[Federal Register Volume 70, Number 8 (Wednesday, January 12, 2005)]
[Proposed Rules]
[Pages 2053-2057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-589]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 40

[Docket No. PRM-40-28]


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

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking (PRM-40-28) submitted by Mr. Donald A. Barbour, 
Philotechnics. The petitioner requested that the NRC amend its 
regulations governing the domestic licensing of source material to 
provide clarity regarding the effective control of depleted uranium 
aircraft counterweights held under the exemption in 10 CFR 40.13(c)(5). 
The petitioner believes that this amendment should address a number of 
issues concerning the exemption, storage, and disposal of these 
devices.

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, Public File Area Room O1F21, 11555 Rockville 
Pike, Rockville, MD. These documents also may be viewed and downloaded 
electronically via the rulemaking Web site at http://ruleforum.llnl.gov. Address questions about our rulemaking Web site to 
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/reading-rm/adams.html. If you do not have access to ADAMS or if 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 e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Gary C. Comfort, Jr., Office of 
Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, telephone (301) 415-8106, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

The Petition

    On January 21, 2000 (65 FR 3394), the NRC published a notice of 
receipt of a petition for rulemaking filed by Donald A. Barbour, 
Philotechnics. The petitioner requested that the NRC amend its 
regulations to provide additional rules for the effective control of 
depleted uranium aircraft

[[Page 2054]]

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

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 
April 5, 2000. The NRC received two comment letters from individuals 
(one of which was from the petitioner himself). Both comment letters 
supported the petition. The petitioner provided supplementary 
information in support of the petition including his interpretation of 
the regulatory background and more detailed descriptions of how 
counterweights are used in industry. Additionally, the petitioner's 
comments referenced data related to the potential mishandling of the 
counterweights. The other commenter provided an example of the 
potential costs associated with mishandling the counterweights and 
suggested that distribution requirements should be added to the 
regulation. By letter dated February 14, 2001, Mr. Barbour provided 
another supplement to his petition. In this supplement, the petitioner 
suggested additional rulemaking to (1) specify that only counterweights 
manufactured from depleted uranium, and not natural uranium, should be 
covered under the exemption; and (2) clarify the scope of activities 
allowed to repair or restore counterweight platings or coverings under 
10 CFR 40.13(c)(5)(iv).

Reasons for Denial

    The NRC is denying the petition because it has determined that 
current NRC regulations provide adequate clarity and effectively 
address the petitioner's concerns. The NRC believes that clarification 
of the regulations for aircraft counterweights, as originally requested 
by the petitioner, can be most efficiently accomplished through the 
issuance of guidance rather than through rulemaking.
    The NRC issued a regulatory information summary, RIS-01-013, ``10 
CFR Part 40 Exemptions For Uranium Contained in Aircraft 
Counterweights,'' dated July 20, 2001, in response to the petitioner's 
request for an immediate notification to advise those organizations 
that currently possess depleted uranium aircraft counterweights of 
their regulatory responsibilities. This RIS reminds persons holding 
depleted uranium counterweights that the counterweights may not be 
modified under the exemption in 10 CFR 40.13(c)(5). The RIS also 
provides four alternatives to transfer the counterweights from the 
possessor's inventory: (1) Return the counterweights to the 
manufacturer or other facility licensed to process source material; (2) 
transfer the counterweights to another organization that will also use 
devices as aircraft counterweights; (3) transfer the counterweights for 
disposal at a facility licensed for disposal of radioactive material; 
or (4) transfer the counterweights to an unlicensed disposal facility 
that accepts exempt radioactive material.
    The petitioner's primary concern in the original petition is that 
some persons holding the depleted counterweights may inappropriately 
accumulate and store the counterweights for lengthy periods of time. 
The petitioner is concerned that this activity will result in 
unnecessary exposures and that corrosion of the counterweights could 
occur resulting in additional pathways of exposure and unnecessary 
contamination. During resolution of the petition, the NRC evaluated (1) 
the regulatory history of the exemption, including the safety basis; 
(2) the current use of depleted uranium aircraft counterweights; and 
(3) the current language in the exemption.
    As part of the evaluation of the petition, the NRC reviewed the 
regulatory history of the exemption for uranium counterweights. In 
1960, the original exemption was implemented to only apply to the 
counterweight while installed in the aircraft and the counterweight 
impressed with the label reading ``Caution--Radioactive Material--
Uranium.'' This 1960 exemption specifically prohibited the chemical, 
physical, metallurgical or other treatment or processing of the 
counterweight and the installation or removal of the counterweight. In 
1961, the exemption was expanded to include ``stored or handled in 
connection with installation or removal of such counterweights from 
aircraft.'' The 1961 amendment also replaced the prohibition against 
modification of counterweights with the requirement that there be ``no 
removal or penetration of the plating'' on the counterweight. In 1969, 
the exemption was further amended, primarily to change the labeling 
requirement from ``Caution--Radioactive Material--Uranium'' to 
``Depleted Uranium.'' Also, as part of the 1969 amendment, the specific 
requirement that there be ``no removal or penetration of the plating'' 
on the counterweight was returned to the prohibition against the 
chemical, physical, or metallurgical treatment or processing of any 
such counterweights. Under the 1969 amendment, however, repair or 
restoration of the plating or other covering was allowed. Finally, a 
new requirement was added that each counterweight was to be ``durably 
and legibly labeled or marked'' with the identification of the 
manufacturer and the statement ``Unauthorized Alterations Prohibited.''
    As part of the evaluation of the regulatory history, the NRC also 
reviewed the health and safety basis used during the initial 
implementation of the existing regulation. The original implementation 
was based upon calculations that indicated that exposures from 
installation and storage would be less than 10 percent of the limits in 
10 CFR Part 20, with most of the exposure impacting the hands of the 
workers. This conclusion was based on a radiation dose rate at the 
surface of the counterweight of 1.3 millisievert per hour (mSv/hr) (130 
millirems per hour [mrem/hr]) of beta and gamma radiation, of which the 
gamma component contribute only 0.03 mSv/hr (2.7 mrem/hr). Film badge 
studies from wrist bands

[[Page 2055]]

of assembly line personnel verified that the exposures were low, with 
readings not exceeding 2 mSv (200 mrem) for a 2-month period. Based 
upon reviews of reported incidents in the Nuclear Material Events 
Database (NMED), the NRC has no reason to believe that individuals are 
being significantly impacted by the use of aircraft counterweights 
under the exemption. In NUREG-1717, ``Systematic Radiological 
Assessment of Exemptions for Source and Byproduct Material,'' June 
2001, a more recent analyses of the exemption was made. This document 
evaluated the use of counterweights under expected routine uses 
(including maintenance, flight operations, and storage) and accidents 
and misuse (including fires and loss of counterweights). The calculated 
range of exposures for routine operations ranged from a maximum of 0.9 
millisievert per year (mSv/yr) (90 millirem per year [mrem/yr]) for 
maintenance workers to 0.01 mSv/yr (1 mrem/yr) or less for flight crew 
and warehouse workers (resulting from storage of the counterweights). 
Potential accident scenarios were calculated to result in exposures of 
0.8 mSv/yr (80 mrem/yr) or less to individuals. Because these 
calculated exposures are within the limits of 10 CFR Part 20 and are 
expected to impact a minimal number of individuals, NRC does not 
believe that the use of uranium counterweights under the current 
exemption have, or will, result in a significant impact to public 
health and safety or the environment.
    NRC's review has also indicated that depleted uranium 
counterweights are no longer being introduced into new aircraft. 
Furthermore, existing depleted uranium counterweights are generally 
being replaced, when replacement is needed, with counterweights made 
from tungsten. As a result, the number of depleted uranium 
counterweights in aircraft is diminishing, thus further reducing the 
need to revise the regulation because the number of individuals 
potentially being impacted should also decrease as time passes.
    The current language for the exemption in 10 CFR 40.13(c)(5) 
includes ``uranium contained in counterweights installed in aircraft, 
rockets, projectiles, and missiles, or stored or handled in connection 
with installation or removal of such counterweights. * * *'' Based upon 
a review of the actual language and the regulatory history, it is clear 
that the exemption applies to storage only to the extent that the 
storage is in connection with the planned installation or recent 
removal from the aircraft. As such, the exemption does not include 
long-term storage unless it can be clearly shown that such storage is 
related to an intent to reuse the counterweight and that the 
counterweight continues to be maintained (i.e., the plating and 
labeling remain intact).
    Similarly, if an aircraft containing depleted uranium 
counterweights is permanently removed from service, the counterweights 
should be removed from the former aircraft within a reasonable time 
period. The definition of an aircraft according to FAA regulations 
found in 14 CFR 1.1 is ``a device that is used or intended to be used 
for flight in the air.'' Therefore, if there is no clear intention to 
continue to use the aircraft for flight, the counterweights would no 
longer be considered ``installed in the aircraft'' under the exemption 
in 10 CFR 40.13(c)(5). Instead, the counterweight would be considered 
``stored'' on the former aircraft. A counterweight stored on a former 
aircraft would be held with conditions similar to those conditions that 
apply to counterweights stored in connection with installation or 
removal (i.e., long-term storage is not permitted in the former 
aircraft under the exemption). Should an aircraft be held for possible 
future use, but not operated for a lengthy period of time, the holder 
should maintain the aircraft per its FAA maintenance plan, including a 
periodic inspection of the counterweights to ensure the counterweights 
remain in proper condition (i.e., the plating and labeling remain 
intact).
    In cases where the counterweights are no longer planned to be used 
or specifically licensed, the counterweights may still be covered under 
the exemption during a reasonable period while arrangements are made to 
properly transfer the counterweights, as long as the counterweights 
continue to be maintained in proper condition (i.e., the counterweights 
plating and labeling remain intact). The period of storage allows 
holders of the counterweights to: (1) Determine the future use of the 
counterweights; (2) decide on appropriate transfer or disposal 
alternatives if they are no longer to be used; and (3) accumulate 
several counterweights, within a reasonable time frame, in order to 
permit a more economical one-time disposal. The exemption also applies 
to persons temporarily holding the material during transit or if the 
material is mistakenly sent to a recycle or scrap yard, if the 
counterweight is properly maintained and transferred within a 
reasonable period of time using an option listed in RIS-01-013.
    The NRC recognizes that some counterweights have been 
inappropriately sent to scrap yards or recyclers in the past. As the 
petitioner points out, a review of data in NMED indicates that alarms 
have been set off at scrap yards. The current exemption does not 
expressly prohibit transfers to any persons, including scrap yards or 
recyclers. However, the physical, metallurgical, or chemical 
modification of the counterweight is prohibited; therefore, 
counterweights should not be sent to locations where, in all 
likelihood, they will be altered or modified. Further, the detection 
and recovery of counterweights inappropriately sent to scrap yards or 
recyclers can lead to additional costs for the transferor or recipient. 
Although the NRC could amend the existing exemption to prohibit 
transfers to recyclers or scrap yards, the NRC does not believe that 
such an amendment would significantly reduce the number of these 
inappropriate transfers. The current regulation requires that 
counterweights held under this exemption must be labeled ``Unauthorized 
Alterations Prohibited.'' The NRC believes that persons who have 
inappropriately transferred counterweights to a recycle or scrap yard, 
despite the existing labeling on the counterweight, may not be aware of 
the prohibitions listed in the exemption itself. If a regulation 
requiring reporting of transfers were implemented, the transfer report 
might make it easier to identify the transferor so that appropriate 
action to retrieve the counterweight could be taken. However, the NRC 
believes that if someone were aware of these reporting requirements, 
they would likely be cognizant that the transfer to a recycler or a 
scrap yard is not allowed to begin with.
    During resolution of the petition, the NRC considered additional 
options for rulemaking that might clarify the intent of this regulation 
and increase control over the use of depleted uranium aircraft 
counterweights. The NRC considered two types of rulemaking actions: (1) 
Specific licensing and (2) development of a general license 
specifically applicable to aircraft counterweights. In both cases, the 
NRC's analysis concluded that any benefits of the action were small 
compared to the costs and potential impacts associated with the action.
    In the case of specific licensing, the costs to the industry and 
government would involve development and review of applications, and 
inspection of the new licensees. Because the NRC has no evidence to 
indicate that public health and safety is significantly impacted under 
the current exemption, the NRC believes the costs to implement specific

[[Page 2056]]

licensing would outweigh the benefits of licensing. Additionally, 
should counterweights be required to be held under a specific license, 
disposal alternatives would be reduced to disposal in a low-level waste 
site which would further increase the regulatory burden and costs 
related to this action.
    Although implementation of a general license would presumably add 
additional requirements to those found in the existing exemption, the 
general license would be less burdensome to both holders of the 
counterweights and the government than a specific license. However, the 
NRC believes that the costs related to regulatory development and 
implementation are still believed to outweigh any benefits that might 
be achieved by the creation of a general license. As with specific 
licensing, the options for disposal could be limited to low-level waste 
facilities, thus increasing the regulatory burden and costs for 
disposal. Although the NRC could develop a general license which allows 
some of the same disposal/transfer options that are currently 
available, State regulations and/or the licenses of disposal facilities 
may preempt the utilization of those options.
    The NRC determined that modifying the exemption in 10 CFR 
40.13(c)(5) or increasing the regulatory structure (through a new 
general license or specifically licensing the holders), pursuant to the 
petitioner's request would add little, if any, additional benefits to 
the protection of public health and safety. Therefore, the NRC is 
denying the petitioner's request that the exemption in 10 CFR 
40.13(c)(5) be amended to clarify the requirements for storage. 
However, the NRC believes that most of the petitioner's apparent goals 
can be better achieved by publication of guidance in the form of a new 
RIS. The purpose of the guidance would be to clarify the intent of the 
existing regulations related to storage of depleted uranium aircraft 
counterweights. The NRC would issue the guidance to known holders of 
aircraft counterweights and other agencies and organizations that may 
have occasion to be interested in counterweights.
    In a supplement to this petition (February 2001), the petitioner 
suggested that 10 CFR 40.13(c)(5) should be amended to clarify that 
only counterweights manufactured from depleted uranium, and not natural 
uranium, are covered under the exemption. Currently 10 CFR 40.13(c)(5) 
begins ``Uranium contained in.* * *.'' The petitioner identifies an 
apparent inconsistency with the labeling requirements in 10 CFR 
40.13(c)(5)(ii) that require the counterweight to be impressed with 
``Depleted Uranium.'' As a result, the petitioner states that the 
exemption should be more specific to begin the exemption with 
``Depleted uranium contained in.* * *.''
    A historical review of this issue indicates that the exemption was 
originally meant to apply to counterweights manufactured from both 
natural uranium and depleted uranium. On July 18, 1969 (34 FR 12107), a 
proposed rule was published in the Federal Register proposing to modify 
the regulation to require that the counterweights be impressed with the 
word ``Uranium'' rather than ``Caution--Radioactive Material--
Uranium,'' as was required before the 1969 amendment. However, when the 
final rule was published on September 5, 1969 (34 FR 14067), the 
regulation required the counterweight to be impressed with the words 
``Depleted Uranium,'' as exists in the current regulation. No 
explanation for this change was mentioned in the Federal Register 
notice or Commission papers related to this action. The presumption is 
that this change was made because most, if not all, aircraft 
counterweights were and have been made of depleted uranium. The cost of 
depleted uranium is significantly less than the cost of natural 
uranium. While the NRC believes that the modification in 1969 
effectively limits the exemption to include only depleted uranium 
counterweights because of the new labeling requirement, the NRC also 
believes the generic use of the word uranium at the start of the 
exemption is still necessary because footnote 2 to 10 CFR 40.13(c)(5) 
grandfathers counterweights properly labeled and made before June 30, 
1969. These counterweights may have included a small number of natural 
uranium counterweights. The NRC is denying this issue in the petition 
to allow for the possibility that there are some counterweights still 
in existence that were made from natural uranium prior to 1969.
    The petitioner also requested that the NRC modify its regulations 
in 10 CFR 40.13(c)(5)(iv) to better delineate the scope of activities 
allowed as part of the repair or restoration of the plating or covering 
of an aircraft counterweight. The petitioner is concerned that some 
activities could impact the depleted uranium within the counterweight. 
The paragraph in question states ``The exemption contained in this 
paragraph shall not be deemed to authorize the chemical, physical, or 
metallurgical treatment or processing of any such counterweights other 
than repair or restoration of any plating or any other covering.'' The 
intent of this paragraph is to delineate the scope of activities 
allowed under the exemption. Although the counterweight may be modified 
to restore or repair the plating or covering around the counterweight, 
the depleted uranium within the counterweight cannot be altered at any 
time under the exemption, even as part of restoration or repair of the 
plating or other covering. As a result, actions such as chemical baths, 
sanding of oxidized depleted uranium, or electroplating, each of which 
would likely result in modification of the depleted uranium 
counterweight itself, are not permitted under the exemption. However, 
repainting or placing a new covering over the counterweight (to the 
extent it does not interact with the depleted uranium in the 
counterweight) is permitted under the exemption as the long as the 
impressings and other required markings remain legible as required 
under 10 CFR 40.13(c)(5)(ii) and (iii). The NRC is denying this issue 
in the petition because it has been determined that the existing 
regulation conforms with the petitioner's request and does not require 
additional clarification through rulemaking. However, the NRC believes 
that it may be worthwhile to provide additional guidance related to 
this aspect of the exemption. Therefore, the NRC plans to address this 
issue in the proposed RIS by clarifying the intent of the existing 
regulations related to the restoration and repair of depleted uranium 
counterweights.
    In conclusion, no new information has been provided by the 
petitioner to support the petitioner's request that additional 
rulemaking is necessary at this time. Existing NRC regulations provide 
the basis for reasonable assurance that the common defense and security 
and public health and safety are adequately protected. Additional 
rulemaking would impose unnecessary regulatory burden and does not 
appear to be warranted. However, NRC does believe that some additional 
clarification, as originally requested by the petitioner, can be 
provided through guidance. Therefore, the NRC plans to issue a 
regulatory information summary which will provide clarification of the 
existing exemption as related to (1) long-term storage of the 
counterweights, (2) restoration and repair of the counterweights, and 
(3) removal of the counterweights from aircraft, rockets, projectiles, 
and missiles.
    For the reasons cited in this document, the NRC denies this 
petition.

    Dated at Rockville, Maryland, this 6th day of January, 2005.


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    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 05-589 Filed 1-11-05; 8:45 am]
BILLING CODE 7590-01-P