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Security-Related Rulemaking to Update 10 CFR Parts 73 and 26

Among its regulatory initiatives related to Domestic Safeguards, the U.S. Nuclear Regulatory Commission (NRC) is pursuing a rulemaking to update portions of Title 10, Part 73, of the Code of Federal Regulations (10 CFR Part 73), “Physical Protection of Plants and Materials,” in response to a Staff Requirements Memorandum (SRM-SECY-09-0123), dated July 8, 2010. Specifically, the portions affected by this rulemaking include security-related regulations for special nuclear material (SNM) and fuel cycle facilities (FCFs). For more information, please see the following topics on this page:

Background

In the current regulatory framework, the required level of physical protection  is determined by three factors: element, quantity and isotopic composition. This framework is based on a material categorization scheme, which places uranium and plutonium into one of three risk categories (Category I, II, or III). This traditional approach relies on a prescriptive categorization scheme to determine adequate protection against theft or diversion of SNM. This traditional approach is simple to implement and assures adequate protection, this scheme does not lend itself to tailoring security requirements based on risk-informed insights and there have been several instances where it has been shown to be overly conservative for the material being protected. The current regulations do not consider the form or concentration of the material in evaluating the attractiveness of the material to an adversary for use in malicious purposes including an improvised nuclear device (IND). Some material forms represent less risk than others due to the low relative concentration of the special nuclear material in the matrix. Generally, the lower the concentration of the target material, the less attractive the material is to an adversary. For example, 5 kilograms or more of high-enriched uranium in metal form presents a greater risk than a rail car containing 5 kilograms or more of high-enriched uranium dispersed within contaminated soil.

One of the major objectives of the 10 CFR Part 73 rulemaking is to risk-inform physical protection requirements against theft or diversion of SNM using a graded approach that considers material attractiveness (i.e. composition, dilution, or chemical form of the material). The underlying assumption is that elevated levels of material dilution creates a set of progressively greater complexities associated with material acquisition (because of material weight and size) and processing (because of larger equipment and process scales, increased processing timelines, and higher cost). As a result, more dilute (less attractive) material is easier to protect. Should the material be stolen, it is also easier to recover before the adversaries complete the task of material processing and constructing an IND. Therefore, the protective strategy and physical protection requirements should take into account the properties of the material to allow appropriate levels of protection. This will enable the NRC to "right-size” the physical protection requirements that are specific to quantities of various forms of SNM, ensuring greater regulatory predictability and clarity.

In addition, this rulemaking effort for 10 CFR Part 73, will incorporate the FCFs and research and test reactors security measures put in place by either NRC Security Orders or confirmatory action letters (primarily after the terrorists events of September 11, 2001) into the CFR (where appropriate). The Security Orders or confirmatory action letters will then be rescinded if appropriate.

In parallel with the 10 CFR Part 73 rulemaking, the staff was pursuing a rulemaking to expand the applicability of the fatigue requirements that are part of the fitness-for-duty (FFD) requirements within 10 CFR Part 26 to additional licensees. Specifically, the staff was considering applying the fatigue requirements in 10 CFR Part 26 to security officers at two Category I FCFs consistent with the direction provided in SRM-COMSECY-04-0037, as well as the staff's next steps outlined in its progress report provided to the Commission on April 29, 2005.

The staff issued the draft regulatory basis (see ADAMS under Accession No. ML14113A468) for public comment via Federal Register Notice (FRN) on June 18, 2014. The draft regulatory basis provides the scope and technical justification for desired changes to existing regulations in 10 CFR Parts 26 and 73.  The FRNs associated with the draft regulatory basis (ML14209A649 and ML14205A551) stated that comments on the draft regulatory must be filed no later than October 17, 2014.  Comments received after this date would be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received before this date.  The NRC recently held public meetings on the draft regulatory basis on June 12, 2014, September 17, 2014, and September 24, 2014.  The staff appreciates stakeholders that have participated in meetings and provided comments on the draft regulatory basis. Currently, the staff is reviewing the public comments to inform and finalize the regulatory basis. The staff plans to submit the regulatory basis to the Office of Nuclear Material Safety and Safeguards (NMSS) for review by January 30, 2015. NMSS has approximately thirty days to review the regulatory basis, and if accepted by NMSS, the staff will move forward and pursue the rulemaking for 10 CFR Part 73 only.  

During the public comment period for the draft regulatory basis, the two Category I FCFs submitted an alternative proposal of applying fatigue requirements for security officers through commitments in their security plans (ML14301A595).  These two licensees are capitalizing on the staff's statements in Section 5.5 of the draft regulatory basis, that an alternative to rulemaking for these two licensees could be for the NRC to adopt fatigue measures as a license condition and/or a commitment in their security plan.  The staff now intends to pursue this alternative approach (after receiving management approval) and therefore will remove from the draft regulatory basis the sections discussing fatigue for security officers at these two sites.  If after review of the alternate proposal, the staff cannot come to an agreement with these licensees on the necessary fatigue measures, the staff would complete the regulatory basis and submit it to NMSS for review to pursue rulemaking.

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Public Involvement

The NRC has a long-standing practice of conducting its regulatory responsibilities in an open manner. For that reason, the NRC is committed to informing the public about its regulatory, licensing, and oversight activities, and providing opportunities for the public to participate in the agency’s decision-making process.

For general information about the available opportunities for public involvement in NRC activities, see Public Meetings and Involvement, Hearing Opportunities and License Applications, and NUREG/BR-0215, "Public Involvement in the Regulatory Process." For more specific information about public meetings that the NRC staff has conducted in connection with the update of 10 CFR Parts 73 and 26, please see Public Meetings and Materials, below. For other security-related meetings, please see Public Meetings on Nuclear Security and Safeguards.

Also, since the issuance of SRM-SECY-09-0123, the NRC staff has been involved in extensive domestic/international outreach efforts to build a consensus that the approach it is taking to categorize material based on attractiveness meets the intent of international commitments and INFCIRC/225/Rev5.

In addition, we invite you to Contact Us if you have comments or questions regarding this regulatory initiative.

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Meetings and Materials

The NRC holds public meetings to discuss agency activities related to the security rulemaking to update 10 CFR Part 73 and 26. Materials associated with these meetings are available below. If you have any questions about our public meetings and materials, please Contact Us.

Date Description

September 24, 2014

NRC Public Meeting (Rockville, MD) Regarding the Draft Regulatory Basis Associated with Updating 10 CFR Parts 26 and 73.

September 17, 2014

NRC Public Meeting (Rockville, MD) Regarding Material Attractiveness Associated with the 10 CFR Part 73 Rulemaking, primarily with Research and Test Reactor (RTR) licensees.

(No presentations for this meeting since this meeting was focused on discussions of the draft regulatory basis and potential impacts to RTRs.)

June 12, 2014

NRC Public Meeting (Rockville, MD) Regarding the Draft Regulatory Basis Associated with Updating 10 CFR Parts 26 and 73.

May 28, 2014

NRC Public Meeting (Rockville, MD) Regarding Applying Fatigue for Officers at Category I Licensees Associated with the 10 CFR Part 26 Rulemaking.

April 9, 2014

NRC Public Meeting (Rockville, MD) Regarding Material Attractiveness Associated with the 10 CFR Part 73 Rulemaking.

February 20, 2014

NRC Public Meeting (Rockville, MD) Regarding Material Attractiveness Associated with the 10 CFR Part 73 Rulemaking.

February 6, 2014

NRC Public Meeting (Rockville, MD) Regarding Material Attractiveness Associated with the 10 CFR Part 73 Rulemaking.

June 11–12, 2013

8th Annual Fuel Cycle Information Exchange (FCIX) Public Meeting (Rockville, MD)

June 12–13, 2012

7th Annual Fuel Cycle Information Exchange (FCIX) Public Meeting (Rockville, MD)

June 7–8, 2011

6th Annual Fuel Cycle Information Exchange (FCIX) Public Meeting (Rockville, MD)

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Page Last Reviewed/Updated Tuesday, November 18, 2014