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[Federal Register Volume 63, Number 114 (Monday, June 15, 1998)]
[Rules and Regulations]
[Pages 32600-32605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14097]

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NUCLEAR REGULATORY COMMISSION

10 CFR Part 71

RIN 3150-AF59

Requirements for Shipping Packages Used To Transport Vitrified 
High-Level Waste

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
regulations to add vitrified high-level waste (HLW) contained in a 
sealed canister designed to maintain waste containment during handling 
activities associated with transport to the forms of plutonium which 
are exempt from the double-containment packaging requirements for 
transportation of plutonium. This amendment responds to a petition for 
rulemaking submitted by the Department of Energy, Office of Civilian 
Radioactive Waste Management (DOE/OCRWM). This final rule grants the 
petition for rulemaking, with modifications, and completes NRC action 
on the petition. This final rule also will make a minor correction 
regarding the usage of metric and English units, to be consistent with 
existing NRC policy on such use.

DATES: The effective date is July 15, 1998. The incorporation by 
reference of the American Society of Mechanical Engineers (ASME) Boiler 
and Pressure Vessel Code, Section VIII, editions through the 1995 
Edition, is approved by the Director of the Federal Register as of July 
15, 1998.

FOR FURTHER INFORMATION CONTACT: Earl Easton [telephone (301) 415-8520, 
e-mail [email protected]] or Mark Haisfield [telephone (301) 415-6196, e-mail 
[email protected]] of the Office of Nuclear Material Safety and Safeguards, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION:

Background

    In 1974, the Atomic Energy Commission (AEC) adopted the special 
requirements in 10 CFR 71.63 that regulate the shipment of plutonium in 
excess of 0.74 terabecquerels (TBq) [20 Curies] per package. These 
requirements specify that plutonium must be in solid form and that 
packages used to transport plutonium must provide a separate inner 
containment (the ``double-containment'' requirement). In adopting these 
requirements, the AEC specifically excluded from the double-containment 
requirement plutonium in the form of reactor fuel elements, metal or 
metal alloys, and, on a case-by-case basis, other plutonium-bearing 
solids that the agency determines do not require double containment. 
The Statement of Consideration for the original rule (39 FR 20960; June 
17, 1974), specifies that ``* * * solid forms of plutonium that are 
essentially nonrespirable should be exempted from the double-
containment requirement.''
    On November 30, 1993, DOE/OCRWM petitioned the NRC to amend 
Sec. 71.63(b) to add vitrified HLW contained in a sealed canister to 
the forms of plutonium which are exempt from the double-containment 
packaging requirements of Part 71. The NRC published a notice of 
receipt for the petition, docketed as PRM-71-11, in the Federal 
Register on February 18, 1994 (59 FR 8143). Three comments were 
received on the petition.
    Pursuant to the Nuclear Waste Policy Act of 1982, as amended 
(NWPA), DOE

[[Page 32601]]

is the Federal agency responsible for developing and administering a 
geologic repository for the deep disposal of HLW and spent nuclear 
fuel. DOE plans to ship the vitrified HLW in sealed canisters from four 
storage locations: Aiken, South Carolina; Hanford, Washington; West 
Valley, New York and Idaho Falls, Idaho; directly to the geologic 
repository in transportation packages certified by the NRC. Currently, 
this HLW exists mostly in the form of liquid and sludge resulting from 
the reprocessing of defense reactor fuels. DOE proposes to encapsulate 
the HLW in a borosilicate glass matrix. The HLW is added to molten 
glass and the mixture is then poured into a stainless steel canister 
and allowed to solidify (i.e., vitrify). The canister is then seal-
welded shut. The canisters will eventually be placed inside Type B 
transportation packages for transport to the geologic repository or an 
interim storage facility.
    The beneficial aspect of this amendment would be the elimination of 
an unnecessary requirement that DOE transport vitrified HLW in a 
separate inner container (i.e., a second barrier which is subject to 
the leak testing requirements of Sec. 71.63(b)). The Commission 
believes that the vitrified HLW form in its sealed canister provides 
sufficient defense-in-depth for protection of public health and safety 
and the environment, when transported inside an NRC-certified Type B 
transportation package. The Commission agrees with DOE's assertion that 
shipments of this form of plutonium are comparable to shipments of 
(irradiated) reactor fuel elements which are exempt from the double-
containment requirement. Therefore, the Commission agrees that the 
double-containment requirement is unnecessary. Additional beneficial 
aspects of this amendment would be a reduction in DOE's costs 
associated with the transportation of HLW from production sites to the 
geologic repository or an interim storage facility; and the 
simplification of the NRC staff's review of DOE's application for 
certification of a transportation package.
    Although, in most other types of shipments, DOE is not subject to 
the requirements of Part 71, the NWPA requires that DOE's transport of 
spent nuclear fuel or HLW to a geologic repository or a monitored 
retrievable storage facility be in packages certified by the NRC. The 
packages used to transport vitrified HLW contained in sealed canisters 
will be certified by the NRC as Type B packages. Type B packages are 
designed to withstand the normal and hypothetical accident conditions 
specified in Part 71. The canistered vitrified HLW also will be subject 
to the special transport controls for a ``Highway Route Controlled 
Quantity'' pursuant to U.S. Department of Transportation regulations 
contained in 49 CFR Part 397. In addition, the NWPA requires DOE to 
provide technical assistance and funds to train emergency responders 
along the planned routes.
    DOE asserted that shipments of vitrified HLW contained in a sealed 
canister will not adversely affect public health and safety and the 
environment if shipped without double containment. DOE stated that a 
separate inner container is unnecessary because of the high degree of 
confinement provided by the stainless steel waste canister and the 
essential nonrespirability of the solid, plutonium-bearing waste form. 
In addition, DOE argued that vitrified HLW in sealed canisters provides 
a comparable level of protection to that of irradiated reactor fuel 
elements, which the Commission previously determined should be exempt 
from the double-containment requirement (39 FR 20960).
    On June 1, 1995, the NRC staff met with DOE in a public meeting to 
discuss the petitioner's request and the possible alternative of 
requesting an NRC determination under Sec. 71.63(b)(3) to exempt 
vitrified HLW contained in a sealed canister from the double-
containment requirement. DOE informed the NRC in a letter dated January 
25, 1996, of its intent to seek an exemption under Sec. 71.63(b)(3). 
The NRC received DOE's exemption request on July 16, 1996, in which DOE 
also requested that the original petition for rulemaking be held in 
abeyance until a decision was reached on the exemption request. In 
response to DOE's request, the NRC staff prepared a Commission paper 
(SECY-96-215, dated October 8, 1996) outlining and requesting 
Commission approval of the NRC staff's proposed approach for making an 
exemption under Sec. 71.63(b)(3). However, in a staff requirements 
memorandum (SRM) dated October 31, 1996, the Commission disapproved the 
NRC staff's plan and directed that this policy issue be addressed by 
rulemaking rather than by exemption.
    The NRC published a proposed rule in the Federal Register on May 8, 
1997 (62 FR 25146) in response to DOE's petition. The Statement of 
Considerations for the proposed rule contains a complete discussion of 
DOE's petition, comments received on the petition, and the NRC's 
analysis of those comments.

Discussion

    The NRC is amending 10 CFR 71.63 based on its evaluation of the 
petition submitted by the DOE; the attachment to the petition, 
``Technical Justification to Support the PRM by the DOE to Exempt HLW 
Canisters from 10 CFR 71.63(b)'' (Technical Justification); the three 
public comments received on the petition after its publication in the 
Federal Register; and the seven comments on the proposed rule. In 
amending Sec. 71.63, the NRC is accepting, with modifications, the 
petition submitted by DOE, for the reasons set forth in the following 
paragraphs.
    In the early 1970's, the AEC anticipated that a large number of 
shipments of plutonium nitrate liquids could result from the spent fuel 
reprocessing anticipated at that time. This raised a concern about 
leakage of liquids because of the potential for a large number of 
packages (probably of more complex design) to be shipped due to 
reprocessing and the increased possibility of human error resulting 
from handling this expanded shipping load.
    In 1973, the AEC proposed a rule which would deal with this problem 
by (a) requiring that shipments of plutonium containing greater than 20 
curies be shipped in solid form, and (b) requiring that the solid 
plutonium be shipped in an inner container which would meet ``special 
form'' requirements as they then existed; i.e., not only would the 
whole package have to meet Part 71 requirements but the inner container 
would separately have to meet stringent requirements. One alternative 
to the proposed rule the AEC considered was to require that shipments 
of plutonium be in nonrespirable form, either in a single or double 
containment. This alternative was rejected, apparently because fuel 
fabricators did not have the technology to use plutonium in a 
nonrespirable form.
    In 1974, the AEC published a final rule which contained two 
significant changes from the proposed rule:

    (1) The AEC abandoned the ``special form'' requirement and 
instead simply required ``double containment'; i.e., the inner 
container was required not to release plutonium when the whole 
package was subjected to the normal and hypothetical accident tests 
of Part 71, but no separate tests were required for the inner 
container. Double containment was required to take account of the 
fact that the AEC had decided not to require that the plutonium be 
in a nonrespirable form; and
    (2) The AEC exempted two forms of plutonium altogether--reactor 
fuel elements and metal or metal alloy--on the basis that

[[Page 32602]]

these forms were ``essentially nonrespirable'' and therefore did not 
require double containment. The exemption provision placed in the 
regulation also indicates that the AEC saw the possibility that 
other forms of plutonium would be similar enough to these two forms 
to also qualify for exemption from the double-containment 
requirement because they were also essentially nonrespirable. In the 
statement of considerations accompanying the final rule, the AEC 
stated that ``* * * solid forms of plutonium that are essentially 
nonrespirable should be exempt from the double containment 
requirements'' (39 FR 20960).

    DOE's petition argues that a particular form of plutonium-vitrified 
high-level waste contained in a sealed canister--is similar enough to 
irradiated reactor fuel elements to qualify for its own exemption from 
the double-containment requirement. This is because of (1) the material 
properties of the vitrified HLW, (2) the high degree of confinement 
provided by the stainless steel waste canister, and (3) the NRC-
approved quality assurance program implemented by DOE makes it highly 
unlikely that any plutonium would be released from an NRC-certified 
transportation package under the normal or hypothetical accident 
conditions of part 71. The NRC is required to certify the 
transportation packages used for vitrified HLW pursuant to Section 180 
of the NWPA and every transportation package for vitrified HLW will be 
required to meet the standards for accident-resistant packages (i.e., 
Type B packages) set forth in part 71.
    The tests described in DOE's Technical Justification demonstrate 
that the canisters containing the vitrified HLW provide an additional 
barrier to the release of radionuclides and compare favorably to the 
cladding surrounding spent fuel pellets in reactor fuel elements. The 
comparison is based upon physical drop tests, upon the material 
properties and dimensions of the sealed canisters, and the effects of 
radiation damage to materials.
    DOE's analysis demonstrates much lower concentrations of plutonium 
in the HLW canisters than in irradiated reactor fuel elements. However, 
the DOE has not established an upper limit on plutonium concentration 
for these vitrified HLW canisters, and the NRC is not basing its 
decision to remove these canisters from the double-containment 
requirement based on the plutonium's concentration.
    In its Technical Justification, DOE described the physical 
characteristics and acceptance standards of the canisters of vitrified 
HLW, including that the canistered waste form be capable of 
withstanding a 7-meter drop onto a flat, essentially unyielding 
surface, without breaching or dispersing radionuclides. This 
requirement is imposed by the DOE's ``Waste Acceptance System 
Requirements Document (WASRD),'' Rev. 0, which is referenced in the 
Technical Justification. This test should not be confused with the 9-
meter drop test, onto an essentially unyielding surface, which is 
required by the hypothetical accident conditions of Sec. 71.73. The 9-
meter drop test is performed on the entire transportation package under 
the Part 71 certification process. The 7-meter drop test standard only 
applies to the canistered HLW.
    The NRC agrees that the 7-meter drop test requirement is relevant 
to the demonstration that the canistered HLW represents an essentially 
nonrespirable form for shipping plutonium. The NRC believes that the 7-
meter canister drop test is a more severe challenge than the 9-meter 
drop test for an NRC-approved Type B package. This is because the Type 
B package and the impact limiters will absorb much of the energy which 
would otherwise be expended against the canister.
    In some of DOE's tests, the HLW canisters were dropped from 9 
meters--2 meters above DOE's 7-meter design standard--and portions of 
the testing included deliberately introducing flaws (0.95 cm holes) in 
the canisters' walls. For those HLW canisters tested with the 0.95 cm 
holes, the quantity of respirable plutonium released through these 
holes was less than 0.74 TBq (20 curies). This review of DOE's 
Technical Justification has provided the NRC staff confidence that 
DOE's petition is supportable and that vitrified HLW in a sealed 
canister is essentially nonrespirable.
    The NRC does not control the requirements in, or changes to, DOE's 
WASRD. Because of concerns that DOE's WASRD could be changed in the 
future, the NRC added the requirement in the proposed rule that 
vitrified HLW contained in a sealed canister meet the design criteria 
of Sec. 60.135 (b) and (c). However, in response to comments received 
on the proposed rulemaking, the Commission has reconsidered its 
proposed imposition of referencing Part 60 design criteria. The final 
rule, instead, incorporates one of the design requirements from Part 60 
into this rule. The other Part 60 design requirements are satisfied by 
other existing Part 71 requirements and other language in the final 
rule. Additionally, the Commission has included one acceptable method 
for meeting these design requirements for handling by referencing 
appropriate American Society of Mechanical Engineers Boiler and 
Pressure Vessel Code criteria. The explanation for this change is 
discussed below. Further, the NRC staff does perform technical reviews 
to certify package designs. For a HLW package, the review would include 
the sealed canister as well as the radioactive contents in the form of 
vitrified HLW. It is expected that an application for approval of a HLW 
package design would include a canister design and vitrified HLW 
contents with characteristics and attributes comparable to those 
described in the Technical Justification.

Comments on the Proposed Rule

    This section presents a summary of the principal comments received 
on the proposed rule, the NRC's response to the comments, and changes 
made to the final rule as a result of these comments. The Commission 
received seven comment letters from six commenters on the proposed 
rule. One was from a member of the public, two were from national 
laboratories, one was from a transportation cask designer, one was from 
a consulting company, and one was from DOE. In addition, DOE submitted 
a subsequent letter commenting on one of the other comments. Overall, 
five of the six commenters supported the proposed rule and the 
remaining commenter, while not specifically opposing the rule, proposed 
changes regarding the performance of the canister and limiting its 
contents. Copies of these letters are available for public inspection 
and copying for a fee at the Commission's Public Document Room, located 
at 2120 L Street, NW (Lower Level), Washington, DC.
    Comment. DOE and another commenter objected to the proposed rule's 
use of design criteria from Part 60. DOE noted that basing canistered 
waste approved for transport under Sec. 71.63 upon the rules for 
disposal of HLW under Sec. 60.135(b) and (c) assumes that certification 
approval for transport packages will not take place until a repository 
or interim storage facility becomes available; and that this may not be 
the case. The commenters are concerned that if certification for 
transport packages under the proposed rule is sought before a license 
application for a repository or interim storage facility is submitted, 
this situation could complicate and impede progress on the HLW cask 
certification process. One commenter supported the use of Part 60 
criteria.
    Response. The Commission has reconsidered the need to reference 
Part 60 criteria for canistered vitrified HLW in the amended 
regulation. The Commission agrees that it is best to avoid 
incorporating into Part 71--which

[[Page 32603]]

contains standards for the packaging and transportation of radioactive 
materials--requirements referenced from Part 60 which are intended for 
the permanent disposal of HLW in a geologic repository. The NRC staff 
has analyzed the requirements contained in Sec. 60.135(b) and (c) and 
has determined that the intended requirement--that the canistered 
vitrified HLW maintain its integrity--can be achieved by reliance on 
existing Part 71 requirements and language from the proposed rule for 
all of the Part 60 requirements, but one. That one requirement is to 
design the canister to maintain waste containment during handling 
activities associated with transport. This has been added to the final 
rule. Additionally, the Commission has included one acceptable method 
for meeting these design requirements by referencing appropriate 
American Society of Mechanical Engineers Boiler and Pressure Vessel 
Code criteria.
    The design criteria in Sec. 60.135(b) require that the waste 
package shall not contain explosive, pyrophoric, or chemically reactive 
materials or free liquids in amounts that could cause harm; that waste 
packages shall be designed to maintain waste containment during 
handling; and that waste packages have unique identification numbers. 
The design criteria in Sec. 60.135(c) require that the waste be in 
solid form and placed in a sealed container; that any particulate waste 
forms be consolidated into an encapsulating matrix; and that any 
combustible radioactive waste be reduced to noncombustible form. As 
noted, the Commission believed that by referencing these criteria in 
the proposed rule, it could assure the integrity of the canistered 
vitrified HLW.
    The Commission now believes that the integrity objective can be 
achieved by relying on requirements in the final rule and other 
requirements in Part 71. First, as stated above, the final rule has 
added language that the canister be designed to maintain waste 
containment during handling activities associated with transport. 
Second the rule requires that the HLW be vitrified, and thus be in a 
solid form for encapsulation. Vitrification of HLW uses molten glass 
and this high temperature process will reduce any combustible 
radioactive waste into a noncombustible form. Finally, the Part 60 
requirement that a unique identification number be attached to the HLW 
canister is not relevant for transportation.
    Third, the Commission believes the integrity objective can be 
achieved by relying on other requirements in Part 71. Part 71 already 
requires that the transportation packages must not contain explosive, 
pyrophoric, or chemically reactive materials or free liquids. Section 
71.43(d) requires that:

    A package must be made of materials and construction that assure 
that there will be no significant chemical, galvanic, or other 
reaction among the packaging components, among package contents, or 
between the packaging components and the package contents, including 
possible reaction resulting from inleakage of water, to the maximum 
credible extent. Account must be taken of the behavior of materials 
under irradiation.

    The existing requirement in Sec. 71.63(a) that the plutonium be in 
a solid form also will assure that the waste will be in solid form and 
that the waste package will be free of liquids.
    Additionally, the Commission has included one acceptable method for 
meeting the canister design requirements for handling by referencing 
appropriate American Society of Mechanical Engineers Boiler and 
Pressure Vessel Code criteria. Use of the ASME Boiler and Pressure 
Vessel Code would ensure that the canister would be designed to 
maintain waste containment during handling, including normal loading 
and unloading activities. Certain criteria of the ASME Boiler and 
Pressure Vessel Code, Section VIII, are excluded because they are not 
appropriate for a sealed canister containing vitrified HLW. For 
example, the criteria to include a pressure relief device and openings 
to inspect the interior are unnecessary and could compromise the long 
term integrity of the canister. Specific alternatives to the ASME 
Boiler and Pressure Vessel Code criteria may be considered and approved 
without resorting to exemptions from the regulation.
    Final Rule. The final rule has been revised to read as follows: 
Vitrified high-level waste contained in a sealed canister designed to 
maintain waste containment during handling activities associated with 
transport. As one method of meeting these design requirements, the NRC 
will consider acceptable a canister which is designed in accordance 
with the American Society of Mechanical Engineers (ASME) Boiler and 
Pressure Vessel Code, Section VIII, editions through the 1995 Edition. 
However, this canister need not be designed in accordance with the 
requirements of Section VIII, Parts UG-46, UG-115 through UG-120, UG-
125 through UG-136, UW-60, UW-65, UHA-60, and UHA-65 and the canister's 
final closure weld need not be designed in accordance with the 
requirements of Section VIII, Parts UG-99 and UW-11. Necessary language 
to incorporate by reference the ASME Boiler and Pressure Vessel Code 
has also been added.
    Comment. Four of the six commenters stated that the NRC should 
evaluate the technical bases for Sec. 71.63, or referred to a 
Commission SRM to SECY-96-215, dated October 31, 1996, which directed 
the NRC staff to ``address whether the technical basis for 10 CFR 71.63 
remains valid, or whether a revision or elimination of portions of 10 
CFR 71.63 is needed to provide flexibility for current and future 
technologies.'' One of the commenters noted that the International 
Atomic Energy Agency standards do not impose a double-containment 
requirement. Four of the commenters recommended that if the NRC 
retained the double containment provision, that the rule use 
performance-based criteria for dispersibility and respirability as a 
basis for exemption, or that double containment only be required for 
``highly dispersible materials.'' One of the commenters recommended 
that Sec. 71.63 be eliminated entirely. One commenter expressed an 
interest in any Commission action on Sec. 71.63, and recommended that 
the evaluation of Sec. 71.63 take the form of an Advanced Notice of 
Proposed Rulemaking.
    Response. The Commission believes that those comments to evaluate 
the technical basis for Sec. 71.63, to revise Sec. 71.63 (other than 
for vitrified HLW in canisters), or to eliminate the rule, are beyond 
the scope of this rulemaking. The NRC staff recently reviewed the 
technical bases for Sec. 71.63, as directed in the SRM to SECY-96-215. 
The NRC staff concluded, in SECY-97-218, dated September 29, 1997, that 
the technical bases remain valid, and that the provisions provide 
adequate flexibility for current and future technologies. Except for 
the changes made in this rulemaking for vitrified HLW in canisters, the 
NRC staff concluded that the provisions in Sec. 71.63 should remain 
unchanged. The NRC staff will further consider potential modifications 
to Sec. 71.63 in its response to a petition for rulemaking, dated 
September 25, 1997, (Docket No. PRM-71-12). The NRC published a notice 
of receipt for the petition in the Federal Register (63 FR 8362, dated 
February 19, 1998).
    Comment. One commenter suggested that the proposed rule be changed 
to require that HLW canister design, fabrication, test, and fill be 
conducted under a quality assurance program that meets, to the 
satisfaction of the NRC, the requirements of Part 71, Subpart H.
    This commenter also suggested that the proposed rule be changed to 
require that the exemption will only apply to canisters of HLW in 
shipping packages which have been demonstrated by analysis or test to 
adequately contain the HLW canisters without allowing canister failure 
under the hypothetical

[[Page 32604]]

accident conditions of Part 71, Subpart F, when considered as a 
transportation system.
    Response. The technical basis given in the DOE petition for an 
exemption is that a separate inner container is unnecessary because of 
the high degree of confinement provided by the stainless steel waste 
canister and the non-respirability of the solid, plutonium-bearing 
waste form. In support of its petition, DOE submitted a Technical 
Justification which included a description of a representative HLW 
canister together with the results of 7-meter and 9-meter drop testing 
of the canisters and a description of the standards used for canister 
fabrication and filling.
    The technical review performed by the NRC staff to certify a HLW 
package would include the sealed canister as well as the radioactive 
contents in the form of vitrified HLW. It is expected that an 
application for approval of a HLW package design would include a 
canister design and vitrified HLW contents with characteristics and 
integrity comparable to those described in the DOE petition. The DOE 
HLW canisters will be subject to an NRC approved quality assurance 
plan.
    The final rule has been revised to specify that the vitrified high-
level waste be contained in a sealed canister designed to maintain 
waste containment during handling activities associated with transport. 
These standards would apply to all canisters containing vitrified HLW 
transported under this provision and will provide reasonable assurance 
that the package design adequately protects public health and safety.
    Comment. One commenter suggested that the proposed rule be changed 
to require that the exemption will only apply to vitrified HLW from 
which plutonium has been removed prior to transfer to HLW storage 
tanks. The commenter suggested the vitrified HLW be restricted to no 
more than 3.7 TBq (100 Ci) of plutonium.
    Response. The Statement of Considerations for the original rule (39 
FR 20960) did not discuss activity limits (quantity limits); nor did 
the Commission adopt activity limits on the other forms of plutonium 
that are exempt from Sec. 71.63(b). Rather, any limitations on the 
quantity of plutonium that can be shipped in a transportation package--
for any exempt form of plutonium--are due to the inherent design 
features of the specific transportation package being used. These 
design features are reviewed by the NRC as part of the package 
certification process. The commenter has not provided any technical 
basis for requiring activity limits on this form of plutonium. The 
final rule does not specify a quantity limit for this exemption.

Regulatory Action

    The NRC is amending 10 CFR 71.63 based on its evaluation of the 
petition submitted by DOE; the attachment to the petition, ``Technical 
Justification to Support the PRM by the DOE to Exempt HLW Canisters 
from 10 CFR 71.63(b),'' the three comments received on the petition; 
and the seven comments received on the proposed rule. Section 71.63(b) 
specifies special provisions for shipping plutonium in excess of 0.74 
TBq (20 curies) per package, including a separate inner containment 
system, except when plutonium is in solid form of reactor fuel 
elements, metal, or metal alloys. In amending Sec. 71.63(b), the NRC is 
granting, with modification, the petition submitted by DOE to eliminate 
these special provisions when transporting vitrified HLW contained in a 
sealed canister designed to maintain waste containment during handling 
activities associated with transport. The final rule completes NRC 
action on PRM-71-11. In the proposed rule, the NRC would have required 
that the HLW canister meet design criteria contained in Sec. 60.135(b) 
and (c). The final rule, instead, incorporates these requirements into 
Part 71.
    In addition, the NRC has corrected the usage of units in 
Sec. 71.63. The metric units are used first with the English units in 
parenthesis.

Criminal Penalties

    For the purposes of Section 223 of the Atomic Energy Act (AEA), the 
Commission is issuing the final rule under one or more of sections 
161b, 161i, or 161o of the AEA. Willful violations of the rule will be 
subject to criminal enforcement.

Compatibility of Agreement State Regulations

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' approved by the Commission on June 30, 1997 
(62 FR 46517), this rule is classified as compatibility category 
``NRC.'' This regulation addresses areas of exclusive NRC authority. 
However, a State may adopt these provisions for the purposes of clarity 
and communication, as long as the State does not adopt regulations or 
program elements that would cause the State to regulate these areas.

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 will not be a major Federal 
action significantly affecting the quality of the human environment, 
and therefore, an environmental impact statement is not required. The 
final rule change exempts shipments of vitrified HLW contained in a 
sealed canister designed to maintain waste containment during handling 
activities associated with transport. The purpose of the double 
containment rule is to ensure safety by requiring plutonium to be 
shipped as a solid, under double containment, thereby minimizing the 
likelihood of leakage during transport as a result of possible 
packaging errors. The Commission believes that the plutonium within 
vitrified HLW contained in a sealed canister is essentially 
nonrespirable and this form of plutonium provides a level of protection 
comparable to irradiated reactor fuel elements--which are exempt from 
the double-containment requirement. Therefore, double containment is 
unnecessary for vitrified HLW contained in a sealed canister designed 
to maintain waste containment during handling activities associated 
with transport.
    The final environmental assessment and finding of no significant 
impact on which this determination is based are available for 
inspection at the NRC Public Document Room, 2120 L Street NW. (Lower 
Level), Washington, DC. Single copies of the environmental assessment 
and the finding of no significant impact are available from Mark 
Haisfield, Office of Nuclear Material Safety and Safeguards, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone 
(301) 415-6196.

Paperwork Reduction Act Statement

    This 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 number 3150-0008.

Public Protection Notification

    If an information collection does not display a currently valid OMB 
control number, the NRC may not conduct or sponsor, and a person is not 
required to respond to, the information collection.

[[Page 32605]]

Regulatory Analysis

    The Commission has prepared a final regulatory analysis on this 
final regulation. The analysis examines the costs and benefits of the 
alternatives considered by the Commission. The analysis is available 
for inspection in the NRC Public Document Room, 2120 L Street NW. 
(Lower Level), Washington, DC. Single copies of the analysis may be 
obtained from Mark Haisfield, Office of Nuclear Material Safety and 
Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, telephone (301) 415-6196.

Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 
605(b)), the Commission certifies that this rule does not have a 
significant economic impact on a substantial number of small entities. 
DOE is the only transporter of vitrified HLW. No other entities are 
involved. DOE is not a small entity as defined in 10 CFR 2.810.

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 the backfit rule, 10 CFR 50.109, does 
not apply to this rule, and therefore, a backfit analysis is not 
required because these amendments do not involve any provisions that 
would impose backfits as defined in 10 CFR 50.109(a)(1).

List of Subjects in 10 CFR Part 71

    Criminal penalties, Hazardous materials transportation, 
Incorporation by reference, 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 71.63 is revised to read as follows:

Sec. 71.63  Special requirements for plutonium shipments.

    (a) Plutonium in excess of 0.74 TBq (20 Ci) per package must be 
shipped as a solid.
    (b) Plutonium in excess of 0.74 TBq (20 Ci) per package must be 
packaged in a separate inner container placed within outer packaging 
that meets the requirements of Subparts E and F of this part for 
packaging of material in normal form. If the entire package is 
subjected to the tests specified in Sec. 71.71 (``Normal conditions of 
transport''), the separate inner container must not release plutonium 
as demonstrated to a sensitivity of 10-6 A2/h. If 
the entire package is subjected to the tests specified in Sec. 71.73 
(``Hypothetical accident conditions''), the separate inner container 
must restrict the loss of plutonium to not more than A2 in 1 
week. Solid plutonium in the following forms is exempt from the 
requirements of this paragraph:
    (1) Reactor fuel elements;
    (2) Metal or metal alloy;
    (3) Vitrified high-level waste contained in a sealed canister 
designed to maintain waste containment during handling activities 
associated with transport. As one method of meeting these design 
requirements, the NRC will consider acceptable a canister which is 
designed in accordance with the American Society of Mechanical 
Engineers (ASME) Boiler and Pressure Vessel Code, Section VIII, 1995 
Edition (earlier editions may be used in lieu of the 1995 Edition). 
However, this canister need not be designed in accordance with the 
requirements of Section VIII, Parts UG-46, UG-115 through UG-120, UG-
125 through UG-136, UW-60, UW-65, UHA-60, and UHA-65 and the canister's 
final closure weld need not be designed in accordance with the 
requirements of Section VIII, Parts UG-99 and UW-11. The Director of 
the Federal Register approves this incorporation by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. Copies of the ASME 
Boiler and Pressure Vessel Code, Section VIII, 1995 Edition, may be 
purchased from the American Society of Mechanical Engineers, Service 
Center, 22 Law Drive, P.O. Bos 2900, Fairfield, NJ 07007. It is also 
available for inspection at the NRC Library, 11545 Rockville Pike, 
Rockville, MD 20852-2738 or at the Office of the Federal Register, 800 
North Capitol Street, NW., Suite 700, Washington, DC.; and
    (4) Other plutonium bearing solids that the Commission determines 
should be exempt from the requirements of this section.

    Dated at Rockville, Maryland, this 20th day of May, 1998.

    For the Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 98-14097 Filed 6-14-98; 8:45 am]
BILLING CODE 7590-01-P
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