ML24170A397
| ML24170A397 | |
| Person / Time | |
|---|---|
| Issue date: | 05/11/2023 |
| From: | Christopher Hanson NRC/OCM |
| To: | Carrie Safford NRC/SECY |
| Shared Package | |
| ML24170A355 | List: |
| References | |
| SECY-23-0033 VR-SECY23-0033 | |
| Download: ML24170A397 (17) | |
Text
POLICY ISSUE NOTATION VOTE
RESPONSE SHEET
TO: Brooke P. Clark, Secretary
FROM: Chair Hanson
SUBJECT:
SECY-23-0033 Interim Enforcement Policy for Dispositioning 10 CFR Part 37 Violations with Respect to Large Components or Robust Structures Containing Category 1 or Category 2 Quantities of Radioactive Material at Power Reactor Facilities
Approved X Disapproved Abstain Not Participating
COMMENTS: Below X Attached None
In 2014, the staff issued an enforcement guidance memorandum (EGM-14-001) for violations of the physical protection requirements in 10 CFR Part 37 concerning large components and robust structures containing Category 1 or Category 2 quantities of radioactive materials stored at power reactor facilities. However, an EGM is a temporary solution not intended for indefinite use. The staff is developing a rulemaking plan for Commission consideration to address the issue which will provide a permanent regulatory resolution. In the meantime, the staff determined that an interim enforcement policy (IEP) would support the staffs path forward. The IEP provides regulatory clarity and allows for continued enforcement discretion until the technical issue is dispositioned in a rulemaking. Therefore, I approve the proposed IEP and its publication in the Federal Register subject to the attached edits.
Entered in STAR Signature Yes X Christopher T. Hanson No Date 05/11/2023
[7590-01-P]
NUCLEAR REGULATORY COMMISSION
[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
CTH edits
AGENCY: Nuclear Regulatory Commission.
ACTION: Policy statement; issuance.
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 [INSERT DATE OF PUBLICATION IN
THE FEDERAL REGISTER].
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 Dawn
Enclosure 1
Forder; telephone: 301-415-3407; email: Dawn.Forder@nrc.gov. For technical
questions, contact the individual listed in the FOR FURTHER INFORMATION
CONTACT section of this document.
NRCs 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 NRCs Public Document Room (P DR) reference staff at 1-800-397-4209, at
301-415-4737, or by email to PDR.Resource@nrc.gov. The Enforcement Policy is
available in the Agencywide Document Access and Management System (ADAMS)
under Accession No. ML22336A179
NRCs PDR: You may examine and purchase copies of public documents,
by appointment, at the NRCs PDR, Room P1 B35, One White Flint North, 11555
Rockville Pike, Rockville, Maryland 20852. To make an appointment to visit the PDR,
please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-
4737, between 8:00 a.m. and 4:00 p.m. eastern time, Monday through Friday, except
Federal holidays.
The NRC maintains the Enforcement Policy on its website at
http://www.nrc.gov; select Public Meetings and Involvement, then Enforcement, and
then Enforcement Policy.
FOR FURTHER INFORMATION CONTACT: David Furst, Office of Enforcement; U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-287-
9087; email: David.Furst@nrc.gov.
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 § 37.11, Specific
exemptions, to address radioactive waste materials. The provision does require the
application of some security measures to waste exempted under § 37.11, but the
majority of 10 CFR part 37 requirements would not apply. Security measures include
the use of continuous physical barriers, alar med 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 16921), 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), dated
March 13, 2014 (ML14056A151). This EGM allows the staff to exercise enforcement
discretion with respect to large component s (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 § 37.11(c), these licensees cannot reasonably meet the reduced security requirements of § 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 § 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 § 37.11 that can only practically be
remedied with a rulemaking. Specifically, NEI requested that the NRC revise the
exemptions in § 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 § 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 noted that, as part of the 10 CFR part 37
implementation process, the NRC recogniz ed the low risk associated with large
components and the storage of material in robust structures and issued EGM-14-001 to
provide the appropriate oversight guidance. NEI stated that a rulemaking to codify
EGM-14-001s 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.
On August 19, 2021, the Commission issued Staff Requirements
COMSECY-21-0010Revision of the Reactor Oversight Process Public Radiation Safety Significance Determination Process (ML21231A250), in which it approved the
recommendation to update the significance determination process for the Public
Radiation Safety cornerstone of the Reactor Oversight Process to incorporate the
disposition of inspection findings related to 10 CFR part 37. On September 24, 2021,
the NRC issued the updated Inspection Manual Chapter 0609 Appendix D, Public
Radiation Safety Significance Determination Process, to reflect the
Commission-approved changes.
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, including
the Radioactive Source Security and Accountability accelerated rulemaking. 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 asso ciated with the shipment of radioactive
materials. This rulemaking would also address the issues raised by NEI in PRM-37-1.
In accordance with the Common Prioritization of Rulemaking, this rulemaking is currently
a medium priority with a score of 16 points because it is a moderate contributor (7 points
out of 20 possible) toward the agencys safety and security goals (Safety Strategies 1, 4, and 5; Security Strategies 2 and 3), a moderate contributor (3 points out of 5 possible) to
multiple Principles of Good Regulation, a minor contributor (2 points out of 10 possible)
to governmental policy, and a minor contributor (4 points out of 10 possible) to
stakeholder confidence.
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 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 the structure can
only be accessed using heavy equipment to 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
§ 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 § 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 shall comply with all other requirements, as applicable, unless
explicitly replaced or amended through this interim policy.
Licensees are allowed to submit a request for a specific exemption, as described
in § 37.11(a), for material that may not be included in the definitions above. If the
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 inspec ts the licensees facility, the NRC will
postpone an enforcement decision until the NRC staff completes its review of the
exemption request. If the NRC grants the exem ption request, it will also consider
enforcement discretion for any prior violation remedied by the exemption. If the NRC
denies, or the licensee withdraws, the ex emption request, the NRC will disposition the
violation through the enforcement process.
The NRC will 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 IEPs 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 M anagement 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
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 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 a noncompliance and can be applied to
subsequent inspections, provided that all the criteria continue to be met.
Licensees shall comply with all other requirements, as applicable, unless
explicitly replaced or amended through this interim policy.
Licensees are allowed to 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 the
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 inspec ts the licensees facility, the NRC will
postpone an enforcement decision until the NRC staff completes its review of the
exemption request. If the NRC grants the exem ption request, it will also consider
enforcement discretion for any prior violation remedied by the exemption. If the NRC
denies, or the licensee withdraws, the ex emption request, the NRC will disposition the
violation through the enforcement process.
The NRC will intends to keep this interim policy 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 cont ain 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 number 3150-0136.
V. Public Protection Notification The NRC may not conduct or sponsor, and a person is not required to respond
to, a request for information or an information collection requirement unless the
document 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 <Month XX, 2023>.
For the Nuclear Regulatory Commission.
Brooke P. Clark,
Secretary of the Commission.
Proposed Interim Enforcement Policy - Section 9.3, Enforcement Discretion for Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material (10 CFR Part 37)
CTH edits 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 Interim Enforcement Policy (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, obs ervation by licensees authorized individuals located within or close to these robust stru ctures, 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 IEPs 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 M anagement 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 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;
Enclosure2 2
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 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 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 a noncompliance and can be applied to subsequent inspections, provided that all the criteria continue to be met.
Licensees shall comply with all other requirement s, as applicable, unless explicitly replaced or amended through this interim policy.
Licensees are allowed to 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 the 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 ma terial inside, and the request is submitted before the NRC inspects the licensees facility, t he 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 will intends to keep this interim policy in place until the underlying technical issue is dispositioned through rulemaking or other regulatory action.