[Federal Register Volume 63, Number 177 (Monday, September 14, 1998)]
[Proposed Rules]
[Pages 49046-49048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24567]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 72

RIN 3150-AG02


Elimination of Reporting Requirement and 30-Day Hold in Loading 
Spent Fuel After Preoperational Testing of Independent Spent Fuel 
Storage or Monitored Retrievable Storage Installations

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
regulations to eliminate the requirement that a report of the 
preoperational testing of an independent spent fuel storage 
installation or monitored retrievable storage installation be submitted 
to the NRC at least 30 days before the receipt of spent fuel or high-
level radioactive waste. Experience has shown that the NRC staff does 
not need the report or the holding period because the NRC staff is on 
site and evaluates preoperational testing as it occurs. This amendment 
will eliminate an unnecessary regulatory impact on licensees.

DATES: The comment period expires November 30, 1998. 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 to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemaking and 
Adjudications Staff.
    Deliver comments to: 11555 Rockville Pike, 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-
6215; e-mail [email protected].
    Certain documents related to this rulemaking, including comments 
received 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: Gordon Gundersen, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, telephone (301) 415-6195, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    Part 72 requires that the Safety Analysis Report (SAR) accompanying 
an application for a site-specific license (Sec. 72.24(g)) and the 
application for the approval of a spent fuel storage cask 
(Sec. 72.236(l)) contain information on the performance of 
preoperational testing by the site-specific licensee or the general 
licensee, respectively. The licensee is required to complete the 
preoperational testing program described in the applicable SAR before 
spent fuel is loaded into an independent spent fuel storage 
installation (ISFSI) or before spent fuel or high-level radioactive 
waste (HLW) is loaded into a monitored retrievable storage installation 
(MRS).
    10 CFR 72.82(e) requires licensees to submit to the NRC a report of 
the preoperational test acceptance criteria and test results at least 
30 days before the receipt of spent fuel or HLW for loading into an 
ISFSI or MRS. However, the licensee is not required to submit test 
procedures, but only a report of the test results. A copy of this 
report is subsequently placed in the NRC Public Document Room (PDR). 
The purpose of the 30-day period is to establish a hold point to allow 
NRC to review a new licensee's preparations and, if necessary, exercise 
its regulatory authority before spent fuel is received at an ISFSI or 
spent fuel and HLW at an MRS. The licensee is not required to obtain 
NRC approval of the report before commencing loading operations.

Discussion

    The requirement for a preoperational test report and 30-day hold 
period was added to the part 72 regulations governing licensing 
requirements for ISFSIs and an MRS at the time they became effective on 
November 28, 1980 (45 FR 74693), and before the NRC staff had any 
practical experience in licensing such facilities. However, in the 
intervening period, the Commission's practice has been for NRC staff to 
maintain an extensive oversight presence during the preoperational 
testing phase of ISFSIs, reviewing the acceptance criteria, 
preoperational test, and test results as they occur. Thus, NRC staff 
has had immediate access to the licensee's procedures and test results 
and has not needed either a preoperational test report or a 30-day hold 
period in order to complete its

[[Page 49047]]

inspection activities and determine whether any further regulatory 
action is needed before the licensee begins to load spent fuel or HLW.
    The NRC inspection program now in place (i.e., Inspection Manual 
Chapter 2690 and Inspection Procedures 60854 and 60855) ensures that 
the NRC staff will review the licensee's normal, abnormal, and 
emergency operating procedures, (including loading and unloading 
procedures), as well as observe implementation of those procedures 
during preoperational testing. Consequently, NRC staff is in a position 
to ensure that the licensee has resolved any problems before loading 
spent fuel into the ISFSI. NRC staff documents the results of the 
inspection of the preoperational test program in a written inspection 
report, which is placed in the PDR . This report contains conclusions 
on whether the licensee has adequately completed the preoperational 
test program, an assessment of the licensee's performance in completing 
the preoperational test program, and an assessment of the licensee's 
readiness to begin loading spent fuel or HLW.
    Notwithstanding that this regulation ensures that the NRC will be 
notified by the licensee before it begins loading spent fuel, other 
regulations and processes provide adequate assurance that the NRC will 
be aware of a licensee's anticipated loading activities. For ISFSIs at 
operating reactor sites, the Commission expects that on-site NRC 
resident inspector staff would be aware of any potential fuel loading 
activities. Additionally, general licensees are required by 
Sec. 72.212(b)(1)(I) to notify the NRC at least 90 days before spent 
fuel loading begins. For site-specific licensees, the fact that a 
license has been issued serves as adequate notice to the NRC that spent 
fuel loading activities are planned. Further, site-specific licensees 
are also required by Sec. 72.70(a) to submit a final safety analysis 
report to the Commission at least 90 days before spent fuel loading 
begins.
    The public will retain the ability to review a description of the 
preoperational tests and their acceptance criteria because such 
information is contained in the SAR, which is available for review in 
the NRC PDR. Relevant information on the preoperational test program 
and the results of the preoperational test program both will remain 
available for public review in the SAR and the inspection report, 
respectively.
    The NRC staff's experience has also been that the 30-day hold 
established by Sec. 72.82(e) creates a potentially significant 
financial burden for licensees because, during the 30-day period, the 
licensee can perform no loading activities even though the licensee is 
ready to load spent fuel or HLW. This has resulted in several requests 
for exemptions by licensees and the need for the NRC staff to expend 
time processing these requests. The elimination of this regulation 
would preclude the need for exemption requests and would enable the 
licensee to use the crew assembled for fuel transfer while the lessons 
of preoperational testing are fresh in their minds and will contribute 
to the efficiency of operations by avoiding unnecessary idle time. The 
NRC staff observers of spent fuel loading will similarly benefit.
    Therefore, the Commission proposes to remove 10 CFR 72.82(e) from 
NRC's regulations because it believes neither the report nor the 30-day 
hold period are needed for regulatory purposes and taking this action 
will relieve licensees from an unnecessary regulatory burden. While 
elimination of this reporting requirement will also remove a piece of 
information which was available to the public, the alternative sources 
of information available to the public on preoperational test 
activities adequately recount the licensee's performance of 
preoperational testing.

Environmental Impact: Categorical Exclusion

    The NRC has determined that this proposed rule is the type of 
action described as a categorical exclusion in 10 CFR 51.22(c)(3)(iii). 
Therefore, neither an environmental impact statement nor an 
environmental assessment has been prepared for this proposed rule.

Paperwork Reduction Act Statement

    This proposed rule decreases the burden on licensees by eliminating 
the requirement that a report of the preoperational testing of an 
independent spent fuel storage installation or monitored retrievable 
storage installation be submitted to the NRC at least 30 days before 
receipt of spent fuel or high-level radioactive waste, 10 CFR 72.82(e). 
The public burden reduction for this information collection is 
estimated to average 40 hours per response. Because the burden for this 
information collection is insignificant, Office of Management and 
Budget clearance is not required. Existing requirements were approved 
by the Office of Management and Budget, approval number 3150-0132.

Public Protection Notification

    If 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

    The proposed amendment would eliminate the requirement that 10 CFR 
part 72 licensees submit a report of the preoperational test acceptance 
criteria and test results at least 30 days before the receipt of spent 
fuel or HLW on the grounds that NRC's inspection program ensures that 
the NRC staff will be present for observance of preoperational testing 
and will be in a position to ensure that a licensee is prepared to 
safely load spent fuel or HLW. Thus, the report and the 30-day hold 
period are not needed for NRC's regulatory activities.
    The benefit of the proposed rule is that elimination of a report 
and 30-day hold period not needed by the NRC would reduce an 
unnecessary regulatory impact on licensees resulting from the 30-day 
waiting period following submittal of a report of the preoperational 
test criteria and test results to the NRC. During this period, the 
licensees can perform no loading activities even though the licensee is 
ready to load spent fuel or HLW. This could impose a potentially 
significant financial burden on licensees. The rule would also relieve 
both licensees and the NRC staff from the need to process exemption 
requests. The Commission has received and approved several requests for 
exemption from Sec. 72.82(e) and envisions that most future part 72 
licensees would also apply for exemption from this regulation. An 
impact of the proposed rule would be that a report of the 
preoperational test criteria and test results will no longer be 
available. However, NRC inspection reports will contain NRC findings on 
the preoperational testing and assessments on the licensee's readiness 
to commence loading spent fuel. These inspection reports will be 
available in the NRC Public Document Room system. The NRC also 
considered the alternative of shortening rather than eliminating the 
hold period but rejected this alternative because it would still retain 
a requirement not needed for regulatory purposes and thus, would still 
impose an unnecessary regulatory burden on licensees.

Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act of 1980 as 
amended 5 U.S.C. 605(b), the Commission certifies

[[Page 49048]]

that this proposed rule will not, if adopted, have a significant 
economic impact on a substantial number of small entities. This 
proposed rule would affect only the operators of ISFSIs. These 
companies do not fall within the scope of the definition of ``small 
entities'' set forth in the Regulatory Flexibility Act or the Small 
Business Size Standards set out in regulations issued by the Small 
Business Administration at 13 CFR Part 121.

Backfit Analysis

    The NRC has determined that the backfit rule, 10 CFR 72.62, does 
not apply to this rule, because this amendment does not involve any 
provisions that would impose backfits as defined in 10 CFR 72.62(a). 
Therefore, a backfit analysis is not required for this proposed rule.

Criminal Penalties

    For the purpose of Section 223 of the Atomic Energy Act (AEA), the 
Commission is issuing the proposed rule to amend 10 CFR 72.82, under 
one or more of sections 161b, 161i, or 161o of the AEA. Willful 
violations of this rule would be subject to criminal enforcement.

Compatibility of Agreement State Regulations

    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 (62 FR 46517, September 3, 
1997), this rule is classified as compatibility 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. Although an Agreement 
State may not adopt program elements reserved to NRC, it may wish to 
inform its licensees of certain requirements, via a mechanism that is 
consistent with the particular State's administrative procedure laws, 
but does not confer regulatory authority on the State.

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 amendment 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, 933, 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); secs. 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 sec. 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), Stat. 2252 (42 
U.S.C. 10198).


Sec. 72.82  [Amended]

    2. Section 72.82 is amended by removing paragraph (e).

    Dated at Rockville, MD, this 25th day of August, 1998.

    For the Nuclear Regulatory Commission.
L. Joseph Callan,
Executive Director for Operations.
[FR Doc. 98-24567 Filed 9-11-98; 8:45 am]
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