ML20212B775
| ML20212B775 | |
| Person / Time | |
|---|---|
| Issue date: | 08/30/1999 |
| From: | Dicus G, The Chairman NRC COMMISSION (OCM) |
| To: | Vietticook A NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20212B772 | List: |
| References | |
| SECY-99-200-C, NUDOCS 9909210002 | |
| Download: ML20212B775 (10) | |
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NOTATION VOTE RESPONSE SHEET TO: Annette Vietti-Cook, Secretary FROM: CHAIRMAN DICUS
SUBJECT:
SECY-99-200 - FEDERAL REGISTER NOTICE RESPONDING TO PUBLIC COMMENTS RECEIVED ON AN EMERGENCY FINAL RULE FOR FISSILE MATERIAL EXEMPT SHIPMENTS Approved N Disapproved Abstain Not Participating COMMENTS: g g A bo w cu M ATUR O J
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e e Chairman Dicus' comments on SECY-99-200: l l approve the proposed FRN subject to the following modifications.
In considering the merits of the staff's proposed plan, including the folding of corrective I amendments to the emergency rule into the larger revision of Part 71 to conform it to the IAEA I ST-1 standards, I took note of both tus need for supporting data for the corrective amendment and staff's difficulty in obtaining this information from the industry. Absent any demonstrated health and safety need for the amendment, folding the amendment into the larger revision would be the most efficient use of staff's limited resources. Staff should proceed with its plan but the FRN should be modified to note the need by NRC for data documenting the regulatory cost of the emergency rule to the extent that it is not necessary and to solicit such information. This approach would place the industry on notice that the data is needed.
Also on p.16 of the FRN, a commenter stated that the wording of the rule is not clear with respect to application of a limit to deuterium. The staff response clarifies the intent of the rule but does not state whether staff intends to amend the existing rule language to remove the ambiguity. The response should be modified to indicate that this will be done at the time the corrective amendment is proposed.
Additional editorial comments are attached.
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[7590-01-P]
NUCLEAR REGULATORY COMMISSION 10 CFR Part 71 RIN: 3150-AF58 Fissile Material Shipments and Exemptions; Response to Comments AGENCY: Nuclear Regulatory Commission.
l ACTION: Direct final rule response to public comments.
SUMMARY
- The Nuclear Regulatory Commissbn (NRC) published on February 10,1997; 62 FR 5907, an emergency final rule which amended its regulations regarding the shipment of exempt quantities of fissile material and the shipment of fissile material under a general license.
l The NRC issued the emergency final rule without a notice of proposed rulemaking and the l accompanying opportunity for public comment prior to the rule's finalization, because NRC found good cause to dispense with these steps as being impracticable and contrary to the j 4,pt 5
public interest, as permitted under thehnistrative Procedure anding the final status of the rule, NRC solicited public comments on the rule during a 30-day comment period following publication in accordance with the Commission's regulations. This notice contains the l NRC response to public comments received on the rule. >
FOR FURTHER INFORMATION CONTACT: Naiem S. Tanious, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6103, e-mail nst@nrc. gov.
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f tha regulations did not require a transport index for each package or require shipment '
by exclusive use. The latter would restrict the ability to use common carriers, while requiring i a
trrnsport index would negate much of the advantage gained by the exemption. Consig j
limits are enforceable and represent a practical operating limit that would prevent the pot
,l unsafe accumulation of fissile exempt materials during shipment.
The NRC addressed these regulatory defects by issuing the emergency final rule in f
Frbruary 1997. The final rule amended $9 71.18,71.22, and 71.53 by restricting f
fissile material in a shipment - if trace quantities of special moderating materials (i.e., b graphite, or deuterium) were present. The final rule also restricted the quantity of material shipped under a general license or exempt shipment to a consignment limit of 'n
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grsater than 400 grams.
The NRC issued the emergency final rule without a notice of proposed rulemaking p
opportunity for public comment prior to finalization because the Commission fou for dispensing with these steps as t.eing impracticable and contrary gfhE to the publi
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ths good cause tests for omitting notice and comment of thedIdministrative Proc (5 U.S.C. 9 553(b)(B)). Notwithstanding the final status of the rule, the Com public comments on the final rule during a 30-day comment period following rule, in accordance with the provisions of 10 CFR 2.804(e). The Commission sta would publish a statement in the Federal Register containing an evaluation of comments received and any revisions to the rule to be made as a result of the c 199 is notice responds comment period ended on March 12,u < aaps . to the co u_wav on the rulez
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' insert for p. 6:
Following publication of the emergency rule and receipt of public comments, the staff sought to study the technical issues raised by the public comments, and to perform an independent evaluation of Part 71 regulations relating to the fissile material exemption and generallicense limits. The NRC awarded a contract to the Oak Ridge National Laboratory (ORNL). .The results of the ORNL study were published by NRC in July 1998 and noticed in the Federal register on August 13,1998. .
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recordkeeping requirements on licensees to assure compliance with the rule. These commenters also believe that shippers will now need to more accurately determine the concentration of fissile material present in a package to assure compliance with this rule. One commenter was concemed that these negative aspects of the rule were not balanced by the accompanying increase in public health and safety. One commenter stated that instead of globally restricting shipments which do not c.ontain special moderating materials, the NRC should have identified a category of material descriptive of the special moderator-containing material, and restricted only that category.
Response: The 400-gram limit of fissile material per consignment is essential to preclude an inadvertent criticality occurring during a transportation accident involving fissile material shipments with special moderators. However, the Commission agrees with the commenters that the 400-gram limit may have caused an unintended and unnecessary economic burden to licensees whose fissile material exempt and general licensed shipments use water as the moderator because the 400-gram consignment limit may be too restrictive, in some ca'ses. The Commission will more thoroughly examine these issues in an upcoming rulemaking currently being developed to revise Part 71 to make it compatible with the 1996 IAEA standards. However, the Commission has not, as yet, been able tosub3:e burden claim of the commenters. The staff is currently seeking necessary information from the commenters to quantify this burden.
The Commission had imposed the 400-gram consignment limit because of the regulatory latitude given to these fissile exempt and generallicense shippers. Shipments of exempt quantities of fissile material under G 71.53 occur without NRC prior review or imposition i
of any additional requirements on the quantity of fissile material which may be placed on a conveyance. Therefore, the Commission imposed a 400-gram limit on the amount of fissile material that could be shipped in a single package. This limit was intended to ensure that a 10 .
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Taken with the 0.1 percent limit on the presence of special moderating materials (i.e.,
beryllium, deuterium, or graphite), the final rule sought to achieve a balanced approach with j relaxation of controls over concentration, moderation, and reflection, while requiring greater control on the quantity of fissile mass, and assuming that prior NRC review and approval were not obtained.
The NRC has reviewed the factors which initiated the emergency final rulemaking, the .
i ORNL evaluation, and public comments received on the emergency final rule, and concluded that the changes imposed by the emergency final rule were clearly warranted to protect public l i
health and safety and the environment from an accidental criticality occurring during the transport of a special class of fissile material shipments (i.e., those with special moderators).
i Although the Commission believes that the commenters may have valid concems with respect to the unintended burden imposed by the emergency final rule on a large number of shipments oW,o spru6c eMahm reemdm}
that do not use special moderators, the staff has not been abid to sobekweete the burde n estimates. The Commission has decided to conside ional rulemaking revising the fissile exemptions and general license regulations of Part 71 to: (1) address the concerns raised by public comments; (2) provide greater clarity and simplicity to these Part 71 regulations; and (3) provide increased flexibility for licensees who use these regulations. This rulemaking is scheduled to revise Part 71 to make it consistent with the IAEA transportation standards, and would be undertaken in coordination with the DOT and the Agreement States.
Specific Comments Comment: One commenter stated that the rule will double the number of water-moderated shipments that will be needed to transport the same amount of fissile material. The commenter further stated that the increase in the number of shipments will increase the cost of shipping the material, increase the chance of injury to workers due to 12 7@
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.c increased probability of loading accidents, and will increase the probability of highway accidents due to the increased number of transport vehicles on the road.
Resoonse: The Commission agrees that there may be an increase in the number of water-moderated shipments. [See response to the general comment.) Although the staff has not been able to quantify the cost, the Commission will consider the costs for fissile material shipments in the scheduled Part 71 rulemaking as part of the regulatory analysis.
Comment: One commenter stated that the term "unpackaged material" may be inadequate or misunderstood.
Response: The Commission agrees. The term "unpackaged material"is not currently defined in Part 71. In @ 71.53(a)(1), the Commission considered imposing a 15-gram limit on fissile material in an individual package. For fissile material which is not contained in discrete packages (i.e., unpackaged material or bulk material), the 15-gram limit is instead applied to all of the fissile material being transported on a specific conveyance. The Commission will address this issue in a future rulemaking.
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Comment: One commenter stated that changes in the emergency final rul that are not i
directly associated with the special moderating materials (i.e., total mass per consignment),
may be needed, but these should be issued only after they go through the normal rulemaking j review process.
l Response: As stated in the emergency final rule (at 62 FR 5910), "[t]he Commission is promulgating this emergency final rule because the problem of regulatory safety limits over l
quantities and concentrations of fissile material and moderators ... is an important safety issue ;
meriting immediate corrective action. An accidental criticality in the public domain would very likely involve fatalities, health effects from the resulting radiation, and extensive cleanup costs."
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prepared for the final rule because of its emergency nature. However, the Commission considered the values and impacts of the final rule in the discussion entitled " Alternatives Considered" on page 5909 of the Federal Register notice (62 FR 5907). The value of this rule was in preventing the possibility of an accidental criticality from occurring in the public domain during the transport of fissile material. As stated earlier, an accidental criticality could result in fatalities or other cdverse health effects and would require extensive cleanup efforts. The Commission did consider that a limited number of licensees possess quantities of fissile material which could be affected by this change in regulations. However, the emergency nature of this rulemaking did not allow time for the NRC to complete as thorough a review of the type j
i and number of impacted shipments as would occur during normal rulemaking. The NRC will address this issue in a future rulemaking. The NRC staff is currently attempting to collect i i
cost / benefit data for this rulemaking. However, the staff has had difficulty in collecting tnis data Y
from affected licensees and shippers, and is working wd, L, to obtain the necessary information.
Comment: One commenter stated that the rationale for limiting the mass of special i moderating material to only 0.1 percent of the fissile mass is not clear.
fDsoonse: The Commission's basis for using the 0.1 percent limit was that it was consistent with the limit contained in the 1996 IAEA standard ST-1. The NRC believed that given the emergency nature of the rulemaking and absent sufficient time to develop a national standard, the use of an international consensus technical standard was a reasonable alternative. The NRC did depart from the standard established in ST-1 by including graphite in the list of special moderating material. The Commission will continue to impose limits on the 1
allowable fissile mass if special moderators are present however, the Commission will solicit f comment on the continued use of a consensus technical standard in a future rulemaking. This p3 oaf
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effort will be a major rulemaking which will revise Part 71 to make it compatible with the IAEA ST-1, to revise fissile material exempt and general license provisions, and to revise other Non-IAEA provisions. T d'Nationafi echnolo y Transfer t of 19 , Pub. 104-113, qui s tha
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Fede agenci use tecscal / sta ards thatp e dev. ped or a pted by unt
.onsens standar odies less thejde of th e standards is inconsistent 'th app able law r otherwi impract' !. h utuu )
Comment: One commenter stated that it is not clear from the wording of the rule whether the 0.1 percent limit applies to all of the deuterium present in a shipment or only to the quantity that exceeds the amount of naturally occurring deuterium.
'd Response: The Commission intended that the 0.1 percent limit apply to all of the ah((
deuterium present in a shipment because the ability of deuterium to moderate neutrons is not dependent upon whether the deuterium is natural or created via a man-made process. lh rulwdm 2 Comment: One commenter stated that it is not so much the average hydrogen density that is important as it is the moderating effect of the material. The commenter suggested replacing
- average hydrogen density greater than that of water," with " moderating effect greater than that of water."
Response: The Commission agrees that moderating effectiveness is the parameter of concern. However,in the past, the concept of average hydrogen density has been substituted for moderator effectiveness, because the principal focus was on moderation by ordinary water.
The NRC believes this terminology, which had been widely used, is still appropriate and did not change this approach in the emergency final rule. The NRC will address this terminology issue in a future rulemaking.
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