80 FR 33450 - Physical Protection of Category 1 and Category 2 Quantities of Radioactive Materials

NUCLEAR REGULATORY COMMISSION

Federal Register Volume 80, Issue 113 (June 12, 2015)

The U.S. Nuclear Regulatory Commission (NRC) will consider in the rulemaking process three issues raised in a petition for rulemaking (PRM), PRM-37-1, submitted by Anthony Pietrangelo, on behalf of the Nuclear Energy Institute (NEI or the petitioner). The petitioner requests that the NRC amend its regulations to clarify and expand current exemptions for when the physical protection measures for category 1 and category 2 quantities of radioactive material do not apply to a licensee.

[Federal Register Volume 80, Number 113 (Friday, June 12, 2015)]
[Proposed Rules]
[Pages 33450-33451]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-14422]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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

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Federal Register / Vol. 80, No. 113 / Friday, June 12, 2015 / 
Proposed Rules

[[Page 33450]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 37

[Docket Nos. PRM-37-1; NRC-2014-0172; NRC-2015-0094]


Physical Protection of Category 1 and Category 2 Quantities of 
Radioactive Materials

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; consideration in the rulemaking 
process.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) will consider in 
the rulemaking process three issues raised in a petition for rulemaking 
(PRM), PRM-37-1, submitted by Anthony Pietrangelo, on behalf of the 
Nuclear Energy Institute (NEI or the petitioner). The petitioner 
requests that the NRC amend its regulations to clarify and expand 
current exemptions for when the physical protection measures for 
category 1 and category 2 quantities of radioactive material do not 
apply to a licensee.

DATES: The docket for the petition, PRM-37-1, is closed on June 12, 
2015.

ADDRESSES: Further NRC action on the issues raised by this petition can 
be found on the Federal rulemaking Web site at http://www.regulations.gov by searching on Docket ID NRC-2015-0094, which is 
the identification for the potential future rulemaking.
    Please refer to the petition Docket ID NRC-2014-0172 when 
contacting the NRC about the availability of information regarding this 
petition. You can obtain publicly-available documents related to this 
petition by using any of the following methods:
     Federal Rulemaking Web site: Go to: http://www.regulations.gov and search for the petition Docket ID NRC-2014-
0172. Address questions about NRC dockets to Carol Gallagher; 
telephone: 301-415-3463; email: [email protected]. For technical 
questions, contact the individual listed in the FOR FURTHER INFORMATION 
CONTACT section of this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and 
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS, 
please contact the NRC's Public Document Room (PDR) reference staff at 
1-800-397-4209, 301-415-4737, or by email to [email protected]. The 
ADAMS accession number for each document referenced (if it is available 
in ADAMS) is provided the first time that a document is referenced.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Cardelia Maupin, Office of Nuclear 
Material Safety and Safeguards, telephone: 301-415-2312; email: 
[email protected]; U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION: 

I. The Petition

    The NRC received and docketed a petition for rulemaking (ADAMS 
Accession No. ML14199A570) dated June 12, 2014, filed by Anthony R. 
Pietrangelo on behalf of the NEI. On October 28, 2014 (79 FR 64149) the 
NRC published a notice of docketing and request for comment on the 
petition. The petitioner requests that the NRC amend part 37 of Title 
10 of the Code of Federal Regulations (10 CFR), ``Physical Protection 
of Category 1 and Category 2 Quantities of Radioactive Material,'' to 
clarify and expand current exemptions in 10 CFR 37.11 for when the 
physical protection measures for category 1 and category 2 quantities 
of radioactive material do not apply to a licensee. The petitioner 
states that both licensees and the NRC have encountered significant 
problems with 10 CFR 37.11 that can only practically be remedied with a 
rulemaking. Specifically, the petitioner requests that the exemptions 
in 10 CFR 37.11(b) and (c) be revised and that a new 10 CFR 37.11(d) be 
added. The petitioner states that the exemption in 10 CFR 37.11(b) 
needs to be revised to remove undue regulatory burden on licensees with 
established physical security programs required by 10 CFR part 73, 
``Physical Protection of Plants and Materials.'' The petitioner states 
the exemption should provide for a more direct recognition of the 
extent to which facilities with robust 10 CFR part 73 security programs 
already meet the objectives set forth in 10 CFR part 37 and inherently 
protect category 1 and category 2 quantities of radioactive material. 
The petitioner states that the exemption in 10 CFR 37.11(c) needs to be 
revised to improve its clarity, provide greater regulatory certainty, 
and ensure licensees implement 10 CFR part 37 consistent with the NRC's 
intent as expressed in regulatory guidance. Lastly, the petitioner 
states that a new exemption is needed to address the technical issues 
identified in Enforcement Guidance Memorandum (EGM) EGM-14-001, 
``Interim Guidance for Dispositioning 10 CFR part 37 Inspection 
Findings with Respect to Large Components and Robust Structures at 
Facilities Licensed Under 10 CFR parts 50 and 52,'' (ADAMS Accession 
No. ML14056A151) for large components and material stored in robust 
structures.

II. Public Comments on the Petition

    The NRC solicited public comment through the notice of docketing 
and request for comment. The comment period closed on January 12, 2015. 
The NRC received seven comment letters. All seven letters were from 
members or representatives of the nuclear industry. The public comments 
supported NEI's request for rulemaking and urged the NRC to promptly 
initiate rulemaking to implement the changes proposed in the petition.
    In addition to supporting the statements in NEI's PRM, some of the 
commenters also raised additional points in support of the petition. 
One commenter provided examples of some of the differences between 10 
CFR part 37 and 10 CFR part 73 that the commenter did not believe 
resulted in an increased level of protection for category 1 or category 
2 quantities of radioactive materials at power reactors, but must be 
addressed by licensees under 10 CFR part 37. Two commenters requested 
that the suggested change for

[[Page 33451]]

large components and material stored in robust structures be expanded 
to include waste materials. One of the commenters suggested the 
inclusion of a dose rate criterion in the exemption.
    The NRC considered the public comments in its analysis of the 
petition.

III. NRC Analysis

    This section presents the three issues raised by the petitioner 
followed by the NRC's analysis of the issues.

Issue 1: Revise the Exemption in 10 CFR 37.11(b)

    The petitioner requests that 10 CFR 37.11(b) be amended to allow 
for byproduct material kept within any area for which 10 CFR part 73 
requires access control to be exempted from 10 CFR part 37 requirements 
regardless of whether the byproduct material ``activities'' are 
specifically ``included in'' a 10 CFR part 73 security plan. The 
petitioner states that the exemption should recognize the extent to 
which the physical protection requirements in 10 CFR part 73 meet or 
exceed the requirements of 10 CFR part 37, so there is no need for any 
additional security measures or documentation in the 10 CFR part 73 
security plan. The petitioner asserts that 10 CFR part 37 currently 
imposes undue burden on licensees that should be alleviated through a 
rulemaking.
    NRC Response to Issue 1: The NRC will consider Issue 1 in the 
rulemaking process. The NRC agrees that the language in 10 CFR 37.11(b) 
and the accompanying guidance in NUREG-2155, ``Implementation Guidance 
for 10 CFR part 37 Physical Protection of Category I and Category 2 
Quantities of Radioactive Material'' (ADAMS Accession No. ML13053A061), 
could be clarified as to what is being exempted and what action, if 
any, a licensee with a 10 CFR part 73 security plan needs to take to 
use the exemption. The exact wording of a revision to paragraph (b), if 
any, and the associated implications for the guidance document (NUREG-
2155), would be determined during the rulemaking process.

Issue 2: Revise the Exemption in 10 CFR 37.11(c)

    The petitioner requests that 10 CFR 37.11(c) be modified to remove 
any ambiguity as to what type of wastes the exemption applies. The 
petitioner states that the language is difficult to understand and has 
prompted numerous inquiries and many discussions among NRC and the 
nuclear industry. The petitioner notes that the NRC's guidance 
document, NUREG-2155, does clarify the ambiguity; however, the 
petitioner states that the NRC should provide licensees and the public 
with greater regulatory certainty by clarifying the provision in the 
regulations.
    NRC Response to Issue 2: The NRC will consider Issue 2 in the 
rulemaking process. The petitioner raises regulatory stability and 
predictability concerns with respect to the language of the exemption 
provision. The NRC notes that the guidance in NUREG-2155 does clarify 
the intent of the exemption provision; however, the NRC agrees that the 
regulatory language should be clear.

Issue 3: Add an Exemption To Address Large Components and Storage in 
Robust Structures

    The petitioner requests that 10 CFR 37.11 be revised to include a 
new paragraph (d) that would address large components and storage of 
radioactive material in robust structures. The petitioner states that 
the exemption in 10 CFR 37.11(c) only addresses waste material, and 
therefore, large components and non-waste material stored in robust 
structures that present a similar or lower risk for theft or diversion 
are not exempt from the 10 CFR part 37 requirements. The petitioner 
notes that as part of the 10 CFR part 37 implementation process, the 
NRC recognized this material as low risk and issued EGM-14-001 to 
address large components and storage of material in robust structures. 
The petitioner states that a rulemaking to codify the EGM's rationale 
would recognize the practicalities militating against theft or 
diversion and would avoid the long-term use of enforcement discretion 
and case-by-case exemption in this area. The petitioner also states 
that definitions for ``large component'' and ``robust structure'' 
should be added to the regulations.
    NRC Response to Issue 3: The NRC will consider Issue 3 in the 
rulemaking process. The NRC has issued enforcement guidance (EGM-14-
001) to address large components and storage of radioactive material in 
robust structures. The EGM states that it will remain effective until 
the underlying technical issue is dispositioned through rulemaking or 
other regulatory action.

IV. Determination of Petition

    The NRC has reviewed the petition and related public comments. 
Based on its review, the NRC will consider the three issues raised in 
the petition in the rulemaking process. The docket for the petition, 
PRM-37-1, is closed.
    Further NRC action on the issues raised in PRM-37-1 can be 
monitored on the Federal rulemaking Web site, http://www.regulations.gov, by searching on Docket ID NRC-2015-0094, which is 
the Docket ID for the potential future rulemaking. In addition, the 
Federal rulemaking Web site allows you to receive alerts when changes 
or additions occur in a docket folder. To subscribe to alerts: (1) 
Navigate to the docket folder (NRC-2015-0094); (2) click the ``Sign up 
for Email Alerts'' link; and (3) enter your email address and select 
how frequently you would like to receive emails (daily, weekly, or 
monthly). The NRC also tracks all PRMs and rulemaking actions on its 
Web site at http://www.nrc.gov/reading-rm/doc-collections/rulemaking-ruleforum/petitions-by-year.html and on the Federal rulemaking Web 
site, http://www.regulations.gov.

    Dated at Rockville, Maryland, this 2nd day June, 2015.

    For the Nuclear Regulatory Commission.
Michael R. Johnson,
Acting Executive Director for Operations.
[FR Doc. 2015-14422 Filed 6-11-15; 8:45 am]
 BILLING CODE 7590-01-P