[Federal Register Volume 63, Number 218 (Thursday, November 12, 1998)]
[Rules and Regulations]
[Pages 63127-63130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30253]



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  Federal Register / Vol. 63, No. 218 / Thursday, November 12, 1998 / 
Rules and Regulations  

[[Page 63127]]


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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 50 and 70

RIN 3150-AF87


Criticality Accident Requirements

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its 
regulations to give licensees of light-water nuclear power reactors 
greater flexibility in meeting the requirement that licensees 
authorized to possess more than a small amount of special nuclear 
material (SNM) maintain a criticality monitoring system in each area in 
which the material is handled, used, or stored. This action is taken as 
a result of the experience gained in processing and evaluating a number 
of exemption requests from such licensees and NRC's safety assessments 
in response to these requests that concluded that the likelihood of 
criticality was negligible.

EFFECTIVE DATE: The final rule is effective on December 14, 1998.

FOR FURTHER INFORMATION CONTACT: Michael T. Jamgochian, Office of 
Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001; telephone: (301) 415-3224; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The U.S. Nuclear Regulatory Commission (NRC) is amending its 
regulations to give persons licensed to construct or operate light-
water nuclear power reactors the option of either meeting the 
criticality accident requirements of paragraph (a) through (c) of 10 
CFR 70.24 in handling and storage areas for SNM, or electing to comply 
with certain requirements that are set forth in a new Section 50.68 in 
10 CFR Part 50. The requirements in Section 50.68 are generally the 
requirements that the NRC has used to grant specific exemptions from 
the requirements of 10 CFR 70.24. In addition, the NRC is deleting the 
current text of Section 70.24(d) concerning the granting of specific 
exemptions from Section 70.24 because it is redundant to 10 CFR 
70.14(a). Section 70.24(d) is rewritten to provide that the 
requirements in paragraphs (a) through (c) of 10 CFR 70.24 do not apply 
to holders of a construction permit or operating license for a nuclear 
power reactor issued under 10 CFR Part 50, or combined licenses issued 
under 10 CFR Part 52, if the holders comply with the requirements of 10 
CFR 50.68(b).

II. Discussion

    On December 3, 1997 (62 FR 63825), the NRC published a direct final 
rule in the Federal Register that would have provided persons licensed 
to construct or operate light-water nuclear power reactors with the 
option of either meeting the criticality accident requirements of 
paragraph (a) of 10 CFR 70.24 in handling and storage areas for SNM, or 
electing to comply with requirements that would be incorporated into 10 
CFR Part 50 at 10 CFR 50.68. A direct final rule (62 FR 63825) and a 
parallel proposed rule (62 FR 63911) amending Parts 70 and 50 were 
published in the Federal Register on December 3, 1997. The statement of 
considerations for the direct final rule and the proposed rule stated 
that if significant adverse comments were received on the direct final 
rule, the NRC would withdraw the direct final rule and would address 
the comments in a subsequent final rule. Significant adverse comments 
were received from the public, and on February 25, 1998, the NRC 
published a notice withdrawing the direct final rule and revoking the 
regulatory text. Since the direct final rule had an effective date of 
February 17, 1998, it was necessary for the February 25, 1998 notice to 
revoke the regulatory text which became effective on February 17, 1998, 
as well as to withdraw the direct final rule. With the withdrawal and 
revocation, the proposed rule is the only regulatory proposal 
remaining. The NRC has determined to modify the proposed rule to 
address public comments and to make several editorial clarifications. 
The analysis of and response to the public comments to the proposed 
rule are set forth below.

III. Comments on the Proposed Rule

    The NRC received comments on the December 3, 1997, proposed rule 
(62 FR 63911) from Commonwealth Edison, Carolina Power & Light Company, 
Southern Nuclear Operating Company, Nuclear Energy Institute, Northern 
States Power Company, Trojan Nuclear Plant, and Detroit Edison. Copies 
of the 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. Many of the comment letters 
suggested editorial type changes, some of which have been incorporated 
into this final rule. The comments are classified into nine general 
comments and are addressed as follows:
    Comment 1: The proposed rule should not prohibit licensees from 
applying for exemptions under the guidelines of 10 CFR 70.14 and should 
contain provisions to note that any existing approved exemptions remain 
valid.
    Response: Even though the wording of paragraph (d) in the current 
version of 10 CFR 70.24, which provides for applying for exemptions 
should ``good cause'' exist, is being deleted, licensees are not 
prohibited from applying for such exemptions under the guidelines of 
paragraph (a) of 10 CFR 70.14, ``Specific Exemptions.''
    The standard for issuance of exemptions under Section 70.14 is 
essentially the same as the ``good cause'' criterion in paragraph (d) 
of Section 70.24. Therefore, its removal from Section 70.24(d) will not 
change the standard for, or otherwise serve to limit the granting of, 
exemptions to Section 70.24.
    This rulemaking does not affect the status of exemptions to the 
requirements of Section 70.24 that were previously granted by the NRC. 
A licensee currently holding an exemption to Section 70.24 may continue 
operation under its existing exemption (including any applicable 
conditions imposed as part of the granting of the exemption) and its 
current programs and commitments without any further action. 
Alternatively, a licensee

[[Page 63128]]

currently holding exemptions to Section 70.24 may elect to comply with 
the new alternative provided under Section 50.68(b), but if it does so, 
its exemption would be inapplicable and would not serve as a basis for 
avoiding compliance with the criteria listed in Section 50.68(b). A 
licensee whose exemption was issued as part of its operating license 
and whose exemption contained conditions imposed as part of the 
granting of the exemption, need not apply for a license amendment to 
delete the exemption conditions as a prerequisite for complying with 
Section 50.68(b).
    Comment 2: For many BWRs, optimum moderation calculations are not 
performed for the fresh fuel storage racks because administrative 
controls are in place to preclude these conditions. In accordance with 
vendor recommendations, compensatory measures have been established to 
preclude an optimum moderation condition in the fresh fuel storage 
racks. The rule should contain a provision that exempts this 
requirement if adequate controls have been established to preclude an 
optimum moderation condition.
    Response: The NRC agrees and has added the following provision to 
10 CFR 50.68(b)(3): ``This evaluation need not be performed if 
administrative control and/or design features prevent such moderation, 
or if fresh fuel storage racks are not used.''
    Comment 3. The rule should eliminate the reference to General 
Design Criterion 63 (GDC 63) and should describe the underlying 
monitoring requirements.
    Response: The reference to GDC 63 was initially incorporated to 
ensure that licensees receiving an exemption to 10 CFR 70.24 would not 
erroneously view the exemption as the basis for removing from the spent 
fuel pool area radiation monitors that were installed to meet other 
monitoring requirements, such as those contained in 10 CFR 20.1501 and 
GDC 63. This rule change does not affect these other monitoring 
requirements; therefore, referencing GDC 63 has been deleted.
    Comment 4. Placing a limit on enrichment offers no direct safety 
benefit and should not be included.
    Response: The NRC disagrees with the comment. The maximum allowable 
nominal enrichment of reactor fuel is currently limited to 5-weight 
percent on the basis of possible criticality concerns even in a dry 
environment, as well as currently approved extensions to 10 CFR 51.52 
based on an environmental impact study for enrichments higher than 5-
weight percent. Any future approved enrichment extension can be readily 
handled by modifying this criterion.
    Comment 5. Replace ``may not permit'' with ``shall prohibit the'' 
in Criterion (1).
    Response: The NRC agrees and has used the phrase suggested by the 
commenters.
    Comment 6. Use of ``pure water'' and ``unborated water'' should be 
consistent.
    Response: The NRC agrees. The final rule uses the term ``unborated 
water.''
    Comment 7. Criteria (2) and (3) should not be applicable if the 
licensee does not use the fresh fuel storage racks.
    Response: The NRC agrees and has added the following provision to 
10 CFR 50.68 (b)(2) and (b)(3): ``This evaluation need not be performed 
if administrative controls and/or design features prevent such 
moderation or if fresh fuel storage racks are not used.''
    Comment 8. The meaning of ``transportation'' in criterion (1) is 
unclear.
    Response: The NRC agrees and has deleted the term.
    Comment 9. The phrase ``maximum permissible U-235 enrichment'' in 
Criteria (2), (3), and (4) should be replaced by the phrase ``maximum 
fuel assembly reactivity.''
    Response: The NRC agrees and has used the phrase suggested by the 
commenter.

IV. Section-by-Section Analysis

10 CFR 50.68

    Paragraph (a) of Section 50.68 allows a nuclear power plant 
licensee (including a holder of either a construction permit or a 
combined operating license) the option of complying with Section 70.24 
(a) through (c), or complying with the requirements in paragraph (b) of 
Section 50.68. The corresponding provision in Section 70.24 is 
paragraph (d).
    Paragraph (b) sets forth eight specific requirements which a 
licensee must comply with so long as it chooses under the provisions of 
Section 50.68 to avoid compliance with the requirements of Section 
70.24 (a) through (c).
    A licensee currently holding an exemption to Section 70.24 may 
elect to comply with the new alternative provided under Section 50.68, 
but if it does so, its exemption to Section 70.24 is inapplicable to, 
and would not serve as a basis for avoiding compliance with the eight 
criteria in Section 50.68(b).

10 CFR 70.24

    Paragraph (d)(1) of Section 70.24 allows a nuclear power plant 
licensee (including a holder of either a construction permit or a 
combined operating license) the option of complying with Section 70.24 
(a) through (c), or complying with the requirements in 10 CFR Section 
50.68. This paragraph is the corresponding provision to Section 
50.68(a).
    Paragraph (d)(2) clarifies that the status of exemptions to the 
requirements of Section 70.24 that were previously granted by the NRC 
continue unaffected by this rulemaking. A licensee currently holding an 
exemption to Section 70.24 may continue operation under its existing 
exemption (including any applicable conditions imposed as part of the 
grant of the exemption) and its current programs and commitments 
without any further action.
    A license that seeks an exemption from the requirements of Section 
70.24 must meet the criteria for an exemption under Section 70.14. The 
standard for issuance of exemptions remains unchanged from the old 
rule, since the Commission regards the former ``good cause'' criterion 
under the previous version of Section 70.24(d) as being essentially the 
same as the standard for issuance of exemptions under Paragraph 70.14.

V. Metric Policy

    On October 7, 1992, the Commission published its final Policy 
Statement on Metrication. According to that policy, after January 7, 
1993, all new regulations and major amendments to existing regulations 
were to be presented in dual units. The new addition and amendment to 
the regulations contain no units.

VI. Finding of No Significant Environmental Impact

    The NRC has determined under the National Environmental Policy Act 
of 1969, as amended, and the Commission's regulations in Subpart A of 
10 CFR Part 51, that this rule, would not be a major Federal action 
significantly affecting the quality of the human environment; and 
therefore, an environmental impact statement is not required. The final 
rule provides an alternative to existing requirements on criticality 
monitoring. The alternative method contained in the final rule in the 
new Section 50.68 represents a codification of the criteria currently 
used by the NRC for granting exemptions from the criticality monitoring 
requirements in 10 CFR 70.24(a). These criteria provide an acceptable 
alternative for assuring that there are no inadvertent criticality 
events of special nuclear material at nuclear power reactors, which is 
the purpose of the criticality monitoring

[[Page 63129]]

requirements in Section 70.24(a). Experience over 15 years has 
demonstrated that the alternative criteria have been effective in 
preventing inadvertent criticality events, and the NRC concludes that 
as a matter of regulatory efficiency, there is no purpose to requiring 
licensees to apply for and obtain exemptions from requirements of 
Section 70.24(a) if they adhere to the alternative criteria in the new 
Section 50.68. Since the alternative contained in Section 50.68 
provides an equally effective method for preventing inadvertent 
criticality events in nuclear power plants, the NRC concludes that the 
final rule will not have any significant impact on the quality of the 
human environment. Therefore, an environmental impact statement has not 
been prepared for this regulation. This discussion constitutes the 
environmental assessment for this rulemaking.

VII. Paperwork Reduction Act Statement

    This final rule does not contain a new or amended information 
collection requirement subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the 
Office of Management and Budget, approval numbers 3150-0009 and 3150-
0011.

VIII. 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.

IX. Regulatory Analysis

    The current structure of the current 10 CFR 70.24 is overly broad 
and places a burden on a licensee to identify those areas or operations 
at its facility where the requirements are unnecessary, and to request 
an exemption if the licensee has sufficient reason to be relieved from 
the requirements. This existing structure has resulted in a large 
number of exemption requests.
    To relieve the burden on power reactor licensees of applying for, 
and the burden on the NRC of granting exemptions, this amendment 
permits power reactor facilities with nominal fuel enrichments no 
greater than 5-weight percent of U-235 to be excluded from the scope of 
10 CFR 70.24, provided they meet specific requirements being added to 
10 CFR Part 50. This amendment is a result of the experience gained in 
processing and evaluating a number of exemption requests from power 
reactor licensees and NRC's safety assessments in response to these 
requests which concluded that the likelihood of criticality was 
negligible.
    The only other viable option to this amendment is for the NRC to 
make no changes and allow the licensees to continue requesting 
exemptions. If no changes are made, the licensees will continue to 
incur the costs of submitting exemptions and NRC will incur the costs 
of reviewing them. Under this rule, an easing of the burden on 
licensees results from not having to request exemptions. Similarly, the 
NRC's burden will be reduced by avoiding the need to review and 
evaluate these exemption requests.
    This rule is not a mandatory requirement, but an easing of burden 
action which results in regulatory efficiency. Also, the rule does not 
impose any additional costs on existing licensees and has no negative 
impact on public health and safety, but will provide savings to future 
licensees, and may provide some reduction in burden to current 
licensees whose current exemption includes conditions which are more 
restrictive than the requirements in Section 50.68. There will also be 
savings in resources to the NRC as well. Hence, the rule is shown to be 
cost beneficial.
    The foregoing constitutes the regulatory analysis for this final 
rule.

X. Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the NRC hereby certifies that this rule, if adopted, will not 
have a significant economic impact on a substantial number of small 
entities. This rule affects only the licensees of nuclear power plants. 
These licensee companies that are dominant in their service areas, do 
not fall within the scope of the definition of ``small entities'' set 
forth in the Regulatory Flexibility Act, 5 U.S.C. 601, or the size 
standards adopted by the NRC (10 CFR 2.810).

XI. Backfit Analysis

    The NRC has determined that this rule does not impose a backfit as 
defined in 10 CFR 50.109(a)(1), since it provides an alternative to 
existing requirements on criticality monitoring. Accordingly, the NRC 
has not prepared a backfit analysis for this rule.

XII. Small Business Regulatory Enforcement Fairness Act

    In accordance with the Small Business Regulatory Enforcement 
Fairness Act of 1996, the NRC has determined that this action is not a 
``major rule'' and has verified this determination with the Office of 
Information and Regulatory Affairs, Office of Management and Budget.

List of Subjects

10 CFR Part 50

    Antitrust, Classified information, Criminal penalties, Fire 
protection, Intergovernmental relations, Nuclear power plants and 
reactors, Radiation protection, Reactor siting criteria, Reporting and 
recordkeeping requirements.

10 CFR Part 70

    Criminal penalties, Hazardous materials transportation, Material 
control and accounting, Nuclear materials, Packaging and containers, 
Radiation protection, Reporting and recordkeeping requirements, 
Scientific equipment, Security measures, Special nuclear material.

    For the reasons stated in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended, the Energy Reorganization 
Act of 1974, as amended, the National Environmental Policy Act of 1969, 
as amended, and 5 U.S.C. 553, the NRC is adopting the following 
amendments to 10 CFR Parts 50 and 70:

PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION 
FACILITIES

    The authority citation for 10 CFR part 50 continues to read as 
follows:

    1. Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 
68 Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 
234, 83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 
2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 
206, 88 Stat. 1242, as amended 1244, 1246, (42 U.S.C. 5841, 5842, 
5846).

    Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951, as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123, (42 
U.S.C. 5851). Section 50.10 also issued under secs. 101, 185, 68 
Stat. 936, 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 
91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd), 
and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 
U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued 
under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 
50.55a and Appendix Q also issued under sec. 102, Pub. L. 91-190, 83 
Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued 
under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 
50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 
U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 
(42 U.S.C. 2152). Sections 50.80 and 50.81

[[Page 63130]]

also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 
2234). Appendix F also issued under sec. 187, 68 Stat. 955 (42 
U.S.C. 2237).

    2. Section 50.68 is added under the center heading ``Issuance, 
Limitations, and Conditions of Licenses and Construction Permits'' to 
read as follows:


Sec. 50.68  Criticality accident requirements.

    (a) Each holder of a construction permit or operating license for a 
nuclear power reactor issued under this part or a combined license for 
a nuclear power reactor issued under Part 52 of this chapter, shall 
comply with either 10 CFR 70.24 of this chapter or the requirements in 
paragraph (b) of this section.
    (b) Each licensee shall comply with the following requirements in 
lieu of maintaining a monitoring system capable of detecting a 
criticality as described in 10 CFR 70.24:
    (1) Plant procedures shall prohibit the handling and storage at any 
one time of more fuel assemblies than have been determined to be safely 
subcritical under the most adverse moderation conditions feasible by 
unborated water.
    (2) The estimated ratio of neutron production to neutron absorption 
and leakage (k-effective) of the fresh fuel in the fresh fuel storage 
racks shall be calculated assuming the racks are loaded with fuel of 
the maximum fuel assembly reactivity and flooded with unborated water 
and must not exceed 0.95, at a 95 percent probability, 95 percent 
confidence level. This evaluation need not be performed if 
administrative controls and/or design features prevent such flooding or 
if fresh fuel storage racks are not used.
    (3) If optimum moderation of fresh fuel in the fresh fuel storage 
racks occurs when the racks are assumed to be loaded with fuel of the 
maximum fuel assembly reactivity and filled with low-density 
hydrogenous fluid, the k-effective corresponding to this optimum 
moderation must not exceed 0.98, at a 95 percent probability, 95 
percent confidence level. This evaluation need not be performed if 
administrative controls and/or design features prevent such moderation 
or if fresh fuel storage racks are not used.
    (4) If no credit for soluble boron is taken, the k-effective of the 
spent fuel storage racks loaded with fuel of the maximum fuel assembly 
reactivity must not exceed 0.95, at a 95 percent probability, 95 
percent confidence level, if flooded with unborated water. If credit is 
taken for soluble boron, the k-effective of the spent fuel storage 
racks loaded with fuel of the maximum fuel assembly reactivity must not 
exceed 0.95, at a 95 percent probability, 95 percent confidence level, 
if flooded with borated water, and the k-effective must remain below 
1.0 (subcritical), at a 95 percent probability, 95 percent confidence 
level, if flooded with unborated water.
    (5) The quantity of SNM, other than nuclear fuel stored onsite, is 
less than the quantity necessary for a critical mass.
    (6) Radiation monitors are provided in storage and associated 
handling areas when fuel is present to detect excessive radiation 
levels and to initiate appropriate safety actions.
    (7) The maximum nominal U-235 enrichment of the fresh fuel 
assemblies is limited to five (5.0) percent by weight.
    (8) The FSAR is amended no later than the next update which 
Sec. 50.71(e) of this part requires, indicating that the licensee has 
chosen to comply with Sec. 50.68(b).

PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

    The authority citation for 10 CFR part 70 continues to read as 
follows:

    1. Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 
948, 953, 954, as amended, sec. 234, 83 Stat. 444, as amended, sec. 
1701, 106 Stat. 2951, 2952, 2953 (42 U.S.C. 2071, 2073, 2201, 2232, 
2233, 2282, 2297f); secs. 201, as amended, 202, 204, 206, 88 Stat. 
1242, as amended, 1244, 1245, 1246, (42 U.S.C. 5841, 5842, 5845, 
5846).

    Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141, 
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). 
Section 70.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951 (42 U.S.C. 5851). Section 70.21(g) also issued under sec. 122, 
68 Stat. 939 (42 U.S.C. 2152). Section 70.31 also issued under sec. 
57d, Pub. L. 93-377, 88 Stat. 475 (42 U.S.C. 2077). Sections 70.36 
and 70.44 also issued under sec. 184, 68 Stat. 954, as amended (42 
U.S.C. 2234).
    Section 70.61 also issued under secs. 186, 187, 68 Stat. 955 (42 
U.S.C. 2236, 2237). Section 70.62 also issued under sec. 108, 68 
Stat. 939, as amended (42 U.S.C. 2138).

    2. In Sec. 70.24, paragraph (d) is revised to read as follows:


Sec. 70.24  Criticality accident requirements.

* * * * *
    (d)(1) The requirements in paragraphs (a) through (c) of this 
section do not apply to a holder of a construction permit or operating 
license for a nuclear power reactor issued under part 50 of this 
chapter or a combined license issued under part 52 of this chapter, if 
the holder complies with the requirements of paragraph (b) of 10 CFR 
50.68.
    (2) An exemption from Sec. 70.24 held by a licensee who thereafter 
elects to comply with requirements of paragraph (b) of 10 CFR 50.68 
does not exempt that licensee from complying with any of the 
requirements in Sec. 50.68, but shall be ineffective so long as the 
licensee elects to comply with Sec. 50.68.

    Dated at Rockville, Maryland this 28th day of October, 1998.

    For the Nuclear Regulatory Commission.
William D. Travers,
Executive Director for Operations.
[FR Doc. 98-30253 Filed 11-10-98; 8:45 am]
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