[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
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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. 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.

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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