[Federal Register Volume 62, Number 27 (Monday, February 10, 1997)]
[Rules and Regulations]
[Pages 5907-5913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3175]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 71

RIN 3150-AF58


Fissile Material Shipments and Exemptions

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
regulations regarding the shipment of exempt quantities of fissile 
material and the shipment of fissile material under a general license. 
This emergency final rule restricts the use of beryllium and other 
special moderating materials (i.e., graphite and deuterium) in the 
shipment of fissile materials and consigns quantity limits on fissile 
exempt shipments. These amendments are necessary to correct a recently 
discovered defect in the current regulations which could permit, in 
special circumstances, nuclear criticality to occur in shipments of 
fissile materials which are permitted to take place without specific 
Commission approval. The regulatory defect is not indicative of unsafe 
fissile material shipments in the past. Rather, it was identified by 
Babcock & Wilcox (B&W) during preparation for shipment of an 
unprecedented type of fissile material that could result in nuclear 
criticality under current requirements. This unique material is 
produced as a waste product from processing of strategic material 
resulting from operations to commercially downblend weapons-usable 
fissile material from the former Soviet Union. Although this rule is 
being issued as an immediately effective final rule, the Commission is 
requesting public comment and will revise the rule if necessary.


[[Page 5908]]


DATES: This final rule is effective on February 10, 1997. Comments must 
be received by March 12, 1997. If public comments require changes in 
the rule, timely notice will be published in the Federal Register.

ADDRESSES: Comments may be submitted either electronically or in 
written form. Mail written comments to: U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Docketing and Service 
Branch. Hand deliver comments to: 11555 Rockville Pike, Rockville, MD 
between 7:30 am and 4:15 pm 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 at the NRC Public Document Room, 2120 L Street 
NW. (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Naiem S. Tanious, Office of Nuclear 
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone (301) 415-6103, E-mail: INTERNET:<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="97d9c4c3d7d9c5d4b9d0d8c1">[email protected]</a>

SUPPLEMENTARY INFORMATION:

Background

    On September 11, 1996, an NRC fuel cycle facility licensee, Babcock 
& Wilcox, Naval Nuclear Fuel Division (B&W), notified NRC by telephone 
that it had discovered that the NRC and U.S. Department of 
Transportation (DOT) regulations (10 CFR 71.53 and 49 CFR 173.453, 
respectively) on fissile exempt shipments do not provide adequate 
criticality safety for certain shipments of fissile material \1\ 
(enriched uranium containing beryllium oxide.) Specifically, B&W 
discovered through calculations, that a shipment, intended to be 
shipped pursuant to Sec. 71.53(d), containing large amounts of an 
exempt concentration of enriched uranium in the presence of beryllium, 
could result in a nuclear criticality. \2\ B&W indicated that a 
beryllium oxide-enriched uranium mixture would be produced as a waste 
product from its processing of strategic material resulting from 
operations to commercially downblend weapons-usable fissile material 
from the former Soviet Union. B&W promptly notified the NRC of its 
concern, provided its calculations to the NRC, and made commitments not 
to make any such shipments. The NRC staff subsequently reviewed and 
verified B&W's calculations and determined that expeditious revisions 
to NRC regulations are needed to correct the deficiency because an 
inadvertent nuclear criticality in the public domain could involve 
fatalities, health effects from the resulting radiations, and extensive 
clean-up costs.
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    \1\ Fissile material is defined in 10 CFR Part 71 and 49 CFR 
Part 173 as: Plutonium-238, plutonium-239, plutonium-241, uranium-
233, uranium-235, or any combination of these radionuclides. 
Packages used for shipment of materials containing these 
radionuclides must meet specific standards and operating limits 
designed to preclude nuclear criticality during transport, unless 
expected by specific regulations (e.g. 10 CFR 71.53 or 49 CFR 
173.453).
    \2\ For transportation purposes, nuclear criticality means a 
condition in which an uncontrolled, self-sustaining and neutron-
multiplying fission chain reaction occurs. Nuclear criticality is 
generally a concern when sufficient concentrations and masses of 
fissile material and neutron moderating material exist together in a 
favorable configuration. The neutron moderating material cannot 
achieve criticality by itself in any concentration or configuration. 
It can enhance the ability of fissile material to achieve 
criticality by slowing down neutrons or reflecting neutrons.
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    The criticality safety problem brought to NRC's attention with 
respect to Sec. 71.53 caused the NRC staff to review 10 CFR Part 71 to 
determine whether any other provisions of this Part might be similarly 
deficient. The general licenses in Secs. 71.18 and 71.22 provide for 
criticality control by limiting the quantity of fissile material in a 
single package (i.e., similar to the quantity-based fissile exemptions 
in 10 CFR 71.53). Section 71.18 also assigns a criticality transport 
index (pursuant to Sec. 71.4) to each package. These sections were 
found to have deficiencies comparable to those discovered in Sec. 71.53 
in that there are no restrictions placed on special moderating 
materials (i.e., materials which would increase the number of neutrons 
available to cause fission as compared with ordinary water), and 
Sec. 71.22 has the additional deficiency of not limiting the total 
amount of fissile material in a conveyance. During the NRC staff's 
review, sections Sec. 71.20 and Sec. 71.24, which also provide general 
licenses, were found to be adequate in that the moderators of concern 
were excluded.
    Packages for shipments made in accordance with a fissile material 
exemption in Sec. 71.53 or the general license in Sec. 71.18 or 
Sec. 71.22, are not required to be certified by NRC. The intent of 
Secs. 71.53, 71.18, and 71.22 is that any materials packaged and 
shipped in accordance with the limits in these sections (and the other 
applicable sections of 10 CFR Part 71 and 49 CFR Part 173) are 
incapable of an inadvertent criticality. The B&W analyses demonstrated 
that a deficiency exists in these requirements.
    The NRC has already taken a number of actions to resolve the 
potential safety problem identified by B&W. First, the NRC obtained a 
commitment from B&W not to ship Be-U materials without prior NRC 
authorization and confirmed this commitment in a Confirmatory Action 
Letter (CAL) dated October 10, 1996. Subsequently, the CAL was 
superseded by an immediately effective Confirmatory Order Modifying 
License dated December 16, 1996, which imposed B&W's commitment as a 
legally binding license condition. The NRC had no reason to doubt B&W's 
earlier voluntary commitment because B&W had demonstrated its concern 
for safety by bringing the problem in the first place to the NRC's 
attention. However, the NRC staff also believed that, given the 
significance of this issue for public health and safety, the NRC needed 
to exercise its full authority to assure itself and the public that the 
one licensee known to be in a position to make potentially unsafe 
shipments was legally prevented from doing so pending completion of 
this rulemaking.
    On December 5, 1996, NRC also issued NRC Information Notice 96-63 
to all NRC licensees authorized to possess special nuclear material. 
The purpose of this information notice was to alert all such licensees 
to this problem so that any of them who might be in a position to make 
potentially unsafe shipments could take appropriate measures.
    The NRC also brought this problem to the attention of the U.S. 
Department of Transportation (DOT) and the U.S. Department of Energy 
(DOE). DOT is a co-regulator of fissile material shipments and is 
currently revising its parallel regulations in 49 CFR Part 173 on an 
expedited basis. DOE makes many shipments of fissile exempt material 
each year.

Discussion

    The safety problem uncovered by the B & W calculations, and 
verified by the NRC, involves quantities, geometries, and 
concentrations of fissile materials and moderators which could result 
in criticality when shipped in compliance with sections of the 
regulations for which criticality analyses are not required. The 
current regulations (fissile exemptions in Sec. 71.53 and the general 
licenses in Secs. 71.18 and 71.22) are based on the assumption that 
water is the only moderator which might be present in fissile exempt 
shipments. These rules are assumed to provide inherent criticality 
safety without a need for shippers to perform separate analyses. 
However, some moderators (herein referred to as special moderating 
materials) can increase the number of

[[Page 5909]]

neutrons available to cause fission as compared to ordinary water and 
result in the potential for criticality in shipments where these 
moderators are present, even though the shipments are in compliance 
with 10 CFR 71.53 and 49 CFR 173.453.
    Until recently, the presence of special moderating materials in 
significant quantities in NRC-regulated shipments of fissile exempt 
materials was not anticipated. However, certain international 
initiatives, including efforts of reduction in stockpiles of strategic 
material by processing for commercial use, have resulted in the greater 
likelihood of inclusion of these materials in NRC regulated shipments. 
The materials proposed to be shipped by B&W, which prompted this final 
rule, resulted from such a source. A recent contract was awarded to B&W 
to process weapons-usable enriched uranium materials from the Republic 
of Kazakstan. The waste product of the processing, a uranium-beryllium 
filtercake, met the fissile exemption provisions in 10 CFR 71.53(d) and 
49 CFR 173.453(d). However, B&W used a computer model of the enriched 
uranium-beryllium oxide waste packages, to demonstrate that if the 
packages were loaded for shipment into a sea-land container, and at the 
regulatory fissile exempt concentration limit, adequate confidence in 
nuclear criticality safety would not have been provided. NRC has 
verified through independent analyses that the concerns raised by the 
B&W analysis are valid and apply to other geometries and moderating 
characteristics as well. To guard against inadvertent criticality, this 
final rule restricts shipments of fissile material with three special 
moderating materials: beryllium, graphite, and deuterium.
    However, limiting beryllium, graphite, and deuterium to trace 
quantities would not completely eliminate the possibility of 
criticality in fissile exempt or generally licensed shipments. There is 
also a need to limit the quantity of material in a single consignment 
(the B&W criticality model calculations were performed using 200 cm 
high infinite slab configuration). The problem of a lack of control on 
the total amount of fissile exempt material in an exempt shipment, was 
originally identified during the revision process for the 1996 Edition 
of the International Atomic Energy Agency's (IAEA's) ``Regulations for 
the Safe Transport of Radioactive Material,'' Safety Series No. 6, 
1996. The problem was addressed in Safety Series No. 6, 1996, by 
adopting a consignment limit on the amount of fissile exempt material 
that a shipper could transport as a private carrier or deliver to a 
common carrier for shipment. The NRC cannot presently enforce a limit 
on the total quantity of fissile material in a common carrier shipment 
because the regulations do not require a transport index for each 
package or require shipment by exclusive use. The latter would restrict 
the ability to use common carriers, while requiring a transport index 
would negate much of the advantage gained by the exemption. Consignment 
limits are enforceable and represent a practical operating limit that 
would prevent the potentially unsafe accumulation of fissile exempt 
materials during shipment.
    Therefore, this final rule restricts special moderating materials 
and includes consignment limits on shipments of fissile materials under 
the provisions of Secs. 71.22 and 71.53. This final rule also restricts 
special moderating materials under the provisions of Sec. 71.18. 
Together these changes will eliminate the possibility of inadvertent 
criticality during shipments made in compliance with 10 CFR 71.18, 
71.22, or 71.53. The NRC anticipates that DOT will issue parallel 
revisions to 49 CFR Part 173. Accordingly, NRC and DOT are coordinating 
the necessary revisions to 10 CFR Part 71 and 49 CFR Part 173.

Compatibility With the IAEA Standards

    On September 9, 1996, the Board of Governors of the IAEA approved 
the 1996 revisions to Safety Series No. 6. Among the changes in these 
revised IAEA regulations are that consignment limits and limits on the 
types of moderators were placed on the fissile exemptions in paragraph 
672 of Safety Series No. 6, 1996. The changes to 10 CFR Part 71 made by 
this rulemaking are generally compatible with the changes made to IAEA 
Safety Series No. 6, 1996. Future revisions to 10 CFR Part 71 and 49 
CFR Part 173 are planned by NRC and DOT, respectively, to bring them 
into general accord with other sections of IAEA Safety Series No. 6, 
1996.
    One area in which this final rule for 10 CFR Part 71 is not 
compatible with IAEA Safety Series No. 6, 1996, paragraph 672 is that 
graphite was added as a special moderating material in the 1995 
revisions to 10 CFR Part 71 (60 FR 50248), but does not appear in IAEA 
Safety Series No. 6, 1996. [Graphite is limited by the current general 
licenses in 10 CFR 71.20 and 71.24.] The NRC believes that it is 
appropriate to continue to limit graphite (being a special moderating 
material) in domestic regulations for shipment of fissile material. 
Therefore, the revisions to the fissile exemptions in 10 CFR 71.53 and 
the general licenses in 10 CFR 71.18 and 71.20 provide for exclusion of 
other than trace quantities of graphite.

Alternatives Considered

    To determine the appropriate amendments to 10 CFR 71.18, 71.22, and 
71.53, the NRC staff considered the following three alternatives:
    1. The No-Action Alternative. This alternative is not acceptable to 
the NRC. Shipments of fissile material (Be-U mixtures) meeting the 
fissile material exemption requirements could be made in a 
configuration that does not maintain criticality safety during 
transport. Therefore, this alternative was not pursued.
    2. Eliminate the fissile material exemption. This alternative is 
not acceptable to the NRC. Elimination of fissile material exemption, 
while solving the criticality safety problem identified by B&W, would 
create other problems. Many packages, such as those containing low-
level radioactive waste materials (e.g., ion-exchange resins), contain 
only trace concentrations of fissile nuclides, which are incidental to 
the overall radioactivity of the package contents, and criticality 
events are not credible for shipments of these packages. The Sec. 71.53 
fissile material exemptions are applied for these shipments, and there 
is a continuing need to provide for this application. Elimination of 
Sec. 71.53 would place an additional burden and cost on many shippers 
whose shipments posed no criticality safety concerns. Therefore, this 
alternative was not pursued.
    3. Revise the fissile material exemptions in Sec. 71.53 and the 
general licensees in Secs. 71.18 and 71.22 to exclude the presence of 
special moderating materials such as beryllium, deuterium and graphite 
in other than trace quantities, and place consignment limits on 
shipments. Together these changes solve the criticality safety problem 
identified by B&W and the related problem of the potential accumulation 
of an unsafe quantity of fissile materials in a shipment. Given the 
limited number of affected shipments and the small number of licensees 
involved, some additional costs on shippers may be expected because 
they can no longer use the fissile material exemptions and general 
licenses for materials with beryllium, deuterium and graphite in other 
than trace quantities, and because some shipments may have to be 
divided to meet the consignment limits. It keeps the exemption and 
general license provisions available for other shippers.

[[Page 5910]]

This alternative was chosen by the NRC staff, and is the basis for the 
following specific changes in Secs. 71.18, 71.22, and 71.53.

Changes in 10 CFR 71.18, 71.22, and 71.53

Section 71.18

    The title of Sec. 71.18: General license: Fissile material, limited 
quantity per package, remains the same. Also paragraphs (a), (b), and 
(c) in Sec. 71.18 remain the same. The old paragraph (d) in Sec. 71.18 
is replaced by three new paragraphs: (d), (e), and (f). The new 
paragraph (d) covers general licenses for packages containing no more 
than a type A quantity of radioactive material where fissile material 
is mixed with substances having an average hydrogen density greater 
than water (defined in Sec. 71.20). The new paragraph (e) restricts the 
quantity of beryllium, graphite, or hydrogenous material enriched in 
deuterium in a package to no greater than 0.1% of the fissile material 
mass. The new paragraph (f) is a modification of the old paragraph (d) 
that includes a simplified formula for calculation of the minimum 
transport index.

Section 71.22

    The title of Sec. 71.22: General License: Fissile material, limited 
quantity, controlled shipment, remains the same. Also paragraphs (a), 
(b), and (c) in Sec. 71.22 remain the same. The old paragraph (d) is 
modified with the addition of a new table and accompanying formula 
which restrict the mass of uranium-235 and other fissile material in a 
controlled shipment. The table gives both new limits of 290 g and 180 g 
for uranium-235 and other fissile materials, when these materials are 
mixed with substances having hydrogen density greater than water; the 
table also gives the old Sec. 71.22 limits for shipments of U-235 and 
other fissile material when mixed with substances having a hydrogen 
density less than or equal to water. The new paragraph (e) restricts 
the quantity of beryllium, graphite, or hydrogenous material enriched 
in deuterium in a package to no greater than 0.1% of the fissile 
material mass. Paragraph (f) is the same as old paragraph (e).

Section 71.53

    The title of Sec. 71.53 remains the same. The introductory 
paragraph restates the old Sec. 71.53 language that packages are 
exempted from the fissile material standards of Sec. 71.55 and 
Sec. 71.59; however, the same paragraph restricts these exempted 
packages to only situations when beryllium, graphite, or deuterium is 
not present in quantities exceeding 0.1% of the fissile material mass. 
A new paragraph (a) is added which contains a formula and an 
accompanying table to limit individual consignment, but also includes 
the requirements in old paragraphs (a), (b)(1) and (2), and (d) . The 
remainder of Sec. 71.53 (paragraphs (b), (c), and (d)) is essentially 
the same as the old Sec. 71.53 (paragraphs (c), (f), and (e)).

Good Cause for Immediate Adoption

    The Commission is promulgating this emergency final rule because 
the problem of regulatory safety limits over quantities and 
concentrations of fissile material and moderators, which has been 
demonstrated to permit criticality in at least one proposed shipment, 
is an important safety issue meriting immediate corrective action. An 
accidental nuclear criticality in the public domain would very likely 
involve fatalities, health effects from the resulting radiations, and 
extensive clean-up costs.
    Shipments of fissile exempt material are normally made without any 
associated criticality analysis because in the past it has been assumed 
that the regulations provide inherent criticality safety. However, 
B&W's contemplated shipment demonstrates that this assumption is not 
correct for all possible types of shipments. While the Commission 
expects that B&W's commitment, as expressed in the NRC's Confirmatory 
Order, not to undertake shipments without the prior approval of the 
NRC, and the Information Notice issued to all licensees authorized to 
possess special nuclear material, will prevent an unsafe shipment from 
occurring pending revision of its rules, the Commission does not track 
shipments by licensees made under the provisions of 10 CFR 71.18, 
71.22, or 71.53. Moreover, the nature of the materials being imported 
and shipped domestically has recently changed due to initiatives with 
the States of the former Soviet Union to reduce weapons-usable material 
such as high-enriched uranium. The materials B&W had intended to ship 
were byproducts from processing this type of material. Shipments made 
under 10 CFR 71.18, 71.22 or 71.53 are made without specific NRC 
approval and the possibility exists that a licensee could unwittingly 
make an unsafe shipment in reliance upon the present rules. Thus, the 
Commission must amend its rules quickly to prevent unsafe shipments 
from occurring.
    For the reasons stated above, the Commission finds good cause, 
pursuant to Section 553(b)(B) of the Administrative Procedure Act (APA) 
(5 U.S.C. 553(b)(B)), to dispense with notice and prepromulgation 
public comment as being impracticable and contrary to the public 
interest. Further, the Commission finds, pursuant to Section 553(d)(3) 
of the APA (5 U.S.C. 553(d)(3)), that good cause exists for making 
these amendments immediately effective because the need to have these 
regulations in place outweighs the inconvenience, if any, to licensees 
who may need to alter shipping plans.
    Nevertheless, the Commission is providing a 30-day post-
promulgation public comment period during which interested persons are 
invited to submit their comments to the Commission. Within a reasonable 
time after the end of the comment period, the Commission will publish a 
statement in the Federal Register containing an evaluation of the 
significant comments received and any revisions of the rule to be made 
as a result of the comments.

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 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

[[Page 5911]]

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 AXD<a href="/cdn-cgi/l/email-protection#6f5c2f011d0c41080019"><span class="__cf_email__" data-cfemail="26156648544508414950">[email protected]</span></a>.

Finding of No Significant Environmental Impact: Availability

    The Commission has determined, under the National Environmental 
Policy Act of 1969, as amended, and the Commission's regulations in 
Subpart A of 10 CFR Part 51, that this rule is not a major Federal 
action significantly affecting the quality of the human environment, 
and therefore an environmental impact statement (EIS) is not required.
    The Commission's ``Final Environmental Statement on the 
Transportation of Radioactive Material by Air and Other Modes,'' NUREG-
0170, dated December 1977, is NRC's generic EIS, covering all types of 
radioactive material transportation by all modes (road, rail, air, and 
water). The total limited quantity impacts were included in the overall 
transportation risk assessment in NUREG-0170 and found to be 
acceptable. The radiological safety impact estimates in this EIS 
clearly bound the impacts for limited quantity shipments of fissile 
material containing special moderating materials.
    This final rule affects only a small subset of the limited quantity 
shipments, i.e., those that contain both fissile material and special 
moderating materials. NUREG-0170 does not specify the annual number of 
limited quantity, fissile material shipments containing special 
moderating materials, but does estimate that 50,000 NRC-certified 
fissile material packages (used for larger quantities of, and/or more 
highly enriched, fissile materials) would be shipped in 1985. The 
number of shipments affected by this final rule is a small fraction of 
the NRC certified fissile package shipments because fissile materials 
containing special moderating materials are less common than moderately 
enriched fissile materials.
    The options available to licensees under this final rule include 
shipping the material using different administrative controls (i.e., 
shipping it as a fissile material and not using the quantity-limited 
exemption/general license) or reducing the special moderating material 
concentration to specified limits. The NRC staff believes the first 
option may prove more economical because the increase in cost in making 
a single shipment under fissile material controls is less than that 
involved in reducing or removing the special moderating material. Under 
this option, the same number of shipments are made as before the rule 
change, but shipments of fissile materials containing special 
moderating material would be made in NRC certified packages. Under the 
latter option, the concentration of special moderating material might 
be reduced through additional processing, perhaps involving dilution or 
extraction. This option may involve additional transportation, either 
due to the increase in shipment volume due to dilution, or the 
transportation of extracted materials. Since the quantities of affected 
fissile materials are relatively small, staff believes the additional 
transportation would also be small.
    The two options provide the added nuclear criticality safety 
control the rule seeks, either through the use of NRC-certified 
packages, and the administrative controls associated with their use, or 
through the reduction of the concentration of special moderating 
materials to an acceptably low level. Thus, the ultimate environmental 
impact of the rule is beneficial in that criticality safety is 
increased.

Paperwork Reduction Act Statement

    This final rule does not contain a new or amended information 
collection requirement subject to requirements of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing information 
collection requirements were approved by the Office of Management and 
Budget, approval number 3150-0008.

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.

Small Business Regulatory Enforcement Fairness Act

    In accordance with the Small Business Regulatory Enforcement 
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 a backfit analysis is not required for 
this final rule because these amendments do not involve any provisions 
that would require backfits as defined in 10 CFR Part 50.109(a)(1).

List of Subjects in 10 CFR Part 71

    Criminal penalties, Hazardous materials transportation, Nuclear 
materials, Packaging and containers, Reporting and recordkeeping 
requirements.
    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 71.

PART 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL

    1. The authority citation for Part 71 continues to read as follows:

    Authority: Secs. 53, 57, 62, 63, 81, 161, 182, 183, 68 Stat. 
930, 932, 933, 935, 948, 953, 954, as amended sec. 1701, 106 Stat. 
2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2201, 
2232, 2233, 2297f); secs. 201, as amended, 202, 206, 88 Stat. 1242, 
as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).

    Section 71.97 also issued under sec. 301, Pub. L. 96-295, 94 
Stat. 789-790.

    2. Section 71.18 is revised to read as follows:


Sec. 71.18  General license: Fissile material, limited quantity per 
package.

    (a) A general license is issued to any licensee of the Commission 
to transport

[[Page 5912]]

fissile material, or to deliver fissile material to a carrier for 
transport, without complying with the package standards of subparts E 
and F of this part, if the material is shipped in accordance with this 
section.
    (b) The general license applies only to a licensee who has a 
quality assurance program approved by the Commission as satisfying the 
provisions of subpart H of this part.
    (c) Except as provided in paragraph (d) of this section, this 
general license applies only when a package contains no more than a 
Type A quantity of radioactive material, including only one of the 
following:
    (1) Up to 40 g of uranium-235;
    (2) Up to 30 g of uranium-233;
    (3) Up to 25 g of the fissile radionuclides of plutonium, except 
that for encapsulated plutonium-beryllium neutron sources in special 
form, an A<INF>1 quantity of plutonium may be present; or
    (4) A combination of fissile radionuclides in which the sum of the 
ratios of the amount of each radionuclide to the corresponding maximum 
amounts in paragraphs (c) (1), (2), and (3) of this section does not 
exceed unity.
    (d) For packages where fissile material is mixed with substances 
having an average hydrogen density greater than water, this general 
license applies only when a package contains no more than a Type A 
quantity of radioactive material, including only one of the following:
    (1) Up to 29 g of uranium-235;
    (2) Up to 18 g of uranium-233;
    (3) Up to 18 g of fissile radionuclides of plutonium, or
    (4) A combination of fissile radionuclides in which the sum of the 
ratios of the amount of each radionuclide to the corresponding maximum 
amounts in paragraphs (d) (1), (2), and (3) of this section does not 
exceed unity.
    (e) Except for the beryllium contained within the special form 
plutonium-beryllium sources authorized in paragraph (c) of this 
section, this general license applies only when beryllium, graphite, or 
hydrogenous material enriched in deuterium is not present in quantities 
exceeding 0.1% of the fissile material mass.
    (f)(1) Except as specified in paragraph (f)(2) of this section for 
encapsulated plutonium-beryllium sources, this general license applies 
only when, a package is labeled with a transport index not less than 
the number given by the following equation, where the package contains 
x grams of uranium-235, y grams of uranium-233, and z grams of the 
fissile radionuclides of plutonium:

Minimum Transport Index = (0.25x + 0.33y + 0.4z).

    (2) For a package in which the only fissile material is in the form 
of encapsulated plutonium-beryllium neutron sources in special form, 
the transport index based on criticality considerations may be taken as 
0.025 times the number of grams of the fissile radionuclides of 
plutonium.
    (3) Packages which have a transport index greater than 10 are not 
authorized under the general license provisions of this part.
    3. Section 71.22 is revised to read as follows:


Sec. 71.22  General license: Fissile material, limited quantity, 
controlled shipment.

    (a) A general license is issued to any licensee of the Commission 
to transport fissile material, or to deliver fissile material to a 
carrier for transport, without complying with the package standards of 
Subparts E and F of this part, if limited material is shipped in 
accordance with this section.
    (b) The general license applies only to a licensee who has a 
quality assurance program approved by the Commission as satisfying the 
provisions of Subpart H of this part.
    (c) This general license applies only when a package contains no 
more than a Type A quantity of radioactive material and no more than 
400 g total of the fissile radionuclides of plutonium encapsulated as 
plutonium-beryllium neutron sources in special form.
    (d) This general license applies only when:
    (1) The mass of fissile radionuclides in the shipment is limited 
such that the
[GRAPHIC] [TIFF OMITTED] TR10FE97.000

where X and Y are the mass defined in the table following paragraph 
(d)(2) of this section; or
    (2) the encapsulated plutonium-beryllium neutron sources are in 
special form and the total mass of fissile radionuclides in the 
shipment does not exceed 2500 g.

        Permissible Mass Limits for Shipments of Fissile Material       
------------------------------------------------------------------------
                                              Fissile         Fissile   
                                           material mass   material mass
                                          (g) mixed with  (g) mixed with
                                            substances      substances  
            Fissile material                 having a        having a   
                                             hydrogen        hydrogen   
                                           density less       density   
                                           than or equal   greater than 
                                             to water          water    
------------------------------------------------------------------------
Uranium-235(X)..........................             500             290
Other fissile material(Y)...............             300             180
------------------------------------------------------------------------

    (e) Except for the beryllium contained within the special form 
plutonium-beryllium sources authorized in paragraphs (c) and (d) of 
this section, this general license applies only when beryllium, 
graphite or hydrogenous material enriched in deuterium is not present 
in quantities exceeding 0.1% of the fissile material mass.
    (f) This general license applies only when shipment of these 
packages is made under procedures specifically authorized by DOT, in 
accordance with 49 CFR Part 173 of its regulations, to prevent loading, 
transport, or storage of these packages with other fissile material 
shipments.

[[Page 5913]]

    4. Section 71.53 is revised to read as follows:


Sec. 71.53  Fissile material exemptions.

    Fissile materials meeting the requirements of one of the paragraphs 
in (a) through (d) of this section are exempt from fissile material 
classification and from the fissile material package standards of 
Secs. 71.55 and 71.59, but are subject to all other requirements of 
this part. These exemptions apply only when beryllium, graphite, or 
hydrogenous material enriched in deuterium is not present in quantities 
exceeding 0.1 percent of the fissile material mass.
    (a) Fissile material such that
    [GRAPHIC] [TIFF OMITTED] TR10FE97.001
    
for an individual consignment, where X and Y are the mass limits 
defined in table following paragraph (a)(3) of this section, 
provided that:
    (1) Each package contains no more than 15 g of fissile material. 
For unpackaged material the mass limit of 15g applies to the 
conveyance; or
    (2) The fissile material consists of a homogeneous hydrogenous 
solution or mixture where the minimum ratio of hydrogen atoms to 
fissile radionuclide atoms (H/X) is 5200 and the maximum concentration 
of fissile radionuclides within a package is 5 g/liter; or
    (3) There is no more than 5g of fissile material in any 10 liter 
volume of material and the material is packaged so as to maintain this 
limit of fissile radionuclide concentration during normal transport.

        The Requirements for Packages Containing Fissile Material       
------------------------------------------------------------------------
                                              Fissile         Fissile   
                                           material mass   material mass
                                          (g) mixed with  (g) mixed with
                                            substances      substances  
                                             having an       having an  
            Fissile material                  average         average   
                                             hydrogen        hydrogen   
                                           density less       density   
                                           than or equal   greater than 
                                             to water          water    
------------------------------------------------------------------------
Uranium-235(X)..........................             400             290
1Other fissile material(Y)..............             250             180
------------------------------------------------------------------------

    (b) Uranium enriched in uranium-235 to a maximum of 1 percent by 
weight, and with total plutonium and uranium-233 content of up to 1 
percent of the mass of uranium-235, provided that the fissile material 
is distributed homogeneously throughout the package contents and does 
not form a lattice arrangement within the package.
    (c) Liquid solutions of uranyl nitrate enriched in uranium-235 to a 
maximum of 2 percent by weight, with a total plutonium and uranium-233 
content not exceeding 0.1 percent of the mass of uranium-235, and with 
a minimum nitrogen to uranium atomic ratio (N/U) of 2.
    (d) Plutonium, less than 1 kg, of which not more than 20 percent by 
mass may consist of plutonium-239, plutonium-241, or any combination of 
these radionuclides.

    Dated at Rockville, Maryland, this 4th day of February, 1997.

    For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 97-3175 Filed 2-7-97; 8:45 am]
BILLING CODE 7950-01-P


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