[Federal Register Volume 64, Number 69 (Monday, April 12, 1999)]
[Rules and Regulations]
[Pages 17510-17512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9041]


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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: Final 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.

EFFECTIVE DATE: May 12, 1999.

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

    On September 14, 1998 (63 FR 49046), the NRC published a proposed 
rule in the Federal Register that would amend NRC's regulations in 10 
CFR part 72 to eliminate a preoperational testing reporting requirement 
and a 30-day hold in loading spent fuel. Part 72 requires that the 
conditions for a site-specific license (10 CFR 72.24(g)) and the 
conditions for a Certificate of Compliance (CoC) (10 CFR 72.236(l)) 
contain requirements for 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 Safety Analysis Report (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). 
Information on the preoperational test program, including the specific 
tests and their acceptance criteria, are contained in the SAR submitted 
by the site-specific licensee or by the certificate holder for the 
design of the spent fuel storage cask to be used by the general 
licensee.
    Section 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, only a summary 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 sufficient hold 
point to ensure that the NRC has sufficient time to inspect 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.

Comments on the Proposed Rule

    The Commission received four letters commenting on the proposed 
rule. 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. One letter was from 
NEI, one letter from a CoC holder, and two letters were from utilities 
holding 10 CFR part 50 reactor licenses. All of the letters supported 
the proposed rule. One utility quantified the savings of eliminating 
the 30-day hold as more than $300,000.

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 the 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

[[Page 17511]]

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 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 subsequently 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 the current 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 10 
CFR 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 10 CFR 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 this 
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 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 10 CFR 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 five requests for 
exemptions in the last 3 years (1995-1998) by licensees and the need 
for the NRC staff to expend time processing these requests. The 
elimination of this regulation will preclude the need for exemption 
requests, enable the licensee to use the crew assembled for fuel 
transfer while the lessons of preoperational testing are fresh in their 
minds, and contribute to the efficiency of operations by avoiding 
unnecessary idle time. The NRC on-site inspection staff observing the 
spent fuel loading will similarly benefit.
    Therefore, the Commission is removing 10 CFR 72.82(e) from NRC's 
regulations because neither the report nor the 30-day hold period are 
needed for regulatory purposes and that taking this action will relieve 
licensees from an unnecessary regulatory burden. Although elimination 
of this reporting requirement will reduce the information which has 
been available to the public, the alternative sources of information 
available to the public on preoperational test activities are 
sufficient to allow for public review.

Environmental Impact: Categorical Exclusion

    The NRC has determined that this final 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 final rule.

Paperwork Reduction Act Statement

    This final rule decreases the burden on licensees by eliminating 10 
CFR 72.82(e) and the associated reporting burden. The burden reduction 
for this information collection is estimated to average 40 hours per 
request. Because the burden for this information collection is 
insignificant, Office of Management and Budget (OMB) clearance is not 
required. 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

    The amendment will 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 
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 rule is that elimination of a report and 30-day 
hold period not needed by the NRC will 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 imposes a potentially significant financial burden on 
licensees. The rule will 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 10 CFR 
72.82(e) and envisions that most future Part 72 licensees will also 
apply for exemption from this regulation.
    An impact of the final rule will be that a report of the 
preoperational test criteria and test results will no longer be 
available. However, information on the preoperational test criteria is 
contained in the SAR, which is available for review in the NRC PDR. In 
addition, 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 are 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 have retained a requirement 
not needed for regulatory purposes and thus would have imposed 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 that this final rule 
will not have a

[[Page 17512]]

significant economic impact on a substantial number of small entities. 
This final 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 final rule.

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.

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 on September 3, 1997 (62 FR 
46517), 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, by 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 adopting 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, Maryland, this 23rd day of March 1999.

    For the Nuclear Regulatory Commission.
William D. Travers,
Executive Director for Operations.
[FR Doc. 99-9041 Filed 4-9-99; 8:45 am]
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