[Federal Register Volume 89, Number 164 (Friday, August 23, 2024)]
[Rules and Regulations]
[Pages 68083-68086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18669]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 37

[NRC-2023-0030]


Interim Enforcement Policy for Dispositioning Violations With 
Respect to Large Components or Robust Structures Containing Category 1 
or Category 2 Quantities of Radioactive Material

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statement; issuance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing an 
Interim Enforcement Policy that allows staff to exercise enforcement 
discretion for certain violations of regulations involving robust 
structures containing category 1 or category 2 quantities of 
radioactive material, or to large components containing category 1 or 2 
quantities of radioactive material, provided the licensee meets certain 
conditions.

DATES: The policy statement is effective on August 23, 2024.

ADDRESSES: Please refer to Docket ID NRC-2023-0030 when contacting the 
NRC about the availability of information for this action. You may 
obtain publicly available information related to this action by any of 
the following methods:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2023-0030. Address 
questions about NRC dockets to Helen Chang; telephone: 301-415-3228; 
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 https://www.nrc.gov/reading-rm/adams.html. To begin the search, 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, at 301-415-4737, 
or by email to [email protected]. The Enforcement Policy is 
available in ADAMS under Accession No. ML23333A447.
     NRC's PDR: The PDR, where you may examine and order copies 
of publicly available documents, is open by appointment. To make an 
appointment to visit the PDR, please send an email to 
[email protected] or call 1-800-397-4209 or 301-415-4737, between 8 
a.m. and 4 p.m. eastern time, Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: David Furst, Office of Enforcement; 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone: 301-287-9087; email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On June 15, 2010 (75 FR 33901), the NRC issued the proposed rule 
``Physical Protection of Byproduct Material,'' for an initial public 
comment period. The agency subsequently published an extension notice 
on October 8, 2010 (75 FR 62330), which extended the public comment 
period until January 18, 2011.
    Several commenters expressed concern about extending applicability 
for the proposed rule beyond byproduct material licensees to power 
reactor licensees. Specifically, the commenters stated that extending 
the requirements to large components or radioactive storage facilities 
located at power reactor plant sites appeared unwarranted. Accordingly, 
they recommended limiting the applicability of the rule to exclude 
large components and radioactive storage facilities and developing an 
appropriate threshold to exempt single items or items of aggregated 
quantities of large volume or weight, such that exemption requests 
would not be necessary and the security provisions of part 37 of title 
10 of the Code of Federal Regulations (10 CFR) would not apply.
    The NRC agreed, in part, with the commenters and determined that it 
is appropriate to include a partial exemption in the regulation instead 
of treating exemption requests on a case-by-case basis. The staff added 
paragraph (c) to Sec.  37.11, ``Specific exemptions,'' to address 
radioactive waste materials. The provision does require the application 
of some security measures to waste exempted under Sec.  37.11, but the 
majority of 10 CFR part 37 requirements would not apply. Security 
measures include the use of continuous physical

[[Page 68084]]

barriers, alarmed locked gates or doors, and assessment of and response 
to unauthorized entry. However, as described further below, the 
exemption does not cover large components or robust structures 
containing category 1 or category 2 quantities of radioactive material.
    On March 19, 2013 (78 FR 16922), the NRC issued a final rule 
establishing 10 CFR part 37. The rule establishes physical protection 
requirements for licensees in possession of aggregated quantities of 
category 1 or category 2 radioactive material listed in Appendix A, 
``Category 1 and Category 2 Radioactive Materials,'' to 10 CFR part 37. 
These requirements are similar to those previously imposed by orders 
from the NRC and Agreement States after September 11, 2001. The NRC 
licensees were required to be in compliance with the rule by March 19, 
2014.
    On March 13, 2014, before the compliance date for 10 CFR part 37, 
the NRC issued Enforcement Guidance Memorandum (EGM)-14-001, ``Interim 
Guidance for Dispositioning 10 CFR part 37 Violations with Respect to 
Large Components or Robust Structures Containing Category 1 or Category 
2 Quantities of Material at Power Reactor Facilities Licensed Under 10 
CFR parts 50 and 52 (RIN 3150-AI12)'' (ML14056A151). This EGM allows 
the staff to exercise enforcement discretion with respect to large 
components (i.e., steam generators, steam dryers, turbine rotors, 
reactor vessels, reactor vessel heads, reactor coolant pumps, and 
shielding blocks) containing category 1 or category 2 quantities of 
radioactive material, and category 1 and category 2 quantities of 
radioactive material stored in robust structures such as a mausoleum 
(i.e., closed concrete bunker or modular vault, for which the 
radioactive materials within can only be accessed using heavy equipment 
to remove structural components or large access blocks that weigh 2,000 
kilograms or more) at power reactor facilities licensed under 10 CFR 
part 50 or 10 CFR part 52. The NRC staff developed and issued EGM-14-
001 with input from staff subject matter experts and licensees, 
indicating that even with the addition of Sec.  37.11(c), these 
licensees cannot reasonably meet the reduced security requirements of 
Sec.  37.11(c) due to the locations of these storage facilities and the 
infrastructure needed.
    On June 12, 2014, the Nuclear Energy Institute (NEI) submitted a 
Petition for Rulemaking (PRM)-37-1, identifying three issues and 
requesting that the NRC amend 10 CFR part 37 to clarify and expand 
current exemptions in Sec.  37.11 for when the physical protection 
measures for category 1 and category 2 quantities of radioactive 
material do not apply to a power reactor licensee. NEI stated that both 
licensees and the NRC have encountered significant problems with Sec.  
37.11 that can only practically be remedied with a rulemaking. 
Specifically, NEI requested that the NRC revise the exemptions in Sec.  
37.11(b) and (c) and add a new paragraph (d) to address the issues 
identified in EGM-14-001. NEI indicated that the exemption in Sec.  
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. NEI stated that a rulemaking to codify EGM-
14-001's rationale would recognize the practicalities mitigating the 
actual risk of theft or diversion and would avoid the long-term use of 
enforcement discretion and case-by-case exemption in this area.
    On June 12, 2015 (80 FR 33450), the NRC issued a Federal Register 
notice stating that it had reviewed the petition and related public 
comments and agreed to consider the issue raised in the rulemaking 
process. In the interim, EGM-14-001 would address large components and 
storage of radioactive material in robust structures.
    In January 2022, regional management requested that the Office of 
Enforcement revise EGM-14-001 to incorporate a few minor editorial 
changes and to remove the requirement to bring these enforcement 
actions to an enforcement panel before allowing the staff to exercise 
enforcement discretion under the EGM. Additionally, the staff 
considered the potential risks presented by extended reliance on an EGM 
absent a clearly defined plan to restore compliance through the 
regulatory process.
    EGM-14-001 has been executed approximately 20 times since its 
inception and has been in place longer than originally envisioned, 
primarily because of the lower priority of this rulemaking compared to 
other work and rulemaking activities. The staff is currently developing 
a rulemaking plan that would request Commission approval to initiate a 
rulemaking that would amend 10 CFR part 37 to address requirements for 
unescorted access, notification of legal actions, and coordination with 
law enforcement at temporary sites; specify time periods for advance 
license verifications; and require the development of implementing 
procedures associated with the shipment of radioactive materials. This 
rulemaking would also address the issues raised by NEI in PRM-37-1.

II. Discussion

    EGMs are intended to provide temporary guidance and are typically 
put in place for relatively short periods of time. Pending the active 
pursuit of the Part 37 rulemaking, it would be appropriate and 
advantageous to issue an Interim Enforcement Policy (IEP) to allow 
continued enforcement discretion until the underlying technical issue 
is dispositioned through rulemaking or other regulatory action. IEPs 
provide an avenue to establish policy, allowing them to be in place for 
longer periods of time than EGMs and providing for increased regulatory 
clarity because they are approved by the Commission as a policy matter. 
IEPs also offer enhanced openness because they are published in the 
Federal Register to provide broad awareness among stakeholders and 
incorporated in the Enforcement Policy. This IEP addresses the need and 
would allow the staff to continue to exercise enforcement discretion 
and not issue a notice of violation pending rulemaking or other 
appropriate regulatory action.
    After a review of how 10 CFR part 37 requirements apply to large 
components and category 1 or category 2 quantities of radioactive 
material stored in robust structures, and after interactions with 
stakeholders in public meetings, the staff has determined that 
enforcement discretion, under certain conditions, is appropriate for 
some violations of part 37 at power reactor facilities while rulemaking 
or appropriate regulatory action is considered.
    For this Interim Enforcement Policy (IEP), a large component is 
defined as an item weighing 2,000 kilograms or more but not containing 
either discrete sources or ion-exchange resins. In this context, large 
components typically include steam generators, steam dryers, turbine 
rotors, reactor vessels, reactor vessel heads, reactor coolant pumps, 
and shielding blocks. Due to their size and weight, these large 
components are not easily moved without cranes, rigging, and heavy 
equipment. In addition, these large components are not easily concealed 
during loading or when they are in motion, and the amount of time 
required to steal or divert these large components is such that it is 
reasonable to expect that the licensee would detect these activities.
    For this IEP, a robust structure is defined as a closed concrete 
bunker or modular vault, for which the radioactive materials contained 
within can only be accessed using heavy equipment to

[[Page 68085]]

remove structural components or large access blocks that weigh 2,000 
kilograms or more. Access to these robust structures requires 
significant execution time. Typically, routine work activities, 
observation by licensees' authorized individuals located within or 
close to these robust structures, or observation by licensees' 
authorized individuals conducted in accordance with Sec.  
73.55(i)(5)(ii) requirements, make it likely that licensees would 
detect actual or attempted theft and diversion considering the time 
needed to accomplish these activities. The definitions of ``large 
component'' and ``robust structure'' used in this IEP are identical to 
those successfully used for several years under EGM-14-001 and to date 
are sufficient to address past or future violations until the 
underlying technical issue is dispositioned through a rulemaking or 
other regulatory action.
    Under this IEP, the staff will typically exercise enforcement 
discretion and not issue a notice of violation pursuant to Sec.  
37.11(c)(1) and (2), ``Specific exemptions,'' or 10 CFR part 37 Subpart 
B, ``Background Investigations and Access Authorization Program,'' 
Subpart C, ``Physical Protection Requirements During Use,'' and Subpart 
D, ``Physical Protection in Transit,'' except for violations of 10 CFR 
37.43(c), ``General security program requirements--Training''; 10 CFR 
37.45, ``LLEA coordination''; 10 CFR 37.49(b), ``Monitoring, detection, 
and assessment''; 10 CFR 37.49(d), ``Response''; 10 CFR 37.57, 
``Reporting of events''; and 10 CFR 37.81, ``Reporting of events,'' 
involving robust structures containing category 1 or category 2 
quantities of radioactive material, or to large components containing 
category 1 or 2 quantities of radioactive material.
    Discretion will be typically exercised if the licensee meets these 
conditions: (1) has identified in writing those large components and 
robust structures that contain category 1 or category 2 quantities of 
radioactive material, for which it is not in compliance with 10 CFR 
part 37, (2) has an approved 10 CFR part 73 security plan or a written 
10 CFR part 37 security plan that provides security measures adequate 
to detect, assess, and respond to actual or attempted theft or 
diversion, as well as a written analysis that considers the time needed 
to accomplish these activities given the proximity and mobility of the 
equipment available for those large components and robust structures 
identified above, and (3) has a written analysis documenting that the 
measures above do not decrease the effectiveness of the 10 CFR part 73 
security plan.
    An enforcement panel (i.e., a meeting to align on an enforcement 
approach for characterizing and issuing enforcement actions) is not 
required to disposition a violation using this discretion; however, 
each time discretion is granted, an enforcement action number will be 
assigned to document the use of discretion under this IEP. This 
discretion is not limited to the initial inspection identifying the 
noncompliance and can be applied to subsequent inspections, provided 
that all the criteria continue to be met.
    Licensees must comply with all other requirements, as applicable, 
unless explicitly replaced or amended through this interim policy.
    Licensees can submit a request for a specific exemption, as 
described in Sec.  37.11(a), for material that may not be included in 
the definitions above. If a licensee submits such a request for a 
component weighing 2,000 kilograms or more that does not contain either 
discrete sources or ion-exchange resins, or for a structure 
sufficiently robust that it would take significant time to access the 
material inside, and the request is submitted before the NRC inspects 
the licensee's facility, the NRC will postpone an enforcement decision 
until the NRC staff completes its review of the exemption request. If 
the NRC grants the exemption request, it will also consider enforcement 
discretion for any prior violation remedied by the exemption. If the 
NRC denies, or the licensee withdraws, the exemption request, the NRC 
will disposition the violation through the enforcement process.
    The NRC intends to keep this interim policy in place until the 
underlying technical issue is dispositioned through rulemaking or other 
regulatory action.
    Accordingly, the NRC has revised its Enforcement Policy to read as 
follows:

III. Interim NRC Enforcement Policy

9.3 Enforcement Discretion for Physical Protection of Category 1 and 
Category 2 Quantities of Radioactive Material (10 CFR Part 37)

    This section sets forth the IEP that the NRC will use to exercise 
enforcement discretion for certain noncompliances with the requirements 
of 10 CFR part 37, ``Physical Protection of Category 1 and Category 2 
Quantities of Radioactive Material,'' involving large components 
containing category 1 or category 2 quantities of radioactive material, 
or category 1 or category 2 quantities of radioactive material stored 
in robust structures at power reactor facilities licensed under 10 CFR 
part 50, ``Domestic Licensing of Production and Utilization 
Facilities,'' or 10 CFR part 52, ``Licenses, Certifications, and 
Approvals for Nuclear Power Plants.''
    For this IEP, a large component is defined as an item weighing 
2,000 kilograms or more that does not contain either discrete sources 
or ion-exchange resins. In this context, large components typically 
include steam generators, steam dryers, turbine rotors, reactor 
vessels, reactor vessel heads, reactor coolant pumps, and shielding 
blocks. Due to their size and weight, these large components are not 
easily moved without cranes, rigging, and heavy equipment. In addition, 
these large components are not easily concealed during loading or when 
they are in motion, and the amount of time required to steal or divert 
these large components is such that it is reasonable to expect that the 
licensee would detect these activities.
    For this IEP, a robust structure is defined as a closed concrete 
bunker or modular vault for which the radioactive materials contained 
within the structure can only be accessed using heavy equipment to 
remove structural components or large access blocks weighing 2,000 
kilograms or more. Access to these robust structures requires 
significant execution time. Typically, routine work activities, 
observation by licensees' authorized individuals located within or 
close to these robust structures, or observation by licensees' 
authorized individuals conducted in accordance with 10 CFR 
73.55(i)(5)(ii) requirements make it likely that any actual or 
attempted theft and diversion would be detected, considering the time 
needed to accomplish these activities. This IEP's definitions of 
``large component'' and ``robust structure'' are identical to those 
used successfully for several years under Enforcement Guidance 
Memorandum (EGM)-14-001, ``Interim Guidance for Dispositioning 10 CFR 
part 37 Violations with Respect to Large Components or Robust 
Structures Containing Category 1 or Category 2 Quantities of Material 
at Power Reactor Facilities Licensed Under 10 CFR parts 50 and 52 (RIN 
3150-AI12),'' dated March 13, 2014 (Agencywide Document Access and 
Management System (ADAMS) Accession No. ML14056A151), and to date have 
proven sufficient to address past or future violations until the 
underlying technical issue is dispositioned through rulemaking or other 
regulatory action.
    Under this IEP, the NRC will typically exercise enforcement 
discretion and not issue a notice of violation pursuant to 10 CFR 
37.11(c)(1) and (2), ``Specific

[[Page 68086]]

exemptions,'' or 10 CFR part 37 Subpart B, ``Background Investigations 
and Access Authorization Program,'' Subpart C, ``Physical Protection 
Requirements During Use,'' and Subpart D, ``Physical Protection in 
Transit,'' except for violations of 10 CFR 37.43(c), ``General security 
program requirements--Training''; 10 CFR 37.45, ``LLEA coordination''; 
10 CFR 37.49(b), ``Monitoring, detection, and assessment''; 10 CFR 
37.49(d), ``Response''; 10 CFR 37.57, ``Reporting of events''; and 10 
CFR 37.81, ``Reporting of events,'' involving robust structures 
containing category 1 or category 2 quantities of radioactive material, 
or to large components containing category 1 or 2 quantities of 
radioactive material, if the licensee meets the following conditions:
     The licensee has identified in writing those large 
components and robust structures that contain category 1 or category 2 
quantities of radioactive material for which it is not in compliance 
with 10 CFR part 37.
     The licensee has an approved 10 CFR part 73 security plan 
or a written 10 CFR part 37 security plan that provides security 
measures adequate to detect, assess, and respond to actual or attempted 
theft or diversion, as well as a written analysis that considers the 
time needed to accomplish these activities given the proximity and 
mobility of the equipment available for those large components and 
robust structures identified above.
     The licensee has a written analysis documenting that the 
measures above do not decrease the effectiveness of the 10 CFR part 73 
security plan.
    An enforcement panel is not required to disposition a noncompliance 
using this discretion; however, each time discretion is granted, an 
enforcement action number will be assigned to document the use of 
discretion under this IEP. This discretion is not limited to the 
initial inspection identifying a noncompliance and can be applied to 
subsequent inspections, provided that all the criteria continue to be 
met.
    Licensees must comply with all other requirements, as applicable, 
unless explicitly replaced or amended through this interim policy.
    Licensees can submit a request for a specific exemption, as 
described in 10 CFR 37.11(a), for material that may not be included in 
the definitions above. If a licensee submits such a request for a 
component weighing 2,000 kilograms or more that does not contain either 
discrete sources or ion-exchange resins, or for a structure 
sufficiently robust that it would take significant time to access the 
material inside, and the request is submitted before the NRC inspects 
the licensee's facility, the NRC will postpone an enforcement decision 
until the NRC staff completes its review of the exemption request. If 
the NRC grants the exemption request, it will also consider enforcement 
discretion for any prior violation remedied by the exemption. If the 
NRC denies, or the licensee withdraws, the exemption request, the NRC 
will disposition the violation through the enforcement process.
    This interim policy will remain in place until the underlying 
technical issue is dispositioned through rulemaking or other regulatory 
action.

IV. Paperwork Reduction Act

    This revision to the Policy does not contain any new or amended 
collections of information subject to the Paperwork Reduction Act of 
1995 (44 U.S.C. 3501 et seq.). Existing collections of information were 
approved by the Office of Management and Budget, approval numbers 3150-
0136 and 3150-0214.

V. Public Protection Notification

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

VI. Congressional Review Act

    This policy is a rule as defined in the Congressional Review Act (5 
U.S.C. 801-808). However, the Office of Management and Budget has not 
found it to be a major rule as defined in the Congressional Review Act.

    Dated: August 15, 2024.

    For the Nuclear Regulatory Commission.
Carrie Safford,
Secretary of the Commission.
[FR Doc. 2024-18669 Filed 8-22-24; 8:45 am]
BILLING CODE 7590-01-P