[Federal Register Volume 68, Number 95 (Friday, May 16, 2003)]
[Notices]
[Pages 26675-26676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12255]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 70-27, License No. SNM-42, EA 03-087]


In the Matter of BWX Technologies, Lynchburg, VA; Order Modifying 
License (Effective Immediately)

    BWX Technologies, Inc., (``BWXT'' or the ``licensee'') is the 
holder of Special Nuclear Material License No. SNM-42 issued by the 
U.S. Nuclear Regulatory (NRC or Commission) pursuant to Title 10 of the 
Code of Federal Regulations (10 CFR) part 70. BWXT is authorized by its 
license to receive, possess, and transfer special nuclear material in 
accordance with the Atomic Energy Act of 1954, as amended, and 10 CFR 
part 70. The BWXT license, originally issued on August 22, 1956, was 
last renewed on October 2, 1995, and is due to expire on September 30, 
2005.
    On September 11, 2001, terrorists simultaneously attacked targets 
in New York, NY, and Washington, DC, utilizing large commercial 
aircraft as weapons. In response to the attacks and intelligence 
information subsequently obtained, the Commission issued a number of 
Safeguards and Threat Advisories to its licensees and eventually Orders 
to selected licensees, including BWXT, to strengthen licensees' 
capabilities and readiness to respond to a potential attack on a 
nuclear facility. The Commission has also communicated with other 
Federal, State and local government agencies and industry 
representatives to discuss and evaluate the current threat environment 
in order to assess the nature of the current threat. In addition, the 
Commission has been conducting a comprehensive review of its safeguards 
and security programs and requirements. As part of this review, the 
Commission issued an Order to BWXT on August 21, 2002, to implement 
interim compensatory measures (ICMs) to enhance physical security of 
licensed operations at this facility.
    As a result of information provided by the intelligence community 
concerning the nature of the threat and the Commission's assessment of 
this information, the Commission has determined that a revision is 
needed to the Design Basis Threat (DBT) specified in 10 CFR 73.1. 
Therefore, the Commission is imposing a revised DBT, as set forth in 
Attachment 1 \1\ of this Order. The DBT, which supercedes the DBT 
specified in 10 CFR 73.1, provides the Commission with reasonable 
assurance that the public health and safety and common defense and 
security continue to be adequately protected in the current threat 
environment. The requirements of this Order will remain in effect until 
the Commission determines otherwise. To address the DBT set forth in 
Attachment 1 of this Order, BWXT is required to revise its physical 
security plan, safeguards contingency plan, and guard training and 
qualification plan that are required by 10 CFR 70.22.
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    \1\ Attachment 1 contains classified information and will not be 
released to the public.
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    In order to provide assurance that BWXT is implementing prudent 
measures to protect against the DBT, Materials License SNM-42 shall be 
modified to require that the physical security plans, including 
pertinent requirements of the Order issued on August 21, 2002, 
safeguards contingency plan, and the guard training and qualification 
plan, required by 10 CFR 70.22 be revised to provide protection against 
this DBT. Upon completion of NRC review and approval of the revised 
physical security plan, including pertinent requirements of the Order 
issued on August 21, 2002, safeguards contingency plan, and the guard 
training and qualification plan, and their full implementation, the 
Commission will consider requests to relax or rescind, either in whole 
or in part, the requirements of the Order issued on August 21, 2002, 
imposing ICMs. In addition, pursuant to 10 CFR 2.202, 70.32, and 70.81, 
I find that, in the circumstances described above, the public health, 
safety and interest and the common defense and security require that 
this Order be immediately effective.
    Accordingly, pursuant to sections 53, 161b, 161i, 161o, 182 and 186 
of the Atomic Energy Act of 1954, as amended, and the Commission's 
regulations in 10 CFR 2.202, 70.32, and 70.81, it is hereby ordered, 
effective immediately, that material license SNM-42 is modified as 
follows:
    A. 1. BWXT shall, notwithstanding the provisions of any Commission 
regulation, license, or order to the contrary, revise its physical 
protection plan, safeguards contingency plan, and guard training and 
qualification plan prepared pursuant to 10 CFR 70.22 to provide 
protection against the DBT set forth in Attachment 1 to this Order. 
BWXT shall submit the revised physical security plan, revised 
safeguards contingency plan, and revised guard training and 
qualification plan including an implementation schedule, to the 
Commission for review and approval no later than April 29, 2004.
    2. The revised physical security plan, revised safeguards 
contingency plan, and revised guard training and qualification plan 
must be fully implemented by the licensee by October 29, 2004.
    B. 1. BWXT shall, within twenty (20) days of the date of this 
Order, notify the Commission, (1) if it is unable to comply with any of 
the requirements of this Order, (2) if compliance with any of the 
requirements is unnecessary in its specific circumstances, or (3) if

[[Page 26676]]

implementation of any of the requirements would cause BWXT to be in 
violation of the provisions of any Commission regulation or its 
facility license. The notification shall provide BWXT's justification 
for seeking relief from, or variation of, any specific requirement.
    2. If BWXT considers that implementation of any of the requirements 
of this Order would adversely impact safe operation of its facility, 
BWXT must notify the Commission, within twenty (20) days of this Order, 
of the adverse safety impact, the basis for its determination that the 
requirement has an adverse safety impact, and either a proposal for 
achieving the same objectives of this Order, or a schedule for 
modifying the facility to address the adverse safety condition. If 
neither approach is appropriate, BWXT must supplement its response to 
Condition B.1 of this Order to identify the condition as a requirement 
with which it cannot comply, with attendant justifications as required 
in Condition B.1.
    C. BWXT shall report to the Commission, in writing, when it has 
fully implemented the approved revisions to its physical security plan, 
safeguards contingency plan, and guard training and qualification plan 
to protect against the DBT described in Attachment 1 to this Order.
    D. Notwithstanding the provisions of any Commission regulation, 
license or order to the contrary, all measures implemented or actions 
taken in response to this Order shall be maintained until the 
Commission determines otherwise, except that BWXT may make changes to 
their revised physical security plan, safeguards contingency plan, and 
guard training and qualification plan if authorized by 10 CFR 73.32 (e) 
or (g).
    BWXT's responses to Conditions A.1, B.1, B.2, and C above, shall be 
submitted in accordance with 10 CFR 70.5. In addition, BWXT's 
submittals that contain classified information shall be properly marked 
and handled in accordance with 10 CFR 95.39.
    The Director, Office of Nuclear Material Safety and Safeguards may, 
in writing, relax or rescind any of the above conditions upon 
demonstration by BWXT of good cause.

IV

    In accordance with 10 CFR 2.202, BWXT must, and any other person 
adversely affected by this Order may, submit an answer to this Order, 
and may request a hearing on this Order, within twenty (20) days of the 
date of this Order. Where good cause is shown, consideration will be 
given to extending the time to request a hearing. A request for 
extension of time in which to submit an answer or request a hearing 
must be made in writing to the Director, Office of Nuclear Material 
Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, 
DC 20555, and include a statement of good cause for the extension. The 
answer may consent to this Order. Unless the answer consents to this 
Order, the answer shall, in writing and under oath or affirmation, 
specifically set forth the matters of fact and law on which BWXT or 
other person adversely affected relies and the reasons as to why the 
Order should not have been issued. Any answer or request for a hearing 
shall be submitted to the Secretary, Office of the Secretary of the 
Commission, U.S. Nuclear Regulatory Commission, ATTN: Rulemakings and 
Adjudications Staff, Washington, DC 20555. Copies also shall be sent to 
the Director, Office of Nuclear Material Safety and Safeguards, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555; to the Assistant 
General Counsel for Materials Litigation and Enforcement at the same 
address; to the Regional Administrator for NRC Region II and to BWXT if 
the answer or hearing request is by a person other than the licensee. 
Because of possible disruptions in delivery of mail to United States 
Government offices, it is requested that answers and requests for 
hearing be transmitted to the Secretary of the Commission either by 
means of facsimile transmission to 301-415-1101 or by e-mail to 
[email protected] and also to the Office of the General Counsel 
either by means of facsimile transmission to 301-415-3725 or by e-mail 
to [email protected]. If a person other than the licensee requests 
a hearing, that person shall set forth with particularity the manner in 
which his or her interest is adversely affected by this Order and shall 
address the criteria set forth in 10 CFR 2.714(d).
    If a hearing is requested by BWXT or a person whose interest is 
adversely affected, the Commission will issue an Order designating the 
time and place of any hearing. If a hearing is held, the issue to be 
considered at such hearing shall be whether this Order should be 
sustained.
    Pursuant to 10 CFR 2.202(c)(2)(i), BWXT may, in addition to 
demanding a hearing, at the time the answer is filed or sooner, move 
the presiding officer to set aside the immediate effectiveness of the 
Order on the ground that the Order, including the need for immediate 
effectiveness, is not based on adequate evidence but on mere suspicion, 
unfounded allegations, or error.
    In the absence of any request for hearing, or written approval of 
an extension of time in which to request a hearing, the provisions 
specified in Section III above shall be final twenty (20) days from the 
date of this Order without further order or proceedings. If an 
extension of time for requesting a hearing has been approved, the 
provisions specified in Section III shall be final when the extension 
expires if a hearing request has not been received. An answer or a 
request for hearing shall not stay the immediate effectiveness of this 
order.

    For the Nuclear Regulatory Commission.
    Dated this 29th day of April, 2003.
Martin J. Virgilio,
Director, Office of Nuclear Material Safety and Safeguards.
[FR Doc. 03-12255 Filed 5-15-03; 8:45 am]
BILLING CODE 7590-01-P