[Federal Register Volume 66, Number 238 (Tuesday, December 11, 2001)]
[Proposed Rules]
[Pages 63964-63968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30611]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 66, No. 238 / Tuesday, December 11, 2001 / 
Proposed Rules  

[[Page 63964]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 72

[Docket No. PRM-72-5]


Nuclear Energy Institute; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking: denial.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking (PRM-72-5) submitted by the Nuclear Energy Institute 
(NEI). The petitioner requested that the NRC amend its regulations 
governing the issuance of Certificates of Compliance (CoCs) for dry 
cask storage of spent nuclear fuel under a general license. The 
petitioner requested that the NRC eliminate notice and comment 
rulemaking from the approval process for initial cask designs and for 
CoC amendments. The petitioner proposed an alternative approval process 
which provided for approval by orders after a period for public 
comment, except in the case of amendments for which a determination of 
no significant impacts was reached. This type of amendment could be 
issued as immediately effective with a post-issuance comment period.
    The Commission is denying the petition for rulemaking because 
improvements in the approval process have significantly decreased the 
length of time for approval of CoC amendments, making regulatory change 
unnecessary; the petitioner's approval process may require the offer of 
an opportunity for a hearing which could eliminate any efficiency 
obtained by the elimination of notice and comment rulemaking; and the 
Commission's performance goals would be better served by retaining the 
present process than by adopting the process suggested by petitioner.

ADDRESSES: Copies of the petition for rulemaking, the public comments 
received, and NRC's letter to the petitioner may be examined at the NRC 
Public Document Room, 11555 Rockville Pike, Rockville, MD. These 
documents also may be viewed and downloaded electronically via the 
NRC's rulemaking website (http://ruleforum.llnl.gov). For information 
about the interactive rulemaking website, contact Ms. Carol Gallagher 
(301) 415-5905; e-mail [email protected].
    The NRC maintains an Agencywide Document Access and Management 
System (ADAMS), which provides text and image files of NRC's public 
documents. These documents may be accessed through the NRC's Public 
Electronic Reading Room on the Internet at http://www.nrc.gov/NRC/ADAMS/index.html. If you do not have access to ADAMS or it there are 
problems in accessing the documents located in ADAMS, contact the NRC 
Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-
4737, or by email to [email protected].

FOR FURTHER INFORMATION CONTACT: Merri Horn, Office of Nuclear Material 
Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, 
DC 20555-0001, telephone (301) 415-8126, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

The Petition

    On June 9, 2000 (65 FR 36647), the NRC published a notice of 
receipt of a petition for rulemaking filed by the Nuclear Energy 
Institute (NEI) on April 19, 2000. The petitioner supplemented the 
petition in an August 23, 2000 letter. The petition requests that the 
NRC amend its regulations at 10 CFR Part 72 governing the issuance of 
Certificates of Compliance (CoCs) for cask designs for dry cask storage 
of spent nuclear fuel for use under a general license. The petition 
proposes to eliminate rulemaking as the method for issuing and amending 
CoCs. Thus, the primary aim of the petition is to remove Sec. 72.214, 
which lists approved cask designs. Under the petitioner's proposal, the 
NRC would continue to approve cask designs after a safety review but 
would issue and amend CoCs by order rather than by rulemaking.
    The petitioner proposes an alternative process for providing an 
opportunity for public input on CoC and CoC amendment approvals. With 
respect to applications for a CoC for a new cask design, the NRC would 
publish in the Federal Register a notice of receipt and availability of 
the application. The NRC would then prepare a draft CoC and a draft 
Safety Evaluation Report (SER) and would notice the availability of 
these documents in the Federal Register for a 60-day comment period. 
The NRC would evaluate the public comments and publish a response in 
the Federal Register, together with an order granting the CoC.
    Amendments to CoCs would be processed in the same manner as new 
CoCs except with respect to amendments where the applicant asserted 
that the amendment ``did not have the potential to have a significant 
impact on public health and safety.'' As part of the regulatory changes 
proposed in the petition, the NRC would amend Sec. 72.238 to include 
criteria for determining whether this ``no significant impact'' 
standard is met in any given case. If the NRC staff agreed with the 
assertion of no significant impact considerations, a notice of 
availability of the order granting the amendment and the associated SER 
would be published in the Federal Register. A post-effectiveness 
comment period on the amendment and the no significant impact 
considerations determination would be provided. If the NRC staff 
determined that the amendment posed a potential significant impact, the 
draft CoC and SER would be published in the Federal Register for a 60-
day comment period and the amendment would not become effective until 
the NRC had published a response to the comments and an order granting 
the amendment. The petitioner submitted examples of amendments likely 
to involve, and not involve, significant impact considerations that it 
proposed for inclusion in a regulatory guidance document. Thus, the 
main focus of the NEI petition is to abbreviate the CoC amendment 
approval process by allowing amendments which do not involve 
significant impact considerations to become effective upon completion 
of the NRC staff's safety review and prior to the receipt of any public 
comments.
    In NEI's view, NRC's existing process for issuing and amending CoCs 
takes too long to complete. NEI believes that the length of the process 
may create a substantial impediment to the increased future deployment 
of dry spent fuel storage by reactor licensees and/or to

[[Page 63965]]

the reactor decommissioning process. In particular, the petitioner 
believes that NRC is in need of a regulatory process capable of dealing 
with a potentially large number of amendments on a more timely basis. 
The petitioner states that, as of the date of the petition, the 
rulemaking process to amend cask CoCs has taken about 24 months to 
complete. Use of notice and comment rulemaking procedures, as the 
petitioner sees it, unnecessarily expends resources on what petitioner 
views as a ministerial task--maintaining a list of certified casks. 
Replacing the present process with a simplified, streamlined procedure 
will have the additional benefit, NEI believes, of making the process 
for approving spent fuel storage casks similar to the process for 
approving spent fuel transportation casks.
    The petitioner believes that its suggested alternative process is 
consistent with legal requirements. NEI takes the position that the 
notice and comment rulemaking used by the NRC to issue CoCs and CoC 
amendments is a discretionary choice of the Commission which may have 
been appropriate when the scope of safety issues associated with the 
issuance and amendment of CoCs was unknown, but is no longer necessary 
following more than a decade of experience with these rulemakings. Nor 
is a license proceeding of any kind needed for the approval of a CoC or 
CoC amendment, in the petitioner's view, because ``a CoC has been 
recognized legally as something less than a license.'' The petitioner 
bases this position on the court's statement in Kelley v. Selin, 42 
F.3d 1501, 1518 (6th Cir. 1995), cert. denied, 515 U.S. 1159 (1995), 
that ``certification of designs is not identical to the grant of a 
general license. Certification is a narrower procedure that approves 
designs in theory while the grant of a license is a broader form of 
permission.'' Thus, the petitioner believes that the alternative 
approval process suggested in the petition would not be subject to 
Section 189a of the Atomic Energy Act of 1954, as amended (AEA), and 
would not result in opportunities for adjudicatory hearings. Because 
there is no legal requirement, in the petitioner's view, to use either 
rulemakings or adjudicatory hearings for the approval of CoCs or CoC 
amendments, the petitioner asserts that the NRC is free to adopt 
whatever approval procedures it believes are adequate for public 
consideration of the type of safety issues likely to arise in these 
proceedings.
    The petitioner also believes that its proposal meets the NRC's four 
performance goals:
    (1) Maintain safety, protect the environment and the common defense 
and security; (2) increase public confidence; (3) make NRC activities 
and decisions more effective, efficient, and realistic; and (4) reduce 
unnecessary regulatory burden. With respect to the first goal, the 
petitioner points out that its proposal will have no effect on the 
substantive safety standards which the CoC applicant must meet nor on 
NRC's safety and environmental review of an application. Further, 
orders are as fully enforceable as rules, so there will be no 
diminution of NRC's enforcement authority. With respect to the public 
confidence goal, the petitioner believes that public confidence will be 
maintained because the public will still be able to participate in a 
meaningful way by providing comments on all new CoCs and all 
amendments. The only change will be that prior comment on amendments 
will be appropriately reserved for those CoC amendments that have the 
potential for a significant safety impact. The goal of making NRC 
regulatory decisions more efficient will be obtained by elimination of 
the delay and expenditure of resources involved in notice and comment 
rulemaking. Finally, the goal of burden reduction will be achieved 
because the burdensome aspects of rulemaking would be eliminated and 
amendment requests which do not present significant impacts would be 
subject to a suitably streamlined review and approval process.

Public Comments on the Petition

    The notice of receipt of the petition for rulemaking invited 
interested persons to submit comments. The comment period closed on 
August 23, 2000. NRC received 24 comment letters from industry, an 
individual, and a State government agency. All industry commenters 
supported the petition; the State supported the petition with 
reservations; and the individual opposed the petition. The NRC reviewed 
and considered all the comments in developing its decision on this 
petition.
    The commenters supporting the petition did so for the same reasons 
as those expressed by the petitioner, primarily because the present 
process involving notice and comment rulemaking takes too long and 
involves an unnecessary expenditure of resources. One commenter 
observed that elimination of rulemaking would avoid the need for 
general licensees to seek exemptions to enable them to use a particular 
cask design before completion of the rulemaking process. These 
commenters also supported NEI's proposed alternative process. One 
commenter cautioned that any change to the current rulemaking process 
should ensure that the finality and standing of current and future CoCs 
as adjudicated in Kelley v. Selin be preserved. The State commenter 
emphasized that any criteria used to determine the significance of an 
amendment should be in the rule and not in a separate guidance 
document. Several commenters encouraged the adoption of standard 
technical specifications and stated that this would reduce the number 
of amendment requests.
    One commenter opposed the petition. This commenter expressed 
concern that the effect of the alternative proposal would be to reduce 
public input and that many documents would no longer be publicly 
available. The commenter felt that any burden imposed by the present 
process was basically the fault of the industry; that if the vendors 
``did their homework'' and got the proposed cask design complete before 
submitting it to the NRC, amendments would not be necessary. The 
commenter stated that the cask designs were supposed to be generic to 
avoid the need for site-specific approvals, yet amendments are 
regularly needed to accommodate minor differences in cask content 
unique to particular plants. The commenter objected to NRC being able 
to decide, prior to any public notice, whether an amendment has any 
significant impact or not, noting that this deprives the agency of any 
public insight on health and safety issues before the amendment becomes 
immediately effective. This commenter also believes that the present 
rulemaking process is not a matter of agency discretion but rather is 
imposed by Section 133 of the Nuclear Waste Policy Act of 1982.

Reasons for Denial

    The Commission is denying the petition for rulemaking because (1) 
improvements in the approval process have already significantly 
decreased the length of time for approval of CoC amendments, making 
regulatory change unnecessary; (2) the petitioner's approval process 
may require the offer of an opportunity for a hearing, which could 
eliminate any efficiency obtained by generic consideration of cask 
design issues; and (3) the Commission's performance goals would be 
better served by retaining the present process than by adopting the 
process suggested by petitioner.
    1. The length of the rulemaking process for CoC amendments has been 
significantly shortened since submission of the petition, obviating any 
need for a regulatory change.

[[Page 63966]]

    The petitioner's primary reason for requesting an amendment of Part 
72 to delete the use of notice and comment rulemaking for initial and 
amended CoCs is the assertion that this process is too lengthy and may 
interfere with efficient, expeditious use of dry cask storage. The 
petitioner's proposed process for approving initial cask designs--which 
includes public notice of the availability of the draft SER and 
environmental assessment (EA) for a 60-day comment period, and 
effectiveness of the CoC only after NRC has responded to any comments--
is little different from the present process and would not produce any 
significant time savings. Under the petitioner's proposed process for 
amending CoCs, however, when the NRC agreed with an applicant's 
proposed finding of no significant impact, the amendment would become 
effective upon completion of the NRC staff's safety evaluation of the 
amendment. This would eliminate the time needed for the current CoC 
amendment rulemaking process.
    At the time the petitioner submitted its petition, the petitioner 
stated that the rulemaking process to amend cask CoCs took about 24 
months to complete. The Commission agrees that this is an excessive 
amount of time for very simple amendment rulemaking. However, the 
Commission now uses the direct final rule process for CoC amendments. 
In this process, the rule automatically becomes effective 75 days after 
its publication in the Federal Register unless a significant adverse 
comment is received within 30 days of publication. If such a comment is 
received, it is treated as a comment on a companion proposed rule 
published at the same time as the direct final rule. The NRC withdraws 
the direct final rule and subsequently issues a final rule responding 
to the comment. The NRC has now published 9 direct final rules for CoC 
amendments, only one of which has been withdrawn. NRC's current 
experience is that the rulemaking process for CoC amendments takes 
between 4 and 6 months rather than the 24 months which is the premise 
of the petition. We do not believe the current amount of time devoted 
to CoC amendments is inordinate given the advantages, discussed below, 
of using the present process.
    2. Although NRC agrees with petitioner that the use of rulemaking 
to approve cask designs is discretionary, we are not convinced that, in 
the absence of rulemaking, NRC should approve CoCs for casks without an 
opportunity for an adjudicatory hearing.
    The petitioner's suggested alternative process for the approval of 
cask designs and their amendment rests on two legal assumptions: (1) 
That the Commission has the discretion to eliminate rulemaking from the 
approval process; and (2) that if the Commission does eliminate 
rulemaking from this process it will not be necessary to provide an 
adjudicatory hearing in its place. As explained below, the Commission 
agrees with the first assumption but has reservations about the second.
    In 1990, the Commission amended Part 72 to provide, in new Subpart 
K, a general license to enable Part 50 reactor licensees to store spent 
fuel in an on-site independent spent fuel storage installation (ISFSI) 
without the need for a site-specific NRC approval, provided storage is 
in casks approved by the NRC and that certain other conditions are met. 
(55 FR 29181; July 18, 1990.) The same rulemaking added subpart L, in 
which the Commission established a cask approval program. Under this 
regulatory regime, a CoC is issued on a finding that the applicant has 
satisfied NRC requirements (10 CFR 72.236; 72.238), but before the 
certified cask design can be used under the general license, the cask 
design must be added to the list of approved designs in 10 CFR 72.214 
via a rulemaking.
    This regulatory scheme was intended to implement two statutory 
provisions of the Nuclear Waste Policy Act of 1982, Sections 218(a) and 
133. Section 218(a), in part, provides:

    The Secretary [of Energy] shall establish a demonstration 
program, in cooperation with the private sector, for the dry storage 
of spent nuclear fuel at civilian nuclear power reactor sites, with 
the objective of establishing one or more technologies that the 
Commission may, by rule, approve for use at the sites of civilian 
nuclear power reactors without, to the maximum extent practicable, 
the need for additional site-specific approvals by the Commission.

    Section 133, in part, provides:

    The Commission shall, by rule, establish procedures for the 
licensing of any technology approved by the Commission under section 
[218(a)] for use at the site of any civilian nuclear power reactor.

    In its 1990 rulemaking, the Commission stated that the storage 
technology it was approving was storage of spent fuel in dry casks (55 
FR 29182; July 18, 1990). Thus, the Commission saw its statutory duty 
under Section 218(a) as being fulfilled by its approval of a particular 
class of dry storage technology rather than by its approval of 
particular cask designs which were all of the same class. The 
Commission's statutory duty under Section 133 was fulfilled by the 
process it established to provide for the use of the approved 
technology under a general license.
    The NRC agrees with petitioner that the Commission's choice to use 
rulemaking to list approved cask designs was a discretionary choice not 
mandated by statute. What must be kept in mind, however, is the process 
that the regulatory scheme, adopted in 1990, replaced. Before cask 
designs were approved by generic rulemaking for use by a general 
licensee, the only process available to approve the ISFSI and the cask 
design was the site-specific licensing proceeding, which included the 
opportunity for a hearing. In these site-specific proceedings, NRC 
approval was granted only to one licensee to use a particular cask 
design. If other licensees wanted to use the same design, a separate 
approval was needed and a separate opportunity for a hearing was 
provided.\1\ Thus, the regulatory regime put in place in 1990 was 
designed to encourage and to expedite the use of dry cask storage 
technology because it meant that a cask design would only need to be 
approved once, and then it would be available to any general licensee 
who wished to use it and who could meet the conditions of the CoC 
without the need for any further site-specific approval. The new cask 
approval process was more efficient than the one it replaced, but its 
success depended upon the approval and manufacture of cask designs 
which could be used by a large number of reactor licensees. Instead, 
cask vendors have optimized cask designs for particular licensees, 
resulting in a need for amendment of the designs to make them more 
widely usable. Even with the additional time needed to amend cask 
designs, we believe the current process is more efficient and less 
time-consuming than the one it replaced.
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    \1\ Licensees may still apply for a site-specific license. If 
they choose to do so and reference a certified cask, issues 
associated with cask designs are not subject to litigation. See 
``Clarification and Addition of Flexibility Final Rule,'' (65 FR 
50606; August 21, 2000). Elimination of rulemaking from the CoC 
process would undermine the rationale for the Clarification 
rulemaking.
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    The second assumption on which the petition is based is the 
expectation that it would not be necessary to provide an opportunity 
for an adjudicatory hearing in the proposed alternative approval 
process. Section 189a(1)(A) of the AEA provides, in relevant part:

    In any proceeding under this Act, for the granting, suspending, 
revoking, or amending of any license or construction permit * * * 
and in any proceeding for the issuance or modification of rules and 
regulations dealing with the activities of licensees * * * the 
Commission shall grant a hearing upon the

[[Page 63967]]

request of any person whose interest may be affected by the 
proceeding, and shall admit such person as a party to such 
proceeding * * *.

In Kelley v. Selin, the United States Court of Appeals for the Sixth 
Circuit considered a claim that the NRC had violated Section 189a by 
denying the petitioners' request for an adjudicatory hearing to 
consider issues regarding the storage of nuclear waste in VSC-24 casks 
at the Palisades nuclear plant. These petitioners asserted that NRC's 
use of generic rulemaking to add the VSC-24 cask design to the list of 
approved designs was insufficient because it barred opportunity to 
dispute issues that were site-specific in relation to the use of the 
VSC-24 cask at Palisades. The court upheld NRC's choice to use 
rulemaking to resolve all issues concerning the VSC-24 cask design. The 
court noted that ``even where an agency's enabling statute expressly 
requires it to hold a hearing, the agency may rely on its rulemaking 
authority to determine issues that do not require case-by-case 
consideration.'' 42 F.3d at 1511 (quotations and citations omitted). 
This was the case here because, inter alia:

    The NRC's certificate of compliance for the VSC-24 casks, like 
the certificates of compliance for the other dry storage 
technologies listed in 10 C.F.R. 72.214, contains a lengthy list of 
conditions of system use for operation of the VSC-24. * * * This 
extensive list of conditions for use of the VSC-24 cask will 
virtually eliminate the need for site-specific consideration 
concerning the use of the VSC-24 cask, since the various licensees 
of civilian nuclear power generating facilities will be able to 
determine from the conditions of system use for the VSC-24 cask 
whether it is possible to use the cask at the site of their nuclear 
power generating facility.

42.Fed at 1513. Thus the court refused to use its power of judicial 
review to ``dictate to the agency the procedure which it must use in 
approving designs for containers for the dry storage of spent nuclear 
fuel.'' Id. See also Siegel v. Atomic Energy Commission, 400 F.2d 778, 
785-786 (D.C. Cir. 1968).
    At present, any obligation the NRC may have under Section 189a of 
the AEA to provide an opportunity for a hearing on a cask approval is 
satisfied by the rulemaking procedures it employs for these approvals. 
In the absence of these rulemaking procedures, the Commission's 
obligations under Section 189a would need to be revisited. As the 
petitioner points out, the court in Kelley v. Selin, in dicta, did 
characterize certification of designs as being a narrower form of 
permission than the grant of a license (42 F.3d at 1518), and this 
could conceivably support an argument that Section 189a does not apply 
to NRC's approval of CoCs or CoC amendments. However, whether Section 
189a requires a hearing opportunity on a cask certification in the 
absence of rulemaking was not at issue before the court and was not 
decided by the court. Thus, there has been no judicial determination of 
this issue. The Commission concludes that there is a significant risk 
that the procedures offered by the petitioner, which fall short of the 
ingredients of a normal rulemaking,\2\ would be seen as deficient.
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    \2\ For example, under Sec. 553(d) of the Administrative 
Procedures Act, notice of a final rule must be given at least 30 
days prior to its effective date. The petitioner contemplates that 
an order would be effective immediately.
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    Similarly, the court did not address, even in dicta, whether the 
Part 72 Subpart K general licensing scheme for ISFSIs that relies on 
the CoC process being accomplished by rulemaking, would be acceptable 
in the absence of either a rulemaking or a Sec. 189a hearing on the 
CoC. Nor did the court address the specific licensing schemes for 
ISFSIs that also relies on the CoC rulemaking proceedings to eliminate 
repetitious review of cask design issues that are resolved by CoC 
rulemakings. See 10 C.F.R. 72.46(e). Consequently, if the CoC process 
were streamlined as NEI suggests and conducted without a rulemaking or 
offering a Sec. 189a hearing, the Commission may be required to resolve 
cask design issues on a case-by-case basis in proceedings for specific 
ISFSI licenses or license amendments.
    3. NRC's performance goals would be better served by retention of 
the present process than by adoption of petitioner's suggested process.
    The Commission examined the petitioner's suggested alternative 
proposal in the context of NRC's four performance goals and in 
comparison with NRC's existing cask approval process. With respect to 
the first goal--maintaining safety and protecting the environment and 
the common defense and security--there is no difference between the two 
processes. The petitioner has not suggested any change in NRC's safety 
review of applications for CoCs or CoC amendments nor for NRC's 
inspection and enforcement activities.
    With respect to the second goal--increasing public confidence--we 
think that the present process is more likely to obtain this objective. 
The petitioner notes that its alternative process provides the public 
with essentially the same opportunities for public comment; the only 
difference being that for amendments for which a no significant impact 
considerations is demonstrated, the comment period will be after, 
rather than prior to, the effectiveness of the amendment. However, this 
difference, could generate new public objections to being denied an 
opportunity to comment before the NRC's decision and, in particular, 
before to NRC's no significant impacts decision.\3\ Both the public 
commenter who opposed the petition and the State commenter questioned 
petitioner's characterization of some potential amendments as being 
non-significant. Under the petitioner's suggested scheme, NRC would 
publish a notice in the Federal Register that would both announce its 
determination that the amendment had no potential for significant 
impacts and its immediately effective decision approving the amendment. 
Although, under the petitioner's scheme, the public would have a post-
effectiveness opportunity to comment on both the amendment and the no 
significant impact considerations determination, the public may not 
regard this as a meaningful opportunity to comment. Under the present 
process, publication of an amendment as a direct final rule gives the 
Commission an opportunity to test its judgment that the amendment is 
non-controversial and will not attract any significant adverse 
comments. If a significant adverse comment is received, the rule is 
withdrawn before it becomes effective and the Commission proceeds with 
normal notice and comment rulemaking. We think this process is more 
likely to achieve the goal of increasing public confidence in the 
Commission's decisionmaking process.
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    \3\ Petitioner's suggested process is similar to the process the 
Commission uses for considering Part 50 license amendments. In that 
process, the applicant submits a no significant hazards 
consideration analysis and the Commission publishes in the Federal 
Register a proposed determination that no significant hazards 
consideration is involved and allows a 30-day comment period on this 
determination. Normally, the amendment is not granted until the 
conclusion of this comment period. See 10 CFR 50.91(a).
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    With respect to the third goal of making NRC decisions more 
effective, efficient, and realistic, the only advantage of petitioner's 
alternative process over the present process would be a shortening of 
the time between the completion of the NRC staff's safety review of CoC 
amendments which meet the no significant impact considerations test and 
the effectiveness of the amendment. But, as described supra, this time 
interval--which petitioner asserted to be 24 months--has already been 
significantly shortened to 4 to 6 months through use of direct final 
rules and other measures taken to expedite the process, such as 
elimination of the

[[Page 63968]]

need for a rulemaking plan and issuance of the rule by the Executive 
Director for Operations. Moreover, the NRC staff continues to find ways 
to expedite the internal approval process as additional experience is 
gained. Under the alternative process suggested by the petitioner, the 
staff's technical review would take longer than it currently takes 
because the staff would be required to conduct some activities 
currently conducted under rulemaking and some new activities that they 
do not perform under the current process. An environmental assessment 
would need to be prepared for each new CoC and each CoC amendment (this 
is currently performed during rulemaking). As part of this process, the 
staff would need to consult with the states. If appropriate, a Finding 
of No Significant Impact (associated with the environmental review) 
would need to be prepared and published in the Federal Register. The 
NRC staff would need to prepare, and have published in the Federal 
Register, the no significant impact consideration finding (a new 
action). In addition, an order granting the CoC (new action) would need 
to be prepared and issued. These activities would increase the staff 
effort and review time necessary for approval of a CoC amendment. 
Moreover, whatever time savings petitioner's process might achieve 
would be offset if it should prove necessary to resolve cask design 
issues on a case-by-case basis in ISFSI proceedings. Unquestionably, a 
case-by-case consideration, rather than a generic review, would 
significantly increase the time and resources necessary for finally 
resolving cask design issues. Any uncertainty in the finality of the 
NRC's decision on cask design issues could postpone the loading of 
casks, because one outcome of any case-by-case consideration could be 
to overturn the NRC decision to approve a cask.
    Finally, with respect to the fourth goal of reducing unnecessary 
regulatory burden, the petitioner asserts that its alternative process 
achieves this goal because ``the new process removes the burdensome 
aspects of rulemaking which are unnecessary because they do not add to 
the quality of the regulatory decision'' and ``the new process 
identifies the CoC amendment requests which do not present significant 
potential impacts and subjects those amendment requests to a suitably 
streamlined review and approval process.'' The NRC notes that the 
petitioner's suggested process for considering initial CoCs and 
amendments which do involve significant impacts--a process that 
involves a 60-day comment period and no final NRC action until NRC has 
addressed the comments--is not significantly different from the present 
process and would not provide significant burden reduction for either 
the NRC staff or the industry. There could be a slight increase in 
burden for the staff because petitioner's process calls for publication 
in the Federal Register of a Notice of Receipt and Availability of the 
Application, a step not part of the current process. The petitioner's 
process for CoC amendments would require the applicant to submit a no 
significant impacts determination consideration along with the 
application. This would actually place an additional burden on the 
applicant and on the NRC staff assigned to reviewing the determination 
even though the extra burden might produce the benefit of an 
immediately effective amendment. Staff effort would also continue to be 
expended on preparation of an environmental assessment and the 
necessary Federal Register notices (currently part of the rulemaking 
process). The staff would also have the added burden of preparing an 
order to issue the CoC amendment. In short, there would be little, if 
any, burden reduction stemming from petitioner's alternative process. 
Moreover, if it should prove necessary to offer an opportunity for a 
hearing, a hearing request would also result in an increased 
expenditure of resources by both staff and the industry.
    In conclusion, for the reasons explained above, we believe that 
NRC's performance goals are better served by retention of the current 
process.
    For the reasons cited in this document, the NRC denies this 
petition.

    Dated at Rockville, Maryland, this 5th day of December, 2001.

    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 01-30611 Filed 12-10-01; 8:45 am]
BILLING CODE 7590-01-P