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RULEMAKING ISSUE SECY-07-0203 November 20, 2007
To obtain Commission approval to initiate a rulemaking to update, clarify, and correct 10 CFR Part 110 (Part 110) to improve NRC's regulatory framework for the import and export of nuclear equipment, material, and radioactive waste. The NRC staff is proposing to amend Part 110, "Export and Import of Nuclear Equipment and Material." In Staff Requirements Memorandum (SRM) SECY-06-0171, dated September 21, 2006, the Commission approved the staff's recommendation to amend Part 110 to allow export licensees for Category 2 quantities of radioactive material to verify that the recipient of the material has the necessary authorization (usually in the form of a license) under the laws and regulations of the importing country to receive and possess the material. In a memorandum to the Commission dated February 2, 2007 (ADAMS Accession No. ML070370079), OIP stated that the most effective and efficient manner to amend Part 110 to allow export licensees of Category 2 quantities of radioactive material to verify the authorizations from the importing country is as part of a larger rulemaking to update, clarify, and correct several provisions of Part 110. This memorandum also informed the Commission that staff planned to amend Part 110 to allow imports of Category 1 and 2 quantities of materials under an NRC general license. As discussed in the "Background" above, the staff proposes to make the changes related to the import and export of Category 1 and 2 quantities of material listed in Appendix P to Part 110 as part of a larger rulemaking to update, clarify, and correct several provisions of Part 110 pertaining to the import and export of nuclear equipment and material. Further, due to the ongoing large number of inquiries received by the OIP staff regarding NRC's import and export requirements for radioactive waste, the OIP staff determined that the current radioactive waste regulations need to be amended. Those proposed changes are discussed below and in more detail in the enclosed Rulemaking Plan. Determinations concerning licensing requirements for imports and exports of radioactive waste are performed on a case-by-case basis. A substantial amount of time is spent evaluating questions and consulting with the Office of Nuclear Material Safety and Safeguards, the Office of Federal and State Materials and Environmental Management Programs, and the Office of the General Counsel staff to determine whether a specific license is required or the general license can be used for potential imports and exports of waste that contains or is contaminated with very small quantities of radioactive material. The regulations in Part 110 provide no flexibility and require issuance of specific licenses for all imports and exports of any waste that contains or is contaminated with source, special nuclear, or byproduct materials including extremely small quantities of such material. This is inconsistent with international practice which allows a competent authority to permit non-licensed transfers of exempt quantities of radioactive materials including waste. It also is inconsistent with the domestic treatment of radioactive waste. Consequently, the staff proposes to amend the regulations in Part 110 to facilitate the licensing process for imports and exports of radioactive waste and improve the efficiency and consistency of licensing actions. OIP staff has identified several sections in 10 CFR Part 110 that require updates, clarifications, and corrections. For example, the staff proposes to rewrite 10 CFR 110.23 to clarify and correct the requirements for the export of byproduct material. For example, section 110.23(a)(3) includes incorrect activity threshold levels of the export of americium-241. OIP staff regularly receives questions regarding the application of section 110.23 from the regulated community and from NRC staff. OIP staff also proposes to amend section 110.40, "Commission review," to explicitly require Commission review of export applications of radioactive material listed in Appendix P involving exceptional circumstances or Category 1 quantities of materials to any country on the restricted or embargoed destination lists. Further, the staff proposes to revise section 110.40 to reduce the number of mandatory Commission reviews of exports and focus on Commission review of license applications for export that raise significant policy issues. These and other proposed changes are discussed in detail in the enclosed Rulemaking Plan. That the Commissioners approve the plan to proceed with the proposed rulemaking to amend Part 110 in accordance with Option 2 in the enclosed rulemaking plan. The resources to conduct the rulemaking are estimated to be 2.5 NRC FTE for the period FY 2008-2009. These resources are included in the current budget. The Office of General Counsel has no legal objection to this rulemaking plan. The following offices concur on this rulemaking plan: Offices of Federal State Materials and Environmental Management Programs, Nuclear Material Safety and Safeguards, Nuclear Security and Incident Response, Nuclear Regulatory Research, Enforcement, and Administration. The Office of the Chief Financial Officer has reviewed the rulemaking plan for resource implications and has no objections. The Office of Information Services has reviewed this rulemaking plan for information technology and information management implications and concurs in the plan.
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