[Federal Register Volume 65, Number 14 (Friday, January 21, 2000)]
[Proposed Rules]
[Pages 3394-3397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-1301]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 40

[Docket No. PRM-40-28]


Donald A. Barbour, Philotechnics; Receipt of Petition for 
Rulemaking

AGENCY:  Nuclear Regulatory Commission.

ACTION:  Petition for rulemaking; Notice of receipt.

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SUMMARY:  The Nuclear Regulatory Commission (NRC) has received, and 
requests public comment on, a petition for rulemaking filed by David A. 
Barbour, Philotechnics. The petition has been docketed by the 
Commission and assigned Docket No. PRM-40-28. The petitioner requests 
that the NRC amend its regulations governing the domestic licensing of 
source material to provide additional rules for the effective control 
of depleted uranium aircraft counterweights. The petitioner believes 
that this regulatory clarification should address a number of issues 
concerning the exemption, storage, and disposal of these devices.

DATES:  Submit comments by April 5, 2000. Comments received after this 
date will be considered if it is practical to do so, but assurance of 
consideration cannot be given except as to comments received on or 
before this date.

ADDRESSES:  Submit comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555. Attention: Rulemakings and 
Adjudications staff.
    Deliver comments to 11555 Rockville Pike, Rockville, Maryland, 
between 7:30 am and 4:15 pm on Federal workdays.
    For a copy of the petition, write to David L. Meyer, Chief, Rules 
and Directives Branch, Division of Administrative Services, Office of 
Administration, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001.
    You may also provide comments via the NRC's interactive rulemaking 
website at http://ruleforum.llnl.gov. This site provides the capability 
to upload comments as files (any format), if your web browser supports 
that function. For information about the interactive rulemaking 
website, contact Ms. Carol Gallagher, (301) 415-5905 (e-mail: 
[email protected]).
    Documents created or received at the NRC after November 1, 1999, 
are also available electronically at the NRC's Public Electronic 
Reading Room on the Internet at http://www.nrc.gov/NRC/ADAMS/index.html. From this site, the public can gain entry into the NRC's 
Agencywide Document Access and Management System (ADAMS), which 
provides text and image files of NRC's public documents. For more 
information, contact the NRC Public Document Room (PDR) reference staff 
at 1-800-397-4209, 202-634-3273 or by email to [email protected].

FOR FURTHER INFORMATION CONTACT:  David L. Meyer, Office of 
Administration, U.S. Nuclear Regulatory Commission, Washington, DC 
20555. Telephone: 301-415-7162 or Toll-free: 1-800-368-5642 or E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    On November 16, 1999, the Nuclear Regulatory Commission (NRC) 
docketed a letter from David A. Barbour, Philotechnics, to a member of 
the NRC staff as a petition for rulemaking under 10 CFR 2.802. In his 
letter, Mr. Barbour

[[Page 3395]]

refers to a current NRC rulemaking to establish additional requirements 
for certain generally licensed devices containing byproduct materials. 
Mr. Barbour indicates that concerns similar to those being addressed in 
the rulemaking on generally licensed devices are relevant to depleted 
uranium aircraft counterweights, although these devices are beyond the 
scope of the current rulemaking. While Mr. Barbour did not specifically 
characterize his letter as a petition under Sec. 2.802, Mr. Barbour 
clearly desires the NRC to take regulatory action to control these 
devices more effectively.

The Requested Action

    The petitioner requests that the NRC amend its regulations to 
provide for additional rules that would define and clarify 
responsibilities for the effective control of depleted uranium aircraft 
counterweights. The petitioner believes that the amendment should 
clarify at what point and under what circumstances, the licensing 
exemption for these devices in 10 CFR 40.13(c)(5) is no longer 
applicable to these devices; the length of time counterweights for 
which there is no demand or use may be stored as exempt material; the 
regulations that apply to aircraft that have been removed from service 
which have depleted uranium counterweights that can be transferred to 
unlicensed parts dealers and salvage operators; and, the need for 
radiological surveillance of long-term aircraft storage parks and 
facilities where aircraft with depleted uranium counterweights are 
regularly stored for protracted periods under unmonitored conditions. 
The petitioner believes that the control and accountability issues 
involving these counterweights closely parallel those same issues being 
addressed in the generally licensed devices rulemaking. The petitioner 
suggests either expanding the scope of that rulemaking to include 
depleted uranium aircraft counterweights or initiating a separate 
rulemaking along similar lines.
    Additionally, the petitioner believes that an immediate 
notification is necessary to advise those organizations that currently 
possess depleted uranium aircraft counterweights of their 
responsibilities to the public. The petitioner asserts that the 
aviation community is tightly regulated and law abiding and that there 
are extremely effective channels of communication between the industry 
and its primary regulator, the Federal Aviation Administration (FAA). 
The petitioner suggests that the NRC take advantage of this situation 
by encouraging the FAA to issue an appropriate advisory bulletin that 
informs the aviation community of its responsibilities for managing 
depleted uranium counterweights. The petitioner has provided a summary 
of key points that should be considered for incorporation in such a 
notification.

The Regulatory Situation

    Counterweights are made of extremely dense materials such as 
depleted uranium. They are used to balance the control surfaces of 
ailerons and elevators to facilitate hydraulic adjustments during 
flight. Depleted uranium counterweights are currently exempted from all 
regulation as an unimportant quantity of source material while they are 
installed on an airplane or stored or handled incident to installation 
or removal (10 CFR 40.13 (c)(5)). These counterweights must, however, 
be manufactured in accordance with a specific license. The manufacturer 
must clearly impress them with the legend ``Depleted Uranium,'' and 
must properly mark or label them with the manufacturer's identification 
and the statement ``Unauthorized Alterations Prohibited.''
    According to the petitioner, the clear implication of these 
provisions is that when a counterweight made of depleted uranium is 
removed from service, it loses this regulatory exemption. Neither the 
language in the current regulation nor the Statement of Considerations 
accompanying this exemption make that clear. Therefore, when a fleet is 
retired or a plane is scrapped, significant quantities of depleted 
uranium counterweights become source material that require a license. 
The petitioner asserts that these counterweights may then be in the 
possession of an organization that has no license and no knowledge of 
the hazards of the material or the regulatory requirements that may be 
applicable. Over the past nine months, the petitioner's firm, 
Philotechnics, has conducted extensive, informal industry surveys that 
confirm widespread unawareness of the responsibilities and controls 
applicable to depleted uranium counterweights.
    The petitioner contends that a general license cannot be invoked to 
control the material because the amount of depleted uranium that may be 
possessed under a general license is limited to 15 pounds (10 CFR 
40.22). The petitioner indicates that very few counterweights weigh 
less than 15 pounds with most depleted uranium counterweights for a 
wide-body aircraft weighing between 20 and 50 pounds. The petitioner 
continues to explain that the quantities almost always exceed the 
general license limit because a ``ship set'' of counterweights includes 
many counterweights that collectively weigh over 1000 pounds for most 
aircraft models.

Use of Depleted Uranium Counterweights

    The petitioner indicates that depleted uranium counterweights were 
once widely used on wide-body commercial aircraft such as the L-1011 
Tristar, the DC-10, and the Boeing 747. These counterweights were also 
used on general aviation planes such as the JetStar and military and 
naval aircraft including the A-7, F-111, C-5A, C-130, C-141, P-3C, and 
S-3B. Some aircraft, like the A-7, have passed from U.S. service to our 
allies along with their depleted uranium counterweights. While some of 
these aircraft continue to use depleted uranium counterweights, others 
are converting their counterweights to tungsten.
    The petitioner explains that although depleted uranium 
counterweights are being replaced by counterweights made of tungsten 
for new production aircraft, a legacy of depleted uranium 
counterweights remains on older planes. The petitioner states that the 
total amount of depleted uranium counterweights is difficult to 
determine with accuracy because the quantity would vary for each 
different model of wide-body aircraft. The petitioner used parts 
listings and structural drawings to determine the amount of depleted 
uranium in ship sets of counterweights for representative L-1011, DC-
10, 747, and JetStar aircraft. Based on the number of these planes in 
existence and a survey of the quantities of counterweights in the 
inventories of aviation parts suppliers, the petitioner estimates that 
as much as two million pounds of counterweights made of deleted uranium 
may be in service.
    The petitioner believes that as many of these planes reach the end 
of their economical service life, depleted uranium counterweights are 
beginning to enter uncontrolled disposal channels in a rapidly 
increasing stream. The petitioner presents the average ages of existing 
wide-body commercial aircraft as 22.9 years for the L-1011, 23.4 years 
for the DC-10, and 15.8 years for the 747. The petitioner states that 
increasing numbers of these aircraft are being set down, parted out, 
and scrapped. The petitioner asserts that major airlines are 
knowledgeable enough to ensure appropriate disposal of their surplus 
counterweight spares, although the spares may be stored for prolonged 
periods without a license. The petitioner believes that those 
counterweights entering parts or salvage channels may be abandoned or

[[Page 3396]]

transferred to unlicensed operators and disposed of in municipal and 
industrial landfills and other sites. The petitioner also believes that 
many thousands of pounds are being improperly disposed of and that many 
of the disposal companies are unaware of proper storage and disposal 
requirements. The petitioner reports incidents where depleted uranium 
counterweights were improperly reused for other purposes and asserts 
that abandoned counterweights have been encountered at airports and 
discarded in trash dumpsters.
    In addition, the petitioner contends that depleted uranium 
counterweights remain on aircraft that are retired from service and 
consigned to long-term storage, parts recovery, or salvage. The 
petitioner states that these devices are prone to corrosion but that 
they are plated and painted to retard oxidation. The petitioner asserts 
that when depleted uranium counterweights are no longer maintained in 
airworthy condition and subject to systematic inspection, the release 
of uranium oxides is highly probable. The petitioner states that 
observations of the C-141 maintenance program confirm that, without 
continuing surveillance, corrosion of depleted uranium counterweights 
can progress to the point where radiological contamination of 
maintenance facilities and long-term storage areas is possible. The 
petitioner believes that this potential environmental release could be 
minimized by terminating the exemption of counterweights on aircraft 
that are not in active use.

Unresolved Issues

    The petitioner presents a number of unresolved issues that the 
petitioner believes should be addressed in any subsequent rulemaking on 
this matter.
    1. How long may an airline possess depleted uranium counterweights 
as spare parts after a fleet of aircraft with these devices has been 
set down before it must apply for a source material license? The 
petitioner believes that as aging planes are retired and ``parted 
out'', spare parts inventories will swell at the same time as real 
demand disappears with the transition to tungsten counterweights and 
the reduced number of aircraft to be supported. The petitioner asserts 
that regulations containing criteria based on intent, such as the 
intent to sell surplus counterweights, are difficult to enforce.
    Furthermore, the petitioner fears that it may be cheaper to store 
depleted uranium counterweights than to pay the cost of authorized 
disposal. The petitioner likens this scenario to the situation that 
resulted in NRC's issuance of the timeliness rule, an action that 
mandates decommissioning if a licensed facility remains idle for two 
years. The petitioner suggests that depleted uranium aircraft 
counterweights should lose their exemption if they have not been used 
in flight or, for a particular part number, there is no demand during a 
specified time period.
    The petitioner believes that the way a part is managed provides 
another objective indication of its intended use. Modern aircraft 
incorporate over one million different parts that are almost always 
managed by an automated data processing system. The petitioner explains 
that parts are commonly classified in such a system as either 
``repairable'' or ``consumable.'' Consumable parts that do not meet the 
criteria for airworthiness are automatically directed to disposal 
channels. If a depleted uranium counterweight is classified as a 
``consumable'' part in an organization's automated data system, there 
is a clear indication that the part should lose its licensing exemption 
as soon as it is removed from an aircraft.
    2. The petitioner presumes that the exemption from licensing for 
depleted uranium counterweights stored incident to installation on an 
aircraft applies to counterweights in the inventories of aviation parts 
dealers who are attempting to sell them for their intended use. In that 
case, should such counterweights retain their exemption from licensing 
after being held in storage for a specified period without being sold?
    3. Can depleted uranium counterweights in the possession of a 
salvor, scrap dealer, or parts broker be considered exempt from 
licensing because of the theoretical possibility of their future use on 
an aircraft? These types of organizations may acquire parts that they 
do not expressly want because they are included in a large-scale 
consignment, transaction, or inventory transfer along with other high-
demand parts. The petitioner cites an FAA requirement that all parts 
used on an aircraft be documented for airworthiness. Counterweights 
coming out of a tear-down facility would have to go through and meet 
FAA's procedures before they could be put to their original intended 
use. The petitioner points out that this is an expensive procedure that 
a facility would not undertake unless there was a realistic possibility 
that the part could be reused.
    The petitioner further asserts that the transfer of depleted 
uranium counterweights without the receiving facility obtaining proper 
FAA forms is probably inconsistent with the intent of the current 
regulations. Therefore, the petitioner suggests that, from the time the 
devices are removed from an aircraft and enter either parts or salvage 
channels, the possessor should bear the burden of demonstrating a 
realistic possibility of reuse.
    4. Do depleted uranium counter- weights installed on an aircraft 
lose their exemption from licensing if they remain installed on an 
aircraft and the aircraft is placed in long-term storage or transferred 
for ``parting out'' or salvage? The petitioner believes that aircraft 
not maintained in an airworthy condition and subject to periodic 
inspection will eventually experience corrosion of the counterweights 
and release radioactive oxide into storage areas and the adjacent 
environment. The petitioner cites the FAA definition of aircraft as a 
device intended for flight. Therefore, a device removed from service 
would cease to be an aircraft according to the FAA. If installation on 
a non-operational aircraft qualifies depleted uranium counterweights 
for exemption from licensing, a parts company performing a tear-down 
operation could remove high-value components for refurbishment and 
reuse while leaving the counterweights attached to a stripped aircraft 
consigned for scrapping. At what point does the stripped aircraft cease 
to be an aircraft? Can depleted uranium counterweights that are left on 
a bare airframe be considered legally abandoned?
    5. The petitioner states that, under the proposed generally 
licensed devices rulemaking, devices containing byproduct material that 
were stored for two years without being used will require disposition. 
The petitioner asks if depleted uranium counterweights installed on an 
aircraft parked in long-term storage and not flown for a specified 
period lose their exemption. Would the owner/operator of the storage 
facility be required to obtain a source material license, remove the 
counterweights and place them in controlled storage, or perform 
periodic radiation monitoring and surveillance to ensure against the 
release of radioactive corrosion products into the environment?
    6. The petitioner states that military aircraft with depleted 
uranium counterweights, such as the A-7 Corsair, have been transferred 
to foreign governments through military sales. The petitioner believes 
that the gaining governments may not always be aware of the presence of 
depleted uranium and the appropriate controls. The petitioner believes 
that notification and

[[Page 3397]]

information requirements appropriate for this type of transfer should 
be established.

The Petitioner's Conclusion

    The petitioner believes that the NRC should conduct a rulemaking 
that would define and clarify responsibilities for the effective 
control of depleted uranium aircraft counterweights. The petitioner 
believes that the rule should specify at what point and under what 
circumstances the licensing exemption for these devices is no longer 
applicable; the length of time counterweights for which there is no 
demand or use may be stored as exempt material; the regulations that 
apply to aircraft that are removed from service with depleted uranium 
counterweights that can be transferred to unlicensed parts dealers and 
salvage operators; and, the need for radiological surveillance of long-
term aircraft storage parks and facilities where aircraft with depleted 
uranium counterweights are regularly stored for protracted periods 
under unmonitored conditions. The petitioner believes that the current 
rulemaking on generally licensed devices should be expanded to include 
depleted uranium counterweights or that a separate rulemaking along 
similar lines should be initiated.

    Dated at Rockville, Maryland, this 13th day of January, 2000.

For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 00-1301 Filed 1-20-00; 8:45 am]
BILLING CODE 7590-01-P