[Federal Register Volume 72, Number 15 (Wednesday, January 24, 2007)]
[Rules and Regulations]
[Pages 3025-3027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-971]



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  Federal Register / Vol. 72, No. 15 / Wednesday, January 24, 2007 / 
Rules and Regulations  

[[Page 3025]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 73

RIN: 3150-AH90


Secure Transfer of Nuclear Materials

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
regulations to implement requirements for secure transfer of nuclear 
materials as required by Section 656 of the Energy Policy Act of 2005 
(EPAct), signed into law on August 8, 2005. The final rule implements 
Section 656 by specifically excepting certain licensees from provisions 
of Section 170I of the Atomic Energy Act (AEA) of 1954, as amended.

DATES: Effective Date: The final rule is effective on February 23, 
2007.

ADDRESSES: Publicly available documents related to this rulemaking may 
be viewed electronically on the public computers located at the NRC's 
Public Document Room (PDR), Room O1F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland. The PDR reproduction contractor 
will copy documents for a fee. Selected documents can be viewed and 
downloaded electronically via the NRC's rulemaking Web site at http://ruleforum.llnl.gov.
    Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/NRC/reading-rm/adams.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 Public 
Document Room (PDR) Reference staff at (800) 397-4209, (301) 415-4737, 
or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Frank Cardile, Office of Federal and 
State Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-
6185, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

The Energy Policy Act of 2005

    On August 8, 2005, the President signed into law the EPAct of 2005 
Pub. L. No. 109-58,119 Stat. 594 (2005). Section 656 of the EPAct added 
Section 170I to the AEA, as amended, 42 U.S.C. 2210i, and requires 
that: (a) A system be established by the Commission to ensure that 
materials transferred or received in the United States, by any party, 
pursuant to an import or export license issued by NRC, are accompanied 
by a manifest describing the type and amount of materials; (b) each 
individual receiving or accompanying the transfer of materials shall be 
subject to a security background check conducted by appropriate Federal 
entities; and (c) the Commission issue regulations, within one year 
after enactment of the EPAct, identifying radioactive materials or 
classes of individuals that, consistent with the protection of the 
public health and safety and the common defense and security, are 
appropriate exceptions to the requirements in Section 170I of the AEA.

Rulemaking Considerations Related to Proposed Rule To Implement Section 
656 of the EPAct

    In preparing the proposed rule to implement Section 656 (71 FR 
51534; August 30, 2006), the NRC determined that, based on existing 
requirements for shipping papers for radioactive materials already in 
place in Department of Transportation regulations and incorporated by 
reference in NRC regulations in 10 CFR part 71, an appropriate system 
is already established to ensure that shipments of radioactive 
materials, that would be affected by Section 656, are accompanied by 
papers (i.e., a manifest) appropriately describing the materials being 
shipped. Thus, NRC did not include any additional requirements for 
manifesting of radioactive material shipments in the proposed rule.
    In addition, the NRC determined that the most appropriate and 
comprehensive approach for establishing requirements for security 
background checks is as part of the broader considerations of NRC's 
rulemaking to implement Section 652 of the EPAct. Section 652 mandates 
the Commission to require fingerprinting and criminal history record 
checks for any individual who is permitted unescorted access to risk-
significant radioactive material. The individuals referred to under 
Section 656 are a subgroup (i.e., those transferring radioactive 
material pursuant to an export or import license) of the larger group 
of individuals at a licensed facility, with unescorted access to 
radioactive material, and will be covered by the comprehensive Section 
652 rulemaking. The Section 652 proposed rule is currently in 
preparation and its schedule calls for issuance of a proposed rule in 
the Fall of 2007 and a final rule in the Fall of 2008.
    While the Section 652 rulemaking is being conducted, NRC has a 
regulatory framework for security background checks through an 
extensive system of Orders issued during 2002-2006 that includes 
requirements for background checks, including fingerprinting for 
criminal history checks, for unescorted access to radioactive material 
for certain facilities which it licenses. NRC has also issued Orders to 
licensees for shipment of radioactive material in quantities of concern 
(RAMQC). The purpose of these Orders has been to impose certain 
security measures to supplement existing regulations at 10 CFR part 20, 
and equivalent Agreement State regulations, for securing licensed 
materials from unauthorized access, with the intent of providing the 
NRC with reasonable assurance that the common defense and security is 
protected. The Orders note that conditions for unescorted access to 
risk-significant sources of radioactive material are governed by an 
appropriate need-to-know and by background checks as input to a 
determination concerning the trustworthiness and reliability of 
individuals who have access to the material. Most recently, in October 
2006, NRC issued Orders to pool-type irradiator licensees,

[[Page 3026]]

manufacturing and distribution (M&D) licensees, and licensees making 
shipments of RAMQC, to specifically require fingerprinting and criminal 
history checks for unescorted access to the risk-significant sources of 
radioactive material at their facilities.

Issuance of Proposed Rule

    Consistent with Section 656(b) of the EPAct, the Commission 
proposed to amend NRC's regulations to except from the security 
background check requirements of Section 170I of the AEA, as amended, 
licensees who have not received NRC Orders containing requirements for 
background checks for trustworthiness and reliability, that include 
fingerprinting and criminal history record checks, as a prerequisite 
for unescorted access to risk-significant radioactive materials. As 
noted above, Orders restricting access based on fingerprinting and 
criminal history record checks have been issued for pool-type 
irradiator licensees, M&D licensees, and licensees who make shipments 
of RAMQC. These licensees can use the provisions of their existing 
Orders (or new or amended Orders) to comply with Section 170I. Also, if 
additional Orders for fingerprinting and criminal history checks for 
unescorted access to radioactive material are issued to licensees other 
than those noted here, licensees who receive any such new Orders would 
no longer be excepted from the security background check requirements 
of Section 170I.
    The rationale for the exceptions is that it is consistent with the 
system of Orders, issued to certain licensees, that the NRC has 
instituted for protection of the common defense and security. The 
materials possessed and transferred by the licensees who have received 
Orders have been deemed, during the process of issuance of the Orders, 
to be appropriate for immediately requiring certain security measures 
for unescorted access based on potential higher risk resulting from 
malevolent use of those materials.
    The proposed rule was published in the Federal Register on August 
30, 2006 (71 FR 51534) as a proposed new Sec.  73.28 in 10 CFR part 73.

II. Discussion

Summary of Public Comments on the Proposed Rule

    The public comment period closed on September 29, 2006. In response 
to the request for comments, NRC received two comment responses, one 
from the Organization of Agreement States (OAS) and one from the 
Nuclear Energy Institute (NEI).
    The comment response from the OAS summarized the content of the 
NRC's proposed rulemaking and its effect on Agreement States, including 
that the proposed Agreement State Compatibility Category of the 
proposed rule would be ``NRC.'' The comment response from the OAS 
concluded by stating that the NRC approach in the rulemaking seemed 
reasonable to the OAS Executive Board.
    The comment response letter from NEI stated that NEI supports the 
proposed rule as drafted. However, NEI also stated that there were two 
areas of confusion regarding the applicability of the rulemaking. In 
particular, NEI noted that there are a number of power reactor 
licensees that were not issued additional orders, but that have 
personnel who come in contact with radioactive materials in transit and 
who are not covered by existing rules in 10 CFR 73.57. Particularly 
noted were personnel in shipping and receiving operations located 
outside of the protected area who are considered outside of the nuclear 
power facility and do not require access to Safeguards Information. The 
second area of confusion related to a NEI concern as to where this 
Section 656 rulemaking will end and where the referenced Section 652 
rulemaking, due for issuance in late 2007, will start.
    With regard to the first point raised by NEI, the Supplementary 
Information in the Federal Register Notice, issuing the proposed rule, 
stated that this Section 656 rulemaking is relying upon the framework 
of the existing system of NRC Orders, either in place or to be put into 
place, as the basis for codifying exceptions. This allows for a 
consistent approach for radioactive materials which NRC considers 
appropriate, at this time, for exception from the requirements of 
Section 170I of the AEA as amended by the EPAct. The materials 
possessed and transferred by licensees who have received Orders have 
been deemed, during the process of issuance of the Orders, to be 
appropriate for immediately requiring certain security measures for 
unescorted access based on potential higher risk resulting from 
malevolent use of those materials. Orders for fingerprinting and 
criminal history checks for persons at licensed facilities shipping 
RAMQC were issued in October 2006. As noted previously, the Section 652 
rulemaking will take a more comprehensive approach in establishing 
requirements for security background checks for licensees, and for 
licensee employees, for unescorted access to radioactive material. To 
the extent that personnel at a nuclear power plant handle risk-
significant material and are not currently covered by regulation and/or 
order with regard to background checks and fingerprinting, 
consideration can be given to including such licensee personnel in 
NRC's framework of orders. If such additional Orders are issued, those 
licensees who have not previously received any such Orders would no 
longer be excepted from the security background check requirements of 
Section 170I, under the provisions of this final rule.
    With regard to the second point raised by NEI, the Supplementary 
Information in the proposed rule notes that the NRC intends to address 
background checks and fingerprinting for criminal history record checks 
for licensees in a more comprehensive manner under the rulemaking to 
implement Section 652 of the EPAct. One of the elements of that 
rulemaking, as mandated by Section 652(B)(i)(ll), will be determining 
requirements for access to quantities of radioactive material, subject 
to regulation by the Commission, that the Commission determines to be 
of such significance to the public health and safety or to the common 
defense and security as to warrant fingerprinting and background 
checks. The requirements for exceptions in this Section 656 rulemaking 
were issued as part of a mandate of Section 656 of the EPAct for a 
limited subset of licensee employees. If necessary, the requirements 
now codified at 10 CFR 73.28 will be revisited, and may be amended and/
or superseded by the more comprehensive Section 652 rulemaking.

Summary of Revisions to Proposed Rule

    After review of the public comments, the NRC has decided to make 
final the approach in the August 30, 2006, proposed rule (i.e., to 
amend NRC's regulations to except from the security background check 
requirements of Section 170I those licensees that have not received NRC 
Orders restricting unescorted access to radioactive materials to 
individuals who have undergone background checks, for trustworthiness 
and reliability, that include fingerprinting and criminal history 
record checks). As of October 2006, Orders for fingerprinting and 
criminal history checks for unescorted access to radioactive materials 
have been issued to pool-type irradiator licensees, M&D licensees, and 
licensees who make shipments of RAMQC. Under the provisions of the 
final rule, if additional Orders for fingerprinting and criminal 
history checks for unescorted access to radioactive material are issued 
to licensees other than those noted above, licensees who receive any 
such new Orders would no longer be

[[Page 3027]]

excepted from the security background check requirements of Section 
170I of the AEA.

III. Section by Section Analysis of Final Rule

    New Sec.  73.28 has not been revised from the wording in the 
proposed rule and continues to except licensees from the security 
background check provisions of Section 170I of the AEA if they have not 
received Orders from the NRC containing requirements for background 
checks for trustworthiness and reliability that include fingerprinting 
and criminal history checks as a prerequisite for unescorted access to 
radioactive materials. Licensees subject to Orders are not excepted 
from the security background check provisions, and would use the 
requirements in their existing Orders to comply with Section 170I of 
the AEA.

IV. Voluntary Consensus Standards

    The National Technology Transfer and Advancement 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 final rule, NRC is indicating specific 
exceptions to the requirements of Section 656 of the EPAct. This action 
does not constitute the establishment of a standard that establishes 
generally applicable requirements.

V. Agreement State Compatibility

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs,'' which became effective on September 3, 1997 
(62 FR 46517), NRC program elements (including regulations) are placed 
into four compatibility categories (Compatibility Category A through 
D). In addition, NRC program elements also can be identified as having 
particular health and safety significance or as being reserved solely 
to NRC.
    The amendment to 10 CFR part 73 is a program element designated 
``NRC'' based on implementation of the procedure in NRC's Management 
Directive 5.9, ``Adequacy and Compatibility of Agreement States.'' The 
requirements in this amendment are limited to providing exceptions to 
requirements in Section 170I of the AEA and are based on a system of 
Orders that were developed under NRC's authority to protect the common 
defense and security which are areas of exclusive NRC regulatory 
authority and cannot be relinquished to the Agreement States. 
Therefore, the requirements of this amendment should not be adopted by 
the Agreement States.

VI. Environmental Impact: Categorical Exclusion

    NRC has determined that this final rule is the type of action 
described in 10 CFR 51.22(c)(3)(ii) as a categorical exclusion. 
Therefore, neither an environmental impact statement nor an 
environmental assessment has been prepared for this final rule.

VII. Paperwork Reduction Act Statement

    This final 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 3150-0002.

VIII. 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 
Office of Management and Budget control number.

IX. Regulatory Analysis

    A regulatory analysis has not been prepared for this regulation 
because it relieves restrictions and does not impose any additional 
burdens on licensees.

X. Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the Commission certifies that this rule will not have a 
significant economic impact on a substantial number of small entities. 
The amendment does not impose any additional burdens on licensees.

XI. Backfit Analysis

    NRC has determined that the backfit rule (Sec. Sec.  50.109, 70.76, 
72.62, or 76.76) does not apply to this final rule because this 
amendment does not involve any provisions that would impose backfits as 
defined in the backfit rule. Therefore, a backfit analysis is not 
required.

XII. Congressional Review Act

    In accordance with the Congressional Review Act of 1996, the NRC 
has determined that this action is not a major rule and has verified 
this determination with the Office of Information and Regulatory 
Affairs of OMB.

List of Subjects in 10 CFR Part 73

    Criminal penalties, Export, Hazardous materials transportation, 
Import, Nuclear materials, Nuclear power plants and reactors, Reporting 
and recordkeeping requirements, Security measures.


0
For the reasons set out in the preamble and under the authority of the 
AEA, as amended; the Energy Reorganization Act of 1974, as amended; and 
5 U.S.C. 552 and 553; NRC is adopting the following amendment to 10 CFR 
part 73.

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

0
1. The authority citation for part 73 continues to read as follows:

    Authority: Secs. 53, 161, 68 Stat. 930, 948, as amended, sec. 
147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as 
amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 Stat. 
2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 Stat. 
2750 (44 U.S.C. 3504 note).

    Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425, 
96 Stat. 2232, 2241 (42 U.S.C, 10155, 10161). Section 73.37(f) also 
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841 
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100 
Stat. 876 (42 U.S.C. 2169).


0
2. Section 73.28 is added to read as follows:


Sec.  73.28  Security background checks for secure transfer of nuclear 
materials.

    Licensees are excepted from the security background check 
provisions in Section 170I of the AEA if they have not received Orders 
from the Nuclear Regulatory Commission containing requirements for 
background checks for trustworthiness and reliability that include 
fingerprinting and criminal history record checks as a prerequisite for 
unescorted access to radioactive materials.

    Dated at Rockville, Maryland, this 18th day of January 2007.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E7-971 Filed 1-23-07; 8:45 am]
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