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# Applicability of Federal Regulations to NRC Licensees Transfer of Radiative Materials to DOE for Shipment

## HPPOS-208 PDR-9111210363

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 Tuesday, October 17, 2017