March 13, 2014 

MEMORANDUM TO: Adelaide Giantelli, Chief, Source Management and Protection 

Branch, MSSA, FSME 

FROM: Paul Goldberg, Source Management and Protection Branch, 

MSSA, FSME /RA/

SUBJECT: Questions and Answers Concerning the Application of 10 CFR 

Part 37 to Licensees with Part 73 Security Plans 

The attached questions and answers are responses from the U.S. Nuclear Regulatory 

Commission (NRC) staff, approved by the Office of General Counsel, to questions from the 

Nuclear Energy Institute (NEI) on how 10 CFR Part 37, Physical Protection of Category 1 and 

Category 2 Quantities of Radioactive Material, applies to nuclear reactors and other facilities 

with security plans under 10 CFR Part 73. They were made public on the NRC website at 

http://www.nrc.gov/security/byproduct/nei-pt-37.pdf and provided to NEI on October 9, 2013. 

 
Page 1 of 6

Question Staff Answer

1 In the FR notice II.A.3-(16925) 

When the NRC rescinds the

orders for NRC Licensees, will the 

orders be declassified from SGIM at that time? Also will the

declassification have an impact

on Agreement State Licensees

that may have similar orders that

are not rescinded at the same

time?

Will the NRC list the NRC orders

that are being rescinded by Part

37 one year after the final 

publication date? (78 FR16925)

The NRC staff proposed a direct final rule to the Commission 

(SECY-13-0045) that would remove the Safeguards Information –

Modified Handling (SGI-M) designation of security-related 

information. The direct final rule applies to any panoramic and 

underwater irradiator licensees that possess more than 370 TBq 

(10,000 Ci) of radioactive material, Manufacturing and Distribution 

(M&D) licensees, and any licensee that transports small quantities of 

irradiated reactor fuel that weigh 100 grams or less in net weight or

category 1 quantities of byproduct material whether the facility is 

licensed by the NRC or an Agreement State. Irradiated fuel 

consists of spent fuel pellets, and does not include low levels of 

contamination on equipment, samples, or in low level waste.

The rule package was approved by the Commission in SRM-SECY13-0045 on August 6, 2013 (ML13225A473). NRC will provide 

additional guidance on disposition of SGI-M material. Once the rule 

is effective, the NRC will rescind the orders by issuing letters to the 

licensees that received orders. The implementation plan that was 

included in SECY-11-0170 provides tables that list the orders the 

agency planned to rescind. 

Agreement State licensees will continue to be subject to the SGI-M 

provisions of the orders until the NRC rescinds the orders after the 

Agreement State adopts the provisions of 10 CFR Part 37. Once an 

Agreement State adopts the requirements of 10 CFR Part 37 and the 

provisions are effective in the State, the NRC will rescind all security 

orders for the licensees in that State. 

2 In the FR notice II.A.11- The

reference to Licensees in an

Agreement State is applicable to

10 CFR Part 30 Licensees and 

not 10 CFR Part 50, 52 Licensees 

whose license also authorizes

use of Part 30, 40, and 70

material. Please confirm since the

Agreement States have three

years to issue compatible 

requirements.

The question (78 FR16927 II.A.11) asks when the final rule will be 

effective. NRC licensees must comply with the final rule for 10 CFR 

Part 37 one year after its publication date which was March 19, 

2013. Therefore, if your possession of byproduct material is 

authorized by an NRC license, you are required to be in compliance 

with Part 37 by March 19, 2014. 

The Agreement States are required to issue compatible 

requirements within 3 years of the publication date of the final rule 

(March 2016). If your possession of byproduct material is authorized 

by an Agreement State license, you must comply with the compatible 

requirements of that Agreement State on the date specified by the 

Agreement State. 

3 Question #3

FRN II.A.4 (16925)-Does the

NRC expect the reactor security 

plan required by part 73 to 

include specific requirements

related to radiography sources, 

Category 1 and 2 sources, etc.

Note: The NRC staff is addressing questions 3, 4, 8, 9, 10 and 

11 in a single consolidated response because the questions are 

very similar and all pertain to the exemption language in 

§37.11(b). 

Security Plans - 10 CFR 37.11(b) provides that “any licensee’s NRClicensed 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 10 CFR Part 73 (Part 73) of this chapter.” 
Page 2 of 6

Question #4

Part 37.11(b) – Is the expectation

based on the requirement that the

Licensee’s Physical Security Plan

(required by part 73) include

elements of the requirements

from part 37 subparts B and C?

Question #8

Part 37.11(b) – I am a Part 50, 52

licensee and have a dosimetry 

calibrator that is greater than a

category 2 quantity stored inside

of my protective area. What do I 

need to do to meet the exemption

requirements of this section?

Question #9

Part 37.11(b) – I am a Part 50, 52

licensee and have a dosimetry 

calibrator that is greater than a

category 2 quantity stored outside

of my protective area but inside of

the owner controlled area. What

do I need to meet the exemption

requirements of this section?

Question #10

Please explain NRC’s

expectations for licensees with

Part 73 security programs that 

elect to protect Category 1 and 2

materials under their Part 73

security programs. How does

NRC envision this being

implemented – please discuss

any expectations for updates to 

physical security plans. Please

discuss which elements of Part 

73 would be sufficient to

implement.

Question #11

Physical protection under Part 73

is not the same for all licensees

(e.g. power reactors and fuel

cycle facilities). Will licensees

that elect to protect Category 1

and 2 materials under Part 73 be

afforded flexibility with respect to

the different levels of protection

contained within the regulations?

Therefore the licensee can choose to protect risk-significant (IAEA

Category 1 and 2) byproduct material (hereafter referred to as risk 

significant byproduct material) using a Part 73 physical security plan 

(Part 73 plan) approved by the NRC, or in a separate 10 CFR 37

security plan (Part 37 plan). If the licensee is using its Part 73 plan 

to secure materials, he should document how they are protected 

against theft and diversion.

Part 73 Security Plans - If a licensee chooses to protect the material 

using a Part 73 plan, then the licensee must revise the Part 73 plan 

and procedures to include protection of risk significant byproduct

material (since most Part 73 plans are only designed to protect 

special nuclear material). If revisions are made to a Part 73 plan, the 

updates must be submitted to NRC in accordance with §50.54, and 

§70.32, as applicable. The documentation should identify the 10 

CFR Part 73 protective measures that are being credited (e.g., 

background investigations, access controls, and physical protection 

(such as access controls, physical barriers, intrusion alarms, 

weapons, tactical response).

Under a Part 73 plan, the level of effort required to ensure equivalent 

protection to Part 37 requirements will depend on the location of the 

material and how that location equates with the “security zones” 

described in 10 CFR §37.47, as well as the security measures that 

are in place for that location. Generally, if risk significant byproduct

material is inside the protected area (PA) of a power reactor, ISFSI

or Category I SNM facility, the existing physical security measures 

required by Part 73 for the PA would provide protection equivalent 

to or greater than that required by the10 CFR Part 37 performance 

requirements. 

However, if the risk significant byproduct material is outside the PA, 

a Part 73 plan is not likely to provide equivalent protection (unless 

substantially modified to meet the performance requirements of 10 

CFR Part 37). If using a modified Part 73 plan for areas outside the 

PA, the modified plan must provide documentation describing how 

the plan provides a level of protection equivalent to 10 CFR Part 37, 

Subparts B and C. Licensees would also have the option of moving 

the risk-significant material into the PA.

Part 37 Security Plans

In lieu of a modified Part 73 plan, licensees may choose to develop a 

10 CFR Part 37 security plan (Part 37 plan). A Part 37 plan may 

incorporate by reference, and take credit for, the protective 

measures of a Part 73 plan (thereby eliminating the need to revise a 

Part 73 plan to include protection of risk significant quantities of 

byproduct material). 

Part 37 plans that do not rely on a revised Part 73 plan shall 

establish, describe, and document the protective measures 
Page 3 of 6

necessary to achieve the performance objectives of Part 37 plans 

are not required to be submitted to NRC.

Note 1: Activated material is defined as neutron irradiated 

objects (objects internally contaminated with radioactive material 

are not considered activated materials). 

Note 2: Large area surface contamination (e.g., in a reactor 

building) is not included in the determination of aggregated 

material, since this material is not subject to theft in quantities 

exceeding Category 1 or 2 quantities.

Removal of Radioactive Material from Security Zones

Security plans should address temporary security arrangements for 

removal of risk significant byproduct material from security zones 

and establishment of temporary security zones. Location of 

temporary security zones need not be documented in the Part 73 

plan or procedures

5 Part 37.11(c)-Do items 1-4 apply 

to a steam generator or reactor 

vessel head mausoleum? 

Typically these storage facilities

may not be identified as

radioactive waste storage.

Part 37 focuses on protection of risk significant quantities of 

radioactive material and does not name specific facilities, 

components, or areas that need to comply or do not need to comply.

Walls and component parts that become activated throughout their 

life are not considered to be waste until they are no longer useful for 

their intended purpose. Licensees are responsible for making the 

determination of when material will be no longer useful (considering 

the potential for spare parts, or recycling into other products or sale

for other purposes). The regulations in 10 CFR Part 37 do not apply 

to activated material in walls and components during the operating 

life of a reactor, hot cell, or accelerator. Once the licensee removes 

activated material from use (whether from maintenance or during 

decommissioning) and declares the rubble or removed components 

as waste, then 10 CFR Part 37.11(c) criteria would apply.

6 Part 37.11(c) – Does the criteria

'weighs less than 2,000 kg (4,409

lbs)' apply to discrete sources, 

ion-exchange resins, activated 

material or does that criteria only

apply to activated material? 

[NUREG 2155 includes “and 

activated material that weighs

less than2,000 kg (4,409lbs)]”

The 2000 kg criterion applies only to activated material (activation of 

objects such as metal components or individual concrete slabs that 

become radioactive through exposure to neutron flux). 
Page 4 of 6

7 FRN Response to Comment B43-

The response implies that the 10

CFR part 73 procedures address

the content of the required 

procedures under 10 CFR part 

37. Is this specific to subpart B or 

all subparts? Also is this

requirement codified and what is

the citation in 10 CFR part 37?

The comment and NRC response both pertain only to 10 CFR Part

37, Subpart B. The commenter noted that “ the procedures used for 

10 CFR Part 73 background investigations and updating of 

background investigations, etc., should be considered adequate to 

meet the intent of 10 CFR Part 37.” NRC agreed that a licensee 

does not need to maintain two sets of procedures for access 

authorization. Grandfathering of individuals found to be trustworthy 

and reliable under the provisions of 10 CFR Part 73 is addressed in 

§ 37.25(b).

12 Can NRC please explain in detail

the exemption in 37.11(c) as it

applies to LLW?

The security requirements of Part 37 Subparts B, C and D apply in 

their entirety to the following wastes that contain Category 1 and 2 

quantities:

 discrete sources

 ion-exchange resins

 activated material < 2,000 kg (i.e., irradiated metal or 

concrete)

Other waste forms are exempted from the security requirements of 

Subpart B, C, and D. However, these waste forms, such as 

contaminated clothing, gloves, soil, or low specific activity waste, 

must meet the security requirements of §37.11(c) (1) through (c) (4)

if they contain Category 1 and 2 quantities.

13 What are NRC’s expectations for

implementation of 37.11(c)(1-4)? 

Specifically, has NRC considered 

what would be acceptable to

meet the intent of 1-4?

NRC believes the language in the rule is clear as written in 37.11(c), 

which states that the licensee shall implement the following 

requirements to secure the radioactive waste:

§ 37.11(c)(1)

Use continuous physical barriers that allow access to the radioactive 

waste only through established access control points;

§ 37.11(c)(2)

Use a locked door or gate with monitored alarm at the access control 

point;

§ 37.11(c)(3)

Assess and respond to each actual or attempted unauthorized 

access to determine whether an actual or attempted theft, sabotage, 

or diversion occurred; and 

§ 37.11(c)(4)

Immediately notify the LLEA and request an armed response from 

the LLEA upon determination that there was an actual or attempted 

theft, sabotage or diversion of the radioactive waste that contains 

category 1 or category 2 quantities of byproduct material.
Page 5 of 6

14 Would it be acceptable to 

implement physical controls as

described in RG 8.38, section 1.5, 

specifically applying substantial

barriers (e.g., bolted access

covers, covers that require heavy 

equipment to open) as an

alternate means to meet the

requirements of 10 CFR 

37.11(c)(2) and (3)?

No. The physical controls described in Regulatory Guide 8.38 only 

provide reasonable assurance that the area is secure against 

unauthorized access by individuals trained in radiation protection.

This is quite different from the intent of Part 37, which is to prevent 

theft or diversion of risk-significant material for malicious purposes, 

or acts of sabotage.

The specific measures described in the question may meet the 

requirements of 10 CFR 37.11 (c)(1) and (c)(2). However, the 

described physical control measures do not appear to address the 

10 CFR 37.11 (c)(3) requirement to assess and respond to actual or 

attempted unauthorized access in order to determine whether an 

actual or attempted theft, sabotage, or diversion occurred or the 10 

CFR 37.11 (c) (4) requirement to notify local law enforcement and 

request an armed response upon determination of an actual or 

attempted theft, sabotage, or diversion.

A request for alternative measures to 10 CFR 37.11 (c)(1), (c)(2) and 

(c)(3) would need to be reviewed on a case by case basis as an 

exemption request under 37.11(a). 

15 Can NRC please explain how

safeguards information is

expected to apply to Part 73 

licensees? If licensees choose to 

protect Category 1 and 2

materials under Part 73, will the

scope of SGI maintained at these

facilities increase?

The scope of SGI maintained at a facility would not increase. The 

physical security plan required under Part 73 is designated SGI. 

Information added to that plan for the purposes of compliance with 

Part 37 would not change the designation. No new SGI 

requirements are associated with Part 37. As noted in question 1, a 

forthcoming rule change will remove the SGI-M designation for 

protected information. The requirements of the orders for protection 

of SGI-M will remain in effect in the meantime.

16 Can NRC address how/when it 

will rescind

RAMQC orders and discuss how

SGI will be addressed in Subpart

D?

As discussed in the Part 37 Implementation Plan (ML113290229), 

NRC security orders will be rescinded by letter in a timeframe to 

coincide with the compliance date for the rule. As noted in question 

1, a rulemaking is underway to remove the SGI-M designation for 

protected information associated with Category 1 and 2 materials. 

The requirements of the orders for protection of SGI-M will remain in 

effect in the meantime. NRC Orders, related security plans, and any 

other documents that are designated SGI-M must be protected in 

accordance with the orders until compliance with the requirements of 

Part 37 is required and the orders are rescinded, at which time the 

SGI-M materials must be destroyed.

17 Can NRC please discuss the

primary differences between

Subpart D and RAMQC?

Please refer to the regulatory crosswalk in the Implementation Plan, 

which includes a comparison of the RAMQC orders and Part 37.

18 Would it be acceptable for 

licensee’s to

designate their Reviewing officials

(RO) in accordance with 10 CFR 

73.56 requirements and not

require fingerprints of the RO’s to

be taken by a law enforcement 

agency as delineated in 37.23?

Yes, the access authorization programs required by NRC regulations 

and orders for power reactors, non-power reactors, utilization 

facilities and fuel facilities are deemed adequate for compliance with 

Part 37 and licensees need not create a separate program.
Page 6 of 6

19 Would it be acceptable to grant

access based on background

investigations conducted in 

accordance with 10 CFR 73.56

(employment history, military, 

education and personal 

references) in lieu of the criteria in

section

37.25?

Yes, the access authorization programs required by NRC regulations

and orders for power reactors, non-power reactors, utilization 

facilities and fuel facilities are deemed adequate for compliance with 

Part 37 and licensees need not create a separate program.

20 Would it be acceptable for 

licensees currently authorized 

under 10 CFR 73.57 to continue

to collect and submit fingerprints

directly to the FBI without having 

to submit the fingerprints to the

NRC as specified in 37.27?

Under §73.57(b)(2)(iii) Any licensee currently processing criminal 

history requests through the FBI pursuant to Executive Order 10450 

need not also submit such requests to the NRC. Though not 

explicitly stated in §37.27, NRC considers that continuing this 

practice meets the intent of Part 37.