# Certification of Gaseous Diffusion Plants; Proposed Rule NUCLEAR REGULATORY COMMISSION

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A94-3050

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** February 11, 1994

## Text

SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend
its regulations to add a new part that would include the requirements
for certification and operation of the U.S. Department of Energy (DOE)
owned gaseous diffusion plants that enrich uranium. These proposed
regulations would protect the public health and safety from
radiological hazards and would provide for the common defense and
security, including adequate safeguards, in all uranium enrichment
activities of the United States Enrichment Corporation (USEC) in its
operation of the two gaseous diffusion plants that USEC is leasing from
the DOE. These two plants are located in Paducah, Kentucky, and
Portsmouth, Ohio. In addition to the proposed new part, a number of
conforming amendments are also being proposed to NRC's Regulations.

DATES: Submit comments by April 12, 1994. Comments received after this
date will be considered if it is practical to do so, but the Commission
is able to assure consideration only for comments received on or before
this date.

ADDRESSES: Mail written comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC, 20555. ATTN: Docketing and Service Branch.
Hand deliver comments to: 11555 Rockville Pike, Rockville, MD,
20852, between 7:45 am and 4:15 pm Federal workdays.
Copies of comments received, the environmental assessment, finding
of no significant impact, and the regulatory analysis may be examined
at the NRC Public Document Room, 2120 L Street NW. (Lower Level),
Washington, DC.

FOR FURTHER INFORMATION CONTACT: Mr. C. W. Nilsen, Office of Nuclear
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC
20555, telephone (301) 492-3834; Mr. S. R. Ruffin, Office of Nuclear
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission,
Washington, DC 20555, telephone (301) 504-2696; Mr. C. B. Sawyer,
Office of Nuclear Material Safety and Safeguards, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, telephone (301) 504-2366;
or Mr. D. G. Kidd, Office of Administration, Division of Security, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, telephone (301)
492-4127.

SUPPLEMENTARY INFORMATION:

Background

The President signed H.R. 776, the ``Energy Policy Act of 1992''
(the Act), into law on October 24, 1992. The Act amended the Atomic
Energy Act of 1954 (``AEA''), to establish a new government
corporation, the U.S. Enrichment Corporation (the ``Corporation''), for
the purpose of managing and operating the uranium enrichment enterprise
previously owned and operated by the Department of Energy. Section 1701
of the AEA, as amended, provides that within 2 years after enactment of
the legislation, the NRC is required to promulgate standards that will
apply to the two operating gaseous diffusion plants to protect the
public health and safety from radiological hazards, and to provide for
the common defense and security. The NRC is proposing to establish
requirements and procedures for the certification process by addition
of a new part to Chapter I of Title 10 of the Code of Federal
Regulations.
Section 1701(b)(2) of the AEA, as amended, directs the NRC to
establish a certification process under which the two gaseous diffusion
plants at Portsmouth, Ohio, and Paducah, Kentucky, to be operated by
the Corporation, will be annually certified by the NRC for compliance
with those standards.
The Commission recognizes that the gaseous diffusion plants were
designed and constructed before the new certification requirement was
established in the Energy Policy Act of 1992, and that they have
operated safely for approximately 40 years. This proposed rule is based
upon comparable NRC requirements that have been in place for a number
of years, and that the staff believes are adequate and appropriate for
the gaseous diffusion plants, and are at least as stringent as the DOE
requirements under which the plants currently operate. However, in
notice and comment rulemaking there is the potential that as a result
of public comment on the proposed rule, the final rule may include
different criteria. In this connection, commenters should be informed
that the DOE has identified oversight operational requirements to be
met by the gaseous diffusion plants for the transition period in which
DOE continues to regulate the plants, until NRC assumes responsibility
for regulatory oversight. The NRC will not assume regulatory oversight
authority until after it establishes the final rule and completes the
first certification process. The DOE submittal which describes
oversight requirements may be reviewed in the NRC Public Document Room.
Also, the Corporation has submitted unsolicited proposed standards
for the gaseous diffusion plants which are included as Appendix A to
this document. The Commission invites comments on whether some or all
of the requirements proposed by the Corporation or contained in the DOE
oversight requirements should be used in lieu of those proposed by the
Commission. Based on public comments, the Commission will consider
whether it should adopt selected portions of them in the final rule.
The Commission must determine that the certification process, including
any modifications based on public comments, will provide an adequate
level of protection of the public health and safety, the environment,
and the common defense.
The Commission has also prepared a side-by-side comparison of the
proposed regulations with the requirements set forth in DOE's
transition document and existing NRC regulations. The document can be
reviewed in the NRC Public Document Room. The Commission explicitly
invites public comment on whether any of the proposed requirements
exceed those necessary to protect the public health and safety and, if
so, whether the added safety protection warrants the costs that would
be incurred to implement the requirement.
In addition to the proposed new part 76, a number of conforming
changes are also being proposed to the provisions of Chapter I of Title
10 of the Code of Federal Regulations. These changes would be necessary
to implement the new part.

Proposed Action

The Commission is proposing to add a new 10 CFR Part 76 entitled
``Certification of Gaseous Diffusion Plants.'' This new part will
include procedural requirements, generally applicable NRC health and
safety standards, technical safety requirements, and safeguards and
security requirements specific to the gaseous diffusion plants. The
Commission will use the requirements included in this new Part 76 to
satisfy Energy Policy Act requirements. The certification requirements
in this proposed rulemaking include actions that are either required by
the Act or required by the Commission's own procedures to protect the
public health and safety from radiological hazards, to provide for the
common defense and security, and to ensure adequate safeguards.

A. General Requirements.

The general requirements being proposed are based on and derived
mainly from 10 CFR part 70. Part 70 contains the regulations used by
the Commission to license the possession of special nuclear material at
major fuel cycle facilities for which the NRC has regulatory
responsibility for protecting public health and safety, and the common
defense and security. Specific proposed sections in this new part,
which are based on 10 CFR Part 70, as modified for the certification
process, include the following:
Section 76.1 Purpose. This section defines the purpose of Part 76
to be limited to certification of the existing 40 year old gaseous
diffusion plants previously operated by the Department of Energy.
(Reference Sec. 70.1).
Section 76.2 Scope. This section defines the scope of Part 76 to
cover the operation of gaseous diffusion plants previously operated by
DOE and leased to the Corporation, and clarifies the new part applies
only to those plants. (Reference Sec. 70.2).
Section 76.4 Definitions. This section contains definitions of
terms as used in this part. (Reference Sec. 70.4).
Section 76.5 Communications. This section describes requirements
for oral and written submissions to the Commission. (Reference
Sec. 70.5).
Section 76.6 Interpretations. This section contains requirements
for interpretations authorized by the Commission. (Reference
Sec. 70.6).
Section 76.7 Employee protection. This section indicates that
discrimination is prohibited. (Reference Sec. 70.7).
Section 76.8 Information collection requirements: OMB approval not
required. This section indicates that the information collection
requirements contained in this part need not be reviewed and approved
by the Office of Management and Budget in accordance with the paperwork
Reduction Act (Reference Sec. 70.8).
Section 76.9 Completeness and accuracy of information. This
section specifies that all information must be complete and accurate.
(Reference Sec. 70.9).
Section 76.10 Deliberate misconduct. This section prohibits
certain Corporation activities and describes resulting enforcement
action. (Reference Sec. 70.10).
Section 76.23 Specific exemptions. This section specifies that the
Commission may grant exemptions. (Reference Sec. 70.14).
Section 76.76 Backfitting. This section sets forth the conditions
for backfitting the plants and establishes backfit
guidelines.(Reference Sec. 50.109).
Section 76.81 Authorized use of radioactive material. The section
sets forth requirements for the Corporation's possession and use of
radioactive material. (Reference Sec. 70.41).
Section 76.83 Transfer of radioactive material. This section
contains requirements for the Corporation's transfer of radioactive
material. (Reference Sec. 70.42).
Section 76.89 Criticality accident requirements. This section
contains monitoring requirements for criticality accidents. (Reference
Sec. 70.24).
Section 76.91 Emergency planning. This section contains emergency
planning requirements. (Reference Sec. 70.22(i)).
Section 76.120 Reporting requirements. This section contains
requirements for 1-hour notification, 4-hour notification, 24-hour
notification, and for preparation and submission of reports. (Reference
Sec. 70.50, Sec. 70.52, and Sec. 74.11).
Section 76.121 Inspections. This section states that the
Corporation shall afford the Commission opportunity for inspection and
that office space for Commission inspection personnel must be provided.
(Reference Sec. 70.55).
Section 76.131 Violations. This section specifies actions the
Commission may take, to include obtaining a court order to prevent a
violation and contains civil penalty provisions. (Reference
Sec. 70.71).
Section 76.133 Criminal penalties. This section specifies criminal
sanctions for violations. For purposes of section 223 of the Atomic
Energy Act of 1954, as amended, which provides for criminal sanctions,
all regulations in part 76 are issued under one or more of sections
161b, 161i, or 161o except for the sections listed in Sec. 76.133(b).
(Reference Sec. 70.72).

B. Procedural Requirements

As directed by Section 1701(c) of the AEA, as amended, the proposed
rule contains procedures for the annual certification process. Apart
from requiring an annual application for a certificate of compliance
and a determination by the Commission, in consultation with EPA, of
compliance with the NRC's standards, the legislation does not specify
procedures for the certification process. In addition, the amendments
to the AEA provide that the requirement for a certificate of compliance
is in lieu of any requirement for a license. Thus, the NRC has
substantial discretion in determining appropriate procedures for the
certification process. By providing for public notice and a written
comment period with respect to an application for a certificate of
compliance, as well as the opportunity for the Corporation and other
interested parties to petition the Commission for review of the
decision to grant or deny a certificate or request for approval of a
compliance plan, the Commission believes that it is proposing a fair
and efficient procedural scheme.
The procedural requirements being proposed for the certification
process, to implement provisions of the Act and to constitute the
Commission's proposed certification process, include:
Section 76.21 Certificate required. This section contains the
requirement to obtain a certificate of compliance to operate the
gaseous diffusion plants. (Reference the Act).
Section 76.31 Annual application requirement. This section
specifies the annual application requirements for the certificate of
compliance. (Reference the Act).
Section 76.33 Application procedures. This section contains filing
requirements and specifies the required contents of the application.
Section 76.37 Federal Register notice. This section concerns
public notice of the filing of an application and the opportunity for
public comment.
Section 76.39 Public meeting. This section describes the
procedures for a public meeting on the application to be held at the
discretion of the Director, Office of Nuclear Material Safety and
Safeguards (NMSS), NRC, and provisions for a transcript of a meeting. A
public meeting will be held on the first certification application.
Section 76.41 Record underlying decisions. This section specifies
that any decision must be based on information in the record and that
significant information on any proceeding, with limited exceptions,
must be part of the public docket. This is not intended to constitute a
requirement of adjudication on the record after opportunity for agency
hearing under the Administrative Procedure Act.
Section 76.43 Annual date for decision. This section describes the
timing of the annual decision on the application by the Director, NMSS.
Section 76.45 Application for amendment of certificate. This
section states the procedure for the Corporation to apply for an
amendment of a certificate prior to the established date of the next
application for a certificate.
Section 76.51 Conditions of certification. This section requires
compliance by the Corporation with all requirements set forth and
referenced in Part 76 or in a certificate of compliance or approved
compliance plan.
Section 76.53 Consultation with Environmental Protection Agency
(EPA). This section requires that the Commission will consult with the
EPA in making the annual decision on the application for a certificate,
including the provisions of any compliance plan.
Section 76.55 Timely renewal. This section states that timely and
sufficient filing of an application for a certificate of compliance
maintains in effect any existing certification or approved compliance
plan until issuance of a final and effective decision on the
application. This addresses the unlikely situation in which the
Commission is unable to make its final, annual determinations regarding
an application for a certificate of compliance despite the filing of a
sufficient application. In this case, the Commission will deem its
prior determinations regarding compliance to be its current and
effective determinations until final resolution of the subsequent
application and will advise Congress accordingly in its annual report
under section 1701(b) of the AEA, as amended. The Commission invites
commenters to specifically address this proposal.
Section 76.60 Regulatory requirements which apply. This section
specifies the requirements which the NRC will apply for certification
of the Corporation's operation of the gaseous diffusion plants.
Section 76.62 Issuance of certificate or approval of compliance
plan. This section specifies that the Director, NMSS, may issue a
certificate or approval of a compliance plan, requires notice of the
decision in the Federal Register, and states that the Corporation or
affected members of the public who have provided comments in the
proceeding may seek the Commission's review of the Director's decision.
Section 76.64 Denial of certificate or compliance plan. This
section states that the Director, NMSS, may deny a certificate or
compliance plan and that the denial must be noticed in the Federal
Register. This section also provides an opportunity for action by the
Corporation before denial. It also states that the Corporation or
affected members of the public who have provided comments on the
application may seek the Commission's review of the Director's
decision.
Section 76.68 Plant changes. This section describes plant or
operational changes permitted by the Corporation with or without prior
Commission approval. Documentation of revisions that do not require
Commission approval must be submitted to the NRC. For changes that
require Commission approval the Corporation may apply for an amendment
of a certificate under Sec. 76.45.
Section 76.70 Post issuance. This section specifies procedures for
amendment, revocation, suspension, or amendment for cause of the
certificate.
Section 76.72 Miscellaneous procedural matters. This section
addresses procedures for filing petitions, ruling on matters of
procedure, and communication between Commission and staff. Additional
guidance regarding the filing and service of petitions for review of
the Director's decision and responses to such petitions may be included
in the Director's decision or by order of the Commission.
Except for proceedings under 10 CFR part 2, Subpart G for
imposition of a civil penalty, the Commission is not imposing
restrictions on ex parte communications or on the ability of the NRC
staff and the Commission to communicate with one another at any stage
of this regulatory process. Staff would not participate in a review of
the Director's decision as a party, but rather would serve as an
advisor to the Commission. Congress has not required formal
adjudication, and the Commission believes that informal processing
without such formal restrictions on communication are best suited for
resolution of applications for a certificate on an annual basis.

C. Technical Safety Requirements

The major technical safety requirements proposed are found in the
following sections:
Section 76.35 Contents of applications. This section specifies
that applications must include a safety analysis report, a compliance
status report which includes environmental and effluent monitoring
data, a quality assurance program description, a description of use of
radioactive material, a description of the training program, a nuclear
material control and accounting plan, a physical protection plan for
special nuclear material in transit, a plant physical security plan, an
emergency plan, a plan for security facility approval and protection of
classified information and hardware, a description of the Corporation's
response necessary to implement International Atomic Energy Agency
safeguards, and a description of the waste treatment and management
program.
The proposed paragraphs 76.35 (k) and (l), would require a
description of the depleted uranium and waste management programs,
including funding plans to assure availability of funds to implement
the programs. The Commission is aware that DOE has established a
decommissioning fund (See 58 FR 41160, (August 2, 1993) 10 CFR Part 76,
``Uranium Enrichment Decontamination and Decommissioning Fund;
Procedures for Special Assessment of Domestic Utilities'' for a
description of the fund's and DOE's requirements), and is inclined to
interpret that the NRC has no regulatory jurisdiction in the area of
decommissioning funds. The Commission is inclined to interpret the Act
to terminate NRC regulatory jurisdiction over the Department's gaseous
diffusion plants if and when the Corporation ceases operations and the
plants are brought to a cold shutdown condition. Oversight
responsibility would then revert to DOE which will be responsible for
the plants' decontamination and decommissioning including disposal of
all wastes and disposition of any depleted uranium at the sites. Under
this interpretation, the Corporation's plans for wastes and depleted
uranium will therefore be matters for DOE, rather than NRC, to address.
The Commission requests comments on appropriate interpretations of the
Energy Policy Act of 1992, and after taking into account any such
comments, the Commission may eliminate the requirements under
Sec. 76.35 (k) and (l).
The proposed rule would require any application which contains
Restricted Data, classified National Security Information, Safeguards
Information, proprietary or other withholdable data to be prepared in
such a manner that all such information or data are separated from the
information to be made available to the public.
Section 76.85 Assessment of accidents. This section contains the
requirement for performance of a safety analysis of the potential for
releases of radioactive material from accidents.
Specifically, the proposed rule requires that a safety analysis of
the site activities be performed to evaluate the potential for releases
of radiological material from the existing plants. The analysis would
evaluate releases from a reasonable spectrum of postulated accident
scenarios which may occur in the gaseous diffusion plants taking into
account the existing systems in operation, including procedures, that
are intended to mitigate the consequence of any release. These
potential releases, together with operational practices and site
characteristics, including meteorology, are to be used to evaluate the
potential onsite and offsite radiological consequences.
The Corporation must provide a level of protection against
accidents during plant operations sufficient to provide adequate
protection of the public health and safety. In assessing the level of
protection provided by the Corporation, the operational safety
objectives to be used by the Commission will be that no individual at
the site boundary would be likely to receive a total radiation dose to
the whole body in excess of .25 Sv (25 rems) (total effective dose
equivalent). The Corporation must also provide an assessment of public
health and safety as a result of an intake of soluble uranium in an
amount that can be considered as equivalent in risk to a .25 Sv (25
rems) acute radiation dose. The proposed .25 Sv (25 rems) objective was
chosen because there is little risk of permanent damage in the event of
an accidental release and it is also used in 10 CFR part 100 for part
50 licensees. The above objectives will be used by NRC as a factor to
assist in arriving at an overall public health and safety
determination, and it does not constitute a siting criterion for the
uranium enrichment plants. Instead, it should be used by the
Corporation as an operational goal, and the Corporation should
accordingly provide information pertaining to specifications for
conducting plant operations that would result in this goal being met or
that adequate supplementary protective measures are developed and
implemented.
In proposing that the Corporation evaluate intakes of soluble
uranium the Commission recognizes that the chemical toxicity of uranium
could be the limiting factor in the accident analyses under this
section. The Commission's intent to use chemical toxicity
considerations in part 76 is consistent with its practice elsewhere
(e.g., 10 CFR 20.1201(e)), and prevents any potential regulatory gap in
public protection against the toxic effects of soluble uranium. In this
regard, the NRC staff has placed a contract to conduct an extensive
evaluation of the available international literature on the toxic
effects of uranium in humans, with emphasis on sensitive populations
such as children and pregnant women which were not evaluated in earlier
NRC studies. This review will encompass the present regulatory
structure in place in various U.S. government agencies and should
identify any inconsistencies in approach or level of protection
achieved for both occupational and public exposures to uranium to
determine an acceptable basis for evaluating the gaseous diffusion
plants. The results of this analysis will be available by July, 1994,
and will be considered in evaluating the Corporation's application.
The Commission is interested in comments on the use of safety
objectives, including suggested limiting values with supporting
rationale, and whether or not they should be included as part of the
rule.
In a related matter, the NRC staff recently announced that it is
developing guidance and regulatory requirements on integrated safety
analysis (ISA) of licensed fuel cycle facilities (58 FR 40167, July 27,
1993). An ISA is a systematic review process by which a licensee or
applicant will analyze its facility and processes and will assemble
essential information for the safety analysis report. It is too early
to determine how this effort will affect the gaseous diffusion plants.
However, when a determination is made in the future regarding any
additional safety analysis requirements for licensed fuel cycle
facilities or the methodology for implementing them, the applicability
of these methodologies to gaseous diffusion plants will also be
addressed.
Section 76.87 Technical safety requirements. This proposed section
specifies that safety requirements must be included in the application.
Safety topics to be considered are those mainly associated with the
plant operations, management controls, and confinement of radioactive
material.
The proposed rule requires the Corporation to include technical
safety requirements derived from analyses and evaluations included in
the safety analysis report. These safety requirements would include
safety limits and limiting control settings within which process
variables would be maintained for adequate control to guard against the
uncontrolled release of radioactivity. The safety requirements would
also include limiting conditions for operation, surveillance
requirements, design features, and administrative controls. The
requirements are similar to operating technical specifications or
license conditions applied to nuclear fuel cycle plants to assure that
operations are controlled as described in the safety analysis report.
Section 76.93 Quality assurance. This section requires a quality
assurance program. The Commission recognizes that the GDPs are fuel
cycle facilities and that the appropriate quality assurance (QA) for
GDPs is not the same as for reactors. The GDPs are existing plants and
they were designed, constructed, and assembled over 40 years ago. The
QA requirements for the GDPs will be based on applying the applicable
QA criteria of ASME NQA-1-1989, ``Quality Assurance Program
Requirements for Nuclear Facilities'', in a graded approach and to an
extent that is commensurate with the importance to safety.
Section 76.95 Training. This section requires a description of the
training program, that will be provided to personnel to enable them to
perform the functions of their jobs, including information on the
positions for which training will be provided, to assure that personnel
are qualified to operate and maintain the plants safely and in
compliance with the regulatory requirements.

D. Incorporation of Existing Regulations

In addition, portions of other existing Commission regulations will
be applicable for certification of the Corporation's operation of the
gaseous diffusion plants (proposed Sec. 76.60). They are contained in
Title 10, Code of Federal Regulations as follows:
Requirements for notices, instructions, and reports to workers are
contained in 10 CFR part 19, ``Notices, Instructions, and Reports To
Workers: Inspection and Investigations.'' Part 19 specifies the
requirements for notices, instructions, and reports by the Corporation
to individuals participating in gaseous diffusion activities. It also
sets forth the rights and responsibilities of the Commission and
individuals during interviews on any matter within the Commission's
jurisdiction.
Requirements for protection against ionizing radiation are
contained in 10 CFR part 20, ``Standards For Protection Against
Radiation.'' Part 20 specifies the requirements to control the receipt,
possession, use, storage, transfer, and disposal of byproduct, source,
and special nuclear material by the Corporation in such a manner that
the total dose to an individual (including doses resulting from
radioactive material and from radiation sources other than background
radiation) does not exceed the standards for protection against
radiation prescribed by the NRC for normal operating conditions and
anticipated operational occurrences.
Requirements for reporting of defects and noncompliance are
contained in 10 CFR part 21, ``Reporting of Defects and
Noncompliance.'' Part 21 specifies the procedures and requirements for
persons to notify the Commission immediately of component defects or
failure to comply with regulatory requirements which could create a
substantial safety hazard.
Requirements for fitness-for-duty programs are contained in 10 CFR
part 26, ``Fitness-for-Duty Programs.'' It is the purpose of part 26 to
prescribe requirements and standards for establishment and maintenance
of fitness-for-duty programs to reduce the likelihood of theft or
diversion of strategic special nuclear material. The requirements of
this part are relevant only to the extent that the Corporation elects
to engage in activities which involve formula quantities of strategic
special nuclear material.
Requirements for packaging and transportation are contained in 10
CFR part 71, ``Packaging and Transportation of Radioactive Material.''
It is the purpose of part 71 to establish requirements and procedures
for packaging, preparation for shipment, and transportation of
radioactive material.
Requirements for physical security and material control and
accounting are contained in 10 CFR part 70, ``Domestic Licensing of
Special Nuclear Material,'' part 73, ``Physical Protection of Plants
and Materials,'' and part 74, ``Material Control and Accounting of
Special Nuclear Material,'' as specified in Subpart E to this part. It
is the purpose of Subpart E to identify the specific sections that
establish the requirements and procedures for transfer, protection at
fixed sites and in transit, and control and accounting of the various
enrichments of U235 covered under the certification.
Safeguards regulation of special nuclear material is conducted on a
graded basis. The grades reflect the importance of specified kinds and
quantities of material to the public safety and to the common defense
and security. Three grades of material are defined in Commission
regulations. In declining order of importance they are:
(1) Formula quantities of strategic special nuclear material (also
referred to by the shorter phrase ``Category I material'');
(2) Special nuclear material of moderate strategic significance
(Category II), and
(3) Special nuclear material of low strategic significance
(Category III).
The gaseous diffusion plants are to produce only Category III
material and only the safeguards for that grade of material need apply
to production activities. Nonetheless, the Commission recognizes that
the Corporation may need to or may opt to engage in nonproduction
activities that involve the other categories of material. One reason
stems from the fact that in the past, the Portsmouth plant has produced
high enriched uranium hexafluoride (UF6). As a result of this past
production, there may be portions of the plant under lease by the
Corporation or to which the Corporation will have access that will
continue to have high enriched UF6 fixed to interior surfaces of
process equipment. Additionally, some areas, such as the analytical
laboratory, may continue to have a high enriched inventory. A second
reason stems from the possibility that the Corporation may elect to
engage in nonproduction business activities that involve high enriched
UF6. To be responsive to the full range of possible Corporation
activities, safeguards regulations for all three categories of material
are listed in Subpart E and are to be applied in accordance with the
categories of material the Corporation actually uses, possesses, or has
access to.
Requirements for security facility approval and protection of
classified matter are contained in 10 CFR part 95, ``Security Facility
Approval and Safeguarding of National Security Information and
Restricted Data.'' It is the purpose of part 95 to establish
requirements and procedures for the foregoing matters. The Corporation
and its contractor personnel will be considered as authorized by the
Commission under 95.35(a) for access to classified matter based on
their DOE access authorizations.
NRC does not intend to incorporate any additional requirements for
personnel security screening for access to or control over special
nuclear material as contained in 10 CFR part 11, ``Criteria and
Procedures for Determining Eligibility for Access to or Control over
Special Nuclear Material,'' should the Corporation elect to engage in
activities which involve strategic special nuclear material. The
requirements for this separate access program are met by the DOE access
authorization program for the GDPs.

E. Overview of the Certification Process

The Act specifically provides for the NRC to issue a certificate of
compliance, in lieu of a license. The Commission intends that the
certificate would be a relatively simple document, which certifies
compliance with NRC requirements, subject to any applicable conditions,
and subject to the Corporation's adherence to the representations and
commitments in its application.
The initial certification would be based on review of an
application submitted by the Corporation. The initial application would
contain a complete description of operations, a safety analysis, and
other information required to demonstrate compliance with NRC
requirements. Subsequent applications could reference previously
submitted information. For annual reviews after the initial
certification, the Commission would focus on new information and
changes from the previous year, and public comments. The Commission
anticipates that it will perform a complete review, similar to that
performed for the initial certification, every 10 years. This would
correspond to the license renewal period for other fuel facilities.
The proposed rule also allows for unscheduled submittals in cases
where the Corporation proposes new or modified operations, and cannot
wait for the annual certification because of the significant nature of
the modification. In such cases, the Commission could issue an amended
certification.
In cases where either the Corporation or the Commission identifies
areas of non-compliance, a compliance plan would be submitted for NRC
approval as provided in the Act.
The Commission intends that the annual certification process will
follow a predictable schedule, with an application being filed in
April, publication of a Federal Register notice shortly thereafter
providing at least 30 days for public comment, a certification decision
in October, any appeals acted upon by December, and the required report
to Congress in January of the next year. However, in cases where there
are significant unresolved issues such that the Commission cannot
complete certification in a given year, a compliance plan could be
developed and approved or, if this is not possible because of time
constraints, a ``timely renewal'' provision allows the previous
certification to remain in effect pending resolution. The Commission
would still file an annual report with Congress, and identify the
unresolved issues.
A more detailed discussion of the certification process is provided
below:

I. Initial Certification

The Corporation would be required to initially apply to
the Commission for certification six months after promulgation of a
final rule (Sec. 76.31). Depending on when the final rule is issued,
the due date could be as early as January 1, 1995. The application for
certification must include: (a) A description of operations, (b) a
safety analysis and other information to demonstrate that the
Corporation is in compliance with NRC requirements, and/or (c) a plan
for achieving compliance with respect to any areas of noncompliance
with the NRC standards (Sec. 76.33).
The Director, Nuclear Material Safety and Safeguards would
promptly publish in the Federal Register a notice of receipt of an
application (Sec. 76.37). This would include: (a) A notice of
opportunity for public comment, with at least a 30 day comment period,
and (b) the date of public meetings near each site.
The staff would conduct a review based on information in
the record and facts officially noticed in the proceeding (Sec. 76.41).
The staff would consult with EPA on applications received
(Sec. 76.53).
The Director would render a decision within 6 months of
receipt of the application (Sec. 76.43).

I.A. Finding of Compliance or Approval of Compliance Plan

Upon a finding of compliance or approval of a compliance
plan, the Director would issue a written decision (Sec. 76.62(a)).
A notice of the Director's decision would be published in
the Federal Register (Sec. 76.62(b)).
The Corporation or any person whose interest may be
affected, and who is on the record having appropriately provided
written or oral comments, could file a petition with the Commission
within 15 days of the publication of the Federal Register notice
(Sec. 76.62(c)).
Any person who is on the record could file a response to
any petition for review within 10 days of the filing of the petition
(Sec. 76.62(c)).
The Commission could adopt, modify, set aside, or take
other appropriate action on the Director's decision within 60 days of
publication of the Federal Register notice. Otherwise, the Director's
decision would become final and effective (Sec. 76.62(d)).
Once the initial certification became final and effective,
the NRC would assume regulatory jurisdiction over the facilities.
The Commission would report to Congress in January
following initial certification on the status of health, safety, and
environmental conditions at the plants.

I.B. Finding of Non-Compliance or Disapproval of Compliance Plan

The Director could make an initial finding of non-
compliance or not approve a compliance plan upon review of a written
finding that the application is in non-compliance with one or more of
the Commission's requirements, or that the compliance plan is
inadequate to protect the public health and safety, environment, or
common defense and security (Sec. 76.64(a)).
Before making a final finding of non-compliance, the
Director would advise the Corporation in writing of any areas of non-
compliance, and offer the Corporation an opportunity to submit a
proposed compliance plan regarding those areas of non-compliance
(Sec. 76.64(c)).
Upon making a final determination of non-compliance, the
Director would publish notice of the decision in the Federal Register
(Sec. 76.64(b)).
The Corporation or any person whose interest could be
affected, and who is on the record having appropriately provided
written or oral comments, could file a petition with the Commission
within 15 days of the publication of the Federal Register notice
(Sec. 76.64(d)).
Any person who is on the record could file a response to
any petition for review within 10 days of the filing of the petition
(Sec. 76.6(d)).
The Commission could adopt, modify, set aside, or take
other appropriate action on the Director's decision within 60 days of
the Federal Register notice of the decision. Otherwise, the Director's
decision would become final and effective. (Sec. 76.64(e)).
The Commission would report to Congress in January
following initial certification on the status of health, safety, and
environmental conditions at the plants.

II. Annual Certification

After the initial application, annual application for
certification would be required to be received by April 15 of each year
(Sec. 76.31).
Information contained in previous applications,
statements, or reports filed with the Commission could be incorporated
by reference (Sec. 76.33(f)).
The Director would promptly publish in the Federal
Register a notice of receipt of an application (Sec. 76.37). This would
include a notice of opportunity for public comment for at least 30
days. It could also include a notice of public meetings if they are
determined by the Director to be in the public interest.
The Commission review would focus on new and previously
unreviewed information and public comments.
The Director's decision would be rendered on review of a
satisfactory application by October of each year.
The Director's decision would result in a:

(A) Finding of compliance or approval of compliance plan (see I.A.), or
(B) Finding of non-compliance or disapproval of compliance plan (see
I.B.).

III. Amendment of Certificate

The Corporation could make changes to a plant or a plant's
operation without prior Commission approval that do not reduce the
safety margin, result in undue risk to the public health and safety,
environment, and the common defense and security, or present an
unreviewed safety question (Sec. 76.68).
The Corporation could at any time apply for amendment of
the certificate to cover unreviewed information on new or modified
activities not addressed in the certificate. The submittal should
contain sufficient information for the Director to make findings of
compliance for the proposed activities as required for any other
certification (Sec. 76.45).
Information contained in previous applications,
statements, or reports filed with the Commission could be incorporated
by reference in any application for amendment ((Sec. 76.33(f)).
The Director would promptly publish a Corporation request
for amendment of the certificate in the Federal Register as a notice of
an application (Sec. 76.37). This would include a notice of opportunity
for public comment. It could also include a notice of a public meeting
if the Director determines that a meeting is in the public interest.
The Director's decision would be rendered within 6 months
of receipt of a satisfactory request to modify the safety basis or
compliance status of the plant.
The Director's decision would result in a:

(A) Finding of compliance or approval of compliance plan (see I.A.), or
(B) Finding of non-compliance or disapproval of compliance plan (see
I.B.).

IV. Timely Renewal

In any case where the Corporation has filed a timely application
for certification or a compliance plan, the existing certification or
compliance plan would not expire until the Commission has made a
determination on the Corporation's submittal (Sec. 76.55).

Commissioner Rogers' Additional Comments

Section 76.76 of the Proposed Rule addresses backfitting. I would
be particularly interested in comments on two issues regarding the
provisions of that section. These are (1) whether the provisions of
Sec. 76.76 should become effective immediately when 10 CFR part 76
becomes final, as would happen were the proposed section to remain
unchanged, or whether there should be some interim before these
provisions become effective (e.g. until completion of the first annual
certification following initial certification) and (2) whether the
standard for requiring a backfit should be that of Sec. 76.76(a)(3),
``* * * a substantial increase in the overall protection of the public
health and safety or the common defense and security * * *'' or the
less stringent standard of cost-effectiveness that is contained in
section 1(b)(6) of Executive Order 12866 of September 30, 1993, ``* * *
a reasoned determination that the benefits of the intended regulation
justify its costs.''
I raise these questions because the Corporation and the NRC have
only recently been given their respective responsibilities for the
operation and regulation of the gaseous diffusion plants, and
therefore, have had no prior corporate experience with these
responsibilities. While I have every confidence in the ability of both
organizations to carry out their responsibilities with a high degree of
competence, I expect that there will be a period during which both
organizations will gain additional knowledge about the configuration
and functioning of the plants.
Some of this new knowledge could suggest changes that would be
worthwhile from the standpoint of public health and safety or
safeguards. Moreover, while the NRC becomes more knowledgeable about
the regulation of these plants, it also will be re-examining and
considering changes to 10 CFR part 70, the regulation that served as a
model for proposed 10 CFR part 76. This re-examination was started as a
result of incidents that occurred at major materials facilities and
could lead to changes that also could have safety implications for 10
CFR part 76. For these reasons I would be interested in comments on the
potential advantages and disadvantages of delaying the effectiveness of
Sec. 76.76 for an appropriate interim.
With regard to the standard for imposing backfits, proposed
Sec. 76.76(a)(3) would require that a potential backfit meet the same
standard as that applied to potential nuclear power reactor backfits
that is contained in 10 CFR 50.109(a)(3). This standard has imposed a
salutary discipline on the Commission in its regulation of nuclear
power reactors. However, when this standard was first established in
1970, the regulations applicable to nuclear power reactors had already
been through a period of evolution. When the Commission confirmed the
standard in 1985, these regulations had again undergone some
considerable evolution as a result of lessons learned from the Three
Mile Island accident. 10 CFR part 76 has had no similar evolution.
Accordingly, I would be interested in comments on the advantages and
disadvantages of substituting the less stringent standard contained in
Sec. 1(b)(6) of Executive Order 12866 for the standard proposed in
Sec. 76.76(a)(3), at least for some period of time after 10 CFR part 76
becomes final.

Submission of Comments in Electronic Format

Commenters are encouraged to submit, in addition to the original
paper copy, a copy of the letter in electronic format on a DOS-
formatted (IBM compatible) 5.25 or 3.5 inch computer diskette. Text
files should be provided in WordPerfect format or unformatted ASCII
code. The format and version should be identified on the diskette's
external label.

Finding of No Significant Environmental Impact: Availability;
Categorical Exclusion

The Commission has determined under the National Environmental
Policy Act (NEPA) of 1969, as amended, and the Commission's regulations
in Subpart A of 10 CFR part 51, that this rule, if adopted, would not
be a major Federal action significantly affecting the quality of the
human environment and therefore, an environmental impact statement is
not required. The two plants to be regulated by this rule have already
been subject to evaluation in accordance with the National
Environmental Policy Act. The Department of Energy has prepared an
environmental impact statement for the gaseous diffusion plant in
Portsmouth, Ohio1, and an environmental assessment for the plant
in Paducah, Kentucky2. The Commission's proposed certification
requirements are intended to be at least as stringent as the existing
requirements applicable to the two plants which are currently operating
and have been operating for nearly 40 years. The promulgation of a rule
governing these plants and their subsequent regulation by the NRC will
not result in any environmental impacts beyond those which currently
exist or would be expected to continue absent NRC regulatory oversight.
The NRC 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.
---------------------------------------------------------------------------

\1\ Final Environmental Impact Statement, Portsmouth Gaseous
Diffusion Plant Site, May 1977, ERDA-1555; Final Environmental
Statement, Portsmouth Gaseous Diffusion Plant Expansion, September
1977, ERDA-1549.
\2\ Final Environmental Impact Assessment Of The Paducah Gaseous
Diffusion Plant Site, August 1982, DOE/EA-0155.
---------------------------------------------------------------------------

Similarly, subsequent certificates of compliance including
amendments, modifications and renewals issued pursuant to this part
will consist of findings of compliance with 10 CFR part 76. Therefore,
such actions will not result in any significant new environmental
impacts. Part 51 of Title 10 of the Code of Federal Regulations is
being amended to include a categorical exclusion for such certification
actions pursuant to part 76.
Under its procedures implementing NEPA, the Commission may exclude
from preparation of an environmental impact statement or an
environmental assessment a category of actions which do not
individually or cumulatively have a significant effect on the human
environment and which have been found to have no such effect in NRC
procedures. In this rulemaking, the Commission proposes to find that
the issuance, amendment, modification and revision of a certificate of
compliance for the Corporation comprise a category of actions which
does not individually or cumulatively have a significant effect on the
human environment. Actions within this category are similar in that
they will be based on a finding by NRC that the Corporation has
demonstrated compliance with the requirements in part 76. As noted
above, after conducting an environmental assessment for part 76, the
Commission made a finding of no significant environmental impact, and
concluded that part 76 requirements, if promulgated, would not allow
the enrichment facilities to operate in such a way as to result in any
adverse environmental effects greater than the existing impacts which
have been already evaluated. Accordingly, a Commission finding of
compliance with the part 76 requirements would not have a significant
effect on the human environment.

Paperwork Reduction Act Statement

The information collection requirements contained in this proposed
rule of limited applicability apply only to a wholly-owned
instrumentality of the United States and affect fewer than ten
respondents. Therefore, Office of Management and Budget clearance is
not required pursuant to the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.).

Draft Regulatory Analysis

The Commission has prepared a draft regulatory analysis on this
proposed regulation. The analysis examines the costs and benefits of
the alternatives considered by the Commission. The draft analysis is
available for inspection in the NRC Public Document Room, 2120 L Street
NW. (Lower Level), Washington, DC.
The Commission requests public comment on the draft analysis.
Comments on the draft analysis may be submitted to the NRC as indicated
under the ADDRESSES heading.

Regulatory Flexibility Certification

As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this rule, if adopted, will not
have a significant economic impact upon a substantial number of small
entities since it only addresses the Corporation's operation of two
existing plants which do not fall into this category.

Backfit Analysis

The NRC has determined that the backfit rule, 10 CFR 50.109, does
not apply to this proposed rule, and therefore, a backfit analysis is
not required.

List of Subjects

10 CFR Part 19

Criminal penalties, Environmental protection, Nuclear materials,
Nuclear power plants and reactors, Occupational safety and health,
Radiation protection, Reporting and recordkeeping requirements, Sex
discrimination.

10 CFR Part 20

Byproduct material, Criminal penalties, Licensed material, Nuclear
materials, Nuclear power plants and reactors, Occupational safety and
health, Packaging and containers, Radiation protection, Reporting and
recordkeeping requirements, Special nuclear material, Source material,
Waste treatment and disposal.

10 CFR Part 21

Nuclear power plants and reactors, Penalties, Radiation protection,
Reporting and recordkeeping requirements.

10 CFR Part 26

Alcohol abuse, Alcohol testing, Appeals, Chemical testing, Drug
abuse, Drug testing, Employee assistance programs, Fitness for duty,
Management actions, Nuclear power reactors, Protection of information,
Reporting and recordkeeping requirements.

10 CFR Part 51

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

10 CFR Part 70

Criminal penalties, Hazardous materials transportation, Material
control and accounting, Nuclear materials, Packaging and containers,
Radiation protection, Reporting and recordkeeping requirements,
Scientific equipment, Security measures, Special nuclear material.

10 CFR Part 71

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

10 CFR Part 73

Criminal penalties, Hazardous materials transportation, Export,
Import, Nuclear materials, Nuclear power plants and reactors, Reporting
and recordkeeping requirements, Security measures.

10 CFR Part 74

Accounting, Criminal penalties, Hazardous materials transportation,
Material control and accounting, Nuclear materials, Packaging and
containers, Radiation protection, Reporting and recordkeeping
requirements, Scientific equipment, Special nuclear material.

10 CFR Part 76

Certification, Criminal penalties, Radiation protection, Reporting
and recordkeeping requirements, Security measures, Special nuclear
material, Uranium enrichment by gaseous diffusion.

10 CFR Part 95

Classified information, Criminal penalties, Reporting and
recordkeeping requirements, Security measures.
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 is proposing to
adopt the following amendments to 10 CFR parts 19, 20, 21, 26, 51, 70,
71, 73, 74, and 95 and the new 10 CFR part 76.

PART 19--NOTICES, INSTRUCTIONS, AND REPORTS TO WORKERS: INSPECTION
AND INVESTIGATIONS

1. The authority citation for part 19 is revised to read as
follows:

Authority: Secs. 53, 63, 81, 103, 104, 161, 186, 68 Stat. 930,
933, 935, 936, 937, 948, 955, as amended, sec. 234, 83 Stat. 444, as
amended (42 U.S.C 2073, 2093, 2111, 2133, 2134, 2201, 2236, 2282);
sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); Pub. L. 95-
601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851).
2. Section 19.2 is revised to read as follows:

Sec. 19.2 Scope.

The regulations in this part apply to all persons who receive,
possess, use, or transfer material licensed by the Nuclear Regulatory
Commission pursuant to the regulations in parts 30 through 35, 39, 40,
60, 61, or part 72 of this chapter, including persons licensed to
operate a production or utilization facility pursuant to part 50 of
this chapter, persons licensed to possess power reactor spent fuel in
an independent spent fuel storage installation (ISFSI) pursuant to part
72 of this chapter, and persons required to obtain a certificate of
compliance or an approved compliance plan under part 76 of this
chapter. The regulations regarding interviews of individuals under
subpoena apply to all investigations and inspections within the
jurisdiction of the Nuclear Regulatory Commission other than those
involving NRC employees or NRC contractors. The regulations in this
part do not apply to subpoenas issued pursuant to 10 CFR 2.720.

PART 20--STANDARDS FOR PROTECTION AGAINST RADIATION

3. The authority citation for part 20 is revised to read as
follows:

Authority: Secs. 53, 63, 65, 81, 103, 104, 161, 182, 186, 68
Stat. 930, 933, 935, 936, 937, 948, 953, 955, as amended (42 U.S.C.
2073, 2093, 2095, 2111, 2133, 2134, 2201, 2232, 2236), secs. 201, as
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.
5841, 5842, 5846).

4. Section 20.1002 is revised to read as follows:

Sec. 20.2 Scope.

The regulations in this part apply to persons licensed by the
Commission to receive, possess, use, transfer, or dispose of byproduct,
source, or special nuclear material or to operate a production or
utilization facility under parts 30 through 35, 39, 40, 50, 60, 61, 70,
or 72 of this chapter, and to persons required to obtain a certificate
of compliance or an approved compliance plan under part 76 of this
chapter. The limits in this part do not apply to doses due to
background radiation, to exposure of patients to radiation for the
purpose of medical diagnosis or therapy, or to voluntary participation
in medical research programs.

PART 21--REPORTING OF DEFECTS AND NONCOMPLIANCE

5. The authority citation for part 21 is revised to read as
follows:

Authority: Sec. 161, 68 Stat. 948, as amended, sec. 234, 83
Stat. 444, as amended (42 U.S.C. 2201, 2282); secs. 201, as amended,
206, 88 Stat. 1242, as amended 1246 (42 U.S.C. 5841, 5846).

Section 21.2 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).

6. Section 21.2 is amended by adding paragraph (e) to read as
follows:

Sec. 21.2 Scope.

* * * * *
(e) The regulations in this part apply to each individual,
partnership, corporation, or other entity required to obtain a
certificate of compliance or an approved compliance plan under part 76
of this chapter.

PART 26--FITNESS-FOR-DUTY PROGRAMS

7. The authority citation for part 26 is revised to read as
follows:

Authority: Secs. 53, 81, 103, 104, 107, 161, 68 Stat. 930, 935,
936, 937, 948, as amended (42 U.S.C. 2073, 2111, 2112, 2133, 2134,
2137, 2201); secs. 201, 202, 206, 88 Stat. 1242, 1244, 1246, as
amended (42 U.S.C. 5841, 5842, 5846).

8. Section 26.2 is amended by adding paragraph (d) to read as
follows:

Sec. 26.2 Scope.

* * * * *
(d) The regulations in this part apply to the Corporation required
to obtain a certificate of compliance or an approved compliance plan
under Part 76 of this chapter only if the Corporation elects to engage
in activities involving formula quantities of strategic special nuclear
material. When applicable, the requirements apply only to the
Corporation and personnel carrying out the activities specified in
Sec. 26.2(a)(1) through (5).

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

9. The authority citation for part 51 is revised to read as
follows:

Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201);
secs. 201, as amended, 202, 88 Stat. 1242, as amended, 1244 (42
U.S.C. 5841, 5842).

10. Section 51.22 is amended by adding paragraph (c)(19) 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.

* * * * *
(c) * * *
(19) Issuance, amendment, modification, or renewal of a certificate
of compliance of gaseous diffusion enrichment facilities pursuant to 10
CFR Part 76.
* * * * *

PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

11. The authority citation for part 70 is revised to read as
follows:

Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948,
953, 954, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C.
2071, 2073, 2201, 2232, 2233, 2282); secs. 201, as amended, 202,
204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246, (42 U.S.C.
5841, 5842, 5845, 5846).
Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141,
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 70.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 70.21(g) also issued under sec. 122,
68 Stat. 939 (42 U.S.C. 2152). Section 70.31 also issued under sec.
57d, Pub. L. 93-377, 88 Stat. 475 (42 U.S.C. 2077). Sections 70.36
and 70.44 also issued under sec. 184, 68 Stat. 954, as amended (42
U.S.C. 2234). Section 70.61 also issued under secs. 186, 187, 68
Stat. 955 (42 U.S.C. 2236, 2237). Section 70.62 also issued under
sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138).

12. Section 70.1 is amended by revising paragraph (a) and adding
paragraph (d) to read as follows:

Sec. 70.1 Purpose.

(a) Except as provided in paragraphs (c) and (d) of this section,
the regulations of this part establish procedures and criteria for the
issuance of licenses to receive title to, own, acquire, deliver,
receive, possess, use, and transfer special nuclear material; and
establish and provide for the terms and conditions upon which the
Commission will issue such licenses.
* * * * *
(d) As provided in Part 76 of this chapter, the regulations of this
part establish procedures and criteria for physical security and
material control and accounting for the issuance of a certificate of
compliance or the approval of a compliance plan.

PART 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL

13. The authority citation for part 71 is revised 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 (42 U.S.C. 2073, 2077,
2092, 2093, 2111, 2201, 2232, 2233); 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.

14. Section 71.0 is amended by adding paragraph (e) to read as
follows:

Sec. 71.0 Purpose and scope.

* * * * *
(e) The regulations in this part apply to any person required to
obtain a certificate of compliance or an approved compliance plan
pursuant to part 76 of this chapter if the person delivers radioactive
material to a common or contract carrier for transport or transports
the material outside the confines of the person's plant or other
authorized place of use.

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

15. The authority citation for part 73 is revised to read as
follows:

Authority: Secs. 53, 161, 68 Stat. 930, 948, as amended, sec.
147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as
amended, 204, 88 Stat. 1242, as amended, 1245 (42 U.S.C. 5841,
5844).

Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 73.37(f) also
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100
Stat. 876 (42 U.S.C. 2169).

16. Section 73.1 is amended by adding paragraph (b)(9) to read as
follows:

Sec. 73.1 Purpose and scope.

* * * * *
(b) * * *
(9) As provided in part 76 of this chapter, the regulations of this
part establish procedures and criteria for physical security for the
issuance of a certificate of compliance or the approval of a compliance
plan.

PART 74--MATERIAL CONTROL AND ACCOUNTING OF SPECIAL NUCLEAR
MATERIAL

17. The authority citation for part 74 is revised to read as
follows:

Authority: Secs. 53, 57, 161, 182, 183, 68 Stat. 930, 932, 948,
953, 954, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C.
2073, 2077, 2201, 2232, 2233, 2282); secs. 201, as amended, 202,
206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842,
5846).

18. Section 74.2 is amended by adding paragraph (d) to read as
follows:

Sec. 74.2 Scope.

* * * * *
(d) As provided in part 76 of this chapter, the regulations of this
part establish procedures and criteria for material control and
accounting for the issuance of a certificate of compliance or the
approval of a compliance plan.
19. A new part 76 is added to 10 CFR chapter I to read as follows:

PART 76--CERTIFICATION OF GASEOUS DIFFUSION PLANTS

Subpart A--General Provisions

Sec.
76.1 Purpose.
76.2 Scope.
76.4 Definitions.
76.5 Communications.
76.6 Interpretations.
76.7 Employee protection.
76.8 Information collection requirements: OMB approval not
required.
76.9 Completeness and accuracy of information.
76.10 Deliberate misconduct.
76.21 Certificate required.
76.23 Specific exemptions.

Subpart B--Application

76.31 Annual application requirement.
76.33 Application procedures.
76.35 Contents of applications.
76.37 Federal Register notice.
76.39 Public meeting.
76.41 Record underlying decisions.
76.43 Annual date for decision.
76.45 Application for amendment of certificate.

Subpart C--Certification

76.51 Conditions of certification.
76.53 Consultation with Environmental Protection Agency.
76.55 Timely renewal.
76.60 Regulatory requirements which apply.
76.62 Issuance of certificate or approval of compliance plan.
76.64 Denial of certificate or compliance plan.
76.68 Plant changes.
76.70 Post issuance.
76.72 Miscellaneous procedural matters.
76.76 Backfitting.

Subpart D--Safety

76.81 Authorized use of radioactive material.
76.83 Transfer of radioactive material.
76.85 Assessment of accidents.
76.87 Technical safety requirements.
76.89 Criticality accident requirements.
76.91 Emergency planning.
76.93 Quality assurance.
76.95 Training.

Subpart E--Safeguards and Security

76.111 Physical security, material control and accounting, and
protection of certain information.
76.113 Formula quantities of strategic special nuclear material--
Category I.
76.115 Special nuclear material of moderate strategic
significance--Category II.
76.117 Special nuclear material of low strategic significance--
Category III.
76.119 Security facility approval and safeguarding of National
Security Information and restricted data.

Subpart F--Reports and Inspections

76.120 Reporting requirements.
76.121 Inspections.
76.123 Tests.

Subpart G--Enforcement

76.131 Violations.
76.133 Criminal penalties.

Authority: Secs. 161, 68 Stat. 948, as amended, secs. 1312,
1701, 106 Stat. 2392, 2951-53 (42 U.S.C. 2201, 2297b-11, 2297f);
secs. 201, as amended, 206, 88 Stat. 1244, 1246 (42 U.S.C. 5841,
5842). Sec. 76.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851).

Subpart A--General Provisions

Sec. 76.1 Purpose.

(a) This part establishes requirements that will govern the
operation of the gaseous diffusion plants at Portsmouth, Ohio, and
Paducah, Kentucky. These requirements are promulgated to protect the
public health and safety from radiological hazards and provide for the
common defense and security. This part also establishes the
certification process that will be used to ensure compliance with the
established requirements.
(b) The regulations contained in this part are issued pursuant to
the Atomic Energy Act of 1954, as amended; Title II of the Energy
Reorganization Act of 1974, as amended; and Title XI of the Energy
Policy Act of 1992.

Sec. 76.2 Scope.

The regulations in this part apply only to the gaseous diffusion
plants at Portsmouth, Ohio, and Paducah, Kentucky leased by DOE to the
Corporation. This part also gives notice to all persons who knowingly
provide to the Corporation or any contractor, or subcontractor any
components, equipment, materials, or other goods or services that
relate to the activities subject to this part that they may be
individually subject to NRC enforcement action for violation of
Sec. 76.10.

Sec. 76.4 Definitions.

As used in this part:
Act means the Atomic Energy Act of 1954 (68 Stat. 919), and
includes any amendments to the Act.
Administrative controls means the provisions relating to
organization and management, procedures, recordkeeping, review and
audit, and reporting necessary to ensure operation of the plant in a
safe manner.
Agreement State means any State with which the Commission has
entered into an effective agreement under subsection 274b. of the Act.
Non-Agreement State means any other State.
Atomic energy means all forms of energy released in the course of
nuclear fission or nuclear transformation.
Certificate of compliance or certificate means a certificate of
compliance issued pursuant to this part.
Classified matter means documents or material containing classified
information.
Commission means the Nuclear Regulatory Commission or its duly
authorized representatives.
Common defense and security means the common defense and security
of the United States.
Compliance plan means a plan for achieving compliance approved
pursuant to this part.
Corporation means the United States Enrichment Corporation (USEC),
a wholly-owned corporation of the United States that is authorized
under lease from the Department of Energy to operate the gaseous
diffusion enrichment plants in Paducah, Kentucky, and Portsmouth, Ohio.
Department and Department of Energy (DOE) means the Department of
Energy established by the Department of Energy Organization Act (Pub.
L. 95-91, 91 Stat. 565, 42 U.S.C. 7101 et seq.), to the extent that the
Department, or its duly authorized representatives, exercises functions
formerly vested in the U.S. Atomic Energy Commission, its Chairman,
members, officers and components and transferred to the U.S. Energy
Research and Development Administration and to the Administrator
thereof pursuant to sections 104 (b), (c) and (d) of the Energy
Reorganization Act of 1974, as amended, (Pub. L. 93-438, 88 Stat. 1233
at 1237, 42 U.S.C. 5814) and retransferred to the Secretary of Energy
pursuant to section 301(a) of the Department of Energy Organization Act
(Pub. L. 95-91, 91 Stat. 565 at 577-578, 42 U.S.C. 7151).
Depleted uranium means the byproduct residues from the uranium
enrichment process in which the concentration of the isotope U235
is less than that occurring in natural uranium.
Director means the Director, or his or her designee, of the Office
of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory
Commission.
Effective dose equivalent means the sum of the products of the dose
equivalent to the body organ or tissue and the weighting factors
applicable to each of the body organs or tissues that are irradiated,
as defined in 10 CFR part 20 (Secs. 20.1001 through 20.2402).
Effective kilograms of special nuclear material means:
(1) For uranium with an enrichment in the isotope U-235 of 0.01 (1
percent) and above, its element weight in kilograms multiplied by the
square of its enrichment expressed as a decimal weight fraction; and
(2) For uranium with an enrichment in the isotope U-235 below 0.01
(1 percent), its element weight in kilograms multiplied by 0.0001.
Formula quantity means strategic special nuclear material in any
combination in a quantity of 5000 grams or more computed by the
formula, grams = (grams contained U-235) + 2.5(grams U-233+grams
plutonium).
Limiting conditions for operation means the lowest functional
capability or performance levels of equipment required for safe
operation of the plant.
Limiting control settings means settings for automatic alarm or
protective devices related to those variables having significant safety
functions.
National security information means information that has been
determined pursuant to Executive Order 12356 or any predecessor order
to require protection against unauthorized disclosure and that is so
designated.
Person means:
(1) Any individual, corporation, partnership, firm, association,
trust, estate, public or private institution, group, Government Agency
other than the Commission or the Department, except that the Department
shall be considered a person within the meaning of the regulations in
this part to the extent that its facilities and activities are subject
to the licensing and related regulatory authority of the Commission
pursuant to section 202 of the Energy Reorganization Act of 1974, as
amended, (88 Stat. 1244); any State or any political subdivision of or
any political entity within a State, any foreign government or nation
or any political subdivision of any such government or nation, or other
entity; and
(2) Any legal successor, representative, agent, or agency of the
foregoing.
Process means a series of actions that achieves an end or result.
Produce, when used in relation to special nuclear material, means:
(1) To manufacture, make, produce, or refine special nuclear
material;
(2) To separate special nuclear material from other substances in
which such material may be contained; or
(3) To make or to produce new special nuclear material.
Restricted data means all data concerning design, manufacture or
utilization of atomic weapons, the production of special nuclear
material, or the use of special nuclear material in the production of
energy, but does not include data declassified or removed from the
Restricted Data category pursuant to Section 142 of the Act.
Safety limits means those bounds within which the process variables
must be maintained for adequate control of the operation and that must
not be exceeded in order to protect the integrity of the physical
system that is designed to guard against the uncontrolled release of
radioactivity.
Sealed source means any radioactive material that is encased in a
capsule designed to prevent leakage or escape of the radioactive
material.
Security facility approval means that a determination has been made
by the NRC that a facility is eligible to use, process, store,
reproduce, transmit, or handle classified matter.
Source material means source material as defined in section 11z. of
the Act and in the regulations contained in part 40 of this chapter.
Special nuclear material means:
(1) Plutonium, uranium 233, uranium enriched in the isotope 233 or
in the isotope 235, and any other material which the Commission,
pursuant to the provisions of Section 51 of the Act, determines to be
special nuclear material, but does not include source material; or
(2) Any material artificially enriched in any of the foregoing, but
does not include source material.
Special nuclear material of low strategic significance means:
(1) Less than an amount of special nuclear material of moderate
strategic significance, as defined in this section, but more than 15
grams of uranium-235 (contained in uranium enriched to 20 percent or
more in the U-235 isotope), or 15 grams of uranium-233, or 15 grams of
plutonium, or the combination of 15 grams when computed by the
equation, grams = (grams contained U-235) + (grams plutonium) + (grams
U-233); or
(2) Less than 10,000 grams but more than 1000 grams of uranium-235
(contained in uranium enriched to 10 percent or more but less than 20
percent in the U-235 isotope), or
(3) 10,000 grams or more of uranium-235 (contained in uranium
enriched above natural but less than 10 percent in the U-235 isotope).
Special nuclear material of moderate strategic significance means:
(1) Less than a formula quantity of strategic special nuclear
material but more than 1000 grams of uranium-235 (contained in uranium
enriched to 20 percent or more in the U-235 isotope), or more than 500
grams of uranium-233 or plutonium, or in a combined quantity of more
than 1000 grams when computed by the equation, grams = (grams contained
U-235) + 2 (grams U-233 + grams plutonium); or
(2) 10,000 grams or more of uranium-235 (contained in uranium
enriched to 10 percent or more but less than 20 percent in the U-235
isotope).
Special nuclear material scrap means the various forms of special
nuclear material generated during chemical and mechanical processing,
other than recycle material and normal process intermediates, which are
unsuitable for use in their present form, but all or part of which will
be used after further processing.
Strategic special nuclear material means uranium-235 (contained in
uranium enriched to 20 percent or more in the U-235 isotope), uranium-
233, or plutonium.
Surveillance requirements means requirements relating to test,
calibration, or inspection to ensure that the necessary quality of
systems and components is maintained, that plant operation will be
within the safety limits, and that the limiting conditions of operation
will be met.
United States, when used in a geographical sense, includes Puerto
Rico and all territories and possessions of the United States.
Uranium enrichment plant means:
(1) Any plant used for separating the isotopes of uranium or
enriching uranium in the isotope 235, using gaseous diffusion
technology; or
(2) Any equipment or device, or important component part especially
designed for such equipment or device, capable of separating the
isotopes of uranium or enriching uranium in the isotope 235, using
gaseous diffusion technology.

Sec. 76.5 Communications.

Except where otherwise specified, all correspondence, reports,
applications, and other written communications submitted pursuant to 10
CFR part 76 should be addressed to the Director, Office of Nuclear
Material Safety and Safeguards, ATTN: Document Control Desk, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, and copies
sent to the NRC Region III Office (shown in appendix D of part 20 of
this chapter) and the Resident Inspector. Communications and reports
may be delivered in person at the Commission's offices at 11555
Rockville Pike, Rockville, Maryland, or at 2120 L Street, NW.,
Washington, DC.

Sec. 76.6 Interpretations.

Except as specifically authorized by the Commission in writing, no
interpretation of the meaning of the regulations in this part by any
officer or employee of the Commission other than a written
interpretation by the General Counsel will be recognized to be binding
upon the Commission.

Sec. 76.7 Employee protection.

(a) Discrimination by the Corporation, or a contractor or
subcontractor of the Corporation against an employee for engaging in
certain protected activities is prohibited. Discrimination includes
discharge and other actions that relate to compensation, terms,
conditions, or privileges of employment. The protected activities are
established in Section 211 of the Energy Reorganization Act of 1974, as
amended, and in general are related to the administration or
enforcement of a requirement imposed under the Atomic Energy Act or the
Energy Reorganization Act.
(1) The protected activities include but are not limited to:
(i) Providing the Commission or his or her employer information
about alleged violations of either of the above statutes or possible
violations of requirements imposed under either of the above statutes;
(ii) Refusing to engage in any practice made unlawful under either
of the above statutes or under these requirements if the employee has
identified the alleged illegality to the employer;
(iii) Requesting the Commission to institute action against his or
her employer for the administration or enforcement of these
requirements;
(iv) Testifying in any Commission proceeding, or before Congress,
or at any Federal or State proceeding regarding any provision (or
proposed provision) of either of the above statutes.
(v) Assisting or participating in, or attempting to assist or
participate in, the above activities.
(2) These activities are protected even if no formal proceeding is
actually initiated as a result of the employee assistance or
participation.
(3) This section has no application to any employee alleging
discrimination prohibited by this section who, acting without direction
from his or her employer (or the employer's agent), deliberately causes
a violation of any requirement of the Energy Reorganization Act of
1974, as amended, or the Atomic Energy Act of 1954, as amended.
(b) Any employee who believes that he or she has been discharged or
otherwise discriminated against by any person for engaging in protected
activities specified in paragraph (a)(1) of this section may seek a
remedy for the discharge or discrimination through an administrative
proceeding in the Department of Labor. The administrative proceeding
must be initiated within 180 days after an alleged violation occurs by
filing a complaint alleging the violation with the Department of Labor,
Employment Standards Administration, Wage and Hour Division. The
Department of Labor may order reinstatement, back pay, and compensatory
damages.
(c) A violation of paragraphs (a), (e), or (f) of this section by
the Corporation, or a contractor or subcontractor of the Corporation
may be grounds for:
(1) Denial, revocation, or suspension of the certificate.
(2) Other enforcement action.
(d) Actions taken by an employer, or others which adversely affect
an employee may be predicated upon nondiscrimination grounds. The
prohibition applies when the adverse action occurs because the employee
has engaged in protected activities. An employee's engagement in
protected activities does not automatically render him or her immune
from discharge or discipline for legitimate reasons or from adverse
action dictated by nonprohibited considerations.
(e) (1) The Corporation shall prominently post the revision of NRC
Form 3, ``Notice to Employees,'' referenced in 10 CFR 19.11(c). This
form must be posted at locations sufficient to permit employees
protected by this section to observe a copy on the way to or from their
place of work. Premises must be posted not later than 30 days after an
application is docketed and remain posted while the application is
pending before the Commission, during the term of the certificate, and
for 30 days following certificate termination.
(2) The Corporation shall notify its contractors of the prohibition
against discrimination for engaging in protected activities.
(3) Copies of NRC Form 3 may be obtained by writing to the NRC
Region III Office listed in appendix D to part 20 of this chapter or by
contacting the NRC Office of Information Resource Management, Division
of Information Support Services, Information and Records Management
Branch.
(f) No agreement affecting the compensation, terms, conditions, or
privileges of employment, including an agreement to settle a complaint
filed by an employee with the Department of Labor pursuant to Section
211 of the Energy Reorganization Act of 1974, as amended, may contain
any provision which would prohibit, restrict, or otherwise discourage
an employee from participating in protected activity as defined in
paragraph (a)(1) of this section including, but not limited to,
providing information to the NRC or to his or her employer on potential
violations or other matters within NRC's regulatory responsibilities.

Sec. 76.8 Information collection requirements: OMB approval not
required.

The information collection requirements contained in this part of
limited applicability apply to a wholly-owned instrumentality of the
United States and affect fewer than ten respondents. Therefore, Office
of Management and Budget clearance is not required pursuant to the
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

Sec. 76.9 Completeness and accuracy of information.

(a) Information provided to the Commission or information required
by statute or by the Commission's rules, regulations, standards,
orders, or other conditions to be maintained by the Corporation must be
complete and accurate in all material respects.
(b) The Corporation shall notify the Commission of information
identified as having for the regulated activity a significant
implication for public health and safety or common defense and
security. The Corporation violates this paragraph only if the
Corporation fails to notify the Commission of information that the
Corporation has identified as having a significant implication for
public health and safety or common defense and security. Notification
must be provided to the Administrator of NRC's Region III Office within
2 working days of identifying the information. This requirement is not
applicable to information which is already required to be provided to
the Commission by other reporting or updating requirements.

Sec. 76.10 Deliberate misconduct.

(a) The Corporation or any employee of the Corporation and any
contractor (including a supplier or consultant), subcontractor, or any
employee of a contractor or subcontractor, who knowingly provides to
the Corporation, or any contractor or subcontractor, components,
equipment, materials, or other goods or services, that relate to the
Corporation's activities subject to this part; may not:
(1) Engage in deliberate misconduct that causes or, but for
detection, would have caused, the Corporation to be in violation of any
rule, regulation, or order, or any term, condition, or limitation of a
certificate or approval issued by the Commission, or
(2) Deliberately submit to the NRC, the Corporation, or its
contractor or subcontractor, information that the person submitting the
information knows to be incomplete or inaccurate in some respect
material to the NRC.
(b) A person who violates paragraph (a)(1) or (a)(2) of this
section may be subject to enforcement action in accordance with the
procedures in 10 CFR part 2, subpart B.
(c) For purposes of paragraph (a)(1) of this section, deliberate
misconduct by a person means an intentional act or omission that the
person knows:
(1) Would cause the Corporation to be in violation of any rule,
regulation, or order, or any term, condition, or limitation of a
certificate or approved compliance plan issued by the Director, or
(2) Constitutes a violation of a requirement, procedure,
instruction, contract, purchase order or policy of the Corporation,
contractor, or subcontractor.

Sec. 76.21 Certificate required.

The Corporation or its contractors may not operate the gaseous
diffusion plants at Portsmouth, Ohio, and Paducah, Kentucky without the
issuance of a certificate of compliance, or an approved compliance
plan, pursuant to this part. Except as authorized by the NRC under
other provisions of this chapter, no person other than the Corporation
or its contractors may acquire, deliver, receive, possess, use, or
transfer radioactive material at the gaseous diffusion plants at
Portsmouth, Ohio, and Paducah, Kentucky.

Sec. 76.23 Specific exemptions.

The Commission may, upon its own initiative or upon application of
the Corporation, grant such exemptions from the requirements of the
certification regulations as it determines are authorized by law and
will not endanger life, or property, or the common defense and
security, and are otherwise in the public interest.

Subpart B--Application

Sec. 76.31 Annual application requirement.

The Corporation shall apply to the Commission each year,1 on
or before April 15, for a certificate of compliance with the
Commission's regulations for the gaseous diffusion plants leased from
the Department.
---------------------------------------------------------------------------

\1\The initial filing for a certificate of compliance must be
tendered no later than 6 months after the date this rule is
published in the Federal Register or by April 15, 1995, whichever is
earlier.
---------------------------------------------------------------------------

Sec. 76.33 Application procedures.

(a) Filing requirements. An application for certificate of
compliance shall be tendered by filing 20 copies of the application
with the Director, Office of Nuclear Material Safety and Safeguards,
with copies sent to the NRC Region III Office and Resident Inspector,
in accordance with Sec. 76.5.
(b) Oath or affirmation. An application for certificate of
compliance must be executed in a signed original by a duly authorized
officer of the Corporation under oath or affirmation.
(c) Contents of application. The annual application for a
certificate of compliance must contain:
(1) The information set forth in Sec. 76.35.
(2) A plan for achieving compliance with respect to any areas of
noncompliance with the NRC's regulations that are identifiable by the
Corporation at the time of the filing of the application, including:
(i) A description of the areas of noncompliance;
(ii) A plan of actions and schedules for achieving compliance;
(iii) A justification for continued operation with adequate safety
and safeguards; and
(iv) Sufficient information for the Commission to prepare an
environmental assessment.
(d) Pre-filing consultation. The Corporation may confer with the
Commission's staff prior to filing an application.
(e) Additional information. At any time during the review of an
application, the Corporation may be required to supply additional
information to the Commission's staff in order to enable the Commission
or the Director, as appropriate, to determine whether the certificate
should be issued or denied, or to determine whether a compliance plan
should be approved.
(f) Incorporation by reference. Information contained in previous
applications, statements, or reports filed with the Commission may be
incorporated by reference, provided that the reference is clear and
specific.

Sec. 76.35 Contents of applications.

The application for a certificate of compliance must include the
information identified in this section.
(a) A safety analysis report which must include the following
information:
(1) The activities involving special nuclear material and the
general plan for carrying out these activities;
(2) The name, amount, and specifications (including the chemical
and physical form and, where applicable, isotopic content) of the
special nuclear material, source and byproduct material the Corporation
proposes to use, possess or produce, including any material held up in
equipment from previous operations;
(3) The qualifications requirements, including training and
experience, of the Corporation's management organization and key
individuals responsible for safety in accordance with the regulations
in this chapter;
(4) A training program that meets the requirements of Sec. 76.95.
(5) A description of equipment and facilities which will be used by
the Corporation to protect health and minimize danger to life or
property (such as handling devices, working areas, shields, measuring
and monitoring instruments, devices for the treatment and disposal of
radioactive effluent and wastes, storage facilities, provisions for
protection against natural phenomena, fire protection systems,
criticality accident alarm systems, etc.);
(6) A description of the management controls and oversight program
to ensure that activities directly relevant to nuclear safety and
safeguards and security are conducted in an appropriately controlled
manner that ensures protection of employee and public health and safety
and protection of the national security interests; and
(7) A description of the plant site, and a description of the
principal structure, systems, and components of the plant.
(b) A quality assurance program that meets the requirements of
Sec. 76.93.
(c) Technical safety requirements in accordance with Sec. 76.87. A
summary statement of the bases or reasons for the requirements, other
than those covering administrative controls, shall also be included in
the application, but may not become part of the technical safety
requirements.
(d) An emergency plan that meets the requirements of Sec. 76.91.
(e) A fundamental nuclear material control plan which describes the
measures used to control and account for special nuclear material that
the Corporation uses, possesses, or has access to. The plan must
describe, as appropriate:
(1) How formula quantities of strategic special nuclear material
will be controlled and accounted for in accordance with the relevant
requirements of subpart E;
(2) How special nuclear material of moderate strategic significance
will be controlled and accounted for in accordance with the relevant
requirements of subpart E; and
(3) How special nuclear material of low strategic significance will
be controlled and accounted for in accordance with the relevant
requirements of subpart E.
(f) A transportation protection plan which describes the measures
used to protect shipments of special nuclear material of low strategic
significance in accordance with the relevant requirements of subpart E
when in transit off site.
(g) A physical protection plan which describes the measures used to
protect special nuclear material that the Corporation uses, possesses,
or has access to at fixed sites. The plan must describe, as
appropriate:
(1) How formula quantities of special nuclear material will be
protected against both theft and radiological sabotage in accordance
with the relevant requirements of subpart E;
(2) How special nuclear material of moderate strategic significance
will be protected in accordance with the relevant requirements of
subpart E;
(3) How special nuclear material of low strategic significance will
be protected in accordance with the relevant requirements of subpart E;
and
(4) The measures used to protect special nuclear material while in
transit between protected areas, all of which are located on a single
fixed site under the control of the applicant. The level of protection
afforded the material while in transit must not be less than that
afforded the same material while it was within the protected area from
which transit began.
(h) A plan describing the facility's proposed security procedures
and controls as set forth in Sec. 95.15(b) for protection of classified
information and hardware.
(i) An application which contains restricted data, classified
national security information, safeguards information, proprietary
data, or other withholdable information, must be prepared in such a
manner that all such information or data are separated from the
information to be made available to the public.
(j) In response to a written request by the Commission, the
Corporation shall file with the Commission the installation information
described in Sec. 75.11 of this chapter on Form N-71. The Corporation
shall also permit verification of this installation information by the
International Atomic Energy Agency and take any other action necessary
to implement the US/IAEA Safeguards Agreement, as set forth in part 75.
(k) A description of the program, as appropriate, for processing,
management, and disposal of mixed and radioactive wastes generated by
operations and depleted uranium. The application must also include a
description of the waste streams generated by enrichment operations,
annual volumes of waste expected, identification of radioisotopes
contained in the waste, physical and chemical forms, and plans for
managing the waste.
(l) A description of the funding program to be established to
ensure that funds will be set aside and available for the ultimate
processing and disposition of depleted uranium and any waste generated.
The Corporation shall establish financial surety arrangements to ensure
that sufficient funds will be available to adequately cover conversion
of depleted UF6 to a stable form, as well as ultimate disposition.
The financial mechanism, such as prepayment, surety, insurance, or
external sinking fund, must ensure availability of funds. The funding
program must contain a basis for cost estimates for conversion and
disposition of depleted UF6, and must include means of adjusting
cost estimates and associated funding levels over the life of the
plant. The Corporation shall ensure the adequacy of the financing
mechanism, considering the volume of generated depleted uranium and any
waste and estimates for future generation, in its annual application
for certification.
(m) A compliance status report which includes the status of various
state, local and Federal permits, licenses, approvals, and other
entitlements, as described in Sec. 51.45(d) of this chapter. The report
must include environmental and effluent monitoring data.

Sec. 76.37 Federal Register notice.

The Director shall publish in the Federal Register:
(a) A notice of the filing of an application (specifying that
copies of the application, except for Restricted Data, classified
National Security Information, Safeguards Information, proprietary
data, or other withholdable information will be made available for the
public inspection in the Commission's Public Document Room at 2120 L
Street, NW. (Lower Level), Washington, DC, and in the local public
document room at or near the location of the plant);
(b) A notice of opportunity for written public comment on the
application; and
(c) The date of any scheduled public meeting regarding the
application.

Sec. 76.39 Public meeting.

(a) A public meeting will be held on an application if the
Director, in his or her discretion, determines that a meeting is in the
public interest with respect to a decision on the application.
(b) Conduct of public meeting.
(1) The Director shall conduct any public meeting held on the
application.
(2) Public meetings will take place near the locale of the subject
plant, unless otherwise specified by the Director.
(3) A public meeting will be open to all interested members of the
public and be conducted as deemed appropriate by the Director.
(4) Members of the public will be given an opportunity during a
public meeting to make their views regarding the application known to
the Director.
(5) A transcript will be kept of each public meeting.
(6) No restricted data, classified national security information,
safeguards information, proprietary data, or other withholdable
information may be introduced at the meeting.

Sec. 76.41 Record underlying decisions.

(a) Any decision of the Commission or its designee under this part
in any proceeding regarding an application for a certificate must be
based on information in the record and facts officially noticed in the
proceeding.
(b) All public comments and correspondence in any proceeding
regarding an application for a certificate must be made a part of the
public docket of the proceeding, except as provided under 10 CFR 2.790.

Sec. 76.43 Annual date for decision.

The Director will render a decision on an application within 6
months of the receipt of the application unless the Director alters the
date for decision and publishes notice of the new date in the Federal
Register.

Sec. 76.45 Application for amendment of certificate.

In addition to the annual application for certification submitted
pursuant to Sec. 76.31, the Corporation may at any time apply for
amendment of the certificate to cover proposed new or modified
activities. The amendment application should contain sufficient
information for the Director to make findings of compliance for the
proposed activities as required for the original certificate.
Upon receipt of the Corporation's application for amendment of the
certificate, the Director will determine whether the proposed
activities are significant, and if so, follow the procedures specified
in Secs. 76.37 and 76.39. If the Director determines that the
activities are not significant the Director will, after appropriate
review, issue a decision pursuant to subpart C of this part.

Subpart C--Certification

Sec. 76.51 Conditions of certification.

The Corporation shall comply with all of the requirements set forth
and referenced in this part or set forth in the certificate of
compliance or in an approved compliance plan.

Sec. 76.53 Consultation with Environmental Protection Agency.

In reviewing an application for a certificate, including the
provisions of any compliance plan, the Director shall consult with the
Environmental Protection Agency and solicit the Environmental
Protection Agency's written comments on the application .

Sec. 76.55 Timely renewal.

In any case in which the Corporation has timely filed a sufficient
annual application for a certificate of compliance, the existing
certificate of compliance or approved compliance plan does not expire
until the Director has made a determination on the application for a
certificate of compliance.

Sec. 76.60 Regulatory requirements which apply.

The Nuclear Regulatory Commission will use the following
requirements for certification of the Corporation for operation of the
gaseous diffusion plants:
(a) The Corporation shall provide for adequate protection of the
public health and safety and common defense and security.
(b) The Corporation shall demonstrate compliance with the
provisions of this part.
(c) The Corporation shall demonstrate compliance with the
applicable provisions of 10 CFR part 19, ``Notices, Instructions and
Reports To Workers: Inspection and Investigations.''
(d) The Corporation shall demonstrate compliance with the
applicable provisions of 10 CFR part 20, ``Standards For Protection
Against Radiation.''
(e) The Corporation shall demonstrate compliance with the
applicable provisions of 10 CFR part 21, ``Reporting of Defects and
Noncompliance.''
(f) The Corporation shall demonstrate compliance with the
applicable provisions of 10 CFR part 26, ``Fitness-for-Duty Programs.''
The requirements of this section apply only if the Corporation elects
to engage in activities involving formula quantities of strategic
special nuclear material. When applicable, the requirements apply only
to the Corporation and personnel carrying out the activities specified
in Sec. 26.2(a) (1) through (5).
(g) The Corporation shall demonstrate compliance with the
applicable provisions of 10 CFR part 71, ``Packaging and Transportation
of Radioactive Material.''
(h) The Corporation shall demonstrate compliance with the
applicable provisions for physical security and material control and
accounting as specified in subpart E to this part and contained in 10
CFR part 70, ``Domestic Licensing of Special Nuclear Material,'' part
73, ``Physical Protection of Plants and Materials,'' and part 74,
``Material Control and Accounting of Special Nuclear Material.'' The
requirements in these parts address safeguards for three different
kinds of nuclear material: Special nuclear material of low strategic
significance (Category III), special nuclear material of moderate
strategic significance (Category II), and formula quantities of
strategic special nuclear material (Category I). The requirements for
Category III material apply to the production of low enriched uranium.
The requirements for Category II and Category I material apply only if
the Corporation elects to engage in activities that involve these kinds
of material and then only to the situations and locations that involve
these kinds of material.
(i) The Corporation shall demonstrate compliance with the
applicable provisions for security facility approval and for
safeguarding of classified matter as specified in subpart E to this
part.

Sec. 76.62 Issuance of certificate or approval of compliance plan.

(a) Upon a finding of compliance with the Commission's regulations
for issuance of a certificate or approval of a compliance plan, the
Director shall issue a written decision explaining the decision. The
Director may impose such terms and conditions as deemed appropriate.
(b) The Director shall publish notice of the decision in the
Federal Register.
(c) The Corporation, or any person whose interest may be affected
who submitted written comment in response to the Federal Register
notice on the application or compliance plan under Sec. 76.37, or who
provided oral comments at any meeting held on the application or
compliance plan conducted under Sec. 76.39, may file a petition, not to
exceed 30 pages, requesting review of the Director's decision. This
petition must be filed with the Commission not later than 15 days after
publication of the Federal Register notice. Any person described above
may file a response to any petition for review, not to exceed 30 pages,
within 10 days after the filing of the petition. Unless the Commission
grants the petition for review or otherwise acts within 60 days after
the publication of the Federal Register notice, the Director's initial
decision on the certificate application or compliance plan becomes
effective and final. The Commission may adopt by order such further
procedures as in its judgment would serve the purpose of review of the
Director's decision.
(d) The Commission may adopt, modify, or set aside the findings,
conclusions, conditions or terms in the Director's decision and will
state the basis of its action in writing.

Sec. 76.64 Denial of certificate or compliance plan.

(a) The Director may deny an application for a certificate of
compliance or not approve a compliance plan upon a written finding that
the application is in noncompliance with one or more of the
Commission's requirements for the plant, or that the compliance plan is
inadequate to protect the public health and safety or the common
defense and security.
(b) The Director shall publish notice of the decision in the
Federal Register.
(c) Before a denial of an application for a certificate of
compliance, the Director shall advise the Corporation in writing of any
areas of noncompliance with the Commission's regulations and offer the
Corporation an opportunity to submit a proposed compliance plan
regarding those areas of noncompliance identified.
(d) The Corporation, or any person whose interest may be affected
and who submitted written comment in response to the Federal Register
notice on the application or compliance plan under Sec. 76.37 or who
provided oral comment at any meeting held on the application or
compliance plan conducted under Sec. 76.39, may file a petition, not to
exceed 30 pages, requesting review of the Director's decision. This
petition must be filed with the Commission not later than 15 days after
publication of the Federal Register notice. Any person described above
may file a response to any petition for review, not to exceed 30 pages,
within 10 days after filing of the petition. Unless the Commission
grants the petition for review or otherwise acts within 60 days after
the publication of the Federal Register notice, the Director's initial
decision on the certificate application or compliance plan becomes
effective and final. The Commission may adopt by order such further
procedures as in its judgment would serve the purpose of review of the
Director's decision.
(e) The Commission may adopt, modify, or set aside the findings,
conclusions, conditions or terms in the Director's decision and will
state the basis of its action in writing.

Sec. 76.68 Plant changes.

(a) The Corporation may make changes to the plant or to the plant's
operations without prior Commission approval provided all the
provisions of this section are met.
(1) The Corporation shall conduct a written safety analysis which
demonstrates that the changes would not result in undue risk to public
health and safety, the common defense and security, or to the
environment.
(2) The changes must be authorized by responsible management and
approved by the plant safety review committee.
(3) The changes must not decrease effectiveness of the plant's
safety, safeguards and security programs.
(4) The changes must not cause projections of the annual individual
or cumulative occupational radiation exposures to increase
significantly.
(5) The changes must not significantly affect the types of or
increase the amounts of effluent released offsite.
(6) The changes must not involve an unreviewed safety question.
(b) To ensure that the approved application remains current with
respect to the actual site description and that the plant's programs,
plans, policies, and operations are in place, the Corporation shall
submit revised pages to the approved application and safety analysis
report, marked and dated to indicate each change. These revisions must
be submitted within 90 days of their adoption as specified in
Sec. 76.33.
(c) The Corporation shall maintain records of changes in the plant
and of changes in the programs, plans, policies, procedures and
operations described in the approved application, and copies of the
safety analyses on which the changes were based. The records of plant
changes must be retained until the end of the plant's life. The records
of changes in procedures must be retained for a period of 2 years.
(d) The Corporation may at any time apply under Sec. 76.45 for
amendment of the certificate to cover proposed new or modified
activities not permitted by paragraph (a) of this section.

Sec. 76.70 Post issuance.

(a) Amendment of certificate terms and conditions. The terms and
conditions of a certificate of compliance or an approved compliance
plan are subject to modification by reason of amendments to the Act, or
by reason of rules, regulations, or orders issued in accordance with
the Act.
(b) Revocation, suspension, or amendments for cause. A certificate
of compliance or a compliance plan may be revoked, suspended, or
amended, in whole or in part for:
(1) Any material false statement in the application or statement of
fact required by the Commission in connection with the application;
(2) Conditions revealed by the application, or any report, record,
inspection, or other means which would warrant the Commission to refuse
to grant a certificate or approve a compliance plan on an original
application; and
(3) Violation of, or failure to observe any of, the applicable
terms and conditions of the Act, or the certificate of compliance, the
compliance plan, or of any rule, regulation, or order of the
Commission.
(c) Procedures governing amendment, revocation, or suspension.
(1) Except in cases of willfulness or those in which the public
health interest, common defense and security, or safety requires
otherwise, no certificate of compliance or compliance plan may be
amended, suspended, or revoked unless, before the institution of
proceedings therefor, facts or conduct which may warrant the action
must have been called to the attention of the Corporation in writing
and the Corporation shall have been accorded an opportunity to
demonstrate or achieve compliance with the lawful requirements related
to such action.
(2) In any proceeding to amend, revoke, or suspend a certificate of
compliance or compliance plan, the Commission shall provide the
Corporation and other interested persons with an opportunity to provide
written views to the Commission. The Commission shall consider these
views and may adopt by order further procedures for a hearing of the
issues before making a final enforcement decision.
(d) Additional information. At any time after the granting of a
certificate of compliance or approval of a compliance plan, the
Commission may require further statements from the Corporation in order
to enable the Commission to determine whether the certificate or
approved compliance plan should be modified or revoked.

Sec. 76.72 Miscellaneous procedural matters.

(a) The filing of any petitions for review or any responses thereto
shall be governed by the procedural requirements set forth in 10 CFR
2.701 (a) and (c), 2.708, 2.709, 2.710, 2.711, and 2.712. Additional
guidance regarding the filing and service of petitions for review of
the Director's decision and responses to such petitions may be provided
in the Director's decision or by order of the Commission.
(b) The Secretary of the Commission shall have the authority to
rule on procedural matters set forth in 10 CFR 2.772.
(c) There are no restrictions on ex parte communications or on the
ability of the NRC staff and the Commission to communicate with one
another at any stage of the regulatory process, with the exception that
the rules on ex parte communications and separation of functions set
forth in 10 CFR 2.780 and 2.781 shall apply to proceedings under 10 CFR
part 2, subpart G for imposition of a civil penalty.
(d) The procedures set forth in 10 CFR 2.205, Subpart B, and in 10
CFR 2.205, Subpart G, shall be applied in connection with NRC action to
impose a civil penalty pursuant to section 206 of the Energy
Reorganization Act of 1974 and the implementing regulations in 10 CFR
part 21 (Reporting of Defects and Noncompliance), as authorized by
section 1312(e) of the Atomic Energy Act of 1954, as amended;
(e) The procedures set forth in 10 CFR 2.206 shall apply to a
request by any person to institute a proceeding pursuant to Sec. 76.70
to amend, revoke, or suspend a certificate of compliance or approved
compliance plan, or for such other action as may be proper.

Sec. 76.76 Backfitting.

(a) (1) Backfitting is defined as the modification of, or addition
to, systems, structures, or components of a plant; or to the procedures
or organization required to operate a plant; any of which may result
from a new or amended provision in the Commission rules or the
imposition of a regulatory staff position interpreting the Commission
rules that is either new or different from a previous staff position.
(2) Except as provided in paragraph (a)(4) of this section, the
Commission shall require a systematic and documented analysis pursuant
to paragraph (c) of this section for backfits which it seeks to impose.
(3) Except as provided in paragraph (a)(4) of this section, the
Commission shall require the backfitting of a plant only when it
determines, based on the analysis described in paragraph (b) of this
section, that there is a substantial increase in the overall protection
of the public health and safety or the common defense and security to
be derived from the backfit and that the direct and indirect costs of
implementation for that plant are justified in view of this increased
protection.
(4) The provisions of paragraphs (a)(2) and (a)(3) of this section
are inapplicable and, therefore, backfit analysis is not required and
the standards in paragraph (a)(3) of this section do not apply where
the Commission or staff, as appropriate, finds and declares, with
appropriately documented evaluation for its finding, any of the
following:
(i) That a modification is necessary to bring a plant into
compliance with a certificate or the rules or orders of the Commission,
or into conformance with written commitments by the Corporation; or
(ii) That regulatory action is necessary to ensure that the plant
provides adequate protection to the health and safety of the public and
is in accord with the common defense and security; or
(iii) That the regulatory action involves defining or redefining
what level of protection to the public health and safety or common
defense and security should be regarded as adequate.
(5) The Commission shall always require the backfitting of a plant
if it determines that such regulatory action is necessary to ensure
that the plant provides adequate protection to the health and safety of
the public and is in accord with the common defense and security.
(6) The documented evaluation required by paragraph (a)(4) of this
section shall include a statement of the objectives of and reasons for
the modification and the basis for invoking the exception. If
immediately effective regulatory action is required, then the
documented evaluation may follow rather than precede the regulatory
action.
(7) If there are two or more ways to achieve compliance with a
certificate or the rules or orders of the Commission, or with written
Corporation commitments, or there are two or more ways to reach a level
of protection which is adequate, then ordinarily the Corporation is
free to choose the way which best suits its purposes. However, should
it be necessary or appropriate for the Commission to prescribe a
specific way to comply with its requirements or to achieve adequate
protection, then cost may be a factor in selecting the way, provided
that the objective of compliance or adequate protection is met.
(b) In reaching the determination required by paragraph (a)(3) of
this section, the Commission will consider how the backfit should be
scheduled in light of other ongoing regulatory activities at the plant
and, in addition, will consider information available concerning any of
the following factors as may be appropriate and any other information
relevant and material to the proposed backfit:
(1) Statement of the specific objectives that the proposed backfit
is designed to achieve;
(2) General description of the activity that would be required by
the Corporation in order to complete the backfit;
(3) Potential change in the risk to the public from the accidental
release of radioactive material;
(4) Potential impact on radiological exposure of facility
employees;
(5) Installation and continuing costs associated with the backfit,
including the cost of plant downtime;
(6) The potential safety impact of changes in plant or operational
complexity, including the relationship to proposed and existing
regulatory requirements;
(7) The estimated resource burden on the NRC associated with the
proposed backfit and the availability of such resources;
(8) The potential impact of differences in plant type, design or
age on the relevancy and practicality of the proposed backfit;
(9) Whether the proposed backfit is interim or final and, if
interim, the justification for imposing the proposed backfit on an
interim basis.
(c) No certificate will be withheld during the pendency of backfit
analyses required by the Commission's rules.
(d) The Executive Director for Operations shall be responsible for
implementation of this section, and all analyses required by this
section shall be approved by the Executive Director for Operations or
his designee.

Subpart D--Safety

Sec. 76.81 Authorized use of radioactive material.

The Corporation shall confine its possession and use of radioactive
material to the locations and purposes covered by the certificate or
approved compliance plan. Except as otherwise provided, the certificate
or approved compliance plan issued pursuant to the requirements in this
part entitles the Corporation to receive title to, own, acquire,
receive, possess, and use radioactive material in accordance with the
certificate.

Sec. 76.83 Transfer of radioactive material.

(a) The Corporation may not transfer radioactive material except as
authorized pursuant to this section.
(b) Except as otherwise provided and subject to the provisions of
paragraphs (c) and (d) of this section, the Corporation may transfer
radioactive material:
(1) From one component of the Corporation to another;
(2) To the Department;
(3) To the agency in any Agreement State which regulates
radioactive materials pursuant to an agreement with the Commission
under section 274 of the Act, if the quantity transferred is not
sufficient to form a critical mass;
(4) To any person exempt from the licensing requirements of the Act
and requirements in this part, to the extent permitted under such
exemption;
(5) To any person in an Agreement State, subject to the
jurisdiction of that State, who has been exempted from the licensing
requirements and regulations of that State, to the extent permitted
under the exemption;
(6) To any person authorized to receive such radioactive material
under terms of a specific license or a general license or their
equivalents issued by the Commission or an Agreement State;
(7) To any person abroad pursuant to an export license issued under
part 110 of this chapter; or
(8) As otherwise authorized by the Commission in writing.
(c) Before transferring radioactive material to any party specified
in paragraph (b) of this section, the Corporation shall verify that the
transferee is authorized to receive the type, form, and quantity of
radioactive material to be transferred.
(d) The following methods for the verification required by
paragraph (c) of this section are acceptable:
(1) The Corporation may have in its possession and read a current
copy of the transferee's specific license or confirmation of
registration. The Corporation shall retain a copy of each license or
confirmation for 3 years from the date that it was obtained.
(2) The Corporation shall have in its possession a written
confirmation by the transferee that the transferee is authorized by
license or registration confirmation to receive the type, form, and
quantity of special nuclear material to be transferred, specifying the
license or registration confirmation number, issuing agency, and
expiration date. The Corporation shall retain the written confirmation
as a record for 3 years from the date of receipt of the confirmation;
(3) For emergency shipments, the Corporation may accept a
certification by the transferee that he or she is authorized by license
or registration certification to receive the type, form, and quantity
of special nuclear material to be transferred, specifying the license
or registration number, issuing agency, and expiration date, provided
that the oral confirmat

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-3050. Public record. Not legal advice.