[Federal Register Volume 73, Number 137 (Wednesday, July 16, 2008)]
[Proposed Rules]
[Pages 40767-40770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16235]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
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.
========================================================================
Federal Register / Vol. 73, No. 137 / Wednesday, July 16, 2008 /
Proposed Rules
[[Page 40767]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 71
[Docket No. PRM-71-13; NRC-2007-0022]
Christine O. Gregoire, Governor of the State of Washington;
Consideration of Petition in Rulemaking Process
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for rulemaking: Resolution and closure of petition
docket.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) will consider the
issues raised in a petition for rulemaking submitted by Christine O.
Gregoire, Governor of the State of Washington, in the NRC's rulemaking
process. Further information on this rulemaking may be tracked through
http://www.regulations.gov under Docket ID NRC-2008-0120. The petition
was docketed by the NRC on March 15, 2007, and was assigned Docket No.
PRM-71-13 [NRC-2007-0022]. The petitioner requested that the NRC amend
its regulations to require the use of global positioning satellite
(GPS) for tracking vehicles transporting highly radioactive mobile or
portable radioactive devices. The petitioner also stated that another
alternative was for the Commission to grant states the flexibility to
impose more stringent requirements than those required under NRC's
current increased controls. The NRC has determined that this petition
will be considered through NRC's rulemaking process.
DATES: The docket for the petition for rulemaking, PRM-71-13 [NRC-2007-
0022], is closed on July 16, 2008.
ADDRESSES: Further NRC action on the issues raised by this petition
will be accessible at the Federal rulemaking portal, http://www.regulations.gov, by searching on rulemaking docket ID: NRC-2008-
0120. The NRC also tracks all rulemaking actions in the ``NRC
Regulatory Agenda: Semiannual Report (NUREG-0936).'' The Regulatory
Agenda is a semiannual compilation of all rules on which the NRC has
recently completed action, or has proposed action, or is considering
action, and of all petitions for rulemaking that the NRC is working to
resolve.
You can access publicly available documents related to this
petition for rulemaking using the following methods:
Federal e-Rulemaking Portal: Go to http://www.regulations.gov, and
search for documents filed under Docket ID [NRC-2008-0120].
NRC's Public Document Room (PDR): The public may examine and have
copied for a fee publicly available documents at the NRC's PDR, Public
File Area, Room O1F21, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland.
NRC's Agency-Wide Document Access and Management System (ADAMS):
Publicly available documents created or received at the NRC are
available electronically at the NRC's electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain
entry into 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 PDR
reference staff at 1-899-397-4209, 301-415-4737, or by e-mail to
[email protected].
FOR FURTHER INFORMATION CONTACT: Thomas Young, Office of Federal and
State Materials and Environmental Management Programs, Division of
Intergovernmental Liaison and Rulemaking, Rulemaking Branch A, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
301-415-5795, e-mail [email protected].
SUPPLEMENTARY INFORMATION:
The Petition
On April 27, 2007 (72 FR 20963), the NRC published a notice of
receipt requesting comment on a petition for rulemaking filed by
Christine O. Gregoire, Governor of the State of Washington. The public
comment period closed on July 11, 2007. The petitioner requests that
the NRC adopt the use of GPS tracking as a national requirement for
vehicles transporting highly radioactive mobile or portable radioactive
devices. The petitioner states that an alternative is for the
Commission to grant states the flexibility to impose more stringent
requirements than those required under current NRC's increased
controls. The petitioner believes that GPS technology is an effective
and relatively inexpensive tool that will help when a vehicle with
radioactive material is missing. The petitioner acknowledges that
requiring a GPS on these vehicles does not ensure that the radiological
source will be found. However, the petitioner believes that these
suggestions would give law enforcement a significant advantage.
Public Comments on the Petition
NRC staff received 15 comment letters on the petition. Comments
were received from licensees, radiography source and device
manufacturers, industry involved with radiography, a GPS manufacturer,
a professional organization, a State agency, and a Federal agency. One
comment letter did not have a comment included. The State of Washington
submitted two additional comments to clarify that the intent of its
petition was to track vehicles, not the device or source. In summary,
seven commenters opposed the petition and five commenters supported it.
Commenters who opposed the petition submitted similar comments
stating that GPS units would not prevent theft of the devices, would
provide little, if any, deterrence to thieves or terrorists, and would
provide little, if any, enhancement of authorities' ability to recover
a stolen radiography camera. Some commenters stated that the
requirement to add GPS units to cameras will be a matter of public
record, so anyone serious about illegally obtaining a camera would take
measures in advance to defeat them from acting as tracking mechanisms.
These commenters also stated that the multiple increased controls
security measures that currently apply to industrial radiography
sources are appropriate and adequately provide reasonable assurances to
deter theft. Because the licensees recognize the threat posed by high
activity radiation sources, there has been little opposition from the
industry regarding these measures, despite the time and monetary
investments that these measures require.
[[Page 40768]]
In addition, some commenters stated that GPS units are a good
example that additional security requirements provide a poor return on
the investment because the costs to licensees and equipment
manufacturers could be substantial. These commenters also stated that
they are opposed to the petitioner's alternative to grant states the
flexibility to impose more stringent requirements than those required
under current NRC regulations, because it will not allow for a uniform
set of regulations that apply to industrial radiographic operations in
all jurisdictions.
These commenters further stated that the lack of uniform
regulations imposes a severe burden on the industry, which increases
the complexity of regulatory requirements, and imposes additional
burdens that increase costs and make compliance more difficult. The
commenters suggested that state and Federal regulators enforce the
existing regulations, instead of requiring GPS units on (or in)
radiography cameras, or any other modifications to equipment, or
additional equipment, or any other enhancements to equipment or
procedures.
One commenter stated that GPS units would not prevent theft of the
devices and would provide little, if any, deterrence to thieves or
terrorists, and stated that if someone has the wherewithal to steal a
camera, they will likely have the ability to defeat its GPS unit. In
addition, the commenter stated that the increased controls that
currently apply to industrial radiography sources are sufficient and
appropriate requirements that provide reasonable assurances to deter
theft. The commenter also stated that GPS unit costs to licensees,
especially to small companies, could be substantial, and that
modifications to radiography cameras needed to incorporate GPS units
would impose costs on equipment manufacturers due to research and
development, and the regulatory approval and altered production
processes. These costs would be passed on to the manufacturers'
clients--the licensees, who already face skyrocketing insurance costs
due to the increased threat associated with possession and use of high
activity sources. Another commenter stated that the replacement of, or
alteration to, existing equipment would be costly for users and create
work time schedule and shipping burdens, especially for small
companies. The commenter also stated that because industrial
radiography is a cross jurisdictional service industry, the current
regulations attempt to provide a uniform set of regulations that apply
to industrial radiographic operations in all jurisdictions.
Another commenter expressed opposition to the petition. The
commenter, a manufacturer and distributor of industrial radiography
equipment and oil well logging sources, commented that the petition
represented a potential negative impact to the industry and noted that
the petition is unclear if it is the vehicle or the device which will
be equipped with GPS technology. The commenter also stated that the
definition of ``highly radioactive source'' was not clear, and asked if
it was intended to cover NRC Category 1 and 2 sources only, or if it
also includes Category 3 sources. The commenter stated that any further
serious review of this petition for rulemaking cannot accurately be
made until these points were clarified. In addition, the commenter
noted that there is no current technology that can successfully track a
source or device reliably, and that this equipment is subject to harsh
environments and usage, and any additional external feature would not
hold up to being thrown around in a truck and/or jobsite. Therefore,
any additional feature put on a device would require research and
development, design, testing and licensing to assure the device
continues to meet American National Standards Institute, International
Organization for Standardization, NRC and Department of Transportation
(DOT) requirements for devices and transport packages. The commenter
also stated that this is an expensive and time consuming process and
would significantly add to the cost of the equipment, that end users
would be unwilling to pay for this and a cost benefit analysis would
need to be performed to determine if it is worth pursuing. This
commenter also stated that there are already numerous other effective
controls in place for device security and tracking, such as the
increased controls, and NRC's national source tracking database, which
would provide information if a source is not received at its
destination when expected. The commenter stated its opposition to
allowing individual states to impose more stringent requirements than
the NRC because the industrial radiography and oil well logging
industry are both very mobile and need to provide their services all
across the United States. The commenter further stated that without a
set of uniform standards the requirements could be quite different in
each state and would significantly restrict interstate commerce.
Another commenter, a manufacturer of industrial radiography devices
and radioactive sources, expressed opposition to the petition and
provided several reasons. Among them, the commenter noted the recently
adopted increased controls for mobile devices in vehicles and stated
that the imposition of a GPS system would represent an unjustified
additional significant financial burden to the radiography industry.
The commenter also stated that there is a significant lack of formal
study to identify the effectiveness of GPS systems when used with
vehicles, the costs, and the effectiveness and practicality of GPS
systems when used in or on portable devices. In addition, the commenter
expressed satisfaction with the effectiveness of the current controls
because the petitioner stated that the radioactive source was quickly
recovered during the event that triggered the petition. The commenter
also stated that any proposal to increase the security of radioactive
materials should be considered from the criminal activity versus
terrorist activity perspectives, and stated that if a GPS system is
required by rulemaking, it will be known to the public. The commenter
stated that it is highly unlikely that a GPS system could be protected
from being destroyed, removed or disabled by a sophisticated terrorist.
Finally, the commenter expressed opposition to the proposal for the
Commission to grant states the flexibility to impose more stringent
requirements than those required under current NRC regulations because
most radiography licensees work in several states and such a proposal
would be counterproductive and unnecessarily financially burdensome for
licensees to be subjected to different regulations from state to state.
Another commenter stated that the burdensome administrative
requirements of the current regulations and increased controls imposed
on radiography licensees focuses only on prevention of the theft of
these sources, and would greatly increase each licensee's liability in
the event of a theft (even if a theft occurs beyond the control of a
licensee, such as during shipment via a common carrier or a
``carjacking''). The commenter stated that regulations and increased
controls do not address recovery of a source following a theft. The
commenter stated that while there appears to be no limit to the
additional liabilities and responsibilities placed upon individual
radiographic testing licensees, there are some functions that can be
more effectively addressed by other means (in lieu of merely issuing
citations and monetary fines to licensees). The
[[Page 40769]]
commenter stated that there are multiple regulatory requirements
regarding a licensee's responsibilities to prevent the theft of
radiographic sources, so more of the same only provides an opportunity
for regulatory agencies to cite multiple violations with little or no
improvement on public health and safety. The commenter also stated that
the regulations and increased control requirements, with which the
licensee has complied, are useless in cases such as in the event that
the licensee's transport vehicle (with a source on board) is carjacked,
and that the priority then needs to be the immediate recovery of the
stolen device/source and apprehension of the thieves. If an electronic
tracking system could be ``activated'' immediately, a local law
enforcement agency (LLEA) could recover the device/source, apprehend
the perpetrators, and recover the licensee's stolen property (vehicle,
equipment, etc.). The commenter also stated that if an effective
electronic tracking system (e.g., GPS) can be affixed/installed to
radioactive material devices/sources of concern such that the location
of the device can be determined by LLEA in order for them to respond,
then the device manufacturers should be expected to install this type
of technology, preferably integrated into the device design in lieu of
an ``add-on'' which could be removed. The commenter also stated that
additional costs would clearly be offset by the greater effectiveness
of LLEA to recover a stolen device/source, and supported the concept of
electronic tracking of sources in quantities of concern, including
radiographic exposure devices, only under a number of specific
conditions. The commenter expressed opposition to the issuance of any
additional rules or regulations that are not consistently administered
to all licensees across all regulatory jurisdictions, or that places
the onus of interpretation, implementation and maintenance back on
individual licensees.
Among the commenters in favor of the petition, a GPS manufacturer
submitted two comment letters. The first letter presented the
commenter's views on the petition. The second letter presented the
commenter's customers' views. In general, the commenter noted the
benefits and practicability of GPS tracking units currently available
and how they can benefit the industry. The commenter stated that GPS
tracking devices are not over the counter devices with a magnet, at
least not the appropriate devices for this application, and stated that
the ideal solution is a device which is extremely small with little
marking so the device identity is limited to most of the public. The
commenter stated that GPS devices transmit their location when summoned
and/or periodically, can be fitted with a siren that can be activated
remotely to provide a more precise location when the device has been
tracked to a home, storage facility, etc., and that this technology
allows the owner/victim the ability to do the legwork before law
enforcement arrives and, thus, saving valuable time in the recovery
process. The commenter also stated that these devices, if installed on
a vehicle, would not only provide the tracking, if stolen, but when
accompanied by a simple sticker, work as a deterrent, and that the
public notice of these systems being required would also act as a
deterrent. However, the commenter stated that the willingness of a
criminal to commit a crime does make the system worthless as others
have stated, but the ability to make security measures redundant and
exceptional would help in the recovery of the equipment and the
apprehension of the thieves. The commenter also offered a description
of costs for using this technology and stated that the availability and
affordability of this technology is extremely feasible. Because
industry has the most to gain from it, the security of the devices,
equipment, vehicles, companies and public is too valuable to overlook.
In the second letter, the commenter stated that if GPS is required
for vehicles it would be inexpensive for the end users and would
provide additional benefits. However, if it's required on devices and
other equipment, the cost could be high to outfit these devices with
little or no real benefit other than loss recovery. The commenter
supported having the tracking devices in vehicles because of the
additional benefit in recovery of lost material it represents.
Another commenter, a licensee who is currently using a GPS for
their shipments, questioned whether or not the licensees would have to
incur the additional expense of tracking the device as well as the
vehicle. Additionally, the commenter believed that GPS tracking by
alternate means such as on the vehicle rather than the device should be
allowed.
The Illinois Emergency Management Agency (IEMA), Division of
Nuclear Safety, submitted a comment letter in favor of the petition.
IEMA stated that GPS systems are very reliable and that this technology
is currently used by some of their distributors. IEMA also stated that
these systems are very invaluable for locating shipments and that they
would add further credibility to the increased control measures. In
addition, IEMA suggested that packages containing highly radioactive
sources (e.g., Category 1) be tagged for GPS tracking.
A comment submitted by the Nuclear Energy Institute (NEI) stated
that adding a GPS unit would not work for the majority of sources and
that the additional costs for a GPS unit do not offset the benefit for
the few mobile devices which are lost each year. NEI stated that the
petition had potential for a few highly radioactive sources in mobile
devices, but it would not work for the majority of sources. NEI also
stated that, to send a signal, GPS tracking devices require power
supplies, as well as a means of monitoring the power supplies. NEI also
stated that a large number of mobile radioactive devices containing
highly radioactive sources are manually operated with no internal or
external power supply. NEI believes this process would make it
necessary for a manual unit to require a power supply in addition to
the GPS unit, to require maintenance and recharging of the power unit
to keep it available, and to require a network to pick up the signal.
NEI also stated that this would result in additional weight and
bulkiness to the unit, and would increase the capital cost, as well as
the additional operation and maintenance expense. In addition, NEI
stated that because the devices are designed to be low maintenance,
light weight, and simple to operate, the addition of the GPS unit would
detract from all three of its principal features. Therefore, this could
result in a greater risk to worker safety in the handling and operation
of the units.
DOT submitted a comment letter stating that a risk-informed
evaluation is necessary to ensure an appropriate decision on this
petition is achieved. DOT stated that although it is generally agreed
that GPS technology is effective, relatively inexpensive and may assist
law enforcement in locating missing devices containing radioactive
material and the associated transport vehicle, there were many factors
to consider before requiring the use of these instruments. Among those,
DOT stated that specific elements of concern should include a
clarification of the definition of ``mobile or portable uses of highly
radioactive sources,'' as well as an evaluation of the current security
requirements and risk of diversion of carrier mode (i.e., rail, air,
vessel, and road). In addition, DOT stated that in evaluating the
proposal, it must be recognized that many existing devices containing
radioactive material devices
[[Page 40770]]
are too small to accommodate a GPS device, that not all losses are
transport-related, and that any installed GPS device could likely be
removed or disabled.
DOT also stated that, although the U.S. has the right to enact
unique security provisions, the impact on international transport must
be considered, and the requirements for importers and exporters of
radioactive material devices and the consequences for overseas buyers
and suppliers of these devices must be analyzed. DOT stated that any
actions undertaken by the NRC must consider security related measures
being implemented or under evaluation for implementation by Federal
agencies, including DOT and the U.S. Department of Homeland Security.
DOT also commented that the proposal's ability to reduce both the
probability of theft/diversion and the associated impacts of theft/
diversion, as well as the advantages and disadvantages of state-
specific regulations, in addition to national regulations, need to be
evaluated. Specifically, DOT stated that requirements that vary widely
from state to state could have significant impacts on interstate
commerce.
In addition, DOT stated that, although the petitioner cited that
significant law enforcement efforts were undertaken to recover past
devices, there is no quantified data provided for these efforts, nor
quantification of potential benefits of the proposal, nor
quantification of the impacts for a national or state GPS requirement,
and stated that a requirement for a specific technology to be
implemented, rather than a performance based measure that achieves the
same objective, may have adverse impacts. DOT further stated that a
risk-informed evaluation should be implemented taking these factors
into account to ensure a measured and appropriate final decision on
this petition is achieved.
Reasons for Closure of the Petition
The NRC concluded that the underlying issue of tracking shipments
of highly radioactive sources is an important one and merits further
consideration, and therefore, will be included into NRC's ongoing
rulemaking efforts on the security requirements for the transportation
of Radioactive Material in Quantities of Concern. This rulemaking will
consider various tracking technologies including, but not limited to,
GPS technology. Further information on this rulemaking may be tracked
through http://www.regulations.gov under Docket ID NRC-2008-0120.
While the NRC will consider the issues raised by the petition in
the rulemaking process, the petitioner's concerns may not be addressed
exactly as the petitioner has requested. During the rulemaking process,
the NRC will solicit comments from the public and will consider all
comments before finalizing the rule.
Existing NRC regulations provide the basis for reasonable assurance
that the common defense and security and public health and safety are
adequately protected.
For the reasons cited in this document, the NRC closes this
petition.
Dated at Rockville, Maryland, this 1st day of July, 2008.
For the Nuclear Regulatory Commission.
R.W. Borchardt,
Executive Director for Operations.
[FR Doc. E8-16235 Filed 7-15-08; 8:45 am]
BILLING CODE 7590-01-P