ML15092A432 

UNITED STATES 

NUCLEAR REGULATORY COMMISSION 

OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS 

OFFICE OF NUCLEAR REACTOR REGULATION 

OFFICE OF NEW REACTORS 

WASHINGTON, D.C. 20555 

December 4, 2015 

NRC REGULATORY ISSUE SUMMARY 2015-15 

INFORMATION REGARDING A SPECIFIC EXEMPTION IN THE REQUIREMENTS FOR THE 

PHYSICAL PROTECTION OF CATEGORY 1 AND CATEGORY 2 QUANTITIES OF 

RADIOACTIVE MATERIAL 

ADDRESSEES

All holders of and applicants for a power reactor operating license or construction permit under 

Title 10 of the Code of Federal Regulations (10 CFR) Part 50, “Domestic Licensing of 

Production and Utilization Facilities,” including those that have permanently ceased operations 

and have certified that fuel has been permanently removed from the reactor vessel. 

All holders of and applicants for a power reactor early site permit, combined license, or 

manufacturing license under 10 CFR Part 52, “Licenses, Certifications, and Approvals for 

Nuclear Power Plants.” 

All holders of and applicants for a license under 10 CFR Part 70, “Domestic Licensing of Special 

Nuclear Material,” that are required to have a security plan under 10 CFR Part 73, “Physical 

Protection of Plants and Materials,” to include licensees authorized to possess formula 

quantities of special nuclear material (SNM), licensees authorized to possess SNM of moderate 

strategic significance, and licensees authorized to possess SNM of low strategic significance. 

All holders of and applicants for a license under 10 CFR Part 72, “Licensing Requirements for 

the Independent Storage of Spent Fuel, High-Level Radioactive Waste, and Reactor-Related 

Greater Than Class C Waste.” 

All Agreement State Radiation Control Program Directors and State Liaison Officers. 

INTENT

The U.S. Nuclear Regulatory Commission (NRC) is issuing this regulatory issue summary (RIS) 

to provide information regarding the guidance in NUREG-2155, Rev. 1, “Implementation 

Guidance for 10 CFR Part 37, ‘Physical Protection of Category 1 and Category 2 Quantities of 

Radioactive Material,’ ” and in the questions and answers concerning the application of 

10 CFR Part 37 to licensees with 10 CFR Part 73 security plans, which may be found on NRC’s 

public website at http://www.nrc.gov/security/byproduct/10-cfr-part-37.html. Specifically, 

10 CFR 37.11(b) states, “Any licensee’s NRC-licensed activities are exempt from the 

requirements of subparts B and C of this part to the extent that its activities are included in a 

security plan required by part 73 of this chapter.” This RIS is being issued to provide 
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information on the activities that should be included within the licensee’s security plan relative to 

this specific exemption from the requirements of subparts B and C of 10 CFR Part 37. 

No specific action or written response is required. The NRC is providing this RIS to the 

Agreement States for their information and for distribution to their licensees, as appropriate. 

BACKGROUND INFORMATION 

In a final rule published in the Federal Register on March 19, 2013 (78 FR 16921), the NRC 

added a new 10 CFR Part 37 to its regulations and made conforming changes to other parts of 

NRC regulations regarding physical protection of radioactive materials. The new regulation, 

which NRC licensees were required to be in compliance with by March 19, 2014, establishes 

physical security requirements for the possession and use of category 1 and category 2 

quantities of radioactive material. Power reactor licensees and other licensees who operate 

under a security plan required by 10 CFR Part 73 and who possess category 1 or category 2 

quantities of radioactive material are subject to 10 CFR Part 37 requirements, in addition to 

existing physical security requirements for special nuclear material in 10 CFR Part 73. The new 

rule, 10 CFR Part 37, can be found at http://www.nrc.gov/reading-rm/doccollections/cfr/part037/. 

The provisions of 10 CFR 37.11(b) are intended to allow licensees with an NRC-approved 

10 CFR Part 73 security plan to rely on the physical protection measures described in that 

plan to meet the physical protection requirements of 10 CFR Part 37, subparts B and C to the 

extent that the 10 CFR Part 73 security program provides the equivalent level of protection for 

category 1 and category 2 quantities of radioactive material. Accordingly, licensees with an 

NRC-approved 10 CFR Part 73 security plan can choose to protect category 1 and category 2 

quantities of radioactive material from theft or diversion by using their 10 CFR Part 73 security 

plan, a separate 10 CFR Part 37 security plan, or use both their 10 CFR Part 73 security plan 

and a separate 10 CFR Part 37 security plan. Whichever plan a licensee chooses to use, the 

licensee’s security plan(s) must describe how category 1 and category 2 quantities of 

radioactive material will be protected from theft or diversion, pursuant to 10 CFR Part 37. In 

addition, the licensee’s 10 CFR Part 73 or 10 CFR Part 37 security plan may take credit for and 

utilize existing physical protection measures established under the 10 CFR Part 73 security 

program to protect category 1 and category 2 quantities of radioactive material. 

On June 12, 2014, the Nuclear Energy Institute (NEI) submitted a petition for rulemaking (PRM) 

requesting that the exemption requirements under 10 CFR 37.11 be amended. The NRC 

docketed NEI’s petition as PRM-37-1 and published the notice of docketing and request for 

comment for the petition in the Federal Register on October 28, 2014 (79 FR 64149). The NRC 

reviewed the petition, supporting rationale, and the associated comment letters and determined 

that the issues raised in the petition had merit and should be considered in the rulemaking 

process. 

SUMMARY OF ISSUE

Generally, if category 1 or category 2 quantities of radioactive material are located within a 

protected area (PA), as defined by 10 CFR Part 73, of a facility such as a power reactor, 

category I SNM facility, or an independent spent fuel storage installation, existing physical 

protection measures within a PA required by 10 CFR Part 73 are expected to provide a level of 
RIS 2015-15 

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protection equivalent with the requirements of 10 CFR Part 37. To demonstrate that their 

10 CFR Part 73 security plan or their 10 CFR Part 37 security plan adequately protects 

category 1 or category 2 quantities of radioactive material located within a PA from theft or 

diversion, licensees’ security plan(s) and/or procedures should, at a minimum, describe the 

following: 

(1) The existing physical protection measures that will be used to ensure category 1 and 

category 2 quantities of radioactive material will be protected from theft and diversion; 

(2) The process used for maintaining accountability of category 1 and category 2 quantities 

of radioactive material and the location of the material; and 

(3) The training that will be provided to individuals who are responsible for protecting 

category 1 and category 2 quantities of radioactive material. 

If category 1 and category 2 quantities of radioactive material are not located inside of a PA, but 

are located in other areas of a facility covered under a 10 CFR Part 73 security plan (e.g., 

outside of a PA), the existing physical protection measures provided in these areas may not 

provide a level of protection for category 1 or category 2 quantities of radioactive material that is 

equivalent with the requirements of 10 CFR Part 37. For example, these areas may not provide 

continuous monitoring and the ability to detect without delay all unauthorized entries into the 

area (i.e., security zone) where category 1 and category 2 quantities of radioactive material are 

stored. Therefore, for areas not within a PA, the 10 CFR Part 73 or 10 CFR Part 37 security 

plan must, as discussed in the questions and answers associated with 10 CFR Part 37 

(Agencywide Documents Access and Management System (ADAMS) Accession No. 

ML13282A701), either meet the 10 CFR Part 37 security requirements or, pursuant to 

10 CFR 37.11(b), describe how the 10 CFR Part 73 security program provides a level of 

protection for category 1 and category 2 quantities of radioactive material that is equivalent with 

the requirements of 10 CFR Part 37, subparts B and C. 

Power reactor licensees should be aware that the NRC developed an enforcement guidance 

memorandum (EGM), EGM-14-001 (ADAMS Accession No. ML14056A151), which provides 

guidance to NRC staff on how to disposition potential violations associated with 10 CFR Part 37 

requirements with respect to large components and robust structures containing category 1 and 

category 2 quantities of radioactive material or waste. This EGM authorizes the NRC staff to 

exercise enforcement discretion and not cite potential violations associated with protection of 

this material if certain conditions, described in the EGM, are met. Power reactor licensees that 

store large components and/or utilize robust structures containing category 1 or category 2 

quantities of radioactive material or waste should review this EGM and ensure that they meet 

the conditions of the EGM. 

Licensees should also be aware that the requirements in 10 CFR 37.11(b) do not exempt them 

from complying with the requirements of 10 CFR Part 37 Subpart D, “Physical Protection in 

Transit.” Accordingly, licensees with an NRC-approved 10 CFR Part 73 security plan can 

choose to protect category 1 and category 2 quantities of radioactive material from theft or 

diversion by using their 10 CFR Part 73 security plan, a separate 10 CFR Part 37 security plan, 

or use both their 10 CFR Part 73 security plan and a separate 10 CFR Part 37 security plan. 

 
RIS 2015-15 

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BACKFITTING AND ISSUE FINALITY 

This RIS provides information to licensees regarding the specific licensed activities that should 

be described within the licensees’ 10 CFR Part 73 security plans relative to the exemption from 

the requirements of subparts B and C of 10 CFR Part 37, pursuant to 10 CFR 37.11(b). This 

RIS requires no action or written response beyond that already required by NRC regulations. 

This RIS does not impose on the addressees in their status as applicants, licensees or holders 

of NRC regulatory approvals under 10 CFR Parts 50, 52, 70 or 72, either backfitting (as defined 

in those parts) or actions which are inconsistent with the issue finality requirements in 10 CFR 

Part 52. This RIS provides information regarding requirements contained in the final rulemaking 

for Part 37 (78 FR 16921). Therefore, the NRC did not prepare a backfit analysis for this RIS or 

further address the issue finality criteria in Part 52. 

FEDERAL REGISTER NOTIFICATION

A notice of opportunity for public comment on this RIS was not published in the Federal Register 

because it is informational and pertains to a licensing matter that was open to public comment 

during its promulgation. 

CONGRESSIONAL REVIEW ACT 

This RIS is not a rule as defined in the Congressional Review Act (5 U.S.C. §§ 801-808). 

PAPERWORK REDUCTION ACT STATEMENT 

This RIS does not contain new or amended information collection requirements that are subject 

to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing requirements were 

approved by the Office of Management and Budget (OMB), approval numbers 3150-0214 and 

3150-0002. 

Public Protection Notification 

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for 

information or an information collection requirement unless the requesting document displays a 

currently valid OMB control number. 

 
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CONTACTS 

This RIS requires no specific action, or written response. If you have any questions about this 

summary, please contact the technical contact listed below or the appropriate regional office. 

 /ra/ /ra/ 

Lawrence E. Kokajko, Director Josephine M. Piccone, Director 

Division of Policy and Rulemaking Division of Material Safety, State, 

Office of Nuclear Reactor Regulation Tribal, and Rulemaking Programs 

 Office of Nuclear Material Safety 

 and Safeguards 

 /ra/ /ra/ 

Michael C. Cheok, Director Melanie A. Galloway, Director 

Division of Construction Inspection Division of Security Policy 

 and Operational Programs Office of Nuclear Security 

Office of New Reactors and Incident Response 

Technical Contact: Duane E. White 

 (301) 287-3627 

Duane.White@nrc.gov

Note: NRC generic communications may be found on the NRC public Web site, 

http://www.nrc.gov/reading-rm/doc-collections/gen-comm/, under NRC Library/Document 

Collections. 
RIS 2015-15 

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CONTACTS

This RIS requires no specific action, or written response. If you have any questions about this 

summary, please contact the technical contact listed below or the appropriate regional office. 

 /ra/ /ra/

Lawrence E. Kokajko, Director Josephine M. Piccone, Director 

Division of Policy and Rulemaking Division of Material Safety, State, 

Office of Nuclear Reactor Regulation Tribal, and Rulemaking Programs 

 Office of Nuclear Material Safety 

 and Safeguards 

 /ra/ /ra/

Michael C. Cheok, Director Melanie A. Galloway, Director 

Division of Construction Inspection Division of Security Policy 

 and Operational Programs Office of Nuclear Security 

Office of New Reactors and Incident Response 

Technical Contact: Duane E. White 

 (301) 287-3627 

Duane.White@nrc.gov

Note: NRC generic communications may be found on the NRC public Web site, 

http://www.nrc.gov/reading-rm/doc-collections/gen-comm/, under NRC Library/Document 

Collections. 

DISTRIBUTION: NSIR r/f 

ADAMS Accession No.: ML15092A432 *via email TAC No.: MF6131

OFFICE QTE NRR/DPR/PGCB NSIR/DSP/MWSB NSIR/DSP/MWSB NSIR/DSO/NSOB NSIR/DSP:DD 

NAME JDougherty* ELee DWhite SWastler* RAlbert* MThaggard* 

DATE 05/01/2015 05/05/2015 06/09/2015 06/10/2015 06/12/2015 06/17/2015 

OFFICE NSIR/DSO:DD OE NRR/PMDA OIS NRR/DRA/ARCB NRR/DIRS/IRIB 

NAME MLayton* DFurst* LHill* TDonnell* UShoop* JPeralta* 

DATE 06/17/2015 07/09/2015 06/22/2015 07/20/2015 07/22/2015 07/21/2015 

OFFICE NRR/DPR RI/DNMS:DD RI/DRS:BC RII/DRS:DD RII/DFFI:DD RIII/DNMS:DD 

NAME JAdams* DCollins* ADimitriadis* TGody* MLesser* PLouden* 

DATE 07/24/2015 07/28/2015 07/29/2015 08/05/15 07/29/2015 07/28/2015 

OFFICE RIII/DRS:DD RIV/DNMS:DD RIV/DRS:DD NRO/DCIP:DD NRR/DIRS:DD NMSS/MSTR:D 

NAME MShuaibi* LHowell* TVegel* AValentin* AHowe* JPiccone* 

DATE 07/28/2015 07/27/2015 07/27/2015 08/17/2015 08/26/15 08/21/15 

OFFICE NMSS/SFM:D NMSS/DUWP:DD NRR/DORL NRR/DRA NSIR/DSP:DD OGC 

NAME MLombard* DPersinko* ABoland* SLee* MThaggard* ACoggins* 

DATE 08/19/15 08/21/15 08/31/15 08/17/2015 08/18/2015 10/19/2015 

OFFICE NRR/DPR/PGCB NRR/DPR/PGCB NRR/DPR/PGCB NMSS/MSTR:D NRO/DCIP:D NSIR/DSP:D 

NAME AGarmoe ELee SStuchell JPiccone MCheok MGalloway 

DATE 09/01/15 11/17/15 11/17/15 11/20/15 11/19/15 11/24/15 

OFFICE NRR/DPR:DD NRR/DPR:D 

NAME AMohseni LKokajko 

DATE 11/25/15 12/04/15 

OFFICIAL RECORD COPY