[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]
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