The NRC issued a draft letter to holders of licensees (other than operating power reactor licensees) to possess Category 1 or 2 quantities of radioactive material (RAM) as defined in Appendix A to 10 CFR Part 37. The letter contains guidance on the NRC’s expedited review process for requests for temporary exemptions from certain requirements contained in 10 CFR Part 37, Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material, during the coronavirus (COVID-19) public health emergency (PHE), and will be discussed at a public meeting on May 5.
The Centers for Disease Control and Prevention (CDC) recently issued guidance in response to the COVID-19 PHE, recommending, among other things, that people avoid close contact with others. In an effort to ensure that compliance with 10 CFR Part 37 does not result in actions contrary to the CDC’s guidance, and recognizing that compliance with certain NRC requirements may not be possible during the PHE, the NRC’s proposed exemption process is intended to “facilitate the . . . implementation of security requirements in 10 CFR Part 37 in a manner that does not conflict with practices recommended by the [CDC].”
If granted, exemptions will last up to 90 days. All requests for review on an expedited basis should include the following information:
- A statement that the licensee expects that it will no longer be able to comply with the requirements of the specific subsection(s) of 10 CFR Part 37 identified below
- The site-specific reason that the COVID-19 PHE prevents the licensee from being able to meet the specific regulatory requirement from which it is seeking an exemption
- The additional information noted below regarding the specific regulatory provision for which the licensee is seeking an exemption
Additional information that should be included in requests for exemptions from particular requirements is discussed below.
Reviewing Official Recertification – 10 CFR 37.23(b)(2)
10 CFR 37.23(b)(2) requires licensees to “recertify that the reviewing official is deemed trustworthy and reliable every 10 years in accordance with 37.25(c).” This recertification entails an FBI identification and criminal history records check. Exemptions from this requirement are expected to address the challenges licensees may face when attempting to obtain fingerprints for individuals during the COVID-19 PHE due to reduced staffing or closed locations.
Requests for exemption from this requirement should include the following additional information:
- A statement that the licensee will maintain a list of the names of the reviewing officials who will not have recertifications completed within the required 10-year recertification period; include the dates of initial qualification for these reviewing officials
- A statement that the licensee will document that, notwithstanding the delayed fingerprinting and FBI identification and criminal history record check, the licensee has reasonable assurance that the reviewing official remains trustworthy and reliable
Reinvestigations of Individuals Granted Unescorted Access – 10 CFR 37.25(c)
10 CFR 37.25(c) requires licensees to “conduct a reinvestigation every 10 years for any individual with unescorted access to category 1 or category 2 quantities of radioactive material.” Similar to 10 CFR 37.23(b)(2), exemptions from this requirement would address the challenges licensees may face when attempting to obtain fingerprints for individuals during the COVID-19 PHE.
Requests for exemption from 10 CFR 37.25(c) should include the following additional information:
- A statement that the licensee will maintain a list of the names of the individuals who will not have reinvestigations completed within the required 10-year reinvestigation period; include the dates of initial qualification for these individuals
- A statement that the licensee will document that, notwithstanding the delayed fingerprinting and FBI identification and criminal history record check, the licensee has reasonable assurance that the individual remains trustworthy and reliable
Security Program Refresher Training – 10 CFR 37.43(c)(3)
10 CFR 37.43(c)(3) requires that “[r]efresher training . . . be provided at a frequency not to exceed 12 months and when significant challenges have been made to the security program.” Exemptions from this requirement would address the challenges licensees may face in ensuring adequate staffing of security personnel during the COVID-19 PHE.
Requests for exemption from 10 CFR 37.43(c)(3) should include the following additional information:
- A statement that the licensee will maintain a list of the names of the individuals who will not have the refresher training completed within the required period; include the dates of the last refresher training provided to these individuals
- A description of measures the licensee will take to ensure that individuals are implementing the security program possess and maintain the knowledge, skills, and abilities to carry out assigned duties and responsibilities effectively, and a statement that the licensee will continue to evaluate the individuals’ performance to identify and correct performance issues in a timely manner
Maintenance and Testing Requirements – 10 CFR 37.51(a)
10 CFR 37.51(a) requires that “equipment relied on to meet the security requirements of this part . . . be inspected and tested for operability and performance at the manufacturer’s suggested frequency. If there is no suggested manufacturer’s suggested frequency, the testing must be performed at least annually, not exceed 12 months.” Exemptions from this requirement would address the challenges licensees may face in ensuring adequate staffing of trained personnel to inspect or test for operability and performance, or challenges faced by their service provider to perform the inspection and testing of equipment during the COVID-19 PHE.
Requests for exemption from this requirement should include the following additional information:
- A statement that the licensee will document the equipment relied on to meet security requirements but that was not inspected and tested under the maintenance and testing program as required; identify the dates the equipment was last inspected and tested under the maintenance and testing program
- A statement that the licensee has self-monitoring, tamper-indicating alarms systems that enable the licensee to meet 10 CFR 37.49 detection, assessment, and response requirements upon any failure of an alarm, thereby ensuring the security of the material notwithstanding the authorization of this exemption
The NRC also observed that its April 7 letter (which we summarized) provides that licensees may request regulatory relief not only in the form of exemptions, but also in the form of amendments to license conditions and technical specifications and enforcement discretion. Note, however, that each of these options has specific requirements and is appropriate under certain circumstances.
Prior to submitting a request for an expedited review, a “senior level licensee manager with decision-making authority” must send an email to the licensee’s NRC project manager or regional office (with a copy to the NRC Document Control Desk) informing them of the forthcoming request. The licensee may, thereafter, submit the request using the Nuclear Materials Relief Request Form.
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