The five members of the U.S. Nuclear Regulatory Commission unanimously terminated a decade-long, multimillion-dollar program to update federal regulations on material control and accounting (MC&A) of special nuclear materials.
“The Commission has disapproved the draft final rule,” Annette Vietti-Cook, secretary of the commission, wrote in an April 3 memorandum to NRC Executive Director for Operations Margaret Doane. “The staff should discontinue this rulemaking activity. The staff should evaluate the history of this rulemaking activity as a lessons-learned/case study under the agency transformation initiative.”
The commissioners posted their votes from Feb. 15 through March 22, with explanations of varying length, according to the summary of their decisions.
Commissioner Jeff Baran cited three major objections to the draft proposal, with concurrence from NRC Chairman Kristine Svinicki and other commission members: inconsistency on whether the updated rules should be performance-based or prescriptive; the absence of technical support for key elements of the update; and that many recommendations “would not result in any real-world safety or security benefit.”
The 1954 Atomic Energy Act designates plutonium, uranium-233, and uranium enriched in uranium-233 or uranium-235 as special nuclear material. These materials contain fissile isotopes that can be used in nuclear weapons. Facilities that hold the materials are ranked in Category 1, 2, or 3, in descending risk levels.
Rules for material control and accounting are primarily covered under Part 74 of Title 10 of the Code of Federal Regulations, which sets requirements on NRC nuclear facilities or materials licensees.
The long rulemaking process began with an April 2008 plan from NRC staff that laid out six options for updating MC&A regulations. The next year, the commission selected a limited process to revise, clarify, and augment the standing rules.
After an extended development and public input notice, staff in November 2012 presented the commission with a proposed rule. In May 2013, the commission rejected publication of the document over its “two-person” provision, which would have mandated having no fewer than two “authorized and qualified persons” present for any applicable data collection and reporting operation. Staff removed that provision rather than continuing the analyze it, and initiated another comment period of the updated proposed rule.
Doane last October presented the commission with a draft final rule that with a set of new requirements, including:
- Consolidating common aspects of general performance objectives for licensees into the general provisions subpart of the existing rule, rather than spreading them through multiple subparts. They would then have applied to nuclear reactors, spent fuel storage pads, monitored retrievable waste storage installations, and other licensees allowed to hold more than 350 grams of special nuclear material. Those licensees would also have been newly required to manage access to MC&A information.
- Category 2 and 3 licensees, with materials of moderate or low strategic significance, would have been required to create and manage item control systems detailing the amounts and location of special nuclear materials.
- The updated rule would have expanded the requirement for maintaining tamper-safing procedures, if a licensee is using tamper-safing, to Category 3 sites. Federal regulations define tamper-safing as “the use of devices on containers or vaults in a manner and at a time that ensures a clear indication of any violation of the integrity of previously made measurements of special nuclear material within the container or vault.” The directive on procedures now applies only to Category 1 and 2 licensees.
- Licensees would have been required to establish at least one material balance area and item control area, zones used to ensure special nuclear materials are under control and accounted for. Material custodians would be mandatory to supervise the areas.
In a more-than two-page response to the draft rule, Baran particularly criticized what he said was staff’s “prescriptive” approach to requiring licensees to meet facility performance objectives, rather than allowing them to consider multiple methods for achieving the necessary end.
As one example, he noted that licensees are not forced to establish material balance areas, item control areas, and material custodians, but that all Category 3 licensees have taken those steps to meet the mandate to keep track of their special nuclear material. “The draft final rule would keep this performance-based requirement and then add a prescriptive requirement to take these specific actions,” he wrote. “I have not heard a convincing rationale for this approach, and it is unclear what problem needs to be solved.”
Baran, an attorney and former Democratic congressional staffer, wrote that staff affirmed that general performance objectives were not expected to force revisions to “current effective licensee practices.” But they would still have to evaluate their MC&A operations – additional paperwork with doubtful value to strengthening safety and security, he said.
Other commissioners joined Baran in questioning the ultimate value of the draft rule.
“The staff has spent ten years and several million dollars working on this rulemaking yet the package fails to provide an adequate basis for a Commission finding that these changes to the MC&A regulations are necessary,” Commissioner Annie Caputo wrote in her comments.
The rulemaking proceeding cost just over $2 million, NRC spokesman David McIntyre said Friday. By statute, 90% of agency costs must be recovered through licensee fees. There was no immediate word on whether fees covered this proceeding.
The regulator has not yet set a specific approach for the lessons-learned review, McIntyre said by email. “The staff will be evaluating this rulemaking activity to identify any opportunities for improvement and lessons learned insights to help inform future agency efforts as applicable.”
