The NRC issued a letter to holders of licenses other than operating power reactor licenses (separate information regarding requests for temporary exemptions from certain security requirements at operating reactors has been issued) 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of Radioactive Material, during the coronavirus (COVID-19) public health emergency (PHE), and finalizes its April 30 draft guidance on which we reported to reflect input from stakeholders received during a recent public meeting.
The duration of approved temporary exemptions will be determined on a case-by-case basis. Temporary exemptions for materials licensees that the NRC has approved to date for COVID-19-related requests under this expedited process are in effect for periods of 30, 90, or 120 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
Additional information that should be included in requests for exemptions from the following regulations mirror those on which we previously reported.
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.
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.
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 changes 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.
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.
The NRC has previously 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 licensing manager with decision-making authority” should 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. In addition, NRC licensees with exemptions approved by the NRC that will operate in an Agreement State under reciprocity should contact the Agreement State prior to working in its jurisdiction to discuss the NRC exemption.
Coronavirus COVID-19 Task Force
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. Find resources on how to cope with the post-pandemic reality on our NOW. NORMAL. NEXT. page and our COVID-19 page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts, and download our biweekly COVID-19 Legal Issue Compendium.