[Federal Register Volume 73, Number 169 (Friday, August 29, 2008)]
[Notices]
[Pages 51016-51023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20119]


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NUCLEAR REGULATORY COMMISSION

[EA-08-225]


In the Matter of Certain Licensees Authorized To Possess and 
Transfer Items Containing Radioactive Material Quantities of Concern; 
Order Imposing Additional Security Measures (Effective Immediately)

I

    The Licensees identified in Attachment A \1\ to this Order, hold 
licenses issued by the U.S. Nuclear Regulatory Commission (NRC or 
Commission) or an Agreement State, in accordance with the Atomic Energy 
Act of 1954, as amended, and 10 CFR Parts 30, 32, 70 and 71, or 
equivalent Agreement State regulations. The licenses authorize them to 
possess and transfer items containing radioactive material quantities 
of concern. This Order is being issued to all such Licensees who may 
transport radioactive material quantities of concern under the NRC's 
authority to protect the common defense and security, which has not 
been relinquished to the Agreement States. The Orders require 
compliance with specific additional security measures to enhance the 
security for transport of certain radioactive material quantities of 
concern.
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    \1\ Attachment A contains sensitive information and will not be 
released to the public.
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II

    On September 11, 2001, terrorists simultaneously attacked targets 
in New York, NY, 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 Licensees in order to strengthen 
Licensees' capabilities and readiness to respond to a potential attack 
on this regulated activity. 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 the current security measures. In 
addition, the Commission commenced a comprehensive review of its 
safeguards and security programs and requirements.
    As a result of its initial consideration of current safeguards and 
security requirements, as well as a review of information provided by 
the intelligence community, the Commission has

[[Page 51017]]

determined that certain security measures are required to be 
implemented by Licensees as prudent, interim measures to address the 
current threat environment in a consistent manner. Therefore, the 
Commission is imposing requirements, as set forth in Attachment B \2\ 
of this Order, on all Licensees identified in Attachment A of this 
Order. These additional security measures, which supplement existing 
regulatory requirements, will provide the Commission with reasonable 
assurance that the common defense and security continue to be 
adequately protected in the current threat environment. Attachment C of 
this Order contains the requirements for fingerprinting and criminal 
history record checks for individuals when licensee's reviewing 
official is determining access to Safeguards Information or unescorted 
access to the radioactive materials. These requirements will remain in 
effect until the Commission determines otherwise.
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    \2\ Attachment B contains some requirements that are SAFEGUARDS 
INFORMATION, and cannot be released to the public. The remainder of 
the requirements contained in Attachment B that are not SAFEGUARDS 
INFORMATION will be released to the public.
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    It is also recognized that some measures may not be possible or 
necessary for all shipments of radioactive material quantities of 
concern, 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 transport of radioactive material 
quantities of concern.
    In light of the continuing threat environment, the Commission 
concludes that the security measures must be embodied in an Order, 
consistent with the established regulatory framework. The Commission 
has determined that some of the security measures contained in 
Attachment B of this Order contain Safeguards Information and will not 
be released to the public as per NRC's ``Order Imposing Requirements 
for the Protection of Certain Safeguards Information'' (EA-08-161), 
issued specifically to the Licensees identified in Attachment A to this 
Order. 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 in accordance with the NRC's ``Order Imposing 
Fingerprinting and Criminal History Records Check Requirements for 
Access to Safeguards Information'' (EA-08-162). 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. Individuals who have been 
fingerprinted and granted access to Safeguards Information by the 
reviewing official under the NRC's ``Order Imposing Fingerprinting and 
Criminal History Records Check Requirements for Access to Safeguards 
Information'' (EA-08-162) do not need to be fingerprinted again for 
purposes of being considered for unescorted access.
    This Order also requires that a reviewing official must consider 
the results of the Federal Bureau of Investigations criminal history 
records check in conjunction with other applicable requirements to 
determine whether an individual may be granted or allowed continued 
unescorted access. The reviewing official may be one that has 
previously been approved by NRC in accordance with the ``Order Imposing 
Fingerprinting and Criminal History Records Check Requirements for 
Access to Safeguards Information'' (EA-08-162). Licensees may nominate 
additional reviewing officials for making unescorted access 
determinations in accordance with NRC Orders EA-08-162. The nominated 
reviewing officials must have access to Safeguards Information or 
require unescorted access to the radioactive material as part of their 
job duties.
    To provide assurance that Licensees are implementing prudent 
measures to achieve a consistent level of protection to address the 
current threat environment, all Licensees identified in Attachment A to 
this Order shall implement the requirements identified in Attachments B 
and C 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 and safety 
require that this Order be immediately effective.

III

    Accordingly, pursuant to Sections 53, 63, 81, 147, 149, 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 and 10 CFR Parts 30, 32, 70 
and 71, It is hereby ordered, effective immediately, that all licensees 
identified in attachment a to this order shall comply with the 
following:
    A. All Licensees shall, notwithstanding the provisions of any 
Commission or Agreement State regulation or license to the contrary, 
comply with the requirements described in Attachments B and C to this 
Order. The Licensees shall immediately start implementation of the 
requirements in Attachments B and C to the Order and shall complete 
implementation by February 17, 2009, or before the first shipment of 
radioactive material quantities of concern, whichever is sooner.
    B. 1. All Licensees shall, within twenty (20) days of the date of 
this Order, notify the Commission, (1) if they are unable to comply 
with any of the requirements described in Attachments B or C, (2) if 
compliance with any of the requirements is unnecessary in their 
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 Licensees' justification 
for seeking relief from or variation of any specific requirement.
    2. Any Licensee that considers that implementation of any of the 
requirements described in Attachments B or C to this Order would 
adversely impact the safe transport of radioactive material quantities 
of concern 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 Attachments 
B or requirement in question, or a schedule for modifying the activity 
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. In accordance with the NRC's ``Order Imposing Fingerprinting 
and Criminal History Records Check Requirements for Access to 
Safeguards Information'' (EA-08-162) only the NRC-approved reviewing 
official shall review results from an FBI criminal history records 
check. The licensee may use a reviewing official previously approved by 
the NRC as its reviewing official for determining access to Safeguards 
Information or the licensee may nominate another individual 
specifically for making unescorted access to radioactive material 
determinations, using the process

[[Page 51018]]

described in EA-08-162. The reviewing official must have access to 
Safeguards Information or require unescorted access to the radioactive 
material as part of their job duties. The reviewing official shall 
determine whether an individual may have, or continue to have, 
unescorted access to radioactive materials that equal or exceed the 
quantities in Attachment B to this Order. Fingerprinting and the FBI 
identification and criminal history records check are not required for 
individuals exempted from fingerprinting requirements under 10 CFR 
73.61 [72 FR 4945 (February 2, 2007)]. In addition, individuals who 
have a favorably decided U.S. Government criminal history records check 
within the last five (5) years, or have an active federal security 
clearance (provided in each case that the appropriate documentation is 
made available to the Licensee's reviewing official), have satisfied 
the Atomic Energy Act of 1954, as amended, fingerprinting requirement 
and need not be fingerprinted again for purposes of being considered 
for unescorted access.
    2. No person may have access to Safeguards Information or 
unescorted access to radioactive materials if the NRC has determined, 
in accordance with its administrative review process based on 
fingerprinting and an FBI identification and criminal history records 
check, either that the person may not have access to Safeguards 
Information or that the person may not have unescorted access to a 
utilization facility, or radioactive material or other property subject 
to regulation by the NRC.
    D. Fingerprints shall be submitted and reviewed in accordance with 
the procedures described in Attachment C to this Order. Individuals who 
have been fingerprinted and granted access to Safeguards Information by 
the reviewing official under Order EA-08-162, do not need to be 
fingerprinted again for purposes of being considered for unescorted 
access.
    E. The Licensee may allow any individual who currently has 
unescorted access to radioactive materials, in accordance with this 
Order, to continue to have unescorted access without being 
fingerprinted, pending a decision by the reviewing official (based on 
fingerprinting, an FBI criminal history records check and a trustworthy 
and reliability determination) that the individual may continue to have 
unescorted access to radioactive materials that equal or exceed the 
quantities listed in Attachment B to this Order. The licensee shall 
complete implementation of the requirements of Attachments B and C to 
this Order by February 17, 2009.
    F. 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 Attachments B and C.
    2. The Licensee shall report to the Commission when they have 
achieved full compliance with the requirements described in Attachments 
B and C.
    G. Notwithstanding any provisions of the Commission's or an 
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 responses to Conditions B.1, B.2, F.1, and F.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.
    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 within twenty (20) days of the date of this Order. In addition, 
the Licensee and any other person adversely affected by this Order may 
request a hearing of this Order within twenty (20) days of the date of 
the Order. Where good cause is shown, consideration will be given to 
extending the time to request a hearing. A request for extension of 
time 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. If the answer includes a 
request for a hearing, it shall, under oath or affirmation, 
specifically set forth the matters of fact and law on which the 
Licensee relies and the reasons as to why the Order should not have 
been issued. 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).
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule, which the NRC 
promulgated in August 2007, 72 FR 49139 (Aug. 28, 2007) and codified in 
pertinent part at 10 CFR Part 2, Subpart B. The E-Filing process 
requires participants to submit and serve all adjudicatory documents 
over the Internet, or in some cases to mail copies on electronic 
storage media. Participants may not submit paper copies of their 
filings unless they seek a waiver in accordance with the procedures 
described below.
    To comply with the procedural requirements associated with E-
Filing, at least ten (10) days prior to the filing deadline the 
requestor must contact the Office of the Secretary by e-mail at 
[email protected], or by calling (301) 415-1677, to request (1) a 
digital ID certificate, which allows the participant (or its counsel or 
representative) to digitally sign documents and access the E-Submittal 
server for any NRC proceeding in which it is participating; and/or (2) 
creation of an electronic docket for the proceeding (even in instances 
when the requestor (or its counsel or representative) already holds an 
NRC-issued digital ID certificate). Each requestor will need to 
download the Workplace Forms ViewerTM to access the 
Electronic Information Exchange (EIE), a component of the E-Filing 
system. The Workplace Forms ViewerTM is free and is 
available at http://www.nrc.gov/site-help/e-submittals/install-viewer.html. Information about applying for a digital ID certificate 
also is available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
    Once a requestor has obtained a digital ID certificate, had a 
docket created, and downloaded the EIE viewer, it can then submit a 
request for a hearing through EIE. Submissions should be in Portable 
Document Format (PDF) in accordance with NRC guidance

[[Page 51019]]

available on the NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the time the filer 
submits its document through EIE. To be timely, electronic filings must 
be submitted to the EIE system no later than 11:59 p.m. Eastern Time on 
the due date. Upon receipt of a transmission, the E-Filing system time-
stamps the document and sends the submitter an e-mail notice confirming 
receipt of the document. The EIE system also distributes an e-mail 
notice that provides access to the document to the NRC Office of the 
General Counsel and any others who have advised the Office of the 
Secretary that they wish to participate in the proceeding, so that the 
filer need not serve the document on those participants separately. 
Therefore, any others who wish to participate in the proceeding (or 
their counsel or representative) must apply for and receive a digital 
ID certificate before a hearing request is filed so that they may 
obtain access to the document via the E-Filing system.
    A person filing electronically may seek assistance through the 
``Contact Us'' link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical help line, 
which is available between 8:30 a.m. and 4:15 p.m., Eastern Time, 
Monday through Friday. The help line number is (800) 397-4209 or 
locally, (301) 415-4737.
    Participants who believe that they have good cause for not 
submitting documents electronically must file a motion, in accordance 
with 10 CFR 2.302(g), with their initial paper filing requesting 
authorization to continue to submit documents in paper format. Such 
filings must be submitted by (1) first class mail addressed to the 
Office of the Secretary of the Commission, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemaking and 
Adjudications Staff; or (2) courier, express mail, or expedited 
delivery service to the Office of the Secretary, Sixteenth Floor, One 
White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, 
Attention: Rulemaking and Adjudications Staff. Participants filing a 
document in this manner are responsible for serving the document on all 
other participants. Filing is considered complete by first-class mail 
as of the time of deposit in the mail, or by courier, express mail, or 
expedited delivery service upon depositing the document with the 
provider of the service.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket which is available to the public at 
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant 
to an order of the Commission, an Atomic Safety and Licensing Board, or 
a Presiding Officer. Participants are requested not to include personal 
privacy information, such as Social Security numbers, home addresses, 
or home phone numbers in their filings. With respect to copyrighted 
works, except for limited excerpts that serve the purpose of the 
adjudicatory filings and would constitute a Fair Use application, 
Participants are requested not to include copyrighted materials in 
their works.
    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 
requesting 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 this 21st day of August 2008.

    For the Nuclear Regulatory Commission.
George Pangburn,
Acting Director, Office of Federal and State Materials and 
Environmental Management Programs.

Attachment A: List of Licensees--Redacted

Attachment B: Additional Security Measures for Transportation of 
Radioactive Material Quantities of Concern--Revision 2

A. General Basis Criteria

    These Additional Security Measures (ASMs) are established to 
delineate licensee responsibility in response to the current threat 
environment. The following security measures apply to Nuclear 
Regulatory Commission (NRC) and Agreement States licensees, who ship 
Radioactive Material Quantities of Concern (RAMQC) as defined in 
Section A.1. Shipments of RAMQC that do not fall within the NRC's 
jurisdiction under the Atomic Energy Act of 1954, as amended, are 
not subject to the provisions of these ASMs.
    1. Licensees who are subject to this Order shall ensure that the 
requirements listed in Section B below are in effect when they ship 
radioactive materials that meet the following criterion:
    a. Radionuclides listed in Table A, greater than or equal to the 
quantities specified,
    b. For mixtures of radionuclides listed in Table A, the sum of 
the fractions of those radionuclides if greater than or equal to 1, 
or
    c. For shipments of spent nuclear fuel containing greater than 
or equal to 1000 Terabecquerels (TBq) (27,000 Curies) but less than 
or equal to 100 grams of spent nuclear fuel.
    For shipments containing greater than 100 grams of spent nuclear 
fuel, licensees shall follow the ASMs for ``Transportation of Spent 
Nuclear Fuel Greater than 100 Grams,'' dated October 3, 2002.
    These ASMs supersede Safeguards Advisories SA-01-01, Rev. 1, and 
SA-03-02. For radioactive materials shipments containing 
radionuclides not addressed by this ASM guidance will be provided by 
Safeguards Advisory.
    2. The requirements of these ASMs apply to a conveyance (i.e., 
the requirements apply irrespective of whether the RAMQC is shipped 
in a single package or in multiple packages in a single conveyance).
    3. Licensees are not responsible for complying with the 
requirements of these ASMs if a carrier aggregates, during transport 
or storage incident to transport, radioactive material from two or 
more conveyances from separate licensees which individually do not 
exceed the limits of Paragraph A.1. but which together meet or 
exceed any of the criteria in Paragraph A.1.
    4. The requirements of these ASMs only apply to RAMQC shipments 
using highway or rail modes of transportation. For multi-mode 
shipments, the requirements of these ASMs apply only to the portion 
of shipments that are made using highway or rail modes of 
transportation, as appropriate.
    5. For domestic highway and rail shipments of materials in 
quantities greater than or equal to the quantities in Paragraph A.1, 
per conveyance, the licensee shall ensure that:
    a. Only carriers are used which:
    a. Use established package tracking systems,
    b. Implement methods to assure trustworthiness and reliability 
of personnel associated with the transportation of RAMQC,
    c. Maintain constant control and/or surveillance during transit, 
and
    d. Have the capability for immediate communication to summon 
appropriate response or assistance.
    b. The licensee shall verify and document that the carrier 
employs the measures listed above.
    6. The preplanning, coordination, and tracking requirements of 
these ASMs are intended to reduce unnecessary delays and shipment 
duration and to facilitate the

[[Page 51020]]

transfer of the RAMQC shipment and any escorts at State borders.
    7. Unless specifically noted otherwise, the requirements of 
these ASMs do not apply to local law enforcement agencies (LLEA) 
personnel performing escort duties.
    8. The requirements of these ASMs apply to RAMQC domestic 
shipments within the United States (U.S.), imports into the U.S., or 
exports from the U.S. The requirements of these ASMs do not apply to 
transshipments through the U.S. Licensees are responsible for 
complying with the requirements of Section B for the highway and 
rail shipment portion of an import or export which occurs inside of 
the U.S.
    For import and export RAMQC shipments, while located at the port 
or shipments on U.S. navigable waterways, the U.S. Coast Guard 
Maritime Transportation security regulations will be in effect and 
these ASMs are not applicable. For RAMQC shipments while located at 
the air freight terminal, security requirements will be performed in 
accordance with the Transportation Security Administration security 
regulations.
    For import and export RAMQC shipments, the licensee shall ensure 
that the requirements of these ASMs are implemented after the 
transportation package has been loaded onto the highway or rail 
vehicle (except for the advance notification requirements in section 
B.4) and the package begins the domestic portion of the shipment to 
or from the U.S. port of entry [i.e., the package(s) departs for or 
from the port of entry facility or the airfreight terminal].

B. Specific Requirements

    Licensees who ship RAMQC in quantities that meet the criteria of 
Paragraph A.1. shall ensure that carriers used have developed and 
implemented transportation security plans that embody the additional 
security measures imposed by this Order.

1. Licensee Verification

    Before transfer of radioactive materials in quantities which 
meet the criterion of Paragraph A.1, per conveyance, the licensee 
shall:
    a. For new recipient(s), verify that the intended recipient's 
license authorizes receipt of the regulated material by direct 
contact with the regulatory authority that issued the license (NRC 
Region or Agreement State) prior to transferring the material,
    b. Verify the validity of unusual orders or changes (if 
applicable) that depart from historical patterns of ordering by 
existing recipients,
    c. Verify the material is shipped to an address authorized in 
the license and that the address is valid,
    d. Verify the address for a delivery to a temporary job site is 
valid,
    e. Document the verification and validation process, and
    f. Coordinate departure and arrival times with the recipient.

2. Background Investigations

    a. Background investigations are intended to provide high 
assurance that individuals performing assigned duties associated 
with the transport of RAMQC, are trustworthy and reliable, and do 
not constitute an unreasonable risk to the common defense and 
security, including the potential to commit radiological sabotage.
    b. For highway shipments only, the licensee shall ensure 
background investigations for all drivers, accompanying individuals, 
communications center managers, and other appropriate communications 
center personnel have been performed. The NRC only has the authority 
to impose a Federal Bureau of Investigation (FBI) criminal history 
check, which includes fingerprinting, on those individuals who seek 
access to Safeguards Information (SGI) or unescorted access to 
licensed material.
    c. For rail shipments, the licensee shall ensure background 
investigations for employees filling the positions of communications 
center managers and other appropriate communications center 
personnel have been performed. The NRC only has the authority to 
impose a Federal Bureau of Investigation (FBI) criminal history 
check, which includes fingerprinting, on those individuals who seek 
access to SGI or unescorted access to licensed material.
    d. Licensees shall document the basis for concluding that there 
is high assurance that individuals granted access to safeguards 
information or unescorted access to licensed material are 
trustworthy and reliable, and do not constitute an unreasonable risk 
for malevolent use of the regulated material. ``Access'' means that 
an individual could exercise some physical control over the material 
or device containing radioactive material.
    (1) The trustworthiness, reliability, and verification of an 
individual's true identity shall be determined based on a background 
investigation. The background investigation shall address at least 
the past three (3) years, and as a minimum, include fingerprinting 
and an FBI criminal history check, verification of employment 
history, education, employment eligibility, and personal references. 
If an individual's employment has been less than the required three 
(3) years period, educational references may be used in lieu of 
employment history.
    (2) Fingerprints shall be submitted and reviewed in accordance 
with the procedures described in Attachment C to this Order.
    (3) A reviewing official that the licensee nominated and has 
been approved by the NRC, in accordance with NRC ``Order Imposing 
Fingerprinting and Criminal History Records Check Requirements for 
Access to Safeguards Information,'' may continue to make 
trustworthiness and reliability determinations. The licensee may 
also nominate another individual specifically for making unescorted 
access determinations using the process identified in the NRC 
``Order Imposing Fingerprinting and Criminal History Records Check 
Requirements for Access to Safeguards Information.''
    e. Licensees background investigation requirements may also be 
satisfied for an individual that has:
    (1) Current access authorization permitting unescorted access to 
a power reactor facility or access to Safeguards Information,
    (2) Current U.S. government-issued security clearance (based 
upon a national agency check, at a minimum), or
    (3) Satisfactorily completed a background investigation under an 
NRC-approved access authorization program.
    f. Individuals shall not perform assigned duties associated with 
the transport of RAMQC until the licensee has confirmed that a 
determination of trustworthiness and reliability, based on the 
appropriate background investigation requirements in B.2.d. and 
B.2.e., has been performed and documented.

3. Preplanning and Coordination

    a. As part of the shipment planning process, the licensee shall 
ensure that appropriate security information is provided to and is 
coordinated with affected States through which the shipment will 
pass to ensure minimal delays. These discussions shall include 
whether a State intends to provide escorts for a shipment.
    b. The licensee shall ensure States are provided with position 
information on a shipment (see Paragraph B.5.a), if requested and 
practical.
    c. For shipments by highway, the licensees's coordination 
required in Paragraph B.3.a. shall include identification of Highway 
Route Controlled Quantity (HRCQ) shipments of material and safe 
havens.\1\
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    \1\ In general, a safe haven is a readily recognizable and 
readily accessible site at which security is present or from which, 
in the event of an emergency, the transport crew can notify and wait 
for the local law enforcement authorities (LLEA). The following 
criteria are used by the NRC to determine the safe haven sites and 
licensees should use these criteria in identifying safe havens for 
shipments subject to this Order:
    --Close proximity to the route, i.e., readily available to the 
transport vehicle.
    --Security from local, State, or Federal assets is present or is 
accessible for timely response.
    --Site is well lit, has adequate parking, and can be used for 
emergency repair or wait for LLEA response on a 24-hours-a-day 
basis.
    --Have additional telephone facilities should the communications 
system of the transport vehicle not function properly.
    Possible safe haven sites include: Military installations and 
other Federal sites having significant security assets; secure 
company terminals; State weigh stations; truck stops with secure 
areas; and LLEA sites, including State police barracks.
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4. Notifications

    a. The licensee shall ensure an advance notification of a 
shipment is provided, or of a series of shipments, of RAMQC to the 
NRC. The licensee shall ensure the notification is submitted 
sufficiently in advance to ensure it is received by NRC at least 
seven (7) days, where practicable, before the shipment commences 
physically within the U.S.
    For written notifications, the notice should be addressed to: 
(10 CFR 2.390)

U.S. Nuclear Regulatory Commission, ATTN: Director, Division of 
Nuclear Security, M/S: T-4-D-8, Office of Nuclear Security and 
Incident Response, 11555 Rockville Pike, Rockville, MD 20852-2738.

    Notifications may also be submitted electronically via e-mail to 
[email protected] or via fax to (301) 816-5151. (10 CFR 
2.390)

[[Page 51021]]

    b. The advance notification shall contain the following 
information:
    (1) [This paragraph contains SAFEGUARDS INFORMATION and will not 
be publicly disclosed.]
    (2) [This paragraph contains SAFEGUARDS INFORMATION and will not 
be publicly disclosed.]
    (3) [This paragraph contains SAFEGUARDS INFORMATION and will not 
be publicly disclosed.]
    (4) [This paragraph contains SAFEGUARDS INFORMATION and will not 
be publicly disclosed.]
    (5) [This paragraph contains SAFEGUARDS INFORMATION and will not 
be publicly disclosed.]
    (6) [This paragraph contains SAFEGUARDS INFORMATION and will not 
be publicly disclosed.]
    (7) [This paragraph contains SAFEGUARDS INFORMATION and will not 
be publicly disclosed.]

Refer to Paragraph B.7.c. for determination of information 
designation of advance notifications during preplanning, 
coordinating, and reporting information activities.
    c. The licensee shall ensure the information required by 
Paragraph B.4.b. is provided to each State through which the 
shipment will pass. The licensee shall ensure that the notification 
is received at least seven (7) days, where practicable, before the 
U.S. highway or railroad portion of a shipment commences.
    d. [This paragraph contains SAFEGUARDS INFORMATION and will not 
be publicly disclosed.]

5. Communications

    a. (1) For highway shipments, monitor each RAMQC shipment with a 
telemetric position monitoring system that communicates with a 
communication center or is equipped with an alternative tracking 
system that communicates position information to a communications 
center.
    (2) For rail shipments, monitor each RAMQC shipment with either: 
(i) A telemetric position monitoring system that communicates with a 
licensee or third-party communication center, (ii) a railroad track-
side car location monitoring systems tracking system that relays a 
car's position to a railroad communications center (which can 
provide position information to any separate licensee communications 
center per Paragraph B.5.b), or (iii) alternate licensee monitoring 
system. Additionally, licensees may use a railroad communications 
center to monitor the rail portion of a shipment, in lieu of using a 
separate communications center.
    b. (1) For highway shipments, provide for a communication center 
that has the capability to continuously and actively monitor in-
progress shipments to ensure positive confirmation of the location, 
status, and control over the shipment and implement pre-planned 
procedures in response to deviations from the authorized route or 
notification of actual, attempted, or suspicious activities related 
to theft, loss, diversion, or radiological sabotage of a shipment. 
These procedures shall include identification of the designated LLEA 
contact(s) along the shipment route.
    (2) For rail shipments, provide for a communication center that 
has the capability to periodically monitor in-progress shipments to 
ensure positive confirmation of the location of the shipment and 
implement pre-planned procedures in response to notification of 
actual, attempted, or suspicious activities related to theft, loss, 
diversion, or radiological sabotage of a shipment. These procedures 
shall include identification of the designated LLEA contact(s) along 
the shipment route. Licensees may use a railroad communications 
center in lieu of establishing a separate communications center.
    c. (1) For highway shipments, ensure that a two-way 
telecommunication capability is available for the transport and any 
escort vehicles allowing them to communicate with each other with 
the communications center, and with designated LLEAs along the 
route. The communications center must be capable of contacting the 
designated authorities along the shipment route.
    (2) For rail shipments, ensure that a two-way telecommunication 
capability is available between the train and the communications 
center and between any escort vehicles and the communications 
center. The communications center must be capable of contacting the 
designated authorities along the shipment route.
    d. A licensee may utilize a carrier or third-party 
communications center in lieu of establishing such a facility 
itself. A commercial communications center must have the 
capabilities, necessary procedures, training, and personnel 
background investigations to meet the applicable requirements of 
these ASMs.
    e. (1) For highway shipments, provide a backup means for the 
transport and any escort vehicle to communicate with the 
communications center, using a diverse method not subject to the 
same interference factors as the primary capability selected for 
compliance with Paragraph B.5.c. (e.g., two-way radio or portable 
telephone).
    (2) For rail shipments, provide a backup means for the train to 
talk with the communications center, using a diverse method not 
subject to the same interference factors as the primary capability 
selected for compliance with Paragraph B.5.c. (e.g., two-way radio 
or portable telephone).
    f. [This paragraph contains SAFEGUARDS INFORMATION and will not 
be publicly disclosed.]
    (1) Not later than one hour after the time when, through the 
course of the investigation, it is determined the shipment is lost 
or stolen, the licensee shall ensure the appropriate local law 
enforcement agency, the NRC Operations Center at (301) 816-5100, and 
the appropriate Agreement State regulatory agency, if any, are 
notified.
    (2) If after 24 hours of initiating the investigation, the 
radioactive material cannot be located, licensee shall ensure the 
NRC Operations Center and, for Agreement State licensees, the 
appropriate Agreement State regulatory agency are immediately 
notified.
    g. [This paragraph contains SAFEGUARDS INFORMATION and will not 
be publicly disclosed.]

6. Drivers and Accompanying Individuals

    a. [This paragraph contains SAFEGUARDS INFORMATION and will not 
be publicly disclosed.]
    b. [This paragraph contains SAFEGUARDS INFORMATION and will not 
be publicly disclosed.]
    c. [This paragraph contains SAFEGUARDS INFORMATION and will not 
be publicly disclosed.]
    d. [This paragraph contains SAFEGUARDS INFORMATION and will not 
be publicly disclosed.]

7. Procedures, Training, and Control of Information

    a. (1) For highway shipments the licensee shall ensure that 
normal and contingency procedures have been developed, including, 
for example: Notifications, communications protocols, loss of 
communications, and response to actual, attempted, or suspicious 
activities related to theft, loss, diversion, or radiological 
sabotage of a shipment. Communication protocols must include a 
strategy for use of authentication and duress codes, provision for 
refueling or other stops, detours, and locations where communication 
is expected to be temporarily lost.
    (2) For rail shipments, the licensee shall ensure that normal 
and contingency procedures have been developed, including, for 
example: notifications, communications protocols, loss of 
communications, and response to actual, attempted, or suspicious 
activities related to theft, loss, diversion, or radiological 
sabotage of a shipment. Communication protocols must include a 
strategy for use of authentication and duress codes, provision for 
stops, and locations where communication is expected to be 
temporarily lost.
    b. (1) For highway shipments, the licensee shall ensure that 
personnel, including drivers, accompanying individuals, responsible 
communication center managers, and other appropriate communication 
center personnel are trained in and understand the normal and 
contingency procedures.
    (2) For rail shipments, the licensee shall ensure that 
personnel, including the appropriate train crew members and 
responsible railroad communication center managers, and other 
appropriate railroad communication center personnel are trained in 
and understand the normal and contingency procedures.
    c. Information to be protected as Safeguards Information--
Modified Handling, shall include, but is not limited to:
    (1) Integrated transportation physical security plans.
    (2) Schedules and itineraries for shipments. For shipments that 
are not inherently self disclosing, schedule and itineraries 
information may be decontrolled 2 days after a shipment is 
completed. For shipments that are inherently self disclosing, 
schedule may be released as necessary after departure.
    (3) Details of alarm and communications systems, communication 
protocols and duress codes, and security contingency response 
procedures.
    (4) Arrangements with designated LLEA (i.e., Federal, State 
Police, and/or local police

[[Page 51022]]

departments) and information on whether a State intends to provide 
armed escorts for a shipment.
    For preplanning; coordinating, for example with States' 
organizations and carriers; reporting information as described in 
B.1., B.4., and B.5. related to shipments of radioactive material, 
and the radionuclides identified in Paragraph A.1, the licensee 
shall ensure the information is protected at least as sensitive 
information (for example, proprietary or business financial 
information). Licensees shall ensure access is restricted to this 
information to those licensee and contractor personnel with a need 
to know. Licensees shall ensure all parties receiving this 
information protect it similarly. Information may be transmitted 
either in writing or electronically and shall be marked as 
``Sensitive Information--Not for Public Disclosure.''

C. Implementation Schedule

    1. Licensees shall implement the requirements of this ASM within 
180 days of the date of issuance of the Order or before the first 
shipment of RAMQC, whichever is sooner.

                    Table A--Radionuclides of Concern
------------------------------------------------------------------------
                                                          Quantity of
                                       Quantity of        concern (Ci)
           Radionuclide               concern (TBq)    information only--
                                     threshold limit     rounded after
                                                           conversion
------------------------------------------------------------------------
Am-241............................                 60              1,600
Am-241/Be.........................                 60              1,600
Cf-252............................                 20                540
Cm-244............................                 50              1,400
Co-60.............................                 30                810
Cs-137............................                100              2,700
Gd-153............................              1,000             27,000
Ir-192............................                 80              2,200
Pm-147............................             40,000          1,100,000
Pu-238............................                 60              1,600
Pu-239/Be.........................                 60              1,600
Ra-226 \1\........................                 40              1,100
Se-75.............................                200              5,400
Sr-90 (Y-90)......................              1,000             27,000
Tm-170............................             20,000            540,000
Yb-169............................                300              8,100
------------------------------------------------------------------------
\1\ The Atomic Energy Act, as amended by the Energy Policy Act of 2005,
  authorizes NRC to regulate Ra-226 and NRC is in the process of
  amending its regulations for discrete sources of Ra-226.

Notes:

    1. The regulatory standard values to be used are given in 
Terabecquerels (TBq). Curie (Ci) values are provided for practical 
usefulness only and are rounded after conversion.
    2. If several radionuclides are present, the sum of the 
fractions of the activity of each radionuclide must be determined. 
Using the equation below calculate the ratio by inserting the actual 
activity of each radionuclide as the numerator and the corresponding 
activity limit in Table A as the denominator. Ensure the numerator 
and the denominator are in Terabecquerels.

R1 = activity for radionuclide number 1
R2 = activity for radionuclide number 2
R3, R4, R5......etc.
AR1 = activity limit for radionuclide number 1
AR2 = activity limit for radionuclide number 2
AR3, AR4, AR5......etc.
[GRAPHIC] [TIFF OMITTED] TN29AU08.000

Attachment C: Requirements for Fingerprinting and Criminal History 
Checks of Individuals When Licensee's Reviewing Official Is Determining 
Access to Safeguards Information or Unescorted Access to Radioactive 
Materials

General Requirements

    Licensees shall comply with the following requirements of this 
attachment.
    1. Each Licensee subject to the provisions of this attachment 
shall fingerprint each individual who is seeking or permitted access 
to safeguards information (SGI) or unescorted access to RAMQC. The 
Licensee shall review and use the information received from the 
Federal Bureau of Investigation (FBI) and ensure that the provisions 
contained in this Order and this attachment are satisfied.
    2. The Licensee shall notify each affected individual that the 
fingerprints will be used to secure a review of his/her criminal 
history record and inform the individual of the procedures for 
revising the record or including an explanation in the record, as 
specified in the ``Right to Correct and Complete Information'' 
section of this attachment.
    3. Fingerprints for access to SGI or unescorted access need not 
be taken if an employed individual (e.g., a Licensee employee, 
contractor, manufacturer, or supplier) is relieved from the 
fingerprinting requirement by 10 CFR 73.59 for access to SGI or 10 
CFR 73.61 for unescorted access, has a favorably-decided U.S. 
Government criminal history check within the last five (5) years, or 
has an active federal security clearance. Written confirmation from 
the Agency/employer which granted the federal security clearance or 
reviewed the criminal history check must be provided for either of 
the latter two cases. The Licensee must retain this documentation 
for a period of three (3) years from the date the individual no 
longer requires access to SGI or unescorted access to radioactive 
materials associated with the Licensee's activities.
    4. All fingerprints obtained by the Licensee pursuant to this 
Order must be submitted to the Commission for transmission to the 
FBI.
    5. The Licensee shall review the information received from the 
FBI and consider it, in conjunction with the trustworthy and 
reliability requirements of this Order, in making a determination 
whether to grant, or continue to allow, access to SGI or unescorted 
access to radioactive materials.
    6. The Licensee shall use any information obtained as part of a 
criminal history records check solely for the purpose of determining 
an individual's suitability for access to SGI or unescorted access 
to RAMQC.
    7. The Licensee shall document the basis for its determination 
whether to grant, or continue to allow, access to SGI or unescorted 
access to RAMQC.

Prohibitions

    A Licensee shall not base a final determination to deny an 
individual access to radioactive materials solely on the basis of

[[Page 51023]]

information received from the FBI involving: an arrest more than one 
(1) year old for which there is no information of the disposition of 
the case, or an arrest that resulted in dismissal of the charge or 
an acquittal.
    A Licensee shall not use information received from a criminal 
history check obtained pursuant to this Order in a manner that would 
infringe upon the rights of any individual under the First Amendment 
to the Constitution of the United States, nor shall the Licensee use 
the information in any way which would discriminate among 
individuals on the basis of race, religion, national origin, sex, or 
age.

Procedures for Processing Fingerprint Checks

    For the purpose of complying with this Order, Licensees shall, 
using an appropriate method listed in 10 CFR 73.4, submit to the 
NRC's Division of Facilities and Security, Mail Stop T-6E46, one 
completed, legible standard fingerprint card (Form FD-258, 
ORIMDNRCOOOZ) or, where practicable, other fingerprint records for 
each individual seeking access to SGI or unescorted access to RAMQC, 
to the Director of the Division of Facilities and Security, marked 
for the attention of the Division's Criminal History Check Section. 
Copies of these forms may be obtained by writing the Office of 
Information Services, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, by calling (301) 415-7232, or by e-mail 
to [email protected]. Practicable alternative formats are set 
forth in 10 CFR 73.4. The Licensee shall establish procedures to 
ensure that the quality of the fingerprints taken results in 
minimizing the rejection rate of fingerprint cards due to illegible 
or incomplete cards.
    The NRC will review submitted fingerprint cards for 
completeness. Any Form FD-258 fingerprint record containing 
omissions or evident errors will be returned to the Licensee for 
corrections. The fee for processing fingerprint checks includes one 
re-submission if the initial submission is returned by the FBI 
because the fingerprint impressions cannot be classified. The one 
free re-submission must have the FBI Transaction Control Number 
reflected on the re-submission. If additional submissions are 
necessary, they will be treated as initial submittals and will 
require a second payment of the processing fee.
    Fees for processing fingerprint checks are due upon application 
(Note: Other fees may apply to obtain fingerprints from your local 
law enforcement agency). Licensees should submit payments 
electronically via http://www.pay.gov. Payments through Pay.gov can 
be made directly from the Licensee's credit/debit card. Licensees 
will need to establish a password and user ID before they can access 
Pay.gov. To establish an account, Licensee requests must be sent to 
[email protected]. The request must include the Licensee's name, 
address, point of contact, e-mail address, and phone number. The NRC 
will forward each request to Pay.gov and someone from Pay.gov will 
contact the Licensee with all of the necessary account information. 
Licensees shall make payments for processing before submitting 
applications to the NRC. Combined payment for multiple applications 
is acceptable. Licensees shall include the Pay.gov payment 
receipt(s) along with the application(s). For additional guidance on 
making electronic payments, contact the Facilities Security Branch, 
Division of Facilities and Security, at (301) 415-7404.
    Alternatively, licensees may also submit payment with the 
application for processing fingerprints by corporate check, 
certified check, cashier's check, or money order, made payable to 
``U.S. NRC.'' Combined payment for multiple applications is 
acceptable.
    The application fee (currently $36) is the sum of the user fee 
charged by the FBI for each fingerprint card or other fingerprint 
record submitted by the NRC on behalf of a Licensee, and an NRC 
processing fee, which covers administrative costs associated with 
NRC handling of Licensee fingerprint submissions. The Commission 
will directly notify Licensees subject to this regulation of any fee 
changes.
    The Commission will forward to the submitting Licensee all data 
received from the FBI as a result of the Licensee's application(s) 
for criminal history checks, including the FBI fingerprint record.

Right to Correct and Complete Information

    Prior to any final adverse determination, the Licensee shall 
make available to the individual the contents of any criminal 
records obtained from the FBI for the purpose of assuring correct 
and complete information. Written confirmation by the individual of 
receipt of this notification must be maintained by the Licensee for 
a period of one (1) year from the date of the notification.
    If, after reviewing the record, an individual believes that it 
is incorrect or incomplete in any respect and wishes to change, 
correct, or update the alleged deficiency, or to explain any matter 
in the record, the individual may initiate challenge procedures. 
These procedures include either direct application by the individual 
challenging the record to the agency (i.e., law enforcement agency) 
that contributed the questioned information, or direct challenge as 
to the accuracy or completeness of any entry on the criminal history 
record to the Assistant Director, Federal Bureau of Investigation 
Identification Division, Washington, DC 20537-9700 (as set forth in 
28 CFR 16.30 through 16.34). In the latter case, the FBI forwards 
the challenge to the agency that submitted the data and requests 
that agency to verify or correct the challenged entry. Upon receipt 
of an official communication directly from the agency that 
contributed the original information, the FBI Identification 
Division makes any changes necessary in accordance with the 
information supplied by that agency. The Licensee must provide at 
least ten (10) days for an individual to initiate an action 
challenging the results of an FBI criminal history records check 
after the record is made available for his/her review. The Licensee 
may make a final determination on access to SGI or unescorted access 
RAMQC based upon the criminal history record only upon receipt of 
the FBI's ultimate confirmation or correction of the record. Upon a 
final adverse determination on access to SGI or unescorted access to 
RAMQC, the Licensee shall provide the individual its documented 
basis for denial. Access to SGI or unescorted access to RAMQC shall 
not be granted to an individual during the review process.

Protection of Information

    1. Each Licensee who obtains a criminal history record on an 
individual pursuant to this Order shall establish and maintain a 
system of files and procedures for protecting the record and the 
personal information from unauthorized disclosure.
    2. The Licensee may not disclose the record or personal 
information collected and maintained to persons other than the 
subject individual, his/her representative, or to those who have a 
need to access the information in performing assigned duties in the 
process of determining access to SGI or unescorted access to RAMQC. 
No individual authorized to have access to the information may re-
disseminate the information to any other individual who does not 
have a need-to-know.
    3. The personal information obtained on an individual from a 
criminal history record check may be transferred to another Licensee 
if the Licensee holding the criminal history record receives the 
individual's written request to re-disseminate the information 
contained in his/her file, and the gaining Licensee verifies 
information such as the individual's name, date of birth, social 
security number, sex, and other applicable physical characteristics 
for identification purposes.
    4. The Licensee shall make criminal history records, obtained 
under this section, available for examination by an authorized 
representative of the NRC to determine compliance with the 
regulations and laws.
    5. The Licensee shall retain all fingerprint and criminal 
history records received from the FBI, or a copy if the individual's 
file has been transferred, for three (3) years after termination of 
employment or denial to access SGI or unescorted access to RAMQC. 
After the required three (3) year period, these documents shall be 
destroyed by a method that will prevent reconstruction of the 
information in whole or in part.

[FR Doc. E8-20119 Filed 8-28-08; 8:45 am]
BILLING CODE 7590-01-P