[Federal Register Volume 75, Number 143 (Tuesday, July 27, 2010)]
[Proposed Rules]
[Pages 43865-43876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18344]


 ========================================================================
 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. 75, No. 143 / Tuesday, July 27, 2010 / 
Proposed Rules  

[[Page 43865]]



NUCLEAR REGULATORY COMMISSION

10 CFR Parts 30, 36, 39, 40, 51, 70, and 150

[NRC-2010-0075]
RIN 3150-AI79


Licenses, Certifications, and Approvals for Material Licensees

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend 
its regulations by revising the provisions applicable to the licensing 
and approval processes for byproduct, source and special nuclear 
material licenses, and irradiators. The proposed changes would clarify 
the definitions of ``construction'' and ``commencement of 
construction'' with respect to materials licensing actions instituted 
under the NRC's regulations. In addition, this action also contains a 
correction to a typographical error. The NRC is undertaking this 
rulemaking action to conform its regulations to the scope of its 
regulatory authority under the Atomic Energy Act of 1954, as amended 
(AEA), to improve the effectiveness and efficiency of the licensing and 
approval processes for future applications, as well as resolve certain 
inconsistencies that currently exist within the NRC's regulations with 
respect to the use and definition of the terms ``construction'' or 
``commencement of construction'' for certain materials licensees.

DATES: Submit comments by September 27, 2010. Comments received after 
this date will be considered if it is practical to do so, but the NRC 
is able to assure consideration only for comments received on or before 
this date.

ADDRESSES: Please include Docket ID NRC-2010-0075 in the subject line 
of your comments. For instructions on submitting comments see Section I 
of this document, for accessing documents related to this action, see 
Section V in the SUPPLEMENTARY INFORMATION section of this document. 
You may submit comments by any one of the following methods.
    Federal Rulemaking Web Site: Go to http://www.regulations.gov and 
search for documents filed under Docket ID NRC-2010-0075. Address 
questions about NRC dockets to Carol Gallagher, telephone 301-492-3668; 
e-mail [email protected].
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
    E-mail comments to: [email protected]. If you do not 
receive a reply e-mail confirming that we have received your comments, 
contact us directly at 301-415-1966.
    Hand Deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852 between 7:30 a.m. and 4:15 p.m. during Federal workdays 
(Telephone 301-415-1966).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
301-415-1101.

FOR FURTHER INFORMATION CONTACT: Ms. Tracey Stokes, Office of the 
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001; telephone: 301-415-1064; e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Submitting Comments
II. Background
III. Discussion
IV. Discussion of Proposed Amendments by Section
V. Availability of Documents
VI. Agreement State Compatibility
VII. Plain Language
VIII. Voluntary Consensus Standards
IX. Environmental Impact--Categorical Exclusion
X. Paperwork Reduction Act Statement
XI. Regulatory Analysis
XII. Regulatory Flexibility Certification
XIII. Backfit Analysis

I. Submitting Comments

    Comments submitted in writing or in electronic form will be posted 
on the NRC Web site and on the Federal rulemaking Web site http://www.regulations.gov. Because your comments will not be edited to remove 
any identifying or contact information, the NRC cautions you against 
including any information in your submission that you do not want to be 
publicly disclosed. The NRC requests that any party soliciting or 
aggregating comments received from other persons for submission to the 
NRC inform those persons that the NRC will not edit their comments to 
remove any identifying or contact information, and therefore, they 
should not include any information in their comments that they do not 
want publicly disclosed.

II. Background

    On December 11, 2008, following a briefing on uranium recovery 
activities by the NRC staff and representatives from the U.S. 
Environmental Protection Agency, the U.S. Department of the Interior, 
Bureau of Land Management, the Navajo Nation, Acoma Pueblo, Wyoming 
Department of Environmental Quality, New Mexico Environment Department, 
Navajo Allottees, National Mining Association, International Forum on 
Sustainable Options for Uranium Production, and the Natural Resources 
Defense Council, the Commission issued a January 8, 2009, Staff 
Requirements Memorandum (ADAMS Accession No. ML090080206) directing 
staff to provide the Commission with a proposed rulemaking to revise 10 
CFR 40.32, ``General requirements for issuance of specific licenses,'' 
to determine whether limited work authorization (LWA) provisions are 
appropriate for uranium in-situ recovery facilities.
    During the briefing, a concern was noted regarding the inability of 
part 40 licensees and applicants to engage in site preparation 
activities (e.g., clearing land, site grading and erosion control, and 
construction of main access roadways, non-security related guardhouses, 
utilities, parking lots, or administrative buildings not used to 
process, handle or store classified information) given the broad 
prohibition against construction in Sec.  40.32(e). Currently, 10 CFR 
40.32(e) prohibits an applicant for a license for a uranium enrichment 
facility or for a license to possess and use source and byproduct 
materials for uranium milling, production of uranium hexafluoride, or 
for any other activity requiring NRC authorization from commencing 
construction of the plant or facility in which the activity will be 
conducted before the NRC's decision to issue the proposed license. For 
the purposes of this section, the term ``commencement of construction'' 
is defined generally as

[[Page 43866]]

meaning any clearing of land, excavation, or other substantial action 
that would adversely affect the environment of a site. Section 40.32(e) 
clarifies that ``commencement of construction'' is not intended to mean 
site exploration, construction of roads necessary for site exploration, 
borings to determine foundation conditions, or other pre-construction 
monitoring or testing to establish background information related to 
the suitability of the site or the protection of environmental values. 
Similar prohibitions on construction exist with respect to 10 CFR parts 
30, 36, and 70.
    Currently, a part 40 licensee or applicant may only engage in site 
preparation activities beyond site exploration if the applicant or 
licensee requests, and is granted, either a specific license to conduct 
such activities under part 40, or an exemption from Sec.  40.32(e). 
Although the staff indicated that exemptions from 10 CFR 40.32(e) have 
been utilized in the past to allow site preparation activities prior to 
licensing, and that appropriate exemptions continue to be an available 
alternative for applicants, the Commission noted during the December 
11, 2008, briefing that this manner of regulation was inappropriate for 
long-term resolution of the issue. Following the briefing, the 
Commission received a letter from the Nuclear Energy Institute (NEI) 
dated March 3, 2009, in which NEI expressed its support of the 
Commission's memorandum directing staff to initiate a rulemaking 
regarding 10 CFR 40.32 (ADAMS Accession No. ML090710372).

III. Discussion

    On October 9, 2007 (72 FR 57416; corrected at 73 FR 22786 (April 
28, 2008)), the NRC issued a final rule amending the regulation 
defining ``construction'' for utilization and production facilities and 
amending the requirements applicable to limited work authorizations 
(LWAs) for nuclear power plants (LWA rulemaking). (ADAMS Accession Nos. 
ML071210205 and ML081050554). As part of that rulemaking, the 
Commission revised the scope of activities that are considered 
construction for which a construction permit, combined license, or LWA 
is necessary; specified the scope of construction activities that may 
be performed under an LWA; and changed the review and approval process 
for LWA requests. The NRC's revised definition for ``construction'' 
expressly excludes site exploration; preparation of the site for 
construction of a facility (e.g., clearing of the site, grading, 
installation of drainage, erosion and other environmental mitigation 
measures, and construction of temporary roads and borrow areas); 
erection of fences and other access control measures; excavations; 
erection of support buildings for use in connection with the 
construction of the facility; building of service facilities; 
procurement or fabrication of components or portions of the proposed 
facility occurring at other than the final, in-place location at the 
facility; as well as some activities that are nuclear power reactor 
specific. In undertaking the LWA rulemaking (October 9, 2007; 72 FR 
57416), the NRC recognized that the AEA does not authorize the NRC to 
require an applicant to obtain permission before undertaking site 
preparation activities, of the type listed above, that do not implicate 
radiological health and safety or common defense and security 
considerations.
    The Atomic Energy Commission (AEC) (the NRC's predecessor agency) 
prohibited pre-licensing construction of nuclear power plants in the 
agency's initial 1960 definition of construction for production and 
utilization facilities (25 FR 8712; September 9, 1960). On March 21, 
1972 (37 FR 5745), the AEC expanded its definition of construction and 
developed the LWA process, whereby applicants for nuclear power plant 
licenses were permitted to engage in site preparation activities, 
including excavation and other on-site activities before a construction 
permit was issued. The AEC's 1972 rulemaking was a direct result of the 
enactment of the National Environmental Policy Act of 1969 (NEPA), and 
the Commission's implementation of that statute.\1\ The LWA process 
remained largely unchanged until the 2007 LWA rulemaking.
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    \1\ See Carolina Power and Light Co. (Shearon Harris Nuclear 
Power Plant, Units 1, 2, 3 & 4), CLI-74-22, 7 AEC 939, 943 (1974). 
See also Kansas Gas and Electric Co. (Wolf Creek Nuclear Generating 
Station, Unit 1), CLI-77-1, 5 NRC 1, 5 (1977).
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    The NRC's regulations for materials licenses do not provide for 
pre-licensing construction activities of the type allowed parts 50 and 
52 applicants. Prior to 1971, the AEC prohibited the construction of 
materials facilities prior to the agency's decision to issue a license. 
Initially the AEC required that any application for a Part 70 plutonium 
processing and fuel fabrication plant be filed at least six months 
prior to the beginning of plant construction. (36 FR 17573; September 
2, 1971). The intent behind this requirement was to allow the AEC an 
opportunity to conduct a pre-construction review to determine whether 
the applicant's design basis for the principal structures, systems and 
components, and its quality assurance program provided reasonable 
assurance of protection against natural phenomena and the consequences 
of potential accidents. (36 FR 9786; May 28, 1971). This regulation was 
only applicable to plutonium processing and fuel fabrication 
applicants.
    Thereafter, on December 1, 1971 (36 FR 22848), the AEC published 
notice of its intent to redefine the term ``commencement of 
construction'' as that term was then applied to part 50 production and 
utilization facilities subject to then Appendix D of part 50. By the 
same notice, the AEC indicated that it was also considering the 
adoption of similar amendments to parts 30, 40, and 70 that would 
provide for NRC environmental review prior to commencement of 
construction of materials licensee plants and facilities. The proposed 
amendments introduced to parts 30, 40, and 70 a new definition of 
``commencement of construction;'' required that applications for 
materials licenses under these parts be filed at least 9 months prior 
to commencement of construction of plants or facilities in which the 
licensed activates will be conducted; and added as a condition of 
issuance of the requested license that the AEC staff had made a 
favorable environmental review determination prior to commencement of 
construction of such plants or facilities. The AEC subsequently revised 
these regulations (38 FR 5745; March 21, 1972) and provided a mechanism 
for AEC exemptions to allow the continuation of site preparation and 
construction activities begun prior to the effective date of the 
proposed amendments, provided that such activities were conducted so as 
to minimize their environmental impact, and to conform the time for 
filing applications for plutonium process and fuel fabrication plants 
to 9 months prior to commencement of construction.
    In response to the requirements imposed by the Uranium Mill 
Tailings Radiation Control Act of 1978 (UMTRCA), the NRC again amended 
part 40 to require that a final environmental assessment be completed 
by the NRC prior to commencement of construction of a mill that 
produces byproduct material (45 FR 65521; October 3, 1980). In reaching 
this decision, the NRC noted that,

    [M]illing results in the production of large quantities of 
byproduct material as tailings per year. When construction of a mill 
commences, nearly irrevocable commitments are made regarding 
tailings disposal. Given that each mill tailings pile constitutes a 
low-level waste burial site containing long-lived radioactive 
materials, the Commission believes that prudence requires that 
specific

[[Page 43867]]

methods of tailings disposal, mill decontamination, site 
reclamation, surety arrangements, and arrangements to allow for 
transfer of site and tailings ownership be worked out and approved 
before a license is granted.

Id. at 65529. The NRC concluded that commencement of construction of 
other types of plants and facilities in which byproduct, source, and 
special nuclear materials are used and possessed would also result in 
similar commitments of resources, and accordingly, the NRC amended 
parts 30 and 70 to conform to the amendments effectuated in part 40.
    The October 9, 2007 (72 FR 57416, 57427) LWA rulemaking examined 
the nature and extent of the NRC's responsibilities under NEPA, and 
based upon that evaluation the NRC revised the definition of 
construction in 10 CFR 50.10 to expressly exclude certain activities. 
The NRC determined that its NEPA obligations and responsibilities arise 
only when the Commission undertakes a Federal action within the 
agency's statutory responsibility. Specifically, the NRC noted that 
NEPA, a procedural statute, does not expand the NRC's jurisdiction 
beyond the scope of the AEA. Id. The NRC further determined that,

    [W]hile NEPA may require the NRC to consider the environmental 
effects caused by the exercise of its permitting/licensing 
authority, the statute cannot be the source of the expansion of the 
NRC's authority to require * * * other forms of permission for 
activities that are not reasonably related to radiological health 
and safety or protection of the common defense and security. Since 
NEPA cannot expand the Commission's * * * authority under the AEA, 
the elimination of the blanket inclusion of site preparation 
activities in the [then existing] definition of construction does 
not violate NEPA.

71 FR 61330, 61332; (October 17, 2006); see also 72 FR 57416, 57427 
(October 9, 2007). In light of the foregoing, the NRC amended its 
definition of construction in Sec.  50.10 and its NEPA regulations in 
10 CFR part 51 to include a definition of construction that was 
consistent with the Sec.  50.10 definition and the NRC's authority 
under the AEA. Given the NRC's determination that site preparation 
activities did not constitute construction, the NRC provided that the 
effects of these activities would only be considered in order to 
establish a baseline against which the incremental effect of the 
subsequent major Federal action (i.e., the Commission's issuance of a 
license) would be measured.
    Since the completion of the LWA rulemaking, which added to part 51 
a definition of ``construction,'' the NRC's definition of what 
constitutes construction for material licenses in Parts 30, 36, 40, 70, 
and 150 has been inconsistent with the definition the NRC established 
in parts 50, 51, and 52. Activities that do not constitute construction 
under 10 CFR parts 50, 51, and 52, are currently classified as 
construction under 10 CFR parts 30, 36, 40, 70, and 150. Accordingly, 
the site preparation activity from which a materials license applicant 
or licensee is currently prohibited from engaging, are the same 
activities that the NRC determined in the LWA rulemaking were not 
within the scope of the agency's licensing review. As was indicated 
during the Commission's December 2008 briefing, materials applicants 
and licensees, as well as the NRC's staff, have struggled with the 
inconsistency that currently exists within the NRC's regulations.
    Staff and materials license applicants have been reconciling the 
contrary regulatory definitions through the exemption process. But 
given the agency's position on the scope of its AEA authority, the NRC 
believes that the regulatory provisions themselves should be 
reconciled, furthering regulatory efficiency and economy. Accordingly, 
the NRC proposes to implement conforming amendments in 10 CFR parts 30, 
36, 40, and 70 that would establish a consistent definition of 
``construction'' or ``commencement of construction.'' Within the 
proposed definition of commencement of construction for 10 CFR parts 
30, 36, 40, and 70, the NRC has included any activity that has a 
reasonable nexus to the radiological health and safety or the common 
defense and security with the purpose of ensuring that the types of 
site preparation activities instituted pursuant to the revised 
regulation do not consist of activities that are related to 
radiological safety, radiological controls, physical protection or 
information security. For example, in Sec.  51.4, the exclusion of 
fences and other access control measures from the definition of 
construction does not pertain to those fences and controls intended to 
secure and protect radiological materials, but rather to those fences 
and controls intended to protect the integrity of the site during the 
preparation activities. The NRC requests comments on its proposal to 
align the terms ``construction'' and ``commencement of construction'' 
within major licensing parts of its regulations.
    The NRC is aware that some interested entities have suggested that 
an LWA process, similar to that promulgated for 10 CFR parts 50 and 52 
licensees, should be developed for materials applicants and licensees. 
However, upon review, it is not clear at this time that an LWA process 
applicable to materials licenses is appropriate, or even necessary. A 
review of recent requests for exemption from the construction 
prohibition shows that most requests would have been rendered 
unnecessary by a materials construction definition that conforms to 
Part 51. It is unclear whether the licensing process for materials 
licenses would be enhanced by an LWA process that allows some safety or 
security-related construction to occur in advance of the license, or 
whether an LWA process might be more appropriate for larger materials 
facilities, such as uranium in situ recovery facilities or uranium 
enrichment facilities.
    Furthermore, given the NRC's explicit statement in 1980 of the 
breadth of issues that should be resolved prior to constructing parts 
30, 40, and 70 facilities,\2\ there is some question as to whether an 
LWA process is appropriate in the context of materials licensing, which 
would permit safety or security-related construction to occur prior to 
a conclusion that a license should be issued. In the UMTRCA-related 
rulemaking, the NRC found that construction activities at plants and 
facilities in which source or byproduct materials are possessed and 
used for the production of uranium hexafluoride and commercial waste 
disposal by land burial should not precede the environmental review as 
they ``are likely to result in [irrevocable and/or irretrievable] 
environmental impacts, the propriety of which cannot be ascertained 
until [the Part 51] environmental appraisals are completed and 
documented.'' (45 FR 65521, 65529; October 3, 1980). Accordingly, the 
NRC is not including in the proposed rule language an LWA process for 
10 CFR parts 30, 36, 40, or 70 licensees and applicants, and to the 
extent that an applicant for a 10 CFR parts 30, 36, 40, or 70 license 
wishes to perform site activities that are related to radiological 
health and safety or preservation of the common defense and security, 
the applicant would be prohibited from doing so under the proposed rule 
until the NRC has completed its environmental review and concluded that 
a license should be issued. Nevertheless, the NRC invites comments on 
the utility of an LWA process for 10 CFR parts 30, 36, 40, and 70, 
including whether such a process would be appropriate for all, or 
merely some, materials licenses.
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    \2\ See UMTRCA Rulemaking, 45 FR 65521, 65529 (October 3, 1980).
---------------------------------------------------------------------------

    The revisions proposed in this rulemaking would have the effect of

[[Page 43868]]

providing a definition of ``construction'' that is consistent 
throughout the NRC's regulations and within the scope of the NRC's 
environmental review conducted under the part 51 definition of 
``construction.'' Exemptions would no longer be necessary for certain 
site preparation activities currently undertaken by materials license 
applicants. Currently, the NRC's regulations in part 51 require that an 
applicant for a materials license, license amendment, or license 
renewal submit an environmental report with its application. The NRC's 
regulations further dictate the nature and scope of the NRC's 
environmental assessment. Those provisions are not being revised by 
this rulemaking. The instructive provisions in part 51 would continue 
to remain applicable.
    Currently, to the extent that a potential applicant, an applicant, 
or a licensee engages in activities that the NRC has indicated do not 
constitute construction subject to NRC regulation, the entity does so 
at its own risk, as such activity does not presume that the NRC will 
conclude that a license should be issued upon completion of its review. 
This is consistent with the underlying concept that these site 
preparation activities do not result from Federal approval of 
activities within the responsibility of the NRC under the AEA and, 
therefore, they will have relevance to the NRC action only to the 
extent that the impacts of those activities influence an analysis of 
any subsequent licensing action's cumulative environmental impacts.
    The NRC is also proposing a typographical correction to the 
regulations in 10 CFR 39.13(a). Part 39 was issued March 17, 1987 (52 
FR 8225), by the NRC to specify radiation safety requirements for the 
use of licensed material in well-logging operations. Section 39.13(a) 
directs applicants for a specific license for well logging to satisfy 
the general requirements in Sec.  30.33 for byproduct material, Sec.  
40.32 for source material, and Sec.  70.33 for special nuclear 
material. However, Sec.  70.33 pertains to renewal of licenses and not 
to general requirements for special nuclear material licensing. The 
general requirements regulation for special nuclear material licenses 
is in Sec.  70.23. The reference to Sec.  70.33 in the current version 
of Sec.  39.13(a) is the result of a typographical error, and the NRC 
is proposing to correct Sec.  39.13(a) so that the reference for the 
general requirements for special nuclear material licenses will refer 
to Sec.  70.23.

IV. Discussion of Proposed Amendments by Section

Section 30.4 Definitions.

    In 2007, the NRC added a definition for the term ``construction'' 
in 10 CFR part 51, ``Environmental protection regulations for domestic 
licensing and related regulatory functions,'' to exclude certain site 
preparation activities from the definition. The NRC's decision to 
exclude these site preparation activities from the definition of 
construction was based upon the NRC's determination that these 
activities lacked a reasonable nexus to radiological health and safety 
or common defense and security considerations. This determination is 
equally applicable to the licensing actions in part 30, which are 
subject to the NEPA implementing regulations in part 51, including the 
part 51 definition for ``construction.'' Accordingly, this section 
would be revised to add a definition for ``construction'' and conform 
the definition for ``commencement of construction'' to be consistent 
with the concepts used to define ``construction'' in 10 CFR 51.4, 
recognizing those activities the Commission has already determined do 
not affect, as a general matter, radiological health and safety or 
common defense and security.

Section 30.33 General requirements for issuance of specific licenses.

    In this section, paragraph (a)(5) would be revised to delete the 
definition of ``commencement of construction'' contained in the last 
two sentences of the paragraph.

Section 36.2 Definitions.

    In 2007, the NRC revised the definition for the term ``commencement 
of construction'' in 10 CFR part 51, ``Environmental protection 
regulations for domestic licensing and related regulatory functions,'' 
to exclude certain site preparation activities from the definition. The 
NRC's decision to exclude these activities from the definition of 
construction was based upon the NRC's determination that these 
activities lacked a reasonable nexus to radiological health and safety 
or common defense and security considerations. This section would be 
revised to add definitions for ``construction'' and ``commencement of 
construction'' to be consistent with the definition adopted by the NRC 
in 10 CFR 51.4.

Section 36.13 Specific licenses for irradiators.

    In this section, paragraph (a) would be revised to exclude Sec.  
30.33(a)(5) as a requirement for an applicant to receive a specific 
license under this part. Currently Sec.  36.13(a) provides that an 
applicant for a part 36 license shall satisfy both the general 
requirements in Sec.  30.33 and the requirements in part 36. Section 
30.33(a)(5) contains the provision regarding commencement of 
construction. Section 36.15 of the existing regulations also addresses 
a part 36 applicant's or licensee's obligations with respect to the 
commencement of construction. The prohibition on the commencement of 
construction imposed by Sec.  36.15 varies from that required by Sec.  
30.33(a)(5), so that the current language in Sec.  36.13(a) creates a 
conflict. The proposed amendment would resolve the matter to make it 
clear that the part 36 requirements are applicable to the part 36 
licensee.

Section 36.15 Commencement of construction.

    This section would be revised to modify references from ``start of 
construction'' to ``commencement of construction'' to create 
consistency in the terminology used in the NRC's regulations. 
Additionally, given the proposed insertion of a revised definition for 
``commencement of construction'' in Sec.  36.2, the definition of 
``construction'' in this section would be deleted.

Section 39.13 Specific licenses for well-logging.

    In this section, paragraph (a) would be revised to correct a 
typographical error. The reference to Sec.  70.33 would be revised to 
read Sec.  70.23.

Section 40.4 Definitions.

    In 2007, the NRC added a definition for the term ``construction'' 
in 10 CFR part 51, ``Environmental protection regulations for domestic 
licensing and related regulatory functions,'' to exclude certain site 
preparation activities from the definition. The NRC's decision to 
exclude these activities from the definition of construction was based 
upon the NRC's determination that these activities lacked a reasonable 
nexus to radiological health and safety or common defense and security 
considerations. This determination is equally applicable to the 
licensing actions in part 40, which are subject to the NEPA 
implementing regulations in part 51, including the part 51 definition 
for ``construction.'' Accordingly, this section would be revised to add 
a definition for ``construction'' and conform the definition for 
``commencement of construction'' to be

[[Page 43869]]

consistent with the definition of ``construction'' in 10 CFR 51.4.

Section 40.32 General requirements for issuance of specific licenses.

    In this section, paragraph (e) would be revised to delete the 
definition of ``commencement of construction'' contained in the last 
two sentences of the paragraph.

Section 51.4 Definitions.

    The existing definition in this section for the term 
``construction'' was added to address part 50 nuclear power reactor 
licenses, and allows for possible pre-license construction through a 
limited work authorization that is available to part 50 applicants, but 
contains language that is not, by its terms, limited to part 50 
licensees. A comparable limited work authorization is not being 
proposed for materials licenses. The result is that commencement of 
construction provisions in parts 30, 40, and 70 refer the staff to part 
51 for an environmental review based on activities not included in the 
part 51 definition of construction. To resolve these inconsistencies, 
the definition of ``construction'' would be revised to distinguish 
between a part 50 licensing action and a materials licensing action. 
This section would be revised to add a paragraph defining 
``construction'' for materials licenses.

Section 70.4 Definitions.

    In 2007, the NRC added a definition for the term ``construction'' 
in 10 CFR part 51, ``Environmental protection regulations for domestic 
licensing and related regulatory functions,'' to exclude certain site 
preparation activities from the definition. The NRC's decision to 
exclude these activities from the definition of construction was based 
upon the NRC's determination that these activities lacked a reasonable 
nexus to radiological health and safety or common defense and security 
considerations. This determination is equally applicable to the 
licensing actions in Part 70, which are subject to the NEPA 
implementing regulations in Part 51, including the Part 51 definition 
for ``construction.'' Accordingly, this section would be revised to add 
a definition for ``construction'' and conform the definition for 
``commencement of construction'' to be consistent with the definition 
of ``construction'' in 10 CFR 51.4.

Section 70.23 Requirements for the approval of applications.

    In this section, paragraph (a)(7) would be revised to delete the 
definition of ``commencement of construction'' contained in the last 
two sentences of the paragraph.

Section 150.31 Requirements for Agreement State regulation of byproduct 
material.

    In this section, paragraph (b)(3)(iv) would be revised to modify 
and conform the definition for ``commencement of construction'' to that 
proposed in parts 30, 40, and 70, such that the Agreement State meaning 
is consistent with that of the NRC.

V. Availability of Documents

    You can access publicly available documents related to this 
document, including the following documents, using the following 
methods:
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Room O-
1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC's PDR 
reference staff at 1-800-397-4209, or 301-415-4737, or by e-mail to 
[email protected].
    Federal Rulemaking Web Site: Public comments and supporting 
materials related to this proposed rule can be found at http://www.regulations.gov by searching on Docket ID NRC-2010-0075.

----------------------------------------------------------------------------------------------------------------
                            Document                               PDR      Web         ADAMS         NRC Staff
----------------------------------------------------------------------------------------------------------------
Staff Requirements Memorandum--Briefing on Uranium Recovery,          X        X       ML090080206            X
 January 9, 2009...............................................
Letter from the Nuclear Energy Institute dated March 3, 2009...       X        X       ML090710372            X
Limited Work Authorizations for Nuclear Power Plants; Final           X        X       ML081050554            X
 Rule; Correction, April 28, 2008 (73 FR 22786) (Docket ID NRC-
 2008-0222)....................................................
Limited Work Authorizations for Nuclear Power Plants; Final           X        X       ML071210205            X
 Rule, October 9, 2007 (72 FR 57416) (Docket ID NRC-2008-0222).
----------------------------------------------------------------------------------------------------------------

VI. Agreement State Compatibility

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' which became effective on September 3, 1997 
(62 FR 46517), NRC program elements (including regulations) are placed 
into compatibility categories A, B, C, D, NRC, or adequacy category, 
Health and Safety (H&S). Category A includes program elements that are 
basic radiation protection standards or related definitions, signs, 
labels, or terms necessary for a common understanding of radiation 
protection principles and should be essentially identical to those of 
NRC. Category B includes program elements that have significant direct 
transboundary implications and should be essentially identical to those 
of the NRC.
    Compatibility Category C are those program elements that do not 
meet the criteria of Category A or B, but the essential objectives of 
which an Agreement State should adopt to avoid conflict, duplication, 
gaps, or other conditions that would jeopardize an orderly pattern in 
the regulation of agreement material on a nationwide basis. 
Compatibility Category D are those program elements that do not meet 
any of the criteria of Category A, B, or C, and do not need to be 
adopted by Agreement States. Compatibility Category NRC are those 
program elements that address areas of regulation that cannot be 
relinquished to Agreement States pursuant to the AEA or provisions of 
Title 10 of the Code of Federal Regulations and should not be adopted 
by Agreement States. Category H&S are program elements that are not 
required for compatibility, but have a particular health and safety 
role (e.g., adequacy) in the regulation of agreement material and the 
State should adopt the essential objectives of the NRC program 
elements.
    The NRC has analyzed the proposed rule in accordance with the 
procedure established within Part III, ``Categorization Process for NRC 
Program Elements,'' of Handbook 5.9 to

[[Page 43870]]

Management Directive 5.9, ``Adequacy and Compatibility of Agreement 
State Programs'' (a copy of which may be viewed at http://www.nrc.gov/reading-rm/doc-collections/management-directives/). The proposed 
revisions are categorized as follows:

                                   Draft Compatibility Table for Proposed Rule
----------------------------------------------------------------------------------------------------------------
                                                                                   Compatibility category
     NRC Regulation section            Change            Section title     -------------------------------------
                                                                                 Existing             New
----------------------------------------------------------------------------------------------------------------
30.4...........................  Amend............  Definition--Commenceme  D................  D.
                                                     nt of Construction--
                                                     paragraph 1.
30.4...........................  New..............  Definition--Commenceme  .................  NRC.
                                                     nt of Construction--
                                                     paragraph 2.
30.4...........................  New..............  Definition--Constructi  .................  D.
                                                     on--paragraphs 1-8
                                                     and 9(i).
30.4...........................  New..............  Definition--Constructi  .................  NRC.
                                                     on--paragraph 9(ii).
30.33(a)(5)....................  Amend............  General requirements    D................  D.
                                                     for issuance of
                                                     specific licenses.
36.2...........................  New..............  Definition--Commenceme  .................  D.
                                                     nt of Construction--
                                                     paragraph 1.
36.2...........................  New..............  Definition--Commenceme  .................  NRC.
                                                     nt of Construction--
                                                     paragraph 2.
36.2...........................  New..............  Definition--Constructi  .................  D.
                                                     on--paragraphs 1-8
                                                     and 9(i).
36.2...........................  New..............  Definition--Constructi  .................  NRC.
                                                     on--paragraph 9(ii).
36.13(a).......................  Amend............  Specific licenses for   H&S..............  H&S.
                                                     irradiators.
36.15..........................  Amend............  Commencement of         D................  D.
                                                     construction.
39.13(a).......................  Amend............  Specific licenses for   H&S..............  H&S.
                                                     well-logging.
40.4...........................  Amend............  Definition--Commenceme  C--States with     C--States with
                                                     nt of Construction--    authority to       authority to
                                                     paragraph 1.            regulate uranium   regulate uranium
                                                                             mill activities    mill activities
                                                                             (11e.(2)           (11e.(2)
                                                                             byproduct          byproduct
                                                                             material).         material).
                                                                            D--States without  D--States without
                                                                             authority.         authority.
40.4...........................  New..............  Definition--Commenceme  .................  NRC.
                                                     nt of Construction--
                                                     paragraph 2.
40.4...........................  New..............  Definition--Constructi  .................  C--States with
                                                     on--paragraphs 1-8                         authority to
                                                     and 9(i).                                  regulate uranium
                                                                                                mill activities
                                                                                                (11e.(2)
                                                                                                byproduct
                                                                                                material).
                                                                                               D--States without
                                                                                                authority.
40.4...........................  New..............  Definition--Constructi  .................  NRC.
                                                     on--paragraph 9(ii).
40.32(e).......................  Amend............  General requirements    H&S--States with   H&S--States with
                                                     for issuance of         authority to       authority to
                                                     specific licenses.      regulate uranium   regulate uranium
                                                                             mill activities    mill activities
                                                                             (11e.(2)           (11e.(2)
                                                                             byproduct          byproduct
                                                                             material).         material).
                                                                            NRC--States        NRC--States
                                                                             without            without
                                                                             authority.         authority.
51.4...........................  Amend............  Definitions...........  NRC..............  NRC.
70.4...........................  Amend............  Definition--Commenceme  D................  D.
                                                     nt of Construction--
                                                     paragraph 1.
70.4...........................  New..............  Definition--Commenceme  .................  NRC.
                                                     nt of Construction--
                                                     paragraph 2.
70.4...........................  New..............  Definition--Constructi  .................  D.
                                                     on--paragraphs 1-8
                                                     and 9(i).
70.4...........................  New..............  Definition--Constructi  .................  NRC.
                                                     on--paragraph 9(ii).
70.23(a)(7)....................  Amend............  Requirements for the    NRC..............  NRC.
                                                     approval of
                                                     applications.
150.31(b)(3)(iv)...............  Amend............  Requirements for        C--States with     C--States with
                                                     Agreement State         authority to       authority to
                                                     regulation of           regulate uranium   regulate uranium
                                                     byproduct material.     mill activities    mill activities
                                                                             (11e.(2)           (11e.(2)
                                                                             byproduct          byproduct
                                                                             material).         material).
                                                                            D--States without  D--States without
                                                                             authority.         authority.
150.31(b)(3)(iv)(A)............  New..............  Requirements for        .................  C--States with
                                                     Agreement State                            authority to
                                                     regulation of                              regulate uranium
                                                     byproduct material.                        mill activities
                                                                                                (11e.(2)
                                                                                                byproduct
                                                                                                material).
                                                                                               D--States without
                                                                                                authority.

[[Page 43871]]

 
150.31(b)(3)(iv)(B)............  New..............  Requirements for        .................  C--States with
                                                     Agreement State                            authority to
                                                     regulation of                              regulate uranium
                                                     byproduct material.                        mill activities
                                                                                                (11e.(2)
                                                                                                byproduct
                                                                                                material).
                                                                                               D--States without
                                                                                                authority.
----------------------------------------------------------------------------------------------------------------

VII. Plain Language

    The Presidential memorandum dated June 1, 1998, entitled ``Plain 
Language in Government Writing'' directed that the Government's writing 
be in plain language. This memorandum was published on June 10, 1998 
(63 FR 31883). In complying with this directive, the NRC made editorial 
changes to improve the organization and readability of the existing 
language of the paragraphs being revised. These types of changes are 
not discussed further in this document. The NRC requests comments on 
this proposed rule specifically with respect to the clarity and 
effectiveness of the language used. Comments should be sent to the 
address listed under the ADDRESSES heading of the preamble to this 
proposed rule.

VIII. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, 
Public Law 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 proposing to 
redefine the scope of activities constituting ``construction'' for 
materials licenses. The NRC is not aware of any voluntary consensus 
standards that address the proposed subject matter of this proposed 
rule. The NRC will consider using a voluntary consensus standard if an 
appropriate standard is identified. If a voluntary consensus standard 
is identified for consideration, the submittal should explain why the 
standard should be used.

IX. Environmental Impact--Categorical Exclusion

    The NRC has determined that the changes made in this rule to parts 
30, 36, 39, 40, 51, 70, and 150 fall within the types of actions 
described in categorical exclusions 10 CFR 51.22(c)(1), (c)(2), and 
(c)(3)(i). Therefore, neither an environmental impact statement nor an 
environmental assessment has been prepared for this regulation.

X. Paperwork Reduction Act Statement

    This proposed rule does not contain new or amended information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). Existing information collection requirements 
were approved by the Office of Management and Budget, control numbers 
3150-0017, 3150-0158, 3150-0130, 3150-0020, 3150-0021, 3150-0009, and 
3150-0032.

Public Protection Notification.

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.

XI. Regulatory Analysis

    A draft regulatory analysis has not been prepared for this 
regulation. This rule amends the NRC's regulations to conform the 
definitions of ``construction'' and ``commencement of construction'' as 
they appear in parts 30, 36, 40, 70, and 150, to the parts 50, 51, and 
52 definitions implemented by the LWA rulemaking, revised to reference 
non-nuclear power plant licensees. This amendment does not impose any 
new burden or reporting requirements on the licensee or NRC for 
compliance. Also, this rule does not involve an exercise of NRC 
discretion, and therefore does not necessitate preparation of a 
regulatory analysis.

XII. Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), the NRC certifies that this rule will not, if promulgated, 
have a significant economic impact on a substantial number of small 
entities. This proposed rule affects only material licensees. The 
companies that apply for a license in accordance with the regulations 
affected by this proposed rule do not fall within the scope of the 
definition of ``small entities'' set forth in the Regulatory 
Flexibility Act or the size standards established by the NRC (10 CFR 
2.810).

XIII. Backfit Analysis

    The NRC's backfit provisions are found in the regulations at 
Sec. Sec.  50.109, 52.39, 52.63, 52.83, 52.98, 52.145, 52.171, 70.76, 
72.62, and 76.76. The requirements contained in this proposed rule do 
not involve any provisions that would impose backfits on nuclear power 
plant licensees as defined in 10 CFR parts 50 or 52, or on licensees 
for gaseous diffusion plants, independent spent fuel storage 
installations or special nuclear material as defined in 10 CFR parts 
70, 72 and 76, respectively, and as such a backfit analysis is not 
required. Therefore, a backfit analysis need not be prepared for this 
proposed rule to address these classes of entities. With respect to 
parts 30, 36, 39, and 40 licensees, the NRC has determined that there 
are no provisions for backfit in these parts, and as such, a backfit 
analysis need not be prepared for this proposed rule to address these 
licensees.

List of Subjects

10 CFR Part 30

    Byproduct material, Criminal penalties, Government contracts, 
Intergovernmental relations, Isotopes, Nuclear materials, Radiation 
protection, Reporting and recordkeeping requirements.

10 CFR Part 36

    Byproduct material, Criminal penalties, Nuclear materials, 
Reporting and recordkeeping requirements, Scientific equipment, 
Security measures.

10 CFR Part 39

    Byproduct material, Criminal penalties, Nuclear materials, Oil and 
gas exploration--well logging, Reporting and recordkeeping 
requirements, Scientific equipment, Security

[[Page 43872]]

measures, Source material, Special nuclear material.

10 CFR Part 40

    Criminal penalties, Government contracts, Hazardous materials 
transportation, Nuclear materials, Reporting and recordkeeping 
requirements, Source material, Uranium.

10 CFR Part 51

    Administrative practice and procedure, Environmental impact 
statement, Nuclear materials, Nuclear power plants and reactors, 
Reporting and recordkeeping requirements.

10 CFR Part 70

    Criminal penalties, Hazardous materials transportation, Material 
accounting and control, Nuclear materials, Packaging and containers, 
Radiation protection, Reporting and recordkeeping requirements, 
Scientific equipment, Security measures, Special nuclear material.

10 CFR Part 150

    Criminal penalties, Hazardous materials transportation, 
Intergovernmental relations, Nuclear materials, Reporting and 
recordkeeping requirements, Security measures, Source material, Special 
nuclear material.
    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. 553; the NRC is proposing to 
adopt the following amendments to 10 CFR parts 30, 36, 39, 40, 51, 70, 
and 150.

PART 30--RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF 
BYPRODUCT MATERIAL

    1. The authority citation for Part 30 continues to read as follows:

    Authority:  Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948, 
953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 
U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as 
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 
5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); 
Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 549 (2005).

    Section 30.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 
U.S.C. 5851). Section 30.34(b) also issued under sec. 184, 68 Stat. 
954, as amended (42 U.S.C. 2234). Section 30.61 also issued under 
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

    2. In Sec.  30.4, the definition for the term ``Commencement of 
construction'' is revised, and the term ``Construction'' is added in 
alphabetical order to read as follows:
* * * * *


Sec.  30.4  Definitions.

* * * * *
    Commencement of construction means taking any action defined as 
``construction'' or any site-preparation activity at the site of a 
facility subject to the regulations in this part that has a reasonable 
nexus to:
    (1) Radiological health and safety; or
    (2) Common defense and security.
* * * * *
    Construction means the installation of foundations, or in-place 
assembly, erection, fabrication, or testing for any structure, system, 
or component of a facility or activity subject to the regulations in 
this part that are related to radiological safety or security. The term 
``construction'' does not include:
    (1) Changes for temporary use of the land for public recreational 
purposes;
    (2) Site exploration, including necessary borings to determine 
foundation conditions or other preconstruction monitoring to establish 
background information related to the suitability of the site, the 
environmental impacts of construction or operation, or the protection 
of environmental values;
    (3) Preparation of the site for construction of the facility, 
including clearing of the site, grading, installation of drainage, 
erosion and other environmental mitigation measures, and construction 
of temporary roads and borrow areas;
    (4) Erection of fences and other access control measures that are 
not related to the safe use of, or security of, radiological materials 
subject to this part;
    (5) Excavation;
    (6) Erection of support buildings (e.g., construction equipment 
storage sheds, warehouse and shop facilities, utilities, concrete 
mixing plants, docking and unloading facilities, and office buildings) 
for use in connection with the construction of the facility;
    (7) Building of service facilities (e.g., paved roads, parking 
lots, railroad spurs, exterior utility and lighting systems, potable 
water systems, sanitary sewerage treatment facilities, and transmission 
lines);
    (8) Procurement or fabrication of components or portions of the 
proposed facility occurring at other than the final, in-place location 
at the facility; or
    (9) Taking any other action that has no reasonable nexus to:
    (i) Radiological health and safety, or
    (ii) Common defense and security.
* * * * *
    3. In Sec.  30.33, paragraph (a)(5) is revised to read as follows:


Sec.  30.33  General requirements for issuance of specific licenses.

    (a) * * *
    (5) In the case of an application for a license to receive and 
possess byproduct material for the conduct of any activity which the 
NRC determines will significantly affect the quality of the 
environment, the Director, Office of Federal and State Materials and 
Environmental Management Program or his designee, before commencement 
of construction of the plant or facility in which the activity will be 
conducted, on the basis of information filed and evaluations made 
pursuant to subpart A of part 51 of this chapter, has concluded, after 
weighing the environmental, economic, technical, and other benefits 
against environmental costs and considering available alternatives, 
that the action called for is the issuance of the proposed license, 
with any appropriate conditions to protect environmental values. 
Commencement of construction prior to such conclusion shall be grounds 
for denial of a license to receive and possess byproduct material in 
such plant or facility.
* * * * *

PART 36--LICENSES AND RADIATION SAFETY REQUIREMENTS FOR IRRADIATORS

    4. The authority citation for part 36 continues to read as follows:

    Authority:  Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948, 
953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 
U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as 
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 
5841, 5842, 5846).

    5. In Sec.  36.2, definitions for the terms ``Commencement of 
construction''and ``Construction'' are added in alphabetical order to 
read as follows:


Sec.  36.2  Definitions.

* * * * *
    Commencement of construction means taking any action defined as 
``construction'' or any site-preparation activity at the site of a 
facility subject to the regulations in this part that has a reasonable 
nexus to:
    (1) Radiological health and safety; or
    (2) Common defense and security.
    Construction means the installation of foundations, or in-place 
assembly, erection, fabrication, or testing for any structure, system, 
or component of a facility or activity subject to the regulations in 
this part that are related

[[Page 43873]]

to radiological safety or security. The term ``construction''does not 
include:
    (1) Changes for temporary use of the land for public recreational 
purposes;
    (2) Site exploration, including necessary borings to determine 
foundation conditions or other preconstruction monitoring to establish 
background information related to the suitability of the site, the 
environmental impacts of construction or operation, or the protection 
of environmental values;
    (3) Preparation of the site for construction of the facility, 
including clearing of the site, grading, installation of drainage, 
erosion and other environmental mitigation measures, and construction 
of temporary roads and borrow areas;
    (4) Erection of fences and other access control measures that are 
not related to the safe use of, or security of, radiological materials 
subject to this part;
    (5) Excavation;
    (6) Erection of support buildings (e.g., construction equipment 
storage sheds, warehouse and shop facilities, utilities, concrete 
mixing plants, docking and unloading facilities, and office buildings) 
for use in connection with the construction of the facility;
    (7) Building of service facilities (e.g., paved roads, parking 
lots, railroad spurs, exterior utility and lighting systems, potable 
water systems, sanitary sewerage treatment facilities, and transmission 
lines);
    (8) Procurement or fabrication of components or portions of the 
proposed facility occurring at other than the final, in-place location 
at the facility; or
    (9) Taking any other action that has no reasonable nexus to:
    (i) Radiological health and safety, or
    (ii) Common defense and security.
* * * * *
    6. In Sec.  36.13, paragraph (a) is revised to read as follows:


Sec.  36.13  Specific licenses for irradiators.

* * * * *
    (a) The applicant shall satisfy the general requirements specified 
in Sec. Sec.  30.33(a)(1)-(4) and 30.33(b) of this chapter and the 
requirements contained in this part.
* * * * *
    7. Section 36.15 is revised to read as follows:


Sec.  36.15  Commencement of construction.

    Commencement of construction of a new irradiator may not occur 
prior to the submission to NRC of both an application for a license for 
the irradiator and the fee required by Sec.  170.31 of this chapter. 
Any activities undertaken prior to the issuance of a license are 
entirely at the risk of the applicant and have no bearing on the 
issuance of a license with respect to the requirements of the Atomic 
Energy Act of 1954 (Act), as amended, and rules, regulations, and 
orders issued under the Act.

PART 39--LICENSES AND RADIATION SAFETY REQUIREMENTS FOR WELL 
LOGGING

    8. The authority citation for part 39 continues to read as follows:

    Authority:  Secs. 53, 57, 62, 63, 65, 69, 81, 82, 161, 182, 183, 
186, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as 
amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2073, 2077, 
2092, 2093, 2095, 2099, 2111, 2112, 2201, 2232, 2233, 2236, 2282); 
secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 
1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 
U.S.C. 3504 note).

    9. In Sec.  39.13, paragraph (a) is revised to read as follows:


Sec.  39.13  Specific licenses for well logging.

* * * * *
    (a) The applicant shall satisfy the general requirements specified 
in Sec.  30.33 of this chapter for byproduct material, in Sec.  40.32 
of this chapter for source material, and in Sec.  70.23 of this chapter 
for special nuclear material, as appropriate, and any special 
requirements contained in this part.
* * * * *

PART 40--DOMESTIC LICENSING OF SOURCE MATERIAL

    10. The authority citation for part 40 continues to read as 
follows:

    Authority:  Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 
Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2), 
83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 
83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 
2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274, 
Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as 
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 
5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L. 
97-415, 96 Stat. 2067 (42 U.S.C. 2022); sec. 193, 104 Stat. 2835, as 
amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 
2243); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy 
Policy Act of 2005, Pub. L. No. 109-59, 119 Stat. 594 (2005).
    Section 40.7 also issued under Pub. L. 95- 601, sec. 10, 92 
Stat. 2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 
122, 68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under 
sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 
also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

    11. In Sec.  40.4, the definition for the term ``Commencement of 
construction'' is revised, and the term ``Construction'' is added in 
alphabetical order to read as follows:


Sec.  40.4  Definitions.

* * * * *
    Commencement of construction means taking any action defined as 
``construction'' or any site preparation activity at the site of a 
facility subject to the regulations in this part that has a reasonable 
nexus to:
    (1) Radiological health and safety; or
    (2) Common defense and security.
* * * * *
    Construction means the installation of production wells, the 
installation of foundations, or in-place assembly, erection, 
fabrication, or testing for any structure, system, or component of a 
facility or activity subject to the regulations in this part that are 
related to radiological safety or security. The term ``construction'' 
does not include:
    (1) Changes for temporary use of the land for public recreational 
purposes;
    (2) Site exploration, including necessary borings to determine 
foundation conditions or other preconstruction monitoring to establish 
background information related to the suitability of the site, the 
environmental impacts of construction or operation, or the protection 
of environmental values;
    (3) Preparation of the site for construction of the facility, 
including clearing of the site, grading, installation of drainage, 
erosion and other environmental mitigation measures, and construction 
of temporary roads and borrow areas;
    (4) Erection of fences and other access control measures that are 
not related to the safe use of, or security of, radiological materials 
subject to this part;
    (5) Excavation;
    (6) Erection of support buildings (e.g., construction equipment 
storage sheds, warehouse and shop facilities, utilities, concrete 
mixing plants, docking and unloading facilities, and office buildings) 
for use in connection with the construction of the facility;
    (7) Building of service facilities (e.g., paved roads, parking 
lots, railroad spurs, exterior utility and lighting systems, potable 
water systems, sanitary sewerage treatment facilities, and transmission 
lines);
    (8) Procurement or fabrication of components or portions of the 
proposed facility occurring at other than the final, in-place location 
at the facility; or
    (9) Taking any other action that has no reasonable nexus to:
    (i) Radiological health and safety, or
    (ii) Common defense and security.
* * * * *

[[Page 43874]]

    12. Section 40.32, paragraph (e) is revised to read as follows:


Sec.  40.32  General requirements for issuance of specific licenses.

* * * * *
    (e) In the case of an application for a license for a uranium 
enrichment facility, or for a license to possess and use source and 
byproduct material for uranium milling, production of uranium 
hexafluoride, or for the conduct of any other activity which the NRC 
determines will significantly affect the quality of the environment, 
the Director, Office of Federal and State Materials and Environmental 
Management Programs or his designee, before commencement of 
construction, on the basis of information filed and evaluations made 
pursuant to subpart A of part 51 of this chapter, has concluded, after 
weighing the environmental, economic, technical and other benefits 
against environmental costs and considering available alternatives, 
that the action called for is the issuance of the proposed license, 
with any appropriate conditions to protect environmental values. 
Commencement of construction prior to this conclusion is grounds for 
denial of a license to possess and use source and byproduct material in 
the plant or facility.
* * * * *

PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC 
LICENSING AND RELATED REGULATORY FUNCTIONS

    13. The authority citation for Part 51 continues to read as 
follows:

    Authority:  Sec. 161, 68 Stat. 948, as amended, sec. 1701, 106 
Stat. 2951, 2952, 2953 (42 U.S.C. 2201, 2297f); secs. 201, as 
amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841, 
5842); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Subpart A 
also issued under National Environmental Policy Act of 1969, secs. 
102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 4332, 4334, 
4335); and Pub. L. 95-604, Title II, 92 Stat. 3033-3041; and sec. 
193, Pub. L. 101-575, 104 Stat. 2835 (42 U.S.C. 2243). Sections 
51.20, 51.30, 51.60, 51.80, and 51.97 also issued under secs. 135, 
141, Pub. L. 97-425, 96 Stat. 2232, 2241, and sec. 148, Pub. L. 100-
203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161, 10168). Section 
51.22 also issued under sec. 274, 73 Stat. 688, as amended by 92 
Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear Waste Policy Act 
of 1982, sec. 121, 96 Stat. 2228 (42 U.S.C. 10141). Sections 51.43, 
51.67, and 51.109 also issued under Nuclear Waste Policy Act of 
1982, sec. 114(f), 96 Stat. 2216, as amended (42 U.S.C. 10134(f)).

    14. In Sec.  51.4, the definition for the term ``Construction'' is 
revised to read as follows:


Sec.  51.4  Definitions.

* * * * *
    Construction means:
    (1) For production and utilization facilities, the activities in 
paragraph (i) of this definition, and does not mean the activities in 
paragraph (ii) of this definition.
    (i) Activities constituting construction are the driving of piles, 
subsurface preparation, placement of backfill, concrete, or permanent 
retaining walls within an excavation, installation of foundations, or 
in-place assembly, erection, fabrication, or testing, which are for:
    (A) Safety-related structures, systems, or components (SSCs) of a 
facility, as defined in 10 CFR 50.2;
    (B) SSCs relied upon to mitigate accidents or transients or used in 
plant emergency operating procedures;
    (C) SSCs whose failure could prevent safety-related SSCs from 
fulfilling their safety-related function;
    (D) SSCs whose failure could cause a reactor scram or actuation of 
a safety-related system;
    (E) SSCs necessary to comply with 10 CFR part 73;
    (F) SSCs necessary to comply with 10 CFR 50.48 and criterion 3 of 
10 CFR part 50, appendix A; and
    (G) Onsite emergency facilities (i.e., technical support and 
operations support centers), necessary to comply with 10 CFR 50.47 and 
10 CFR part 50, appendix E.
    (ii) Construction does not include:
    (A) Changes for temporary use of the land for public recreational 
purposes;
    (B) Site exploration, including necessary borings to determine 
foundation conditions or other preconstruction monitoring to establish 
background information related to the suitability of the site, the 
environmental impacts of construction or operation, or the protection 
of environmental values;
    (C) Preparation of a site for construction of a facility, including 
clearing of the site, grading, installation of drainage, erosion and 
other environmental mitigation measures, and construction of temporary 
roads and borrow areas;
    (D) Erection of fences and other access control measures that are 
not safety or security related, and do not pertain to radiological 
controls;
    (E) Excavation;
    (F) Erection of support buildings (e.g., construction equipment 
storage sheds, warehouse and shop facilities, utilities, concrete 
mixing plants, docking and unloading facilities, and office buildings) 
for use in connection with the construction of the facility;
    (G) Building of service facilities (e.g., paved roads, parking 
lots, railroad spurs, exterior utility and lighting systems, potable 
water systems, sanitary sewerage treatment facilities, and transmission 
lines);
    (H) Procurement or fabrication of components or portions of the 
proposed facility occurring at other than the final, in-place location 
at the facility;
    (I) Manufacture of a nuclear power reactor under a manufacturing 
license under subpart F of part 52 of this chapter to be installed at 
the proposed site and to be part of the proposed facility; or
    (J) With respect to production or utilization facilities, other 
than testing facilities and nuclear power plants, required to be 
licensed under Section 104.a or Section 104.c of the Act, the erection 
of buildings which will be used for activities other than operation of 
a facility and which may also be used to house a facility (e.g., the 
construction of a college laboratory building with space for 
installation of a training reactor).
    (2) For materials licenses, taking any site-preparation activity at 
the site of a facility subject to the regulations in 10 CFR parts 30, 
36, 40, and 70, that has a reasonable nexus to radiological health and 
safety or the common defense and security; provided, however, that 
construction does not mean:
    (i) Those actions or activities listed in paragraphs (1)(ii)(A)--
(H) of this definition; or
    (ii) Taking any other action that has no reasonable nexus to 
radiological health and safety or the common defense and security.
* * * * *

PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

    15. The authority citation for part 70 continues to read as 
follows:

    Authority:  Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948, 
953, 954, as amended, sec. 234, 83 Stat. 444, as amended, (42 U.S.C. 
2071, 2073, 2201, 2232, 2233, 2282, 2297f); secs. 201, as amended, 
202, 204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246 (42 
U.S.C. 5841, 5842, 5845, 5846). Sec. 193, 104 Stat. 2835 as amended 
by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243); sec. 
1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 
2005, Pub. L. No. 109-58, 119 Stat. 594 (2005).

    Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141, 
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
    Section 70.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951 as amended by

[[Page 43875]]

Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851). Section 
70.21(g) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). 
Section 70.31 also issued under sec. 57d, Pub. L. 93-377, 88 Stat. 
475 (42 U.S.C. 2077). Sections 70.36 and 70.44 also issued under 
sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 70.81 
also issued under secs. 186, 187, 68 Stat. 955 (42 U.S.C. 2236, 
2237). Section 70.82 also issued under sec. 108, 68 Stat. 939, as 
amended (42 U.S.C. 2138).

    16. In Sec.  70.4 the definition for the term ``Commencement of 
construction'' is revised and the term ``Construction'' is added in 
alphabetical order to read as follows:


Sec.  70.4  Definitions.

* * * * *
    Commencement of construction means taking any action defined as 
``construction'' or any site-preparation activity at the site of a 
facility subject to the regulations in this part that has a reasonable 
nexus to:
    (1) Radiological health and safety; or
    (2) Common defense and security.
* * * * *
    Construction means the installation of foundations, or in-place 
assembly, erection, fabrication, or testing for any structure, system, 
or component of a facility or activity subject to the regulations in 
this part that are related to radiological safety or security. The term 
``construction'' does not include:
    (1) Changes for temporary use of the land for public recreational 
purposes;
    (2) Site exploration, including necessary borings to determine 
foundation conditions or other preconstruction monitoring to establish 
background information related to the suitability of the site, the 
environmental impacts of construction or operation, or the protection 
of environmental values;
    (3) Preparation of the site for construction of the facility, 
including clearing of the site, grading, installation of drainage, 
erosion and other environmental mitigation measures, and construction 
of temporary roads and borrow areas;
    (4) Erection of fences and other access control that are not 
related to the safe use of, or security of, radiological materials 
subject to this part;
    (5) Excavation;
    (6) Erection of support buildings (e.g., construction equipment 
storage sheds, warehouse and shop facilities, utilities, concrete 
mixing plants, docking and unloading facilities, and office buildings) 
for use in connection with the construction of the facility;
    (7) Building of service facilities (e.g., paved roads, parking 
lots, railroad spurs, exterior utility and lighting systems, potable 
water systems, sanitary sewerage treatment facilities, and transmission 
lines);
    (8) Procurement or fabrication of components or portions of the 
proposed facility occurring at other than the final, in-place location 
at the facility; or
    (9) Taking any other action that has no reasonable nexus to:
    (i) Radiological health and safety, or
    (ii) Common defense and security.
* * * * *
    17. In Sec.  70.23, paragraph (a)(7) is revised to read as follows:


Sec.  70.23  Requirements for the approval of applications.

    (a) * * *
    (7) Where the proposed activity is processing and fuel fabrication, 
scrap recovery, conversion of uranium hexafluoride, uranium enrichment 
facility construction and operation, or any other activity which the 
NRC determines will significantly affect the quality of the 
environment, the Director of Nuclear Material Safety and Safeguards or 
his designee, before commencement of construction of the plant or 
facility in which the activity will be conducted, on the basis of 
information filed and evaluations made pursuant to subpart A of part 51 
of this chapter, has concluded, after weighing the environmental, 
economic, technical, and other benefits against environmental costs and 
considering available alternatives, that the action called for is the 
issuance of the proposed license, with any appropriate conditions to 
protect environmental values. Commencement of construction prior to 
this conclusion is grounds for denial to possess and use special 
nuclear material in the plant or facility.
* * * * *

PART 150--EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN 
AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274

    18. The authority citation for part 150 continues to read as 
follows:

    Authority:  Sec. 161, 68 Stat. 948, as amended, sec. 274, 73 
Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as 
amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 
note); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594 
(2005).

    Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued 
under secs. 11e(2), 81, 68 Stat. 923, 935, as amended, secs. 83, 84, 
92 Stat. 3033, 3039 (42 U.S.C. 2014e(2), 2111, 2113, 2114). Section 
150.14 also issued under sec. 53, 68 Stat. 930, as amended (42 
U.S.C. 2073).
    Section 150.15 also issued under secs. 135, 141, Pub. L. 97-425, 
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 150.17a also 
issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 150.30 
also issued under sec. 234, 83 Stat. 444 (42 U.S.C. 2282).

    19. In Sec.  150.31, paragraph (b)(3)(iv) is revised to read as 
follows:


Sec.  150.31  Requirements for Agreement State regulation of byproduct 
material.

* * * * *
    (b) * * *
    (3) * * *
    (iv) Prohibit commencement of construction with respect to such 
material prior to complying with the provisions of paragraph (b)(3)(i) 
through (iii) of this section. As used in this paragraph:
    (A) The term commencement of construction means taking any action 
defined as ``construction'' or any site-preparation activity at the 
site of a facility subject to the regulations in this part that has a 
reasonable nexus to radiological health and safety.
    (B) The term construction means the installation of foundations, or 
in-place assembly, erection, fabrication, or testing for any structure, 
system, or component of a facility or activity subject to the 
regulations in this part that are related to radiological safety or 
security. The term ``construction'' does not include:
    (1) Changes for temporary use of the land for public recreational 
purposes;
    (2) Site exploration, including necessary borings to determine 
foundation conditions or other preconstruction monitoring to establish 
background information related to the suitability of the site, the 
environmental impacts of construction or operation, or the protection 
of environmental values;
    (3) Preparation of the site for construction of the facility, 
including clearing of the site, grading, installation of drainage, 
erosion and other environmental mitigation measures, and construction 
of temporary roads and borrow areas;
    (4) Erection of fences and other access control measures that are 
not related to the safe use of or security of radiological materials 
subject to this part;
    (5) Excavation;
    (6) Erection of support buildings (e.g., construction equipment 
storage sheds, warehouse and shop facilities, utilities, concrete 
mixing plants, docking and unloading facilities, and office buildings) 
for use in connection with the construction of the facility;
    (7) Building of service facilities (e.g., as paved roads, parking 
lots, railroad spurs, exterior utility and lighting systems, potable 
water systems, sanitary sewerage treatment facilities, and transmission 
lines);

[[Page 43876]]

    (8) Procurement or fabrication of components or portions of the 
proposed facility occurring at other than the final, in-place location 
at the facility; or
    (9) Taking any other action which has no reasonable nexus to 
radiological health and safety.
* * * * *

    Dated at Rockville, Maryland, this 21st day of July 2010.

    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2010-18344 Filed 7-26-10; 8:45 am]
BILLING CODE 7590-01-P