[Federal Register Volume 73, Number 197 (Thursday, October 9, 2008)]
[Proposed Rules]
[Pages 59540-59547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24033]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 73, No. 197 / Thursday, October 9, 2008 / 
Proposed Rules

[[Page 59540]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 51

RIN 3150-AI27
[NRC-2008-0269]


Categorical Exclusions From Environmental Review

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to 
amend its regulations describing the categories of actions which do not 
require an environmental review under the requirements of the National 
Environmental Policy Act of 1969 (NEPA) because they have no 
significant effect on the human environment. The proposed revisions 
would eliminate the preparation of environmental assessments for NRC 
actions that are minor, administrative, or procedural in nature. The 
proposed rule would not change any requirements for licensees but would 
provide for more timely NRC action.

DATES: The comment period expires December 23, 2008. Comments received 
after this date will be considered if it is practical to do so, but the 
NRC is able to assure consideration only for comments received on or 
before this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Comments submitted in writing or in electronic form will be made 
available for public inspection. Because your comments will not be 
edited to remove any identifying or contact information, the NRC 
cautions you against including any information in your submission that 
you do not want to be publicly disclosed.
    Federal e-Rulemaking Portal: Go to http://www.regulations.gov and 
search for documents filed under Docket ID [NRC-2008-0269]. Address 
questions about NRC dockets to Carol Gallagher 301-415-5905; e-mail 
<a href="/cdn-cgi/l/email-protection#e5a684978a89cba284898984828097a58b9786cb828a93"><span class="__cf_email__" data-cfemail="a2e1c3d0cdce8ce5c3cecec3c5c7d0e2ccd0c18cc5cdd4">[email protected]</span></a>.
    E-mail comments to: <a href="/cdn-cgi/l/email-protection#e0b2958c858d818b898e87cea38f8d8d858e9493a08e9283ce878f96"><span class="__cf_email__" data-cfemail="b5e7c0d9d0d8d4dedcdbd29bf6dad8d8d0dbc1c6f5dbc7d69bd2dac3">[email protected]</span></a>. If you do not 
receive a reply e-mail confirming that we have received your comments, 
contact us directly at (301) 415-1966.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 am and 4:15 pm during Federal workdays. (Telephone 
(301) 415-1966).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
(301) 415-1101.
    You can access publicly available documents related to this 
document using the following methods:
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Public 
File Area Room O F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland. The PDR reproduction contractor will copy 
documents for a fee.
    NRC's Agencywide Document Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC's PDR 
reference staff at 1-800-397-4209, or (301) 415-4737, or by e-mail to 
<a href="/cdn-cgi/l/email-protection#623226304c3007110d17100107220c10014c050d14"><span class="__cf_email__" data-cfemail="9fcfdbcdb1cdfaecf0eaedfcfadff1edfcb1f8f0e9">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Cardelia H. Maupin, Office of Federal 
and State Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-
2312, e-mail, <a href="/cdn-cgi/l/email-protection#7635170412131a1f17583b1703061f183618041558111900"><span class="__cf_email__" data-cfemail="6724061503020b0e06492a0612170e092709150449000811">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Background
    A. General Overview of Categorical Exclusion
    B. NRC Categorical Exclusion Regulations
    C. Amendments to NRC Categorical Exclusion Regulations
    D. Basis for Proposed Amendment of Categorical Exclusion 
Regulation
II. Discussion
    A. What Is a Categorical Exclusion?
    B. What Is NRC's Definition of Categorical Exclusion?
    C. How Should a Categorical Exclusion Be Applied?
    D. What Action Is the NRC Taking?
    E. Who Would This Action Affect?
III. Discussion of Proposed Amendments by Section
IV. Agreement State Compatibility
V. Plain Language
VI. Voluntary Consensus Standards
VII. Environmental Assessment and Finding of No Significant 
Environmental Impact
VIII. Paperwork Reduction Act Statement
IX. Public Protection Notification
X. Regulatory Analysis
XI. Regulatory Flexibility Certification
XII. Backfit Analysis

I. Background

    The National Environmental Policy Act of 1969 (NEPA), as amended, 
42 U.S.C. 4321-4370f, requires Federal agencies to undertake an 
assessment of the environmental effects of their proposed actions prior 
to making decisions. The NRC's NEPA regulations are contained in 10 CFR 
Part 51, ``Environmental Protection Regulations for Domestic Licensing 
and Related Regulatory Functions.''

A. General Overview of Categorical Exclusion

    There are three types of NEPA analysis: An environmental impact 
statement (EIS), an environmental assessment (EA), or a categorical 
exclusion. An EIS documents an agency's evaluation of the environmental 
impacts of a major Federal action significantly affecting the quality 
of the human environment. An EA is a concise, publicly available 
document that provides sufficient evidence and analysis for determining 
whether to prepare an EIS or make a finding of no significant impact 
(FONSI). If an EA supports a FONSI, the environmental review process is 
complete. If the EA reveals that the proposed action may have a 
significant effect on the human environment, the Federal agency then 
normally prepares an EIS. A categorical exclusion, in contrast, is a 
category of actions that do not have a significant effect on the human 
environment, as defined by a Federal agency in its procedures 
implementing NEPA. If the Federal agency finds that actions in a given

[[Page 59541]]

category have repeatedly been shown to have no significant effect on 
the human environment, either individually or cumulatively, then the 
agency may establish a categorical exclusion for that category of 
action. Once it has established a categorical exclusion, the agency is 
not required to prepare an EA or EIS for any action that falls within 
the scope of the categorical exclusion, unless the agency finds, for 
any particular action, that there are special (e.g., unique, unusual or 
controversial) circumstances that may have a significant effect on the 
human environment. Categorical exclusions streamline the NEPA process, 
saving time, effort, and resources.

B. NRC Categorical Exclusion Regulations

    On March 12, 1984 (49 FR 9352), the NRC published 10 CFR Part 51, 
``Environmental Protection Regulations for Domestic Licensing and 
Related Regulatory Functions and Related Conforming Amendments.'' The 
regulation included NRC's first list of 18 categorical exclusions in 10 
CFR 51.22, ``Criterion for categorical exclusion: identification of 
licensing and regulatory actions eligible for categorical exclusion or 
otherwise not requiring environmental review.''

C. Amendments to NRC Categorical Exclusion Regulations

    Over the past 24 years, NRC has made 14 amendments to the 
categorical exclusions in Sec.  51.22. Nine of these amendments were 
minor, corrective, or conforming changes, and four were more 
substantive. All resulted from rulemaking efforts addressing other 
parts of NRC regulations. As a result of the 14 amendments, the list of 
categorical exclusions in Sec.  51.22(c) increased from 18 to 23 
categorical exclusions. The NRC's categorical exclusions include 
administrative, organizational, or procedural amendments to certain 
types of NRC regulations, licenses, and certificates; minor changes 
related to application filing procedures; certain personnel and 
procurement activities; and activities when environmental review by NRC 
is excluded by statute.

D. Basis for Proposed Amendment of Categorical Exclusion Regulation

    The NRC is proposing additional amendments to the 10 CFR 51.22 
categorical exclusions to reflect regulatory experience gained since 
the development of this regulation in March 1984. Prior to this 
rulemaking effort, there has been no comprehensive review and update of 
Sec.  51.22 since its development over 24 years ago. The proposed 
rulemaking is based, in part, on the Council on Environmental Quality 
(CEQ) September 2003 NEPA Task Force Report (Task Force Report) 
``Modernizing NEPA Implementation,'' http://www.nepa.gov/ntf/report/pdftoc.html. The Task Force Report notes that the development and 
updating of categorical exclusions by Federal agencies occurs 
infrequently and recommends that Federal agencies examine their 
categorical exclusion regulations to identify potential revisions that 
would eliminate unnecessary and costly EAs. It also provides 
recommendations for categorical exclusion development and revision.
    The Task Force Report notes that in developing new or broadening 
existing categorical exclusions, a key issue is how to evaluate whether 
a proposed categorical exclusion is appropriate and how to support the 
determination that it describes a category of actions that do not 
individually or cumulatively have a significant impact on the human 
environment. It recommends the use of information from past actions to 
establish the basis for the no significant impact determination. It 
further advises Federal agencies to evaluate past actions that occurred 
during a particular period to determine how often the NEPA analyses 
resulted in FONSIs for the category of actions being considered. The 
Task Force Report indicates that an adequate basis for developing new 
or broadening existing categorical exclusions exists if all the 
evaluated past actions resulted in FONSIs. It also provides that 
criteria for identifying new categorical exclusions should include: (1) 
Repetitive actions that do not individually or cumulatively have 
significant effects on the human environment; (2) actions that 
generally require limited environmental review; and (3) actions that 
are noncontroversial.
    The proposed rule is also based upon a review of NRC regulatory 
actions. As noted, the Task Force Report recommends that agencies 
evaluate past EA/FONSIs for particular categories of actions to develop 
new or broaden existing categorical exclusions. To comply with this 
recommendation, an NRC search of files for EA/FONSIs completed during 
the 20-year period from 1987 to 2007 was conducted. The search revealed 
that more than 1,500 actions resulted in EA/FONSIs. NRC conducted an 
in-depth review of the EA/FONSIs issued during the last 5 years. That 
review identified several recurring categories of regulatory actions 
that are not addressed in 10 CFR 51.22, and have no significant effect 
on the human environment, either individually or cumulatively. These 
categories of actions were considered in the proposed revisions.

II. Discussion

A. What Is a Categorical Exclusion?

    The CEQ regulations note that many actions taken by Federal 
agencies would have no significant effect on the human environment and 
introduced the term ``categorical exclusion.'' The CEQ developed the 
categorical exclusion process to reduce the amount of unnecessary 
paperwork and delays associated with NEPA compliance. If a certain type 
of regulatory action, such as the issuance of regulations, would not 
normally result in any significant effect upon the human environment, 
then it is unnecessary to spend time and effort to repeatedly document 
that fact. The CEQ definition of a ``categorical exclusion'' also 
provides for ``extraordinary circumstances'' (essentially, the NRC 
equivalent of special circumstances) in which a normally excluded 
action may have a significant environmental effect, and thus require 
preparation of an EA or an EIS.

B. What Is NRC's Definition of Categorical Exclusion?

    A ``categorical exclusion'' is defined in NRC's regulations in 10 
CFR 51.14 as a category of actions which do not individually or 
cumulatively have a significant effect on the human environment and 
which the Commission has found to have no such effect in accordance 
with procedures set out in Sec.  51.22, and for which, therefore, 
neither an EA nor an EIS is required. The NRC has determined that the 
categorical exclusions listed in 10 CFR 51.22 do not have a significant 
effect on the human environment.

C. How Should a Categorical Exclusion Be Applied?

    Before using a categorical exclusion for a proposed action, it 
should be considered whether there may be any special (e.g., unique, 
unusual or controversial) circumstances arising from or related to that 
proposed action that may result in the potential for a significant 
effect to the human environment. If such special circumstances are, or 
are likely to be present, the NRC would then prepare an EA and, if 
necessary, an EIS. If special circumstances are not present, then the 
categorical exclusion may be applied and the NRC will satisfy its NEPA 
obligation for that proposed action. The determination of whether 
special

[[Page 59542]]

circumstances are present is a matter of NRC discretion. The 
determination that special circumstances are not present will not 
require the preparation of any specific or additional documentation 
beyond the documentation normally prepared, if any, indicating that the 
categorical exclusion is being invoked for the proposed action.

D. What Action Is the NRC Taking?

    The NRC is proposing changes to its list of categorical exclusions 
to clarify the scope of existing categories and to add new categories 
of actions that have been shown to have no significant effect on the 
human environment. For example, the provisions in Sec.  51.22(c)(10) 
cover administrative and procedural changes to a license or permit. 
However, because of the ambiguity of the language in this provision, 
the NRC has prepared numerous EA/FONSIs for changes to a licensee's 
name, address, or telephone number. The proposed action would also 
expand the categorical exclusion that addresses decommissioning 
activities and add categorical exclusions that address the awarding of 
education grants, and the granting of exemptions from certain 
regulatory requirements.
    The proposed revisions of the categorical exclusion regulations 
would minimize inefficiencies and inconsistencies in the implementation 
of NRC's regulatory program. The amendment would eliminate the need to 
prepare unnecessary and costly EAs for NRC regulatory actions that have 
no significant effect on the human environment. The proposed revisions 
would also support the NRC's organizational excellence objectives of 
ensuring that its actions are effective, efficient, realistic, and 
timely.

E. Who Would This Action Affect?

    This amendment would not impose any new requirements on NRC 
licenses, but would ensure that licensees' amendment requests are 
completed in a more efficient, effective, and timely manner, and would 
result in cost savings to the NRC and licensees. The proposed 
amendments would eliminate the preparation of EA/FONSIs for actions 
that routinely have been shown to have no effect on the human 
environment, e.g., administrative, procedural, or organizational 
licensee requests. Current ambiguities in the categorical exclusion 
regulations have created delays in licensee decisions when 
organizational name changes occur, because these decisions must await 
the completion of an EA/FONSI and publication in the Federal Register 
by the NRC.

III. Discussion of Proposed Amendments by Section

A. Why Revise the Description of Categorical Exclusions in 10 CFR 
51.22(a)?

    A change is proposed to Sec.  51.22(a) to clarify that the types of 
actions eligible for a categorical exclusion include ``administrative'' 
actions in addition to ``licensing'' and ``regulatory'' actions.

B. Why Revise the Categorical Exclusion in 10 CFR 51.22(c)(1) Which 
Addresses Amendments to 10 CFR Parts That Pertain Solely to 
Organizational, Administrative or Procedural Matters?

    Since the adoption of 10 CFR 51.22(c)(1) on March 12, 1984, the 
Commission adopted additional organizational, administrative, or 
procedural regulations to 10 CFR, and conforming revisions to this 
section were inadvertently omitted. The proposed amendment would update 
Sec.  51.22(c)(1) to include such references to those 10 CFR Parts that 
were inadvertently omitted. The 10 CFR Parts referenced in this section 
relate to matters regarding Commission organization, administration, or 
procedure. They serve the dual purpose of making information readily 
available to the public and of establishing administrative procedures 
for the orderly conduct of Commission business. It was previously 
established that these types of regulations comprise actions which do 
not individually or cumulatively have a significant effect on the human 
environment.
    The proposed amendment would update 10 CFR 51.22(c)(1) to include 
references to the following Commission organizational, administrative, 
or procedural requirements in the following 10 CFR Parts:
    Part 5--Nondiscrimination on the Basis of Sex in Education Programs 
or Activities Receiving Federal Financial Assistance. This part is 
designed to eliminate (with certain exceptions) sex discrimination in 
any education program or activity receiving Federal financial 
assistance.
    Part 12--Implementation of the Equal Access to Justice Act in 
Agency Proceedings. This part establishes regulatory requirements for 
awarding of attorney fees to eligible individuals and entities in 
certain administrative proceedings before the Commission.
    Part 13--Program Fraud Civil Remedies. This part establishes 
administrative procedures for imposing civil penalties and assessments 
against persons who make, submit, or present, false, fictitious, or 
fraudulent claims. It also specifies the hearing and appeal rights of 
persons subject to allegations of liability for such penalties.
    Part 15--Debt Collection Procedures. This part establishes 
administrative procedures for the Commission to collect the payment of 
debts owed to the United States Government in the form of money or 
property, unless a different procedure is specified in a statute, 
regulation, or contract.
    Part 16--Salary Offset Procedures for Collecting Debts Owed by 
Federal Employees to the Federal Government. This part establishes 
procedures for the collection by administrative offset of a Federal 
employee's salary without his or her consent to satisfy certain debts 
owed to the Federal Government.
    Part 26--Fitness for Duty Programs. This part prescribes 
requirements and standards for the establishment and maintenance of 
certain aspects of fitness-for-duty programs and procedures.
    Part 160--Trespassing on Commission Property. This part provides 
for the protection and security of NRC facilities, installations, and 
properties from unauthorized entry and from unauthorized weapons or 
dangerous materials.

C. Why Revise the Categorical Exclusion in 10 CFR 51.22(c)(2) Which 
Addresses Minor or Corrective Amendments to NRC Regulations?

    The current Sec.  51.22(c)(2) provides a categorical exclusion for 
amendments to the regulations that are ``corrective or of a minor or 
nonpolicy nature and do not substantially modify existing 
regulations.'' The proposed rule would amend this section to clarify 
and expand the scope of categorical exclusions to include amendments to 
the NRC's regulations that update requirements. The proposed amendment 
would clarify that these types of minor amendments to NRC regulations 
are excluded from the environmental review process. For example, the 
NRC routinely modifies the requirements in 10 CFR 50.55a, ``Codes and 
standards,'' to update incorporation by reference of the NRC-approved 
American Society of Mechanical Engineers (ASME) Boiler and Pressure 
Vessel Code (BPV Code) and the Code for Operation and Maintenance of 
Nuclear Power Plants (OM Code). The ASME frequently updates its BPV 
Code and OM Code as advances in technologies are made, new procedures 
are developed, and new information becomes available. Generally, these 
changes to the ASME Codes streamline operations, enhance safety, or 
reduce public exposure to radiation. In the intervals between the 
issuance of the updated ASME BPV

[[Page 59543]]

Code and OM Code Editions and Addenda, the various ASME Committees meet 
and publish Code Cases on a quarterly basis. These Code Cases are 
alternatives to the ASME BPV and OM Code requirements, and often 
reflect improvements in technology, new information, or improved 
procedures.
    The NRC's practice has been to review ASME Code Cases and find them 
acceptable, conditionally acceptable, or unacceptable for use by NRC 
facility licensees. The acceptable and conditionally acceptable Code 
Cases are then listed in NRC regulatory guides that are incorporated by 
reference in the NRC's regulations in Sec.  50.55a, ``Codes and 
standards.'' Because 10 CFR 51.22(c)(2), as presently worded, is not 
clear, each time the NRC updates its regulations to incorporate the 
most current ASME reference or update any other reference, an EA must 
be prepared. During the past 5 years (2003 through 2007), the 
Commission prepared at least eight EA/FONSIs in response to a 
licensee's request to use an updated NRC-approved ASME code. The 
preparation of EAs for these amendments is costly, and creates 
unnecessary delays in the completion of regulatory actions.

D. Why Revise the Categorical Exclusion in 10 CFR 51.22(c)(3) Which 
Addresses Amendments to Administrative, Organizational or Procedural 
Requirements Within Other 10 CFR Parts?

    This section currently lists several 10 CFR Parts. The NRC is 
proposing to revise this section to delete the specific listing of 10 
CFR Parts and to add a generic reference to reflect any part of CFR 
Chapter 10. This proposed revision eliminates the need for changes due 
to new parts being added or deleted. As a result, efficiencies will be 
gained in the rulemaking process.
    The proposed rule would also add a new paragraph (iv) to Sec.  
51.22(c)(3) to expand the categorical exclusion to include amendments 
concerning education, training, experience, qualification, or other 
employment suitability requirements established in the regulations.

E. Why Revise the Categorical Exclusion in 10 CFR 51.22(c)(9) Which 
Addresses Amendments to a Permit or License for a Reactor Under Parts 
50 or 52?

    The proposed rule expands the scope of the current categorical 
exclusion to include the granting of an exemption from a requirement 
pertaining to the installation or use of a facility component located 
within the restricted area, as defined in 10 CFR Part 20, or an 
inspection or surveillance requirement. Under the current rule, such an 
exemption would not be covered by this categorical exclusion, and would 
therefore require the preparation of an EA. The Commission has now 
determined, however, that there is ample data in the form of EA/FONSIs 
to justify the categorical exclusion of the granting of such 
exemptions, provided that the criteria in the current categorical 
exclusion (i.e., the request involves no significant hazards 
consideration, there is no significant change in the types of, or 
increase in the amounts of effluents that may be released offsite, and 
there is no significant increase in individual or cumulative 
occupational radiation exposure) are applied to them. During the last 
five year period, at least 50 EA/FONSIs resulted from licensee requests 
for such exemptions.

F. Why Revise the Categorical Exclusion in 10 CFR 51.22(c)(10) Which 
Addresses Administrative, Procedural, Organizational or Editorial 
Changes to a Permit or License?

    The proposed rule revises Sec.  51.22(c)(10) by deleting the 
specific listing of 10 CFR Parts and replacing it with a generic 
reference to reflect any part of 10 CFR. This proposed revision would 
eliminate the need for changes due to new parts being added or deleted. 
As a result, efficiencies are gained in the rulemaking process.
    In addition, Sec.  51.22(c)(10) would be revised to add new 
paragraphs (iii), (iv), and (v) to clarify that changes to a license or 
permit that are administrative, procedural, organizational, or 
editorial in nature are not subject to environmental review. The NRC 
has conducted several EAs, each resulting in a FONSI, for minor 
administrative changes to licenses and permits because these actions 
were not specifically identified in Sec.  51.22(c). These types of 
amendments to a license or permit facilitate the orderly conduct of the 
licensee's business and ensure that information needed by the 
Commission to perform its regulatory functions is readily available. 
These amendments would also include the changing of references on 
licenses and other licensee documents (e.g., licensee's operational 
procedures) to reflect amendments to NRC regulations, updated NRC-
approved guidance (e.g., NUREG documents), ASME Codes or International 
Commission on Radiological Protection (ICRP) provisions. Under the 
current rule, the NRC has been required to prepare EAs for the 
following administrative actions:
    (1) Amendments to reflect changes in ownership;
    (2) Amendments to reflect organization name changes;
    (3) Amendments to reflect corporate restructuring, including 
mergers;
    (4) Amendments to licenses to reflect changes in references; and
    (5) Amendments correcting typographical and editorial errors on 
licenses, permits, and associated technical specification documents.
    The Commission has consistently determined that these types of 
amendments have no significant impact on the human environment.

G. Why Revise the Categorical Exclusion in 10 CFR 51.22(c)(20) Which 
Addresses Decommissioning of Sites?

    The proposed regulatory action would expand the 10 CFR 51.22(c)(20) 
categorical exclusion to cover the decommissioning of sites where 
licensed operations have been limited to the use of radioactive 
materials in such a manner that a decommissioning plan is not required 
by Sec. Sec.  30.36(g)(1), 40.42(g)(1) or 70.38(g)(1), and the NRC has 
determined that the facility meets the radiological criteria for 
unrestricted use in Sec.  20.1402, without further remediation or 
analysis. These types of decommissioning activities are described in 
NUREG-1757, Vol.1, Rev. 2, ``Consolidated NMSS Decommissioning,'' as 
Group 2 decommissioning activities, which defines seven decommissioning 
groups.
    Group 2 decommissioning activities cover those:
    (1) Facilities where the licensee possessed and used only sealed 
sources, but the most recent leak tests indicate that the sources 
leaked or leak tests are not available; or
    (2) Facilities where the licensee used unsealed radioactive 
material, the licensee's survey demonstrated that levels of 
radiological contamination on building surfaces or surface soils meet 
the provisions for unrestricted release in 10 CFR 20.1402 by applying 
NRC-approved decommissioning screening criteria and the licensee is not 
required to submit a decommissioning plan.
    Group 2 decommissioning requests received by the NRC involve 
licensees who are authorized to possess and use sealed and/or unsealed 
radioactive materials with half-lives greater than 120 days. For 
example, the most common unsealed radioactive materials used by Group 2 
licensees are tritium (H-3) and Carbon-14.
    Normally, Group 2 licensees in the decommissioning process 
remediate their sites, as necessary, using their operating procedures. 
These licensees

[[Page 59544]]

are required to keep records of material receipt, use, and disposal, 
enabling them to quantify past radiological material possession and use 
with a high degree of confidence. These licensees have radiological 
survey records that characterize the residual radiological 
contamination levels present within the facilities and at their sites. 
They are able to demonstrate residual radiological contamination levels 
without more sophisticated survey procedures or dose modeling. 
Licensees of Group 2 facilities are not required to have a 
decommissioning plan, but such a licensee must demonstrate that its 
site meets the screening criteria of Sec.  20.1402. A decommissioning 
plan is not required because worker cleanup activities and procedures 
are consistent with those approved for routine operations and no dose 
analysis is required.
    In many cases, the NRC conducts confirmatory surveys during the 
licensee's decommissioning activities to verify the accuracy of the 
licensee's measuring techniques to satisfy the requirements of Sec.  
20.1402. The NRC uses a risk-informed process that assigns higher 
priority for conducting confirmatory surveys at sites that may pose a 
greater potential threat to the public health and safety. The results 
of this survey are used by the NRC to support a decision on whether to 
approve a licensee's request to terminate a license and release the 
site for unrestricted use.
    At present, Sec.  51.22(c)(20) categorically excludes from further 
NRC environmental review those activities which are defined in NUREG-
1757 as Group 1 decommissioning activities, namely, the decommissioning 
of sites where licensed operations had been limited to the use of small 
quantities of unsealed short-lived radioactive materials or radioactive 
materials in sealed sources, provided there is no evidence of leakage 
of radioactive material from these sealed sources. The current Sec.  
51.22(c)(20) decommissioning categorical exclusion was added with the 
promulgation of the license termination rule, ``Radiological Criteria 
for License Termination,'' (July 21, 1997; 62 FR 39058). The license 
termination rule, now codified at 10 CFR Part 20, Subpart E, 
established a dose-based radiological criterion of 25 mrem/yr in Sec.  
20.1402 for the release of a decommissioned site for unrestricted use.
    In establishing the decommissioning categorical exclusion, the 
Commission relied on the ``Generic Environmental Impact Statement in 
Support of Rulemaking on Radiological Criteria for License Termination 
on NRC-Licensed Nuclear Facilities'' (GEIS; NUREG-1496, Vol. 1). The 
GEIS concluded that with the use of ``decay in storage'' for the short-
lived nuclides (those with a half-life of less than or equal to 120 
days) and the time involved in submitting the information necessary to 
terminate a license, the activity of licensed material would reach 
sufficiently low levels such that decontamination of the building or of 
soils would not be needed.
    However, the GEIS did not enable the Commission to determine that 
there would be no significant effect on the human environment from the 
use of unsealed radioactive materials with half-lives of more than 120 
days. Specifically, the Commission determined that the unique 
conditions of each licensee facility and the specific uses of unsealed 
radioactive materials at each site prevented the environmental impacts 
from being analyzed on a generic basis. Accordingly, the Commission has 
relied on the GEIS to satisfy its obligations under NEPA regarding 
decommissioning decisions on sites that meet the 25 mrem/y (0.25 mSv/
yr) criterion for unrestricted use, but has continued to require an EA 
for the decommissioning of any site on which unsealed radioactive 
materials with half-lives of more than 120 days are located. As such, 
based upon the 1997 Commission decision, EAs are performed for Group 2 
decommissioning activities.
    The Commission has now determined, however, that there is ample 
data in the form of EA/FONSIs to justify the categorical exclusion of 
Group 2 decommissioning activities. The data show that, over the last 
five years, every one of the 73 EAs performed for a Group 2 
decommissioning action resulted in a FONSI. Thus, the Commission 
proposes to add a new paragraph (iii) to Sec.  51.22(c)(20) to 
categorically exclude from the Commission's environmental review the 
decommissioning of sites where radioactive material has been used in 
such a manner that a decommissioning plan is not required based on 
Sec. Sec.  30.36(g)(1), 40.42(g)(1), or 70.38(g)(1), and the Commission 
has determined under Sec.  20.1402 that the facility meets the 
radiological criteria for unrestricted release without further 
remediation or analysis. If additional cleanup or analysis is needed to 
meet Sec.  20.1402, the decommissioning activity would be considered a 
Group 3 or higher decommissioning activity in accordance with NUREG-
1757, and would not be covered by this categorical exclusion.

H. Why Add a Categorical Exclusion in 10 CFR 51.22(c)(24) Which 
Addresses the Awarding of Education Grants?

    The proposed rule would add a new 10 CFR 51.22(c)(24) to 
categorically exclude the issuance of grants, by the NRC, to 
institutions of higher education in the United States, for 
scholarships, fellowships, faculty and curricula development in nuclear 
safety, nuclear security, nuclear environmental protection, and other 
fields that the Commission determines to be critical to the NRC's 
regulatory mission. The proposed categorical exclusion covers those 
actions that are specifically geared toward the development of teaching 
and educational programs in the nuclear field. The purpose of the grant 
program is to foster a work force capable of supporting the safe 
design, construction, operation, and regulation of nuclear facilities, 
and the safe handling of nuclear materials.
    Sections 31.b.(2) and 243 of the Atomic Energy Act of 1954, as 
amended, constitute the statutory basis of this grants program. Section 
243 authorizes the creation of a scholarship and fellowship program to 
fund scholarships, fellowships, and stipends for the study of science, 
engineering, or another field of study that the NRC determines is a 
critical skill area related to its regulatory mission, to support 
faculty and curricular development in such fields, and to support other 
domestic educational, technical assistance, or training programs 
(including those of trade schools) in such fields. Section 31.b.(2) 
authorizes the NRC to provide grants, loans, cooperative agreements, 
contracts, and equipment to institutions of higher education to support 
courses, studies, training, curricula, and disciplines pertaining to 
nuclear safety, security, or environmental protection, or any other 
field that the NRC determines to be critical to its regulatory mission.
    This new categorical exclusion would cover actions that the NRC has 
determined to be administrative in nature. As such, these actions (the 
issuance of grant awards and the concomitant administration of the 
grants program) will have no significant effect on the quality of the 
human environment. The actions covered by this proposed categorical 
exclusion are not expected to result in increased radiation doses to 
nuclear industry workers or members of the public; degradation of water 
quality or of the water supply; any adverse effect to federally listed 
endangered or threatened species or their critical habitat; increased 
effluents or changes

[[Page 59545]]

in effluent pathways; increased noise; damage or reduced access to 
cultural resources; changes to local or regional socioeconomic 
conditions; increased traffic or other transportation effects; or 
increased competition for available resources. Moreover, the NRC will 
not issue awards to fund programs that include or involve activities 
directly affecting the environment, such as the construction of 
facilities; a major disturbance of the local environment brought about 
by blasting, drilling, excavating, or other means; large-scale 
acquisitions of computer equipment; field work affecting the local 
environment (except field work which only involves noninvasive or non-
harmful techniques such as taking water or soil samples or collecting 
non-protected species of flora and fauna); and the testing and release 
of radioactive material.

I. Why Add a Categorical Exclusion in 10 CFR 51.22(c)(25) Which 
Addresses the Granting of Exemptions From Regulatory Requirements?

    The proposed rule would add a new Sec.  51.22(c)(25) to 
categorically exclude the NRC action of granting exemptions from 
certain regulatory requirements. The NRC has found that the majority of 
the exemptions it grants from various regulatory requirements are 
administrative or procedural in nature, or are otherwise consistent 
with the existing criteria for approving amendments to licenses and 
permits under 10 CFR 51.22(c)(9) and (c)(11). As a result, numerous 
EAs, each resulting in a FONSI, have been prepared to support the 
granting of such exemptions. For example, the majority of the EA/FONSIs 
addressed exemption requests concerning the following administrative 
issues:
    (1) Revising the schedule for the biennial exercise requirements 
for nuclear reactors in 10 CFR Part 50, Appendix E, Sections IV.F. 2.b 
and c;
    (2) Applying updated NRC-approved ASME Codes; and
    (3) Training and experience requirements in 10 CFR Part 35, 
``Medical Use of Byproduct Material.''
    The proposed categorical exclusion contains prescriptive language 
that would limit its application to only those exemptions that will not 
have a significant effect on the human environment.

IV. Agreement State Compatibility

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' approved by the Commission on June 30, 1997, 
and published in the Federal Register on September 3, 1997 (62 FR 
46517), this rule is classified as a Compatibility Category ``NRC.'' 
The NRC program elements in this category are those that relate 
directly to areas of regulation reserved to the NRC by the Atomic 
Energy Act of 1954, as amended (AEA), or the provisions of Title 10 of 
the Code of Federal Regulations. Although an Agreement State may not 
adopt program elements reserved to NRC, it may wish to inform its 
licensees of certain requirements via a mechanism that is consistent 
with the particular State's administrative procedure laws but does not 
confer regulatory authority on the State. NEPA applies only to Federal 
agencies. This rulemaking will not have any impact on Agreement States' 
regulations. Therefore, Agreement States will not need to make 
conforming changes to their regulations.

V. Plain Language

    The Presidential Memorandum ``Plain Language in Government 
Writing,'' published June 10, 1998 (63 FR 31885), directed that the 
Government's documents be written in clear and accessible language. The 
NRC requests comments on this proposed rule specifically with respect 
to the clarity and effectiveness of the language used. Comments should 
be sent to the address listed under the ADDRESSES heading of this 
document.

VI. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995 (Pub. 
L. 104-113) requires that Federal agencies use technical standards that 
are developed or adopted by voluntary consensus standards bodies unless 
the use of such a standard is inconsistent with applicable law or 
otherwise impractical. The NRC is proposing to amend 10 CFR 51.22, the 
NRC's list of categories of actions that the NRC has determined to have 
no significant effect on the human environment. This action does not 
constitute the establishment of a standard that establishes generally 
applicable requirements.

VII. Finding of No Significant Environmental Impact: Availability

    Under NEPA and the NRC regulations in Subpart A of 10 CFR Part 51, 
the NRC has determined that this rule, if adopted, would not be a major 
Federal action significantly affecting the quality of the human 
environment and, therefore, an EIS is not required. The NRC has 
prepared an EA and, on the basis of this EA, has made a FONSI. The 
proposed amendments are based upon NRC review of environmental 
assessments conducted over the past 5 years that have consistently 
resulted in FONSIs. The proposed amendments to the categorical 
exclusions are minor, administrative, or procedural in nature (e.g., no 
increases in releases/uses of radioactive or chemical materials).
    The NRC has sent a copy of the EA and this proposed rule to every 
State Liaison Officer and requested their comments on the EA. The EA 
may be examined at the NRC Public Document Room, 11555 Rockville Pike, 
Room O-1F23, Rockville, MD 20852.

VIII. Paperwork Reduction Act Statement

    This proposed rule does not contain information collection 
requirements and, therefore, is not subject to the requirements of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

IX. Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.

X. Regulatory Analysis

    This proposed rule is anticipated to be cost-effective. It would 
eliminate the need to prepare EAs for actions that have no significant 
effect on the human environment, and would eliminate the delays 
associated with the preparation of these documents. A regulatory 
analysis is not required because this rulemaking does not impose any 
new requirements on NRC licensees.

XI. Regulatory Flexibility Certification

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the 
Commission certifies that this rule would not, if promulgated, have a 
significant economic impact on a substantial number of small entities.

XII. Backfit Analysis

    The NRC has determined that the backfit rule (Sec. Sec.  50.109, 
70.76, 72.62, or 76.76) does not apply to this proposed rule because 
this amendment would not involve any provisions that would impose 
backfits as defined in 10 CFR Chapter I. Therefore, a backfit analysis 
is not required.

List of Subjects in Part 51

    Administrative practice and procedure, Environmental impact 
statement, Nuclear materials, Nuclear power plants and reactors, 
Reporting and recordkeeping requirements.


[[Page 59546]]


    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. 553; the NRC proposes to adopt 
the following amendments to 10 CFR part 51:

PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC 
LICENSING AND RELATED REGULATORY FUNCTIONS

    1. The authority citation for part 51 continues to read as follows:

    Authority: Sec. 161, 68 Stat. 948, as amended, sec. 1701, 106 
Stat. 2951, 2952, 2953, (42 U.S.C. 2201, 2297f); secs. 201, as 
amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841, 
5842); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Subpart A 
also issued under National Environmental Policy Act of 1969, secs. 
102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 4332, 4334, 
4335); and Public Law 95-604, Title II, 92 Stat. 3033-3041; and sec. 
193, Public Law 101-575, 104 Stat. 2835 (42 U.S.C. 2243). Sections 
51.20, 51.30, 51.60, 51.80, and 51.97 also issued under secs. 135, 
141, Public Law 97-425, 96 Stat. 2232, 2241, and sec. 148, Public 
Law 100-203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161, 10168). 
Section 51.22 also issued under sec. 274, 73 Stat. 688, as amended 
by 92 Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear Waste 
Policy Act of 1982, sec. 121, 96 Stat. 2228 (42 U.S.C. 10141). 
Sections 51.43, 51.67, and 51.109 also under Nuclear Waste Policy 
Act of 1982, sec.114(f), 96 Stat. 2216, as amended (42 U.S.C. 
10134(f)).

    2. In Sec.  51.22, paragraphs (a), (c)(1), (c)(2), (c)(3), (c)(9), 
(c)(10), and (c)(20) are revised, and paragraphs (c)(24) and (c)(25) 
are added to read as follows:


Sec.  51.22  Criterion for categorical exclusion; identification of 
licensing and regulatory actions eligible for categorical exclusion or 
otherwise not requiring environmental review.

    (a) Licensing, regulatory, and administrative actions eligible for 
categorical exclusion shall meet the following criterion: The proposed 
action belongs to a category of actions which the Commission, by rule 
or regulation, has declared to be a categorical exclusion, after first 
finding that the category of actions does not individually or 
cumulatively have a significant effect on the human environment.
* * * * *
    (c) The following categories of actions are categorical exclusions:
    (1) Amendments to parts 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 13, 15, 
16, 19, 21, 25, 26, 55, 75, 95, 110, 140, 150, 160, 170, or 171 of this 
chapter, and actions on petitions for rulemaking relating to parts 1, 
2, 4, 5, 7, 9, 10, 11, 12, 13, 14, 15, 16, 19, 21, 25, 26, 55, 75, 95, 
110, 140, 150, 160, 170, or 171 of this chapter.
    (2) Amendments to the regulations in this chapter which are 
corrective, clarifying or of a minor nature or which update references, 
provided that such amendments do not substantially modify existing 
regulations, and actions on petitions for rulemaking relating to these 
amendments.
    (3) Amendments to any part in this chapter, and actions on 
petitions for rulemaking relating to these amendments, which relate 
to--
    (i) Procedures for filing and reviewing applications for licenses 
or construction permits or early site permits or other forms of 
permission or for amendments to or renewals of licenses or construction 
permits or early site permits or other forms of permission;
    (ii) Recordkeeping requirements;
    (iii) Reporting requirements; or
    (iv) Education, training, experience, qualification or other 
employment suitability requirements.
* * * * *
    (9) Issuance of an amendment to a permit or license for a reactor 
under part 50 or part 52 of this chapter, which changes a requirement, 
or grants an exemption from any such requirement, with respect to 
installation or use of a facility component located within the 
restricted area, as defined in part 20 of this chapter, or which 
changes an inspection or a surveillance requirement, provided that:
    (i) The amendment or exemption involves no significant hazards 
consideration;
    (ii) There is no significant change in the types or significant 
increase in the amounts of any effluents that may be released offsite; 
and
    (iii) There is no significant increase in individual or cumulative 
occupational radiation exposure.
    (10) Issuance of an amendment to a permit or license issued under 
this chapter which --
    (i) Changes surety, insurance and/or indemnity requirements;
    (ii) Changes recordkeeping, reporting, or administrative procedures 
or requirements;
    (iii) Changes the licensee's or permit holder's name, phone number, 
business or e-mail address;
    (iv) Changes the name, position, or title of an officer of the 
licensee or permit holder, including but not limited to, the radiation 
safety officer or quality assurance manager; or
    (v) Changes the format of the license or permit or otherwise makes 
editorial, corrective or other minor revisions, including the updating 
of NRC approved references.
* * * * *
    (20) Decommissioning of sites where licensed operations have been 
limited to the use of--
    (i) Small quantities of short-lived radioactive materials;
    (ii) Radioactive materials in sealed sources, provided there is no 
evidence of leakage of radioactive material from these sealed sources; 
or
    (iii) Radioactive materials in such a manner that a decommissioning 
plan is not required by 10 CFR 30.36(g)(1), 40.42(g)(1), or 
70.38(g)(1), and the NRC has determined that the facility meets the 
radiological criteria for unrestricted release in 10 CFR 20.1402 
without further remediation or analysis.
* * * * *
    (24) Grants to institutions of higher education in the United 
States, to fund scholarships, fellowships, and stipends for the study 
of science, engineering, or another field of study that the NRC 
determines is in a critical skill area related to its regulatory 
mission, to support faculty and curricular development in such fields, 
and to support other domestic educational, technical assistance, or 
training programs (including those of trade schools) in such fields, 
except to the extent that such grants or programs include activities 
directly affecting the environment, such as:
    (i) The construction of facilities;
    (ii) A major disturbance brought about by blasting, drilling, 
excavating or other means;
    (iii) Field work, except that which only involves noninvasive or 
non-harmful techniques such as taking water or soil samples or 
collecting non-protected species of flora and fauna; or
    (iv) The release of radioactive material.
    (25) Granting of an exemption from the requirements of any 
regulation of this chapter, provided that--
    (i) There is no significant change in the types or significant 
increase in the amounts of any effluents that may be released offsite;
    (ii) There is no significant increase in individual or cumulative 
public or occupational radiation exposure;
    (iii) There is no significant construction impact;
    (iv) There is no significant increase in the potential for or 
consequences from radiological accidents; and
    (v) The requirements from which an exemption is sought involve:
    (A) Recordkeeping requirements;
    (B) Reporting requirements;
    (C) Inspection or surveillance requirements;

[[Page 59547]]

    (D) Equipment servicing or maintenance requirements;
    (E) Education, training, experience, qualification, requalification 
or other employment suitability requirements;
    (F) Requirements for safeguard plans, including materials control, 
accounting, or other inventory requirements;
    (G) Scheduling requirements;
    (H) Surety, insurance or indemnity requirements;
    (I) Requirements to update references; e.g. NRC approved ASME 
codes, ICRP standards, or regulatory guidance; or
    (J) Other requirements of an administrative, managerial, 
organizational, or procedural nature.

    Dated at Rockville, Maryland, this 3rd day of October 2008.

    For the Nuclear Regulatory Commission.
 Annette Vietti-Cook,
Secretary of the Commission.
 [FR Doc. E8-24033 Filed 10-8-08; 8:45 am]
BILLING CODE 7590-01-P


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