("Byproduct material" includes specified types radioactive material other than uranium or plutonium as defined in Appendix A .) Congress may find this analysis of interest for several reasons: Congress attaches great importance to protecting the United States against terrorist threats; the rule will affect the many industrial, research, and medical activities nationwide that use radioactive materials, thereby affecting many constituents and raising cost-benefit issues; and there is wide concern about regulation and radiation more generally. This report analyzes the rule. 37. These orders went, among others, to licensees of large irradiators, manufacturers and distributors of radioactive material, and certain transporters of radioactive material, as detailed in Appendix C . An "Increased Controls" (IC) order went to other licensees authorized to possess specified quantities of certain radioactive material. In the Federal Register of June 15, 2010, NRC solicited comments for a proposed rule, "Physical Protection of Byproduct Material," that would incorporate and modify previous security orders as 10 C.F.R. The rulemaking process may take years, as it involves issuing a preliminary draft, soliciting comments, in some cases obtaining approval from the Office of Management and Budget, and a waiting period before the rule takes effect. Orders apply only to current licensees; having an order apply to future licensees requires notifying them individually that the order applies to them. In contrast, a rule applies to current and future licensees. An order and a rule both have the effect of law. This part of the report comments on selected sections of Subpart A (General Provisions), B (Background Investigations and Access Control Program), C (Physical Protection Requirements During Use), and D (Physical Protection in Transit). Some radiation professionals stated that 10 C.F.R. Often, however, T&R adjudications are done by human resources personnel, who do not need unescorted access to radioactive material or access to safeguards information to do their job. Some interviewees also felt that it should be possible to transfer a T&R adjudication in addition to personal information. Some interviewees were unsure how many, and what types of, security features they needed to install in order to satisfy these requirements. NRC notes that the U.S. procedure is different. Generally speaking, when transportation requirements are set by many regulators and by federal interstate commerce rules as well, compliance with transportation regulations can become very complicated. If the Orders were adequate, why change? Should trustworthiness and reliability (T&R) screening be enhanced? Wrap-Up

Several general points emerge from the foregoing analysis. While the rule imposes many requirements on licensees, the previously issued security orders did so as well, so the incremental burden of the rule is much less than would have been the case had the orders not been issued first. Since many actions must be undertaken by all facilities with category 1 or 2 material regardless of facility size, the rule would appear to impose a proportionately larger burden on small licensees than on larger ones. The rule puts into effect a layered defense using personnel reliability, ability to detect intrusion, police response, etc. Whether the costs of these measures are worth the potential benefit is a matter for political judgment. 37 regulates "byproduct material." Byproduct material means—(1) Any radioactive material (except special nuclear material) yielded in, or made radioactive by, exposure to the radiation incident to the process of producing or using special nuclear material;
(2)(i) Any discrete source of radium-226 that is produced, extracted, or converted after extraction, before, on, or after August 8, 2005, for use for a commercial, medical, or research activity; or
(ii) Any material that—
(A) Has been made radioactive by use of a particle accelerator; and
(B) Is produced, extracted, or converted after extraction, before, on, or after August 8, 2005, for use for a commercial, medical, or research activity; and
(3) Any discrete source of naturally occurring radioactive material, other than source material, that—
(i) The Commission, in consultation with the Administrator of the Environmental Protection Agency, the Secretary of Energy, the Secretary of Homeland Security, and the head of any other appropriate Federal agency, determines would pose a threat similar to the threat posed by a discrete source of radium-226 to the public health and safety or the common defense and security; and
(ii) Before, on, or after August 8, 2005, is extracted or converted after extraction for use in a commercial, medical, or research activity. Appendix B. Radionuclides and Quantities of Concern Regulated by NRC
Appendix C. Nuclear Regulatory Commission Security Orders to Licensees
In the wake of the 9/11 attacks, NRC issued orders to its licensees to enhance the security of radioactive materials. Manufacturers and distributors of radioactive material (69 FR 5375, February 4, 2004).
This report analyzes 10 C.F.R. 37, a forthcoming rule promulgated by the Nuclear Regulatory Commission (NRC), "Physical Protection of Byproduct Material." "Byproduct material" includes specified types of radioactive material other than uranium or plutonium. The rule regulates byproduct material of types and in quantities that could be used to make a "dirty bomb."
Congress may find this analysis of interest for several reasons: Congress attaches great importance to protecting the United States against terrorist threats; the rule will affect the many industrial, research, and medical activities nationwide that use radioactive materials, thereby affecting many constituents and raising cost-benefit issues; and there is wide concern about regulation and radiation more generally.
NRC may regulate through orders or rules. Both have the effect of law. If prompt action is required, NRC may issue orders to its licensees. After 9/11, NRC issued orders to enhance radioactive material security. Orders went to licensees of irradiators having a large amount of radioactive material (2003), manufacturers and distributors of radioactive material (2004), licensees transporting radioactive materials in quantities of concern (2005), and others.
NRC prefers, however, to regulate through rules. The rulemaking process is transparent, as it solicits public comments and revises draft rules to reflect them, a process that may take years, whereas NRC may issue orders with little or no public involvement. An order applies only to licensees receiving it, while a rule applies to all current and future licensees. Accordingly, NRC began a rulemaking process to consolidate the security orders into a rule. It solicited public comments in the June 15, 2010, Federal Register.
10 C.F.R. 37 incorporates many provisions of the orders. Its main areas are:
Background investigations and access control programs, setting trustworthiness and reliability (T&R) requirements for persons granted unescorted access to radioactive material in quantities of concern. Physical protection requirements during use, requiring licensees to establish a written security program, coordinate with local law enforcement, and be able to monitor, detect, and assess theft of radioactive material. Physical protection in transit, requiring transporters of radioactive material to follow certain procedures.
To assess impacts of the rule, CRS interviewed 14 radiation professionals, including state regulators, university radiation safety officers, manufacturers and distributors of radioactive material, and a transportation specialist. They noted such impacts as:
T&R adjudication: Some interviewees felt requirements were burdensome; others could meet requirements easily. Some felt human resources staff lacked expertise needed to adjudicate T&R; others were confident in staff capability. Cooperation with local law enforcement: Some interviewees felt that cooperation was excellent. Some found it improved greatly once the threat had been explained. Others found poor cooperation. Still others noted that multiple emergencies or the size of an officer's patrol area could delay response. Transportation security: NRC relinquishes parts of its regulatory authority to certain states. One interviewee felt the Department of Transportation, not NRC and states, should regulate transport of radioactive materials to establish uniform national requirements: "when transportation requirements are set by many [state] regulators and by federal interstate commerce rules as well, compliance with transportation regulations can become very complicated."
The analysis raises several general points:
The orders imposed many requirements on licensees. Since the rule incorporates many of these requirements, it imposes less additional regulatory burden than would have been the case if the orders had not been issued first. Since the rule requires many actions regardless of facility size, it would appear to impose a proportionately larger burden on small licensees. The rule implements a layered defense. The ability of one layer to offset weaknesses in others should improve security but cannot guarantee it. Further steps—such as requiring licensees to install more monitoring equipment or mandating more stringent requirements for adjudicating personnel reliability—might increase security beyond what the rule provides. Whether their costs are worth potential benefits is a matter for political judgment.