[Federal Register Volume 62, Number 29 (Wednesday, February 12, 1997)]
[Rules and Regulations]
[Pages 6664-6671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3467]
[[Page 6663]]
_______________________________________________________________________
Part IV
Nuclear Regulatory Commission
_______________________________________________________________________
10 CFR Part 2, et al.
USEC Privatization Act: Certification and Licensing of Uranium
Enrichment Facilities; Final and Proposed Rule Policy and Procedure for
Enforcement Actions; Policy Statement; Notice
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 /
Rules and Regulations
[[Page 6664]]
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2, 40, 70, and 76
RIN 3150-AF56
USEC Privatization Act: Certification and Licensing of Uranium
Enrichment Facilities
AGENCY: Nuclear Regulatory Commission.
ACTION: Direct final rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations concerning the certification and licensing of uranium
enrichment facilities to conform to changes made to the Atomic Energy
Act of 1954, as amended (the Act), by the USEC Privatization Act
legislation. Although the principal effect of this legislation is to
direct the Board of Directors of the United States Enrichment
Corporation (USEC) to sell the assets of the USEC to a private sector
entity, this legislation also amended the Act with respect to NRC
certification of gaseous diffusion plants leased by USEC and the
licensing of atomic vapor laser isotope separation (AVLIS) technology.
USEC is responsible for the operation of the two gaseous diffusion
plants and the development of the AVLIS technology.
The legislation requires that AVLIS uranium enrichment facilities
be licensed subject to the provisions of the Act pertaining to source
material and special nuclear material rather than under the provisions
pertaining to a production facility; provides for the issuance of civil
penalties to USEC or its successor for failure to comply with
regulatory requirements governing the operation of gaseous diffusion
plants; prohibits issuance of a license/certificate to the Corporation
or its successor if it is owned, controlled, or dominated by an alien,
a foreign corporation, or a foreign government, or if its issuance
would be inimical to the common defense and security of the United
States or to the maintenance of a reliable and economical domestic
source of enrichment services; and eliminates the annual requirement
that the Commission certify that USEC or its successor is in compliance
with NRC regulations. The Commission may determine how frequently USEC
or its successor must submit a recertification application to the NRC,
provided that the NRC recertify USEC's or its successor's compliance
with its regulations not less frequently than every five years. The
adopted rule changes bring the current regulations into conformance
with these provisions.
DATES: The final rule is effective on April 14, 1997 unless significant
adverse comments are received by March 14, 1997. If the effective date
is delayed, timely notice will be published in the Federal Register.
ADDRESSES: Mail written comments to: The Secretary, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001. ATTN: Docketing and
Service Branch.
Hand deliver comments to: 11555 Rockville Pike, Rockville, MD,
between 7:30 am and 4:15 pm on Federal workdays.
For information on submitting comments electronically, see the
discussion under Electronic Access in the Supplementary Information
Section.
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. C. W. Nilsen, Office of Nuclear
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone (301) 415-6209.
SUPPLEMENTARY INFORMATION:
Background
On April 26, 1996, President Clinton signed legislation that
provides for fiscal year (FY) 1996 appropriations to a number of
Federal agencies (H.R. 3019 (Pub. L. 104-134)). Included within the
legislation is Title III, Chapter 1, entitled ``USEC Privatization
Act,'' which directs the Board of Directors of the United States
Enrichment Corporation (USEC) to sell the assets of the USEC to a
private sector entity. The private sector corporation that purchases
the assets of USEC will be responsible for the operation of the gaseous
diffusion plants known as the Portsmouth Plant and the Paducah Plant,
located at Piketon, Ohio, and Paducah, Kentucky, respectively, and the
development of the atomic vapor laser isotope separation (AVLIS)
technology. In addition, the legislation amended the Atomic Energy Act
of 1954, as amended (the Act), with respect to the certification of
gaseous diffusion plants and licensing of an AVLIS uranium enrichment
facility. The gaseous diffusion plants are regulated under 10 CFR Part
76, ``Certification of Gaseous Diffusion Plants.'' Operation of an
AVLIS uranium enrichment facility will be licensed under 10 CFR Parts
40, ``Domestic Licensing of Source material'' and 70, ``Domestic
Licensing of Special Nuclear Material.''
Discussion
A principal effect of Pub. L. 104-134 on NRC licensing actions is
that the referenced AVLIS uranium enrichment facilities will be
licensed pursuant to the provisions of the Act pertaining to source
material and special nuclear material rather than the provisions
pertaining to a production facility. Under this legislation, AVLIS
licensing will be a single-step licensing process with one license
issued pursuant to 10 CFR parts 40 and 70, rather than a two-step
licensing process under 10 CFR part 50. The regulations previously were
amended on April 30, 1992 (57 FR 18388) to conform with the ``Solar,
Wind, Waste, and Geothermal Power Production Incentives Act of 1990,''
(Pub. L. 101-575) by providing a single-step process for licensing
uranium enrichment. The April 30, 1992 amendments also made 10 CFR part
70 the basic regulation for licensing a uranium enrichment facility.
Although the 1990 legislation specifically excluded AVLIS uranium
enrichment, then under development by the Department of Energy, from
the one-step licensing process, Pub. L. 104-134 made the development of
AVLIS a responsibility of USEC (which will become a private entity as a
result of this legislation) and removed the exclusion of AVLIS from
one-step licensing. Therefore, licensing of AVLIS, as with other
licensed uranium enrichment facilities, will be a one-step process
requiring an environmental review, adjudicatory hearing, inspection
before operation, and third party liability insurance. However, for
other purposes of the Act, such as controlling the export of specially
designed or prepared uranium enrichment equipment and preservation of
Federal authority in Agreement States, all uranium enrichment
facilities regulated by the NRC remain under the Atomic Energy Act
provisions for production facilities. Specific implementing amendments
are as follows:
In 10 CFR 70.1, ``Purpose'' is revised to indicate that all uranium
enrichment facilities requiring a license will be licensed under 10 CFR
part 70, ``Domestic Licensing of Special Nuclear Material.''
In 10 CFR 40.4 and 70.4, ``Definitions'' the term Corporation is
added to refer appropriately to the licensing of the Corporation or its
successor for operation of an AVLIS facility.
In 10 CFR 76.4, ``Definitions'' the term Corporation is amended to
include the successor to USEC.
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In addition, in conformance with the 1996 legislation, provisions
are made in 10 CFR parts 2 and 76 to allow the NRC to impose civil
penalties on the USEC or its successor for failure to comply with
regulatory requirements governing the operation of the gaseous
diffusion plants regulated under 10 CFR part 76. Civil penalty
authority presently contained in 10 CFR part 70 would apply to AVLIS
licensing. Furthermore, the ``General Statement of Policy and
Procedures for NRC Enforcement Action'' NUREG-1600, is being
supplemented to provide examples of violations in each of the four
severity levels as guidance in determining the appropriate severity
level for violations in the area of gaseous diffusion plant operations.
Specific implementing amendments are as follows:
In 10 CFR 2.200(a) concerning the scope of subpart B of part 2, a
new sentence is added to read as follows: ``However, with regard to the
holder of a part 76 Certificate of Compliance or Compliance Plan,
except for civil penalty procedures in this subpart, the applicable
procedures are set forth in Sec. 76.70.'' This will clarify that the
provisions governing the issuance of an order or notice of violation to
the holder of a certificate of compliance or compliance plan under 10
CFR part 76 are contained in Sec. 76.70 but the civil penalty
procedures in subpart B of part 2 are applicable to these entities.
In 10 CFR 2.205(a), a reference to the Sec. 76.70(d), ``notice of
violation,'' and a reference to the provisions of a 10 CFR part 76,
``certificate of compliance or compliance plan,'' are added because the
Commission now has authority to issue civil penalties to the
Corporation for violation of its regulations.
Similarly, in 10 CFR 76.10(b), the last phrase, ``except, that the
Corporation is not subject to the authority of Section 234 of the
Act,'' is eliminated because the Corporation is now subject to Section
234 of the Act.
10 CFR 76.60 (c)(1) and (d)(1) are removed. These paragraph
designations are reserved and the last phrase of Sec. 76.60(i),
``provided, however, that civil penalties shall not be imposed on the
Corporation pursuant to Sec. 95.61 of this chapter except for
violations of Section 206 of the Energy Reorganization Act'' is also
eliminated. These prohibitions on issuing civil penalties are removed
to permit the imposition of civil penalties. In 10 CFR 76.72(d), a
reference to the new Section 234 civil penalty authority is added.
The 10 CFR 76.131(a)(3) reference to Title XI of the Energy Policy
Act of 1992, is eliminated because this act's applicable provisions
were amendments to the Atomic Energy Act of 1954. Reference to Section
206 of the Energy Reorganization Act has been relocated from
Sec. 76.131(b) to paragraph (b)(2). References to violations under
Section 234 of the Atomic Energy Act of 1954, as amended, and specific
references to sections of the Act are added as paragraphs (b)(1),
(b)(3), and (b)(4) to describe the new civil penalty authority.
A provision is also added stating that the Commission will not
issue a license or certificate to the Corporation or its successor if
the Commission finds that the Corporation is owned, controlled, or
dominated by an alien, a foreign corporation, or a foreign government,
or that issuance would be inimical to the common defense and security
of the United States or to the maintenance of a reliable and economical
domestic source of enrichment services. This provision is added to
conform with the legislation which includes specific language that
restricts issuance of a certificate or a license to the USEC or its
successor if the issuance would be inimical to the maintenance of a
reliable and economical domestic source of enrichment services.
Heretofore, the Commission has not been asked in its regulatory
decisions to evaluate whether a proposed action is inimical to the
viability of the domestic industries subject to NRC's regulation.
Information about the intent of the language is contained in a Senate
Committee report on an earlier version of the legislation (S. Rpt. No.
104-173 on S. 755, November 17, 1995), which states that the provision
is to ``guard against the possibility of a foreign uranium enrichment
company acquiring the Corporation with the intent of operating it in
such a manner inconsistent with its maintenance as an ongoing uranium
enrichment concern.'' The report further states that no certificate or
license should be issued ``if in the opinion of the NRC the issuance of
such a license or certificate of compliance would be inimical to the
common defense and security of the United States or would be inimical
to the maintenance of a reliable and economical domestic source of
enrichment services because of the nature and extent of the ownership,
control, or domination of the Corporation by a foreign corporation or a
foreign government or any other relevant factors or circumstances.''
To comply with this provision of the 1996 legislation, the NRC
staff will evaluate this restriction on certification and licensing
based, in part, on the following:
Information required under Secs. 70.22 and 76.33 ``information
known to the applicant concerning the control or ownership, if any,
exercised over the applicant by any alien, foreign corporation, or
foreign government.''
Information to be obtained under a proposed rule (61 FR 40555;
August 5, 1996) amending the provisions of 10 CFR parts 25 and 95 that
deal with requirements for access to and protection of classified
information. (The Commission expects to adopt this proposed rule as a
final rule in January of 1997.) These amendments were proposed to
conform the NRC's regulations with the nationally applicable
requirements for the protection of and access to classified National
Security Information, which have been revised through the issuance of
the National Industrial Security Program Operating Manual (NISPOM),
published January 1995; Executive Order 12958, ``Classified National
Security Information,'' dated April 17, 1995; and Executive Order
12968, ``Access to Classified Information,'' dated August 4, 1995.
Specifically, as related to foreign ownership, control, or domination,
the NISPOM provides criteria for determining whether U.S. companies
handling classified material are under foreign ownership, control, or
influence (FOCI). FOCI requirements established in proposed revisions
to 10 CFR part 95 are considered useful to the subject finding the
Commission must make under the provisions of the 1996 legislation. This
is especially so based upon the sensitive nature of the facilities and
USEC's role, and the fact that USEC will have access to classified
information and equipment.
Further, the existing regulations (Secs. 40.31(b), 70.22(d), and
76.33(d)) reflect NRC authority under the Atomic Energy Act to require
that an applicant, licensee, or certificate holder submit additional
information concerning issuance of a license or certificate. Therefore,
under these provisions USEC also may be required to submit additional
information addressing whether issuance would be inimical to the
maintenance of a reliable and economical domestic source of enrichment
services. The staff is considering whether there are specific
additional information needs and will recommend to the Commission
whether further amendments to the regulations are warranted. In
addition the staff is preparing procedures for developing the required
annual report to Congress and guidance for recertification, and
developing procedures to consider the issues of foreign ownership and
control, and inimicalness to the common defense and security and to a
reliable and economical supply of domestic enrichments services.
Specific
[[Page 6666]]
implementing amendments are as follows:
New sections 10 CFR 40.38 and 70.40 entitled ``Ineligibility of
certain applicants,'' are added to state that the NRC will not issue a
license to operate an AVLIS enrichment facility to the Corporation if:
(1) It is owned, controlled, or dominated by an alien, a foreign
corporation, or a foreign government;
(2) Issuance would be inimical to the common defense and security
of the United States; or
(3) Issuance would be inimical to the maintenance of a reliable and
economical domestic source of enrichment services.
A new section 10 CFR 76.22 entitled ``Ineligibility of certain
applicants,'' is added that states that the NRC will not issue a
certificate of compliance to the Corporation under these parts if:
(1) It is owned, controlled, or dominated by an alien, a foreign
corporation, or a foreign government;
(2) Issuance would be inimical to the common defense and security
of the United States; or
(3) Issuance would be inimical to the maintenance of a reliable and
economical domestic source of enrichment services.
Another provision in the legislation eliminates the requirement
that the NRC must certify that USEC or its successor's operation of the
gaseous diffusion plants is in compliance with NRC regulations each
year. Instead, the Commission may determine how frequently the USEC or
its successor must submit a recertification application to the NRC.
However, NRC must recertify the Corporation's compliance at least every
5 years. The initial certification, granted in a September 19, 1996
Director's decision, was made effective for 2 years to permit most
items of USEC's compliance plan to be completed. As part of the
certification process, the compliance plan details how the Corporation
will achieve compliance with NRC regulations in transition from the
operation of the gaseous diffusion plants under the requirements of the
Department of Energy to operation under the regulatory authority of the
NRC. Subsequent recertification will be based on a number of
considerations, including implementation status of compliance plans and
certification regulatory experience as determined by the NRC's
inspection program. The exact term of each certification will be
specified in the certificate. As noted in a Senate Committee report on
a previous version of the legislation (S. Rpt. No. 104-173 on S. 755,
November 17, 1995, page 31), ``With periodic certification, the NRC
would have the flexibility to determine the appropriate length of
certification, not to exceed five years.'' Specific implementing
amendments are as follows:
10 CFR 76.31 is revised to provide for periodic application for
recertification of compliance on or before April 15 of the year
specified in an existing certificate of compliance as determined by the
Commission, but not less frequently than every 5 years.
Accordingly, in 10 CFR 76.35, 76.36, 76.43, 76.45, 76.55, and 76.66
references to annual recertification are removed.
10 CFR 76.68 is revised to provide that the Corporation or its
successor will continue to submit revised change pages to their
approved application and safety analysis report annually to ensure
current plant documentation, even though the requirement for an annual
application has been removed.
In addition, in response to the ``Rulemaking Plan--USEC
Privatization Act,'' which was made available to the public on the NRC
electronic bulletin board, USEC by letter dated November 13, 1996,
provided comment concerning the rulemaking action (enclosure 3). In
their letter USEC provided proposed revisions to CFR parts 76, 70, and
40 for the purposes of implementing the USEC Privatization Act, and
proposed language to Sec. 76.45 to clarify the agency's intention
concerning Director's decision on applications for amendments to the
Certificate. USEC also proposed deleting certain sections which in
their view are immaterial now that the Director's decision on the
initial certification has been issued. With respect to the first item,
no new information was provided beyond that which the staff had already
considered in this direct final rulemaking. The other USEC proposed
revisions are not included as a part of this limited scope direct final
rulemaking as they are not revisions to the Commission's regulations
which are required by the legislative amendments to the Act being here
codified.
The Commission is proceeding with this rulemaking to amend 10 CFR
parts 2, 40, 70, and 76 as required to implement section 3116 of Pub L.
104-134. To conform with these changes to the Act, the amendments in
this rule contain several new and revised AVLIS licensing and gaseous
diffusion plant certification requirements specific to the
Corporation's and its successor's operation of uranium enrichment
facilities.
In summary, the amendments to 10 CFR chapter I are being made to:
(a) Provide that uranium enrichment facilities will be licensed
under 10 CFR part 70, Domestic Licensing of Special Nuclear Material
(See Sec. 70.1);
(b) Add and amend where needed the definition of ``Corporation'' to
include the USEC privatized entity (See Secs. 40.4, 70.4 and 76.4);
(c) Note that the Commission will not issue a license/certificate
if the Commission finds that USEC or its successor is under foreign
ownership or control or that issuance would be inimical to the common
defense and security or to the maintenance of a reliable and economical
source of domestic enrichment services (See Secs. 40.38, 70.40, and
76.22);
(d) Amend the provision concerning periodic recertification for
operation (See Secs. 76.31, 76.35(n), 76.36(a), 76.43, 76.45(a), 76.55,
76.66 and 76.68(b)); and
(e) Note and clarify the authority to issue civil penalties to USEC
or its successor for regulatory violations (See Secs. 2.200(a),
2.205(a), 76.10(b), 76.60, 76.72(d) and 76.131).
The NRC is also amending the regulations in 10 CFR part 76 to
correct several miscellaneous errors in the regulatory text. These
errors in the Code of Federal Regulations text occurred in the process
of preparing and printing the final rule published on September 23,
1994 (59 FR 48944). Specifically: in Sec. 76.21(b) the reference to
Sec. 40.41 should be to Sec. 40.51; in Secs. 76.111 and 76.113
``uncontrolled classified'' should be ``Unclassified Controlled''
Nuclear Information, and in Sec. 76.76(a)(2) the ``(c)'' should be
``(b).'' In addition, the definition of ``Uranium enrichment plant'' is
removed from Sec. 76.4 because it is neither needed nor used in part
76, which is specific to gaseous diffusion plants.
Furthermore, the NRC is amending the regulations in 10 CFR part 2
to reflect an agency reorganization. Specifically: in Sec. 2.205
paragraphs (a), (d), (g) and (h) all references to the ``Deputy
Executive Director for Nuclear Materials Safety, Safeguards, and
Operations Support, or the Deputy's designee'' are changed to read
``Executive Director for Operations or the Executive Director's
designee.''
Electronic Access
Comments may be submitted electronically, in either ASCII text or
WordPerfect format (version 5.1 or later), by calling the NRC
Electronic Bulletin Board (BBS) on FedWorld. The Bulletin Board may be
accessed using a personal computer, a modem, and one of the commonly
available communications software packages, or directly via Internet.
Background documents on the rulemaking are also
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available, as practical, for downloading and viewing on the Bulletin
Board.
If using a personal computer and modem, the NRC rulemaking
subsystem on FedWorld can be accessed directly by dialing the toll free
number (800) 303-9672. Communication software parameters should be set
as follows: parity to none, data bits to 8, and stop bits to 1 (N,8,1).
Using ANSI or VT-100 terminal emulation, the NRC rulemaking subsystem
can then be accessed by selecting the ``Rules Menu'' option from the
``NRC Main Menu.'' Users will find the ``FedWorld Online User's
Guides'' particularly helpful. Many NRC subsystems and data bases also
have a ``Help/Information Center'' option that is tailored to the
particular subsystem.
The NRC subsystem on FedWorld can also be accessed by a direct dial
phone number for the main FedWorld BBS, (703) 321-3339, or by using
Telnet via Internet: fedworld.gov. If using (703) 321-3339 to contact
FedWorld, the NRC subsystem will be accessed from the main FedWorld
menu by selecting the ``Regulatory, Government Administration and State
Systems,'' then selecting ``Regulatory Information Mall.'' At that
point, a menu will be displayed that has an option ``U.S. Nuclear
Regulatory Commission'' that will take you to the NRC Online main menu.
The NRC Online area also can be accessed directly by typing ``/go nrc''
at a FedWorld command line. If you access NRC from FedWorld's main
menu, you may return to FedWorld by selecting the ``Return to
FedWorld'' option from the NRC Online Main Menu. However, if you access
NRC at FedWorld by using NRC's toll-free number, you will have full
access to all NRC systems, but you will not have access to the main
FedWorld system.
If you contact FedWorld using Telnet, you will see the NRC area and
menus, including the Rules Menu. Although you will be able to download
documents and leave messages, you will not be able to write comments or
upload files (comments). If you contact FedWorld using FTP, all files
can be accessed and downloaded but uploads are not allowed; all you
will see is a list of files without descriptions (normal Gopher look).
An index file listing all files within a subdirectory, with
descriptions, is available. There is a 15-minute time limit for FTP
access.
Although FedWorld also can be accessed through the World Wide Web,
like FTP, that mode only provides access for downloading files and does
not display the NRC Rules Menu.
For more information on NRC bulletin boards call Mr. Arthur Davis,
Systems Integration and Development Branch, NRC, Washington, DC 20555-
0001, telephone (301) 415-5780; e-mail AXD3@nrc.gov.
Procedural Background
The NRC considers this action noncontroversial and routine because
it implements specific statutory requirements (Pub. L. 104-134).
Therefore, the Commission is approving it without seeking public
comments on proposed amendments. This action will become effective on
April 14, 1997. However, if the NRC receives significant adverse
comments by March 14, 1997, the NRC will withdraw this action and
address the significant adverse comments received in response to the
revisions published in this document before a final rule becomes
effective. The NRC will not initiate a second comment period on this
action.
Revision to NUREG-1600, ``General Statement of Policy and Procedures
for NRC Enforcement Actions''
Concurrently with this direct final rule the Commission is
publishing a document elsewhere in this issue of the Federal Register
that amends NUREG-1600, ``General Statement of Policy and Procedures
for NRC Enforcement Action'' which provides examples of violations in
each of the four severity levels as guidance in determining the
appropriate severity level for violations in the areas of fuel cycle
and gaseous diffusion plant operations. The amendment is to Supplement
VI, ``Fuel Cycle and Materials Operations,'' which provides additional
examples of violations that should be categorized at Severity Levels I,
II, III, and IV. In addition, the Enforcement Policy is being amended
to establish base civil penalties for GDPs. The policy recognizes that
regulatory requirements have varying degrees of safety, safeguards, or
environmental significance. Therefore, the relative importance of each
violation, including both the technical significance and the regulatory
significance, is evaluated as the first step in the enforcement
process. In considering the significance of a violation, the staff
considers the technical significance (i.e., actual and potential
consequences) and regulatory significance.
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 direct final rule.
Paperwork Reduction Act Statement for Direct Final Rule
This direct final rule does not contain a new or amended
information collection requirement subject to the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.). Existing requirements were
approved by the Office of Management and Budget, approval numbers 3150-
0020, -0021, -0009, -0039.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
Regulatory Analysis
Changes to 10 CFR parts 2, 40, 70, and 76 must be made to bring
these regulations into conformance with the Act as amended by the
``USEC Privatization Act'' (Public Law 104-134). The chief benefit to
the public, industry, and NRC will be derived from codification of NRC
regulations to conform to the changes to the Act. Codification should
result in a better understanding of the procedures and requirements for
licensing and/or certification of enrichment facilities, and thereby
facilitate the process for review of a license application for uranium
enrichment facility, and possibly reduce the litigative risk that might
result from not having the regulatory basis for health and safety
review of the application codified by regulation. The principal cost
will be the expenditure of NRC staff resources in codifying the
requirements. This constitutes the regulatory analysis for the direct
final rule.
Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b),
the Commission certifies that this rulemaking will not have a
significant economic impact on a substantial number of small entities
because it only addresses the 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.
Small Business Regulatory Enforcement Act
In accordance with the Small Business Regulatory Enforcement
[[Page 6668]]
Fairness Act of 1996, the NRC has determined that this action is not a
``major rule'' and has verified this determination with the Office of
Information and Regulatory Affairs, Office of Management and Budget.
Backfit Analysis
The NRC has determined that the backfit rules, 10 CFR 50.109 and
76.76, do not apply to this rule. Thus, a backfit analysis is not
required for these amendments because they do not involve any
provisions that would impose backfits as defined in Secs. 50.109(a)(1)
and 76.76(a)(1).
List of Subjects
10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Environmental protection, Nuclear
materials, Nuclear power plants and reactors, Penalties, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
10 CFR Part 40
Criminal penalties, Government contracts, Hazardous materials
transportation, Nuclear materials, Reporting and recordkeeping
requirements, Source material, Uranium.
10 CFR Part 70
Criminal penalties, Hazardous materials transportation, Material
control and accounting, Nuclear materials, Packaging and containers,
Radiation protection, Reporting and recordkeeping requirements,
Scientific equipment, Security measures, Special nuclear material.
10 CFR Part 76
Certification, Criminal penalties, Radiation protection, Reporting
and recordkeeping requirements, Security measures, Special nuclear
material, Uranium enrichment by gaseous diffusion.
For the reasons set forth 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 Commission is
adopting the following amendments to 10 CFR parts 2, 40, 70, and 76.
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND
ISSUANCE OF ORDERS
1. The authority citation for part 2 is revised to read as follows:
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat.
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.
5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104,
105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42
U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub.
L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102,
Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301,
88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105,
2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat.
936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,
2135, 2233, 2239). Section 2.105 also issued under Pub. L. 97-415,
96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued
under secs. 161b, I, o, 182, 186, 234, 68 Stat. 948-951, 955, 83
Stat. 444, as amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349,
as amended (42 U.S.C. 2201 (b), (I), (o), 2236, 2282); sec. 206, 88
Stat 1246 (42 U.S.C. 5846). Sections 2.600-2.606 also issued under
sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332).
Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections
2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section
2.764 and Table 1A of Appendix C also issued under secs. 135, 141,
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended
(42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also
issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C.
553 and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42 U.S.C.
2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C.
2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154).
Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239).
Appendix A also issued under sec. 6, Pub. L. 91-560, 84 Stat. 1473
(42 U.S.C. 2135). Appendix B also issued under sec. 10, Pub. L. 99-
240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).
2. In Sec. 2.200, paragraph (a) is revised to read as follows:
Sec. 2.200 Scope of subpart.
(a) This subpart prescribes the procedures in cases initiated by
the staff, or upon a request by any person, to impose requirements by
order, or to modify, suspend, or revoke a license, or to take other
action as may be proper, against any person subject to the jurisdiction
of the Commission. However, with regard to the holder of a part 76
certificate of compliance or compliance plan, except for civil penalty
procedures in this subpart, the applicable procedures are set forth in
Sec. 76.70 of this chapter.
* * * * *
3. In Sec. 2.205, paragraphs (a), (d), (g) and (h) are revised to
read as follows:
Sec. 2.205 Civil penalties.
(a) Before instituting any proceeding to impose a civil penalty
under section 234 of the Act, the Executive Director for Operations or
the Executive Director's designee, as appropriate, shall serve a
written notice of violation upon the person charged. This notice may be
included in a notice issued pursuant to Sec. 2.201 or Sec. 76.70(d) of
this chapter. The notice of violation shall specify the date or dates,
facts, and the nature of the alleged act or omission with which the
person is charged, and shall identify specifically the particular
provision or provisions of the law, rule, regulation, license, permit,
part 76 certificate of compliance or compliance plan, or cease and
desist order involved in the alleged violation and must state the
amount of each proposed penalty. The notice of violation shall also
advise the person charged that the civil penalty may be paid in the
amount specified therein, or the proposed imposition of the civil
penalty may be protested in its entirety or in part, by a written
answer, either denying the violation or showing extenuating
circumstances. The notice of violation shall advise the person charged
that upon failure to pay a civil penalty subsequently determined by the
Commission, if any, unless compromised, remitted, or mitigated, be
collected by civil action, pursuant to Section 234c of the Act.
* * * * *
(d) If the person charged with violation files an answer to the
notice of violation, the Executive Director for Operations or the
Executive Director's designee, upon consideration of the answer, will
issue an order dismissing the proceeding or imposing, mitigating, or
remitting the civil penalty. The person charged may, within twenty (20)
days of the date of the order or other time specified in the order,
request a hearing.
* * * * *
(g) The Executive Director for Operations or the Executive
Director's designee, as appropriate may compromise any civil penalty,
subject to the provisions of Sec. 2.203.
(h) If the civil penalty is not compromised, or is not remitted by
the Executive Director for Operations or the Executive Director's
designee, as appropriate, the presiding officer, or the Commission, and
if payment is not made within ten (10) days following either the
service of the order described in paragraph (c) or (f) of this section,
or the expiration of the time for requesting a hearing described in
paragraph (d) of this section, the Executive Director for Operations or
the Executive Director's designee, as appropriate, may refer the
[[Page 6669]]
matter to the Attorney General for collection.
* * * * *
PART 40--DOMESTIC LICENSING OF SOURCE MATERIAL
4. The authority citation for part 40 is revised to read as
follows:
Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68
Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2),
83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234,
83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094,
2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274,
Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.
5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L.
97-415, 96 Stat. 2067 (42 U.S.C. 2022); sec. 193, 104 Stat. 2835, as
amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C.
2243).
Section 40.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122,
68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under sec.
184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also
issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
5. In Sec. 40.4, the term ``Corporation'' is added in alphabetical
order to read as follows:
Sec. 40.4 Definitions.
* * * * *
Corporation means the United States Enrichment Corporation (USEC),
or its successor, a Corporation that is authorized by statute to lease
the gaseous diffusion enrichment plants in Paducah, Kentucky, and
Piketon, Ohio, from the Department of Energy, or any person authorized
to operate one or both of the gaseous diffusion plants, or other
facilities, pursuant to a plan for the privatization of USEC that is
approved by the President.
* * * * *
6. A new Sec. 40.38 is added to read as follows:
Sec. 40.38 Ineligibility of certain applicants.
A license may not be issued to the Corporation if the Commission
determines that:
(a) The Corporation is owned, controlled, or dominated by an alien,
a foreign corporation, or a foreign government; or
(b) The issuance of such a license would be inimical to--
(1) The common defense and security of the United States; or
(2) The maintenance of a reliable and economical domestic source of
enrichment services.
PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL
7. The authority citation for part 70 is revised to read as
follows:
Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948,
953, 954, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C.
2071, 2073, 2201, 2232, 2233, 2282, 2297f); secs. 201, as amended,
202, 204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246 (42
U.S.C. 5841, 5842, 5845, 5846); sec. 193, 104 Stat. 2835 as amended
by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243).
Sections 70.1 and 70.20a(b) also issued under secs. 135, 141,
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 70.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 70.21(g) also issued under sec. 122,
68 Stat. 939 (42 U.S.C. 2152). Section 70.31 also issued under sec.
57d, Pub. L. 93-377, 88 Stat. 475 (42 U.S.C. 2077). Sections 70.36
and 70.44 also issued under sec. 184, 68 Stat. 954, as amended (42
U.S.C. 2234). Section 70.61 also issued under secs. 186, 187, 68
Stat. 955 (42 U.S.C. 2236, 2237). Section 70.62 also issued under
sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138).
8. In Sec. 70.1, a new paragraph (e) is added to read as follows:
Sec. 70.1 Purpose.
* * * * *
(e) As provided in the Atomic Energy Act of 1954, as amended, the
regulations in this part establish requirements, procedures, and
criteria for the issuance of licenses to uranium enrichment facilities.
9. In Sec. 70.4, the term ``Corporation'' is added in alphabetical
order to read as follows:
Sec. 70.4 Definitions.
* * * * *
Corporation means the United States Enrichment Corporation (USEC),
or its successor, a Corporation that is authorized by statute to lease
the gaseous diffusion enrichment plants in Paducah, Kentucky, and
Piketon, Ohio, from the Department of Energy, or any person authorized
to operate one or both of the gaseous diffusion plants, or other
facilities, pursuant to a plan for the privatization of USEC that is
approved by the President.
* * * * *
10. A new Sec. 70.40 is added to read as follows:
Sec. 70.40 Ineligibility of certain applicants.
A license may not be issued to the Corporation if the Commission
determines that:
(a) The Corporation is owned, controlled, or dominated by an alien,
a foreign corporation, or a foreign government; or
(b) The issuance of such a license would be inimical to--
(1) The common defense and security of the United States; or
(2) The maintenance of a reliable and economical domestic source of
enrichment services.
PART 76--CERTIFICATION OF GASEOUS DIFFUSION PLANTS
11. The authority citation for part 76 is revised 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) also issued under
sec. 122, 68 Stat. 939 (42 U.S.C. 2152).
12. In Sec. 76.4, the term ``Corporation'' is revised to read as
follows and the term ``Uranium enrichment plant'' is removed:
Sec. 76.4 Definitions.
* * * * *
Corporation means the United States Enrichment Corporation (USEC),
or its successor, a Corporation that is authorized by statute to lease
the gaseous diffusion enrichment plants in Paducah, Kentucky, and
Piketon, Ohio, from the Department of Energy, or any person authorized
to operate one or both of the gaseous diffusion plants, or other
facilities, pursuant to a plan for the privatization of USEC that is
approved by the President.
* * * * *
13. In Sec. 76.10, paragraph (b) is revised to read as follows:
Sec. 76.10 Deliberate misconduct.
* * * * *
(b) A person who violates paragraph (a)(1) or (a)(2) of this
section may be subject to enforcement action in accordance with the
procedures in 10 CFR part 2, subpart B.
* * * * *
14. In Sec. 76.21, paragraph (b) is revised to read as follows:
Sec. 76.21 Certificate required.
* * * * *
(b) For the purposes of Secs. 30.41, 40.51, and 70.42 of this
chapter, the Corporation shall be authorized to receive, and licensees
shall be authorized to transfer to the Corporation, byproduct material,
source material, or special nuclear material to
[[Page 6670]]
the extent permitted under the certificate of compliance issued, and/or
the compliance plan approved, pursuant to this part.
15. A new Sec. 76.22 is added to read as follows:
Sec. 76.22 Ineligibility of certain applicants.
A certificate of compliance may not be issued to the Corporation if
the Commission determines that:
(a) The Corporation is owned, controlled, or dominated by an alien,
a foreign corporation, or a foreign government; or
(b) The issuance of such a certificate of compliance would be
inimical to--
(1) The common defense and security of the United States; or
(2) The maintenance of a reliable and economical domestic source of
enrichment services.
16. Section 76.31 is revised to read as follows:
Sec. 76.31 Periodic application requirement.
The Corporation shall periodically apply to the Commission for a
certificate of compliance, in accordance with Sec. 76.36, on or before
April 15 of the year specified in an existing certificate of compliance
as determined by the Commission, but not less frequently than every 5
years.
17. In Sec. 76.35, paragraph (n) is revised to read as follows:
Sec. 76.35 Contents of initial application.
* * * * *
(n) A description of the funding program to be established to
ensure that funds will be set aside and available for those aspects of
the ultimate disposal of waste and depleted uranium, decontamination
and decommissioning, relating to the gaseous diffusion plants leased to
the Corporation by the Department of Energy, which are the financial
responsibility of the Corporation. The Corporation shall establish
financial surety arrangements to ensure that sufficient funds will be
available for the ultimate disposal of waste and depleted uranium, and
decontamination and decommissioning activities which are the financial
responsibility of the Corporation. The funding mechanism, such as
prepayment, surety, insurance, or external sinking fund, must ensure
availability of funds for any activities which are required to be
completed both before or after the return of the gaseous diffusion
facilities to the Department of Energy in accordance with the lease
between the Department and the Corporation. The funding program must
contain a basis for cost estimates used to establish funding levels and
must contain means of adjusting cost estimates and associated funding
levels over the duration of the lease. The funding program need not
address funding for those aspects of decontamination and
decommissioning of the gaseous diffusion plants assigned to the
Department of Energy under the Atomic Energy Act of 1954, as amended.
The Corporation should address the adequacy of the financing mechanism
selected in its periodic application for certification.
18. In Sec. 76.36, the section heading and paragraph (a) are
revised to read as follows:
Sec. 76.36 Renewals.
(a) After issuance by the Commission of the initial certificate of
compliance and/or an approved compliance plan, the Corporation shall
file periodic applications for renewal, as required by Sec. 76.31.
* * * * *
19. Section 76.43 is revised to read as follows:
Sec. 76.43 Date for decision.
The Director will render a decision on an application within 6
months of the receipt of the application unless the Director alters the
date for decision and publishes notice of the new date in the Federal
Register.
20. In Sec. 76.45, paragraph (a) is revised to read as follows:
Sec. 76.45 Application for amendment of certificate.
(a) Contents of amendment application. In addition to the
application for certification submitted pursuant to Sec. 76.31, the
Corporation may at any time apply for amendment of the certificate to
cover proposed new or modified activities. The amendment application
should contain sufficient information for the Director to make findings
of compliance or acceptability for the proposed activities as required
for the original certificate.
* * * * *
21. Section 76.55 is revised to read as follows:
Sec. 76.55 Timely renewal.
In any case in which the Corporation has timely filed a sufficient
application for a certificate of compliance, the existing certificate
of compliance or approved compliance plan does not expire until the
application for a certificate of compliance has been finally determined
by the NRC. For purposes of this rule, a sufficient application is one
that addresses all elements of Sec. 76.36.
22. In Sec. 76.60, paragraphs (c)(1) and (d)(1) are removed and
reserved and paragraph (i) is revised to read as follows:
Sec. 76.60 Regulatory requirements which apply.
* * * * *
(i) The Corporation shall comply with the applicable provisions of
10 CFR part 95, ``Security Facility Approval and Safeguarding of
National Security Information and Restricted Data,'' as specified in
subpart E to this part.
23. In Sec. 76.66, paragraph (c) is revised to read as follows:
Sec. 76.66 Expiration and termination of certificates.
* * * * *
(c) If the Corporation does not submit a renewal application under
Sec. 76.36, the Corporation shall, on or before the expiration date
specified in the existing certificate, terminate operation of the
gaseous diffusion plants.
24. In Sec. 76.68, paragraph (b) is revised to read as follows:
Sec. 76.68 Plant changes.
* * * * *
(b) To ensure that the approved application remains current with
respect to the actual site description and that the plant's programs,
plans, policies, and operations are in place, the Corporation shall
submit revised pages to the approved application and safety analysis
report, marked and dated to indicate each change. The Corporation shall
evaluate any as-found conditions that do not agree with the plant's
programs, plans, policies, and operations in accordance with paragraph
(a) of this section. These revisions must be submitted before April 15
of each calendar year, or at a shorter interval as may be specified in
the certificate. If a renewal application for a certificate is filed in
accordance with Sec. 76.36 of this part, the revisions shall be
incorporated into the application.
* * * * *
25. In Sec. 76.72, paragraph (d) is revised to read as follows:
Sec. 76.72 Miscellaneous procedural matters.
* * * * *
(d) The procedures set forth in 10 CFR 2.205, and in 10 CFR part 2,
subpart G, will be applied in connection with NRC action to impose a
civil penalty pursuant to Section 234 of the Atomic Energy Act of 1954,
as amended, or Section 206 of the Energy Reorganization Act of 1974 and
the implementing regulations in 10 CFR part 21 (Reporting of Defects
and Noncompliance), as authorized by
[[Page 6671]]
Section 1312(e) of the Atomic Energy Act of 1954, as amended;
* * * * *
26. In Sec. 76.76, paragraph (a)(2) is revised to read as follows:
Sec. 76.76 Backfitting.
(a) * * *
(2) Except as provided in paragraph (a)(4) of this section, the
Commission shall require a systematic and documented analysis pursuant
to paragraph (b) of this section for backfits which it seeks to impose.
* * * * *
27. Section 76.111 is revised to read as follows:
Sec. 76.111 Physical security, material control and accounting, and
protection of certain information.
Nuclear Regulatory Commission regulations that will be used for
certification of the Corporation \2\ for physical security and material
control and accounting are contained in title 10 of the Code of Federal
Regulations as described in this subpart. The regulations referenced in
this subpart contain requirements for physical security and material
control and accounting for formula quantities of strategic special
nuclear material (Category I), special nuclear material of moderate
strategic significance (Category II), and special nuclear material of
low strategic significance (Category III), and for protection of
Restricted Data, National Security Information, Safeguards Information,
and information designated by the U.S. Department of Energy as
Unclassified Controlled Nuclear Information.
---------------------------------------------------------------------------
\2\ For the purpose of this subpart, the terms ``licensee'' or
``license'' used in parts 70, 73, and 74 of this chapter, mean,
respectively, the Corporation, or the certificate of compliance or
approved compliance plan.
---------------------------------------------------------------------------
28. In Sec. 76.113, paragraph (c) is revised to read as follows:
Sec. 76.113 Formula quantities of strategic special nuclear material--
Category I.
* * * * *
(c) The requirements for the protection of Safeguards Information
pertaining to formula quantity of strategic special nuclear material
(Category I) are contained in Sec. 73.21 of this chapter. Information
designated by the U.S. Department of Energy as Unclassified Controlled
Nuclear Information must be protected at a level equivalent to that
accorded Safeguards Information.
* * * * *
29. Section 76.131 is revised to read as follows:
Sec. 76.131 Violations.
(a) The Commission may obtain an injunction or other court order to
prevent a violation of the provisions of:
(1) The Atomic Energy Act of 1954, as amended;
(2) Title II of the Energy Reorganization Act of 1974, as amended;
(3) A regulation or order issued pursuant to those Acts.
(b) The Commission may obtain a court order for the payment of a
civil penalty imposed under Section 234 of the Atomic Energy Act of
1954, as amended, or under Section 1312(e) of the Atomic Energy Act of
1954, as amended, and Section 206 of the Energy Reorganization Act of
1974, as amended, for violations of:
(1) Sections 53, 57, 62, 63, 81, 82, 101, 103, 104, 107, 109, or
1701 of the Atomic Energy Act of 1954, as amended;
(2) Section 206 of the Energy Reorganization Act;
(3) Any rule, regulation, or order issued pursuant to the sections
specified in paragraph (b)(1) of this section;
(4) Any term, condition, or limitation of any certificate of
compliance or approved compliance plan issued under the sections
specified in paragraph (b)(1) of this section.
Dated at Rockville, Maryland, this 6th day of February, 1997.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 97-3467 Filed 2-11-97; 8:45 am]
BILLING CODE 7590-01-P
