Natural Resources Defense Council; Denial of Petition for Rulemaking, 4493-4498 [2010-1751]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 75, Number 18 (Thursday, January 28, 2010)]
[Proposed Rules]
[Pages 4493-4498]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-1751]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 75, No. 18 / Thursday, January 28, 2010 / 
Proposed Rules

[[Page 4493]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 50

[Docket No. PRM-50-90; NRC-2008-0279]


Natural Resources Defense Council; Denial of Petition for 
Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; Denial.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking submitted by the Natural Resources Defense Council (PRM-
50-90). The petitioner requested that the NRC amend the regulations 
that govern domestic licensing of highly enriched uranium (HEU) 
production and utilization facilities to establish a date when the NRC 
would no longer license the domestic use or export of HEU except for 
restricted use by a few specialized facilities. The petitioner has not 
demonstrated that existing NRC licensing, security and export 
regulations do not currently provide for reasonable assurance of 
adequate protection of the public health and safety, and the common 
defense and security of the United States.

ADDRESSES: You can access publicly available documents related to this 
petition for rulemaking using the following methods:
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Public 
File Area O1 F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's electronic Reading Room at https://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC PDR 
reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to 
pdr.resource@nrc.gov.
    Federal Rulemaking Web site: Public comments and supporting 
materials related to this petition for rulemaking can be found at 
https://www.regulations.gov by searching on Docket ID: NRC-2008-0279. 
Address questions about NRC dockets to Carol Gallagher 301-492-3668; e-
mail Carol.Gallagher@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Robert Beall, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555. Telephone: 301-415-3874 or e-mail: Robert.Beall@NRC.Gov.

SUPPLEMENTARY INFORMATION:

The Petition

    The NRC received a petition for rulemaking dated March 24, 2008, 
submitted by the Natural Resources Defense Council (petitioner). The 
NRC published a notice of receipt and request for public comment on the 
petition in the Federal Register on May 27, 2008 (73 FR 30321). 
Commenters were given until August 11, 2008, to comment, and the 
comment period was subsequently extended to September 25, 2008 (73 FR 
49965, August 25, 2008).
    The petitioner requests that the NRC amend Title 10 of the Code of 
Federal Regulations (10 CFR) Part 50, ``Domestic Licensing of 
Production and Utilization Facilities''; 10 CFR Part 70, ``Domestic 
Licensing of Special Nuclear Material'', and other applicable 
regulations. Specifically, the petitioner requests that 10 CFR 50.64, 
``Limitations on the use of highly enriched uranium (HEU) in domestic 
non-power reactors'' and portions of Part 70 that govern the licensing 
of production, calibration, or reference sources be amended to 
establish a date by which the NRC would no longer license the civilian 
use of HEU in the United States (U.S.). The petitioner also requests 
that applicable NRC regulations governing the export of HEU from the 
U.S. be amended to establish a date after which the NRC would no longer 
license or otherwise authorize these exports.
    The petitioner believes that, with limited exceptions, a ban on the 
civilian use of HEU should be imposed and identifies three issues in 
this regard.
    1. The petitioner states that the NRC should not license the 
civilian use of HEU after December 31, 2009 (or an alternative date), 
except for use as reactor fuel at the MITR-II facility at the 
Massachusetts Institute of Technology (MIT), the Heavy Water Test 
Reactor at the National Institute of Standards and Technology (NIST), 
and the MURR facility at the University of Missouri. The petitioner 
states that these licensees should be required to work with the NRC to 
establish dates by which these reactors would be required to convert to 
using only low enriched uranium (LEU) fuel and report the progress 
toward fuel conversion annually to the NRC. The petitioner also notes 
that no commercial U.S. power reactors use HEU fuel and that no future 
plans to use HEU in NRC-licensed power facilities exist. The petitioner 
further states that the NRC continues to license the civilian use of 
HEU to fuel seven existing research and test reactors that have not yet 
converted to LEU fuel.
    The petitioner states that 10 CFR 50.64 prohibits continued use of 
HEU fuel in domestic non-power reactors if an LEU fuel alternative is 
available. The petitioner predicts that the three HEU-fueled TRIGA-type 
research reactors at Oregon State University, the University of 
Wisconsin, and Washington State University will be converted to LEU 
during the next 2 years. The petitioner also notes that the MIT, NIST, 
and MURR facilities are working with the Department of Energy (DOE) to 
develop HEU fuel alternatives but questions the accuracy of DOE's 
estimate that these facilities will be converted by 2014. The 
petitioner does not know if the only other facility in the U.S., (a 
small Nuclear Test Reactor (NTR) at General Electric's Vallectios 
Nuclear Center used for radiography) is scheduled for conversion to LEU 
but notes that the newer and larger LEU-fueled TRIGA facility at the 
McClellan Nuclear Radiation Center is also used for radiography.
    2. The petitioner requested that the NRC establish a date when HEU 
could no longer be licensed for export, citing as an example the export 
of HEU to licensees in Canada for Molybdenum-99 (Mo-99)/Technetium-99m 
(Tc-99m) medical radioisotope production. The petitioner states that a 
ban on the NRC-

[[Page 4494]]

licensed civilian use and export of HEU should apply to all facilities 
except those that (1) blend down existing HEU to LEU fuel for civilian 
power reactors; and (2) blend down HEU to lower concentrations (between 
20 to 40 percent U-235) of HEU for use at the MIT, NIST, and MURR 
facilities. The petitioner is not aware of any other civilian use of 
HEU other than for the export to Canada for use in producing Mo-99 for 
Tc-99m, the most widely used medical radioisotope in the world.
    The petitioner suggests that the Canadian supplier of medical 
radioisotopes, MDS Nordion, could convert to the use of LEU targets 
because at least two other Mo-99 producers have been doing so ``for 
more than 30 years.'' Although MDS Nordion would incur expenses 
associated with the conversion, the petitioner believes it would be ``a 
small price to pay for the elimination of HEU.'' The petitioner does 
not believe that establishing a firm date for ending civilian use of 
HEU in the U.S. or its export abroad would be detrimental to medical 
radioisotope production. However, the petitioner suggests that the NRC 
could authorize use of 20 to 40 percent-enriched HEU for a limited time 
if evidence is presented that complete elimination of HEU would not be 
practical for the MURR and MDS Nordion facilities. The petitioner 
states that a ``reduction from 93.5 percent enriched-HEU to 40 percent 
would only increase the target material requirement for Mo-99 
production by a factor of about 2.3.''
    3. The petitioner states that other countries will not likely ban 
the civilian use of HEU as long as similar use of HEU is permitted in 
the U.S. and that a U.S. ban would signal to other countries ``the 
imperative of eliminating vulnerable sources of HEU.'' In addition, the 
petitioner states that HEU cannot be reliably detected with radiation 
monitors that are at the ports and borders around the United States and 
moreover, the portals can be easily bypassed. The petitioner states 
that eliminating civilian HEU use is absolutely necessary because the 
greatest non-state threat to the U.S. is the risk that terrorists will 
acquire and use HEU to make an improvised nuclear explosive device. The 
petitioner states that eliminating HEU at its source should be this 
country's highest priority because the existing Federal HEU to LEU 
conversion programs are moving far too slowly to combat the threat.
    The petitioner would exempt from the proposed amendment the 
following: (1) HEU used for weapons and naval propulsion reactor fuel; 
(2) spent fuel and radioactive waste regulated by 10 CFR Part 72; (3) 
the use of HEU under exemptions in 10 CFR 70.11-70.17; and (4) small 
quantities for production of calibration or references sources covered 
under 10 CFR 70.19 and 70.20.
    The petitioner concludes that because LEU is available and can be 
used as research and test reactor fuel and as targets for medical 
radioisotope production, there is no reason to continue using HEU for 
such purposes. The petitioner states that the high national security 
risks of HEU use clearly outweigh the benefits. Therefore the NRC 
should no longer license the civilian use and export of HEU. The 
petitioner requested that the NRC conduct a rulemaking to establish the 
proposed amendments as detailed in the petition for rulemaking.
    The NRC determined that the petition met the threshold sufficiency 
requirements for a petition for rulemaking under 10 CFR 2.802 and the 
petition was docketed as PRM-50-90 on April 1, 2008.
    During the public comment period the petitioner sent in the 
following additional comments and modifications to the original 
petition (PRM-50-90):
    1. Delete the request to allow the use of lower enriched HEU for 
research reactors and radioisotope production because this would not be 
an improvement over setting a date when the use and export of HEU would 
not be authorized.
    2. Modify 10 CFR 50.64 to require each HEU licensed research and 
test reactor to set and periodically update a schedule with the NRC for 
the conversion from HEU to LEU fuel and to make a good faith effort to 
meet the schedule. If the licensee cannot make the schedule, the NRC 
would consider amending the schedule to enable the continued operation 
of the facility.
    3. In conjunction with the NRC, Canadian licensees would set and 
periodically update a schedule for the conversion from HEU to LEU 
targets for the production of Mo-99/Tc-99m. The Canadian licensees 
should make a good faith effort to meet the schedule. If the licensee 
cannot meet the schedule, the NRC would consider amending the schedule 
to enable the continued production of medical isotopes. (NRDC 1, NRDC 
2, and NRDC 3).

NRC Evaluation

    As a general matter, the petitioner's bases for requesting the 
regulatory changes appear primarily to be founded on foreign policy and 
national security concerns that are beyond the NRC's statutory purview 
under the Atomic Energy Act of 1954, as amended (AEA). The petitioner 
admits that ``this issue has less to do with the security of HEU used 
for civil activities in the United States than it does in signaling to 
other countries the imperative of eliminating vulnerable sources of HEU 
elsewhere.'' But the AEA does not provide the NRC with regulatory 
authority to deny licenses, whether for civilian domestic use or for 
exports, solely to promote certain foreign policy objectives, not 
otherwise directly related to NRC's AEA responsibilities and 
authorities. While the NRC works effectively to minimize the use and 
export of HEU until substantial LEU replacement options are available 
in conjunction with the Department of Energy's Global Threat Reduction 
Initiative, the NRC's licensing authority for HEU as well as other 
nuclear materials is strictly regulatory in nature and may only be 
exercised in accordance with the statutory scheme and congressional 
policies established in the AEA.
    With respect to matters within the NRC's authority, such as the 
licensing and security of domestic use and export of HEU, the 
petitioner has not provided a basis for the NRC to conclude that its 
regulations do not provide reasonable assurance of adequate protection 
of the public health and safety or the common defense and security or 
fail to implement other applicable statutory licensing requirements. 
For example, 10 CFR 50.64(b)(3) already provides the licensee the 
flexibility to use HEU enriched as close to 20 percent as possible. In 
addition, 10 CFR 50.64(c)(2) requires each research and test reactor 
licensee authorized to possess and use HEU fuel to submit an annual 
report to the NRC with a schedule and certification of funding for the 
conversion to LEU fuel. If the conversion funding is not available, the 
licensee must submit a proposal to the NRC with a new conversion 
schedule and certification of funding, if available, every 12 months. 
In addition to the restrictions of 10 CFR 50.64, the NRC has imposed a 
comprehensive scheme through its regulations, orders and other measures 
that ensure the security of HEU licensed for civilian domestic use. 
With respect to exports of HEU, the AEA's various requirements are 
contained in provisions throughout 10 CFR Part 110.
    Additional issues raised by the petition are addressed in the NRC's 
responses to the other comments that PRM-50-90 generated.

Public Comments on the Petition

    The notice of receipt of the petition for rulemaking invited 
interested persons to submit comments. The NRC received 4,764 comment 
letters: Two

[[Page 4495]]

from States, one from a Congressional Representative, three from 
private companies, ten from associated organizations, one from a 
private individual, two from state universities, one from the 
Department of Energy (DOE), and 4,744 electronic form comments 
generated by the public using the petitioner's Web site. Most of the 
comments focused on the three main elements of the petition previously 
outlined. The NRC reviewed and considered the comments and responses in 
its decision. A summary of the comments in support of and against the 
petition and the NRC's evaluation of the comments follows.
    Comment 1: Three commenters supported the petitioner's assertion 
that banning the civilian use of HEU would be the most effective way to 
decrease the risk of a terrorist attack. The commenters believe that 
there are inadequate radiation detectors at the borders of the United 
States for detecting HEU and that the physical security of this 
material is inadequate. The use of LEU in place of HEU would greatly 
reduce the risk of nuclear proliferation and the potential for 
diversion and use in terrorist attacks. (WNCPSR 1, AG 1, NPEC 1).
    NRC Response 1: The commenters' statements, which generally amount 
to assertions that HEU carries high nuclear proliferation risks, do not 
constitute bases for granting the rulemaking petition. As noted 
previously, the NRC's licensing authority under the AEA is solely 
regulatory in nature. The AEA contains no outright ban on NRC licensing 
of civilian use of HEU. Rather, under the AEA the NRC may not issue a 
license for civilian use of HEU if it finds that the license would be 
inimical to the common defense and security or the public health and 
safety.
    Acting in its regulatory capacity, it has been the Commission's 
policy for over 20 years to support and limit the domestic use of HEU, 
and it has taken a number of steps within the bounds of its authority 
to carry out this policy. For instance, in 1978, the United States 
Department of Energy started the Reduced Enrichment for Research and 
Test Reactors (RERTR) program. The goal of this program is the 
conversion of research and test reactors and targets from the use of 
HEU to the use of LEU. In 1982, the NRC issued a Statement of Policy 
fully supporting the RERTR program and stating that the NRC would act 
expeditiously to review the use of new LEU fuel types in non-power 
reactors (hereafter research and test reactors) (47 FR 37007, August 
24, 1982). In addition, the NRC stated that each HEU export license 
application will continue to be closely scrutinized to verify that the 
HEU export meets U.S. statutory requirements. In 2004, the RERTR 
program became part of the Global Threat Reduction Initiative (GTRI) 
\1\ conducted by DOE's National Nuclear Security Administration (NNSA).
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    \1\ For more information about the GTRI program see https://nnsa.energy.gov/nuclear_nonproliferation/1550.htm.
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    The structure of 10 CFR 50.64 recognizes certain limitations in the 
effort to convert research and test reactors from HEU to LEU. Since the 
inception of the RERTR program, it has been recognized that the process 
of converting from HEU to LEU fuel would require significant funding 
from Congress and would take a considerable amount of time. Because 
research and test reactors have special design features, conversion to 
LEU requires long lead times for developing, designing and testing new 
types of fuel to avoid serious losses in performance.
    However, 10 CFR 50.64 provides regulatory controls that directly 
address the limitations of time and funding. Until NRC-licensed 
research and test reactors are converted from HEU to LEU fuel, each 
domestic research and test reactor using HEU is required by 10 CFR 
50.64(c)(2) to submit an annual certification to the NRC on whether or 
not DOE funding for the LEU conversion is available along with a 
schedule of the conversion process. As indicated, Congress provides the 
funding to DOE to support the HEU to LEU conversion of research and 
test reactors, and therefore, speed and priority of the LEU conversion 
process is not under NRC's control. In addition, the NRC acknowledges 
that banning the use of HEU without a suitable LEU replacement in place 
would result in significant negative impacts relative to the operation 
of these research and test reactor facilities, and would likely result 
in the loss of the research and development benefits these facilities 
provide.
    With regard to the detection of HEU crossing U.S. borders, although 
the NRC works with the U.S. Department of Homeland Security (DHS) in 
the event there is a potential threat at the U.S. border from the 
export or import of radioactive materials, the NRC has no authority 
over this matter. DHS is responsible for the radiation detectors, and 
for controlling the borders of the U.S.
    Regarding the domestic security of HEU, 10 CFR 73.20, 73.25, 73.45, 
and 10 CFR Part 74 outline the physical protection requirements for 
possession, use, transportation and accounting of this material by NRC 
licensees. DOE is the sole U.S. supplier of HEU and the licensed 
possession and export of HEU requires a physical protection system that 
will provide a high assurance that the activity does not constitute an 
unreasonable risk to the public health and safety. Information 
concerning the site specific security measures to protect HEU activity 
is considered Safeguards Information under 10 CFR 73.22 and this 
information must be protected against unauthorized disclosure. 
Generally, the actual physical movement of HEU is performed using armed 
escorts and special vehicles designed to protect against the theft, 
diversion, or radiological sabotage of the material.
    In sum, the NRC strongly supports the use of LEU fuel and targets, 
rather than HEU, as set forth in its 1982 Policy Statement, and will 
continue to act expeditiously to authorize requested conversions of 
domestic licensee facilities. The NRC believes it already has adequate 
regulations in place to support the continued safe and secure use of 
HEU until a suitable replacement is available.
    Therefore, the NRC does not believe that Comment 1 provides a basis 
for granting the rulemaking petition.
    Comment 2: One commenter supported the elimination of HEU in the 
production of radioisotopes. In addition to the petitioner's 
statements, the commenter referenced an article in the Journal of 
American College of Radiology which concludes that the cost increase to 
consumers to have the manufacturers of radioisotopes switch to using 
LEU targets would be in the range of 1 percent to 2 percent. The 
commenter feels that this would not be an undue burden to the licensees 
to improve national security. (PSR 2).
    NRC Response 2: As noted above, the NRC may only exercise its 
export licensing authority within the confines of the statutory scheme 
and congressional policies reflected in the AEA. While the AEA 
establishes strict requirements for all NRC licensed exports of special 
nuclear material (i.e., the export licensing criteria under AEA section 
127 must be met, the NRC must have an AEA section 123 agreement for 
cooperation with the recipient country, and the NRC must find that the 
export would not be inimical to the common defense and security or the 
public health and safety of the U.S.), it establishes no congressional 
policy to ban outright NRC licensing of HEU exports regardless of 
whether the statutory criteria are satisfied.

[[Page 4496]]

    In the Energy Policy Act of 1992 (EPAct 1992), Congress amended the 
AEA to require the NRC to adopt additional, more stringent criteria 
specifically for licensing exports of HEU. Under Section 134 of the 
AEA, the NRC may issue a license for the export of HEU to be used as a 
fuel or target in a nuclear research or test reactor only if, in 
addition to meeting the other AEA requirements for exports of special 
nuclear material, the NRC determines that:
    (1) There is no alternative nuclear reactor fuel or target enriched 
to a lesser percent than the proposed export that can be used in the 
foreign reactor;
    (2) The proposed recipient of the uranium has provided assurances 
that, whenever an alternative nuclear reactor fuel or target can be 
used in that reactor, it will use that alternative in lieu of HEU; and
    (3) The U.S. Government is actively developing an alternative 
nuclear reactor fuel or target that can be used in that reactor.
    More recently, in the Energy Policy Act of 2005 (EPAct 2005), 
Congress further amended the AEA by adding a new section 134.b, 
``Medical Isotope Production,'' in which Congress continued to 
encourage the eventual end to relying on HEU targets in the production 
of medical radioisotopes. In the new AEA section 134.b, Congress lifted 
certain restrictions on exports of HEU to Canada, France, Belgium, 
Germany, and The Netherlands for the production of medical 
radioisotopes if the recipient country supplies an assurance letter to 
the U.S. that the HEU will be used solely for medical isotope 
production, and if the NRC determines that the HEU will only be 
irradiated in a reactor that uses alternative fuel or is the subject of 
an agreement with the U.S. to convert to alternative fuel when such 
fuel can be used in the reactor.
    The most common radioisotope produced for medical use is 
Molybdenum-99 (Mo-99)/Technetium-99m (Tc-99m). The U.S. uses about half 
of the world's production of these isotopes, for which there are no 
domestic producers. Almost all of the Mo-99/Tc99m is manufactured by 
four companies using HEU targets. In recent years, the NRC has only 
authorized exports of HEU target material to the Canadian medical 
radioisotope producer.
    In support of their request that the NRC ban altogether the 
civilian use and export of HEU, both the petitioner and the commenter 
suggest that the NRC may find at this time that the use of LEU targets 
for production of medical isotopes would be feasible and not cost-
prohibitive. However, as a regulator, it is not the NRC's role to 
determine in the first instance whether the use of LEU targets for 
medical isotope production is commercially feasible. As reflected in 
the NRC's response to Comment 1 and explained further below, that role 
belongs primarily to DOE.
    The EPAct 2005 supports continued safe, secure, and reliable 
production of medical radioisotopes using HEU from the U.S. until a 
suitable LEU-based substitute is available. In that act, Congress 
required the Secretary of Energy to arrange for the National Academy of 
Sciences (NAS) to conduct a study \2\ to determine:
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    \2\ National Academies of Science Report; ``Medical Isotope 
Production Without Highly Enriched Uranium''; https://www.nap.edu/catalog.php?record_id=12569.
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    (1) The feasibility of procuring supplies of medical radioisotopes 
from commercial sources that do not use HEU;
    (2) The current and projected demand and availability of medical 
radioisotopes in regular current domestic use;
    (3) The progress that is being made by DOE and others to eliminate 
all use of HEU in reactor fuel, reactor targets, and medical 
radioisotope production facilities; and
    (4) The potential cost differential in medical radioisotope 
production in the reactors and target processing facilities if the 
products were derived from LEU.
    The NAS study was issued in January of 2009, and identifies 
additional steps that could be taken by DOE and the medical 
radioisotope producers to improve the feasibility of HEU to LEU 
conversions. By August 2010, DOE is required to submit a report to 
Congress regarding the NAS findings, and on whether any commercial 
producers have committed to provide domestic requirements for medical 
radioisotopes without using HEU. Under the EPAct 2005, if any such 
commercial producers later become capable of meeting domestic 
requirements for medical radioisotopes without using HEU, the DOE is 
required to certify this to Congress, in which case the NRC will, by 
rule, terminate its review of HEU export license applications.
    Therefore, the NRC does not believe that Comment 2 provides a basis 
for granting the rulemaking petition.
    Comment 3: A total of 4,744 members of the public submitted the 
same comment urging the NRC to end the civilian use of HEU. The 
commenters believe that HEU could be diverted and used to build an 
improvised nuclear weapon and is simply too dangerous for continued 
commercial use here and abroad. In addition, these commenters express 
concerns that the facilities housing the nuclear material are poorly 
secured. These commenters state that recent studies have shown that 
radiation monitors cannot reliably detect HEU being smuggled into, and 
out of, the United States, so the most reliable plan would be to 
replace and ban its commercial sources. These commenters also state 
that a U.S. move to ban the use of HEU would signal to other countries 
the critical need to eliminate the use of HEU. (FORM 1, FORM 3).
    NRC Response 3: As previously discussed, the AEA does not authorize 
the NRC to ban outright the civilian use of HEU under all 
circumstances. Nor does the AEA authorize the NRC to deny export 
licenses solely to promote certain foreign policy objectives, such as 
encouraging other countries not to use HEU.
    The NRC can only act within the bounds of its regulatory authority 
under the AEA to protect the public health and safety and the common 
defense and security. As a regulator, the NRC has enacted a 
comprehensive regulatory structure to strictly control licensing of 
facilities for domestic use of HEU, as well as licensing of exports of 
HEU. In addition to NRC regulations, the NRC is confident that 
international treaties and standards governing possession, use, and 
export of HEU ensure that adequate controls are employed to reduce the 
risks of theft of HEU from civilian research and test reactors and 
medical radioisotope production facilities. In addition, the NRC 
participates in U.S. Government consultations with the governments of 
countries seeking exports of HEU from the United States. These 
consultations include an assessment of the security of facilities that 
will receive U.S. origin HEU, so the security of the facilities can be 
considered in determining whether an export license should be approved. 
Given these controls, the likelihood of acquiring U.S. origin HEU from 
a facility in the U.S. or elsewhere in amounts sufficient to make an 
improvised nuclear weapon is considered very remote. U.S. origin HEU 
fuel is manufactured, shipped, and maintained in limited quantities so 
that acquiring an amount necessary to make a weapon would be very 
difficult. In addition, converting HEU fuel into a form suitable for 
use as a weapon requires considerable technical expertise, due to its 
physical nature and design. Further, the GTRI program continues to make 
progress and to support the conversion of domestic and

[[Page 4497]]

foreign research and test reactors from HEU to LEU fuel.
    The security of research and test reactors is regulated through 
requirements located in 10 CFR Part 73 of the Commission's regulations. 
The specific security measures that are required vary depending on 
several factors, which include the quantity and type of special nuclear 
material possessed by the licensee, as well as the power level at which 
the licensee is authorized to operate. 10 CFR 73.60 and 73.67 require, 
at a minimum, that each research and test reactor that stores and uses 
special nuclear material in controlled access areas, (1) monitors the 
controlled access areas for unauthorized activities, and (2) ensures 
that there is a response to all unauthorized activities. These 
regulations also require that unescorted access to the controlled 
access areas be limited to authorized individuals. The research and 
test reactors implement these requirements on a site-specific basis 
through their security plans and procedures.
    Subsequent to September 11, 2001, the NRC evaluated the adequacy of 
security at research and test reactors and considered whether 
additional actions should be taken to help ensure the trustworthiness 
and reliability of individuals with unescorted access. The licensees 
were advised to consider taking immediate additional precautions, 
including observation of activities within their facility. The NRC 
evaluated these additional measures at each facility during the 
remainder of 2001. From 2002 through 2004, research and test reactors 
voluntarily implemented compensatory measures that included site 
specific background investigations for individuals granted unescorted 
access. The NRC has also conducted security assessments at certain 
research and test reactors which helped to identify risk-significant 
areas and materials.
    In addition to the implementation of site-specific background 
investigations, the NRC issued orders to all RTRs in April 2007 (72 FR 
25337, May 4, 2007), requiring fingerprinting for an FBI identification 
and criminal history record check for all individuals granted 
unescorted access to special nuclear material at the facility. The NRC 
is also undertaking rulemaking to codify unescorted access requirements 
for RTRs similar to those that were imposed by the April 2007 orders. 
(See Advanced Notice of Proposed Rulemaking, 74 FR 17115, April 14, 
2009).
    As stated in the NRC response to Comment 1, DHS is responsible for 
protecting the borders of the U.S., and the adequacy of the radiation 
detectors and other types of equipment used for this purpose.
    Under the GTRI program, DOE is responsible for developing, testing, 
and qualifying the LEU fuel, and for funding the facilities to be 
converted. The speed of the HEU conversion program is dependent on the 
successful DOE testing of the new LEU fuel design and the funding 
provided by Congress. The NRC role is to conduct timely reviews of the 
license amendment requests to approve the operation with LEU fuel.
    Therefore, the NRC does not believe that Comment 3 provides a basis 
for granting the rulemaking petition.
    Comment 4: Five commenters did not agree with the petitioner that a 
firm date is needed when the NRC will no longer license the domestic 
use of civilian HEU. Although all of them supported the idea to convert 
to the use of LEU as quickly as possible, they stated that there are 
technical, economic, and safety issues that must be addressed first. 
(TRTR 1, UM 1, MIT 1, CORAR 1, and DOE 1).
    NRC Response 4: For many of the reasons already discussed in this 
notice, the NRC generally agrees with this comment. As stated 
previously, the NRC's view is that the current U.S. statutory and 
regulatory framework already addresses the petitioner's security threat 
concerns regarding the security of HEU licensed for limited civilian 
domestic use and export.
    In addition, the GTRI program is working both in the United States 
and internationally to reduce the civilian use of HEU by converting 
facilities to operate with LEU or by shutting down the reactors and 
removing all the HEU material from the facilities. The NRC works 
closely with DOE and NRC licensees to ensure that all the required 
security, safety, and regulatory issues are resolved before, during, 
and after the conversion process.
    Comment 5: The NRC received eleven comments that did not agree with 
the petitioner's request that the NRC establish a date when HEU would 
no longer be licensed for export. The commenters stated that there are 
more than 40,000 nuclear medical procedures performed in the United 
States each day, and that more than 90 percent of the medical 
radioisotopes used in these procedures are produced with HEU material. 
In addition, the most commonly used medical radioisotope in the United 
States, Mo-99/Tc-99m, is 100 percent imported and produced with HEU 
materials. The petitioners argue that setting a firm date when the NRC 
would no longer license the export of HEU before LEU target-based 
production was available as a replacement could seriously disrupt the 
worldwide supply of radioisotopes and have a negative impact on patient 
care. (TRTR 2, ASTRO 2, UM 2, MDSN 2, SNM 2, ACR 2, CORAR 2, DOE 2, MI 
2, NEI 2, and AAPM 2).
    NRC Response 5: The NRC agrees with the commenters that there are a 
number of practical and serious implications related to the 
availability of HEU. Because of the relatively short half life of Mo-
99/Tc-99m (66 hours/6 hours), these radioisotopes cannot be stockpiled 
or stored for very long and must be constantly replenished. The 
production and delivery of the technetium generators can only be done 
on a very tight schedule requiring rigorous planning and execution. An 
interruption at any point in the production, transportation, or 
delivery chain can have an impact on the supply of the radioisotope. 
The availability of Mo-99/Tc-99m is further complicated by the fact 
that there are a limited number of foreign facilities producing the 
isotope, the reactors where the targets are irradiated are over 40 
years old, and these reactors are used for numerous other types of 
nuclear research. While there is interest in developing a domestic LEU-
based production capability, it is not yet known if or when this 
capability will become available. In summary, banning HEU without a 
suitable LEU replacement would affect the production of vital 
radioisotopes used for medical diagnostics and therapies, and would 
likely lead to or exacerbate shortages of these medical radioisotopes 
in the United States. These shortages would have a major negative 
impact on patient care.
    However, in order to license an export of HEU for medical isotope 
production, the NRC must ensure that all of the applicable statutory 
requirements, including Section 134 of the AEA, are satisfied. If those 
statutory requirements are not met, the NRC is not authorized to grant 
a requested license.
    Comment 6: A commenter states that, contrary to the petitioner's 
belief that a ban on the civilian use of HEU would lead other countries 
to take similar actions, other countries will not likely follow the 
U.S. in banning the civilian use of HEU, and that the allies of the 
U.S. have already joined us to reduce and secure their stocks and uses 
of HEU. If the petition is granted, the commenter states that would 
create a false sense of security because the real problem is the 
potential diversion and lack of inventory control from the countries 
that made up the former Soviet Union. (TRTR 3).

[[Page 4498]]

    NRC Response 6: Although the NRC fully supports the efforts of the 
DOE programs, these activities are not under NRC jurisdiction. However, 
the NRC believes that DOE's GTRI program is working to address the 
concerns the commenter mentions.

Determination of Petition

    The NRC has determined that the petitioner has not provided an 
adequate basis on which the NRC could act to implement the proposed 
changes requested by the petitioner. To the extent that the NRC has 
authority to act, the NRC's position is that the current regulatory 
framework in conjunction with DOE's GTRI program already works 
effectively to minimize the use and export of HEU material until a 
suitable LEU replacement is available.
    With respect to export license applications for HEU, bearing in 
mind the NRC's responsibility to make an overall finding that each 
export would not be inimical to the common defense and security of the 
U.S., the NRC intends to continue its practice to carefully review each 
application to verify that each requested HEU export is justified in 
accordance with its statutory and regulatory obligations. The NRC will 
continue to monitor the progress of DOE's GTRI and RERTR programs, 
including the HEU to LEU conversion schedules.
    The NRC will also continue to encourage that the appropriate 
actions be taken to eliminate U.S.-supplied-inventories of HEU in a 
manner consistent with the EPAct 2005 requirements.
    For reasons cited in this document, the NRC denies the petition.

    Dated at Rockville, MD, January 22, 2010.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2010-1751 Filed 1-27-10; 8:45 am]
BILLING CODE 7590-01-P