TO: 

FROM: 

SUBJECT: 

RESPONSE SHEET 

Annette Vietti-Cook, Secretary 

Chairman Burns 

COMJMB-16-0001: PROPOSED STAFF 

RE-EVALUATION OF CATEGORY 3 SOURCE 

ACCOUNTABILITY 

Approved XX Disapproved Abstain Not Participating 

COMMENTS: Below 

-- --

Attached XX None 

ft( August 2016 

DATE 

Entered in "STARS" Yes " No 
Chairman Burns' Comments on COMJMB-16-0001, "Proposed Staff Re-Evaluation of 

Category 3 Source Accountability" 

I appreciate Commissioner Baran issuing this memorandum calling for a re-evaluation of 

Category 3 source accountability in response to the recently released U.S. Government 

Accountability Office (GAO) report on the effectiveness of the NRC's radioactive material control 

program (GA0-16-330). I would like to acknowledge the on-going efforts in this area by the two 

NRG/Agreement State working groups that were established in response to the GAO's 

investigation. I appreciate the staff's prompt and appropriate measures to address GAO's 

concerns immediately upon presentation of GAO's preliminary findings in October 2015. 

I am not convinced that GAO's covert testing identified a regulatory gap. The GAO's covert 

testing revealed a single, isolated failure on the part of an individual in one of our 37 Agreement 

State partners to fully implement the pre-licensing site visit guidance that was put in place 

following the GAO's 2007 audit of the licensing process. The NRC, 13 of its federal 

counterparts, and the Agreement States, have continuously evaluated radioactive source 

security over the past 10 years, as required by the Energy Policy Act of 2005, and have not 

identified any significant regulatory gaps in source security. Most recently, the Task Force on 

Radiation Source Protection and Security reaffirmed the focus on higher-risk Category 1 and 2 

sources in its August 2014 report by stating, "the global use of radioactive sources has 

remained stable both in species and quantity such that the addition of novel radionuclides or 

changes in thresholds for the existing list is not justified at this time." The agency has been 

deliberate in its application of enhanced security requirements and the elimination of the good 

faith presumption in a logical, methodical, and risk-informed manner. The current NRC 

regulations for transfers of radioactive sources are adequate to protect public health and safety, 

commensurate with the associated risks. 

However, I agree with Commissioner Baran that now that we, as an agency, have a period of 

operating experience with the higher-risk sources and in light of GAO's findings, it would be 

appropriate to evaluate whether it is necessary to revise our regulations or processes governing 

source protection and accountability to continue to ensure adequate protection of public health 

and safety. 

Therefore, I approve Commissioner Saran's proposal to direct the staff to submit a notation vote 

paper to the Commission that includes the following : 1) an evaluation of the pros and cons of 

different methods of requiring transferors of Category 3 sources to verify the validity of a 

transferee's license prior to transfer; 2) an evaluation of the pros and cons of including Category 

3 sources in the National Source Tracking System; and 3) based on these evaluations, options 

for addressing the GAO recommendations. I would also ask that the staff's notation vote paper 

include a review of our overall source protection and accountability strategy for all radioactive 

sources. 

The staff is currently finalizing an assessment of the security requirements in 10 CFR Part 37, 

as required by the Energy and Water Development and Related Agencies Appropriations Bills 

for Fiscal Year 2015. Any resulting recommendations and lessons learned from this 

assessment should be used to inform the staff's evaluation of the overall source protection and 

accountability strategy. The staff should specifically review how Category 3 sources are 

licensed and the appropriateness of current safety and physical protection requirements for 

Category 3 sources. As this would be no small effort, and as to not interfere with completing the 

required report to Congress on the effectiveness of Part 37, the staff's evaluation and notation 

vote paper should be provided to the Commission within 10 months of the issuance of the Staff 
Requirements Memorandum. The staff should continue to collaborate with its Agreement State 

partners, as well as industry including the reactor community, to fully assess the regulatory 

impact for any recommendations made in the notation vote paper. 
TO: 

FROM: 

SUBJECT: 

RESPONSE SHEET 

Annette Vietti-Cook, Secretary 

COMMISSIONER SVINICKI 

COMJMB-16-0001: PROPOSED STAFF 

RE-EVALUATION OF CATEGORY 3 SOURCE 

ACCOUNTABILITY 

Approved XX Disapproved Abstain Not Participating -- -- --

COMMENTS: Below Attached XX None 

Entered in "STARS" 

DATE 

Yes _L No __ 
Commissioner Svinicki's Comments on COMJMB-16-0001 

Proposed Staff Re-evaluation of Category 3 Source Accountability 

As a member of the Commission who voted in 2009 to disapprove issuance of a rule to amend 

10 CFR Parts 20 and 32 to expand the National Source Tracking System (NSTS) to include 

additional specific licensees that possess sealed sources containing the International Atomic 

Energy Agency (IAEA) Category 3 threshold quantities of radioactive material, I stand by my 

decision in that matter as sound and reasonable. As I noted at that time, the rulemaking 

establishing the NSTS for Category 1 and Category 2 sources provided a specific rationale for 

the tracking and inventory requirements for these sources, in the form of an analysis by the U.S. 

Department of Energy and the NRC of potential health effects due to misuse of sources in a 

radiological dispersal device or radiological exposure device. This analysis identified "quantities 

of concern" as those constituting IAEA Category 2 threshold values. In 2009, the NRC staff did 

not conduct or provide an analyzed threat basis other than this upon which to expand the NSTS, 

a failure that the Commission's deliberation could not remedy. 

In the absence of an alteration in the threat with respect to these sources, a possible basis for 

expanding the NSTS would be the identification of a regulatory gap. In 2009, as now, I do not 

conclude that the GAO's covert testing has identified a gap in our regulations . The GAO's 

covert testing demonstrated an individual failure on the part of a State regulatory official in an 

Agreement State agency; specifically, a failure to execute the pre-licensing site visit element of 

the security program that was put in place following the GAO's 2007 audit of the licensing 

process and was operative at the time of the GAO's covert testing. 

Much as a failure to implement or enforce existing law cannot be remedied by passing 

additional laws, evidence indicating a failure to implement existing regulations properly or 

enforce them adequately can only be addressed through root cause investigation of inspection, 

enforcement, and oversight processes and the implementation of corrective actions directed at 

remedying the root causes of the deficiencies found. In this vein, I share the Chairman's 

conclusion that the NRC "has been deliberate in its application of enhanced security 

requirements and the elimination of the good faith presumption in a logical, methodical, and riskinformed manner. The current NRC regulations for transfers of radioactive sources are 

adequate to protect public health and safety, commensurate with the associated risks." 

Arguments that sources at the high end of Category 3 can be aggregated to Category 2-levels 

are similarly unavailing. Such arguments are inherent to any scheme that manages hazard 

through the application of a set of graded requirements, escalating in stringency as one 

progresses through the categories. Such categorization approaches are replete in the NRC 

regulatory framework for managing hazard and the logic of aggregation, lacking more, does not 

invalidate them. 

Consistent with our commitment to assess our regulations continually for changed 

circumstances and new information, however, the staff is currently engaged in a comprehensive 

assessment of the agency's security regime in this area. I agree with Chairman Burns that an 

orderly process must provide for completing this assessment and factoring the results from it 

into the evaluation called for by Commissioner Baran, conducting them sequentially and not in 

an overlapping manner. The evaluation of possible expansion of NSTS would best be informed 

by the staff's ongoing broader evaluation of the overall source protection and accountability 

strategy for sources. Any proposed expansion must also include a vulnerability assessment 

and an evaluation of impacts (i.e., whether safety and security benefit commensurate with or 
exceeding any costs or foregone benefits resulting from the proposed change would be 

realized). 

In light of this, I approve Commissioner Saran's proposal, predicated on its initiation after 

completion of the ongoing staff assessment due to the Congress at the end of this year and 

subject to its expansion to incorporate the full set of considerations needed for fully-informed 

and rigorous regulatory decision-making. These expanded elements include the following : 

1. A vulnerability assessment which identifies changes in the threat environment between 

2009 and today that argue in favor of or against expansion of the NSTS to include 

Category 3 sources. 

2. A regulatory impact analysis of the accrued benefit and costs of the change, to include 

impacts to the NRC, Agreement States, non-Agreement States, and regulated entities. 

3. A discussion of potential regulatory actions that would not require changes to our 

regulations that arose from or were considered by the staff working groups, to include 

changes to guidance, training , and other program improvements such as more closely 

monitoring the implementation of the staff recommendations using the IMPEP process. 

4. Any other factors arising from the staff's currently ongoing assessment that the staff 

concludes would bear on the Commission's deliberation on the proposed change. 

I do not, however, join in the Chairman's call to expand the assessment to include "all 

radioactive sources." I would limit the question to the expansion of NSTS to include Category 3 

sources, as advanced by Commissioner Baran. Additionally, because this expanded reevaluation would be more resource and time intensive than Commissioner Saran's initial 

proposal, the staff should provide a notation vote paper with its re-evaluation and any 

recommendations for proposed expansion of NSTS to Category 3 sources to the Commission 

within 12 months of the date of the Commission's staff requirements memorandum in this 

matter. 

Finally, the staff should develop its recommendations through continued collaboration with the 

Agreement States but should also engage non-Agreement States, regulated entities, public 

interest groups, industry interest groups such as those in the medical and industrial fields, and 

other regulated entities. Public meetings should be considered by the staff as a possible 

outreach mechanism. 

~4. riStin€!L'.SV%icki 21 September 2016