[Federal Register Volume 71, Number 223 (Monday, November 20, 2006)]
[Notices]
[Pages 67167-67169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19570]


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NUCLEAR REGULATORY COMMISSION


In the Matter of All Panoramic and Underwater Irradiators 
Authorized To Possess Greater Than 370 Terabecquerels (10,000 Curies) 
Byproduct Material in the Form of Sealed Sources; Order Imposing 
Compensatory Measures (Effective Immediately)

[EA 06-251]

I

    The Licensees identified in Attachment 1 to this Order hold 
licenses issued in accordance with the Atomic Energy Act of 1954 and 10 
CFR part 36

[[Page 67168]]

or comparable Agreement State regulations by the U.S. Nuclear 
Regulatory Commission (NRC or Commission) or an Agreement State 
authorizing possession of greater than 370 terabecquerels (10,000 
curies) of byproduct material in the form of sealed sources either in 
panoramic irradiators that have dry or wet storage of the sealed 
sources or in underwater irradiators in which both the source and the 
product being irradiated are under water. Commission regulations at 10 
CFR 20.1801 or equivalent Agreement State regulations, require 
Licensees to secure, from unauthorized removal or access, licensed 
materials that are stored in controlled or unrestricted areas. 
Commission regulations at 10 CFR 20.1802 or equivalent Agreement States 
regulations, require Licensees to control and maintain constant 
surveillance of licensed material that is in a controlled or 
unrestricted area and that is not in storage.

II

    On September 11, 2001, terrorists simultaneously attacked targets 
in New York, N.Y., 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 in order 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 adequacy of security measures at 
licensed facilities. In addition, the Commission has been conducting a 
review of its safeguards and security programs and requirements.
    As a result of its consideration of current safeguards and license 
requirements, as well as a review of information provided by the 
intelligence community, the Commission has determined that certain 
compensatory measures are required to be implemented by Licensees as 
prudent, measures to address the current threat environment. Therefore, 
the Commission is imposing the requirements, as set forth in Attachment 
2 on all Licensees identified in Attachment 1 of this Order \1\ who 
currently possess, or have near term plans to possess, greater than 370 
terabecquerels (10,000 curies) of byproduct material in the form of 
sealed sources. These requirements, which supplement existing 
regulatory requirements, will provide 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. These requirements will remain in effect until the 
Commission determines otherwise.
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    \1\ Attachment 1 contains OFFICIAL USE ONLY--Security Related 
Information sensitive information and Attachment 2 contains 
SAFEGUARDS INFORMATION and will not be released to the public.
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    The Commission recognizes that Licensees may have already initiated 
many measures set forth in Attachment 2 to this Order in response to 
previously issued advisories or on their own. It is also recognized 
that some measures may not be possible or necessary at some sites, or 
may need to be tailored to accommodate the Licensees' specific 
circumstances to achieve the intended objectives and avoid any 
unforeseen effect on the safe use and storage of the sealed sources.
    Although the additional security measures implemented by the 
Licensees in response to the Safeguards and Threat Advisories have been 
adequate to provide reasonable assurance of adequate protection of 
public health and safety, the Commission concludes that the security 
measures must be embodied in an Order consistent with the established 
regulatory framework. The security measures contained in Attachment 2 
of this Order contain safeguards information and will not be released 
to the public. The Commission has broad statutory authority to protect 
and prohibit the unauthorized disclosure of safeguards information. 
Section 147 of the Atomic Energy Act of 1954, as amended, grants the 
Commission explicit authority to ``issue such orders, as necessary to 
prohibit the unauthorized disclosure of safeguards information. * * *'' 
This authority extends to information concerning special nuclear 
material, source material, and byproduct material, as well as 
production and utilization facilities. Licensees must ensure proper 
handling and protection of safeguards information to avoid unauthorized 
disclosure in accordance with the specific requirements for the 
protection of safeguards information contained in Attachment 2 to the 
Order Imposing Requirements for the Protection of Certain Safeguards 
Information (EA-06-241). The Commission hereby provides notice that it 
intends to treat all violations of the requirements contained in 
Attachment 2 to the Order Imposing Requirements for the Protection of 
Certain Safeguards Information (EA-06-241), applicable to the handling 
and unauthorized disclosure of safeguards information as serious 
breaches of adequate protection of the public health and safety and the 
common defense and security of the United States. Access to safeguards 
information is limited to those persons who have established a need-to-
know the information, are considered to be trustworthy and reliable, 
have been fingerprinted and undergone a Federal Bureau of Investigation 
(FBI) identification and criminal history records check. A need to know 
means a determination by a person having responsibility for protecting 
Safeguards Information that a proposed recipient's access to Safeguards 
Information is necessary in the performance of official, contractual, 
or licensee duties of employment.
    In order to provide assurance that the Licensees are implementing 
prudent measures to achieve a consistent level of protection to address 
the current threat environment, all Licensees who hold licenses issued 
by the U.S. Nuclear Regulatory Commission or an Agreement State 
authorizing possession greater than 370 terabecquerels (10,000 curies) 
of byproduct material in the form of sealed sources in a panoramic or 
underwater irradiator shall implement the requirements identified in 
Attachment 2 to this Order. In addition, pursuant to 10 CFR 2.202, I 
find that in light of the common defense and security matters 
identified above, which warrant the issuance of this Order, the public 
health, safety and interest require that this Order be effective 
immediately.

III

    Accordingly, pursuant to Sections 81, 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, 10 CFR part 30, and 10 CFR part 36, it is 
hereby ordered, effective immediately, that all licensees identified in 
Attachment 1 to this order shall comply with the requirements of this 
order as follows:
    A. The licensees shall, notwithstanding the provisions of any 
Commission or Agreement State regulation or license to the contrary, 
comply with the requirements described in Attachment 2 to this Order. 
The licensee shall immediately start implementation of the requirements 
in Attachment 2 to the Order and shall complete implementation by May 
8, 2007, or the first day that greater than 370 terabecquerels (10,000 
curies) of byproduct material in the form of sealed sources is 
possessed, which ever is later.

[[Page 67169]]

    B.1. The Licensee 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 described in Attachment 2, (2) if compliance 
with any of the requirements is unnecessary in its specific 
circumstances, or (3) if implementation of any of the requirements 
would cause the Licensee to be in violation of the provisions of any 
Commission or Agreement State regulation or its license. The 
notification shall provide the Licensee's justification for seeking 
relief from or variation of any specific requirement.
    B.2. If the Licensee considers that implementation of any of the 
requirements described in Attachment 2 to this Order would adversely 
impact safe operation of the facility, the Licensee 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 specified in the Attachment 2 requirement in question, or a 
schedule for modifying the facility to address the adverse safety 
condition. If neither approach is appropriate, the Licensee 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.1. The Licensee shall, within twenty (20) days of the date of 
this Order, submit to the Commission a schedule for completion of each 
requirement described in Attachment 2.
    C.2. The Licensee shall report to the Commission when they have 
achieved full compliance with the requirements described in Attachment 
2.
    D. Notwithstanding any provisions of the Commission's or Agreement 
State's regulations to the contrary, all measures implemented or 
actions taken in response to this order shall be maintained until the 
Commission determines otherwise.
    Licensee response to Conditions B.1, B.2, C.1, and C.2 above shall 
be submitted to the Director, Office of Federal and State Materials and 
Environmental Management Programs, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555. In addition, Licensee submittals that contain 
specific physical protection or security information considered to be 
safeguards information shall be put in a separate enclosure or 
attachment and, marked as ``SAFEGUARDS INFORMATION--MODIFIED HANDLING'' 
and mailed (no electronic transmittals i.e., no e-mail or FAX) to the 
NRC in accordance with Attachment 2 to the Order Imposing Requirements 
for the Protection of Certain Safeguards Information (EA-06-241).
    The Director, Office of Federal and State Materials and 
Environmental Management Programs, may, in writing, relax or rescind 
any of the above conditions upon demonstration by the Licensee of good 
cause.

IV

    In accordance with 10 CFR 2.202, the Licensee 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 Federal and State 
Materials and Environmental Management Programs, 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 the Licensee 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 Federal and State Materials and Environmental Management Programs, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555, to the 
Assistant General Counsel for Materials Litigation and Enforcement at 
the same address, and to the Licensee 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 interest is adversely 
affected by this Order and shall address the criteria set forth in 10 
CFR 2.309(d).
    If a hearing is requested by the Licensee 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), the Licensee 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.

    Dated: November 9, 2006.

    For the Nuclear Regulatory Commission.
Charles L. Miller,
Director, Office of Federal and State Materials and Environmental 
Management Programs.

Attachment 1: List of Licensees

    Redacted.

Attachment 2: Compensatory Measures for Panoramic and Underwater 
Irradiator Licensees

    Redacted.

[FR Doc. E6-19570 Filed 11-17-06; 8:45 am]
BILLING CODE 7590-01-P