U.S. Nuclear Regulatory Commission
Applicability of Federal Regulations to NRC Licensees Transfer of Radiative Materials to DOE for Shipment
HPPOS-208 PDR-9111210363
Title: Applicability of Federal Regulations to NRC
Licensees Transfer of Radiative Materials to DOE for
Shipment
See the memorandum from L. B. Higginbotham to G. H. Smith
dated October 1, 1979. An NRC licensee may transfer
licensed material to DOE and DOE then becomes the shipper.
In this situation, the licensee does not have to meet the
requirements of Part 71. However, the licensee-to-DOE
material transfer must occur before shipment is made.
Questions were raised about the applicability of 10 CFR 71
to licensees who process licensed material for DOE. As
explained below, it is an OELD opinion that 10 CFR 30.41,
40.51 and 70.42 provide adequate authority, if the
requirements of these Sections are met, to permit the
transfer to DOE of byproduct, source, or special nuclear
material or of a radioactive-contaminated facility
component without the need to amend any specific license.
NRC regulations prohibit the transfer of byproduct, source,
and special nuclear material except as authorized in a
specific or general license issued by the Commission
pursuant to those regulations. NRC regulations also
provide that licenses issued under 10 CFR Parts 30, 40 and
70 are subject to all valid rules, regulations and orders
of the Commission.
10 CFR 30.41, 40.51 and 70.42 specify, respectively, the
kinds of transfers that licensees holding byproduct
material licenses, source material licenses and special
nuclear material licenses are authorized to make.
Licensees who are able to satisfy the requirements of these
sections may rely on this authority to make transfers even
though the work "transfer" does not appear in their
licenses because the Commission regulations expressly
provide that the terms and conditions of a license include
the condition that the license is issued subject of
Commission regulations. A licensee, under 10 CFR Parts 30,
40 and 70 of the Commission's regulations, is subject to
all the provisions of the regulations, including 10 CFR
30.41, 40.51, and 70.42. Accordingly, it may rely on these
provisions for the authority necessary to make transfers as
long as the requirements of these provisions are met.
Thus, no NRC specific license need be amended to accomplish
the desired transfer to DOE.
Paragraphs (a) and (b) (1) of 10 CFR 70.42 provide as
follows:
(a) No licensee shall transfer special nuclear material
except as authorized pursuant to this section.
(b) Except as otherwise provided in this license and
subject to the provisions of paragraphs (c) and (d) of this
section, any licensee may transfer special nuclear material:
(1) To the [Energy Research and Development]
Administration; ....
Pursuant to the provisions of 10 CFR 30.41, 40.51 and
70.42, DOE (formerly, the Energy Research and Development
Administration) may take possession of the radioactive
material or the contaminated facility component from an NRC
licensee. As a practical matter, this could be
accomplished by having an authorized employee or
representative of DOE present at the licensee's site to
assume responsibility and control of the shipment from the
site.
If onsite transfer to DOE is completed, the NRC licensee
will no longer be in the position of delivering "licensed
material to the carrier for transport" under the general
license provisions of 10 CFR 71.11 and 71.12 and the
conditions precedent (e.g., an NRC-approved QA program for
shipping packages) to the licensee's use of such a general
license would no longer be applicable. For the same reason
as above, 10 CFR 73.37 would not apply to NRC licensees who
transfer spent fuel to DOE prior to shipment by DOE.
An NRC licensee may transfer byproduct, source, or special
nuclear material or radioactive-contaminated facility
components to DOE (or one of its duly authorized
representatives) pursuant to the provisions of 10 CFR
30.41, 40.51 and/or 70.42 provided that such a transfer is
consistent with the constraints described here. NRC
regulations contained in 10 CFR 71.11, 71.12 and 73.37
would then be inapplicable to subsequent of the transferred
material by DOE.
Regulatory references: 10 CFR 71
Subject codes: 12.9, 12.17
Applicability: All
