ML20113G621
| ML20113G621 | |
| Person / Time | |
|---|---|
| Site: | 05000142 |
| Issue date: | 11/18/1983 |
| From: | Gray J NRC |
| To: | Christenbury E NRC |
| Shared Package | |
| ML20113G428 | List: |
| References | |
| FOIA-84-198 NUDOCS 8501240443 | |
| Download: ML20113G621 (1) | |
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November 18, 1983 P
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Note to:
E.S. Christenbury From:
J.R. Gray
SUBJECT:
PROPOSED RULEMAKING " CLARIFYING" PHYSICAL PROTECTION REQUIREMENTS OF 10 CFR 73.40(a)
Pursuant to your request I have examined the package for proposed rulemaking which would "clarifv" the physical protection requirements in 10 CFR 73.40(a) to make it clear that the reference in section 73.40(a) to physical protection against sabotage and theft is a general provision only and is to be applied only to the extent of the more detailed requirements of other specific sections of Part 73 applicable to particular classes of licenses. The need for this " clarification" arose from the Licensing Board's ruling in the UCLA research reactor OL renewal proceeding that licensees subject to the more specific requirements of 10 CFR 73.67 (which mentions protection against theft but not against sabotage) ri1ust comply with the general requirements of section 73.40(a) and provide protection against both theft and sabotage.
From my review of the package I believe that the characterization of the UCLA Board's ruling is accurate.
If the intended interpretation of the regulations is as stated by the staff, the proposed " clarifying" rule change is appropriate.
My only comment has to do with the timing and method of promulgating the rule change.
As proposed, this rule change follows close on the heels of the UCLA Licensing Board's ruling and would be promulgated by the party that lost on the issue in the UCLA proceeding (since the proposal is to have the EDO issue the rule under 10 CFR 1.40(d)). While that action would be legal, the appearance of the staff, dissatisfied with a Licensing Board ruling, rushing off to change the regulation to suit itself is not good.
For this reason, it would appear to me to be better to have this rulemaking per~ formed by the Comission rather than the EDO.
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RJDube CJWithee MEMORA'iDUM FOR: Addressecs FROM:
Robert F. Burnett, Director Division of Safeguards, NMSS SU3 JECT:
CLARIFICATION OF GENERAL PHYSICAL PROTECTION REQUIREME 'T (73.40(a))
Attached for your co.'xnent and/or concurrence is a proposed rule package containing a clarifying amend:.ent to paracraph 73.40(a).
This package will be transmitted to the EDO for his approval of publication in the Federal Register for coment.
A discussion of the basis for this action, a Federal Register Notice, and a Regulatory Analysis are included in the package.
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The amendnent will clarify the Comission's policy and practice regarding the,
intent of paragraph 73.40(a).
Under current licensing practice, the reference'in 73.40(a) to physical protection against sabotege and against theft is a general provision and is only applied to the extent of the more detailed requirements contained in other sections of Part 73 which address specific classes of licensees.
Thus, a licensee's physical protection plan r.ust treat sabotage, theft, or both only to the degree required by other detailed sections of Part 73. This amenhent is being proposed because a recent ruling by an Atomic Safety and Licensing Board has made a different interpretation of the language in.73.40(a).
Your concurrence on this clarifying amendment is requested by November 16,19S3.
If your formal reply will not reach us by the requested date, please give us advanced notice by telephone.
Also, if you have any issues which need to be resolved, we would appreciate notification as soon as possible to Carl Withee at 427-4040.
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T Robert F. Burnett, Director Division of Safeguards, U!iSS Attachents:
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Addressees:
Guy H. Cunningham, Executive Legal Director Office of Executive Legal Director Darrell G. Eisenhut, Director Division of Licensing, NRR
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Karl R. Goller, Director Division of Facility Operations, RES James G. Partlow, Acting Director Division of Quality Assurance, Safeguards and Inspection Programs, IE Thomas E. Murley, Regional Administrator, Region I James P. 05Reilly, Regional Administrator, Region II James G. Keppler, Regional Administrator, Region III
' John T. Collins, Regional Administrator, Region IV John B. Martin, Regional Administrator, Region V O
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_ BASIS FOR PROPOSED AMENDMENT TO 10 CFR 73.40(a)-
The staff is proposing to amend the general physical protection requirement in paragraph _73.40(a) of 10,CFR to clarify and codify the pplicy and practice regarding the application of this paragraph.
This action is necessary because of'a recent diffasseg interpretation of this provision by an Atomic Safety and Licensing Board.
i Paragraph 10 CFR 73.40(a) currently states that "Each licensee shall provide physical protection against radiological sabotage and against theft of special nuclear material at the fixed sites where licensed activities are conducted.
i Physical security systems shall be established and maintained by the licensee in accordance with security plans approved by the Nuclear Regulatory Commission."
This provision is used only as a general statement of the need for physical protection and not as a detailed requirement.
The more detailed physical j
protection requirements for each class of licensed facility or material are
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presented in other sections of Part 73 of 10 CFR.
It has been staff's policy and practice to provide detailed requirements in the other sections of 10 CFR Part 73 that are sufficient to define the extent to which protection against sabotage or theft, or both, must be addressed by specific classes of licensees (i.e. if a licensee satisfies the detailed requirements in the section which applies to its specific class, the general requirement in 10 CFR 73.40(a) will be satisfied.)
This is the practice even when the detailed requirements mention only theft or only sabotage as a threat.- Physical security plans are evaluated and approved on this basis.
The sections of Part 73 which give more detailed physical protection requirements for fixed sites are as follows: 1) 73.20 and 73.45 apply'to fuel cycle facilities l
_ possessing formula quantities of strategic special nuclear material (Category I),
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- 2) 73.50 applies to independent storage of spent fuel, 3) 73.55 applies to l
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operating power reactors, 4) 73.60 applies to nonpower reactors possessing nonexempt quantities of Category I material, and 5) 73.67 applies to special nuclear material of moderate and low strategic. significance (Category II/III) and includes those nonpower reactors in these classes.
Section 73.20, which states the general performance objectives for 73.45, and Section 73.50 specifically include both theft and sabotage as threats.
The general performance paragraph of Section 73.55 only includes sabotage as a threat for operating power reactors, but the measures described in that section also provide substantial protection against theft.
In addition, the response paragraph of 73.55 specifically requires prevention or impeding of both theft and sabotage.
Section 73.60 mentions only the threat of theft for protection of nonpower reactors with nonexempt Category I material. This section contains the same requirements that were applied to all facilities' with Category I material before it was replaced by Sections 73.20 and 73.45 in 1979 and provides inherent capabilities against sabotage.
Thus, the first four sections discussed ei.ther mention both theft and sabotage in their detailed requirements or inherently provide some level of protec-tion against both.
This leaves Section 73.67.
The general performance objectives in 73.67 only address theft as a threat and there has been a long-standing policy that acts of sabotage are not included.
The issue of physical protection for Category II/III materials was first presented to the Comissioners in SECY 77-79.
Staff recomended that no specific protection measures should be required for dispersion scenarios.
The Commission approved the general approach by staff and gave the following direction:
"The grading of physical protection measures for nuclear material should be described in perspective to its potential weapons worth, particularly uranium enriched less than 20 percent in the isotope uranium-235 and plutonium and U-233 in quantities less than 2 Kgs."
3 P-On March 9,1978, staff submitted a proposed Category II/III rule to tiie Commission in SECY 78-142 and stated the following:
"Although nuclear materials might be involved in a threat to the public through a dispersion scenario, such as sabotage, SECY 77-79 states-the risk from dispersion of small or moderate quantities of nuclear materials (including irradiated materials) does not appear to pose a risk to the public sufficient to justify specific protec-tion measures for these materials at this time."
When staff submitted a final rule to the Commission on January 16, 1979 (SECY 79-38), the Commission paper stated that the proposed amendments did not include sabotage protection.
When the Commission approved publication of the final rule (Chilk's memo of June 28, 1979), staff was requested to take a closer look at the need for specific protection against sabotage in the rule.
In its reply to the Commission (Dircks' memo of August 13,1981), staff stated the following:
" Additional protection against sabotage or the dispersal of plutonium would not be justified since the potential consequences to the public health and safety possibly arising from these events would be no greater in magnitude than those which might occur from the use of unregulated chemical or biological agents.
The problem of sabotage of fuel in NPRs has been found to be minimal.
A Los Alamos National Scientific Laboratory study concluded that only one reactor has any 94
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.- potential of a ' dangerous radiological release from an act of sabotage and that reactor does not operate with either the frequency or at the power levels necessary for it to cause a public health and safety problem."
Thus, staff has not found it necessary to apply the threats of both sabotage and theft cited in Section 73.40(a) to all types of licensees and has relied upon the sections treating specific licensee classes to define the necessary physical protection measures for each class.
In a recent ruling (LBP-83-25A and LBP-83-6 ), an Atomic Safety and Licensing
/ Q -f-Board has held that a facility Uce.._ed und:r 10 CFR 73.67 must specifically treat both theft and sabotage in_i.ts_ phys 4"1 pmtectio plan even though
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n reaching its deci the Board did not rule on the degree of need for sabotage protection at facilities,.
- sr. der 10 CFR 73.67 nor the degree-to which measures that provide protection against theft also provide protection against sabotage. The Board based its decision solely on s reading and interpretation cf th; ir. tent U
ofthere_quiationsgiiswritt l@g.ye Board concluded that, because both the
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g threats of theft and sabotage are mentioned in the
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- 10 CFR 73.40(a) yT,. detailed requirements which cr.b ineni..un one of the threats l
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in the detailed requirements must be separately treated in a licensee's physical
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r protection plan.
The Board also ruled that, lacking specific requirements, the
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hearing process should de'termine the appropriate measures that should be applied,/
in the case at issue (UCLA) to protect against sabotage. Nhe Board went further j
l Isuggest that, if policy and practice differ from the Board's interpretation, the Commission should amend the regulation to be consistent.
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The Board's recent ruling has shown that confusion can result from the present wording of 10 CFR 73.40(a). # interpretat4ca af tha ran"leto y iatent, = h :s B
tation ld impact several classes' of licensees ; not just those li.m eo unuer 10 CFR 73.67.
Therefore, to avoid any future confusion, staff proposes to issue a clarification of ih; '_c.;.;;; ir-paragraph 73.40(a).
The proposed change is as follows:
573.40 Physical Protection.
General requirements at fixed sites.
(a)
Each li.censee shall provide physical protection at the fixed sites where licensed activities are conducted, either against radiological sabotage, or
[end] against theft of special nuclear material, or against both, as required by applicable regulations [at-the-fixed-sites-wheFe-liGERTred activities-are-eenducted] and in accordance with the specific recuirements contained in other sections of this Part applicable to the specific class of facility or material.
Physical security systems shal.1 be established and maintained by the licensee in accordance with security plans approved by the Nuclear Regulatory Commission.
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NUCLEAR RIGULATORY COMMISSION 10 CFR PART 73 Clarification of General Physical Protection Requirement e
AGENCY:
Nuclear Regulatory Commission.
ACTION:
Proposed Rule.
SUMMARY
The Nuclear Regulatory Comission is proposing to amend its general physical protection requirement for fixed sites to clarify that protection against sabotage or theft or both must be provided by a physical security system only as required by specific sections of 10 CFR Part 73 which apply to, designated crasses of facilities or material.
This action will clarify the Comission's policy regarding the rule's intent and will codify present application of the general physical protection requirement. This action is deemed necessary because a recent ruling by an Atomic Safety and Licensing Board has made an interpretation of the general requirement which is different from current policy and practice.
DATES:
Comments must be received on or before (sixty days)
Coments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.
ADDRESSES:
Comments or suggestions.regarding the proposed amendment should be sent to the Secretary of the Comission, U.S. Nuclear Regulatory Comision, Washington, DC 20555, Attention: Docketing and Service Branch or hand delivered between 8:15 AM and 5:00 PM to Rcom 1121, 1717 H Street, NW., Washington, DC.
Comments received will be available for examination and copying at the NRC Public Document Room at 1717 H Street, NW., Washington, DC 20555.
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FOR FURTHER INFORMATION CONTACT:
Dr. C. J. Withe &, Fuel Facility Safeguards Licensing Branch, Division of Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory.Comission, Washington, DC 20555, Telephone (301)-427-4040.
SUPPLEMENTARY INFORMATION:
The Nuclear Regulatory Comission is proposing to amend.its general physical protection requirement for fixed sites, paragraph 73.40(a) of 10 CFR, to clarify and codify its policy and practice regarding the application of this paragraph.
This action is necessary because of a recent differing interpretation of this provision by an Atomic Safety and Licensing Board.
Paragraph 10 CFR 73.40(a) curiently states that "Each licensee shall provide physical protection against radiological sabotage and against theft of special nuclear material at the fixed sites where licensed activities are conducted.
Physical security systems shall be established and maintained by the licensee in accordance with security plans approved by the Nuclear Regulatory Comission."
',s The Comission uses this provision only as a general statement of the need for physical protection and not as a detailed requirement.
The more detailed physical protection requirements for each class of licensed facility are pre-sented in other sections of Part 73 of 10 CFR.
It has been Comission policy and application that the detailed requirements in the other sections of 10 CFR Part 73 define the extent to which protection against sabotage or theft or both must be addressed by specific classes of licensees (i.e. if a licensee satisfies the detailed requirements in the section which applies to its specific class, the general need for physical protection as described in 10 CFR 73.40(a)
Nhw will be satisfied).
This p considered to be sufficient even when the detailed requirements mention only theft or only sabotage as a threat.
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. M In a recent ruling, an Atomic Saf and Licensi.ng Board M : held that a
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- : A *4 facility -li::ase-f _ad;r,10 CFR 73.67.must specifically t,reat both theft and sabotage in its physical protection plan even though Section 73.67 only mentions the threat of theft.Q io C-FK f HD(a.) f 2t2.W,
a In reaching its decision, the Board did not P
g rule on the degree of need for sabotage protection at facilities
- nw under 10 CFR 73.67 nor on the degree to which measures-that provide protection against theft also provide protection against sabotage.
The board based its decision solely on its reading and interpretation of the i-tert :f th:
regulations as wr I Board concluded that, because both the breats of theft and sabotage are mentioned in the 3.nerel pr:vi ier par:;r ph O-t10 CFR 73.40(a)l), detailed requirements which,or.ly.T.e..ticr. one of the nw aNdfenc'e, do not fully satisfy the general r
i e threat not mentioned
~ n n.n in the detailed requirements,must be separately treated in a licensee's physical protection plan.[The Board went further to suggest that, if the Comission's policy and practice differ from the Board's interpretation, the regulation should be modified.
The Board's recent ruling has shown that confusjon can result from the present za'.e &N wording of 10 CFR 73.40(a).
Also, -en interpretation cf the seguia6ury inwh such as the Scard4., could impact several classes of licensees and not just those i.:.?.;k;. cr.dcr 10 CFR 73.67.
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Therefore, to avoid any future confusion, j
a clarification of-the languem paragraph 73.40(a) is being proposed.
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.4 REGULATORYFLEXIBILITYCERT'IFIfATION In accordance with the Regulatory Flexibility Ac't of 198r, 5 U.S.C. 605(M, the Comission hereby certifies that this rule will not, if promulgated, have a signi.
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ficant economic impact on' a substantial number.of small entities. This proposed rule would amend 10 CFR 73 to' codify current Comission policy and practice.
Because this rule merely clarifies current practice and is in fact more lenient
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than other interpretations of the general physical protection requirement, there is no impact on any current or future licensee.
PAPERWORK REDUCTION ACT STATEMENT This proposed amendment contain,s no informtion collection requirements and therefore is not subject to the requirements of the Pr.perwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.).
ENVIRONMENTAL IMPACT Pursuant to the Comission's regulations in 10 CFR Part 51, paragraph 51.5(d),
neither an environmental impact statement nor a negative-declaration need be prepared since these amendments are not significant from the standpoint of. environmental impact.
REGULATORY ANALYSIS The Commission has prepared a regulatory analysis of this proposed amendment. The analysis explains why there is no impact from this regulatory action and discusses j
- -' S-the potential for problems if the action is not taken.
The analysis is available for inspection in the NRC Public Document Room,1717 H Street, NW, Washington, DC.
Single copies of the analysis may be obtained from Dr. C5rl J. Withee, Mail Stop 881-55, Fuel Facility Safeguards Licensing Branch, Division of Safeguards,-Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Comission, Washington, DC 20555, Telephone (301) 427-4040.
LIST OF SUBJECT TERMS IN 10 CFR PART 73 Hazardous materials-transportation, Nuclear materials, Nuclear power plants and reactors, Penalty, Reporting 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, notice is hereby given that the NRC is proposing to adopt the.v following amendment to 10 CFR Part 73.
PART 73 - PHYSICAL PROTECTION OF PLANTS AND MATERIAL 1.
The authority citation for Part 73 continues to read as follows:
AUTHORITY:
Secs. 53,161, 68 Stat. 930, 948, as amended, sec.147, 94 Stat. - 780 i
(42 U.S.C. 2073, 2167, 2201); sec. 201, 88 Stat.1242, as amended, sec. 204, 88 g
Stat.1245 (42 U.S.C. 5841. 5844).
Section 73.37(f) is also issued under sec. 301, Pub. L.96-295, 94 Stat. 789 (42U.S.C.'5841 note).
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For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273);
15 73.21, 73.37(g), 73.55 are issued under sec.161b,- 68 Stat. 948, as amended (42 U.S.C. 2201(b));51 73.20, 73.24, 73.25, 73.26, 73.27, 73.37, 73.40, 73.45, 73.46, 73.50, 73.55, 73.67 are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(i)); andT173.20(c)(1), 73.24(b)(1), 73.26(b)(3), (h)(6), and (k)(4), 73.27(a) and (b), 73.37(f), 73.40(b) and (d), 73.46(g)(6) and (h)(2),
73.50(g)(2), (3)(111)(5) and (h), 73.55(h)(2), and (4)(iii)(B), 73.70, 73.71, 73.72 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
2.
In 573.40, paragraph (a) is revised to read as follows:
573.40 Physical Protection.
General requirements at fixed sites.
(a) Each licensee shall provide physical protection at the fixed sites where licensed activities are conducted, either against radiological sabtoage, or against theft of special nuclear material, or against both, as required by applicable regulations and in accordance with the specific requirements contained in other sections of this Part applicable to the specific class of f,acility or material.
Physical security systems shall be established and maintained by the licensee in accordance with security plans approved by the Nuclear Regulatory Commission.
Dated at Bethesda, Maryland, this day of
,1983.
For the Nuclear Regulatory Commission.
William J. Dircks Executive Director for Operations.
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lf UNITED STATES NUCLEAR REGULATORY COMMISSION f'y c.
WASHINGTON D. C. 20555 0
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NOV r.? 1983 s
MEMORANDUM FOR:
Robert F. Burnett Director Division of Safeguards, NMSS FROM:
Darrell G. Eisenhut, Director Division of Licensing
SUBJECT:
CLARIFICATION OF GENERAL PHYSICAL PROTECTION REQUIREMENT (73.40(a))
This is in response to your memorandum dated November 10, 1983, subject as above, in which you requested our concurrence on the proposed rule package containing a clarifying amendment to 10 CFR 73.40(a).
We have reviewed the proposed rule package and concur thereon. We verbally advised Willard Brown of our concurrence on November 17, 1983.
Darrell G. Eisenhut, Director Division of Licensing cc:
C. Withee W. Brown Oh i
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