoC (Subpart L); and for granting a general license 
to reactor licensees (Subpart K) to use NRC-approved casks for storage 
of spent nuclear fuel (55 FR 29181; August 17, 1990). Although the 
Commission intended that the requirements imposed in Subpart K for 
general licensees be used in addition to, rather than in lieu of, 
appropriate existing requirements, ambiguity exists as to which of the 
Part 72 requirements, other than those in Subpart K, are applicable to 
general licensees. This rulemaking would resolve that ambiguity.
    In addition, the Commission has identified two aspects of Part 72 
where it would be desirable to reduce the regulatory burden for 
applicants, NRC staff, and hearing boards and to afford additional 
flexibility to applicants for a CoC:
    First, this proposed rule would eliminate the necessity for 
repetitious reviews, during a Part 72 specific license hearing 
(Sec. 72.46), of cask design issues that the Commission has previously 
considered during approval of the cask design. The Commission 
anticipates receipt of several applications, for specific ISFSI 
licenses, that will propose using storage cask designs previously 
approved by the NRC. Applicants for a specific license presently have 
the authority under Sec. 72.18 to incorporate by reference into their 
application, information contained in previous applications, 
statements, or reports filed with the Commission, including information 
from the Safety Analysis Report for a cask design previously approved 
by the NRC under the provisions of Subpart L. The Commission believes 
previously reviewed cask design issues should be excluded from the 
scope of a license hearing. This is because the public had the right to 
question the adequacy of the cask design, during the approval process 
under Subpart L. The right of the public to comment on cask designs 
would not be affected by this rulemaking. For new cask design issues, 
this rulemaking would not limit the scope of staff's review of the 
application or of license hearings. For example, a cask's previously 
reviewed and approved thermal, criticality, and structural designs 
could not be raised as issues in a hearing. However, design interface 
issues between the approved cask design and specific site 
characteristics (e.g., meteorological, seismological, radiological, and 
hydrological) or changes to the cask's approved design may be raised as 
issues at a potential hearing. In addition, the rights of the public to 
petition the Commission under Sec. 2.206 to raise new safety issues on 
the adequacy of the cask design would not be affected by this 
rulemaking.
    Second, the proposed rule would permit an applicant for approval of 
a spent fuel storage cask design under Subpart L to begin fabrication 
of casks before the NRC has approved the cask design and issued the 
CoC. Currently, an applicant for a CoC is not permitted under 
Sec. 72.234(c) to begin cask fabrication until after the CoC is issued. 
Applicants for a specific license, and their contractors, are currently 
allowed to begin fabrication of casks before the Commission issues 
their license. However, general licensees and their contractors (i.e, 
the certificate holder) are not allowed to begin fabrication before the 
CoC is issued. Consequently, this proposed rule would eliminate NRC's 
disparate treatment between general and specific licensees. In addition 
to allowing an applicant for a CoC to begin fabrication of a cask prior 
to issuance of the CoC, comments would be requested on the need for a 
general licensee to also begin fabrication of a cask before the CoC is 
issued. The Commission and the staff have

[[Page 59681]]

previously determined that exemptions from the fabrication prohibition 
are authorized by law and do not endanger life or property, the common 
defense, or security and are otherwise in the public interest. The 
Commission anticipates that additional cask designs will be submitted 
to the NRC for approval and expects that these designs will be similar 
in nature to those cask designs that have already been approved. The 
Commission also expects that exemption requests to permit fabrication 
would also be received. Therefore, this rulemaking would eliminate the 
need for such exemption requests.
    This proposed rule would revise the quality assurance regulations 
in Subpart G of Part 72 to require that an applicant for a CoC, who 
voluntarily wishes to begin cask fabrication, must conduct cask 
fabrication under an NRC-approved QA program. Currently, applicants for 
a CoC are required by Sec. 72.234(b) to conduct design, fabrication, 
testing, and maintenance activities under a QA program that meets the 
requirements of Subpart G. Prior NRC approval of the applicant's QA 
program is not required by Sec. 72.234(b). However, Sec. 72.234(c) 
precludes cask fabrication until after the CoC is issued. The 
Commission believes this proposed rule is a conditional relaxation to 
permit fabrication before the CoC is issued. Since NRC staff would 
approve the applicant's QA program as part of issuance of a CoC, staff 
approval of the QA program prior to fabrication is a question of timing 
(e.g., when the program is approved, as opposed to imposing a new 
requirement for approval of a program). The Commission expects that any 
financial or scheduler risks associated with fabrication of casks prior 
to issuance of the CoC would be borne by the applicant. The Commission 
believes that the proposed rule is not a backfit because Sec. 72.62 
applies to licensees after the license is issued and does not apply to 
applicants prior to issuance of the license or CoC. This rule would 
require that a cask for which fabrication was initiated before issuance 
of the CoC must conform to the issued CoC before it may be used.
    This proposed rule would also require an applicant for a specific 
license, who voluntarily wishes to begin fabrication of casks before 
the license is issued, to conduct fabrication under an NRC-approved QA 
program. Currently, an applicant for a specific license is required by 
Sec. 72.140(c) to obtain NRC approval of its QA program before spent 
fuel is loaded into the ISFSI. The Commission does not believe this 
proposed rule would impose a separate requirement, rather it would 
require different timing on when the QA program is approved.
    This proposed rule would also revise Sec. 72.140(d) to allow a 
licensee, applicant for a license, certificate holder, and applicant 
for a CoC to use an existing Part 50, 71, or 72 QA program that was 
previously approved by the NRC.
    As a result of this proposed rule both licensees and certificate 
holders will be required to accomplish any fabrication activities under 
an NRC-approved QA program. The Commission believes this proposed 
rule's increase in flexibility and change in timing of approval of a QA 
program is not a backfit.
    The Commission expects that any risks associated with fabrication 
(e.g., rewelding, reinspection, or even abandonment of the cask) would 
be borne by the applicant. In particular, the staff would require that 
a cask, which was fabricated before the CoC was issued, must conform 
with the issued CoC. Requiring an applicant to conform a fabricated 
cask to the issued CoC would not be subject to the backfit review 
provisions of Sec. 72.62.

Identification and Preliminary Analysis of Alternative Approaches to 
the Problem

     Option 1--Conduct a rulemaking that would address the 
regulatory problems as described above.
    First, this proposed rulemaking would specify the sections in Part 
72 that apply to general licensees, specific licensees, and certificate 
holders. This would eliminate the need to resolve on a case-by-case 
basis questions on which Part 72 sections are applicable to those 
activities. The proposed rule is administrative in nature and other 
than the cost of rulemaking, would have no impact.
    Second, this rulemaking would reduce the regulatory burden on 
applicants, staff, and hearing board resources relating to any 
Sec. 72.46 license hearings involving cask design issues associated 
with an application for a specific license, where the cask design has 
been previously approved by the NRC. Elimination of the need for 
repetitious reviews of cask design issues and licensing hearings on 
these same cask design issues together would save 1.0 FTE of applicant 
effort and 1.0 FTE of staff effort for each license application 
received. NRC expects to receive three applications in 1999 and six 
applications each year in 2000 and 2001. While applicants for a license 
are currently allowed to incorporate by reference information on cask 
design information, this rulemaking would reduce applicant burden 
associated with providing additional information on the cask design and 
responding to hearing board contentions on issues which have been 
previously reviewed.
    Third, this rulemaking would also provide increased flexibility to 
applicants for a CoC by allowing them to begin cask fabrication, before 
the CoC is issued. This rulemaking would reduce the burden on 
applicants for a CoC associated with submission of requests for 
exemption from Sec. 72.234(c). Certificate holders have requested these 
exemptions to take advantage of favorable business conditions (i.e., 
they want to begin fabrication of casks a soon as possible to meet 
their contract obligations). Elimination of the need for submission and 
review of exemption requests from the cask fabrication requirement of 
Sec. 72.234(c) would save 0.1 FTE of applicant effort and 0.1 FTE of 
staff effort, for each exemption request not received. Without this 
action, NRC expects that two requests for exemption from Sec. 72.234(c) 
would be received each year in 1999 and beyond. This rulemaking would 
also eliminate the disparate treatment of general and specific 
licensees under Part 72, with respect to fabrication of spent fuel 
storage casks. This rulemaking would also reduce staff burden 
associated with review of such exemption requests. Because a 
certificate holder is currently required by Sec. 72.140(c)(3) to obtain 
NRC approval of its QA program before commencing fabrication, and the 
staff is currently required to review and approve such programs, no 
increase in applicant burden or staff resources would occur with 
respect to the proposed change to Sec. 72.140(c)(3). However, the 
timing of the staff review and approval of the QA program would change.
    The impact of this option consists primarily of a reduction in 
regulatory burden on an applicant for a specific license, a reduction 
in regulatory burden and increase in regulatory flexibility for an 
applicant for a cask design, and a reduction in the expenditure of NRC 
resources involved in reviewing applications for a specific license, 
supporting license hearings, and reviewing requests for exemption from 
Sec. 72.234(c). This option would result in the expenditure of NRC 
resources to conduct this rulemaking.
     Option 2--No action.
    The benefit of the no action alternative is that NRC resources will 
be conserved because no rulemaking would be conducted. The impact of 
this alternative would be that the regulatory problems described above 
would not be addressed. Instead, applicant and staff resources will 
continue to be expended

[[Page 59682]]

on repetitious reviews of previously approved cask designs, conducting 
licensing hearings on previously approved cask design issues, and 
processing requests for exemption from Sec. 72.234(c), to allow 
fabrication of casks.

Estimation and Evaluation of Values and Impacts

    The clarification of which Part 72 sections apply to specific 
licensees, applicants for a specific license, general licensees, 
certificate holders, and applicants for a CoC alone would have no 
impacts other than the cost of rulemaking, because this action is 
administrative in nature.
    The elimination of the need for repetitious reviews of cask design 
issues, that were previously reviewed by the NRC, and elimination of 
licensing hearings on these same cask design issues together would save 
1.0 FTE of applicant effort and 1.0 FTE of staff effort for each 
license application received. NRC expects to receive three applications 
in 1999 and six applications each year in 2000 and 2001.
    The elimination of the need for submission and review of exemption 
requests from the cask fabrication requirement of Sec. 72.234(c) would 
save 0.1 FTE of applicant effort and 0.1 FTE of staff effort, for each 
exemption request not received. Without this action, NRC expects that 
two requests for exemption from Sec. 72.234(c) would be received each 
year in 1999 and beyond.

Presentation of Results

    The recommended action is to adopt the first option because it will 
set forth a clear regulatory base for Part 72 general licensees, 
specific licensees, applicants for a specific license, certificate 
holders, and applicants for a CoC.
    The recommended action would eliminate the need for repetitious 
license hearing adjudication of cask design issues that the Commission 
has previously reviewed in approving the cask design, when an applicant 
for a specific license has incorporated by reference a cask design that 
has been approved by the Commission under the provisions of Subpart L. 
This is because the public had the right to question the adequacy of 
the cask design during the approval process under Subpart L. The right 
of the public to comment on cask designs would not be affected by this 
rulemaking. This rulemaking would not limit the scope of staff's review 
of the application or license hearings for issues which were not 
considered by the Commission during previous approval of the cask 
design. In addition, the rights of the public to petition the 
Commission under Sec. 2.206 to raise new safety issues on the adequacy 
of the cask design would not be affected by this rulemaking. The 
Commission considers rereview of cask design issues which have been 
previously evaluated and dispositioned as an unnecessary regulatory 
burden on applicants and an unnecessary expenditure of staff and 
hearing board resources. For example, the cask's previously reviewed 
and approved thermal, criticality, and structural designs could not be 
raised as issues in a hearing. However, design interface issues between 
the approved cask design and specific site characteristics (e.g., 
meteorological, seismological, radiological, and hydrological) or 
changes to the cask's approved design may be raised as issues at a 
potential hearing. Therefore, this action has no safety impact.
    The recommended action would permit an applicant for approval of a 
spent fuel storage cask design under Subpart L to begin fabrication of 
casks before the NRC has approved the cask design and issued the CoC. 
Currently, an applicant for a CoC is not permitted under Sec. 72.234(c) 
to begin cask fabrication until after the CoC is issued. Applicants for 
a specific license, and their contractors, are currently allowed to 
begin fabrication of casks before the Commission issues their license. 
However, general licensees and their contractors (i.e, the certificate 
holder) are not allowed to begin fabrication before the CoC is issued. 
Consequently, this proposed rule would eliminate NRC's disparate 
treatment between general and specific licensees. In addition to 
allowing an applicant for a CoC to begin fabrication of a cask prior to 
issuance of the CoC, comments would be requested on the need for a 
general licensee to also begin fabrication of a cask before the CoC is 
issued. The Commission and the staff have previously determined that 
exemptions from the fabrication prohibition are authorized by law and 
do not endanger life or property, the common defense, or security and 
are otherwise in the public interest. The Commission anticipates that 
additional cask designs will be submitted to the NRC for approval and 
expects that these designs will be similar in nature to those cask 
designs that have already been approved. The Commission also expects 
that exemption requests to permit fabrication would also be received. 
Therefore, this rulemaking would eliminate the need for such exemption 
requests.
    This proposed rule would revise the quality assurance regulations 
in Subpart G of Part 72 to require that an applicant for a CoC, who 
voluntarily wishes to begin cask fabrication, must conduct cask 
fabrication under an NRC-approved QA program. Currently, applicants for 
a CoC are required by Sec. 72.234(b) to conduct design, fabrication, 
testing, and maintenance activities under a QA program that meet the 
requirements of Subpart G. Prior NRC approval of the applicant's QA 
program is not required by Sec. 72.234(b). However, Sec. 72.234(c) 
precludes cask fabrication until after the CoC is issued. The 
Commission believes this proposed rule is a conditional relaxation to 
permit fabrication before the CoC is issued. Since NRC staff would 
approve the applicant's QA program as part of issuance of a CoC, staff 
approval of the QA program prior to fabrication is a question of timing 
(e.g., when the program is approved, as opposed to imposing a new 
requirement for approval of a program). The Commission expects that any 
financial or scheduler risks associated with fabrication of casks prior 
to issuance of the CoC would be borne by the applicant. The Commission 
believes that the proposed rule is not a backfit because Sec. 72.62 
applies to licensees after the license is issued and does not apply to 
applicants prior to issuance of the license or CoC. This rule would 
require that a cask for which fabrication was initiated before issuance 
of the CoC must conform to the issued CoC before it may be used.
    This proposed rule would also require an applicant for a specific 
license, who voluntarily wishes to begin fabrication of casks before 
the license is issued, to conduct fabrication under an NRC-approved QA 
program. Currently, an applicant for a specific license is required by 
Sec. 72.140(c) to obtain NRC approval of its QA program before spent 
fuel is loaded into the ISFSI. The Commission does not believe this 
proposed rule would impose a separate requirement, rather it would 
require different timing on when the QA program is approved.
    This proposed rule would also revise Sec. 72.140(d) to allow a 
licensee, applicant for a license, certificate holder, and applicant 
for a CoC to use an existing Part 50, 71, or 72 QA program that was 
previously approved by the NRC.
    As a result of this proposed rule, both licensees and certificate 
holders will be required to conduct any fabrication activities under an 
NRC-approved QA program. The Commission believes this proposed rule's 
increase in flexibility and change in timing of approval of a QA 
program is not a backfit. Therefore, these actions have no safety 
impact.

[[Page 59683]]

    The Commission expects that any risks associated with fabrication 
(e.g., rewelding, reinspection, or even abandonment of the cask) would 
be borne by the applicant. In particular, the staff would require that 
a cask, which was fabricated before the CoC was issued, must conform 
with the issued CoC. Requiring an applicant to conform a fabricated 
cask to the issued CoC would not be subject to the backfit review 
provisions of Sec. 72.62.
    The total cost of this rulemaking to the NRC is estimated at 1.9 
FTE. The total savings to the NRC for this rulemaking is estimated at 
16.5 FTE over a 3-year period (1999 through 2001). The total savings to 
applicants is estimated at 15.0 FTE over the same 3-year period. 
Therefore, this action would be considered cost beneficial to both NRC 
and applicants, would reduce the burden on applicants, and would 
improve the efficiency and effectiveness of the NRC. Consequently, the 
Commission believes public confidence in the safe storage of spent fuel 
at independent spent fuel storage installations would not be adversely 
affected by this rulemaking.

Decision Rationale

    The rationale is to proceed with this proposed rulemaking 
implementing the Commission approved rulemaking plan. This rulemaking 
would save both staff and applicant resources as discussed above.
    The clarification of the provisions of Part 72 and their 
application to general licensees, specific licensees, applicants for a 
specific license, certificate holders, and applicants for a CoC is 
administrative in nature and would have no safety impacts.
    The elimination of the need for repetitious license hearings on 
cask design issues, that the NRC has previously reviewed and approved, 
in an application for a specific license would have no safety impacts. 
The public's right to comment on cask design issues, through the 
Subpart L cask approval process, will remain unchanged.
    The flexibility to begin fabrication cask fabrication before the 
NRC issues the CoC, when combined with the requirement that cask 
fabrication must be performed under an NRC-approved QA program, would 
have no safety impacts.

Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)), 
the Commission certifies that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. This proposed rule would clearly specify which sections of 
Part 72 apply to general licensees, specific licensees, applicants for 
a specific license, certificate holders, and applicants for a 
certificate and allow these persons to determine which Part 72 
regulations apply to their activity. This clarification will eliminate 
the ambiguity that now exists. This proposed rule would also eliminate 
the need for repetitious license-hearing reviews of cask design issues, 
that were previously reviewed and approved by the NRC, when the 
applicant for a specific license incorporates by reference information 
on a cask design that was previously approved by the NRC. Finally, this 
proposed rule would allow applicants for a CoC to begin fabrication of 
a cask design before the NRC has issued a CoC. Applicants desiring to 
begin fabrication shall use an NRC-approval QA program. The requirement 
to obtain NRC-approval of the applicant's QA program is not considered 
an additional burden. An applicant who has been issued a CoC, and is 
then considered a certificate holder, is currently required by 
Sec. 72.140(c)(2) to obtain NRC-approval before fabrication or testing 
is commenced; consequently, no actual increase in burden occurs. 
Similarly, an applicant for a license is currently required to obtain 
NRC-approval prior to receipt of spent fuel or high-level waste; 
consequently, no actual increase in burden occurs. This proposed rule 
does not impose any additional obligations on entities that may fall 
within the definition of ``small entities'' as set forth in Section 
601(6) of the Regulatory Flexibility Act; or within the definition of 
``small business'' as found in Section 3 of the Small Business Act, 15 
U.S.C. 632; or within the size standards adopted by the NRC on April 
11, 1985 (60 FR 18344).

Backfit Analysis

    The NRC has determined that the backfit rule, Sec. 72.62, does not 
apply to this proposed rule. Because these amendments would not involve 
any provisions that would impose backfits as defined in Sec. 72.62(a), 
a backfit analysis is not required.

List of Subjects in 10 CFR Part 72

    Criminal penalties, Manpower training programs, Nuclear materials, 
Occupational safety and health, Reporting and recordkeeping 
requirements, Security measures, Spent fuel.

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended, the Energy Reorganization 
Act of 1974, as amended, and 5 U.S.C. 553, the NRC is proposing to 
adopt the following amendments to 10 CFR Part 72.

PART 72--LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF 
SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE

    1. The authority citation for Part 72 continues to read as follows:

    Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 
184, 186, 187, 189, 68 Stat. 929, 930, 932, 934, 935, 948, 953, 954, 
955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071, 
2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 
2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 688, as 
amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 Stat. 
1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); Pub. L. 
95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 
7902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L. 91-190, 83 
Stat. 853 (42 U.S.C. 4332); Secs. 131, 132, 133, 135, 137, 141, Pub. 
L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, Pub. L. 100-
203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 10155, 
10157, 10161, 10168).
    Section 72.44(g) also issued under secs. 142(b) and 148(c), (d), 
Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b), 
10168(c), (d)). Section 72.46 also issued under sec. 189, 68 Stat. 
955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 
U.S.C. 10154). Section 72.96(d) also issued under sec. 145(g), Pub. 
L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also 
issued under secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L. 97-
425, 96 Stat. 2202, 2203, 2204, 2222, 2224 (42 U.S.C. 10101, 
10137(a), 10161(h)). Subparts K and L are also issued under sec. 
133, 98 Stat. 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252 
(42 U.S.C. 10198).

    2. Section 72.13 is added to Subpart A to read as follows:


Sec. 72.13  Applicability.

    (a) This section identifies those sections, under this part, that 
apply to the activities associated with a specific license, a general 
license, or a certificate of compliance.
    (b) The following sections apply to activities associated with a 
specific license: Secs. 72.1; 72.2(a) through (e); 72.3 through 
72.13(b); 72.16 through 72.34; 72.40 through 72.62; 72.70 through 
72.86; 72.90 through 72.108; 72.120 through 72.130; 72.140 through 
72.176; 72.180 through 72.186; 72.190 through 72.194; and 72.200 
through 72.206.
    (c) The following sections apply to activities associated with a 
general license: Secs. 72.1; 72.2(a)(1), (b), (c), and (e); 72.3 
through 72.6(c)(1); 72.7 through 72.13(a) and (c); 72.30(c) and (d); 
72.32(c) and 72.32(d); 72.44(b), (d), (e),

[[Page 59684]]

and (f); 72.48; 72.50(a); 72.52; 72.54(d) through (m); 72.60; 72.62; 
72.72 through 72.80(f); 72.82 through 72.86; 72.104; 72.106; 72.122; 
72.124; 72.126; 72.140 through 72.176; 72.190 through 72.194; 72.210; 
72.212; and 72.216 through 72.220.
    (d) The following sections apply to activities associated with a 
certificate of compliance: Secs. 72.1; 72.2(e) and (f); 72.3; 72.4; 
72.5; 72.7; 72.9 through 72.13(a) and (d); 72.48; 72.84(a); 72.86; 
72.124; 72.140 through 72.176; 72.214; and 72.230 through 72.248.
    3. In Sec. 72.46, paragraph (e) is added to read as follows:


Sec. 72.46  Public hearings.

* * * * *
    (e) If an application for (or an amendment to) a specific license 
issued under this part incorporates by reference information on the 
design of an NRC-approved spent fuel storage cask, the scope of any 
public hearing held to consider the application will not include any 
cask design issues previously addressed by the Commission when it 
issued a Certificate of Compliance under subpart L of this part.
    4. In Sec. 72.86, paragraph (b) is revised to read as follows:


Sec. 72.86  Criminal penalties.

* * * * *
    (b) The regulations in part 72 that are not issued under sections 
161b, 161i, or 161o for the purposes of section 223 are as follows: 
Secs. 72.1, 72.2, 72.3, 72.4, 72.5, 72.7, 72.8, 72.9, 72.13, 72.16, 
72.18, 72.20, 72.22, 72.24, 72.26, 72.28, 72.32, 72.34, 72.40, 72.46, 
72.56, 72.58, 72.60, 72.62, 72.84, 72.86, 72.90, 72.96, 72.108, 72.120, 
72.122, 72.124, 72.126, 72.128, 72.130, 72.182, 72.194, 72.200, 72.202, 
72.204, 72.206, 72.210, 72.214, 72.220, 72.230, 72.238, and 72.240.
    5. In Sec. 72.140, paragraphs (c) and (d) are revised to read as 
follows:


Sec. 72.140  Quality assurance requirements.

* * * * *
    (c) Approval of program:
    (1) Each licensee, applicant for a license, certificate holder, or 
applicant for a CoC shall file a description of its quality assurance 
program, including a discussion of which requirements of this subpart 
are applicable and how they will be satisfied, in accordance with 
Sec. 72.4.
    (2) Each licensee shall obtain Commission approval of its quality 
assurance program prior to receipt of spent fuel at the ISFSI or spent 
fuel and high-level radioactive waste at the MRS. Each licensee or 
applicant for a specific license shall obtain Commission approval of 
its quality assurance program prior to commencing fabrication or 
testing of a spent fuel storage cask.
    (3) Each certificate holder or applicant for a CoC shall obtain 
Commission approval of its quality assurance program prior to 
commencing fabrication or testing of a spent fuel storage cask.
    (d) Previously approved programs. A quality assurance program 
previously approved by the Commission as satisfying the requirements of 
appendix B to part 50 of this chapter, subpart H to part 71 of this 
chapter, or subpart G to this part will be accepted as satisfying the 
requirements of paragraph (b) of this section, except that a licensee, 
applicant for a license, certificate holder, and applicant for a CoC 
who is using an appendix B or subpart H quality assurance program shall 
also meet the recordkeeping requirements of Sec. 72.174. In filing the 
description of the quality assurance program required by paragraph (c) 
of this section, each licensee, applicant for a license, certificate 
holder, and applicant for a CoC shall notify the NRC, in accordance 
with Sec. 72.4, of its intent to apply its previously approved quality 
assurance program to ISFSI activities or spent fuel storage cask 
activities. The notification shall identify the previously approved 
quality assurance program by date of submittal to the Commission, 
docket number, and date of Commission approval.
    6. In Sec. 72.234, paragraph (c) is revised to read as follows:


Sec. 72.234  Conditions of approval.

* * * * *
    (c) An applicant for a CoC may begin fabrication of spent fuel 
storage casks before the Commission issues a CoC for the cask; however, 
applicants who begin fabrication of casks without a CoC do so at their 
own risk. A cask fabricated before the CoC is issued shall be made to 
conform to the issued CoC prior to being placed in service or prior to 
spent fuel being loaded.
* * * * *
    7. Section 72.236 is amended by revising the introductory text to 
read as follows:


Sec. 72.236  Specific requirements for spent fuel storage cask approval 
and fabrication.

    The certificate holder and applicant for a CoC shall ensure that 
the requirements of this section are met.
* * * * *
    Dated at Rockville, Maryland, this 26th day of October, 1999.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 99-28594 Filed 11-2-99; 8:45 am]
BILLING CODE 7590-01-p