[Federal Register Volume 76, Number 179 (Thursday, September 15, 2011)]
[Rules and Regulations]
[Pages 56951-56966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23628]


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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 Materials Licensees

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission) 
is amending its regulations by revising the provisions applicable to 
the licensing and approval processes for byproduct, source and special 
nuclear materials licenses, and irradiators. The changes will clarify 
the definitions of ``construction'' and ``commencement of 
construction'' with respect to materials licensing actions conducted 
under the NRC's regulations. The NRC is adopting these changes to 
further improve the effectiveness and efficiency of the licensing and 
approval processes for future materials license applications, as well 
as to eliminate 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 for purposes of its environmental reviews.

DATES: This final rule is effective on November 14, 2011.

ADDRESSES: You can access publicly available documents related to this 
document 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 O1-F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland 20852.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): Publicly available documents created or received at the NRC 
are available electronically at the NRC Public Library 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 the 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, 301-415-4737, or by e-mail to 
[email protected].
     Federal Rulemaking Web Site: Public comments and 
supporting materials related to this final rule can be found at http://www.regulations.gov by searching on Docket ID NRC-2010-0075. Address 
questions about NRC dockets to Carol Gallagher, telephone: 301-492-
3668; e-mail: [email protected].

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. Background
II. Summary and Analysis of Public Comments on the Proposed Rule
III. Discussion
IV. Section-by-Section Analysis
V. Agreement State Compatibility
VI. Voluntary Consensus Standards
VII. Environmental Impact--Categorical Exclusion
VIII. Paperwork Reduction Act Statement
IX. Regulatory Analysis
X. Regulatory Flexibility Certification
XI. Backfit Analysis
XII. Congressional Review Act

I. Background

    On July 27, 2010 (75 FR 43865), the NRC published a proposed rule, 
``Licenses, Certifications, and Approvals for Materials Licenses.'' The 
rule proposed to amend the NRC's regulations to clarify the definitions 
of ``construction'' and ``commencement of construction'' applicable to 
the licensing and approval processes for byproduct, source and special 
nuclear materials licenses, and irradiators. The

[[Page 56952]]

proposed rule sought to eliminate the differences that exist between 
the NRC's definition of construction and its use for nuclear power 
reactor licensing, materials licensing, and for purposes of 
environmental reviews.
    The inconsistencies that exist arose after the NRC modified the 
definition of ``construction'' applicable to nuclear power reactors and 
to the NRC environmental review regulations, but did not make 
comparable changes to its materials licensing regulations. On October 
9, 2007 (72 FR 57416; corrected at 73 FR 22786 (April 28, 2008)), the 
NRC had amended the definition of ``construction'' for utilization and 
production facilities and amended the limited work authorization (LWA) 
procedures for nuclear power plants (LWA Rulemaking). As part of that 
rulemaking, the Commission revised the scope of activities that are 
considered construction and for which a construction permit, combined 
license, or LWA is necessary; specified the scope of construction 
activities that may be performed under an LWA; changed the review and 
approval process for LWA requests; and clarified the environmental 
review process for these activities.
    Since the completion of the LWA Rulemaking, activities that do not 
constitute construction under Title 10 of the Code of Federal 
Regulations (10 CFR) Parts 50, 51, and 52, are currently classified as 
construction under 10 CFR parts 30, 36, 40, 70, and 150. As such, the 
site preparation activity from which a materials license applicant, 
including a licensee applying for an amendment to an existing license, 
is currently prohibited from engaging are the same activities that the 
NRC determined in the LWA Rulemaking were not within the scope of the 
NRC's licensing authority. Materials license applicants and licensees, 
as well as the NRC's staff, have struggled with this inconsistency. The 
rules adopted herein eliminate this inconsistency.

II. Summary and Analysis of Public Comments on the Proposed Rule

A. Summary of Public Comments

    The proposed rule was published on July 27, 2010 (75 FR 43865), 
with a 60-day comment period, which ended on September 27, 2010. The 
comment period was subsequently reopened and extended to November 29, 
2010 (75 FR 60341; September 30, 2010). The NRC received 12 public 
comments on the proposed rule. The commenters include four members of 
the public, three industry organizations, two public interest and 
consumer advocacy groups,\1\ one company which indicated an intent to 
apply for a materials license, one law school environmental law clinic, 
and one anonymous commenter.
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    \1\ One of the comments referenced was a joint submission on 
behalf of seven consumer advocacy organizations.
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    Two of the comments received generally supported the NRC's decision 
to issue the proposed rule. Three of the comments, while critical of 
the proposed rule or its applicability to certain materials licenses at 
all, provided specific comment with respect to the proposed language. 
Seven of the comments received were opposed to the proposed rule, 
stating as their main objection their belief that the proposed rule is 
contrary to, and would negatively impact the NRC's implementation of 
the National Environmental Policy Act of 1969, as amended (NEPA), and 
other Federal environmental or conservancy statutes such as, the Bald 
Eagle Protection Act of 1940, the Endangered Species Act of 1973, the 
Fish and Wildlife Coordination Act of 1934, the Migratory Bird 
Conservation Act, and the National Historic Preservation Act of 1966, 
as amended.
    The proposed rule also solicited comments on the utility of an LWA 
process specific to materials licenses. Four of the twelve commenters 
addressed this issue, and of the four, one was opposed, claiming that 
such a process would violate NEPA, and the remaining three indicated 
that there was some merit in the endeavor, and provided comments on the 
potential designs of such a process.

B. NRC Response to Public Comments

    The NRC has carefully considered the public comments received. The 
comments have been organized by topic (e.g., Compliance with NEPA) 
followed by the NRC response. As will be further discussed, the NRC has 
decided to adopt a final rule substantially similar to that included in 
the proposed rule. As is also discussed, the NRC has decided not to 
adopt a specific LWA process for materials licenses, at this time.
1. Compliance With NEPA
    Comment: Several of the commenters state that the proposed changes 
in the definitions of ``construction'' and ``commencement of 
construction'' would violate NEPA, as it would allow materials license 
applicants to take action that would have significant environmental 
impacts with no NRC oversight or environmental review. The commenters 
state that the proposed rule would allow the framework for an entire 
materials license facility to be prepared and significant environmental 
impacts to occur without undergoing any meaningful environmental or 
safety oversight, review or analysis. The commenters maintain that if 
the contemplated site preparation activities are permitted, the NRC 
would miss out on the opportunity to catch possible environmental 
damage early and to require mitigative measures necessary to lessen 
this damage. The commenters stress that the proposed rule would result 
in the impermissible segmentation of the licensing action, which could 
result in the NRC not considering the full effect of the Federal action 
upon the environment.
    Response: As explained in more detail in Section III, Discussion, 
the NRC disagrees with the commenters. The rule being adopted by the 
NRC is not intended to thwart or avoid the environmental review 
requirements of NEPA. The NRC will continue to implement NEPA on the 
totality of its licensing action. Site preparation activities, which 
are private actions, will be considered by the NRC in accordance with 
its regulations in 10 CFR part 51 as part of the agency's cumulative 
impacts analysis.
    The NRC, through this rulemaking, is not authorizing any individual 
to engage in specific site preparation activities. Rather, the NRC is 
identifying those specific activities that are not subject to its 
regulatory authority. The private site preparation activities that 
occur, while not subject to NRC authority, in all likelihood are 
subject to regulatory authority of another Federal, State or local 
agency, through either a permitting or licensing process. Such Federal, 
State or local authority with permitting or licensing jurisdiction over 
private site preparation activities would be the proper entity to 
consider concerns pertaining to the activities, including the potential 
triggering of NEPA or State environmental review requirements as 
appropriate. The NRC would consider any request from another Federal, 
State or local agency with authority over the private action for the 
NRC to be a cooperating agency on a case-by-case basis within the scope 
of the NRC's jurisdictional authority and any applicable Memorandum of 
Understanding.
    Comment: Several of the commenters state that the NRC's proposed 
rule does not fall within the categorical exclusions described in Sec.  
51.22(c)(1), (c)(2), and (c)(3)(1), as it is more than administrative 
in nature. Instead, the commenters stated that the proposed rule would 
have the effect of

[[Page 56953]]

deregulating a substantial amount of construction activity related to 
materials licensing, and as such, is itself a major action that 
requires an NEPA environmental review.
    Response: The NRC disagrees with this comment. The NRC's 
determination with respect to the definition of ``construction'' 
originally occurred in the 2007 LWA Rulemaking. This rule merely 
conforms the definitions in Parts 30, 36, 40, 70 and 150 to the 
definitions that have been present in Part 51 for several years through 
the LWA Rulemaking. The NRC is making no new determinations regarding 
the definition of construction for purposes of Part 51 through this 
rule, but rather is assuring Part 51's definition clearly applies 
consistently across NRC licensing activities. Accordingly, this rule 
meets the categorical exclusions described in Sec.  51.22(c)(1) which 
expressly excludes amendments to Part 150; Sec.  51.22(c)(2) which 
excludes amendments to the NRC regulations that are corrective or of a 
minor or nonpolicy nature; and Sec.  51.22(3)(i) which excludes 
amendments to the NRC regulations that relate to procedures for filing 
and reviewing applications for licenses or other forms of permission.
    Comment: Several commenters question whether the NRC has consulted 
with and obtained comments from other Federal agencies, including the 
Council on Environmental Quality, State Historic Preservation Officers, 
or Native American Tribes.
    Response: This rule was available for public comment for four 
months, and any interested government or private agency or entity could 
have provided comments during that time. The NRC did not separately 
invite other Federal agencies, State Historic Preservation Officers, or 
Native American Tribes to comment on this rule. While the NRC did not 
separately invite these entities to comment on this rule, we note that 
in the LWA Rulemaking through which the amended ``construction'' 
definition was originally implemented with respect to some of the NRC's 
licensees, the NRC did informally contact several Federal agencies for 
the purpose of seeking their comments on the supplemental proposed LWA 
rule. These Federal agencies were the Council on Environmental Quality, 
the U.S. Environmental Protection Agency (EPA), the Federal Energy 
Regulatory Commission, and the U.S. Department of the Interior, Fish, 
and Wildlife Service.
    Comment: One commenter states that the proposed rule change is 
based on a false premise; i.e., that NEPA is a purely procedural 
statute.
    Response: As discussed in more detail in Section III, Discussion, 
the Federal judiciary has consistently held that NEPA is a procedural 
statute, and as such it cannot expand the statutory authority of the 
NRC to regulate non-radiological hazards.
2. LWA Process for Materials Licenses
    Four commenters provided comments in response to the NRC's question 
regarding whether an LWA process is appropriate. One commenter opposed 
such a process, claiming that an LWA process for materials licenses 
would result in segmentation of the major Federal action and would 
violate NEPA. The remaining three commenters were supportive of an LWA 
process.
    One commenter states that an LWA process would permit only limited 
construction activities and the environmental impacts associated with 
activities would be evaluated in an Environmental Impact Statement 
(EIS) before the LWAs would be issued. However, that commenter also 
suggests that the NRC lacks the statutory authority to restrict the 
construction activities of some materials licensees, although the 
commenter did not identify which materials licensees were affected. 
This commenter offered suggested changes to the proposed rule. As an 
initial matter, the commenter suggests that the NRC revise the proposed 
rule to eliminate the concept of ``commencement of construction.'' This 
particular proposal is based, in part, on the commenter's belief that 
the NRC lacks the statutory authority necessary to prohibit a materials 
license applicant from engaging in construction. As is discussed 
further in Section III, Discussion, the NRC disagrees with this 
proposition. The Atomic Energy Act of 1954, as amended (AEA), confers 
on the NRC the authority to establish by rule and regulation such 
standards as the NRC ``deems necessary or desirable'' to ensure the 
public health and safety from radiological hazards, including 
limitations on an applicant's or licensee's ability to engage in 
construction. See Sec.  161.b of the AEA. The NRC also disagrees with 
the commenter's claim that the term ``commencement of construction'' is 
no longer necessary for materials licenses. The term ``commencement of 
construction'' operates to place the materials license applicant on 
notice that a site preparation activity may also be considered as 
construction requiring prior NRC approval if it has a reasonable nexus 
to radiological health and safety or common defense and security. 
Accordingly, this final rule language will retain the definition for 
``commencement of construction.'' Finally, this commenter also 
suggested other minor textual changes to the proposed rule that the NRC 
does not believe necessary for the purposes of this rule.
    The remaining two commenters address an LWA-like process that would 
be applicable primarily to in situ uranium recovery (ISR) licensees. 
The commenters state as an initial proposition that Sec.  40.32(e) is 
not applicable to ISR licensees and is only applicable to conventional 
uranium mill operations which produce byproduct material as tailings. 
According to the commenters, ISRs do not produce large quantities of 
uranium mill tailings and do not require any tailings disposal areas 
because liquid waste can be disposed of using a Class I underground-
injection-control (UIC) deep-disposal well or evaporation ponds. The 
NRC disagrees with this rationale. The ISRs require a Part 40 license 
in order to operate a facility to process radioactive source material. 
The ISR process produces radioactive waste, in particular 11e.(2) 
byproduct material. As is discussed further in Section III of this 
Statement of Considerations (SOC), the NRC's prohibition against 
construction is applicable to all materials licenses issued under Parts 
30, 40, and 70. There is no exception for ISR licensees.
    With respect to the proposed rule, the commenters stated that the 
proposed rule is too narrowly interpreted to meet the needs of ISR 
licensees. The commenters propose that the list of items that are not 
construction be modified to include: Wellfields (injection, production/
extraction, and monitor well networks); administrative and other 
buildings and site roads and infrastructure intended to handle or 
process AEA material; and the central processing plant. The NRC is not 
adopting the commenters' proposal. Most of the listed construction 
activities when complete would be utilized to handle, use, process, or 
store radioactive material; therefore, such activities would be viewed 
as having a reasonable nexus to radiological health and safety or 
common defense and security, and hence would be considered 
construction. The only exception would be with respect to 
administrative and other buildings, and site roads and infrastructure. 
The commenter indicates that this category of actions would include not 
only construction of buildings that would eventually be used to handle 
AEA materials, but also construction of buildings and facilities that 
are not specific to the NRC license or radioactive materials. This 
latter

[[Page 56954]]

category of buildings and facilities may fall within the definition of 
site preparation activity, but ultimately the determining factor will 
be whether the proposed activity has a reasonable nexus to radiological 
health and safety or the common defense and security. Objectively, the 
NRC can indicate that construction of a building or facility intended 
to house or handle radioactive material would be considered a 
construction activity subject to the prohibition in Sec.  40.32(3).
    With respect to their proposed LWA-like process, these commenters 
also suggest a three-tier process that permits certain pre-licensing 
construction activities. Tier 1 would identify those construction 
activities that could occur prior to licensing without staff approval. 
Tier 2 would identify those construction activities that could occur 
prior to licensing with staff's approval. Tier 3 would identify those 
construction activities that could only occur after licensing.
    Given the diverse nature of materials licensees, the NRC would need 
to develop a thorough and comprehensive LWA program that would be 
available to all materials licensees to the extent practicable and 
adequate to ensure that the radiological health and safety of the 
public and common defense and security is protected. There is 
insufficient information on the record of this rulemaking from which 
the NRC can develop such a process or even determine whether such a 
process is feasible. Thus, the NRC is not establishing an LWA process 
for materials licenses at this time. The NRC may consider this issue in 
more detail in a future rulemaking.
3. Scope of NRC Authority
    Comment: One commenter states that a company clears land and drives 
piles for the specific purpose of constructing a materials processing 
facility; therefore, site preparation activities have a nexus to 
construction, and the activities fall within the NRC's jurisdiction 
under the AEA.
    Response: As discussed in Section III, Discussion, the NRC 
statutory authority is limited to ensuring protection of the 
radiological public health and safety and common defense and security. 
Certain activities identified as site preparation activities are 
outside of the scope of the NRC's authority. This rule makes clear that 
any activity related to the radiological public health and safety or 
common defense and security is subject to NRC review and regulations. 
Driving of piles is not specifically identified as a site preparation 
activity that can be conducted without an NRC license. The SOC on the 
LWA Rulemaking clarifies that the driving of piles for reactor 
licensees has a reasonable nexus to radiological health and safety, 
and/or common defense and security; and therefore would be considered 
construction subject to NRC authority for reactor licensees. (72 FR at 
57428; October 9, 2007). Whether the driving of piles is a site 
preparation activity for materials licensees (that is, whether the 
driving of piles has a reasonable nexus to radiological health and 
safety or common defense and security) would have to be determined on a 
case-by-case basis with consideration of which activities would be 
subject to the materials license.
    Comment: One commenter states that the NRC should exert 
jurisdiction over site preparation activities. The commenter concludes 
that if the NRC does not monitor and evaluate these actions, then no 
one will.
    Response: The NRC is unable to extend its jurisdiction beyond the 
authority granted in the AEA. As discussed in Section III, Discussion, 
the AEA expressly limits the NRC's authority to matters concerning the 
radiological public health and safety and common defense and security 
and non-radiological hazards to the extent such hazards result from the 
actual processing or possession of by-product material, and the 
Commission has determined that this authority does not extend to site 
preparation activities having no nexus to radiological health and 
safety or common defense and security. As previously stated, the 
private site preparation activities that occur, while not subject to 
NRC authority, may be subject to the regulatory authority of another 
Federal, State or local agency through either a permitting or licensing 
process. It is during these other processes that concerns pertaining to 
the site preparation activities undertaken by potential materials 
license applicants could be considered by other Federal, State or local 
entities, including the potential triggering of NEPA or state 
environmental review requirements as appropriate (for example, a Class 
III underground injection control permit may require State or EPA 
approval, and a stormwater discharge permit may require State 
approval).
    Comment: One commenter states that without NRC regulation and 
approval of site preparation activities to ensure nuclear projects are 
conducted conscientiously, materials license applicants will be free to 
engage in activities that have a reasonable nexus to radiological 
health and safety at will.
    Response: The commenter's assumption is at odds with the proposed 
rule and this final rule. This final rule expressly prohibits materials 
license applicants from taking any action, including site preparation 
activities, if the action has a reasonable nexus to radiological health 
and safety or the common defense and security.
    Comment: One commenter states that just over a year ago, the NRC 
staff was not in agreement with the ISR industry, yet now the NRC is 
proposing a rule which largely concedes industry's position; i.e., that 
it should be free of the constraints of Sec.  40.32(e).
    Response: The NRC disagrees. As discussed, ISRs are subject to the 
constraints of Sec.  40.32(e). This rule assures application of the 
Part 51 definition of construction consistently across NRC licensing 
actions and identifies certain site preparation activities that are not 
construction. The prohibition against construction of the licensed 
facility prior to the conclusion of the environmental review process 
remains applicable to all Part 40 materials licensees, including ISRs.
    Comment: One commenter states that the AEA includes responsibility 
for environmental impacts from construction activities at the facility 
and environmental impacts associated with non-radiological 
contaminates; therefore, the NRC regulations must not only be 
protective of the public health and safety and the environment but also 
include responsibilities for the impacts of non-radiological 
constituents, protection of cultural resources, and mitigation of any 
environmental impacts associated with the facility, not just those 
associated with radiological health and safety or the common defense 
and security.
    Response: The NRC acknowledges that NEPA provides a Federal mandate 
to evaluate environmental impacts associated with licensing actions. 
The NRC remains committed to fulfilling these responsibilities. This 
final rule does not change this commitment. Rather, this final rule 
identifies certain actions that are outside of the scope of the NRC's 
licensing authority and for which prior approval from the NRC is not 
required. Those actions that are beyond the scope of the NRC's 
authority may later be considered as part of the cumulative impact 
analysis for purposes of the NRC's NEPA review, if, at a later date, 
the NRC receives an application for an NRC license for a facility at 
the site or an amendment to modify an existing materials license.
    Comment: Several commenters state that Sec.  40.32(e) does not 
apply to ISR facilities, as these facilities do not

[[Page 56955]]

require the tailings management and disposal facilities required by 
conventional uranium milling facilities for operations and post-
operational long-term control of Sec.  11e.(2) byproduct material 
onsite.
    Response: The NRC disagrees with these comments. As is more fully 
discussed in subsection (2) of this section and in Section III, 
Discussion, ISR facilities are subject to the requirements of Sec.  
40.32(e).
    Comment: Several commenters question whether the NRC has statutory 
authority to license construction of materials and fuel cycle 
facilities.
    Response: As is more fully discussed in Section III, Discussion, 
the NRC has authority under the AEA to regulate construction activities 
of materials and fuel cycle facilities when those activities have a 
reasonable nexus to radiological health and safety or the common 
defense and security.
    Comment: One commenter asks that the NRC reconcile its decision in 
Nuclear Fuel Services, Inc. (Erwin, Tennessee), CLI-03-03, 57 NRC 239 
(2003) (Nuclear Fuel Services or NFS), with its regulations imposing 
prohibitions on construction contained in Sec. Sec.  30.33, 40.32, and 
70.23.
    Response: In Nuclear Fuel Services, an existing licensee, NFS, 
requested NRC authority to amend its license to permit the production 
of low enriched uranium (LEU) oxide, receipt and storage of LEU 
nitrate, downblending of high enriched uranium to LEU, and conversion 
of LEU nitrate to LEU oxide. The license amendment(s) resulted in the 
creation of an additional complex (three new buildings) on the 
licensee's site. The applicable regulation, Sec.  70.23(e), prohibits 
construction at the facility prior to conclusion of the environmental 
review. Violation of this prohibition could result in denial of the 
license amendments. The NRC staff had completed the environmental 
review for the first of the three license amendments. Several 
organizations jointly petitioned the NRC to enjoin all construction 
activities that had begun on the building associated with the first 
amendment, as well as enjoin NFS from commencing construction on the 
buildings associated with the remaining two license amendments. The 
Petitioners acknowledged that some of the activities for which it was 
seeking the injunction did not require NRC approval. The Commission 
treated the Petitioners' request as a petition for enforcement under 10 
CFR 2.206, the end result of which would be an enforcement action 
against the licensee--suspension of construction activities. Id. at 
245. The Commission, after finding it unnecessary to order NFS to cease 
all construction activities associated with the overall project, denied 
the Petitioners' request. In reaching this decision, the Commission 
questioned whether, in the circumstances of that case, it had the 
authority to halt NFS' pre-licensing construction. Id. at 246--250. The 
Commission further went on to opine:

    We, too, do not understand applicable NRC regulations or 
statutes to prohibit outright NFS's construction activities. But the 
Petitioners undoubtedly are correct that our rules ``contemplate 
that construction * * * should not begin until the NRC has completed 
its environmental review.'' To that effect, both 10 C.F.R. Sec.  
51.101(s) and 10 C.F.R. Sec.  70.23(a)(7) discourage construction 
activities until the Staff has completed an environmental review. * 
* * Thus, while not absolutely barring prelicensing construction, 
NRC rules provide a disincentive to early construction by raising 
the possibility of ultimate denial of the license application should 
an applicant move forward precipitously, despite open environment 
issues.
    In short, NFS proceeds at its own risk with construction 
activities. If NFS begins or continues to construct buildings 
associated with license amendments for which the Staff's 
environmental review is incomplete, NFS's construction may prove 
grounds for denial of one or more of the license amendments.

Id. at 246--247 (footnotes omitted).
    The decision in NFS is not contrary to the determinations in this 
rule, nor does this rule purport to amend the NRC's regulations to 
impose an outright prohibition on construction activities at the 
facilities of materials licensees and applicants. Rather, by this rule, 
the NRC is clarifying that, consistent with 10 CFR part 51, certain 
site preparation activities undertaken by materials license applicants 
do not constitute construction. With respect to those activities that 
could be considered construction, the same regulatory provisions that 
were applicable in NFS remain applicable today. As the Commission 
indicated in NFS, the NRC's regulations discourage materials license 
applicants and licensees applying for an amendment to an existing 
license from engaging in construction activities until after the NRC 
staff has completed its environmental review, and caution that should 
an applicant or licensee chose to act prior to that time, that action 
could result in denial of the license application. Nothing in this rule 
proposes to change or modify this ``discouragement.'' Although the 
industry and the NRC frequently refer to the discouraging provisions in 
Sec. Sec.  30.33(a)(5), 40.32(e), and 70.23(a)(7) as a prohibition for 
ease of reference, it is more of an admonition of the potential 
consequence of certain actions.
    As is discussed in more detail in Section III, Discussion, NEPA is 
largely a procedural statute, which requires that the NRC undertake 
environmental review of its licensing actions. In implementing the 
requirements of NEPA, the NRC has determined in Sec.  51.101(a)(2) that 
taking action that would have an adverse environmental impact, or would 
limit the choice of reasonable alternatives may be grounds for denial 
of a license, and includes within these designations the provisions in 
Sec. Sec.  30.33(a)(5), 40.32(e), and 70.23(a)(7). Furthermore, as is 
also discussed further in Section III, Discussion, Sec.  161.b of the 
AEA confers on the NRC the authority to establish by rule and 
regulation such standards as the NRC ``deems necessary or desirable'' 
to ensure the public health and safety from radiological hazards, 
including limitations on an applicant's or licensee's ability to engage 
in construction, which it did when it initially promulgated Sec. Sec.  
30.33(a)(5), 40.32(e), and 70.23(a)(7). See Sec.  161.b of the AEA. 
Although the AEA expressly grants the NRC the authority to license 
power reactors in separate construction and operational phases, this 
bi-furcated process is not contemplated within the AEA for materials 
licenses. Instead, licensing of materials users and their facilities is 
presumed to be an all-in-one action resulting in a single license 
authorizing both construction and operations. For example, with respect 
to enrichment facilities, the AEA indicates that the license being 
issued is one for construction and operation of a facility. See Sec.  
193 of the AEA. Therefore, while neither NEPA nor the AEA, on their 
face, specifically require that the NRC establish regulations regarding 
the timing of the commencement of construction activities by materials 
applicants and licensees, neither do they prohibit such regulations. 
Instead, the NRC has been given the authority to promulgate those rules 
and regulations which it finds necessary or desirable to fulfill its 
statutory obligation of ensuring the public health and safety from 
radiological hazards and conducting its regulatory licensing in a 
manner receptive to environmental concerns. See Sec.  51.10(b).
    It is also important to note that the Commission limited its 
finding in Nuclear Fuel Services to the circumstances of that case. 
Those circumstances consisted of a licensee that had submitted three 
amendments, NRC staff that had completed its

[[Page 56956]]

environmental review of the first amendment, and a licensee that had 
commenced construction on the building contemplated in the first 
amendment. In accordance with Sec.  70.23(e), this licensee waited 
until after the staff's environmental review to commence construction 
on the building covered by the license amendment. The petition to 
enjoin the construction activities was directed not only towards this 
activity, but any future construction activity related to the remaining 
two amendments. The Commission questioned the extent and nature of the 
prohibition of construction in the materials license context, but did 
not negate the intent or the effect of its regulations on such 
activity. The NRC's regulations today continue to contain a 
``prohibition'' against construction activity by materials licensees 
and applicants prior to the conclusion of the NRC staff's environmental 
review. This ``prohibition'' is unaffected by this final rule, as is 
the potential penalty for its violation. As previously indicated, this 
rule is primarily aimed at clarifying in the materials context when 
``construction'' will be considered to have commenced to determine 
which activities, if taken prior to the completion of the NRC's 
environmental review, could be grounds for denial of a license. As the 
Commission indicated in NFS, ``[i]t obviously makes sense for NRC 
licensees not to proceed with construction that, after a NEPA and 
licensing review, might prove fruitless. That is the purpose underlying 
Sec. Sec.  51.101 and 70.23(a)(7), which seek to discourage premature 
construction.'' Id. 250. These considerations continue to be equally 
applicable to the NRC's regulations as provided for in this rule.
4. Site Preparation Activities
    Comment: One commenter states that the proposed regulations will 
cause regulatory confusion. By way of example, the commenter indicates 
that the new regulations exempt ``excavation'' from the definition of 
``construction''; however, the excavation of an area for the creation 
of a uranium mill tailings impoundment must take place in an approved 
location and under specific construction and quality assurance 
requirements.
    Response: The answer to this comment depends upon the nature and 
purpose of the excavation. For example, if the materials license 
applicant is planning to excavate for the purpose of laying a 
foundation for a building that will be used to enrich uranium or for 
the purpose of creating a mill tailings impoundment, an evaporation 
pond, a tailings impoundments, a central processing plant, a satellite 
plant, or a pipeline that will be used to transport radioactive 
material where such excavation directly impacts the functions or the 
NRC's safety evaluation of these structures as related to radiological 
health and safety or the common defense and security, then these 
actions would be prohibited by virtue of the ``commencement of 
construction'' definition, which precludes site preparation activities 
that have a reasonable nexus to radiological health and safety or the 
common defense and security. The varied nature of materials facilities 
requires that the rules establishing the criteria for permitted site 
preparation activities be applied to the specific activity being taken 
by the materials license applicant so as to determine whether that 
specific activity impacts radiological health and safety or common 
defense and security. The scenario presented by the commenter may 
involve excavation activities that require prior approval. The scenario 
presented by the commenter may also involve excavation in an 
inappropriate location or in accordance with specifications that could 
ultimately result in the NRC's non-approval of the license application.
    Comment: One commenter states that pre-licensing activities should 
be limited and only occur when an applicant for a materials license has 
applied for and received specific permission to conduct such 
activities.
    Response: The current requirements arguably are inconsistent with 
Commission pronouncements on the limits of its AEA authority. Moreover, 
the NRC has in place inconsistent regulations regarding the definition 
of construction. It is inappropriate to leave in place inconsistent 
regulatory approaches.
    By identifying those site preparation activities that are not 
considered construction, the NRC avoids piecemeal regulation and 
licensing actions and brings more uniformity to the application of the 
NRC's regulatory authority to matters of construction. The NRC cannot 
``choose'' to extend its authority beyond the limits of the AEA and 
require applicants to get prior permission to perform activities that 
are not within our statutory authority.
    Comment: One commenter notes that although the proposed rule 
identifies specific activities that would not constitute construction 
under Parts 30, 40, and 70, it does not apply the reasonable nexus 
standard to affirmatively identify those construction activities that 
have a reasonable nexus to protecting the public.
    Response: The NRC agrees with the commenter that it did not 
affirmatively identify those construction activities that have a 
reasonable nexus to protecting the public. Radiological materials have 
the potential to be used in a number of different ways in 
manufacturing, construction, oil exploration, and medical uses, just to 
name a few. Because the nature of materials licenses and facilities has 
the potential to vary greatly, the NRC believes that it would be 
impractical and inadvisable to attempt to enumerate all activities that 
constitute construction for every possible materials licensee. Instead, 
the more prudent course adopted in this rule is to enumerate the 
attributes for determining those activities that are not construction 
and to establish criteria that may be used by materials license 
applicants to determine whether a contemplated action would constitute 
construction; i.e., if the contemplated action has a rational and 
direct link to the radiological use of the proposed facility.
5. Miscellaneous
    Comment: Several commenters state that the proposed rule would 
allow for significant financial and structural investment on the part 
of the industry that would prejudice any subsequent licensing 
challenges or licensing conditions that the agency might deem 
appropriate.
    Response: Any site preparation activities that an applicant chooses 
to engage in are done so at the applicant's own risk. The NRC retains 
complete discretion to deny a license application or to impose 
licensing conditions, as needed. Previously expended resources do not 
enter into the NRC's decision as to whether or not a license 
application meets regulatory requirements.
    Comment: One commenter states that the proposed regulations fail to 
state whether the installation of monitoring wells, a significant 
component of uranium recovery facilities, including in situ leach 
facilities, is a ``construction'' activity or is exempted from the 
definition of ``construction.''
    Response: Installation of monitoring wells that are only intended 
to be used to collect background data or perform background aquifer 
testing would be permissible. However, monitoring wells that are part 
of an ISR wellfield monitoring network would not be permissible because 
such facilities are necessary to ensure the radiological health and 
safety of the public and that the licensed facility is operating within 
standards determined by the NRC; therefore, these wells have a 
reasonable nexus to radiological health and safety

[[Page 56957]]

and do not qualify as a site preparation activity.
    By virtue of the exemption process that exists in Part 40, the NRC 
has had the opportunity to identify some activities that have a 
reasonable nexus to radiological health and safety and would therefore 
constitute construction. For instance, most recently in response to an 
exemption request submitted by Lost Creek ISR, LLC (ADAMS Accession No. 
ML091940438) the NRC has previously determined that certain activities 
are ``construction,'' including construction of the processing plant, 
which serves to concentrate, precipitate, and dry yellowcake; and 
construction of any structure or system to manage waste, such as deep 
disposal wells (ADAMS Accession No. ML093350365).
    Comment: One commenter states that the term ``reasonable nexus'' is 
vague and will lead to regulatory conflict and confusion.
    Response: The NRC disagrees. An activity or action has a 
``reasonable nexus'' to radiological health and safety or the common 
defense and security if that activity or action has a rational, direct 
link to ensuring that a licensed materials facility is operating in 
accordance with the NRC's regulations and in a manner that protects the 
public health and safety or the common defense and security from 
radiological hazards. Given the varied nature of activities involving 
materials licensing, the appropriate method of determining the 
application of this rule is to apply these standards to the specific 
proposed action rather than to attempt to list activities that are 
universally defined as falling within or outside of the definition of 
construction.
    Comment: Several commenters ask how the proposed rule will affect 
the NRC compliance with other Federal laws such as the Bald Eagle 
Protection Act of 1940, the Endangered Species Act of 1973, the Fish 
and Wildlife Coordination Act of 1934, the Migratory Bird Conservation 
Act, and the National Historic Preservation Act of 1966, as amended 
(NHPA).
    Response: The NRC will remain in compliance with other Federal 
laws. As required by those laws, the NRC will evaluate its licensing 
action to ensure that the action is appropriate within the confines of 
the NRC's responsibilities under applicable statutes. As previously 
explained, the NRC's licensing actions, consistent with the limitations 
of the AEA, do not include site preparation activities that are not 
related to the radiological health and safety of the public or the 
common defense and security.
    Comment: One commenter asks whether site preparation activities are 
part of the Federal undertaking that is subject to the NHPA.
    Response: The NRC views site preparation activities with no nexus 
to radiological health and safety or common defense and security as 
private actions and would not be subject to NHPA through the NRC. Under 
the NHPA, an undertaking is ``a project, activity, or program funded in 
whole or in part under the direct or indirect jurisdiction of a Federal 
agency, including: (A) Those carried out by or on behalf of the agency; 
(B) those carried out with Federal financial assistance; (C) those 
requiring a Federal permit or license, or approval; and (D) those 
subject to State or local regulation administered pursuant to a 
delegation or approval by a Federal agency.'' The site preparation 
activities identified in the rule do not fall within this definition 
and would therefore not be considered a Federal undertaking subject to 
NHPA. It may be possible that the site preparation activities require 
other Federal approvals. For instance, if the site preparation 
activities occur on Bureau of Land Management land, this could trigger 
NHPA responsibilities or responsibilities under other statutes through 
approvals by other Federal agencies.
    It would, however, be prudent of a materials license applicant that 
is engaging in site preparation activities to be mindful of the NRC's 
obligations under the NHPA, including the requirements to identify any 
historic properties within the area of potential effects, to consult 
with the State Historic Preservation Officer (SHPO) and any other 
relevant stakeholders (such as Native American Tribes), and to attempt 
to resolve any adverse effects upon such historic properties. These 
procedural requirements must be satisfied by the NRC before it can 
approve the subject application (assuming all radiological health and 
safety and common defense and security requirements are met). For 
example, Sec.  110k. of the NHPA requires that before granting a 
license the NRC ensure that an applicant has not ``intentionally 
significantly adversely affected a historic property to which the 
[license] would relate, or having legal power to prevent it, allowed 
such significant adverse effect to occur * * *'' with the intent of 
avoiding NRC review of the effect of the proposed licensing action on 
``any district, site, building, structure, or object that is included 
in or eligible for inclusion in the National Register.'' Section 106 of 
the NHPA. Accordingly, a materials license applicant should proceed 
carefully when engaging site preparation activities undertaken lest the 
outcome impacts the NRC's ability to issue a license.
    In order to facilitate and expedite the NRC's NHPA process, 
materials license applicants are encouraged to contact any potential 
stakeholders who may have an interest in any historic properties on or 
near the site and to take steps to prevent or minimize any disturbance 
to such historic properties. In this regard, materials license 
applicants are also encouraged, upon the discovery of previously 
unknown historic properties, archeological resources or other cultural 
artifacts, to cease any such activities that may disturb or damage such 
resources and, inventory and evaluate the discovery in accordance with 
accepted historic preservation and archeological practices (see the 
U.S. Secretary of the Interior's Standards and Guidelines for 
Identification at http://www.nps.gov/history/local-law/arch_stnds_2.htm).
    Comment: One commenter asks whether the NRC will consider the 
effect of site preparation activities on minority or low income people 
before the activities and damage occur.
    Response: Under this rule, site preparation activities that fall 
outside the NRC's scope of authority would not be subject to prior 
review by the NRC. However, these site preparation activities might be 
subject to review by other State or Federal authorities. However, if 
there is an application for an NRC license following site preparation 
activities that requires that an EIS be prepared, then the NRC will 
evaluate environmental justice issues in the EIS in accordance with the 
guidance provided in the NRC's ``Policy Statement on the Treatment of 
Environmental Justice Matters in NRC Regulatory and Licensing 
Actions.'' (69 FR 52040; August 24, 2004). Under this scenario, when 
evaluating environmental justice issues in the EIS, the NRC would then 
consider the environmental impacts of the proposed project activities 
on low-income or minority populations. The NRC would conduct any such 
evaluation in a manner consistent with the NRC's normal consideration 
of these impacts in licensing actions.
    Comment: One commenter asks whether the NRC will provide guidance 
regarding the definitions contained in the proposed rule.
    Response: The NRC will provide guidance on the definitions in the 
final rule.

[[Page 56958]]

III. Discussion

A. NRC Authority Pursuant to the AEA

    Comments received on this rule have questioned whether the NRC is 
unnecessarily limiting its authority to matters concerning 
``radiological'' health and safety or common defense and security 
considerations. The majority of the commenters opposed to this rule 
believe that the AEA confers much broader authority to the NRC to 
consider a broader range of health and safety or common defense and 
security concerns.
    As indicated in the proposed rule, the NRC has determined that the 
AEA does not authorize the NRC to require an applicant for an NRC 
license to obtain the NRC's permission before undertaking site 
preparation activities that do not implicate radiological health and 
safety or common defense and security considerations. This 
interpretation is not new and has been reviewed and upheld repeatedly 
by the Courts. In 1969, the U.S. Court of Appeals for the First Circuit 
reviewed this issue in New Hampshire v. the Atomic Energy Commission 
[AEC], 406 F.2d 170 (1st Cir. 1969), cert. denied, 395 U.S. 962 (1969). 
The First Circuit, after noting that the scope of the term ``public 
health and safety'' was not specifically defined in the statute, 
reviewed the legislative history. Based upon its review, the First 
Circuit concluded that the AEC's (the NRC's predecessor agency) 
regulatory authority was limited to the scrutiny of and protection 
against radiation hazards. More recently, the U.S. Court of Appeals for 
the District of Columbia Circuit similarly agreed that the AEA limits 
the NRC's consideration of health and safety to the special hazards of 
radioactivity. People Against Nuclear Energy v. Nuclear Regulatory 
Commission, 678 F.2d 222 (D.C. Cir. 1982), rev'd on other grounds, 
Metropolitan Edison Company v. People Against Nuclear Energy, 460 U.S. 
766 (1983).
    It is important to note that while the Uranium Mill Tailings 
Radiation Control Act of 1978 (UMTRCA) amended the AEA to give the NRC 
the authority necessary ``to protect the public health and safety and 
the environment from radiological and non-radiological hazards 
associated with the processing and with the possession of such material 
* * *'' with respect to certain byproduct material (Sec.  84.a.(1) of 
the AEA), the NRC's authority over non-radiological hazards is limited 
to those hazards specifically associated with the processing and 
possession of byproduct material. Contrary to some of the commenters 
assertions, UMTRCA did not operate to expand the NRC's jurisdiction to 
private actions not specifically associated with the processing or 
possession of radioactive material.
    A second set of commenters also questions whether the NRC has 
authority to impose a prohibition against construction on materials 
licensees. While the NRC's authority to protect the public health and 
safety may be limited to radiological hazards, its primary authority 
under the AEA is grounded in its authority to grant, deny and condition 
licenses for certain nuclear materials and facilities. With respect to 
materials licenses, the NRC has authority over the manufacture, 
production, transfer, possession, use, ownership, import and export of 
radioactive material. See AEA Sec. Sec.  51, 53, 61, 62, 63, and 81. 
Section 161.b authorizes the NRC to--

    Establish by rule, regulation, or order, such standards and 
instructions to govern the possession and use of special nuclear 
material, source material, and byproduct material as the Commission 
may deem necessary or desirable to promote the common defense and 
security or to protect [the radiological] health or to minimize 
danger to life or property [from radiological hazards].

    It is this grant of authority that allows the NRC to establish as a 
condition of licensing that materials license applicants not engage in 
construction impacting common defense and security or public health and 
safety with respect to radiological hazards prior to the completion of 
the environmental review for the licensed facility.

B. NRC Compliance With NEPA and Other Environmental Statutes

    As previously indicated, the AEA does not authorize the NRC to 
require an applicant to obtain permission before undertaking site 
preparation activities that do not implicate radiological health and 
safety or common defense and security. These activities, being outside 
of the scope of the NRC's jurisdiction are, therefore, considered to be 
non-Federal actions, at least with respect to the NRC's licensing 
actions. Such activities might trigger other Federal authority if, for 
example, they were to take place on Federal lands in accordance with a 
Bureau of Land Management lease. As set forth in the Statement of 
Consideration for the proposed rule, the NRC believes that this rule is 
fully compliant with the requirements of NEPA. The NEPA obligations and 
responsibilities arise only when the Commission undertakes a Federal 
action within the NRC's statutory responsibility. See Department of 
Transportation, et al. v. Public Citizen, et al., 541 U.S. 752, 771 
(2004) (``[A]n agency has no ability to prevent a certain effect due to 
its limited statutory authority over the relevant action.'')
    Contrary to the statements of some commenters, the courts have 
consistently determined that NEPA is a procedural statute, and as such 
it cannot and does not expand the NRC's jurisdiction beyond the scope 
of the AEA; i.e., to give the NRC authority to decide non-radiological 
public health and safety issues. See Vermont Yankee Nuclear Power Corp 
v. Natural Resources Defense Council, 435 U.S. 519, 558 (1978) (``NEPA 
does set forth significant substantive goals for the Nation, but its 
mandate to the agencies is essentially procedural.''); see also Natural 
Resources Defense Council v. Environmental Protection Agency, 822 F.2d 
104, 129 (D.C. Cir 1987) (``NEPA, as a procedural device, does not work 
a broadening of the agency's substantive powers''). This determination 
was also explained in the LWA Rulemaking, in which the NRC stated the 
following in its statements of consideration:

    [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.

(72 FR 57416, 57427; October 9, 2007).
    The commenters also claim that the NRC is inappropriately 
segmenting the site preparation activities from the licensed facility 
construction activities at the site to avoid NEPA. This is not the 
case. Generally, the NEPA segmentation problem arises when the 
environmental impacts of Federal actions are evaluated in a piecemeal 
fashion and, as a result, the comprehensive environmental impacts of 
the entire Federal action are never considered or are only considered 
after the agency has committed itself to continuation of the project. 
Another associated segmentation problem arises when pieces of a Federal 
action are evaluated separately and, as a result, none of the 
individual pieces are considered ``major Federal actions'' requiring an 
EIS.
    The site preparation activities identified in the rule are 
activities that any private entity can undertake on

[[Page 56959]]

property that they own or to which they have legal rights. Site 
preparation activities are separate and independent from construction 
of any aspect of the proposed facility that would be directly related 
to the manufacture, production, use, transfer, or ownership of an NRC-
licensed material. The question of whether site preparation activities 
are impermissibly segmented from the facility construction turns on 
whether these activities are viewed as ``connected actions.'' The 
courts have determined that ``projects which have ``independent 
utility'' are not ``connected actions.'' Utahns for Better 
Transportation, et al. v. U.S. Dep't of Transp., et al., 305 F.3d 1152, 
1183 (10th Cir. 2002). Whether two actions have independent utility 
depends on ``whether each of two projects would have taken place with 
or without the other * * *'' Wilderness Workshop, et al. v. U.S. Bureau 
of Land Mgmt., et al., 531 F.3d 1220, 1229 (10th Cir. 2008). In this 
rule, site preparation activities are independent of facility 
construction. As such, site preparation activities do not violate 
NEPA's prohibition against segmentation.
    While the effects of any non-Federal site preparation activities 
undertaken by a materials license applicant will not be considered 
effects of the NRC's licensing action, the effects of the site 
preparation activities would be considered as part of the NRC's 
cumulative impact analysis performed during the environmental review of 
the licensing action. Cumulative impacts are defined as the ``impact on 
the environment that results from the incremental impact of the action 
when added to other past, present, and reasonably foreseeable future 
actions.'' 40 CFR 1508.7. In accordance with its guidance on this 
issue, the NRC staff's cumulative impacts analysis will identify and 
describe effects of past, proposed, and reasonably foreseeable future 
actions to the extent that they are relevant and useful in determining 
the magnitude and significance of the effects of the proposed NRC 
licensing action. See NUREG-1748, ``Environmental Review Guidance for 
Licensing Actions Associated with NMSS Programs.'' Similar to the LWA 
Rulemaking, the NRC is revising Sec.  51.60 to require that the 
environmental report submitted with an application for a materials 
license or an amendment to a materials license include a description of 
the site preparation activities undertaken at the proposed site; a 
description of the impacts of such site preparation activities; and an 
analysis of the cumulative impacts of the site preparation activities 
on the proposed licensing action.
    With respect to the comments regarding other environmental 
protection statutes, the NRC remains committed to fulfilling its 
obligations under these statutes during its review of any license 
action. It is important to note, however, that each of the statutes 
applies specifically to the NRC only to the extent that an activity 
comes within the NRC's licensing authority or is a ``Federal 
undertaking'' by the NRC. For the same reasons previously stated, site 
preparation activities are not part of the NRC licensing action process 
and as such do not constitute either a ``major Federal action,'' or a 
``Federal undertaking'' by the NRC.

IV. Section-by-Section Analysis

Section 30.4, Definitions

    Section 30.4 is amended by adding definitions for the terms 
``construction'' and ``commencement of construction.''

Section 30.33, General Requirements for Issuance of Specific Licenses

    The amendment to Sec.  30.33(a)(5) deletes the definition of 
``commencement of construction'' contained in the last two sentences of 
the paragraph. ``Commencement of construction'' is now defined in Sec.  
30.4.

Section 36.2, Definitions

    Section 36.2 is amended by adding definitions for the terms 
``construction'' and ``commencement of construction.''

Section 36.13, Specific Licenses for Irradiators

    Section 36.13(a) is amended to exclude Sec.  30.33(a)(5) as a 
requirement for an applicant to receive a specific license under this 
part. The provision in Sec.  30.33(a)(5) pertains to ``commencement of 
construction.'' ``Commencement of construction'' provisions for Part 36 
licenses are already contained in Sec.  36.15.

Section 36.15, Start of Construction

    The amendment in Sec.  36.15 revises the section title ``Start of 
construction'' to ``Commencement of construction'' and deletes the 
definition of ``construction.'' The definitions of ``commencement of 
construction'' and ``construction'' are now defined in Sec.  36.2.

Section 39.13, Specific Licenses for Well-Logging

    Section 39.13 is amended to change the reference to Sec.  70.33 to 
Sec.  70.23.

Section 40.4, Definitions

    Section 40.4 is amended by adding definitions for the terms 
``construction'' and ``commencement of construction.''

Section 40.32, General Requirements for Issuance of Specific Licenses

    The amendment to Sec.  40.32(e) deletes the definition of 
``commencement of construction'' contained in the last two sentences of 
the paragraph. ``Commencement of construction'' is now defined in Sec.  
40.4.

Section 51.4, Definitions

    The amendment to Sec.  51.4 clarifies that the definition of 
``construction'' applies to materials licenses.

Section 51.45, Environmental Report

    The amendment to Sec.  51.45(c) corrects the reference to Sec.  
51.4, and describes additional information that the environmental 
report for materials licenses should contain.

Section 70.4, Definitions

    Section 70.4 is amended by adding definitions for the terms 
``construction'' and ``commencement of construction.''

Section 70.23, Requirements for the Approval of Applications

    The amendment to Sec.  70.23(a)(7) deletes the definition of 
``commencement of construction'' contained in the last two sentences of 
the paragraph. ``Commencement of construction'' is now defined in Sec.  
70.4.

Section 150.31, Requirements for Agreement State Regulation of 
Byproduct Material

    Section 150.31(b)(3)(iv) is revised to include definitions for 
``commencement of construction'' and ``construction.''

V. 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), this final rule is a matter of compatibility between the 
NRC and Agreement States, thereby providing consistency among the 
Agreement States and the NRC's requirements. The 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 the NRC. Category B includes

[[Page 56960]]

program elements that have significant direct transboundary 
implications and should be essentially identical to those of the NRC.
    Compatibility Category C includes those program elements that do 
not meet the criteria of Categories A or B but nonetheless are 
consistent with an Agreement State's efforts to avoid conflict, 
duplication, gaps, or other conditions that would jeopardize an orderly 
pattern in the regulation of agreement material on a nationwide basis. 
Therefore, the program elements in Compatibility Category C should be 
adopted by Agreement States.
    Compatibility Category D includes 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 consists of 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 consist of 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 this final rule in accordance with the 
procedure established within Part III, ``Categorization Process for NRC 
Program Elements,'' of Handbook 5.9 to 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 amendments are categorized in Table 1.

                                                          Table 1--Compatibility for Final Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Compatibility category
     NRC Regulation  section             Change            Section title    ----------------------------------------------------------------------------
                                                                                            Existing                                 New
--------------------------------------------------------------------------------------------------------------------------------------------------------
30.4............................  Amend...............  Definition--Commenc  D....................................  D.
                                                         ement of
                                                         Construction--Para
                                                         graph 1.
30.4............................  New.................  Definition--Commenc  .....................................  NRC.
                                                         ement of
                                                         Construction--Para
                                                         graph 2.
30.4............................  New.................  Definition--Constru  .....................................  D.
                                                         ction--Paragraphs
                                                         1-8 and 9(i).
30.4............................  New.................  Definition--Constru  .....................................  NRC.
                                                         ction--Paragraph
                                                         9(ii).
30.33(a)(5).....................  Amend...............  General              D....................................  D.
                                                         requirements for
                                                         issuance of
                                                         specific licenses.
36.2............................  New.................  Definition--Commenc  .....................................  D.
                                                         ement of
                                                         Construction--Para
                                                         graph 1.
36.2............................  New.................  Definition--Commenc  .....................................  NRC.
                                                         ement of
                                                         Construction--Para
                                                         graph 2.
36.2............................  New.................  Definition--Constru  .....................................  D.
                                                         ction--Paragraphs
                                                         1-8 and 9(i).
36.2............................  New.................  Definition--Constru  .....................................  NRC.
                                                         ction--Paragraph
                                                         9(ii).
36.13(a)........................  Amend...............  Specific licenses    H&S..................................  H&S.
                                                         for irradiators.
36.15...........................  Amend...............  Commencement of      D....................................  D.
                                                         construction.
39.13(a)........................  Amend...............  Specific licenses    H&S..................................  H&S.
                                                         for well-logging.
40.4............................  Amend...............  Definition--Commenc  C--States with authority to regulate   C--States with authority to regulate
                                                         ement of             uranium mill activities (11e.(2)       uranium mill activities (11e.(2)
                                                         Construction--Para   byproduct material).                   byproduct material).
                                                         graph 1.
                                                                             D--States without authority..........  D--States without authority.
40.4............................  New.................  Definition--Commenc  .....................................  NRC.
                                                         ement of
                                                         Construction--Para
                                                         graph 2.
40.4............................  New.................  Definition--Constru  .....................................  C--States with authority to regulate
                                                         ction--Paragraphs                                           uranium mill activities (11e.(2)
                                                         1-8 and 9(i).                                               byproduct material).
                                                                             D--States without authority..........
40.4............................  New.................  Definition--Constru  .....................................  NRC.
                                                         ction--Paragraph
                                                         9(ii).
40.32(e)........................  Amend...............  General              H&S--States with authority to          H&S--States with authority to
                                                         requirements for     regulate uranium mill activities       regulate uranium mill activities
                                                         issuance of          (11e.(2) byproduct material).          (11e.(2) byproduct material).
                                                         specific licenses.
                                                                             NRC--States without authority........  NRC--States without authority.
51.4............................  Amend...............  Definitions........  NRC..................................  NRC.
51.45...........................  Amend...............  Environmental        NRC..................................  NRC.
                                                         Report--Paragraph
                                                         (c).
70.4............................  Amend...............  Definition--Commenc  D....................................  D.
                                                         ement of
                                                         Construction--Para
                                                         graph 1.
70.4............................  New.................  Definition--Commenc  .....................................  NRC.
                                                         ement of
                                                         Construction--Para
                                                         graph 2.
70.4............................  New.................  Definition--Constru  .....................................  D.
                                                         ction--Paragraphs
                                                         1-8 and 9(i).
70.4............................  New.................  Definition--Constru  .....................................  NRC.
                                                         ction--Paragraph
                                                         9(ii).
70.23(a)(7).....................  Amend...............  Requirements for     NRC..................................  NRC.
                                                         the approval of
                                                         applications.

[[Page 56961]]

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

VI. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995 (Pub. 
L. 104-113), requires that Federal agencies use technical standards 
that are developed or adopted by voluntary consensus standards bodies, 
unless the use of such a standard is inconsistent with applicable law 
or otherwise impractical. In this final rule, the NRC is clarifying 
those activities that constitute ``construction'' for materials 
licenses. This action does not constitute the establishment of a 
standard that contains generally applicable requirements.

VII. Environmental Impact--Categorical Exclusion

    The NRC has determined that this final rule is the type of action 
described as a categorical exclusion in 10 CFR 51.22(c)(1), (c)(2), and 
(c)(3)(i). Section 51.22(c)(1) provides a categorical exclusion for 
amendments to various parts of the NRC's regulations, including Part 
150. Section 51.22(c)(2) provides a categorical exclusion for 
amendments to the NRC's regulations which are of a corrective or minor 
or nonpolicy nature and do not substantially modify existing 
regulations. Section 51.22(c)(3)(i) provides a categorical exclusion 
for amendments to any part of the NRC's regulations which relate to 
procedures for filing and reviewing applications, amendments, or 
renewals for licenses or other forms of permission. In this final rule, 
the amendments to Parts 30, 40, 36, and 70 relate to the procedures for 
reviewing applications, amendments, and renewals of materials licenses 
subject to these parts. The amendments to Part 39 correct a 
typographical error, and the remaining amendments are to Part 150. 
Because these amendments belong to a category of actions which the NRC 
has previously found do not individually or cumulatively have a 
significant effect on the human environment, neither an environmental 
impact statement nor an environmental assessment has been prepared for 
this rule.

VIII. Paperwork Reduction Act Statement

    This final 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 (OMB), 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.

IX. Regulatory Analysis

    A 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 the NRC for compliance. Also, 
this rule does not involve an exercise of NRC discretion and therefore 
does not necessitate preparation of a regulatory analysis.

X. Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), the NRC certifies that this rule will not have a significant 
economic impact on a substantial number of small entities. This rule 
affects only materials licensees. The companies that apply for a 
license in accordance with the regulations affected by this 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).

XI. Backfit Analysis

    The NRC has determined that this final rule is not subject to any 
of the backfitting provisions in 10 CFR 50.109, 70.76, 72.62, 76.76, or 
the finality provision of 10 CFR part 52. The amendments in this 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; therefore, a backfit analysis is not 
required. With respect to Parts 30, 36, 39, and 40 licensees, the NRC 
has determined that there are no provisions for backfit in these parts; 
therefore, the NRC has not prepared a backfit analysis or any other 
documentation for this final rule.

XII. Congressional Review Act

    In accordance with the Congressional Review Act of 1996, the NRC 
has determined that this action is not a major rule and has verified 
this

[[Page 56962]]

determination with the Office of Information and Regulatory Affairs of 
OMB.

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 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 
control and accounting, 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. 552 and 553; the NRC is adopting 
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

0
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. 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).


0
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 other 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.
* * * * *

0
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 Programs or his/her 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. Commencement of 
construction as defined in Sec.  30.4 may include non-construction 
activities if the activity has a reasonable nexus to radiological 
safety and security.
* * * * *

[[Page 56963]]

PART 36--LICENSES AND RADIATION SAFETY REQUIREMENTS FOR IRRADIATORS

0
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).


0
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 other 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.
* * * * *

0
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.
* * * * *

0
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 the 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. Commencement of construction as defined in 
Sec.  36.2 may include non-construction activities if the activity has 
a reasonable nexus to radiological safety and security.

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

0
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).


0
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

0
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. 109-59, 119 Stat. 594 (2005).
    Section 40.7 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 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).


0
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 other 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 wells associated with 
radiological operations (e.g., production, injection, or monitoring 
well networks associated with in-situ recovery or other facilities), 
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:

[[Page 56964]]

    (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.
* * * * *


0
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/her 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. Commencement of construction as defined in Sec.  
40.4 may include non-construction activities if the activity has a 
reasonable nexus to radiological safety and security.
* * * * *

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

0
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)).


0
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 (1)(i) of this definition, and does not mean the activities 
in paragraph (1)(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

[[Page 56965]]

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.
* * * * *

0
15. Section 51.45, paragraph (c) is revised to read as follows:


Sec.  51.45  Environmental report.

* * * * *
    (c) Analysis. The environmental report must include an analysis 
that considers and balances the environmental effects of the proposed 
action, the environmental impacts of alternatives to the proposed 
action, and alternatives available for reducing or avoiding adverse 
environmental effects. An environmental report required for materials 
licenses under Sec.  51.60 must also include a description of those 
site preparation activities excluded from the definition of 
construction under Sec.  51.4 which have been or will be undertaken at 
the proposed site (i.e., those activities listed in paragraphs (2)(i) 
and (2)(ii) in the definition of construction contained in Sec.  51.4); 
a description of the impacts of such excluded site preparation 
activities; and an analysis of the cumulative impacts of the proposed 
action when added to the impacts of such excluded site preparation 
activities on the human environment. An environmental report prepared 
at the early site permit stage under Sec.  51.50(b), limited work 
authorization stage under Sec.  51.49, construction permit stage under 
Sec.  51.50(a), or combined license stage under Sec.  51.50(c) must 
include a description of impacts of the preconstruction activities 
performed by the applicant at the proposed site (i.e., those activities 
listed in paragraph (1)(ii) in the definition of ``construction'' 
contained in Sec.  51.4), necessary to support the construction and 
operation of the facility which is the subject of the early site 
permit, limited work authorization, construction permit, or combined 
license application. The environmental report must also contain an 
analysis of the cumulative impacts of the activities to be authorized 
by the limited work authorization, construction permit, or combined 
license in light of the preconstruction impacts described in the 
environmental report. Except for an environmental report prepared at 
the early site permit stage, or an environmental report prepared at the 
license renewal stage under Sec.  51.53(c), the analysis in the 
environmental report should also include consideration of the economic, 
technical, and other benefits and costs of the proposed action and its 
alternatives. Environmental reports prepared at the license renewal 
stage under Sec.  51.53(c) need not discuss the economic or technical 
benefits and costs of either the proposed action or alternatives except 
if these benefits and costs are either essential for a determination 
regarding the inclusion of an alternative in the range of alternatives 
considered or relevant to mitigation. In addition, environmental 
reports prepared under Sec.  51.53(c) need not discuss issues not 
related to the environmental effects of the proposed action and its 
alternatives. The analyses for environmental reports shall, to the 
fullest extent practicable, quantify the various factors considered. To 
the extent that there are important qualitative considerations or 
factors that cannot be quantified, those considerations or factors 
shall be discussed in qualitative terms. The environmental report 
should contain sufficient data to aid the Commission in its development 
of an independent analysis.
* * * * *

PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

0
16. 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. 109-58, 119 Stat. 194 (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 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).

0
17. 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 other 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

[[Page 56966]]

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.
* * * * *

0
18. 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/her 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. Commencement of construction 
as defined in section 70.4 may include non-construction activities if 
the activity has a reasonable nexus to radiological safety and 
security.
* * * * *

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

0
19. 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).

0
20. 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)(iii) of this section. As used in this paragraph:
    (A) The term commencement of construction means taking any action 
defined as ``construction'' or any other 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 have a reasonable nexus 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 which has no reasonable nexus to 
radiological health and safety.
* * * * *

    Dated at Rockville, Maryland, this 9th day of September 2011.

    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2011-23628 Filed 9-14-11; 8:45 am]
BILLING CODE 7590-01-P