In the Commission decision, the NRC was instructed to undertake a limited-scope rulemaking for fusion under the byproduct materials framework, taking into account the existence of fusion systems that already have been licensed and are being regulated by the Agreement States, as well as those that may be licensed prior to the completion of the rulemaking. The Commission further directed the staff to develop a new volume of NUREG-1556, “Consolidated Guidance About Materials Licenses,” dedicated to fusion energy systems, so as to provide consistent guidance across the National Materials Program.

In undertaking these activities, the Commission instructed the NRC staff to evaluate whether controls-by-design approaches, export controls, or other controls are necessary for near-term fusion energy systems. If in the future, the staff, in consultation with the Agreement States, determines that an anticipated fusion design presents hazards sufficiently beyond those of near-term fusion technologies, the staff should notify the Commission and make recommendations for taking appropriate action, as needed.

For background, on January 3, 2023, the NRC staff sent to the Commission SECY-23-0001, “Options for Licensing and Regulating Fusion Energy Systems” and three related enclosures (collectively, the “Options Paper”), detailing its recommendation to the Commission on a regulatory framework for fusion energy. We provided a summary of the Options Paper and each of the proposed frameworks the NRC staff reviewed here. In the Options Paper, the NRC staff had recommended that that the near-term fusion devices under development be regulated under a byproduct materials framework set forth in 10 CFR Part 30 and associated regulations, but left open the possibility that a future device should be regulated as a so-called “utilization facility,” which under the Atomic Energy Act and NRC regulations, set forth in 10 CFR Part 50, is also the framework currently applicable to nuclear fission. Based on this analysis, the NRC staff had recommended a “hybrid” approach to regulating fusion, or so-called “Option 3.”

However, in the interest of regulatory certainty, and based on their understanding of the fusion technologies being developed in the near-term, the Commission voted to pursue a different option — “Option 2”— which is solely the byproduct materials framework. The Commission did leave open the ability of the NRC to revisit this decision should a future device be proposed that raises a different risk profile than currently planned devices.

In a rare move, Commissioner Caputo not only issued her position shortly after the Options Paper came out but also made her February 7, 2023 vote public, voting for Option 2, the byproduct materials approach. In her vote sheet, Commissioner Caputo agreed with the staff that the Part 30 framework is “logical, efficient, safe, and consistent with the proposed systems’ low level of risk.”

The rest of the Commission ultimately agreed with this approach. The Commission’s voting record is available here.

In his vote sheet, Chairman Hanson concluded that “[l]icensing near-term fusion energy systems under a byproduct material framework provides for a technology-neutral, scalable regulatory approach protective of public health and safety that can cover a spectrum of hazards and risks. . . and that this pathway will provide a framework that can accommodate foreseeable fusion technologies in time for likely application submittals.”

Chairman Hanson further noted in an NRC press release issued today, April 14, that “[d]ozens of companies are developing pilot-scale commercial fusion designs, and while the technology’s precise future in the United States is uncertain, the agency should provide as much regulatory certainty as possible given what we know today. Licensing near-term fusion energy systems under a byproduct material framework will protect public health and safety with a technology-neutral, scalable regulatory approach.”

Separately, in his vote sheet, Commissioner Wright stated that he was making his assessment based on the expected characteristics of fusion energy systems that the staff identified in the Options Paper, notably that (as he paraphrased):

1. No fissionable material is present and thus criticality is not possible.
2. Energy and radioactive material production from fusion reactions cease without any intervention in off-normal events and accident scenarios.
3. No active post-shutdown cooling of the structures that contain radioactive material is required to maintain radiological confinement (i.e., prevent vessel breach).
4. Offsite consequences during credible accident scenarios (including sabotage) are expected to result in a dose to a person offsite of less than 1 rem effective dose equivalent.
5. No self-sustaining fusion reaction is possible without active engineered features (e.g., plasma confinement mechanisms, vacuum maintaining systems, fuel injection, internal heating).
6. The systems do not use or produce, and cannot be readily adapted to produce, special nuclear material such that they would present a significant proliferation risk, nor are the currently contemplated systems currently included on the trigger list associated with the Treaty on Non-Proliferation of Nuclear Weapons.

Commissioner Wright further explained that “[t]he staff should continue to monitor the landscape of fusion energy system designs and return to the Commission for direction if they identify future designs that do not display the above six characteristics.” Commissioner Baran and Commission Crowell made similar statements in their vote sheets.