[Federal Register Volume 64, Number 207 (Wednesday, October 27, 1999)]
[Rules and Regulations]
[Pages 57769-57774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28049]



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  Federal Register / Vol. 64, No. 207 / Wednesday, October 27, 1999 / 
Rules and Regulations  

[[Page 57769]]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 71

RIN 3150-AF58


Fissile Material Shipments and Exemptions; Response to Comments 
and Request for Information

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule: Response to public comments and request for 
information.

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SUMMARY: The Nuclear Regulatory Commission (NRC) published on February 
10, 1997; 62 FR 5907, an emergency final rule which amended its 
regulations regarding the shipment of exempt quantities of fissile 
material and the shipment of fissile material under a general license. 
The NRC issued the emergency final rule without a notice of proposed 
rulemaking and the accompanying opportunity for public comment prior to 
the rule's finalization, because NRC found good cause to dispense with 
these steps as being impracticable and contrary to the public interest, 
as permitted under the Administrative Procedure Act. Notwithstanding 
the final status of the rule, NRC solicited public comments on the rule 
during a 30-day comment period following publication in accordance with 
the Commission's regulations. This notice contains the NRC response to 
public comments received on the rule. These comments essentially stated 
that the emergency rule, although needed for shipments with special 
moderators, caused an unnecessary economic burden to shippers of 
fissile material exempt and general licensed shipments that use water 
as the moderator. In order to quantify any unintended economic impact 
caused by the emergency rule, the NRC is requesting information on the 
costs of implementing the emergency final rule.

DATES: The final rule became effective February 10, 1997. Comments on 
the costs associated with shipments of fissile material made under the 
fissile material exemption and general license provisions of Part 71 
are requested by January 10, 2000.

ADDRESSES: Comments on the costs associated with shipments of fissile 
material made under the fissile material exemption and general license 
provisions of Part 71 should be sent to: Secretary, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001; Attn: Rulemakings and 
Adjudications Staff. Hand deliver comments to 11555 Rockville Pike, 
Rockville, MD, between 7:30 am and 4:15 p.m. on Federal workdays.
    You may also provide comments via the NRC's interactive rulemaking 
web site (http://ruleforum.llnl.gov). This site provides the 
availability to upload comments as files (any format) if your web 
browser supports that function. For information about the interactive 
rulemaking site, contact Ms. Carol Gallagher, (301) 415-5905; e-mail 
[email protected].
    Certain documents related to the emergency final rule, including 
comments received by the NRC on the costs associated with shipments of 
fissile material made under the fissile material exemption and general 
license provisions of Part 71, may be examined at the NRC Public 
Document Room, 2120 L Street NW., (Lower Level), Washington, DC. These 
same documents also may be viewed and downloaded electronically via the 
interactive rulemaking website established by NRC for the emergency 
final rule.

FOR FURTHER INFORMATION CONTACT: Naiem S. Tanious, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, telephone (301) 415-6103, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On February 10, 1997; 62 FR 5907, the NRC published an emergency 
final rule to expeditiously correct a defect in its fissile material 
regulations, that was discovered 5 months earlier by Babcock & Wilcox, 
Naval Nuclear Fuel Division (B&W). B&W, an NRC licensee, had notified 
the NRC by telephone on September 11, 1996, that it had discovered that 
the NRC and the U.S. Department of Transportation (DOT) regulations (10 
CFR 71.53 and 49 CFR 173.453, respectively) on fissile exempt shipments 
did not provide adequate criticality safety for certain shipments of 
fissile material 1 (enriched uranium containing beryllium 
oxide.) Specifically, B&W demonstrated through calculations that a 
shipment, containing large amounts of an exempt concentration of 
enriched uranium in the presence of beryllium, intended to be shipped 
pursuant to the then existing 10 CFR 71.53(d), could result in a 
nuclear criticality.2 B&W indicated that a beryllium oxide-
enriched uranium mixture would be produced as a waste product from its 
processing of strategic material resulting from operations to 
commercially downblend weapons-usable fissile material from the former 
Soviet Union. B&W promptly notified the NRC of its concern, provided 
its calculations to the NRC, and made commitments not to make any such 
shipments. The NRC staff subsequently reviewed and verified B&W's 
calculations and determined that expeditious revisions to NRC 
regulations were needed to correct the deficiency because an 
inadvertent nuclear criticality in the public domain could involve 
fatalities, health effects from the resulting radiation exposures, and 
extensive cleanup costs.
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    \1\ Fissile is defined in 10 CFR Part 71 and 49 CFR Part 173 as: 
plutonium-238, plutonium-239, plutonium-241, uranium-233, uranium-
235, or any combination of these radionuclides. Packages used for 
shipment of materials containing these radionuclides must meet 
specific standards and operating limits designed to preclude nuclear 
criticality during transport, unless excepted by specific 
regulations (e.g., 10 CFR 71.53 or 49 CFR 173.453).
    \2\ For transportation purposes, nuclear criticality means a 
condition in which an uncontrolled, self-sustaining and neutron-
multiplying fission chain reaction occurs. Nuclear criticality is 
generally a concern when sufficient concentrations and masses of 
fissile material and neutron moderating material exist together in a 
favorable configuration. The neutron moderating material cannot 
achieve criticality by itself in any concentration or configuration. 
It can enhance the ability of fissile material to achieve 
criticality by slowing down neutrons or reflecting neutrons.
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    The NRC also brought this problem immediately to the attention of 
the DOT and the U.S. Department of Energy (DOE). The DOT is a 
coregulator of fissile material shipments, and the DOE makes many 
shipments of fissile exempt

[[Page 57770]]

material each year. The NRC informed the DOT of its intent to issue an 
emergency final rule. The DOT decided to defer any rulemaking until DOT 
staff could review the public comments on the NRC's emergency final 
rule.
    The criticality safety problem brought to NRC's attention with 
respect to Sec. 71.53 caused the NRC staff to review Part 71 to 
determine whether any other provisions of this part might be similarly 
deficient. The general licenses in Secs. 71.18 and 71.22 provide for 
criticality control by limiting the quantity of fissile material in a 
single package (i.e., similar to the quantity-based fissile exemptions 
in Sec. 71.53). Section 71.18 (General license: Fissile material, 
limited quantity per package) also assigns a criticality transport 
index 3 (pursuant to Sec. 71.4) to each package. These 
sections were found to have deficiencies comparable to those discovered 
in Sec. 71.53, where there were no restrictions placed on special 
moderating materials (i.e., materials which would increase the number 
of neutrons available to cause fission as compared with ordinary water. 
Section 71.22 (General license: Fissile material, limited quantity, 
controlled shipment) had the additional deficiency of not limiting the 
total amount of fissile material in a conveyance. During the NRC 
staff's review, Secs. 71.20 and 71.24, which also provide general 
licenses, were found to be adequate in that the moderators of concern 
were excluded.
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    \3\ Transport index is defined in 10 CFR Part 71 as: the 
dimensionless number (rounded to the next tenth) placed on the label 
of a package, to designate the degree of control to be exercised by 
the carrier during transportation. For a fissile material package, 
the transport index is considered to be the larger of two numbers: 
the first is for external radiation control and is calculated based 
on the maximum radiation level at one meter from the external 
surface of the package, and the second is for criticality control 
purposes and is calculated based on the allowable number of packages 
stacked together during transportation.
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    Packages for shipments made in accordance with a fissile material 
exemption in Sec. 71.53 or the general license in Sec. 71.18 or 
Sec. 71.22, are not required to be certified by the NRC. The intent of 
Secs. 71.53, 71.18, and 71.22, is that any materials packaged and 
shipped in accordance with the limits in these sections (and the other 
applicable sections of 10 CFR Part 71 and 49 CFR Part 173) were 
inherently safe (incapable of an inadvertent criticality). The B&W 
analyses demonstrated that a deficiency existed in these requirements.
    The safety problem uncovered by the B&W calculations, and verified 
by the NRC, involved quantities, geometries, and concentrations of 
fissile materials and moderators that could result in criticality when 
shipped in compliance with sections of the regulations for which 
criticality analyses are not required. Fissile exemptions in Sec. 71.53 
and the general licenses in Secs. 71.18 and 71.22, were originally 
based on the assumption that water is the only moderator that might be 
present in fissile exempt shipments. In these cases, these rules 
provide inherent criticality safety without a need for shippers to 
perform separate analyses. However, some moderators (herein referred to 
as special moderating materials) can increase the number of neutrons 
available to cause fission as compared to ordinary water and result in 
the potential for criticality in shipments where these moderators are 
present, even though the shipments are in compliance with 10 CFR 71.53 
and 49 CFR 173.453.
    When the issue was identified to the NRC in September 1996, the 
presence of special moderating materials in significant quantities in 
NRC-regulated shipments of fissile exempt materials had not been 
anticipated. However, certain international initiatives, including 
efforts to reduce stockpiles of strategic weapons material by 
processing for commercial use, have resulted in the greater likelihood 
of inclusion of these materials in NRC regulated shipments. The 
materials proposed to be shipped by B&W resulted from such a source. 
B&W had been awarded a contract to process weapons-usable enriched 
uranium materials from the Republic of Kazakstan. The waste product of 
the processing, a uranium-beryllium filtercake, met the fissile 
exemption provisions in then existing 10 CFR 71.53(d) and 49 CFR 
173.453(d). However, B&W used a computer model of the enriched uranium-
beryllium oxide waste packages to demonstrate that, if the packages 
were loaded for shipment into a sea-land container at the regulatory 
fissile exempt concentration limit, adequate confidence in nuclear 
criticality safety would not have been provided. NRC had verified 
through independent analyses that the concerns raised by the B&W 
analysis were valid and apply to other geometries and moderating 
characteristics as well. To avoid inadvertent criticality, the NRC 
determined that it was necessary to restrict shipments of fissile 
material with three special moderating materials: beryllium, graphite, 
and deuterium.
    However, the NRC concluded that limiting beryllium, graphite, and 
deuterium to trace quantities would not completely eliminate the 
possibility of criticality in fissile exempt or generally licensed 
shipments. There was also a need to limit the quantity of material in a 
single consignment (the B&W criticality model calculations were 
performed using 200-centimeter high infinite slab configuration). The 
problem of a lack of control on the total amount of fissile exempt 
material in an exempt shipment was originally identified during the 
revision process for the 1996 Edition of the International Atomic 
Energy Agency's (IAEA's) ``Regulations for the Safe Transport of 
Radioactive Material,'' Safety Requirement No. ST-1. The problem was 
addressed in ST-1 by adopting a consignment limit on the amount of 
fissile exempt material that a shipper could transport as a private 
carrier (400g for Uranium-235, and 250g for other fissile material), or 
deliver to a common carrier for shipment. Before the emergency final 
rule, the NRC could not enforce a limit on the total quantity of 
fissile material in a common carrier shipment because the regulations 
did not require a transport index for each package or require shipment 
by exclusive use. The latter would restrict the ability to use common 
carriers, while requiring a transport index would negate much of the 
advantage gained by the exemption. Consignment limits are enforceable 
and represent a practical operating limit that would prevent the 
potentially unsafe accumulation of fissile exempt materials during 
shipment.
    The NRC addressed these regulatory defects by issuing the emergency 
final rule in February 1997. The final rule amended Secs. 71.18, 71.22, 
and 71.53 by restricting the quantity of fissile material in a 
shipment--if trace quantities of special moderating materials (i.e., 
beryllium, graphite, or deuterium) were present. The final rule also 
restricted the quantity of fissile material shipped under a general 
license or exempt shipment to a consignment limit of no greater than 
400 grams.
    The NRC issued the emergency final rule without a notice of 
proposed rulemaking and opportunity for public comment prior to 
finalization because the Commission found good cause for dispensing 
with these steps as being impracticable and contrary to the public 
interest under the good cause tests for omitting notice and comment of 
the Administrative Procedure Act (5 U.S.C. 553(b)(B)). Notwithstanding 
the final status of the rule, the Commission solicited public comments 
on the final rule during a 30-day comment period following publication 
of the rule, in accordance with the provisions of 10 CFR 2.804(e). The 
Commission stated

[[Page 57771]]

that it would publish a statement in the Federal Register containing an 
evaluation of the significant comments received and any revisions to 
the rule to be made as a result of the comments. The comment period 
ended on March 12, 1997. Following publication of the emergency rule 
and receipt of public comments, the NRC staff sought to study the 
technical issues raised by the public comments, and to perform an 
independent evaluation of part 71 regulations relating to the fissile 
material exemption and general license limits. The NRC awarded a 
contract to the Oak Ridge National Laboratory (ORNL). The results of 
the ORNL study were published by NRC in July 1998 and noticed in the 
Federal Register on August 13, 1998. This notice responds to the 
comments received on the rule and the results of the ORNL study.

II. Discussion

    In developing the emergency final rule, NRC staff noted that the 
regulatory and technical bases for the fissile exemption and general 
license provisions of Part 71 were internally inconsistent and not 
thoroughly documented. Based on these regulatory/technical bases 
questions and the public comments received on the rule, the NRC issued 
a contract to Oak Ridge National Laboratory (ORNL) to: (1) perform an 
independent evaluation of Part 71 regulations relating to the fissile 
material exemption and general license limits; (2) review the technical 
issues raised by public comments on the emergency final rule; (3) 
perform independent calculations of the minimum critical mass limits 
for different combinations of fissile material and moderating material; 
and (4) identify potential changes to the fissile material exemption 
and general license limits which may be warranted. The results of the 
ORNL study are contained in NUREG/CR-5342,4 Assessment and 
Recommendations for Fissile Material Packaging Exemptions and General 
Licenses Within 10 CFR Part 71, issued July 1998. Publication of NUREG/
CR-5342 was noticed in the Federal Register (63 FR 44777; August 13, 
1998).
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    \4\ Copies of NUREGS may be purchased from the Reproduction and 
Distribution Section, Office of the Chief Information Officer, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001. Copies are 
also available from the National Technical Information Service, 5285 
Port Royal Road, Springfield, VA 22161. A copy is also available for 
inspection and/or copying for a fee at the NRC Public Document Room, 
2120 L street, NW. (Lower Level), Washington, DC.
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    ORNL researched the historical bases for the fissile material 
exemption and general license regulations in Part 71 and discussed the 
impact of the emergency final rule's restrictions on NRC licensees. 
ORNL also performed calculations of keff (k-effective) for 
various combinations of fissile material and moderating material, 
including beryllium, carbon, deuterium, silicon-dioxide, and water, to 
verify the accuracy of minimum critical mass values. These minimum 
critical mass values were applied to the regulatory structure contained 
in the current Part 71, and revised mass limits for both the general 
license and exemption provisions to Part 71 were determined. ORNL 
concluded, and NRC staff agreed, that the restrictions imposed by the 
emergency final rule on shipments with special moderating material were 
necessary to protect public health and safety; however, the 
restrictions are excessive for water-moderated shipments. Based on its 
new keff calculations, we also agree that: (1) The mass 
limits in the general license and exemption provisions could be safely 
increased and thereby provide greater flexibility to licensees shipping 
fissile radioactive material; and (2) additional revisions to Part 71 
were appropriate to provide greater clarification and simplification of 
the regulations. We believe these changes will resolve the issues 
raised in the public comments on the emergency final rule, and provide 
greater usability to these Part 71 regulations.

III. Response to Comments on the Emergency Final Rule

    The NRC received eight letters commenting on the emergency final 
rule. Four were from NRC fuel-cycle licensees; one from a remediation 
and decommissioning company, one from DOE, one from the Nuclear Energy 
Institute (NEI); and one from a member of the public (same comments as 
DOE's). None of the commenters objected to the rule insofar as it 
imposes restrictions on the shipments of fissile material when special 
moderating materials (i.e., beryllium, graphite, or deuterium) are 
present. However, all the commenters also believed that the changes to 
Part 71 that imposed consignment limits when special moderating 
materials are not used, were too restrictive and imposed an unnecessary 
burden on licensees. Several commenters believed that the final rule 
would significantly increase the number of shipments and would increase 
licensee costs and paperwork burdens to transport the same quantity of 
fissile material. Some commenters indicated that the number of 
shipments of fissile material involving the presence of special 
moderators was only a small percentage of the total number of shipments 
involving fissile exempt and general license material which occur each 
year, and that the negative aspects of the rule for all shipments were 
not balanced by the accompanying increase in public health and safety. 
Some commenters requested that the consignment limits be removed, 
others requested that the table after 10 CFR 71.53(a) be clarified to 
indicate that it applied only to shipments with special moderating 
material present. Overall, the commenters indicated that the final rule 
was excessively burdensome for a large number of shipments that do not 
contain special moderators and requested that further rulemaking be 
accomplished to address their concerns. Detailed discussion of the 
comments is presented below. Response to this general comment is 
presented first, with responses to other specific comments presented 
later. Copies of the comment letters are available for public 
inspection and copying, for a fee, at the Commission's Public Document 
Room, located at 2120 L Street NW. (Lower Level), Washington, DC 20003-
1527.
    General Comment: All eight commenters objected to the imposition of 
the 400-gram limit of fissile material per consignment when special 
moderating materials (i.e., beryllium, graphite, or deuterium) are not 
present. The commenters stated that the 400-gram limit was 
unnecessarily restrictive for the majority of shipments (i.e., water-
moderated), and imposed a penalty on shippers for what had been 
considered perfectly safe controls under the old requirements without a 
justification being provided. Two commenters stated that this new limit 
would double or triple the number of separate shipments needed to 
transport the same amount of fissile material, and that this increase 
in the number of shipments of fissile material would cause a 
corresponding increase in probability of worker injuries and 
transportation accidents, and would increase licensee costs and 
paperwork burdens to ship the same amount of fissile material. Two 
commenters indicated that the rule will impose unnecessary accounting 
and recordkeeping requirements on licensees to assure compliance with 
the rule. These commenters also believe that shippers will now need to 
more accurately determine the concentration of fissile material present 
in a package to assure compliance with this rule. One commenter was 
concerned that these negative aspects of the rule were not balanced by 
the accompanying increase in public health and safety. One

[[Page 57772]]

commenter stated that instead of globally restricting shipments which 
do not contain special moderating materials, the NRC should have 
identified a category of material descriptive of the special moderator-
containing material, and restricted only that category.
    Response: The 400-gram limit of fissile material per consignment is 
essential to preclude an inadvertent criticality occurring during a 
transportation accident involving fissile material shipments with 
special moderators. However, the Commission agrees with the commenters 
that the 400-gram limit may have caused an unintended and unnecessary 
economic burden to licensees whose fissile material exempt and general 
licensed shipments use water as the moderator because the 400-gram 
consignment limit may be too restrictive, in some cases. The Commission 
will address these unintended economic impact issues in an upcoming 
rulemaking currently being developed to revise Part 71 to make it 
compatible with the 1996 IAEA standards. This rulemaking effort will 
more thoroughly examine these issues, however, the Commission has not, 
as yet, been able to obtain specific information regarding the burden 
claim made by the commenters. The staff is currently seeking specific 
information from the commenters to quantify this burden. The NRC needs 
this cost/benefit data from the fissile material shipping industry to 
quantify the unintended impact of the emergency rule. Therefore, the 
Commission is taking this opportunity to explicitly request this 
information from the commenters, the industry and the DOE.
    The Commission had imposed the 400-gram consignment limit because 
of the regulatory latitude given to these fissile exempt and general 
license shippers. Shipments of exempt quantities of fissile material 
under Sec. 71.53 occur without NRC prior review or imposition of any 
additional requirements on the quantity of fissile material which may 
be placed on a conveyance. Therefore, the Commission imposed a 400-gram 
limit on the amount of fissile material that could be shipped in a 
single package. This limit was intended to ensure that a nuclear 
criticality accident would be precluded under highly unlikely, but 
theoretically conceivable, circumstances by restricting the quantity of 
fissile material that could be inadvertently assembled to less than 
one-half that of a critical mass needed for criticality to occur. These 
circumstances could exist when exempt quantities of fissile material, 
from two different shippers, wind up on the same conveyance and that 
conveyance is subsequently involved in an accident.
    Additionally, in the emergency final rule the Commission simplified 
the regulations to require that control be maintained over one 
parameter (e.g., the mass of the fissile material), rather than 
controlling five separate parameters (e.g., the mass of fissile 
material, the fissile material concentration, moderation, reflection, 
and geometry (i.e., the spatial arrangement of the fissile material, 
moderating material, and any reflecting material)). This was 
accomplished by limiting the quantity of fissile material to less than 
one-half of a critical mass, while using bounding assumptions for the 
other parameters. Therefore, the fissile material can be in any 
geometrical configuration or concentration, and water can be present in 
any density (i.e., moderating effectiveness and reflection) and the 
fissile material still remains subcritical. Further reductions in the 
mass limit were imposed if nuclides other than uranium \235\ (e.g., 
uranium \233\ or any isotope of plutonium) were present or if 
moderating materials with a hydrogen density greater than water (i.e., 
oil or plastic) were present.
    Licensees desiring to ship fissile materials in quantities that do 
not meet the limits of the fissile material exemption, or the general 
license regulations, may use other provisions of Part 71 to submit an 
application to the NRC for approval of the design of a transportation 
package to ship the fissile material (e.g., Type A(F) or Type B(F) 
packages), or may use previously approved Type A(F) or B(F) packages. 
[Note, the use of a Type B(F) package would also require a licensee to 
have a quality assurance program in place which meets the requirements 
of Part 71, Subpart H.]
    Taken with the 0.1 percent limit on the presence of special 
moderating materials (i.e., beryllium, deuterium, or graphite), the 
final rule sought to achieve a balanced approach with relaxation of 
controls over concentration, moderation, and reflection, while 
requiring greater control on the quantity of fissile mass, and assuming 
that prior NRC review and approval were not obtained.
    The NRC has reviewed the factors which initiated the emergency 
final rulemaking, the ORNL evaluation, and public comments received on 
the emergency final rule, and concluded that the changes imposed by the 
emergency final rule were clearly warranted to protect public health 
and safety and the environment from an accidental criticality occurring 
during the transport of a special class of fissile material shipments 
(i.e., those with special moderators). Although the Commission believes 
that the commenters may have valid concerns with respect to the 
unintended burden imposed by the emergency final rule on a large number 
of shipments that do not use special moderators, the staff has not been 
able to obtain specific information regarding the burden estimates. The 
Commission has decided to consider an additional rulemaking revising 
the fissile exemptions and general license regulations of Part 71 to: 
(1) Address the concerns raised by public comments; (2) provide greater 
clarity and simplicity to these Part 71 regulations; and (3) provide 
increased flexibility for licensees who use these regulations. This 
rulemaking is scheduled to revise Part 71 to make it consistent with 
the IAEA transportation standards, and would be undertaken in 
coordination with the DOT and the Agreement States.

Specific Comments

    Comment: One commenter stated that the rule will double the number 
of water-moderated shipments that will be needed to transport the same 
amount of fissile material. The commenter further stated that the 
increase in the number of shipments will increase the cost of shipping 
the material, increase the chance of injury to workers due to increased 
probability of loading accidents, and will increase the probability of 
highway accidents due to the increased number of transport vehicles on 
the road.
    Response: The Commission agrees that there may be an increase in 
the number of water-moderated shipments. [See response to the general 
comment.] Although the staff has not been able to quantify the cost, 
the Commission will consider the costs for fissile material shipments 
in the scheduled Part 71 rulemaking as part of the regulatory analysis.
    Comment: One commenter stated that the term ``unpackaged material'' 
may be inadequate or misunderstood.
    Response: The Commission agrees. The term ``unpackaged material'' 
is not currently defined in Part 71. In Sec. 71.53(a)(1), the 
Commission considered imposing a 15-gram limit on fissile material in 
an individual package. For fissile material which is not contained in 
discrete packages (i.e., unpackaged material or bulk material), the 15-
gram limit is instead applied to all of the fissile material being 
transported on a specific conveyance. The Commission will address this 
issue in a future rulemaking.

[[Page 57773]]

    Comment: One commenter stated that changes in the emergency final 
rule that are not directly associated with the special moderating 
materials (i.e., total mass per consignment), may be needed, but these 
should be issued only after they go through the normal rulemaking 
review process.
    Response: As stated in the emergency final rule (at 62 FR 5910), 
``[t]he Commission is promulgating this emergency final rule because 
the problem of regulatory safety limits over quantities and 
concentrations of fissile material and moderators * * * is an important 
safety issue meriting immediate corrective action. An accidental 
criticality in the public domain would very likely involve fatalities, 
health effects from the resulting radiation, and extensive cleanup 
costs.'' Consequently, for this reason, and as described in the general 
comment above, the changes made to Part 71 in the emergency final rule 
were necessary and met the good cause test of the Administrative 
Procedure Act (5 U.S.C. 553(b)(B)), to dispense with notice and 
prepromulgation public comment as being impracticable and contrary to 
the public interest.
    Comment: One commenter stated that because this special moderators 
issue was known for more than 2 years, they failed to understand why an 
emergency action was needed at this time.
    Response: The Commission disagrees. The NRC was unaware of the 
regulatory defect that existed in Part 71 until it was notified by B&W 
in September 1996. Once the NRC became aware of the potential to affect 
public health and safety and the environment, the Commission deemed 
that prompt action was necessary to ensure that public health and 
safety and the environment remained protected; and hence the emergency 
final rule was issued.
    Comment: One commenter stated that the emergency final rule 
addressed only a small number of specialized shipments, the size of a 
large freight container, and that the final rule appeared to be too 
conservative for smaller packages.
    Response: The Commission agrees in part. The emergency final rule 
was too restrictive for small packages with water as the moderator. The 
Commission will address this issue in a future rulemaking. Also, see 
response to general comment.
    Comment: One commenter stated that the rulemaking failed to address 
the value and impact of the rule change and that the rule does not 
consider the type and number of shipments that have been or will be 
impacted.
    Response: The Commission agrees in part. A separate regulatory 
analysis was not prepared for the final rule because of its emergency 
nature. However, the Commission considered the values and impacts of 
the final rule in the discussion entitled ``Alternatives Considered'' 
on page 5909 of the Federal Register notice (62 FR 5907). The value of 
this rule was in preventing the possibility of an accidental 
criticality from occurring in the public domain during the transport of 
fissile material. As stated earlier, an accidental criticality could 
result in fatalities or other adverse health effects and would require 
extensive cleanup efforts. The Commission did consider that a limited 
number of licensees possess quantities of fissile material which could 
be affected by this change in regulations. However, the emergency 
nature of this rulemaking did not allow time for the NRC to complete as 
thorough a review of the type and number of impacted shipments as would 
occur during normal rulemaking. The NRC will address this issue in a 
future rulemaking. The NRC staff is currently attempting to collect 
cost/benefit data for this rulemaking. However, the NRC staff has had 
difficulty in collecting this data from affected licensees and 
shippers, and is working to obtain the necessary information. The NRC 
is requesting comments on the costs associated with shipments of 
fissile material made under the fissile material exemption and general 
license provisions of Part 71 implementing the emergency final rule.
    Comment: One commenter stated that the rationale for limiting the 
mass of special moderating material to only 0.1 percent of the fissile 
mass is not clear.
    Response: The Commission's basis for using the 0.1 percent limit 
was that it was consistent with the limit contained in the 1996 IAEA 
standard ST-1. The NRC believed that given the emergency nature of the 
rulemaking and absent sufficient time to develop a national standard, 
the use of an international consensus technical standard was a 
reasonable alternative. The NRC did depart from the standard 
established in ST-1 by including graphite in the list of special 
moderating material. The Commission will continue to impose limits on 
the allowable fissile mass if special moderators are present; however, 
the Commission will solicit comment on the continued use of a consensus 
technical standard in a future rulemaking. This effort will be a major 
rulemaking which will revise Part 71 to make it compatible with the 
IAEA ST-1, to revise fissile material exempt and general license 
provisions, and to revise other Non-IAEA provisions.
    Comment: One commenter stated that it is not clear from the wording 
of the rule whether the 0.1 percent limit applies to all of the 
deuterium present in a shipment or only to the quantity that exceeds 
the amount of naturally occurring deuterium.
    Response: The Commission intended that the 0.1 percent limit apply 
to all of the deuterium present in a shipment because the ability of 
deuterium to moderate neutrons is not dependent upon whether the 
deuterium is natural or created via a man-made process. The NRC will 
clarify this ambiguity in the rule language as part of its planned 
revision of Part 71.
    Comment: One commenter stated that it is not so much the average 
hydrogen density that is important as it is the moderating effect of 
the material. The commenter suggested replacing ``average hydrogen 
density greater than that of water,'' with ``moderating effect greater 
than that of water.''
    Response: The Commission agrees that moderating effectiveness is 
the parameter of concern. However, in the past, the concept of average 
hydrogen density has been substituted for moderator effectiveness, 
because the principal focus was on moderation by ordinary water. The 
NRC believes this terminology, which had been widely used, is still 
appropriate and did not change this approach in the emergency final 
rule. The NRC will address this terminology issue in a future 
rulemaking.
    Comment: One commenter stated that the use of absolute moderator 
limitations was too restrictive. The commenter believes that waste 
shipments from remediation and decommissioning of nuclear facilities 
often contain incidental quantities of special moderating materials 
(e.g., process materials, motors, charcoal filters, batteries, and 
pencils). The commenter suggested that the rule be revised to specify a 
quantitative limit only for those deformable materials that can form a 
homogenous or latticed mixture of fissile and moderating material. 
Further, intact components, blocks, or articles would be considered 
exempt from consideration as special moderating materials. The 
commenter also recommended that the NRC encourage the DOT to make 
equivalent or similar changes to 49 CFR Part 173.
    Response: The Commission agrees that the original problem with 
beryllium and enriched uranium involved homogenous mixtures of these 
substances and that discrete articles, blocks, or components would be 
less

[[Page 57774]]

effective as moderating agents. The Commission will address this issue 
of homogenous versus heterogeneous mixture in a future rulemaking.

IV. Request for Cost Information

    As stated above, the NRC has received comments on the emergency 
final rule which indicated that the rule had an unintended economic 
impact. NRC staff has attempted to solicit information on the costs 
associated with implementing the emergency final rule so as to quantify 
the unintended impact of the emergency final rule. However, staff has 
not been successful in obtaining this information. Consequently, the 
Commission is using this opportunity to explicitly request information 
from the public, industry, and the DOE on the costs of shipments made 
under the fissile material exemption and general license provisions of 
Part 71 prior to the emergency rule; and those costs and/or changes in 
costs resulting from implementation of the emergency final rule. The 
Commission is requesting that comments be submitted to the NRC by 
January 10, 2000.

V. Conclusion

    The NRC staff is in the process of developing a rulemaking plan to 
revise Part 71 to make it compatible with the 1996 IAEA transportation 
standard ST-1, as well as to include other non-IAEA amendments. The 
staff intends to include in this rulemaking plan, proposed revisions to 
the fissile material exemption and general license limits, based on the 
ORNL recommendations.
    As stated previously, the DOT deferred any rulemaking on 49 CFR 
173.453 until DOT staff could review the public comments received on 
the NRC's emergency final rule and review the NRC's study on the 
fissile exemptions contained in NUREG/CR-5342. The NRC staff is 
currently coordinating with the DOT the resolution of these issues and 
the development of the rulemaking plan for the Part 71 revisions. In 
addition, NRC will coordinate the rulemaking plan with the Agreement 
States for issues that are a matter of compatibility.

    Dated at Rockville, Maryland, this 20th day of October, 1999.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary for the Commission.
[FR Doc. 99-28049 Filed 10-26-99; 8:45 am]
BILLING CODE 7590-01-P