[Federal Register Volume 68, Number 148 (Friday, August 1, 2003)]
[Proposed Rules]
[Pages 45172-45176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19588]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 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. 68, No. 148 / Friday, August 1, 2003 / 
Proposed Rules  

[[Page 45172]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 30

RIN 3150-AH06


Security Requirements for Portable Gauges Containing Byproduct 
Material

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend 
its regulations governing the use of byproduct material in specifically 
licensed portable gauges. The proposed rule would require a portable 
gauge licensee to provide a minimum of two independent physical 
controls that form tangible barriers to secure portable gauges from 
unauthorized removal whenever the portable gauges are not under the 
control and constant surveillance of the licensee.

DATES: The comment period expires October 15, 2003. Comments received 
after this date will be considered if it is practical to do so, but the 
NRC is able to assure consideration only for comments received on or 
before this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include the following number (RIN 3150-AH06) in the subject line 
of your comments. Comments on rulemaking submitted in writing or in 
electronic form will be made available to the public in their entirety 
on the NRC rulemaking Web site. Personal information will not be 
removed from your comments.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, Attn: Rulemakings and Adjudications Staff.
    E-mail comments to: [email protected]. If you do not receive a reply e-
mail confirming that we have received your comments, contact us 
directly at (301) 415-1966. You may also submit comments via the NRC's 
rulemaking website at http://ruleforum.llnl.gov. Address questions 
about our rulemaking website to Carol Gallagher at (301) 415-5905; e-
mail [email protected].
    Hand deliver comments to 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone: 
(301) 415-1966).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
(301) 415-1101.
    Publicly available documents related to this rulemaking may be 
examined and copied for a fee at the NRC's Public Document Room (PDR), 
Public File Area O1F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland. Selected documents, including comments, can be 
reviewed and downloaded electronically via the NRC rulemaking website 
at http://ruleforum.llnl.gov.
    Publicly available documents created or received at the NRC after 
November 1, 1999, are available electronically at the NRC's Electronic 
Reading Room at http://www.nrc.gov/NRC/ADAMS/index.html. From this 
site, the public can gain entry into the NRC's Agencywide Document 
Access and Management System (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's PDR Reference staff at 1-800-397-4209, 301-415-4737 
or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Lydia Chang, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, telephone (301) 415-6319, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

Uses of Licensed Material in Portable Gauges

    Portable gauges are devices containing licensed material that are 
used to determine physical properties (such as density and moisture 
content of soil, concrete, and other materials) in a field setting. The 
most typical portable gauges in use today contain two encapsulated 
sources of radioactive materials. The first is a sealed gamma source 
containing 0.30 to 0.37 gigabecquerels (8 to10 millicuries) of cesium-
137 (Cs-137) used to measure density. The second source is a sealed 
neutron source containing 1.48 to 1.85 gigabecquerels (40 to 50 
millicuries) of americium-241/beryllium (Am-241/Be) used to measure 
moisture content. Other radioactive materials have also been used in 
portable gauges. Under the Atomic Energy Act of 1954, as amended, NRC 
regulates byproduct, source, and special nuclear material used in 
portable gauges. NRC does not, however, regulate naturally occurring 
radioactive material such as radium-226 (Ra-226) used in portable 
gauges because it is not a byproduct, source, or special nuclear 
material. Gauges containing Ra-226 may be regulated by individual 
States.
    Portable gauges are of many different designs based on their 
intended use. Two basic methods of measuring the property of materials 
with these gauges are direct transmission and backscatter. For the 
direct transmission method, the source is located on a source rod. When 
the gauge is in use, the rod is extended and inserted beneath the 
surface material through an access hole. Radiation emitted by the 
source beneath the surface material is measured by a detector in the 
base of the gauge. For the backscatter method, both the source and the 
detector remain on top of the surface material to be tested. Radiation 
is directed into the surface and some is reflected back to the gauge 
detector by the surface material.
    When not in use, portable gauges are generally stored in a 
permanent storage location within a licensed facility. However, 
portable gauges are often also stored at a temporary jobsite if the job 
requires more than one day. When transporting a portable gauge from a 
licensed facility to a temporary jobsite in a vehicle, the gauge is 
often placed in a transportation case, and then is secured in or onto 
the vehicle. Sometimes, portable gauges are stored at a temporary 
storage location or on a vehicle.

NRC and Agreement States Licenses

    As authorized by section 274(b) of the Atomic Energy Act of 1954, 
as amended, 32 States have assumed responsibility for regulating 
certain activities related to radioactive material by entering into 
agreements with the NRC. The activities regulated by these ``Agreement 
States''

[[Page 45173]]

include the use of byproduct material in portable gauges. Each 
Agreement State issues licenses to persons who use radioactive material 
in portable gauges in that State. The NRC issues licenses to persons 
using radioactive material in portable gauges in non-Agreement States. 
Requirements that are specific to the safe use of portable gauges are 
included as license conditions.
    NRC and Agreement States issue specific licenses and certain 
general licenses. General licenses do not include an individual license 
document, and usually authorize only small quantities of licensed 
material. The subject of this rulemaking is for portable gauges that 
are specifically licensed. There are approximately 1100 NRC portable 
gauge specific licensees and an additional 4000 Agreement State 
specific licensees. Portable gauge licensees often possess multiple 
portable gauges under the same license, and may conduct business 
outside of their home States under the reciprocity provisions of 10 CFR 
150.20 or equivalent Agreement State regulations. There are an 
estimated 22,000 to 25,000 portable gauges in use in the United States.

Current Regulatory Practices

    Specific licenses for portable gauges are governed by NRC 
regulations in 10 CFR Part 30, ``Rules of General Applicability to 
Domestic Licensing of Byproduct Material.'' However, other NRC 
requirements in 10 CFR parts 2, 19, 20, 21, 71, 150, 170, and 171 also 
apply to a portable gauge licensee. In addition, all such portable 
gauge licensees must also comply with other applicable Federal, State, 
and local regulations (e.g., Department of Transportation (DOT) 
regulations, local zoning requirements for a storage location, etc.). 
At present, NRC reviews a licensee's program as described in the 
license application, and incorporates certain requirements into the 
license as license conditions. Equivalent State regulations apply to 
Agreement State portable gauge licensees. Agreement States follow a 
similar approach. In addition, certain Agreement States, such as 
Florida, have specific additional requirements in their regulations for 
the possession and use of sealed sources in portable gauges. Other 
States, including Texas and Washington, have issued orders imposing 
specific additional requirements for their portable gauge licensees.

Storage and Control of Licensed Material

    NRC regulations in 10 CFR part 20, ``Standards for Protection 
Against Radiation,'' contain requirements applicable to activities 
conducted under licenses issued by the NRC. Subpart I of Part 20 
addresses storage and control of licensed material. Specifically, Sec.  
20.1801, ``Security of stored material,'' requires licensees to secure 
from unauthorized removal or access licensed materials that are stored 
in controlled or unrestricted areas. Section 20.1802, ``Control of 
material not in storage,'' requires licensees to control and maintain 
constant surveillance of licensed material that is in a controlled or 
unrestricted area and that is not in storage. Despite these 
requirements, theft of portable gauges, as described below, continues.

Theft of Portable Gauges

    Reports in the NRC's Nuclear Materials Events Database (NMED) 
reveal that there have been approximately 450 gauges stolen since 1990. 
More than two-thirds of these stolen gauges were taken from vehicles 
while parked at locations other than the licensees' storage facilities 
or temporary jobsites. In most of these incidents, the gauge was in a 
DOT ``Type A'' transportation case, which was then secured with a metal 
chain to the open bed of a pickup truck. Frequently, the chain was cut 
and the gauge was stolen along with its transportation case. The 
remaining one-third of the gauges were stolen from a licensed facility 
or a temporary jobsite, stolen along with a vehicle, or taken by a 
disgruntled employee.
    It is true that the number of incidents reported per year is small 
when compared to the total number of gauges in use, that the amount of 
radioactive material used in a portable gauge is relatively small, and 
that the radioactive material is encapsulated in stainless steel. 
Nevertheless, the theft of portable gauges still poses a concern if the 
gauge is abandoned in the environment, is recycled in a steel mill, or 
is used inappropriately.
    In light of these concerns, NRC has issued several ``Information 
Notices'' (IN-2001-11, IN-98-01, IN-93-18, IN-88-02, IN-87-55, and IN-
86-67) to remind licensees of their responsibilities concerning the 
security of portable gauges. However, the yearly number of reported 
incidents has not significantly decreased in response to these notices 
and the potential still exists for public health and safety risks. In 
addition, given the heightened sensitivity following the events of 
September 11, 2001, it is necessary to enhance security for portable 
gauges by reducing the opportunity for theft. Therefore, NRC is 
proposing additional security requirements for specifically licensed 
portable gauges in addition to the general requirements for security 
and control of licensed material in 10 CFR 20.1801 and 20.1802. A 
working group was formed in August 2002 to explore various options and 
requirements for the rulemaking. Personnel from the Agreement States of 
Florida and Arkansas represented the Organization of Agreement States 
and participated as members of the working group along with NRC staff 
in formulating this proposed rule. The proposed rule language was 
coordinated with DOT hazardous material transportation staff due to the 
intrinsic portability (i.e., transportation) of the portable gauge 
during the course of its utilization by licensees.

Discussion of Proposed Amendment

    NRC is proposing to amend its regulations in Sec.  30.34, Terms and 
conditions of licenses, to impose specific security requirements for 
portable gauges to reduce the opportunity for theft. Specifically, NRC 
proposes revising this section by adding Sec.  30.34(i) to the list of 
terms and conditions of licenses issued pursuant to 10 CFR part 30, 
``Rules of General Applicability to Domestic Licensing of Byproduct 
Material.'' This paragraph would require persons using portable gauges 
under specific licenses to use a minimum of two independent physical 
controls that form tangible barriers to secure portable gauges from 
unauthorized removal, whenever portable gauges are not under the 
control and constant surveillance of the licensee.
    This rule would apply to a licensee with a portable gauge 
regardless of the location, situation, and activities involving the 
portable gauge. At all times, the licensee would be required to either 
maintain control and constant surveillance of the portable gauge or use 
a minimum of two independent physical controls to secure the portable 
gauge. The NRC staff expects that the physical controls would be 
designed and constructed of material suitable for securing the gauges 
from unauthorized removal. In addition, the NRC staff's expectation is 
that both of these controls must be defeated for the portable gauge to 
be removed to deter a theft by requiring a more determined effort to 
remove the gauge.

Securing a Portable Gauge at a Licensed Facility

    Long term storage of a portable gauge is usually at a permanent 
facility listed in the license or license application. Routine storage 
of a portable gauge in a

[[Page 45174]]

vehicle or at temporary or permanent residential quarters is usually 
reviewed and may be authorized by NRC or the applicable Agreement State 
during the licensing process. Under the proposed regulation, when a 
portable gauge is stored at a licensed facility, the licensee would be 
specifically required to use a minimum of two independent physical 
controls to secure the gauge. Examples of two independent physical 
controls to secure a portable gauge when stored at a licensed facility 
are--
    1. The portable gauge or transportation case containing the 
portable gauge is stored inside a locked storage shed within a secured 
outdoor area, such as a fenced parking area with a locked gate;
    2. The portable gauge or transportation case containing the 
portable gauge is stored in a room with a locked door within a secured 
building for which the licensee controls access by lock and key or by a 
security guard;
    3. The portable gauge or transportation case containing the 
portable gauge is stored inside a locked, non-portable cabinet inside a 
room with a locked door if the building is not secured;
    4. The portable gauge or transportation case containing the 
portable gauge is stored in a separate secured area inside a secured 
mini-warehouse or storage facility; or
    5. The portable gauge or transportation case containing the 
portable gauge is physically secured to the inside structure of a 
secured mini-warehouse or storage facility.

Securing a Portable Gauge in a Vehicle

    Licensees commonly use a chain and a padlock to secure a portable 
gauge in its transportation case to the open bed of a pickup truck 
while using the vehicle for storage. Because the transportation case is 
portable, a theft could occur if the chain is cut and the 
transportation case with the portable gauge in it is taken. If the 
licensee simply loops the chain through the handles of the 
transportation case, a thief could open the transportation case and 
take the portable gauge without removing the chain or the case. Because 
the transportation case is also portable, it must be protected by two 
independent physical controls if the portable gauge is inside. A lock 
on the transportation case or a lock on the portable gauge source rod 
handle would not be sufficient under the proposed requirements because 
the case and the gauge are portable.
    A vehicle should be used for storage only for a short period of 
time when a gauge is in transit. A portable gauge should only be kept 
in a vehicle overnight if it is not practicable to provide temporary 
storage in a permanent structure. Under the proposed regulation, when a 
portable gauge is being stored in a vehicle, the licensee would be 
specifically required to use a minimum of two independent physical 
controls to secure the gauge. Examples of two such independent physical 
controls to secure portable gauges in these situations are--
    1. The locked transportation case containing the portable gauge is 
physically secured to a vehicle with brackets, and a chain or steel 
cable (attached to the vehicle) is wrapped around the transportation 
case such that the case can not be opened unless the chain or cable is 
removed. In this example, the locked transportation case would count as 
one control because the brackets would prevent easy removal of the 
case. The chain or cable looped only through the transportation case 
handle is not acceptable;
    2. The portable gauge or transportation case containing the 
portable gauge is stored in a box physically attached to a vehicle, and 
the box is secured with (1) two independent locks; (2) two separate 
chains or steel cables attached independently to the vehicle in such a 
manner that the box cannot be opened without the removal of the chains 
or cables; or (3) one lock and one chain or steel cable is attached to 
the vehicle in such a manner that the box cannot be opened without the 
removal of the chain or cable; or
    3. The portable gauge or transportation case containing the 
portable gauge is stored in a locked trunk, camper shell, van, or other 
similar enclosure and is physically secured to the vehicle by a chain 
or steel cable in such a manner that one would not be able to open the 
case or remove the portable gauge without removal of the chain or 
cable. In this example, the transportation case would not count as one 
control because it could be easily removed.

Securing a Portable Gauge at a Temporary Jobsite or at Locations Other 
Than a Licensed Facility

    When a job requires storage of a portable gauge at a temporary 
jobsite or at a location other than a licensed facility, the licensee 
should use a permanent structure for storage if practicable to do so. 
When storing a portable gauge in temporary or permanent residential 
quarters, the licensee should limit access by storing the gauge in a 
separate room away from residents and other members of the public. The 
licensee must also meet the radiation exposure limits specified in 10 
CFR part 20.
    Under the proposed regulation, when a portable gauge is stored at a 
temporary jobsite or at a location other than an authorized facility, 
the licensee would also be required to use a minimum of two independent 
physical controls to secure the gauge. Examples of two independent 
physical controls to secure portable gauges at these locations are--
    1. At a temporary job site, the portable gauge or transportation 
case containing the portable gauge is stored inside a locked building 
or in a locked non-portable structure (e.g., construction trailer, sea 
container, etc.), and is physically secured by a chain or steel cable 
to a non-portable structure in such a manner that an individual would 
not be able to open the transportation case or remove the portable 
gauge without removing the chain or cable. A lock on the transportation 
case or a lock on the portable gauge source rod handle would not be 
sufficient because the case and the gauge are portable;
    2. The portable gauge or transportation case containing the 
portable gauge is stored inside a locked room within temporary or 
permanent residential quarters, and is physically secured by a chain or 
steel cable to a permanent or non-portable structure (e.g., large metal 
drain pipe, support column, etc.) such that an individual would not be 
able to open the transportation case or remove the portable gauge 
without removing the chain or cable;
    3. The portable gauge or transportation case containing the 
portable gauge is stored in a locked garage, and is within a locked 
vehicle or is physically secured by a chain or steel cable to the 
vehicle in such a manner that an individual would not be able to open 
the transportation case or remove the portable gauge without removing 
the chain or cable; or
    4. The portable gauge or transportation case containing the 
portable gauge is stored in a locked garage, and is within a locked 
enclosure or is physically secured by a chain or steel cable to a 
permanent or non-portable structure in such a manner that an individual 
would not be able to open the transportation case or remove the 
portable gauge without removing the chain or cable.

Controlling and Maintaining Constant Surveillance of a Portable Gauge

    Under the proposed regulation, when a portable gauge is not secured 
with a minimum of two independent physical controls, the licensee would 
be required to control and maintain constant

[[Page 45175]]

surveillance of the gauge. This proposed rule would more specifically 
address the current requirements in 10 CFR 20.1801 for security, and 
satisfy the requirements of 10 CFR 20.1802, which states that the 
licensee shall control and maintain constant surveillance of licensed 
material that is in a controlled or unrestricted area and that is not 
in storage. Control and constant surveillance is required when the 
gauge is not in storage, e.g., is in use or undergoing maintenance. The 
NRC staff interprets ``control and maintain constant surveillance'' of 
portable gauges to mean being immediately present or remaining in close 
proximity to the portable gauge so as to be able to prevent 
unauthorized removal of the gauge.

Criminal Penalties

    For the purpose of Section 223 of the Atomic Energy Act (AEA), the 
Commission is proposing to amend 10 CFR Part 30 under one or more of 
Sections 161b, 161i, or 161o of the AEA. Willful violations of the rule 
would be subject to criminal enforcement.

Agreement State Compatibility

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' approved by the Commission on June 30, 1997, 
and published in the Federal Register on September 3, 1997 (62 FR 
46517), this proposed rule would be a matter of compatibility between 
the NRC and the Agreement States, thereby providing consistency among 
the Agreement State and NRC requirements. The NRC staff analyzed the 
proposed rule in accordance with the procedure established within Part 
III, ``Categorization Process for NRC Program Elements,'' of Handbook 
5.9 to Management Directive 5.9, ``Adequacy and Compatibility of 
Agreement State Programs'' (a copy of which may be viewed at http://www.hsrd.ornl.gov/nrc/home.html). The NRC staff has determined that 
proposed 10 CFR 30.34(i) is classified as Compatibility Category ``C.'' 
An Agreement State should adopt the essential objectives of the 
Compatibility Category ``C'' program elements to avoid conflict, 
duplication, gaps, or the conditions that would jeopardize an orderly 
pattern in the regulation of agreement material on a nationwide basis.
    The NRC determined that the essential objective of proposed 10 CFR 
30.34(i) is to reduce the opportunity for theft of a portable gauge by 
requiring a portable gauge licensee to provide a minimum of two 
independent physical controls that form tangible barriers to secure 
portable gauges from unauthorized removal whenever portable gauges are 
not under the control and constant surveillance of the licensee.
    The NRC believes that the proposed rule does not conflict with any 
existing State regulatory requirement. Personnel from Agreement States 
of Florida and Arkansas represented the Organization of Agreement 
States and participated as members of a working group along with NRC 
staff in the development of this proposed rule.

Plain Language

    The Presidential Memorandum dated June 1, 1998, entitled ``Plain 
Language in Government Writing,'' directed that the Government's 
writing be in plain language. This memorandum was published June 10, 
1998 (63 FR 31883). The NRC requests comments on this proposed rule 
specifically with respect to the clarity and effectiveness of the 
language used. Comments should be sent to the address listed under the 
heading ADDRESSES above.

Voluntary Consensus Standards

    The National Technology Transfer Act of 1995 (Pub. L. 104-113), 
requires that Federal agencies use technical standards that are 
developed or adopted by voluntary consensus standards bodies unless the 
use of such a standard is inconsistent with applicable law or otherwise 
impractical. In this proposed rule, the NRC would revise 10 CFR part 30 
to add certain requirements for the security of portable gauges 
containing byproduct material. This action does not constitute the 
establishment of a standard that contains generally applicable 
requirements.

Environmental Assessment and Finding of No Significant Environmental 
Impact

    The Commission has determined under the National Environmental 
Policy Act of 1969, as amended, and the NRC's regulations in Subpart A 
of 10 CFR part 51, that this proposed rule, if adopted, would not be a 
major Federal action significantly affecting the quality of the human 
environment; therefore, an environmental impact statement is not 
required. The Commission has concluded on the basis of an environmental 
assessment that these requirements would not have any effects on the 
environment in which portable gauges are currently regulated under 10 
CFR part 30. The proposed rule would increase requirements to prevent 
the theft of portable gauges containing byproduct material.
    The determination of this environmental assessment is that there 
will be no significant impact on the public from this action. However, 
the general public should note that the NRC is seeking public 
participation. Comments on any aspect of this environmental assessment 
may be submitted to the NRC as indicated under the ADDRESSES heading.
    The NRC has sent a copy of the environmental assessment and this 
proposed rule to every State Liaison Officer and requested their 
comments on the environmental assessment. The environmental assessment 
may also be examined at the NRC Public Document Room, Public File Area 
O1F21, One White Flint North, 11555 Rockville Pike, Rockville, 
Maryland. Single copies of the environmental assessment are available 
from Lydia Chang, Office of Nuclear Material Safety and Safeguards, 
telephone (301) 415-6319, e-mail [email protected].

Paperwork Reduction Act Statement

    This proposed rule does not contain new or amended information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the 
Office of Management and Budget, approval number 3150-0017.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.

Regulatory Analysis

    The Commission has prepared a draft regulatory analysis on this 
proposed regulation. The analysis examines the costs and benefits of 
various alternatives. In addition to the proposed regulation, the NRC 
staff also considered alternatives such as: prohibiting unattended 
storage of portable gauges in or on vehicles; prohibiting unattended 
storage at locations other than licensed facilities; or requiring use 
of a metal enclosure and a lock with a shielded/protected shackle. 
However, these alternatives were found to be overly prescriptive and 
excessively burdensome for most NRC licensees. The option selected is 
requiring a minimum of two independent physical controls whenever the 
portable gauge is not under the control and constant surveillance of 
the licensee. This proposed rule would enhance the current level of 
security and control (e.g., the requirements in 10 CFR

[[Page 45176]]

20.1801 and 20.1802) of portable gauges while providing sufficient 
flexibility for licensees to implement the requirements without an 
unreasonable burden.
    The Commission requests public comment on the draft regulatory 
analysis specifically on the costs to licensees. Comments on the draft 
analysis may be submitted to the NRC as indicated under the ADDRESSES 
heading. The draft regulatory analysis is available for inspection in 
the NRC Public Document Room, Public File Area O1F21, One White Flint 
North, 11555 Rockville Pike, Rockville, Maryland. Single copies of the 
draft regulatory analysis are available from Lydia Chang, Office of 
Nuclear Material Safety and Safeguards, telephone (301) 415-6319, e-
mail [email protected].

Regulatory Flexibility Act Certification

    As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the Commission certifies that this rule, if adopted, will not 
have a significant economic impact upon a substantial number of small 
entities. The proposed rule would affect about 1100 portable gauge 
specific licensees and an additional 4000 Agreement State specific 
licensees. These licenses are issued principally to companies involved 
in road constructions and maintenance. Many portable gauge licensees 
would qualify as small business entities as defined by 10 CFR 2.810. 
However, the proposed rule is not expected to have a significant 
economic impact on these licensees. Based on the draft regulatory 
analysis conducted for this action, the costs of the proposed 
amendments for affected licensees are estimated at $200 per gauge. The 
NRC believes that the selected alternative reflected in the proposed 
amendment is the least burdensome, most flexible alternative that would 
accomplish the NRC's regulatory objective. The draft regulatory 
analysis also notes that the proposed requirements would result in 
potential cost savings for portable gauge licensees, particularly for 
the replacement of stolen gauges. These savings would offset the 
implementation costs for portable gauge licensees. The NRC staff also 
notes that several Agreement States have imposed similar or more 
stringent requirements on their portable gauge licensees either by 
rule, order, or license condition.
    Because of the widely differing conditions under which portable 
gauge users operate, the NRC is specifically requesting public comment 
from licensees concerning the impact of the proposed regulation. The 
NRC particularly desires comment from such licensees, who qualify as 
small businesses, as to how the proposed regulation will affect them 
and how the regulation may be tiered or otherwise modified to impose 
less stringent requirements on small entities while still adequately 
protecting the public health and safety. Comments on how the regulation 
could be modified to take into account the differing needs of small 
entities should specifically discuss--
    (a) The size of the business and how the proposed regulation would 
result in a significant economic burden upon it as compared to a larger 
organization in the same business community;
    (b) How the proposed regulation could be further modified to take 
into account the business's differing needs or capabilities;
    (c) The benefits that would accrue, or the detriments that would be 
avoided, if the proposed regulation was modified as suggested by the 
commenter;
    (d) How the proposed regulation, as modified, would more closely 
equalize the impact of NRC regulations as opposed to providing special 
advantages to any individuals or groups; and
    (e) How the proposed regulation, as modified, would still 
adequately protect the public health and safety.
    Comments should be submitted as indicated under the ADDRESSES 
heading.

Backfit Analysis

    The NRC has determined that the backfit rules (Sec. Sec.  50.109, 
70.76, 72.62, or 76.76) do not apply to this proposed rule because this 
amendment would not involve any provisions that would impose backfits 
as defined in 10 CFR Chapter 1. Therefore, a backfit analysis is not 
required.

List of Subjects in 10 CFR part 30

    Byproduct material, Criminal penalties, Government contracts, 
Intergovernmental relations, Isotopes, Nuclear materials, Radiation 
protection, Reporting and recordkeeping requirements.

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 553; the NRC is proposing to 
adopt the following amendments to 10 CFR part 30.

PART 30--RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF 
BYPRODUCT MATERIAL

    1. The authority citation for part 30 continues to read as follows:

    Authority: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948, 
953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 
U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as 
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 
5841, 5842, 5846).
    Section 30.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 
U.S.C. 5851). Section 30.34(b) also issued under sec. 184, 68 Stat. 
954, as amended (42 U.S.C. 2234). Section 30.61 also issued under 
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

    2. In Sec.  30.34, paragraph (i) is added to read as follows:


Sec.  30.34  Terms and conditions of licenses.

* * * * *
    (i) Security requirements for portable gauges. Each portable gauge 
licensee shall use a minimum of two independent physical controls that 
form tangible barriers to secure portable gauges from unauthorized 
removal, whenever portable gauges are not under the control and 
constant surveillance of the licensee.


    Dated at Rockville, Maryland, this 28th day of July, 2003.

    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 03-19588 Filed 7-31-03; 8:45 am]
BILLING CODE 7590-01-P