ML23156A415

PR-076 - 63FR49301 - Certification Renewal and Amendment Processes

ML23156A415
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Issue date:	09/15/1998
From:	Hoyle J NRC/SECY
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PR-076, 63FR49301
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ADAMS Template: SECY-067 DOCUMENT DATE: 09/15/1998 TITLE: PR-076 - 63FR49301 - CERTIFICATION RENEWAL AND AMENDMENT PROCESSES CASE

REFERENCE:

PR-076 63FR49301 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

DOCKET NO. PR-076 (63FR49301)

In the Matter of CERTIFICATION RENEWAL AND AMENDMENT PROCESSES DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 09/09/98 09/09/98 FEDERAL REGISTER NOTICE - PROPOSED RULE 11/16/98 11/16/98 COMMENT OF UNITED STATES ENRICHMENT CORPORATION (STEVEN A. TOELLE) ( 1) 08/16/99 08/11/99 FEDERAL REGISTER NOTICE - FINAL RULE

DOCKET NUMBER OOCK~:r:::o PROPOSED ULE b L'S~

(ft,3FRL/q3ol [7590-01-P]

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• 1- 6 P4 :Q 9 NUCLEAR REGULATORY COMMISSION t 1u.

10 CFR Part 76 AC 1' RIN: 3150-AFBS Certification Renewal and Amendment Processes AGENCY: Nuclear Regulatory Commission .

• ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending the regulations governing the U.S. Enrichment Corporation's {USEC or the Corporation) gaseous diffusion plants to modify the certification renewal and amendment processes. The amendments are intended to improve these processes so that they are more effective and efficient. The final rule modifies the process for certificate renewals, establishes a process for certificate amendments comparable to the process currently used to amend a fuel cycle license, revises the appeal process for amendments, eliminates the "significanr designation for amendments, simplifies the criteria for persons who are eligible to file a petition for review of an amendment action, removes references to the initial applicatk'n because the initial certificates have been issued, and lengthens the time p*eriods associated with filing a petition for review.

~ 1,, 1999 EFFECTIVE DATE: (30 days flo111 tlie date of publication i11 the Feder:al Register).

FOR FURTHER INFORMATION CONTACT: Mr. John L. Telford, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 ,

telephone (301) 415-6229, e-mail JLT@nrc.gov.

SUPPLEMENTARY INFORMATION:

Background

The regulations establishing NRC's requirements for USEC's Paducah and Portsmouth gaseous diffusion plants (GDPs) were published on September 23, 1994 (59 FR 48960).

Subsequently, the Atomic Energy Act (AEA) of 1954 was modified to increase the period for certificat~ renewals from 1 year to up to 5 years. The regulations implementing this modification to the AEA were published on February 12, 1997 (62 FR 6670). On March_3, 1997, the GDP's came under NRC's oversight. Since 1997, the NRC has implemented the initial certification and numerous certificate amendments. As a result, the NRC staff identified several areas where changes would improve the effectiveness and efficiency of the certificate renewal and amendment processes.

On September 15, 1998 (63 FR 49301 ), the NRC published a proposed rule that presented amendments to 10 CFR Part 76 intended to make the certification renewal and amendment processes more effective and efficient.

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Comments on the Proposed Rule The Commission received one letter commenting on the proposed rule. A copy of the letter is available for public inspection and copying for a fee at the Commission's Public Document Room, located at 2120 L Street, NW (Lower Level), Washington, D.C. This letter came from USEC, which leases and operates the GDPs. The Corporation supported the proposed rule, but had two specific comments.

Comment 1: "The proposed wording states that a certificate amendment will be effective when issued by the NRC staff. Immediate implementation upon issuance of the amendment may be possible in some cases; however, in most cases some impfementation time will be required.

USEC anticipates that in submitting amendment requests, it will continue the current practice of requesting that site implementation occur within a certain period of time (e.g., 30 days) or after comp11C1tion of certain activities (e.g., equipment installation, testing) after the s,affs issuance of the amendment. USEC assumes that the NRC, in granting an immediate!~ effective certificate amendment, will continue to provide the requisite flexibility and tjme for effective implementation.,,.

Response: The Commission agrees with the comment. When granting an amendment, the NRC staff intends to allow an appropriate implementation period (e.g., 30 days). To clarify this intent further, the regulatory text has been modified to make an amendment effective on a date specified by the NRC staff.

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Comment 2: *These paragraphs [76.45(d) & (e)] specify requirements fornbtainlng the Director's review of the staff's detennination and the Commission's review of a Director's decision on an amendment application. These paragraphs state that if the Director or Commission does not issue a decision or otherwise act after receiving a petition for review, the determination on the amendment application remains in effect. However, the ability of the Corporation to implement an effective amendment should a petition be received is unclear.

Therefore, USEC requests that the proposed wording in §76.45(d) and §76.45(e) be clarified to indicat~ that, should a petition on an effective amendment be received, implementation of the amend.ment at the gaseous diffusion plants may continue, unless and until the Director modifies or sets aside the findings, conclusions, conditions or tenns in the staff's amendment determination or the Commission modifies or sets aside the findings, conclusions, conditions or tenns in the Director's amendment review decision. Should either the staff's decision or the Director's decision be modified or set aside, upon NRC notification, the, Corp9ration would take the required actions with respect to implementation of the effective amendn1ent. USEC's comments in this regard could be addressed with the addition of the following language to

§§76.45(d) and (e):

The pendency of a petition [for review] under this subsection shall not delay the effective date of the amendment as issued by the staff under §76.45(c) above."

Response: The language of§ 76.45(d) and (e) does not need to be revised. If a petition for review is pending, the Commission believes that the Corporation may implement an effective certificate amendment because of the statements in§ 76.45(c), (d), and {e). In particular, if a petition for review is pending, it would not delay the effective date of the certificate amendment.

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The Corporation may continue implementation of an effective certificate amendment unl~ss and until it is modified or set aside by either the Director or the Commission.

The Final Rule This final rule makes the following changes:

Currently, § 76.37 specifies that the Director of the Office of Nuclear Material Safety and Safeguards (the Director) shall publish a Federal Register notice of receipt of an application for renewal. This final rule replaces "shall with "may, at his or her discretion," and inserts for renewal" after the first occurrence of the word "application" in paragraphs (a}, (b), and (~}.

Replacing "shall" with "may, at his or her discretion," allows the Director to determine if a Federal Register notice is warranted for an application for renewal on a case-by-case basis.

There are two reasons for this action. First, if the application does not address any new safety issues or there have not been any major changes to the facility or its operating procedures that

• would substantially increase the risk associated with the facility, the Director may decide that a Federal Register notice is not necessary. This flexibility allows the NRC to focus its resources on safety issues that have significant potential risk. Second, there is no requirement in the AEA to notice an application for certificate renewal. Furthermore, similar actions for 10 CFR Parts 30, 40, and 70 facilities are not noticed. Adding for renewal" clarifies that the application is specifically for renewal.

In § 76.39, the phrase "for renewal" is being inserted after each occurrence of the word "application." This clarifies that the application being discussed in§ 76.39 is specifically for renewal.

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Section 76.45(a) is being changed to remove the responsibility for making the initial decision on an amendment application from the Director. This change I allows the decision to grant or deny an amendment application to be delegated to the branch chief. This action contributes to ~ more efficient use of NRC resources and is comparable to the process used for facilities regulated by the Commission under 10 CFR Parts 30, 40, and 70.

Section 76.45(b) is being deleted. The first sentence currently requires that the Director determine whether the proposed activities are "significant' and, if so, -,

follow the procedures specified in §§ 76.37 and 76.39. This sentence is being deleted because the procedures specified in § 76.37 to be followed by the Director will be discretionary, and the procedures specified in§ 76.39 are currently discretionary. Accordingly, it would not be logical to compel the Director to follow either of them. This action eliminates the current distinction between

• significant' and not significant proposed activities. This action also provides a more flexible and efficient regulatory process. However, the public's opportunity to follow each amendment re~ains the same because licensing documents are placed in the Commi~ion's Public Document Room, and in the near future, the N~C plans to pla~* these documents on NRC's website. Accordingly, the public will have an opportunity to file a petition for review of an amendment as described in revised § 76.45(d). In addition, the last sentence in § 76.45(b) is being deleted because decisions on certificate amendment applications will be delegated to the branch chief. This delegation is comparable to the process currently used for 10 CFR Parts 30, 40, and 70 facilities.

The current§ 76.45(c) is being redesignated as paragraph (b) because the current paragraph (b) is being deleted.

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In a new§ 76.45(c), the first sentence provides that a certificate amendment will be effective on a date specified by the NRC staff. This allows the NRC staff to handle issues that I

need to be addressed quickly to avoid an unnecessary operational upset of a GDP, ensure adequate protection of public health ahd safety from radiological hazards, and/or provide for the common defense and security. The second sentence of§ ?6.45(c) provides that the NRC staff may, at its discretion, publish a notice of its decision on an amendment application in the Federal Register. The NRC staff will take this action when publication of a notice is warranted on a case-by-case basis. If the application does not address any new safety issues or there have not been any major changes to the facility or its operating procedures that would

• substantially increase the risk associated with the facility, the NRC staff may decide that a Federal Register notice is not necessary. This flexibility allows the NRC to devote its resources to safety issues that have significant potential risk. The AEA does not require that a certificate amendment application be noticed. Furthermore, the Commission does not notice similar actions for 10 CFR Parts 30, 40, and 70 facilities.

Currently, a decision on an amendment application may be appealed by filing a request for the Commission's review. A new§ 76.45(d), concerning the NRC staff's determination on an amendment application, establishes procedures for the Corporation, or any person whose interests may be affected, to file a petition for the Director's review. Because the initial determination on a certificate amendment application may be, delegated to the branch chief, it is logical for the Director to be the first level of review. This process contributes to a more efficient use of agency resources because an appeal issue may be resolved by the Director and not require the Commission's review.

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A new§ 76.45(e), concerning the Director's decision, establishes procedures for either the Corporation, or any person whose interests may be affected and who filed a petition for review or filed a response to a petition for review und~r § 76.45(d), to file a petition for the Commission's review. Because the,initial review of an NRC staff determination on an amendment application is rendered ~y the Director, it is logical for the Commission to be the final level of review.

In revised§ 76.62(c), the phrase, who submitted writt~n comments in response to the Federal Register notice on the application or compliance plan under§ 76.37, or provided oral comments at any meeting held on the application or compliance plan conducted under§ 76.39,"

is removed. This action eliminates restrictions that limit those entities who may file a petition requesting review of the Director's decision regarding issuance of a certificate and/or approval of a compliance plah. Eliminating these restrictions is consistent with the Commission's practice for 10 CFR Parts 30, 40, and 70 facilities. Further, if a Federal Register notice is not issued for a certificate renewal, a notice of the Director's decision will provide the first published opportunity for a person whose interest may be affected to be aware of the action.

The number of days specified in§ 76.62(c) is being increased from 15 to 30 days. This provides more time for the Corporation or other members of the public whose interests may be affected to file a petition for review on a certificate renewal action. Because the time period for a certificate renewal was recently extended from annually to up to 5 years, the need to act within 15 days because of the time constraint formerly associated with annual renewals Is removed.

The sentence, "Unless the Commission grants the petition for review or otherwise acts 8

within 60 days after the publication of the Federal Register notice, the Director's iDltial decision on the certificate application or compliance plan becomes effective and final," is being revised to

• read: "If the Commission does not issue a decision or take other appropriate action within 90 days after the publication of the Federal Register notice, the Director's decision remains in effect." This change clarifies that the Director's decision is effective upon issuance and, if a petition for review is filed, *eliminates a potential 60-day suspension of the. effectiveness of the Director's decision. The Director's decision remains in effect unless it is changed by the Commission. This procedure is also more consistent with the process for license renewals pursuant to 10 ~FR Parts 30, 40, and 70. In addition, to accommodate the increased time for both filing a petition for review and responding to a petition, the time provided for the Commission to act is being increased from 60 to gq days following publication of the Federal Register notice.

The changes made in § 76.62(c) are also being made in § 76.64(d) for the same reasons .

• In the introductory text of§ 76.91, reference to § 76.35(d) is being changed to § 76.35(f}

to correct a typographical error.

In addition, Part 76 is being modified to remove references to the initial certification application or initial certification decision that are no longer relevant because the initial certificates have been issued. In§§ 76.33(a)(1), (b), (c), (d), and (e), and 76.35, .references to "initial" are being removed. Section 76.9(c) is being removed as no longer relevant because the COrJdition of effectiveness at the time of the initial certification application has been satisfied.

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Phrases in§§ 76.21 (a), 76.36(a), 76.60(e)(2), and 76.91 (n) concerning initial certification are being removed. References in§§ 76.7(e)(1), 76.60(c)(2), 76.60(d)(2), and 76.60(e)(1) to the NMSS Director's decision on the initial certificate are also being removed.

Section 76.33 is being amended to correct a printing error .in the regul~tory text. In

§ 76.33{a)(2), the redundant phrase the names, addresses, and citizenship of its principal office," is being removed.

Compatibility of AgreementState Regulations Under the "Policy Statement on Adequacy and Compatibility of Agreement State Programs" that was approved by the Commission on June 30, 1997, and published in* the Federal Register on September 3, 1997 (62 FR 46517), Part 76 is classified as compatibility Category "NRC". The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the AE.A or provisions of Title 10 of the Code of Federal Regulations .

Plain Language The Presidential Memorandum dated June 1, 1998, entitled, "Plain Language in Government Writing," directed that the government's writing be in plain language. This memorandum was published June 10, 1998 (63 FR 31883). In complying with this directive, editorial changes have been made in the final revisions to improve the organization and readability of the existing language of the paragraphs being revised. These types of changes are not discussed further in this notice.

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Voluntary Consensus Standards The National Technology Transfer and Advancement Act of 1995, Pub. L. 104-113, requires that agencies use technical standards that are developed or adopted by voluntary consensus standard bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the NRC is amending the regulations governing the gaseous diffusion plants to modify the process used to renew or amend a certificate of compliance. The amended regulations are procedural and apply to a specific entity. Therefore, this action does not establish a technical standard of generally applicable requirements .

Environmental Impact: Categorical Exclusion The NRC has determined that this regulation is the type of action described as a cat9£1nrical exclusion in 10 CFR 51.22(c)(2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule .

• Paperwork Reduction Act Statement The information collection requirements contained in this final rule of limited applicability affect fewer than ten respondents. Therefore, Office of Management and Budget approval is not required pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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Regulatory Analysis This final rule modifies the process for certificate renewals, establishes a process for certificate amendments comparable to the process currently used to amend a fuel cycle license, revises the appeal process for amendments, eliminates the "significant' designation for amendments, simplifies the criteria for persons who are eligible to file a petition for review of an amendment action, removes references to the initial application because the initial certificates have been issued, and lengthens the time periods associated with filing a petition for review .

_Part 76 contains a process for amending a certificate and the GDP certificates have been. amended several times. These actions identified several deficiencies in the § 76.45 process that should be corrected. The NRC staff examined how the process could be revised and improved so that it is more effective and efficient. The amendment process for GDP ""

certificates as modified by this final rule parallels the process currently useu for 10 CFR Parts 30, 40, and 70 facilities.

. This

. final rule also removes the ambiguity associated with determining who can petition the NRC for review of an amendment application decision.

Because the statute has been amended to allow up to a 5-year certificate renewal period instead of an annual certificate renewal requirement, the lengthened certificate period has permitted consideration of improvements to the certificate renewal process. Because the annual certification time constraint has been removed, the final rule makes appropriate changes to the time for appeals and lifts restrictions on who may appeal a certification decision. As a result, the certificate renewal process more closely resembles the process for renewal of materials and fuel cycle facility licenses under 10 CFR Parts 30, 40, and 70.

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A no-change option retains the deficiencies and ambiguities identified in the current certification renewal and amendment processes and precludes an improved process that is more effective and efficient.

Impacts on the Corporation An uncomplicated certificate amendment process provides a more timely regulatory process. If the identified deficiencies and ambiguities in' the amendment process are not C?rrected, there is a potential for expense due to plant operational delays and reduced efficiencies that may be related to amendment requests.

Clarification of who can petition the Director for review of an NRC staff determination on an amendment application and/or extension of the period for requesting a review may result in additional petitions. Similarly, lifting restrictions on who can petition for review of a certification renewal *decision and lengthening the time for this type of petition may result in additional

• petitions. This rulemaking is not expected to have any adverse economic impacts on the Corporation.

Benefit An uncomplicated process 'for certificate amendment will result in a more effective and efficient NRC review process. This, in tum, provides for more timely completion of amendment reviews. Clarification of who can petition the Director for review of a certificate amendment determination will remove undesirable ambiguities. Specifically, the final rule removes a 13

restriction on who can petition for review by eliminating the current requirement that a petition for review may only be filed by a person who had previously provided comments. The final rule will allow anyone whose interests may be affected to file a petition for review. The extension of the time periods associated with filing a petition for review provides more time for the public to participate in the amendment process. The final rule also. removes the same restrictions on who may petition for ~view of a certification renewal decision and extends the time period for accepting ~titians for review of a certification renewal decision. The final rule also provides for NRC staff discretion in publishing the Federal Register notice of receipt of the application for Certificate renewal. This discretion permits the NRC staff to use its r8$0Ur:ces in the most effective and efficient manner.

Preferred Option The preferred option is amending the*regulations to eliminate ambiguities, reduce inefficiencies, better define the processes for-certificate renewals*and amendments, allow immediately effective amendments, and allow more time for public participation, while continuing to ensure adequate protection of public health and safety.

This constitutes the regulatory analysis for the final rule.

Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Commission certifies that this final rule does not have a significant economic impact on a substantial number 14

of small entities because it only addresses USEC or its successor. The Corporation does ,iot fall within the scope of the definition of "small entities" set forth in 10 CFR 2.81 O or the Small r

Business Size Standards set out in regulations issued by the Small Business 'Administration at 13 CFR Part 121.

Backfrt Analysis The NRC has determined that these amendments do not involve any provisions that would impose backfrts as defined in 10 CFR 76.76. Therefore, a back.fit analysis is not required for this final rule.

Small Business Regulatory Enforcement Fairness Act In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this actioa is not a major rule and has verified this determination

• with the Office of Information and Regulatory Affairs of 0MB.

List of Subjects in 10 CFR Part 76 Certification, Criminal penalties, Radiation protection, Reporting and recordkeeping requirements, Security measures, Special nuclear material, Uranium enrichment by gaseous diffusion.

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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 Part 76.

PART 76-CERTIFICATION OF GASEOUS DIFFUSION PLANTS

1. The authority citation for Part 76 continues to read as follows:

AUTHORITY: Secs. 161, 68 Stat. 948, as amended, secs. 1312, 1701, as amended, 106 Stat. 2932, 2951, 2952, 2953, 110 Stat. 1321-349 (42 U.S.C. 2201, 2297b-11, 2297f); secs. 201, as amended, 204, 206, 88 Stat. 1244, 1245, 1246 (42 U.S.C. 5841, 5842, 5845, 5846);

sec. 234{a), 83 Stat. 444, as amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 {42 U.S.C.

2243(a)).

Sec. 76.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851).

Sec. 76.22 is also issued under sec. 193{f), as amended, 104 Stat. 2835, as amended by Pub.

L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243{f)). Sec. 76.35(j) a1s*o issued under sec. 122, 68 Stat. 939 {42 U.S.C. 2152).

2. In§ 76.7, paragraph (e)(1) is revised to read as follows:

§ 76.7 Employee protection.

(e)(1) The Corporation shall prominently post the revision of NRC Form 3, "Notice to Employees," referenced in 10 CFR 19.11 (c). This form must be posted at locations sufficient to permit employees protected by this section to observe a copy on the way to or from their place 16

of work. Premises must be posted during the term of the certificate and for 30 days following certificate termination.

3. In § 76.9, paragraph (c) is removed.

§ 76.9 [Amended] .

4. In § 76.21, paragraph (a) is revised to read as follows:

§ 76.21 Certificate required.

{a) The Corporation or its contractors r.~;;;,y not operate the gaseous diffusion plants at Piketon, Ohio, and Paducah., Kentu~. unless an appropriate certificate of compliance, and/or an approved compliance plan is in effect under this part. Unless autt,nrized by the NRC under other provisions of this chapter, a person other than the Corporation or its contractors may not acquire, deliver, receive, possess, use, or transfer radioactive material at the gaseous diffusiqn I

plants at Piketon, Ohio, and Paducah, Kentucky .

5. Section 76.33 is revised to read as follows:

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§ 76.33 Application procedures.

(a) Filing requirements.

(1) An application for a certificate of compliance must be tendered by filing 20 copies of 17

the application with the Director, Office of Nuclear Material Safety and Safeguards, with cppies sent to the NRC Region Ill Office and appropriate resident inspector, in accordance with § 76.5.

(2) The apptication must include the full name, address, age (if an individual), and citizenship of the applicant. If the applicant is a corporation or other entity, the application must indicate the State where it was incorporated or organized; the location of the principal office; and the names, addresses, and citizenship of its principal officers. The applicant shall include any known information concerning the control or ownership, if any, exercised over the applicant by any alien, foreign corporation, or foreign government.

(b) Oath or affirmation. An application for a certificate of 'compliance must be executed-in a signed original by a duly authorized officer of the Corporation under oath or affirmation.

(c) Pre-filing consultation. The Corporation may confer with the Commission's staff before filing an application.

(d) Additional information. At any time during the review of an application, the Corporaaon may be required to supply additional information to the Commission's staff to-enable the Commission or the Director, as appropriate, to determine whether the certificate should be issued or denied, or to determine whether a compliance plan should be approved.

(e) Withholdable information. If an application contains Restricted Data, National Security Information, Safeguards Information, Unclassified Controlled Nuclear Information, proprietary data, or other withholdable information, the applicant shall ensure that the withholdable information is separate from the information to be made publicly available.

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6. In § 76.35, the section heading and introductory paragraph are revised* to read

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as follows:

§ 76.35 Contents of application.

The application for a certificate of compliance must include the information identified in this section.

7. In§ 76.36, paragraph (a) is revised to read as follows:

§ 76.36 Renewals.

(a) The ColJ)Oration shall file periodic applications for renewal, as required by§ 76.31.

8. Section 76.37 is revised to read as follows:

• § 76.37 Federal Register notice.

The Director may, at his or her discretion, publish in the Federal Register.

(a) A notice of the filing of an application for renewal (specifying that'1copies of the application, except for Restricted Data, Unclassified Controlled Nuclear Information, Classified National Security lnformati9n, Safeguards Information, Proprietary Data, or other withholdable information will be made available for public inspection in the Commission's Public Document Room at 2120 L Street, NW. (Lower Level), Washington, DC, and in the local public document room at or near the location of the plant);

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(b) A notice of opportunity for written public comment on-the application for renewal; and (c) The date of any scheduled public meeting regarding the application for renewal.

9. In§ 76.39, paragraphs (a), the introductory text of (b), and paragraphs (b)(1), and (b)(4) are revised to read as follows:

§ 76.39 Public meeting.

(a) A public meeting will be held on an application for renewal if the Director, in his or her discretion, determines that a meeting is in the public interest with respect to a decision on the application for renewal.

(b) Conduct of public meeting.

(1) The Director shall conduct any public meeting held on the application for renewal.

(4) Members of the public will be given an opportunity during a public meeting to make their views regarding the application for renewal known to the Director.

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10. Section 76.45 is revised to read as follows:

§ 76.45 Application for amendment of certificate.

(a) Contents of an amendment applicl!(ltion. In addition to the application for certification submitted under§ 76.31, the Corporation may at any time apply for an amendment of the certificate to cover proposed new or modified activities. The amendment application should contain sufficient information for the NRC to make findings of compliance or acceptability for the 20 C

proposed ~activities in the same manner as was required for the original certificate~

(b) Oath or affinnation. An application for an amendment of the certificate of compliance must be executed in a signed original by the Corporation under oath or affirmation.

(c) Amendment application detenninations. tf the NRC staff approves an application for a certificate amendment, it will be effective on a date specified by the NRC staff. If an application for-a certificate amendment is not approved by the NRC staff, the Corporation will be informed in writing. The NRC staff may, at its discretion, publish notice of its determination on an amendment application in the Federal Register.

(d) Request for review of staffs detennination on an amendment'application. The Corporation, or any person whose interest may be affected, may file a petition requesting the Director's review of an NRC staff determination on an amendment application. A petition, requesting the Director's review may not exceed 30 pages and must be filed within 30 days after J

the date of the NRC staffs determination. Any person described in this paragraph may file a written response to a petition requesting the Director's review. This response may not exceed 30 pages and must be filed within 15 days after the filing date of the petitio~ requesting the Director's review. The Director may adopt, modify, or set aside t)ie findings, conclusions, conditions, or terms in the NRC staffs amendment determination by providing a written basis for the action. If the Director does not issue a decision or take other appropriate action within 60 days after receiving the petition for review, the NRC staffs deter'!Tiination on the amendment application remains in effect.

(e) Request for review of a Director's decision. The Corporation, or any person whose interest may be affected and who filed a petition for review or filed a response to a petition for review under§ 76.45(d), may file a petition requesting the Commission's review of a Director's decision on an amendment application.

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(1) A petition requesting the Commission's review may not exceed 30 pages and must be filed within 30 days after the date of the Director's decision. A petition requesting the Commission's review may be either.

0) Delivered to the Rulemakings and Adjudications Staff of the Office of the Secretary at One White Flint North, 11555 Rockville Pike, Rockville, MD 20852; or (ii) Sent by mail or telegram to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff.

(2) Any person described in paragraph (e) of this secti~f) may file a written response to a petition requesting the Commission's review. This response may not exceed 30 pages and must be filed within 15 days after the filing date of the petition requesting the Commission's review.

(3) The Commission may adopt, by order, further procedures that, in its judgment, would

• serve the purpose of review of the Director's decision. The Commission may adopt, modify, or set 9Side the findings, conclusions, conditions, or terms in the Director's amendment review decision and \/\(ill state the basis of its action in writing. If the Commission does not issue a decision or take other appropriate action within 90 days after receiving the petition for review, the Directar's decision, under§ 76.45(d), on the amendment application remains in effect.

11. In§ 76.60, paragraphs (c)(2), (d)(2), (e)(1), and (e)(2) are revised to read as follows:

§ 76.60 Regulatory requirements which apply.

(c) * * *

(2) The Corporation shall post NRC Form 3 during the term of the certificate and for 22

30 days following certificate termination.

\ ....

(cf) * * *

(2) )"he Corporation shall comply with the requirements in this part or as specified in an approved plan for achieving compliance.

(e) * *

(1) The Corporation shall comply with the requirements in §§ 21.6 and 21.21.

(2) Under§ 21.31, procurement documents issued by the Corporation must specify that the provisions of 10 CFR Part 21 apply.

12. In§ 76.62, paragraph (c) is revised to read as follows:

§ 76.62 Issuance of certificate and/or approval of compliance plan.

{c) Toe Corporation, or any person whose interest may be affected, rpay file a petition, not to exceed 30 pages, requesting review of the Directors decision. This petition must be filed with the Commission not later than 30 days after publication of the Federal Register* notice. Any C

person described in this paragraph may file a responSE! to any petition for review, not to exceed 30 pages, within 15 days after the filing of the petition. If the Commission does not issue a decision or take other appropriate action within 90 days after the publication of the *Federal Register notice, the Director's decision remains in effect. The Commission may adopt, by order, I

further procedures that, in its judgment, would serve the purpose of review of the Director's decision.

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13. In§ 76.64, paragraph (d) is revised to read as follows:

§ 76.64 Denial of certificate or compliance plan.

(d) The Corporation, or any person whose interest may be affected, may file a petition for review, not to exceed 30 pages, requesting review of the Director's decision. This petition for review must be filed with the Commission not later than 30 days after publication of the Federal Register notice. Any person described in this paragraph may file a response to any petition for j review, not to exceed 30 pages, within 15 days after the filing of the petition for review. If the Commission does not issue a decision or take other appropriate action within 90 days after the publication of the Federal Register notice, the Director's decision remains in effect. The Commission may adopt, by order, further procedures that, in its judgment, would serve the purpose of review of the Director's decision.

14. In§ 76.91, the introductory paragraph and paragraph (n) are revised to read as follows:

§ 76.91 Emergency planning.

The Corporation shall establish, maintain, and be pregared to follow a written emergency plan. The emergency plan submitted under § 76.35(f) must inplude the following information:

24

(n) Comment from offsite response organizations. The Corporation shall* allow the offslte response organizations that are expected to respond in case of an accident 60 days to comment on the emergency plan before submitting it to NRC. The Corporation shall provide any comments received within the 60 days to the NRC with the emergency plan.

Dated at Rockville, Maryland, this \} ::th day of August, 1999.

For the Nuclear Regulatory Commission.

~L-.0Q:G.-~

Annette L. Vietti-Cook, Secretary of the Commission.

25

USEC A Global Energy Company November 16, 1998 GDP 98-0254 The Secretary of the Commission U. S. Nuclear Regulatory Commission Attention: Rulemaking and Adjudications Staff DOCKET Washington, D .C. 20555-0001 Paducah Gaseous Diffusion Plant (PGDP)

Portsmouth Gaseous Diffusion Plant (PORTS)

Docket Nos. 70-7001 & 70-7002 USEC Comments on NRC's Proposed Amendment of 10 CFR Part 76, "Certification of Gaseous Diffusion Plants"

Dear Sir:

The United States Enrichment Corporation (USEC) is pleased to submit the enclosed comments on the NRC's proposed amendment of 10 CFR Part 76, "Certification of Gaseous Diffusion Plants." As the proposed amendment is expected to result in a more effective and efficient certificate amendment process that would provide for more timely processing of amendment requests, USEC requests that this proposed amendment be processed in an expeditious manner.

USEC appreciates the opportunity to provide input to the Commission's rulemaking process. Should you have any questions related to this subject or wish to discuss these comments, please contact Mark Smith at (301) 564-3244. There are no new commitments contained in this submittal.

Sincerely,

~. (). R~s,~ -Rr Steven A. Toelle Nuclear Regulatory Assurance and Policy Manager

Enclosure:

United States Enrichment Corporation, Comments on NRC's Proposed Amendment of 10 CFRPart 76 cc: Mr. Robert C. Pierson - NRC HQ NRC Region III Office NRC Resident Inspector - PGDP NRC Resident Inspector - PORTS 0 191998 wtPdoed b card ...._ _,_ _..

6903 Rockledge Drive, Bethesda, MD 20817-1818 Telephone 301-564-3200 Fax 301-564-3201 http://www.usec.com Offices in Livermore, CA Paducah, KY Portsmouth, OH Washington, DC

Enclosure I GDP 98-0254 Page I of2 UNITED STATES ENRICHMENT CORPORATION Comments on NRC's Proposed Amendment of 10 CFR Part 76 Overall, USEC supports the proposed rule and appreciates the NRC's effort to modify and improve the certificate renewal and amendment processes. We have only two comments on the proposal as discussed below.

1. §76.45 (c) Amendment Application Determinations The proposed amendment reads as follows:

§ 76.45 Application for amendment of cerllficate (c) Amendment Application Determinations. If the NRC staff approves an application for a certificate amendment, it will be effective when issued by the NRC staff to the Corporation.

The proposed wording states that a certificate amendment will be effective when issued by the NRC staff Immediate implementation upon issuance of the amendment may be possible in some cases; however, in most cases some implementation time will be required. USEC anticipates that in submitting amendment requests, it will continue the current practice of requesting that site

• 2.

implementation occur within a certain period of time ( e g., 3 0 days) or after completion of certain activities (e.g., equipment installation, testing) after the staffs issuance of the amendment USEC assumes that the NRC, in granting an immediately effective certificate amendment, will continue to provide the requisite flexibility and time for effective implementation.

§76.45 (d) Request for review of staffs determination on an amendment application.

§76.45 (e) Request for review of a Director's decision.

These paragraphs specify requirements for obtaining the Director's review of the stafPs detennination and the Commission's review of a Director's decision on an amendment application.

These paragraphs state that if the Director or Commission does not issue a decision or otherwise act after receiving a petition for review, the determination on the amendment application remains in effect. However, the ability of the Corporation to implement an effective amendment should a petition be received is unclear. Therefore, USEC requests that the proposed wording in §76.45(d) and §7~.45(e) be clarified to indicate that, should a petition on an effective amendment be received, implementation of the amendment at the gaseous diffusion plants may continue, unless and until the Director modifies or sets aside the :findings, conclusions, conditions or terms in the stafPs amendment determination or the Commission modifies or sets aside the findings, conclusions, conditions or terms in the Director's amendment review decision. Should either the stafPs decision or the Director's decision be modified or set aside, upon NRC notification, the Corporation would take the required actions with respect to implementation of the effective amendment.

Enclosure 1 GDP 98-0254 Page 2 of2 USEC's comments in this regard could be addressed with the addition of the following language to

§§76.45 (d) and (e):

The pendency of a petition under this subsection shall not delay the effective date of the amendment as issued by the staff under §76 45(c) above.

DOCKETED USNRC

[7590-01-P]

"98 SEP -9 P3 :Q5 NUCLEAR REGULATORY COMMISSION 10 CFR Part 76 RIN: 3150-AF85 Certification Renewal and Amendment Processes AGENCY: Nuclear Regulatory Commission .

ACTION: Proposed rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is proposing to amend its regulations that apply to gaseous diffusion plants. In 1994, these regulations established the process by which the NRC would assume regulatory authority for the Paducah and Portsmouth gaseous diffusion plants. These plants first came under NRC oversight on March 3, 1997. While

• implementing the initial certification and amendment processes specified in the 1994 regulations, the NRC staff identified severaJ areas In these processes that should be revised and improved so that they are more effective and efficient. This proposed rulemaking would modify the process for certificate renewals, establish a process for certificate amendments comparable to the process currently used to amend a fuel cycle license, revise the appeal process tor amendments, eliminate the "significant" designation for amendments, simplify the ,

criteria for persons who are eligible to file a petition for review of an amendment action, remove references to the initial application because the initial certificates have been issued, and lengthen the time periods associated with filing a petition for review.

fJ.vJ.:,. ln-1 q /t5}tl8 J IP3FJe J./9'3o I

~ ,,,,c;r;a-DATE: Comments on the proposed rule must be received on or before [insert sat:o SO deye after publi~aiian in tho Fodorel Register]. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.

ADDRESSES: Mail written comments to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Attn: Rulemakings and Adjudications Staff.

Hand deliver comments to: 11555 Rockville Pike, Rockville, MD, between 7:30 am and 4:15 pm on Federal workdays .

• You may access the NRC's interactive rulemaking web site through the NRC home page (http://www.nrc.gov). This site provides the availability to upload comments as files (any format), tf your web browser supports that function.

For information about the interactive rulemaking site, contact Ms. Carol Gallagher, (301) 415-5905; e-mail CAG@nrc.gov.

Copies of comments received may be examined or copied for a fee at the NRC Public Document Room, 2120 L Street NW. (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Mr. John L. Tetford, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6229, e-mail JLT@nrc.gov.

2

SUPPLEMENTARY INFORMATION:

Background

The Paducah and Portsmputh gaseous diffusion plants (GDPs) first came under NRC oversight on March 3, 1997. Since that date, as the NRC implemented the Initial certification and numerous certificate amendments under the processes specified in the 1994 regulations, the staff has identified several areas to improve the renewal and amendment processes so that they are more effective and efficient. Also, in the 1994 regulations, the certificate renewal period was 1 year. However, by amendment of the Atomic Energy Act (AEA) of 1954, as amended, and implementing rulemaking, this period was recently modified to allow up to 5 years between certificate renewals. These events have caused the NRC to reexamine the Part 76 certificate renewal and amendment processes. Hence, the objective of this proposed ,

rule is to revise and Improve the current regulations so that the staff can effectively and efficiently handle certificate renewals as well as the number of certificate amendments that could reasonably be expected over the recently established period of up to 5 years between

• certificate renewals. This proposed rulemaking would modify the process for certificate renewals, establish a process for certificate amendments comparable to the process currently used to amend a fuel cycle license, revise the appeal process _for amendments, eliminate the "signifi<?Snf' designation for amendments, simplify the criteria for persons who are eligible to file a petition for review of a certificate amendment action, remove references to the initial application because the initial certificates have been issued, and lengthen the time periods associated with filing a petition for review.

3

Section-by-Section Analysis Currently,§ 76.37 specifies that the Director of the Office of Nuclear Material Safety and Safeguards (the Director) shall publish a Federal Register notice of receipt of an application for renewaJ. This proposed rule would replace "shall* with "may, at his or her discretion," and insert "for renewala after the first occurrence of the word "application* in paragraphs (a), (b), and (c).

Replacing *shall* with *may, at his or her discretion," aJlows the Director to determine if a Federal Register notice is warranted for an application for renewal, on a case-by-case basis.

There are two reasons for proposing this action. First, if the application does not address any new safety issues or there have not been any major changes to the facility or its operating procedures that would substantially increase the risk associated with the facility, then the Director may decide that a Federal Register notice Is not necessary. This flexibility would allow the agency to focus its resources on safety issues that have significant potential risk. Secondly, there is no requirement in the AEA to notice an application for certificate renewal. Furthermore, similar actions for 10 CFR Parts 30, 40, and 70 facilities are not noticed. Also, adding *tor renewal* clarifies that the application is specifically for renewal.

In § 76.39, the phrase -Jor renewal* would be inserted after each occurrence of the word "application. a This clarifies that the application being discussed in § 76.39 is specifically for renewal.

Section 76.45 would be modified in paragraph (a) to remove the responsibility for making the initial decision on an amendment application from the Director. This change allows the decision to grant or deny an amendment application to be delegated to the branch chief level. This would contribute to a more efficient use of agency resources and is comparable to 4

the process used for facilities regulated by the Commission under 1o CFR Parts 30, 40, and 70.

Section 76.45{b) would be deleted. The first sentence currently requires that the Director determine whether the proposed actMties are "significanr, and If so, follow the procedures specified in §§ 76.37 and 76.39. This sentence would be deleted because the procedures specified in§ 76.37 to be followed by the Director would become discretionary, and the procedures specified in§ 76.39 are currently discretionary. Accordingly, it would not be logical to compel the Director to follow either of them. This deletion would eliminate the current distinction between "significant" and "not significant" proposed activities. This deletion is intended to provide a more flexible and efficient regulatory process. However, the public's opportunity to follow each amendment action remains the same because licensing documents are placed in the Commission's Public Document Room, and the public would have an opportunity to file a petition for review of an amendment as described in proposed§ 76.45(d).

In addition, the last sentence in§ 76.45(b) would be deleted because decisions on certificate amendment applications would be delegated to the branch chief level. This delegation would be comparable to the process currently used for 1o CFR Part 30, 40, and 70 facilities .

• The current§ 76.45(c) would be redesignated as paragraph (b) because the current paragraph (b) would be deleted.

In proposed§ 76.45(c), the first sentence would provide that a certificate amendment would become effective when issued. This would allow the NRG staff to handle issues that need to be addressed quickly to avoid an unnecessary operational upset of a large gaseous diffusion plant, ensure adequate protection of public health and safety from radiological hazards, and/or provide for the common defense and security. The second sentence of 5

§ 76.45(c) would provide that the staff may, at its discretion, publish notice of its decision on an amendment application in the Federal Register. The staff would take this action, on a case-by-case basis, whenever warranted. For example, If the application does not address any new safety issues or there have not been any major changes to the facility or its operating procedures that would substantially increase the risk associated with the facility, then the staff may decide that a Federal Register notice is not necessary. This flexibility would allow the NRC to devote its resources to safety issues that have significant potential risk. Also, there is no requirement in the AEA to notice a certificate amendment application. Furthennore, the Commission does not notice similar actions for 10 CFR Parts 30, 40, and 70 facilities.

Currently, a decision on an amendment application may be appealed by filing a request for the Commission's review. Proposed § 76.45(d), concerning the staff's detennination on an amendment application, would establish procedures for the United States Enrichment Corporation (Corporation), or any person whose interests may be affected, to file a petition for the Directors review. Under the proposed rule, it is the initial determination on a certificate amendment application that would be delegated to the branch chief; therefore, it is logical for the Director to be the first level of review. This process would contribute to a more efficient use of agency resources because an appeal issue may be resolved by the Director and, thus, not need the Commission's review.

Proposed§ 76.45(e), concerning the Director's decision, would establish procedures for either the Corporation, or any person whose interests may be affected and who filed a petition for review or filed a response to a petition for review under§ 76.45(d), to file a petition for the Commission's review. This proposed rule would have the initial review of a staff determination on an amendment application rendered by the Director; therefore, it is logical for the 6

Commission to be the final level of review.

In § 76.62(c) the phrase, *who submitted written comments in response to the Federal Register notice on the application or compliance plan under § 76.37, or provided oral comments at any meeting held on the application or compliance plan conducted under § 76.39* would be removed. This would eliminate restrictions that limit those entities who may file a petition requesting review of the Director's decision regarding issuance of a certificate and/or approval of a compliance plan. Elimination of these restrictions is consistent with the Commission's practice for 10 CFR Parts 30, 40, and 70 facilities. Further, in the event that a Federal Register notice is not issued for a certificate renewal, the notice of the Director's decision would provide the first published opportunity for a person whose interest may be affected to be aware of the action. AJso, the number of days specified in§ 76.62(c) would be increased, 8:9-, 15 days becomes 30 days. This would provide more time for the Corporation or other member of the public whose interests may be affected to file a petition for review on a certificate renewal action, since the time period for a certificate renewal was recently extended from annually to up to 5 years and, therefore, the need to act within 15 days because of the time constraint

• associated with annual renewals has been removed. AJso, the sentence, *unless the Commission grants the petition for review or otherwise acts within 60 days after the publication of the Federal Register notice, the Director's initial decision on the certificate application or 0

compliance plan becomes effective and final, would be revised to read: lf the Commission M

does not issue a decision or otherwise act within 90 days after the publication of the Federal Register notice, the Director's decision remains in effect.* This change would make clear that the Director's decision is effective upon issuance and would eliminate a potential 60-day suspension of the effectiveness of the Director's decision, if a petition for review is filed. The Director's decision would remain in effect unless it is changed ~y the Commission. This 7

procedure would also be more consistent with the process for license renewals pursuant to 10 CFR Parts 30, 40, and 70. In addition, to accommodate the increased time for both filing a petition for review and responding to a petition, the time provided for the Commission to act would be increased from 60 to 90 days following publication of the Federal Register notice.

The changes made in § 76.62(c) would also be made in § 76.64{d) for the same reasons.

In the introductory text of § 76.91, reference to § 76.35{d) would be changed to

§ 76.35(f) to correct a typographical error.

In addition, Part 76 would be modified to remove references to the initial application that are no longer relevant because the initial certificates have been 'issued. In§§ 76.33 (a)(1), (b),

{c), (d), and {e), and 76.35, references to *initial" would be removed. Section 76.9 (c) would be removed as no longer relevant because of the reference to the initial certification application.

Phrases in§§ 76.21 {a), 76.36(a), 76.60(e)(2), and 76.91 (n) concerning initial certification would be removed. References in§§ 76.7(e)(1), 76.60(c)(2), 76.60{d)(2), and 76.60(e)(1) to the NMSS Director's initial decision would be removed.

Section 76.33 would also be amended to correct a printing error in the regulatory text.

In § 76.33{a){2) the redundant phrase "the names, addresses, and citizenship of its principal office,* would*be removed.

8

Environmental Impact: Categorical Exclusion The NRC has determined that this regulation is the type of action described as a categorical exclusion in 10 CFR 51.22(c)(1) and (3). Therefore, neither an environmental Impact statement nor an environmental assessment has been prepared for this proposed rule.

Paperwork Reduction Act Statement The information collection requirements contaJned in this part of limited applicability apply to a wholly-owned instrumentality of the United States. Therefore, Office of Management and Budget clearance is not required pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 5301 et seq).

Regulatory Analysis This proposed rulemaking would modify the process for certificate renewals, establish a

• process for certificate amendments comparable to the process currently used to amend a fuel cycle license, revise the appeal process for amendments, eliminate the "significant" designation for amendments, simplify the criteria for persons who are eligible to file a petition for review of an amendment action, remove references to the initial application because the initial certificates have been issued, and lengthen the time periods associated with filing a petition for review.

Although current 10 CFR Part 76 contains a process for certificate amendment and the GDP certificates have been amended several times, these licensing actions have identified that the process described in § 76.45 has several deficiencies that should be corrected and that the 9

/

process should be revised and improved so that it is more effective and efficient, as discussed above. The proposal being considered parallels the process currently used for 10 CFR Parts 30, 40, and 70 facilities. It also removes the ambiguity associated with determining who can petition the NRC for review of an amendment application decision.

Also, since the staMe has been amended to allow up to a 5-year certificate renewaJ period instead of an annual certificate renewaJ requirement, the lengthened certificate period has permitted consideration of improvements to the certificate renewal process. Because the time constraints of an annual certification process have been removed, appropriate changes to

• the time for appeals and lifting of restrictions on who may appeaJ a certification decision ih the proposed rule would more closely resemble the process for renewaJ of materials licenses under 10 CFR Parts 30, 40, and 70.

A no-change option would maintain the deficiencies and ambiguities in both processes and would not result in an improved process which is more effective and efficient.

Impacts on the Corporation An uncomplicated certificate amendment process is expected to provide a more timely regulatory process. If the identified deficiencies and ambiguities in the amendment process are not corrected, there is a potential for expense due to plant operationaJ delays and reduced efficiencies that may be related to amendment requests. However, clarification of who can petition the Director for review of a staff determination on an amendment application and/or extension of the period for reque;Sting a review may result in additional petitions. Similarly, the lifting of restrictions on who can petition for review of a certification renewal decision and the lengthening of the time for such petitions may result in additional petitions. This rulemaking is not expected to have any adverse economic impacts on the Corporation.

10

Benefit An uncomplicated process for certificate amendment is expected to result in a more effective and efficient NRC review process that would provide more timely completion of amendment reviews. Clarification of who can petition the Director for review of a certificate amendment determination would remove undesirable ambiguities. Specifically, the proposed*

rule would remove a restriction on who could petition for review by eliminating the current requirement that a petition for review only be filed by a person who had previously provided comments. The proposed rule would allow anyone whose interests may be affected to file a petition for review. Also, extension of the time periods associated with filing a petition for review would provide more time for the public to participate In the amendment process. The proposed rule also provides the same removal of restrictions on who may petition for review of a certification renewal decision and extension of time for petitions for review of a certification renewal decision. Further, the proposed rule provides the staff discretion in publishing the Federal Register notice of receipt of the application for Certificate renewal. Exercise of this discretion permits the staff to use its resources in the most effective and efficient manner.

Preferred Option The preferred option is to amend the regulations to eliminate ambiguities, reduce inefficiencies, better define the processes for certificate renewals and amendments, allow immediately effective amendments, and allow more time for public participation, while continuing to ensure adequate protection of public health and safety.

This constitutes the regulatory analysis for the proposed rule.

11

Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Commission certifies that this rulemaklng will not have a significant economic impact on a substantial number of small entities because it only addresses the United States Enrichment Corporation or its successor. The Corporation does not fall within the scope of the definition of "small entities*

set forth in 10 CFR 2.810 or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121.

Backfit Analysis The NRC has detennined that the backfit rule does not apply to this proposed rule; therefore, a backfit analysis is not required for this proposed rule because these amendments do not involve any provisions that would impose backfits as defined in 10 CFR chapter I.

List of Subjects in 10 CFR Part 76 Certification, Criminal penalties, Radiation protection, Reporting and recordkeeping requirements, Security measures, Special nuclear material, Uranium enrichment by gaseous diffusion .

For the reasons set out in the preamble and under the authority of the Atomic Energy I

Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C.

553; the NRC is proposing to adopt the following amendments to 10 CFR Part 76.

12

PART 76--CERTIFICATION OF GASEOUS DIFFUSION PLANTS

1. The authority citation for Part 76 continues to read as follows:

AUTHORITY: Secs. 161, 68 Stat. 948, as amended, secs. 1312, 1701, as amended, 10_6 Stat. ?932, 2951, 2952, 2953, 110 Stat. 1321-349 (42 U.S.C. 2201, 2297b-11, 2297f);

secs. 201, as amended, 204,206, 88 Stat. 1244, 1245, 1246 (42 U.S.C. 5841, 5842, 5845, 5846); sec. 234(a), 83 Stat. 444, as amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243(a)) .

Sec. 76.7 also issued under Pub. L.95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851).

Sec. 76.22 is also issued under sec. 193(f), as amended, 104 Stat. 2835, as amen~ed by Pub.

L. 104-134, 110 Stat. 1321, 1321-349 {42 U.S.C. 2243(f)). Sec. 76.350) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152).

2. In§ 76.7, paragraph (e)(1) is revised to read as follows:

§ 76. 7 Employee protection.

(e)(1) The Corporation shall prominently post the revision of NRC Form 3, "Notice to Employees,* referenced in 10 CFR 19.11 (c). This form must be posted at locations sufficient to permit employees protected by this section to observe a copy on the way to or from their place of work. Premises must be posted during the term of the certificate, and for 30 days following certificate termination.

13

3. In § 76.9, paragraph (c) is removed.

4. In § 76.21, paragraph (a) is revised to read as follows:

§ 76.21 Certificate required.

(a) The Corporation or its contractors may not operate the gaseous dttfusion plants at Piketon, Ohio, and Paducah, Kentucky, unless an appropriate certificate of compliance, and/or an approved compliance plan is in effect pursuant to this part. Except as authorized by the NRC under other provisions of this chapter, no person other than the Corporation or its contractors may acquire, deliver, receive, possess, use, or transfer radioactive material at the gaseous diffusion plants at Piketon, Ohio, and Paducah, Kentucky.

5. Section 76.33 Is revised to read as follows:

§ 76.33 Application procedures.

(a) Filing requirements.

(1) An application for a certificate of compliance must be tendered by filing 20 copies of the application with the Director, Office of Nuclear Material Safety and Safeguards, with copies sent to the NRC Region Ill Office and appropriate resident inspector, in accordance with§ 76.5 of this part.

(2) The application must include the full name, address, age (if an indMdual), and citizenship of the applicant. If the applicant is a corporation or other entity, it shall indicate the State where it was incorporated or organized, the location of the principal office, the names, addresses, and citizenship of its principal officers, and shall include information known to the 14

applicant concerning the control or ownership, if any, exercised over the applicant by any alien, foreign corporation, or foreign government.

(b) Oath or affirmation. An application for a certificate of compliance must be executed in a signed original by a duly authorized officer of the Corporation under oath or affirmation.

(c) Pre-filing consultation. The Corporation may confer with the Commission's staff betore filing an application.

(d) Additional information. At any time during the review of an application, the Corporation may be required to supply additional information to the Commission's staff to enable the Commission or the Director, as appropriate, to determine whether the certificate should be issued or denied, or to determine whether a compliance plan should be approved.

(e) Withholdabie information. An application which contains Restricted Data, National Security Information, Safeguards Information, Unclassified Controlled Nuclear Information, proprietary data, or other withholdable Information, must be prepared in such a manner that all such information or data are separated from the information to be made available to the public.

6. In § 76.35, the section heading and introductory paragraph are revised to read

• as follows:

§ 76.35 Contents of application.

The application for a certificate of compliance must include the Information identified in this section.

7. In § 76.36, paragraph (a) is revised to read as follows:

15

§ 76.36 Renewals.

(a) The Corporation shall file periodic applications for renewal, as required by § 76.31.

8. Section 76.37 is revised to read as follows:

The Director may, at his or her discretion, publish in the Federal Register.

(a} A notice of the filing of an application for renewal (specifying that copies of the application, except for Restricted Data, Unclassified Controlled Nuclear Information, Classified National Security Information, Safeguards Information, Proprietary Data, or other wlthholdable information will be made available for public inspection In the Commission's Public Document Room at 2120 L Street, NW. (Lower Level), Washington, DC, and in the local public document room at or near the location of the plant);

(b) A notice of opportunity for written public comment on the application for renewal; and (c) The date of any scheduled public meeting regarding the application for renewal.

9. In § 76.39, paragraphs (a}, the introductory text of (b), (b)(1 }, and (b)(4) are revised to read as follows:

(a} A public meeting will be held on an application for renewal if the Director, in his or her discretion, determines that a meeting is In the public interest with respect to a decision on the application for renewal.

(b) Conduct of public meeting.

(1) The Director shall conduct any public meeting held on the application for renewal.

16

(4) Members of the public will be given an opportunity during a public meeting to make their views regarding the application for renewal known to the Director.

1O. Section 76.45 is revised to read as follows:

§ 76.45 Application for amendment of certificate.

(a) Contents of amendment application. In addition to the application for certification submitted pursuant to § 76.31, the Corporation may at any time apply for amendment of the certificate to cover proposed new or modified actMties. The amendment application should contain sufficient information to make findings of compliance or acceptability for the proposed actMtJes as required for the original certificate.

(b) Oath or affirmation. An application for an amendment of the certificate of compliance must be executed in a signed original by the Corporation under oath or affirmation.

(c) Amendment Application Determinations. If the NRC staff approves an application for a certificate amendment, it will be effective when issued by the NRC staff to the Corporation.

If an application for a certificate amendment is not approved by the NRC staff, the Corporation will be informed in writing. The NRC staff may, at its discretion, publish notice of its determination on an amendment application in the Federal Register.

(d) Requ6St for review of staffs determination on an amendment application. The Corporation, or any p~rson whose interest may be affected, may file a petition requesting the Director's review of a NRC staff determination on an amendment application. A petition requesting the Director's review may not exceed 30 pages and must be filed within 30 days after the date of the staff's determination. Any person described in this paragraph may file a written response to a petition requesting the Director's review. This response may not exceed 17

30 pages and must be filed within 15 days after the filing date of the petition requesting the Director's review. The Director may adopt, modify, or set aside the findings, conclusions, conditions, or terms in the staff's amendment determination by providing a written basis for the action. If the Director does not issue a decision or otherwise act within 60 days after receiving the petition for review, the statrs determination on the amendment application remains in effect.

(a) Request for review of s Director's decisfdn. The Corporation, or any person whose interest may be affected and who filed a petition for review or filed a response to a petition for review under§ 76.45(d), may file a petition requesting the Commission's review of a Director's decision on an amendment application. A petition requesting the Commission's review may not exceed 30 pages and must be filed within 30 days after the date of the Director's decision. A petition requesting the Commission's review may be either: {i) delivered to the Rulemakings and Adjudications Branch of the Office of the Secretary at One White Flint North, 11555 Rockville Pike, Rockville, MD 20852, or (ii) sent by mail or telegram to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff. Any person described in this paragraph may file a written response to a petition requesting the Commission's review. This response may not exceed 30 pages and must be filed within 15 days after the filing date of the petition requesting the Commission's review. The Commission may adopt, by order, further procedures that, In Its judgment, would serve the purpose of review of the Director's decision. The Commission may adopt, modify, or set aside the findings, conclusions, conditions, or terms in the Director's amendment review decision and will state the basis of its action in writing. If the Commission does not issue a decision or otherwise act within 90 days after receiving the petition for review, the Director's decision, under§ 76.45(d), on the amendment application remains in effect.

18

11. In§ 76.60, paragraphs (c)(2), (d)(2}, (e)(1), and (e)(2) are revised to read as follows:

§ 76.60 Regulatory requirements which apply.

(c) * * *

(2) The Corporation shall post NRC Form 3 during the term of the certificate and for 30 days following certificate termination.

{d} * * *

(2) The Corporation shall comply wtth the requirements in this part or as specified In an approved plan for achieving compliance.

(e) * * *

(1) The Corporation shall comply with the requirements In §§ 21.6 and 21.21.

(2) Under § 21.31, procurement documents issued by the Corporation must specify that the provisions of 10 CFR Part 21 apply.

12. In§ 76.62, paragraph (c) is revised to read as follows:

§ 76.62 Issuance of certificate and/or approval of compliance plan.

(c) The Corporation, or any person whose interest may be affected, may file a petition, not to exceed 30 pages, requesting review of the Director's decision. This petition must be filed with the Commission not later than 30 days after publication of the Federal Register notice.

Any person described in this paragraph may file a response to any petition for review, not to 19

exceed 30 pages, within 15 days after the filing of the petition. If the Commission does not Issue a decision or otherwise act within 90 days after the publication of the Federal Register notice, the Director's decision remains in effect. The Commission may adopt, by order, further procedures that, in its judgment, would serve the purpose of review of the Director's decision.

13. In § 76.64, paragraph (d) is revised to read as follows:

§ 76.64 Denial of certificate or compliance P!an, (d) The Corporation, or any person whose interest may be affected, may file a petition for review, not to exceed 30 pages, requesting review of the Director's decision. This petition for review must be filed with the Commission not later than 30 days after publication of the Federal Register notice. Any person described in this paragraph may file a response to any petition for review, not to exceed 30 pages, within 15 days after the filing of the petition for review. If the Commission does not issue a decision or otherwise act within 90 days after the publica.tlon of the Federal Register notice, the Director's decision remains in effect. The Commission may adopt, by order, further procedures that, in its judgment, would serve the purpose of review of the Director's decision.

14. In§ 76.91, the introductory text and paragraph (n) are revised to read as follows:

§ 76.91 Emergency planning.

The Corporation shall establish, maintain, and be prepared to follow a written emergency plan. The emergency plan submitte~ under § 76.35(f) must .include the following information:

20 '

(n) Comment from offsite response organizations. The Corporation shall allow the offsite response organizations expected to respond In case of an accident 60 days to comment on the emergency plan before submitting it to NRC. The Corporation shall provide any comments received within the 60 days to the NRC with the emergency plan.

Dated at Rockville, Maryland, this C/ rt_!: day of September, 1998.

For the Nuclear Regulatory Commission.

Joh . Hoyle, 0----

Se etary of the Commission.

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