United States Nuclear Regulatory Commission - Protecting People and the Environment

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

Page Last Reviewed/Updated Thursday, March 29, 2012