[Federal Register Volume 73, Number 234 (Thursday, December 4, 2008)]
[Notices]
[Pages 73965-73973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28682]


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NUCLEAR REGULATORY COMMISSION

[EA-08-288]


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

[[Page 73966]]

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 identified 
in Attachment A to this Order 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 by 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 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-03-199 or 
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-06-155 or 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-06-155 or 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-06-155 or EA-08-162). Licensees 
may nominate additional reviewing officials for making unescorted 
access determinations in accordance with NRC Orders EA-06-155 or 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 Sec.  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 May 23, 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

[[Page 73967]]

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-06-155 or 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 described in EA-06-155 or 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-06-155 or 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 May 23, 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

[[Page 73968]]

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 Viewer\TM\ to access the Electronic 
Information Exchange (EIE), a component of the E-Filing system. The 
Workplace Forms Viewer\TM\ 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 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 24th day of November 2008.

    For The Nuclear Regulatory Commission.
Charles L. Miller,
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,

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    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 supercede 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:
    (1) Use established package tracking systems,
    (2) Implement methods to assure trustworthiness and reliability of 
personnel associated with the transportation of RAMQC,
    (3) Maintain constant control and/or surveillance during transit, 
and
    (4) 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 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

[[Page 73970]]

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,'' is the only individual that may 
make trustworthiness and reliability determinations.
    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 licensee'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)
    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

[[Page 73971]]

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 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.

[[Page 73972]]



                    Table A--Radionuclides of Concern
------------------------------------------------------------------------
                                                            Quantity of
                                            Quantity of    concern (Ci)
                                           concern (TBq)    information
              Radionuclide                   threshold     only--rounded
                                               limit           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] TN04DE08.048

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 
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.

[[Page 73973]]

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-
5877, 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. 
Licensees shall submit payment with the application for processing 
fingerprints by corporate check, certified check, cashier's check, 
money order, or electronic payment, made payable to ``U.S. NRC.'' [For 
guidance on making electronic payments, contact the Facilities Security 
Branch, Division of Facilities and Security, at (301) 415-7404]. 
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 
who are 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 part 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. E8-28682 Filed 12-3-08; 8:45 am]
BILLING CODE 7590-01-P