[Federal Register Volume 65, Number 162 (Monday, August 21, 2000)]
[Rules and Regulations]
[Pages 50606-50617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-21229]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 72

RIN 3150-AG15


Clarification and Addition of Flexibility

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
regulations on spent fuel storage to specify those sections of those 
regulations that apply to general licensees, specific licensees, 
applicants for a specific license, certificate holders, and applicants 
for a certificate of compliance (CoC). These amendments are consistent 
with past NRC licensing practice to eliminate any ambiguity for these 
persons by clarifying which portions of the regulations apply to their 
activities. The final rule eliminates the necessity for repetitive 
reviews of cask design issues in a licensing proceeding on applications 
for specific licenses, where previously approved cask designs, or 
designs under Commission review, have been incorporated by reference 
into the application. Also, the final rule eliminates repetitive 
reviews in those cases where the site-specific licensing proceeding and 
a CoC review and certification (i.e., rulemaking) are proceeding in 
parallel. Lastly, this rule allows an applicant for a CoC to begin cask 
fabrication under an NRC-approved quality assurance (QA) program before 
the CoC is issued.

EFFECTIVE DATE: September 20, 2000.

FOR FURTHER INFORMATION CONTACT: Anthony DiPalo, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, telephone (301) 415-6191, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Commission's regulations at 10 CFR part 72 were originally 
designed to provide specific licenses for the storage of spent nuclear 
fuel in an independent spent fuel storage installation (ISFSI) (45 FR 
74693; November 12, 1980). In 1990, the Commission amended Part 72 to 
include a process for approving the design of spent fuel storage casks 
and issuing a CoC (Subpart L) and for granting a general license to 
reactor licensees (Subpart K) to use NRC-approved casks for the storage 
of spent nuclear fuel (55 FR 29181; July 18, 1990). Although the 
Commission intended that the requirements imposed in Subpart K for 
general licensees be used in addition to, rather than in lieu of, 
appropriate existing requirements, ambiguity exists as to which Part 72 
requirements, other than those in Subparts K and L, are applicable to 
general licensees and certificate holders, respectively.
    In addition, the Commission has identified two aspects of Part 72 
where it is desirable to reduce the regulatory burden and provide 
additional flexibility to applicants for a specific license or a CoC.
    First, the Commission anticipates receipt of several applications 
for a specific license that will propose using storage cask designs 
previously approved by NRC under the provisions of Subpart L of Part 72 
(i.e., cask designs that have been issued a CoC and are listed in 
Sec. 72.214). Section 72.18, ``Elimination of repetition,'' permits an 
applicant to incorporate by reference information contained in previous 
applications, statements, or reports filed with the NRC, including cask 
designs approved under Subpart L. Section 72.46 requires that in an 
application for a specific license under Part 72, the Commission shall 
issue or cause to be issued a notice of proposed action and opportunity 
for a license hearing (i.e., a licensing proceeding) in accordance with 
10 CFR part 2. Under current Part 72 regulations, the adequacy of the 
design of these previously approved casks could be at issue during a 
Sec. 72.46 licensing proceeding for a specific license application 
(i.e., issues on the cask design which have been previously addressed 
by the Commission, including resolution of public comments, could be 
the subject of a licensing proceeding).
    Second, Sec. 72.234(c), which was part of the 1990 amendments to 
Part 72, prohibits an applicant for a CoC from beginning fabrication of 
a spent fuel cask before the NRC issues a CoC for the cask design. 
However, an applicant for a specific license is currently allowed to 
begin fabrication of spent fuel storage casks before the license is 
issued. At the time the 1990 rule was proposed, a commenter suggested 
that a fabricator (i.e., applicant for a CoC) be allowed to take the 
risk of beginning fabrication before the receipt of the CoC. However, 
in the final rule, the Commission took the position, ``[i]f a vendor 
has not received the certificate, then the vendor does not have the 
necessary approved specifications and may design and fabricate casks to 
meet incorrect criteria'' (55 FR 29185; July 18, 1990).
    Since 1990, the Commission has reviewed and approved several cask 
designs. These reviews and follow-up requests for additional 
information have established the NRC's expectation as to how its 
criteria for cask design and fabrication should be met. In January 
1997, the NRC published NUREG-1536, ``Standard Review Plan for Dry Cask 
Storage Systems,'' informing CoC applicants of its expectations in 
reviewing cask designs. Since then, the Commission has granted several 
exemptions from Sec. 72.234(c) allowing applicants to begin fabrication 
before issuance of the CoC. Additional exemption requests from 
Sec. 72.234(c) requirements are anticipated.
    The Commission published a proposed rule in the Federal Register 
(64 FR 59677; November 3, 1999). The comment period ended January 18, 
2000, and eight comment letters were received on the proposed rule. 
These comments and responses are discussed in the ``Summary of Public 
Comments on the Proposed Rule'' section.

Discussion

    Clarification: This final rule eliminates the regulatory 
uncertainty that currently exists in Part 72 by adding a new section 
Sec. 72.13 that specifies which Part 72 regulations apply to general 
licensees, specific licensees, applicants for a specific license, 
certificate holders, and applicants for a CoC. To aid users of Part 72 
in understanding Sec. 72.13, the NRC has created a Table of 
Applicability for Part 72 regulations (Table). For each section, 
paragraph, or subparagraph, the Table identifies whether the regulation 
applies to a general licensee, specific licensee, applicant for a 
specific license, certificate holder, and/or an applicant for a CoC. 
The Table is available for review in the NRC's Public Electronic 
Reading Room on the NRC's website (http://www.nrc.gov) under Accession 
Number ML003736106.
    Flexibility: First, the final rule eliminates the necessity for 
repetitious reviews of cask design issues during a Sec. 72.46 licensing 
proceeding for issues the Commission has previously considered, or is 
considering, during the cask design review and certification process 
(i.e., rulemaking). The Commission anticipates receipt of several 
applications, for specific ISFSI licenses, that will propose using 
storage

[[Page 50607]]

cask designs either previously approved by the NRC under Subpart L or 
currently under consideration. Applicants for a specific license 
presently have the authority under Sec. 72.18 to incorporate by 
reference into their application, information contained in previous 
applications, statements, or reports filed with the Commission, 
including information from the Safety Analysis Report on a cask design 
either previously approved or currently under review by the NRC for 
certification under the provisions of Subpart L. The Commission 
believes that both of these situations should be excluded from the 
scope of a specific licensing proceeding. This is because the public 
has the opportunity during the Subpart L approval process to comment on 
the adequacy of the cask design. The opportunity of the public to 
comment on cask designs will not be affected by this rulemaking. 
However, design interface issues between the referenced cask design and 
specific site characteristics (e.g., meteorological, seismological, 
radiological, and hydrological), or changes to the cask's approved 
design, must be addressed by the applicant in its application and may 
be raised as potential issues in the licensing proceeding. Furthermore, 
the rights of the public to petition the Commission under Secs. 2.206 
and 2.802 to raise new safety issues on the adequacy of the cask design 
will not be adversely impacted by this rulemaking.
    Second, the final rule permits an applicant for approval of a spent 
fuel storage cask design under Subpart L to begin fabrication of casks 
at its risk before the NRC has approved the cask design and issued the 
CoC. Currently, an applicant for a CoC is not permitted under 
Sec. 72.234(c) to begin cask fabrication until after the CoC is issued. 
Applicants for a specific license, and their contractors, are currently 
allowed to begin fabrication of casks before the Commission issues 
their license. However, general licensees and their contractors (i.e, 
the certificate holder) are not allowed to begin fabrication before the 
CoC is issued. Consequently, this final rule eliminates NRC's disparate 
treatment between general and specific licensees. The Commission and 
the staff have previously determined that exemptions from the 
fabrication prohibition in Sec. 72.234(c) are authorized by law and do 
not endanger life or property, the common defense, or security and are 
otherwise in the public interest. The Commission anticipates that 
additional cask designs will be submitted to the NRC for approval and 
expects that these designs will be similar in nature to those cask 
designs that have already been approved. Absent this final rule, the 
Commission expects that additional exemption requests to permit 
fabrication would also be received. This final rulemaking eliminates 
the need for such exemption requests.
    Additionally, the final rule revises the quality assurance 
regulations in Subpart G of Part 72 to require that an applicant for a 
CoC, who voluntarily wishes to begin cask fabrication, must conduct 
cask fabrication activities under an NRC-approved QA program. 
Currently, applicants for a CoC are required by Sec. 72.234(b) to 
conduct design, fabrication, testing, and maintenance activities under 
a QA program that meets the requirements of Subpart G. Prior NRC 
approval of the applicant's QA program is not required by 
Sec. 72.234(b). However, Sec. 72.234(c) currently precludes cask 
fabrication until after the CoC is issued. The Commission believes the 
revised provision in the final rule is a conditional relaxation to 
permit fabrication before the CoC is issued. Because NRC staff would 
approve the applicant's QA program as part of issuance of a CoC, staff 
approval of the QA program before fabrication is a question of timing 
(i.e., when the program is approved), rather than imposing a new 
requirement for approval of a program. The Commission expects that any 
financial or scheduler risks associated with fabrication of casks 
before issuance of the CoC would be borne by the applicant. The 
Commission believes the final rule is not a backfit because Sec. 72.62 
applies to licensees after the license is issued and does not apply to 
applicants prior to issuance of the license. The final rule requires 
that a cask for which fabrication was initiated before issuance of the 
CoC must conform to the issued CoC before the cask may be used.
    The final rule also requires an applicant for a specific license, 
who voluntarily wishes to begin fabrication of casks before the license 
is issued, to conduct fabrication under an NRC-approved QA program. 
Currently, an applicant for a specific license may begin cask 
fabrication before the license is issued. Additionally, the licensee is 
required by Sec. 72.140(c) to obtain NRC approval of its QA program 
before spent fuel is loaded into the ISFSI. The Commission does not 
believe this final rule imposes a separate requirement on applicants 
for a specific license. Rather, this rule requires different timing on 
when the NRC approves a QA program.
    This final rule also revises Sec. 72.140(d) to allow a licensee, 
applicant for a license, certificate holder, and applicant for a CoC to 
use an existing Part 50, 71, or 72 QA program that was previously 
approved by the NRC, in lieu of submitting a new QA program. The 
Commission expects that a new QA program or an existing Part 50 or Part 
71 QA program used by these persons will comply with the requirements 
of Part 72, Subpart G.
    As a result, the final rule requires both licensees and certificate 
holders to accomplish any fabrication activities under an NRC-approved 
QA program. The Commission believes the final rule's increase in 
flexibility and change in timing of approval of a QA program is not a 
backfit.

Summary of Proposed Rule Amendments

    The changes to the sections discussed below were proposed when the 
rule was published for public comment on November 3, 1999, (64 FR 
59677). These proposed changes were intended to: (1) eliminate the 
regulatory uncertainty that now exists in Part 72 and explicitly 
specify which regulations apply to general licensees, specific 
licensees, applicants for a specific license, certificate holders, and 
applicants for a CoC; (2) eliminate the necessity for repetitious 
reviews in a specific license hearing of cask design issues that the 
Commission previously considered during approval of the cask design; 
(3) permit an applicant for approval of a spent fuel storage cask 
design to begin cask fabrication, at its own risk, before the NRC has 
issued the CoC; and (4) require that NRC approval of the quality 
assurance program be obtained before cask fabrication can commence.

Section 72.13  Applicability

    It was proposed that a new section be added to Part 72 to identify 
those sections of Part 72 that apply to specific licenses, general 
licenses, and Certificates of Compliance. No changes to the underlying 
regulations would result from this amendment, as it is intended for 
clarification only.

Section 72.46   Public Hearings

    It was proposed that a new paragraph (e) be added to this section 
to indicate that the scope of any licensing proceeding for an 
application for a specific ISFSI license, shall not include any issues 
that were previously resolved by the Commission during the approval 
process of the design of a spent fuel storage cask when the application 
incorporates by reference information on the design of an NRC-approved 
spent fuel storage cask. The Commission considers rereview of cask 
design issues

[[Page 50608]]

that have been previously resolved as an unnecessary regulatory burden 
on applicants causing unnecessary expenditure of staff and hearing 
board resources. For example, the cask's previously reviewed and 
approved thermal, criticality, and structural designs could not be 
raised as issues in a hearing. However, design interface issues between 
the approved cask design and specific site characteristics (e.g., 
meteorological, seismological, radiological, and hydrological) or 
changes to the cask's approved design must be addressed by the 
applicant in its application and may be raised as issues at a potential 
hearing.
    The proposed provisions would not limit the scope of either the 
staff's review of the application, or of a licensing proceeding, for 
new cask design issues that were not considered by the Commission 
during previous approval of the cask design. In addition, the rights of 
the public to petition the Commission under Secs. 2.206 or 2.802 to 
raise new safety issues on the adequacy of the cask design would not be 
affected by this proposed provision.

Section 72.86  Criminal Penalties

    It was proposed that paragraph (b) of this section list those Part 
72 regulations for which criminal sanctions may not be issued because 
the Commission considers these sections to be nonsubstantive 
regulations issued under the provisions of Sec. 161(b), (i), or (o) of 
the Atomic Energy Act of 1954 (AEA). Substantive regulations are those 
regulations that create duties, obligations, conditions, restrictions, 
limitations, and prohibitions (see final rule on ``Clarification of 
Statutory Authority for Purposes of Criminal Enforcement'' (57 FR 
55062; November 24, 1992)). The Commission considers that the new 
Sec. 72.13 would not be a substantive regulation, issued under the 
provisions of Sec. 161(b), (i), or (o) ofthe AEA. Therefore, proposed 
paragraph (b) of this section added Sec. 72.13 to indicate that willful 
violations of this new section would not be subject to criminal 
penalties.

Section 72.140  Quality Assurance Requirements

    It was proposed that paragraph (c)(1) be revised to add applicants 
for a specific license and applicants for a CoC. Paragraph (c)(2) would 
be revised to add the requirement that an applicant for a specific 
license shall obtain NRC approval of its QA program before beginning 
fabrication or testing of a spent fuel storage cask. Paragraph (c)(3) 
would be revised to indicate that an applicant for a CoC shall obtain 
NRC approval of its QA program before beginning fabrication or testing 
of a spent fuel storage cask. These proposed revisions would result in 
consistent treatment of general licensees, specific licensees, 
applicants for a specific license, certificate holders, and applicants 
for a CoC. These revisions would also ensure that the NRC has reviewed 
and approved a QA program before commencement of any fabrication or 
testing activities.
    The proposed rule included a revised paragraph (d) to clarify the 
use of previously approved QA programs by a licensee, applicant for a 
license, certificate holder, and applicant for a CoC. The Commission 
expects these persons to notify the NRC of their intent to use a QA 
program previously approved by the NRC under the provisions of Parts 
50, 71, or 72.

Section 72.234  Conditions of Approval.

    The proposed rule included a revised paragraph (c) that would 
permit an applicant for a CoC to begin fabrication of spent fuel 
storage casks (under an NRC-approved QA program), at the applicant's 
own risk, before the NRC issues the CoC. The proposed revision also 
requires that a cask fabricated before the CoC was issued conform to 
the issued CoC before spent fuel is loaded. Consequently, the 
Commission expects that any risks associated with fabrication (e.g., 
rewelding, reinspection, or even abandonment of the cask) would be 
borne by the applicant. Requiring an applicant to conform a fabricated 
cask to the issued CoC would not be subject to the backfit review 
provisions of Sec. 72.62.

Section 72.236  Specific Requirements for Spent Fuel Storage Cask 
Approval

    The introductory text in this section before paragraph (a) was 
proposed as a conforming change to Sec. 72.234(c) to indicate that all 
of the requirements in this section would apply to both certificate 
holders and applicants for a CoC.

Summary of Public Comments on the Proposed Rule

    The Commission received eight comment letters on the proposed rule. 
The commenters included five NRC licensees, one applicant for an NRC 
license, one NRC Part 72 certificate holder, and the Nuclear Energy 
Institute (NEI) representing industry. All commenters favored the 
proposed rule, but with the addition of some changes.
    Copies of the public comments are available for review in the NRC 
Public Document Room, 2120 L Street, NW (Lower Level), Washington, DC 
20003-1527.
    A review of the comments, not necessarily in the order received, 
and the Commission's responses follow.

A. Clarification of Which Sections of Part 72 Apply to Specific 
Licensees, General Licensees, and Certificate Holders

    Comment A.1: One commenter, a licensee, believes that Sec. 72.180 
should not apply to a specific licensee. The commenter noted that 
Sec. 72.180 requires licensees to have a physical protection plan that 
meets the requirements of Sec. 73.51. The commenter also indicated that 
NRC staff had previously determined that the provisions of Sec. 73.51 
were not applicable to site-specific licensees, as in the case of the 
North Anna or Surry ISFSIs, who also possess a Part 50 reactor license. 
This clarification was documented in a letter from the NRC to Virginia 
Power, dated November 12, 1998.
    Response: The NRC agrees with the commenter that Sec. 73.51 does 
not apply to those ISFSIs that are collocated at an operating reactor 
licensee's site. This is because adequate physical protection measures 
are implemented through Sec. 73.55 requirements at operating nuclear 
power plant sites. However, for those ISFSIs that are not collocated at 
a nuclear power plant site, NRC believes that the requirements of 
Sec. 73.51 apply. Therefore, Sec. 72.13(b) indicates that Sec. 72.180 
applies to specific ISFSI licensees. Section 72.180 requires that an 
ISFSI licensee implement a physical protection plan as described in 
Sec. 73.51.
    Notwithstanding this response, the NRC agrees that the commenter 
has identified an area of the current regulations where further 
clarification is warranted. In a 1998 final rule, ``Physical Protection 
for Spent Nuclear Fuel and High-Level Radioactive Waste,'' the NRC 
revised Sec. 72.180 to state, in part, ``The licensee shall establish, 
maintain, and follow a detailed plan for physical protection as 
described in Sec. 73.51 of this chapter * * *'' (63 FR 26955; May 15, 
1998). The NRC also added a new Sec. 73.51 that stated, in part:

    (a) Applicability. Notwithstanding the provisions of 
Secs. 73.20, 73.50, or 73.67, the physical protection requirements 
of this section apply to each licensee that stores spent nuclear 
fuel and high-level radioactive waste pursuant to paragraphs 
(a)(1)(i), (ii), and (2) of this section. This includes--
    (1) Spent nuclear fuel and high-level radioactive waste stored 
under a specific license issued pursuant to part 72 of this chapter: 
(i) At an independent spent fuel storage installation (ISFSI) or * * 
*


[[Page 50609]]


    However, the NRC stated in the Statement of Consideration (SOC) for 
the May 15, 1998, final rule, Section II.5, second comment, ``The 
Commission notes that a licensee having a Part 50 license does not fall 
within the scope of the final rule [on Sec. 73.51] * * * * '' (63 FR 
26957). Based on the language of the SOC, the NRC's practice has been 
that a specific Part 72 licensee, who is also a Part 50 license holder, 
does not have to comply with the security plan requirements of 
Sec. 73.51.
    The NRC will consider revising Sec. 73.51 in a subsequent 
rulemaking to clarify that a ISFSI licensee, who is also a Part 50 
reactor licensee, may follow the security plan requirements of either 
Sec. 73.51 or Sec. 73.55.
    Comment A.2: Three commenters--a licensee, NEI, and an applicant 
for a license--believe that Sec. 72.214 should apply to general 
licenses. The commenters noted that Part 72 allows general licensees to 
store spent fuel in containers that are approved under the provisions 
of Part 72 and are listed under Sec. 72.214. The commenters believe 
that ambiguity would remain in Part 72 if Sec. 72.13 does not reference 
that Sec. 72.214 can be used by general licensees.
    Response: The NRC agrees with the commenters that because a general 
licensee must choose a spent fuel storage cask design listed under 
Sec. 72.214, applying this section to general licensees will reduce 
regulatory confusion. Therefore, Sec. 72.13(c) is revised in this final 
rule to include Sec. 72.214.
    Comment A.3: Three commenters--a licensee, NEI, and an applicant 
for a license--believe that Sec. 72.240(a) should apply to general 
licenses. Section 72.240(a) allows the user of a cask design approved 
by the NRC to apply for reapproval (i.e., renewal) of a cask design, as 
an alternative to an application for renewal by the certificate holder. 
Therefore, the commenters believe that Sec. 72.240(a) should also apply 
to general licenses and be listed in Sec. 72.13(c).
    Response: The NRC agrees with the commenters that a general 
licensee can currently apply for reapproval of a CoC under 
Sec. 72.240(a). Therefore, Sec. 72.13(c) is revised in this final rule 
to include Sec. 72.240(a).
    Comment A.4: One commenter, a licensee, believes that 
Secs. 72.44(b)(1) and 72.50(a) should be revised to eliminate 
applicability of these sections to a general license. Sections 
72.44(b)(1) and 72.50(a) both require NRC consent in writing before a 
license is transferred, assigned, or in any manner disposed of, either 
voluntarily or involuntarily, directly or indirectly. Sections 
72.44(b)(1) and 72.50(a) are inconsistent with Sec. 72.210. Section 
72.210 provides for a general license to be issued to persons 
authorized to possess or operate nuclear power reactors under 10 CFR 
Part 50. It follows that if a transfer of the license to possess or 
operate a nuclear power reactor is approved under Sec. 50.80, the 
general license issued under Sec. 72.210 is also transferred without 
additional action.
    Response: The NRC disagrees with the commenter and believes that 
Secs. 72.44(b)(1) and 72.50(a) apply to general and specific Part 72 
licensees. A Part 72 general license issued to a ``person'' is a 
separate and legally distinct authority from a Part 50 reactor license, 
even if issued to the same ``person.'' NRC believes confusion arises on 
this issue because possession of a Part 50 license is a required 
condition for automatic issuance of a Part 72 general license under 
Sec. 72.210. NRC also believes that licensees can reduce their 
regulatory burden by submitting a single application for NRC review and 
approval to transfer a Part 50 license and Part 72 general license to a 
new owner. While this application includes two legally separate 
regulatory actions, NRC will consolidate the reviews and approvals to 
reduce industry burden.
    Comment A.5: One commenter, a licensee, believes that 
Secs. 72.44(b)(2) and 72.60(a) should be revised to eliminate 
applicability of these sections to a general license. Sections 
72.44(b)(2) and 72.60(a) both state that a license is subject to 
amendment, revision, or modification by reason of amendments to the 
Atomic Energy Act of 1954 (AEA), as amended, or by reason, rules, or 
regulations, or orders issued in accordance with the Act or any 
amendment thereto. Sections 72.44(b)(2) and 72.60(a) are inconsistent 
with Sec. 72.210. Section 72.210 issues a general license to persons 
authorized to possess or operate nuclear power reactors under Part 50. 
Section 50.54(e) contains a similar requirement to that of 
Secs. 72.44(b)(2) and 72.60(a). A general license issued by Sec. 72.210 
is subject to amendment, revision, or modification by reason of 
amendments to the AEA, as amended, or by reason, rules, or regulations 
through Sec. 50.54(e).
    Response: The NRC disagrees with the commenter and believes that 
Secs. 72.44(b)(2) and 72.60(a) apply to general and specific Part 72 
licensees. The NRC has the authority to modify, suspend, or revoke all, 
or part, of the general license being used by a Part 72 licensee to 
receive title to, own, or store power reactor spent fuel in an ISFSI. 
The NRC may order this action either as an enforcement sanction taken 
in response to a licensee's failure to comply with Part 72 regulations 
or because of passage of legislation that amends the AEA or the Nuclear 
Waste Policy Act of 1982 (i.e., the statutory bases for the Part 72 
regulations).
    Comment A.6: One commenter, a licensee, believes that 
Sec. 72.44(b)(3) should be revised to eliminate applicability of this 
section to a general license. Section 72.44(b)(3) requires: ``Upon 
request of the Commission, the licensee shall, at any time before 
expiration of the license, submit written statements, signed under oath 
or affirmation, if appropriate, to enable the Commission to determine 
whether or not the license should be modified, suspended, or revoked.'' 
Section 72.44(b)(3) is inconsistent with Sec. 72.210. Section 72.210 
provides for a general license to be issued to persons authorized to 
possess or operate nuclear power reactors under Part 50. Section 
50.54(f) contains a similar requirement to that of Sec. 72.44(b)(3). It 
follows that a general license issued under Sec. 72.210 is subject to 
providing requested information through Sec. 50.54(f).
    Response: The NRC disagrees with the commenter and believes that 
Sec. 72.44(b)(3) currently applies to general and specific Part 72 
licensees. The NRC has the authority under the AEA to require any 
licensee to submit written statements to the Commission to determine if 
the license should be suspended, modified, or revoked. [See also 
Comments A.4 and A.5.]
    Comment A.7: Two commenters, both licensees, believe that 
Sec. 72.44(e) should be revised to eliminate applicability of this 
section to a general license. Section 72.44(e) requires:

    ``The licensee shall make no change that would decrease the 
effectiveness of the physical security plan prepared pursuant to 
Sec. 72.180 without the prior approval of the Commission. A licensee 
desiring to make such a change shall submit an application for an 
amendment to the license pursuant to Sec. 72.56. A licensee may make 
changes to the physical security plan without prior Commission 
approval, provided that such changes do not decrease the 
effectiveness of the plan. The licensee shall furnish to the 
Commission a report containing a description of each change within 2 
months after the change is made, and shall maintain records of 
changes to the plan made without prior Commission approval for a 
period of 3 years from the date of the change.''

    Sections 72.180 and 72.56 apply only to a specific license and do 
not apply to a general license. Therefore, applying Sec. 72.44(e) to a 
general license is inconsistent with the remainder of the proposed 
rule. Additionally, Sec. 72.44(e) is inconsistent with 
Sec. 72.212(b)(5) in

[[Page 50610]]

Subpart K which invokes the requirements of Sec. 73.55 and the change 
control requirements of Sec. 50.54(p).
    Response: The NRC agrees with the commenters. As stated in the 
proposed rule (and as discussed in Comment A.1), Sec. 72.180 applies 
only to Part 72 specific licensees. Because Sec. 72.44(e) refers to 
changes to a physical security plan prepared pursuant to Sec. 72.180, 
this paragraph cannot apply to general licensees. Therefore, 
Sec. 72.13(c) is revised in this final rule to exclude Sec. 72.44(e).
    Comment A.8: One commenter, a licensee, believes that Sec. 72.44(f) 
should be revised to eliminate applicability of this section to a 
general license. Section 72.44(f) requires, in part: ``A licensee shall 
follow and maintain in effect an emergency plan that is approved by the 
Commission.'' Section 72.44(f) is inconsistent with Sec. 72.212(b)(6) 
in Subpart K which requires: ``Review the reactor emergency plan, 
quality assurance program, training program, and radiation protection 
program to determine if their effectiveness is decreased and, if so, 
prepare the necessary changes and seek and obtain the necessary 
approvals.'' Section 50.54(q) contains the change control requirements 
for the emergency plan. Section 72.13 should be revised to eliminate 
applicability of Sec. 72.44(f) to a general license.
    Response: The NRC disagrees with the commenter and believes that 
Sec. 72.44(f) applies to Part 72 general and specific licensees. As 
stated in the proposed rule, Sec. 72.32(c) and (d) apply to both 
general and specific licensees. Specifically, Sec. 72.32(c) permits a 
Part 72 licensee who is located on the site, or within the exclusion 
area, of a nuclear power reactor to use an emergency plan that meets 
the requirements of Sec. 50.47 to satisfy the requirements of 
Sec. 72.32. The emergency plan referred to in Sec. 72.212(b)(6) for a 
general licensee originates in Sec. 50.47. Consequently, there is no 
inconsistency between Secs. 72.32 and 72.212. Additionally, similar to 
Comment A.4, changes to an emergency preparedness plan, that affects 
both a collocated ISFSI and a Part 50 reactor, can be made under a 
single submittal to reduce industry burden. NRC will consolidate its 
reviews and approvals of these changes to reduce industry burden.
    Comment A.9: One commenter, a licensee, believes that Sec. 72.52(c) 
should be revised to eliminate applicability of this section to a 
general license. Section 72.52(c) states: ``Any Creditor so secured may 
apply for transfer of the license covering spent fuel by filing an 
application for transfer of the license pursuant to Sec. 72.50(b). The 
Commission will act upon the application pursuant to Sec. 72.50(c).'' 
Section 72.50(b) and (c) are designated in Sec. 72.13 as applying only 
to a specific license and not applying to a general license. Therefore, 
applying Sec. 72.52(c) to a general license is inconsistent with the 
remainder of the proposed rule. Additionally, Sec. 72.210 issues a 
general license to persons authorized to possess or operate nuclear 
power reactors under Part 50. If a transfer of the license to possess 
or operate a nuclear power reactor is approved under Part 50, the 
general license issued by Sec. 72.210 is also transferred without 
additional action. Section 72.13 should be revised to eliminate 
applicability of Sec. 72.52(c) to a general license.
    Response: The NRC agrees with the commenter. As stated in the 
proposed rule, Sec. 72.50(b) applies only to Part 72 specific 
licensees. Because Sec. 72.52(c) refers to a creditor applying for 
transfer of a license pursuant to Sec. 72.50(b), applying Sec. 72.52(c) 
to general licensees would be inconsistent with the remainder of the 
proposed rule. Therefore, Sec. 72.13(c) is revised in this final rule 
to exclude Sec. 72.52(c).
    Comment A.10: One commenter, a licensee, believes that 
Sec. 72.54(f) through (m) should be revised to eliminate applicability 
of this section to a general license. Section 72.54(d) through (m) is 
designated as applying to a general license. Applying any of 
Sec. 72.54, ``Expiration and termination of licenses and 
decommissioning of sites and separate buildings or outdoor areas,'' to 
a general license is inconsistent with existing Subpart K requirements 
in Sec. 72.218, ``Termination of licenses.'' Section 72.218 relies upon 
requirements contained in Part 50 which are adequate to ensure that 
spent fuel is disposed of properly and that decommissioning is 
completed so that the license may be terminated.
    Response: The NRC agrees with the commenter. Section 72.218(a) 
requires that a general licensee shall notify the NRC of the licensee's 
program for management and removal of spent fuel in accordance with 
Sec. 50.54(bb). The timing of the notification required by 
Sec. 50.54(bb) is different from that required by Sec. 72.54(d). 
Because a general licensee cannot be required to comply with two 
differing requirements on the same subject and Sec. 72.218 is 
specifically directed to general licensees, the NRC agrees that 
Sec. 72.54(d) through (m) do not apply to a general licensee. 
Therefore, Sec. 72.13(c) is revised in this final rule to exclude 
Sec. 72.54(d) through (m).
    Comment A.11: One commenter, a licensee, believes that 
Sec. 72.60(b) should be revised to eliminate applicability of this 
section to a general license. Section 72.60(b) enumerates reasons that 
a license may be modified, revoked, or suspended in whole, or in part. 
Section 72.60(b) is inconsistent with Sec. 72.210. Section 72.210 
issues a general license to persons authorized to possess or operate 
nuclear power reactors under Part 50. Section 50.100 requirements are 
similar to those of Sec. 72.60(b). Section 72.13 should be revised to 
eliminate applicability of Sec. 72.60(b) to a general license.
    Response: The NRC disagrees with the commenter and believes that 
Sec. 72.60(b) applies to general and specific Part 72 licensees. The 
NRC has the authority under the AEA to modify, suspend, or revoke all, 
or part, of the general license being used by a Part 72 licensee to 
receive, transfer, or possess power reactor spent fuel. The purpose of 
this authority is the same as described in Comment A.5.
    Comment A.12: One commenter, a licensee, believes that 
Sec. 72.60(c) should be revised to eliminate applicability of this 
section to a general license. Section 72.60(c) states, in part: ``Upon 
revocation of a license, the Commission may immediately cause the 
retaking of possession of all special nuclear material contained in 
spent fuel held by the licensee.'' Section 72.60(c) is inconsistent 
with Sec. 72.210. Section 72.210 issues a general license to persons 
authorized to possess or operate nuclear power reactors under Part 50. 
Section 50.101 requirements are similar to those of Sec. 72.60(c).
    Response: The NRC disagrees with the commenter and believes that 
Sec. 72.60(c) applies to general and specific Part 72 licensees. 
Associated with the NRC authority under the AEA to modify, suspend, or 
revoke all, or part, of the general license is the authority to order 
the recapture of any special nuclear material contained in spent fuel 
possessed by a general licensee. The Commission may take such action in 
cases of extreme importance to the national defense and security or to 
the health and safety of the public. (See also Comments A.5 and A.11.)
    Comment A.13: One commenter, a licensee, believes that 
Sec. 72.80(f) should be revised to eliminate applicability of this 
section to a general license. Section 72.80(f) states: ``If licensed 
activities are transferred or assigned in accordance with 
Sec. 72.44(b)(1), the licensee shall transfer the records required by 
Secs. 20.2103(b)(4) and 72.30(d) to the new licensee and the new 
licensee will be responsible for maintaining these

[[Page 50611]]

records until the license is terminated.'' Section 72.80(f) is 
inconsistent with Sec. 72.210. Section 72.210 issues a general license 
to persons authorized to possess or operate nuclear power reactors 
under Part 50. If a transfer of the license to possess or operate a 
nuclear power reactor is approved under Sec. 50.80, the general license 
issued by Sec. 72.210 is also transferred without additional action. 
Section 50.71 requires that records be retained until the facility 
license is terminated unless otherwise specified.
    Response: The NRC disagrees with the commenter and believes that 
Sec. 72.80(f) applies to general and specific Part 72 licensees. As 
stated in the proposed rule (and as discussed in Comment A.4), 
Secs. 72.44(b)(1) and 72.30(d) apply to both general and specific Part 
72 licensees. Therefore, a general licensee can comply with the 
requirements to transfer required records to the new licensee.
    Comment A.14: One commenter, a certificate holder, believes that 
Sec. 72.62 should be revised to apply to certificate holders. Section 
72.62 provides specific criteria to be met if the Commission is to 
require the backfitting of changes to structures, systems, and 
components of an ISFSI or changes to the procedures or organization 
required to operate an ISFSI. Section 72.13 excludes the applicability 
of Sec. 72.62 to certificate holders. The commenter believes that 
without backfit protection, certificate holders are subject to new 
requirements that may provide little safety benefit or are excessively 
costly to implement.
    Response: The NRC believes this comment is beyond the scope of the 
proposed rule. As discussed in Comment A.1, Sec. 72.13 only clarified 
which sections of Part 72 apply to specific licensees, general 
licensees, and certificate holders; it did not change the current scope 
or intent of these individual sections. The current language in 
Sec. 72.62 only refers to Part 72 licensees (i.e., specific and general 
licensees). Consequently, revising Sec. 72.13 to indicate that 
Sec. 72.62 applies to certificate holders would also require adding 
certificate holders to the language of Sec. 72.62.
    Comment A.15: One commenter, a licensee, believes that 
Sec. 72.44(d) should not apply to general licensees. Section 72.44(d) 
states in part, ``[e]ach license authorizing in the receipt, handling, 
and storage of spent fuel or high-level radioactive waste under this 
part must include technical specifications * * *'' The commenter 
believes that the technical specifications are a component of a Part 72 
ISFSI specific license or a Part 72 CoC; however, they are not part of 
a Part 72 ISFSI general license. The commenter noted that in issuing 
the general license provisions in Subpart K (55 FR 29181; July 18, 
1990), the NRC did not require submission of an application to receive 
a general license. Therefore, technical specifications, that are to be 
submitted as part of a license application, cannot be part of a general 
license.
    Response: The NRC agrees with the commenter. The Part 72, Subpart K 
general license is issued in accordance with the provisions of 
Sec. 72.210. Section 72.210 does not contain any technical 
specifications; however, ``license conditions'' for this general 
license are contained in Sec. 72.212. Specifically, Sec. 72.212(b)(7) 
states, in part, ``[t]he licensee shall comply with the terms and 
conditions of the certificate.'' The CoC for a cask design contains 
technical specifications for its use. Consequently, a general licensee 
is required to comply with the CoC's technical specifications 
associated with the cask design it is using, rather than submitting 
separate technical specifications under Sec. 72.44(d). Therefore, 
Sec. 72.13(c) is revised in the final rule to exclude Sec. 72.44(d).
    Comment A.16: One commenter, a licensee, believes that Sec. 72.192 
should not apply to general licensees. Section 72.192 states that, 
``[t]he applicant for a license under this part shall establish a 
program for training, proficiency testing, and certification of ISFSI 
or MRS personnel. This program must be submitted to the Commission for 
approval with the license application.'' The commenter noted that 
Sec. 72.6(a) indicates that a general license is effective without the 
filing of an application to the Commission [emphasis original]. 
Therefore, the commenter believes that applying Sec. 72.192 to a 
general license creates conflicting regulations.
    Response: The NRC agrees with the commenter that a general licensee 
is not required to submit an application. Consequently, a general 
licensee would not have to submit a training program for NRC approval 
``with the license application.'' Therefore, Sec. 72.13(c) is revised 
in the final rule to exclude Sec. 72.192.

B. Eliminate Repetitive Reviews of Cask Design Issues in Licensing 
Proceedings on Applications for Specific Part 72 Licenses Which 
Reference NRC-Approved Quality Assurance Programs Before Issuance of a 
CoC

    Comment B.1: Three commenters, a licensee, NEI, and an applicant 
for a license, support avoiding repetitive reviews of cask design 
issues in a Part 72 specific license hearing where the previously-
approved cask design has been incorporated by reference into the 
application. However, the commenters believe that this aspect of the 
proposed rulemaking should be clarified. The commenters indicated that, 
as written, Sec. 72.46(e) could be read to preclude repetitive reviews 
only where the CoC had already been issued (i.e., ``cask design issues 
previously addressed by the Commission when it issued the CoC'') 
[emphasis original].
    The commenters indicated that there will be cases where the site-
specific license proceeding and the CoC review are proceeding in 
parallel. Because the site-specific license cannot be issued until the 
CoC for the design referenced in the site-specific application has also 
been issued, there are no safety issues involved with eliminating 
repetitive cask design reviews in the site-specific licensing 
proceeding. These safety issues can still be raised in the CoC review 
process. Those issues need not be repetitively reviewed and resolved in 
the parallel site-specific licensing proceeding. The commenters believe 
that allowing those issues to be raised in both of these proceedings 
would create the specter of inconsistent results as well as duplicative 
and wasteful use of resources by the NRC staff and applicants. The 
commenters also stated that, ``[t]he NRC's CoC review will encompass 
all safety issues which the Commission, in its expert judgment, 
determines are needed to adequately protect public health and safety.''
    The commenters argued that ``[i]t is a basic principle of 
administrative law that an agency's choice to proceed by rulemaking or 
by case specific adjudication is within the agency's discretion.'' 
Furthermore, ``[d]eferring consideration of issues from site-specific 
[licensing] proceedings to a generic proceeding [i.e., rulemaking] is 
well established in NRC and judicial case law. This is the case even 
when the generic proceedings are still in progress. Commission 
decisions have long held that `licensing boards should not accept in 
individual license proceedings contentions which are (or are about to 
become) the subject of general rulemaking by the Commission.' '' 
Therefore, the commenters concluded that ``[l]ogic, NRC precedent, and 
federal case law all suggest that cask design issues should not be 
reviewed in site-specific proceedings whether the CoC is issued prior 
to, during, or after the site-specific [licensing] proceeding.''
    Response: The NRC agrees with the commenters that NRC precedent and 
Federal case law identified by the commenter support the position that 
cask design issues should not be

[[Page 50612]]

reviewed in a site-specific licensing proceeding whether the CoC is 
issued before, during, or after the site-specific licensing proceeding. 
The NRC agrees that cask design issues can be adequately raised by the 
public in the context of the Part 72 rulemaking process approving the 
design and that the NRC staff can still adequately review, evaluate, 
and disposition any such issues during this process. As stated in the 
proposed rule, the opportunity of the public to comment on cask designs 
will not be affected by this rulemaking. However, design interface 
issues between the referenced cask design and specific site 
characteristics (e.g., meteorological, seismological, radiological, and 
hydrological), or changes to the cask's approved design, must be 
addressed by the applicant in its application and may be raised as 
potential issues at a licensing proceeding. Therefore, in the final 
rule, Sec. 72.46(e) has been revised to read as suggested by the 
commenter.
    Finally, the NRC agrees with the commenters that if an applicant 
chooses to incorporate by reference in its application for a specific 
license a cask design that has not yet been approved by the NRC, then 
the NRC will not issue the specific license to the applicant--assuming 
that all other NRC review and approval actions have been completed--
until after the referenced cask design has been added to the list of 
approved cask designs contained Sec. 72.214.
    Comment B.2: Three commenters, a licensee, NEI, and an applicant 
for a license, while agreeing with the proposed Sec. 72.46(e) also 
indicated that the NRC should clarify in the Statements of 
Consideration for the final rule the process for requesting changes to 
an approved cask design. The commenters believe that if a cask design 
issue was, in fact, not addressed in connection with the issuance of 
the CoC, the proper mechanism to raise that cask design issue after the 
CoC was issued would be to file either a request for action with the 
Commission pursuant to Sec. 2.206, or a petition to amend the rule 
adopting the CoC pursuant to Sec. 2.802. Alternatively, an attempt to 
raise a cask design issue involving a cask which had received a CoC, in 
a site-specific proceeding, could be made subject to Sec. 2.758, which 
establishes the process for handling challenges to the NRC regulations 
in individual licensing proceedings.
    Response: The NRC agrees with the commenters that for a cask design 
currently under NRC review, individuals who wish to raise issues on the 
cask design may do so during the review process or by commenting on the 
cask design when the proposed rule to approve the design is published 
for public comment in the Federal Register. After a cask design is 
approved by rulemaking, individuals who wish to raise new issues should 
do so via the petition provision contained in either Sec. 2.206 or 
Sec. 2.802. Finally, the NRC also agrees that individuals may challenge 
NRC regulations in an individual licensing proceeding under the 
provisions of Sec. 2.758.

C. Permitting CoC Applicants To Begin Fabrication Under an NRC-Approved 
QA Program Before Issuance of the CoC

    Comment: Two commenters, NEI and an applicant for a license, 
supported allowing applicants for a CoC to begin cask fabrication 
before issuance of a CoC, if fabrication is done under an NRC-approved 
quality assurance program. The commenters believe that the practice of 
fabrication in advance of issuance of a CoC results in no increase in 
risk to the public, because an applicant cannot load casks that do not 
conform to the issued CoC. The commenters further recognized that this 
practice places the applicant at economic risk if the CoC contains 
changes not considered at the time the cask was fabricated.
    Response: No response required.

Summary of Final Amendments to the Proposed Rule

    In Sec. 72.13, paragraphs (a), (b), and (d) remain unchanged from 
the proposed rule amendments. Paragraph (c) is changed to incorporate 
Secs. 72.214, 72.240(a) and to exclude Secs. 72.44(d) and (e), 
72.52(c), 72.54(d) through (m), and 72.192, and is revised to read as 
follows:
    (c) The following sections apply to activities associated with a 
general license: Secs. 72.1; 72.2(a)(1), (b), (c), and (e); 72.3 
through 72.6(c)(1); 72.7 through 72.13(a) and (c); 72.30(c) and (d); 
72.32(c) and (d); 72.44(b) and (f); 72.48; 72.50(a); 72.52(a), (b), 
(d), and (e); 72.60; 72.62; 72.72 through 72.80(f); 72.82 through 
72.86; 72.104; 72.106; 72.122; 72.124; 72.126; 72.140 through 72.176; 
72.190; 72.194; 72.210 through 72.220, and 72.240(a).
    In Sec. 72.46, paragraph (e) is revised to read as follows:
    (e) If an application for (or an amendment to) a specific license 
issued under this part incorporates by reference information on the 
design of a spent fuel storage cask for which NRC approval pursuant to 
subpart L of this part has been issued or is being sought, the scope of 
any public hearing held to consider the application will not include 
any cask design issues.
    Sections 72.86, 72.140, 72.234, and 72.236, remain unchanged from 
the proposed rule amendments.

Criminal Penalties

    For the purposes of Section 223 of the Atomic Energy Act (AEA), the 
Commission is issuing the final rule to amend 10 CFR 72.140, 72.234, 
and 72.236 under one or more of Sections 161b, 161i, or 161o of the 
AEA. Willful violations of the rule would be subject to criminal 
enforcement.

Agreement State Compatibility

    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 final rule is classified as 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.

Voluntary Consensus Standards

    The National Technology Transfer Act of 1995 (Pub. L. 104-113) 
requires that Federal agencies use technical standards that are 
developed or adopted by voluntary consensus standards bodies unless the 
use of such a standard is inconsistent with applicable law or otherwise 
impractical. The NRC is amending its regulations on spent fuel storage 
in those sections of 10 CFR part 72 that apply to general licensees, 
specific licensees, applicants for a specific license, certificate 
holders, and applicants for a certificate. This final rule eliminates 
the necessity for repetitious part 72 specific licensing proceeding 
reviews of cask design issues that the Commission previously 
considered, or is considering, and resolved during approval of the cask 
design. This final rule also allows an applicant for a CoC to begin 
cask fabrication at its risk before the CoC is issued. This action does 
not constitute the establishment of a standard that establishes 
generally applicable requirements.

Environmental Impact: Categorical Exclusion

    The NRC has determined that this final rule is the type of action 
described in the categorical exclusion in 10 CFR 51.22(c)(2) and (3). 
This action represents amendments to the regulations which are 
corrective or of a minor or nonpolicy nature and do not substantially 
modify the existing

[[Page 50613]]

regulations. Therefore, neither an environmental impact statement nor 
an environmental assessment has been prepared for this final rule.

Paperwork Reduction Act Statement

    This final rule would decrease the burden on licensees by 
eliminating the requirement to request an exemption to begin cask 
design before a license is issued, and by allowing all licensees and 
CoC holders to reference previously-approved QA programs. The public 
burden reduction for this information collection would average 200 
hours per exemption request. However, because no burden has previously 
been approved for exemption requests and no licensees are expected to 
reference previously approved QA programs in the foreseeable future, no 
burden reduction can be taken for this rulemaking. 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

Statement of the Problem and Objective

    The Commission's regulations at 10 CFR part 72 were originally 
designed to provide specific licenses for the storage of spent nuclear 
fuel in ISFSIs (45 FR 74693; November 12, 1980). In 1990, the 
Commission amended part 72 to include a process for approving the 
design of spent fuel storage casks and issuance of a CoC (Subpart L); 
and for granting a general license to reactor licensees (Subpart K) to 
use NRC-approved casks for storage of spent nuclear fuel (55 FR 29181; 
July 17, 1990). Although the Commission intended that the requirements 
imposed in Subpart K for general licensees be used in addition to, 
rather than in lieu of, appropriate existing requirements, ambiguity 
exists as to which of the part 72 requirements, other than those in 
Subpart K, are applicable to general licensees and certificate holders, 
respectively. This final rule will resolve that ambiguity.
    In addition, the Commission has identified two aspects of part 72 
where it would be desirable to reduce the regulatory burden for 
applicants, NRC staff, and hearing boards and to afford additional 
flexibility to applicants for a specific license or CoC.
    First, this final rule will eliminate the necessity for repetitious 
reviews of cask design issues in a part 72 specific licensing 
proceeding (Sec. 72.46), where the previously-approved cask design has 
been incorporated by reference into the application. In addition, 
repetitive reviews will also be eliminated in those cases where the 
site-specific licensing proceeding and CoC review are proceeding in 
parallel. The Commission anticipates receipt of several applications, 
for specific ISFSI licenses, that will propose using storage cask 
designs previously approved by the NRC. Applicants for a specific 
license presently have the authority under Sec. 72.18 to incorporate by 
reference into their application, information contained in previous 
applications, statements, or reports filed with the Commission, 
including information from the Safety Analysis Report for a cask design 
previously approved by the NRC under the provisions of Subpart L. The 
Commission believes previously-reviewed cask design issues should be 
excluded from the scope of a license proceeding. This is because the 
public had the right to question the adequacy of the cask design, 
during the approval process under Subpart L. The right of the public to 
comment on cask designs would not be affected by this rulemaking. For 
new cask design issues, this rulemaking would not limit the scope of 
the staff's review of the application or of license hearings. For 
example, a cask's previously-reviewed and -approved thermal, 
criticality, and structural designs could not be raised as issues in a 
hearing. However, design interface issues between the approved cask 
design and specific site characteristics (e.g., meteorological, 
seismological, radiological, and hydrological) or changes to the cask's 
approved design must be addressed by the applicant in its application 
and may be raised as issues at a potential hearing. In addition, for 
the situation previously mentioned, where the CoC review is proceeding 
in parallel with the site-specific license proceeding, there is no 
safety issue involved with eliminating repetitive cask design reviews, 
since the site-specific license cannot be issued until the CoC for the 
design referenced in the site-specific application has also been 
issued. Allowing those issues to be raised in both the licensing 
proceeding and CoC review process could create the specter of 
inconsistent results as well as duplicative and wasteful use of 
resources by the NRC staff and applicants. Furthermore, the NRC's CoC 
review will encompass all safety issues which the Commission determines 
are needed to adequately protect public health and safety. Deferring 
consideration of these issues from site-specific proceedings to a 
generic proceeding is well established in NRC precedent and Federal 
case law which suggests that cask design issues should not be reviewed 
in site-specific proceedings regardless whether the CoC is issued 
before, during, or after the site-specific licensing proceeding.
    The NRC notes that, for a cask design currently under NRC review, 
individuals who wish to raise issues on the cask design may do so 
during the review process or by commenting on the cask design when the 
proposed rule to approve the design is published for public comment in 
the Federal Register. After a cask design is approved by rulemaking, 
individuals who wish to raise new issues should do so via the petition 
provision contained in either Secs. 2.206 or 2.802. Individuals who 
wish to challenge NRC regulations in an individual licensing proceeding 
can do so under the provisions of Sec. 2.758.
    Second, the final rule permits an applicant for approval of a spent 
fuel storage cask design under Subpart L to begin fabrication of casks 
before the NRC has approved the cask design and issued the CoC. 
Currently, an applicant for a CoC is not permitted under Sec. 72.234(c) 
to begin cask fabrication until after the CoC is issued. Applicants for 
a specific license, and their contractors, are currently allowed to 
begin fabrication of casks before the Commission issues their license. 
However, general licensees and their contractors (i.e, the certificate 
holder) are not allowed to begin fabrication before the CoC is issued. 
Consequently, this final rule would eliminate NRC's disparate treatment 
between general and specific licensees. The Commission and the staff 
have previously determined that exemptions from the fabrication 
prohibition are authorized by law and do not endanger life or property, 
the common defense or security, and are otherwise in the public 
interest. The Commission anticipates that additional cask designs will 
be submitted to the NRC for approval and expects that these designs 
will be similar in nature to those cask designs that have already been 
approved. The Commission also expects that exemption requests to permit 
fabrication would also be received. Therefore, this rulemaking would 
eliminate the need for such exemption requests.
    This final rule also revises the QA regulations in Subpart G of 
part 72 to require that an applicant for a CoC, who voluntarily wishes 
to begin cask fabrication before issuance of the cask CoC, must conduct 
cask fabrication under an NRC-approved QA program.

[[Page 50614]]

Currently, applicants for a CoC are required by Sec. 72.234(b) to 
conduct design, fabrication, testing, and maintenance activities under 
a QA program that meets the requirements of Subpart G. Prior NRC 
approval of the applicant's QA program is not required by 
Sec. 72.234(b). However, Sec. 72.234(c) precludes cask fabrication 
until after the CoC is issued. The Commission believes this final rule 
is a conditional relaxation to permit fabrication before the CoC is 
issued. Because NRC staff would approve the applicant's QA program as 
part of the issuance of a CoC, staff approval of the QA program before 
fabrication is a question of timing (i.e., when the program is 
approved, as opposed to imposing a new requirement for approval of a 
program). The Commission expects that any financial or schedule risks 
associated with fabrication of casks before issuance of the CoC would 
be borne by the applicant. The Commission believes that the final rule 
is not a backfit because Sec. 72.62 applies to licensees after the 
license is issued and does not apply to applicants before issuance of 
the license or CoC. This rule requires that a cask, for which 
fabrication was initiated before issuance of the CoC, must conform to 
the issued CoC before it may be used.
    This final rule also requires an applicant for a specific license, 
who voluntarily wishes to begin fabrication of casks before the license 
is issued, to conduct fabrication under an NRC-approved QA program. 
Currently, an applicant for a specific license is required by 
Sec. 72.140(c) to obtain NRC approval of its QA program before spent 
fuel is loaded into the ISFSI. The Commission does not believe this 
final rule will impose a separate requirement, rather it would require 
different timing on when the QA program is approved.
    This final rule also revises Sec. 72.140(d) to allow a licensee, 
applicant for a license, certificate holder, and applicant for a CoC to 
use an existing Part 50, 71, or 72 QA program that was previously 
approved by the NRC.
    As a result of this final rule, both licensees and certificate 
holders are required to accomplish any fabrication activities under an 
NRC-approved QA program. The Commission believes this final rule's 
increase in flexibility and change in timing of approval of a QA 
program are not a backfit.
    The Commission expects that any risks associated with fabrication 
(e.g., rewelding, reinspection, or even abandonment of the cask) would 
be borne by the applicant. In particular, the NRC will require that a 
cask fabricated before the CoC was issued conform with the issued CoC 
before spent fuel is loaded in the cask. Requiring an applicant to 
conform a fabricated cask to the issued CoC would not be subject to the 
backfit review provisions of Sec. 72.62.

Identification and Analysis of Alternative Approaches to the Problem

     Option 1--Conduct a rulemaking that would address the 
regulatory problems as described above.
    First, this final rulemaking specifies the sections in Part 72 that 
apply to general licensees, specific licensees, applicants for a 
specific license, certificate holders, and applicants for a CoC. This 
eliminates the need to resolve, on a case-by-case basis, questions on 
which Part 72 sections are applicable to those activities. The final 
rule is administrative in nature and, other than the cost of 
rulemaking, would have no impact.
    Second, this rulemaking reduces the regulatory burden on 
applicants, staff, and hearing board resources relating to any 
Sec. 72.46 licensing proceedings involving cask design issues 
associated with an application for a specific license, where the cask 
design has been previously approved by the NRC or is currently under 
review. Elimination of the need for repetitious reviews of cask design 
issues and licensing hearings on these same cask design issues together 
would save 1.0 FTE of applicant effort and 0.1 FTE of staff effort for 
each specific license application received. NRC expects to review two 
applications in 2000, three applications in 2001, and four applications 
each in 2002 and 2003. While applicants for a license are currently 
allowed to incorporate by reference information on cask design 
information, this rulemaking reduces applicant burden associated with 
providing additional information on the cask design and responding to 
licensing board contentions on issues which have been previously 
reviewed and resolved.
    Third, this rulemaking also provides increased flexibility to 
applicants for a CoC by allowing them to begin cask fabrication, before 
the CoC is issued. This rulemaking reduces the burden on applicants for 
a CoC associated with submission of requests for exemption from 
Sec. 72.234(c). Certificate holders have requested these exemptions to 
take advantage of favorable business conditions (i.e., they want to 
begin fabrication of casks as soon as possible to meet their contract 
obligations). Elimination of the need for submission and review of 
exemption requests from the cask fabrication requirement of 
Sec. 72.234(c) will save 0.1 FTE of applicant effort and 0.1 FTE of 
staff effort, for each exemption request not received. Without this 
action, NRC expects that two requests for exemption from Sec. 72.234(c) 
will be received each year in 2000 and beyond. This rulemaking also 
eliminates the disparate treatment of general and specific licensees 
under Part 72, with respect to fabrication of spent fuel storage casks. 
This rulemaking also reduces staff burden associated with review of 
such exemption requests. Because a certificate holder is currently 
required by Sec. 72.140(c)(3) to obtain NRC approval of its QA program 
before commencing fabrication, and the staff is currently required to 
review and approve these programs, no increase in applicant burden or 
staff resources will occur with respect to the final change to 
Sec. 72.140(c)(3). However, the timing of the staff review and approval 
of the QA program would change.
    The impact of this option consists primarily of a reduction in 
regulatory burden on an applicant for a specific license, a reduction 
in regulatory burden and increase in regulatory flexibility for an 
applicant for a cask design, and a reduction in the expenditure of NRC 
resources involved in reviewing applications for a specific license, 
supporting license hearings, and reviewing requests for exemption from 
Sec. 72.234(c). This option will result in the expenditure of NRC 
resources to conduct this rulemaking.
     Option 2--No action.
    The benefit of the no action alternative is that NRC resources will 
be conserved because no rulemaking will be conducted. The impact of 
this alternative is that the regulatory problems described above would 
not be addressed. Instead, applicant and staff resources will continue 
to be expended on repetitious reviews of previously-approved cask 
designs, conducting licensing hearings on previously-approved cask 
design issues, and processing requests for exemption from 
Sec. 72.234(c), to allow fabrication of casks.

Estimation and Evaluation of Values and Impacts

    The clarification of which Part 72 sections apply to specific 
licensees, applicants for a specific license, general licensees, 
certificate holders, and applicants for a CoC alone will have no impact 
other than the cost of rulemaking, because this action is 
administrative in nature.
    The elimination of repetitious reviews of cask design issues in a 
Part 72 specific license proceeding (Sec. 72.46) and parallel CoC 
reviews will save 1.0 FTE of applicant effort and 0.1 FTE of staff 
effort for each license application received. NRC expects to review two

[[Page 50615]]

applications in 2000, three applications in 2001, and four applications 
each in 2002 and 2003.
    The elimination of the need for submission and review of exemption 
requests from the cask fabrication requirement of Sec. 72.234(c) will 
save 0.1 FTE of applicant effort and 0.1 FTE of staff effort, for each 
exemption request not received. Without this action, NRC expects that 
two requests for exemption from Sec. 72.234(c) will be received each 
year in 2000 and beyond.

Presentation of Results

    The recommended action is to adopt the first option because it will 
set forth a clear regulatory base for Part 72 general licensees, 
specific licensees, applicants for a specific license, certificate 
holders, and applicants for a CoC.
    The recommended action will eliminate the need for repetitious 
licensing proceeding adjudication of cask design issues that the 
Commission has previously reviewed in approving the cask design, or is 
currently reviewing, when an applicant for a specific license has 
incorporated by reference a cask design that has been approved, or is 
under review, by the Commission under the provisions of Subpart L. This 
is because the public has the right to question the adequacy of the 
cask design during the approval process under Subpart L. The right of 
the public to comment on cask designs will not be affected by this 
rulemaking. This final rule also eliminates repetitive reviews in those 
cases where the site-specific licensing proceeding and CoC review are 
proceeding in parallel. In addition, the rights of the public to 
petition the Commission under Secs. 2.206 and 2.802 to raise new safety 
issues on the adequacy of the cask design would not be affected by this 
rulemaking. The Commission considers rereview of cask design issues 
which have been previously evaluated and dispositioned as an 
unnecessary regulatory burden on applicants and an unnecessary 
expenditure of staff and hearing board resources. For example, the 
cask's previously-reviewed and -approved thermal, criticality, and 
structural designs could not be raised as issues in a hearing. However, 
design interface issues between the approved cask design and specific 
site characteristics (e.g., meteorological, seismological, 
radiological, and hydrological) or changes to the cask's approved 
design must be addressed by the applicant in its application and may be 
raised as issues at a potential hearing. Therefore, this action has no 
safety impact.
    The recommended action will permit an applicant for approval of a 
spent fuel storage cask design under Subpart L to begin fabrication of 
casks before the NRC has approved the cask design and issued the CoC. 
Currently, an applicant for a CoC is not permitted under Sec. 72.234(c) 
to begin cask fabrication until after the CoC is issued. Applicants for 
a specific license, and their contractors, are currently allowed to 
begin fabrication of casks before the Commission issues their license. 
However, general licensees and their contractors (i.e, the certificate 
holder) are not allowed to begin fabrication before the CoC is issued. 
Consequently, this final rule will eliminate NRC's disparate treatment 
between general and specific licensees. In addition to allowing an 
applicant for a CoC to begin fabrication of a cask before issuance of 
the CoC, comments would be requested on the need for a general licensee 
to also begin fabrication of a cask before the CoC is issued. The 
Commission and the staff have previously determined that exemptions 
from the fabrication prohibition are authorized by law and do not 
endanger life or property, the common defense or security, and are 
otherwise in the public interest. The Commission anticipates that 
additional cask designs will be submitted to the NRC for approval and 
expects that these designs will be similar in nature to those cask 
designs that have already been approved. The Commission also expects 
that exemption requests to permit fabrication will also be received. 
Therefore, this rulemaking will eliminate the need for such exemption 
requests.
    This final rule is revising the QA regulations in Subpart G of Part 
72 to require that an applicant for a CoC, who voluntarily wishes to 
begin cask fabrication, must conduct cask fabrication under an NRC-
approved QA program. Currently, applicants for a CoC are required by 
Sec. 72.234(b) to conduct design, fabrication, testing, and maintenance 
activities under a QA program that meets the requirements of Subpart G. 
Prior NRC approval of the applicant's QA program is not required by 
Sec. 72.234(b). However, Sec. 72.234(c) precludes cask fabrication 
until after the CoC is issued. The Commission believes this final rule 
is a conditional relaxation to permit fabrication before the CoC is 
issued. Because NRC staff will approve the applicant's QA program as 
part of issuance of a CoC, staff approval of the QA program before 
fabrication is a question of timing (i.e., when the program is 
approved, as opposed to imposing a new requirement for approval of a 
program). The Commission expects that any financial or scheduler risks 
associated with fabrication of casks before issuance of the CoC will be 
borne by the applicant. The Commission believes that the final rule is 
not a backfit because Sec. 72.62 applies to licensees after the license 
is issued and does not apply to applicants before issuance of the 
license or CoC. This rule requires that a cask, for which fabrication 
was initiated before issuance of the CoC, must conform to the issued 
CoC before it may be used.
    This final rule requires an applicant for a specific license, who 
voluntarily wishes to begin fabrication of casks before the license is 
issued, to conduct fabrication under an NRC-approved QA program. 
Currently, an applicant for a specific license is required by 
Sec. 72.140(c) to obtain NRC approval of its QA program before spent 
fuel is loaded into the ISFSI. The Commission does not believe this 
final rule will impose a separate requirement, rather it will require 
different timing on when the QA program is approved.
    This final rule also revises Sec. 72.140(d) to allow a licensee, 
applicant for a license, certificate holder, and applicant for a CoC to 
use an existing Part 50, 71, or 72 QA program that was previously 
approved by the NRC. In addition, the Commission expects that any 
existing QA program which is used by these persons, in lieu of 
submitting a new Part 72 QA program, will fully comply with the 
requirements of Part 72, Subpart G.
    As a result of this final rule, both licensees and certificate 
holders are required to conduct any fabrication activities under an 
NRC-approved QA program. The Commission believes this final rule's 
increase in flexibility and change in timing of approval of a QA 
program is not a backfit.
    The Commission expects that any risks associated with fabrication 
(e.g., rewelding, reinspection, or even abandonment of the cask) will 
be borne by the applicant. In particular, the NRC will require that a 
cask fabricated before the CoC was issued conform with the issued CoC. 
Requiring an applicant to conform a fabricated cask to the issued CoC 
will not be subject to the backfit review provisions of Sec. 72.62.
    The total cost of this rulemaking to the NRC is estimated at 1.9 
FTE. The total savings to the NRC for this rulemaking is estimated at 
1.3 FTE over a 4-year period (2000 through 2003). The total savings to 
applicants is estimated at 13.0 FTE over a 4-year period. Therefore, 
this action is considered to be cost beneficial to applicants and will 
improve the efficiency and effectiveness of the NRC.

[[Page 50616]]

Consequently, the Commission believes public confidence in the safe 
storage of spent fuel at independent spent fuel storage installations 
will not be adversely affected by this rulemaking.

Decision Rationale

    The rationale is to proceed with this final rulemaking. This 
rulemaking will save both staff and applicant resources as discussed 
above.
    The clarification of the provisions of Part 72 and their 
application to general licensees, specific licensees, applicants for a 
specific license, certificate holders, and applicants for a CoC is 
administrative in nature and has no safety impacts.
    The elimination of the need for repetitious license hearings on 
cask design issues, that the NRC has previously reviewed, or is 
currently reviewing, and approved in an application for a CoC, 
including those instances where the site-specific licensing proceeding 
and CoC review are proceeding in parallel, will have no safety impacts. 
The public's right to comment on cask design issues, through the 
Subpart L cask approval process, will remain unchanged.
    The flexibility to begin cask fabrication before the NRC issues the 
CoC, when combined with the requirement that cask fabrication must be 
performed under an NRC-approved QA program, will have no safety 
impacts.

Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)), 
the Commission certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities. 
This final rule clearly specifies which sections of Part 72 apply to 
general licensees, specific licensees, applicants for a specific 
license, certificate holders, and applicants for a certificate and 
allows these persons to determine which Part 72 regulations apply to 
their activity. This clarification eliminates the ambiguity that now 
exists. This final rule also eliminates repetitious licensing 
proceeding reviews of cask design issues, that were under review, or 
previously reviewed and approved by the NRC, when the applicant for a 
specific license incorporates by reference information on a cask design 
that was previously approved, or under review, by the NRC. Finally, 
this final rule allows applicants for a CoC to begin fabrication of a 
cask design before the NRC has issued a CoC. Applicants desiring to 
begin fabrication shall use an NRC-approval QA program. The requirement 
to obtain NRC approval of the applicant's QA program is not considered 
an additional burden. An applicant who has been issued a CoC, and is 
then considered a certificate holder, is currently required by 
Sec. 72.140(c)(3) to obtain NRC approval of its QA program before 
fabrication or testing is commenced; consequently, no actual increase 
in burden occurs. Similarly, an applicant for a specific license is 
currently required by Sec. 72.140(c)(2) to obtain NRC approval of its 
QA program before receipt of spent fuel or high-level waste; 
consequently, no actual increase in burden occurs. This final rule does 
not impose any additional obligations on entities that may fall within 
the definition of ``small entities'' as set forth in Section 601(6) of 
the Regulatory Flexibility Act; or within the definition of ``small 
business'' as found in Section 3 of the Small Business Act, 15 U.S.C. 
632; or within the size standards adopted by the NRC on April 11,1985 
(60 FR 18344).

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.

Backfit Analysis

    The NRC has determined that the backfit rule, Sec. 72.62, does not 
apply to this final rule. Because these amendments do not involve any 
provisions that would impose backfits as defined in Sec. 72.62(a), a 
backfit analysis is not required.

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. 552 and 553, the NRC is adopting 
the following amendments 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, 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); sec. 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 secs. 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), 96 Stat. 2252 
(42 U.S.C. 10198).

    2. Section 72.13 is added to Subpart A to read as follows:


Sec. 72.13  Applicability.

    (a) This section identifies those sections, under this part, that 
apply to the activities associated with a specific license, a general 
license, or a certificate of compliance.
    (b) The following sections apply to activities associated with a 
specific license: Secs. 72.1; 72.2(a) through (e); 72.3 through 
72.13(b); 72.16 through 72.34; 72.40 through 72.62; 72.70 through 
72.86; 72.90 through 72.108; 72.120 through 72.130; 72.140 through 
72.176; 72.180 through 72.186; 72.190 through 72.194; and 72.200 
through 72.206.
    (c) The following sections apply to activities associated with a 
general license: Secs. 72.1; 72.2(a)(1), (b), (c), and (e); 72.3 
through 72.6(c)(1); 72.7 through 72.13(a) and (c); 72.30(c) and (d); 
72.32(c) and (d); 72.44(b) and (f); 72.48; 72.50(a); 72.52(a), (b), 
(d), and (e); 72.60; 72.62; 72.72 through 72.80(f); 72.82 through 
72.86; 72.104; 72.106; 72.122; 72.124; 72.126; 72.140 through 72.176; 
72.190; 72.194; 72.210 through 72.220, and 72.240(a).
    (d) The following sections apply to activities associated with a 
certificate of compliance: Secs. 72.1; 72.2(e) and (f); 72.3; 72.4; 
72.5; 72.7; 72.9 through 72.13(a) and (d); 72.48; 72.84(a); 72.86; 
72.124; 72.140 through 72.176; 72.214; and 72.230 through 72.248.

[[Page 50617]]


    3. In Sec. 72.46, paragraph (e) is added to read as follows:


Sec. 72.46  Public hearings.

* * * * *
    (e) If an application for (or an amendment to) a specific license 
issued under this part incorporates by reference information on the 
design of a spent fuel storage cask for which NRC approval pursuant to 
subpart L of this part has been issued or is being sought, the scope of 
any public hearing held to consider the application will not include 
any cask design issues.

    4. In Sec. 72.86, paragraph (b) is revised to read as follows:


Sec. 72.86  Criminal penalties.

* * * * *
    (b) The regulations in Part 72 that are not issued under sections 
161b, 161i, or 161o for the purposes of section 223 are as follows: 
Secs. 72.1, 72.2, 72.3, 72.4, 72.5, 72.7, 72.8, 72.9, 72.13, 72.16, 
72.18, 72.20, 72.22, 72.24, 72.26, 72.28, 72.32, 72.34, 72.40, 72.46, 
72.56, 72.58, 72.60, 72.62, 72.84, 72.86, 72.90, 72.96, 72.108, 72.120, 
72.122, 72.124, 72.126, 72.128, 72.130, 72.182, 72.194, 72.200, 72.202, 
72.204, 72.206, 72.210, 72.214, 72.220, 72.230, 72.238, and 72.240.

    5. In Sec. 72.140, paragraphs (c) and (d) are revised to read as 
follows:


Sec. 72.140  Quality assurance requirements.

* * * * *
    (c) Approval of program.
    (1) Each licensee, applicant for a license, certificate holder, or 
applicant for a CoC shall file a description of its quality assurance 
program, including a discussion of which requirements of this subpart 
are applicable and how they will be satisfied, in accordance with 
Sec. 72.4.
    (2) Each licensee shall obtain Commission approval of its quality 
assurance program prior to receipt of spent fuel at the ISFSI or spent 
fuel and high-level radioactive waste at the MRS. Each licensee or 
applicant for a specific license shall obtain Commission approval of 
its quality assurance program before commencing fabrication or testing 
of a spent fuel storage cask.
    (3) Each certificate holder or applicant for a CoC shall obtain 
Commission approval of its quality assurance program before commencing 
fabrication or testing of a spent fuel storage cask.
    (d) Previously-approved programs. A quality assurance program 
previously approved by the Commission as satisfying the requirements of 
Appendix B to part 50 of this chapter, subpart H to part 71 of this 
chapter, or subpart G to this part will be accepted as satisfying the 
requirements of paragraph (b) of this section, except that a licensee, 
applicant for a license, certificate holder, and applicant for a CoC 
who is using an Appendix B or subpart H quality assurance program shall 
also meet the recordkeeping requirements of Sec. 72.174. In filing the 
description of the quality assurance program required by paragraph (c) 
of this section, each licensee, applicant for a license, certificate 
holder, and applicant for a CoC shall notify the NRC, in accordance 
with Sec. 72.4, of its intent to apply its previously-approved quality 
assurance program to ISFSI activities or spent fuel storage cask 
activities. The notification shall identify the previously-approved 
quality assurance program by date of submittal to the Commission, 
docket number, and date of Commission approval.

    6. In Sec. 72.234, paragraph (c) is revised to read as follows:


Sec. 72.234  Conditions of approval.

* * * * *
    (c) An applicant for a CoC may begin fabrication of spent fuel 
storage casks before the Commission issues a CoC for the cask; however, 
applicants who begin fabrication of casks without a CoC do so at their 
own risk. A cask fabricated before the CoC is issued shall be made to 
conform to the issued CoC before being placed in service or before 
spent fuel is loaded.
* * * * *

    7. Section 72.236 is amended by revising the introductory text to 
read as follows:


Sec. 72.236  Specific requirements for spent fuel storage cask approval 
and fabrication.

    The certificate holder and applicant for a CoC shall ensure that 
the requirements of this section are met.
* * * * *

    Dated at Rockville, Maryland, this 15th day of August, 2000.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 00-21229 Filed 8-18-00; 8:45 am]
BILLING CODE 7590-01-P