[Federal Register Volume 75, Number 114 (Tuesday, June 15, 2010)]
[Proposed Rules]
[Pages 33902-33947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13319]
[[Page 33901]]
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Part II
Nuclear Regulatory Commission
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10 CFR Parts 30, 32, 33, et al.
Physical Protection of Byproduct Material; Proposed Rule
Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 /
Proposed Rules
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 30, 32, 33, 34, 35, 36, 37, 39, 51, 71, and 73
[NRC-2008-0120]
RIN 3150-AI12
Physical Protection of Byproduct Material
AGENCY: U. S. Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to
amend its regulations to establish security requirements for the use
and transport of category 1 and category 2 quantities of radioactive
material, which the NRC considers to be risk-significant and therefore
to warrant additional protection. Category 1 and category 2 thresholds
are based on those established in the International Atomic Energy
Agency (IAEA) Code of Conduct on the Safety and Security of Radioactive
Sources which NRC endorses. The objective of this proposed rule is to
provide reasonable assurance of preventing the theft or diversion of
category 1 and category 2 quantities of radioactive material. The
proposed regulations would also include security requirements for the
transportation of irradiated reactor fuel that weighs 100 grams or less
in net weight of irradiated fuel. The proposed rule would affect any
licensee that is authorized to possess category 1 or category 2
quantities of radioactive material, any licensee that transports these
materials using ground transportation, and any licensee that transports
small quantities of irradiated reactor fuel.
DATES: Submit comments on the proposed rule by October 13, 2010. Submit
comments specific to the information collection aspects of this
proposed rule by July 15, 2010. Comments received after the above dates
will be considered if it is practical to do so, but the NRC is able to
assure consideration only for comments received on or before these
dates.
ADDRESSES: You may submit comments by any one of the following methods.
Please include Docket ID NRC-2008-0120 in the subject line of your
comments. Comments submitted in writing or in electronic form will be
posted on the NRC Web site and on the Federal rulemaking Web site
Regulations.gov. Because your comments will not be edited to remove any
identifying or contact information, the NRC cautions you against
including any information in your submission that you do not want to be
publicly disclosed.
The NRC requests that any party soliciting or aggregating comments
received from other persons for submission to the NRC inform those
persons that the NRC will not edit their comments to remove any
identifying or contact information, and therefore, they should not
include any information in their comments that they do not want
publicly disclosed.
Federal Rulemaking Web site: Go to http://www.regulations.gov and
search for documents filed under Docket ID NRC-2008-0120. Address
questions about NRC dockets to Carol Gallagher 301-492-3668; e-mail
[email protected].
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, Attn: Rulemakings and Adjudications Staff.
E-mail comments to: [email protected]. If you do not
receive a reply e-mail confirming that we have received your comments,
contact us directly at 301-415-1677.
Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland
20852, between 7:30 am and 4:15 pm Federal workdays. (Telephone 301-
415-1677).
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at
301-415-1101.
You may submit comments on the information collections by the
methods indicated in the Paperwork Reduction Act Statement.
You can access publicly available documents related to this
proposed rule using the following methods:
NRC's Public Document Room (PDR): The public may examine and have
copied for a fee publicly available documents at the NRC's PDR, Public
File Area O-1 F21, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland.
NRC's Agencywide Documents Access and Management System (ADAMS):
Publicly available documents created or received at the NRC are
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain
entry into ADAMS, which provides text and image files of NRC's public
documents. If you do not have access to ADAMS or if there are problems
in accessing the documents located in ADAMS, contact the NRC's PDR
reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to
[email protected].
Federal Rulemaking Web site: Public comments and supporting
materials related to this proposed rule can be found at http://www.regulations.gov by searching on Docket ID NRC-2008-0120.
FOR FURTHER INFORMATION CONTACT: Merri Horn, Office of Federal and
State Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, telephone: (301) 415-
8126, e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion
A. General Applicability
B. Background Investigation and Access Authorization Program
C. Physical Protection During Use
D. Transportation Security
III. Discussion of Proposed Amendments by Section
IV. Criminal Penalties
V. Agreement State Compatibility
VI. Plain Language
VII. Voluntary Consensus Standards
VIII. Finding of No Significant Environmental Impact: Availability
IX. Paperwork Reduction Act Statement
X. Regulatory Analysis
XI. Regulatory Flexibility Certification
XII. Backfit Analysis
I. Background
The NRC has long participated in efforts to address radioactive
source protection and security. However, the terrorist attacks of
September 11, 2001, heightened concerns about the use of risk-
significant radioactive materials in a malevolent act. Such an attack
is of particular concern because of the widespread use of radioactive
materials in the United States by industrial, medical, and academic
institutions. The theft or diversion of risk-significant quantities of
radioactive materials could lead to their use in a radiological
dispersal device (RDD) or a radiological exposure device (RED).
The NRC's current regulations provide requirements for the safe
use, transit, and control of licensed material. Any loss of control of
risk-significant radioactive material, whether inadvertent or through a
deliberate act, could result in significant adverse impacts that could
reasonably constitute a threat to the public health and safety or the
common defense and security of the United States. In the changed threat
environment after the attacks of September 11, 2001, the Commission
determined that certain licensed material should be subject to enhanced
security requirements and safeguarded during transport, and that
individuals with unescorted access to risk-significant quantities of
radioactive material should be subject to background investigations.
[[Page 33903]]
As part of the development of the enhanced security measures, the
NRC performed vulnerability assessments to identify gaps or
vulnerabilities in security and the effectiveness and costs of certain
physical protection enhancements at various licensed facilities. The
results of the vulnerability assessments were used in the development
of security enhancement orders that were issued to licensees using a
graded approach based on the relative risk and quantity of material
possessed by the licensee. The NRC issued the first series of orders to
certain panoramic and underwater irradiator licensees that possessed
more than 370 TBq (10,000 Ci) of radioactive material (EA-02-249; June
6, 2003) (68 FR 35458; June 13, 2003). The next series of orders were
issued to certain manufacturing and distribution (M&D) licensees (EA-
03-225; January 12, 2004) (69 FR 5375; February 4, 2004). These orders
require the implementation of additional security measures and the
protection of the licensee's physical protection information as
Safeguards Information--Modified Handling (SGI-M). The original orders
are not publicly available because they contain detailed security
requirements that are designated as SGI-M. However, redacted versions
of these orders have been made available to the public (73 FR 33859;
June 13, 2008, and 73 FR 49714; August 22, 2008). These orders were
issued to both NRC and Agreement State licensees under the NRC's
authority to protect the common defense and security. Subsequently, the
NRC issued Increased Control Orders (EA-05-090; November 14, 2005) (70
FR 72128; December 1, 2005) to other licensees authorized to possess
certain risk-significant quantities of radioactive material (category 1
and category 2 quantities). The Increased Control Orders do not contain
safeguards information (SGI) or SGI-M and are available on the NRC's
public Web site at http://www.nrc.gov/security/byproduct/orders.html.
These orders were issued under the NRC's authority to protect public
health and safety, and require licensees to implement enhanced security
measures known as Increased Controls. To effect nationwide
implementation of the Increased Control Orders, each Agreement State
issued legally binding requirements to put enhanced security measures,
identical to the Increased Controls, in place for licensees under that
State's regulatory jurisdiction.
These security orders specifically address the security of
byproduct material possessed in quantities greater than, or equal to,
category 1 and category 2 quantities. The orders provide for enhanced
security measures for such things as license verification before
transfer, intrusion detection and response, access control, and
coordination with local law enforcement authorities (LLEAs). The orders
also contain requirements for the licensee to determine the
trustworthiness and reliability of individuals permitted unescorted
access to risk-significant radioactive materials. The determination
involves a background investigation of the individual. The background
investigations were originally limited to local criminal history
records checks with law enforcement agencies, verification of
employment history, education, personal references, and confirmation of
employment eligibility (legal immigration status).
In 2005, Congress passed, and the President signed, the Energy
Policy Act of 2005 (EPAct). The EPAct amended Section 149 of the Atomic
Energy Act (AEA) to authorize the Commission to require to be
fingerprinted any individual who is permitted unescorted access to
radioactive material or other property subject to regulation by the
Commission that the Commission determines to be of such significance to
the public health and safety or the common defense and security as to
warrant fingerprinting and a Federal Bureau of Investigation (FBI)
criminal history records check. With this new authority, the Commission
determined that individuals who have access to category 1 and category
2 quantities of radioactive material warrant fingerprinting and FBI
criminal history records checks. On October 17, 2006, the NRC issued
orders to panoramic and underwater irradiator licensees (EA-06-248) (71
FR 63043; October 27, 2006), manufacturer and distributor licensees
(EA-06-250) (71 FR 63046; October 27, 2006), and licensees making
shipments of category 1 quantities of radioactive material (EA-06-249)
(71 FR 62302; October 24, 2006) to require fingerprinting and FBI
criminal history records checks for unescorted access to risk-
significant quantities of radioactive material at their facilities. In
issuing these orders, NRC noted that a malevolent act by an individual
with unescorted access to these materials could result in significant
adverse impacts to the public health and safety or the common defense
and security and, thus, necessitated expedited implementation of
fingerprinting requirements. The orders were issued to both NRC and
Agreement State licensees under the NRC's authority to protect the
common defense and security. On December 5, 2007, the NRC issued orders
to all other NRC licensees that possessed category 1 or category 2
quantities of radioactive material (EA-07-305) (72 FR 70901; December
13, 2007) to require fingerprinting and FBI criminal history records
checks for unescorted access to category 1 or category 2 quantities of
radioactive material. These orders were issued under the NRC's
authority to protect the public health and safety and are available on
the NRC public Web site at http://www.nrc.gov/security/byproduct/orders.html. To effect nationwide implementation, each Agreement State
issued legally binding requirements to licensees under their regulatory
jurisdiction.
During the same time period, efforts were underway to enhance
transportation security of category 1 and category 2 quantities of
radioactive materials. The NRC issued two sets of orders to licensees
transporting radioactive material in quantities of concern. The first
set of transportation security orders was issued to certain licensees
that might be expected to transport radioactive materials in quantities
of concern (category 1 quantities) (EA-05-006; July 19, 2005) (70 FR
44407; August 2, 2005). The orders require the implementation of
additional security measures and the protection of the licensee's
physical protection information as SGI-M. The original orders are not
publicly available because they contain detailed security requirements
that are designated as SGI-M. However, a redacted version of the order
is publicly available (73 FR 51016; August 29, 2008). These orders were
issued to both NRC and Agreement State licensees under the NRC's
authority to protect the common defense and security. Subsequently, the
NRC issued orders (EA-05-090; November 14, 2005) (70 FR 72128; December
1, 2005) to other licensees authorized to possess certain risk-
significant quantities of radioactive material (category 2 quantities).
The Increased Control Orders mentioned earlier also contain
requirements for transporting category 2 quantities of radioactive
material.
These security orders specifically address the transportation
security of byproduct material transported in quantities greater than,
or equal to, category 2. The additional security measures contained in
the orders provide for enhanced security measures during transportation
that are beyond the current regulations, including enhanced security in
preplanning and
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coordinating shipments, advance notification of shipments to the NRC
and States through which the shipment will pass, control and monitoring
of shipments that are underway, trustworthiness and reliability of
personnel, information security considerations, and control of mobile
or portable devices.
The requirements put in place by the orders supplement the existing
regulatory requirements. These additional requirements are primarily
intended to provide reasonable assurance of preventing the theft or
diversion of this risk-significant material. These requirements provide
the Commission with reasonable assurance that public health and safety
and the common defense and security continue to be adequately
protected.
Although an order, like a rule, is legally binding on the licensee
receiving the order, a rule is generally applicable to all licensees.
Further, the notice-and-comment rulemaking process allows members of
the public to provide comments on the proposed rule. It is Commission
policy to implement generally applicable requirements through
rulemaking.
If promulgated, this rulemaking would adopt security requirements
for category 1 and category 2 quantities of radioactive material into
the regulations. New requirements for background investigations and an
access authorization program are proposed to ensure that individuals
who have access to these materials have gone through background
investigations and are determined to be trustworthy and reliable. New
requirements are also proposed to establish physical protection systems
to detect, assess, and respond to unauthorized access to category 1 and
category 2 quantities of radioactive material. For transport of the
radioactive materials, new requirements for recipient license
verification; preplanning and coordination of shipments; advance
notification of shipments; notification of shipment delays, schedule
changes, and suspected loss of a shipment; and control and monitoring
of shipments are proposed. The proposed amendments would also include
security requirements for shipments of irradiated reactor fuel that
weighs 100 grams (0.22 pounds (lb)) or less in net weight of irradiated
fuel, exclusive of cladding or other structural or packaging material,
which has a total external radiation dose rate in excess of 1 sievert
(Sv) (100 rem) per hour at a distance of 0.91 meters (m) (3 feet (ft))
from any accessible surface without intervening shielding.
In developing the proposed rule the NRC considered, among other
things, the various security orders, lessons-learned during
implementation of the orders, the recommendations of the Independent
External Review Panel and the Materials Program Working Group, and
stakeholder comments received on the orders and the preliminary rule
language that was posted on Regulations.gov. The Commission chartered
the Independent External Review Panel to: (1) Identify vulnerabilities
in the NRC's materials licensing program with respect to import,
export, specific, and general licenses; (2) validate the ongoing
byproduct material security efforts; and (3) evaluate the apparent
``good faith presumption'' that pervades the NRC licensing process. The
Panel's March 2008 report is available in ADAMS under accession number
ML080700957. The Materials Program Working Group conducted a
comprehensive evaluation of the materials program to identify short-
and long-term strategies to mitigate security vulnerabilities. The
Working Group report contains sensitive information and is not publicly
available. However, the Group's comments on the Panel's report are
publicly available in ADAMS under accession number ML080660424.
In developing the basis for the transportation security aspects of
the rule, NRC held three public meetings to seek public comment on the
development of the technical basis. The NRC published information on
the requirements being considered along with some background
information and a notice of the three meetings (73 FR 826; January 4,
2008). In response the NRC received more than 100 comments from
stakeholders that were used to finalize the technical basis for the
transportation portion of this rulemaking. The comments addressed a
number of issues and concerns. However, most focused on clarifying
requirements, adding efficiencies, and improving the processes that
licensees follow to comply with the additional security measures
currently enforced under security orders.
During the development of the proposed rule, the NRC posted
preliminary rule text for public comment on http://www.regulations.gov
under Docket ID NRC-2008-0120. The posting of the preliminary rule text
was noticed in the Federal Register and included the portions of the
rule that address background investigation and access control aspects
(subpart B) (74 FR 17794; April 17, 2009), enhanced security during use
(subpart C) (74 FR 20235; May 1, 2009), and transportation security
aspects (subpart D) (73 FR 69590; November 19, 2008). The NRC allowed a
45-day comment period for each subpart. In the documents announcing the
availability of the preliminary regulatory text, the NRC made it clear
that it would not respond to any of the comments received during this
pre-rulemaking stage. The NRC did consider the public input on the
preliminary rule text in finalizing the proposed rule, and areas where
they made a substantive change based on the comments are discussed in
this Statement of Considerations. The NRC also made some editorial
changes based on the comments; these changes are not discussed further.
PRM-71-13
On July 16, 2008 (73 FR 40767), the NRC published the resolution
and closure of a petition for rulemaking (PRM) filed by Christine O.
Gregoire, Governor of the State of Washington (PRM-71-13). The NRC
indicated that the issues raised by the petitioner would be considered
in an ongoing rulemaking on the security requirements for the
transportation of radioactive material in quantities of concern.
The petitioner requested that the NRC adopt the use of global
positioning system (GPS) tracking as a national requirement for
vehicles transporting highly radioactive mobile or portable radioactive
devices. The petitioner stated that the Commission could instead grant
States the flexibility to impose more stringent requirements than those
required under the current increased controls. The petitioner believes
that GPS technology is an effective and relatively inexpensive tool
that will help when a vehicle with radioactive material is missing, but
also acknowledged that requiring a GPS on these vehicles does not
ensure that the radiological source will be found. However, the
petitioner believes that these suggestions would give law enforcement a
significant advantage. The NRC considered the issues identified by the
petitioner and the petitioner's suggested approach to address those
issues in the development of this proposed rule.
II. Discussion
The NRC believes that a new part of the Code of Federal Regulations
(CFR) should be established for the security requirements for use of
category 1 and category 2 quantities of radioactive material. The
concept for using a separate part for safety and physical protection
requirements has already been established for special nuclear material
(10 CFR part 73). The
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establishment of a new part for security-related requirements for
byproduct material would be more effective and efficient compared to
interspersing the requirements with safety requirements or placing them
with the part 73 security requirements for special nuclear material. A
new part specifically directed to byproduct material licensees should
make applicable requirements easier for both licensees and other
stakeholders to locate and understand.
This discussion section has been divided into four subsections to
better present information on the proposed rule. Each section presents
information on a different aspect of the proposed rule. Section A
provides information that is generally applicable to all aspects of
this proposed rulemaking. Section B provides information on background
investigations and the access authorization program. Section C provides
information on the physical protection of the materials during use.
Lastly, Section D provides information on transportation security
aspects.
A. General Applicability
1. What action is the NRC taking?
The NRC is proposing to amend its regulations to impose security
requirements for the use of category 1 and category 2 quantities of
radioactive material. The proposed requirements would establish the
objectives and minimum requirements that licensees must meet to protect
against theft or diversion. These requirements are intended to increase
the protection of the public against the unauthorized use of category 1
or category 2 quantities of radioactive material by reducing the risk
of the theft or diversion of the material.
2. Why do the requirements need to be revised?
Prior to September 11, 2001, NRC requirements focused on safety and
preventing inadvertent or accidental exposure of both workers and the
public to these materials. These requirements also indirectly provided
security for the material. However, the events of September 11 made the
NRC take a broader look at its requirements and reevaluate what a
terrorist might do to attain these materials. From this effort, the NRC
identified several areas where additional requirements should be
implemented to improve security. The security requirements need to be
placed in the regulations so that they are generally applicable to all
licensees and to provide an opportunity for all stakeholders to comment
on the proposed requirements.
3. Why doesn't the NRC just keep the orders in effect?
The orders issued by the NRC could stay in place indefinitely.
However, the regulations would not reflect current Commission policy or
requirements. Imposing long-term requirements through orders has not
traditionally been the agency's preferred method of regulation. Orders,
unlike rules, do not apply prospectively to applicants for new
licenses. The NRC would have to periodically issue new orders to cover
new and amended licenses, and perhaps reissue orders periodically to
existing licensees if requirements or administrative practices change.
In order to make the requirements generally applicable to all present
and future licensees, the security-related requirements need to be
placed in the regulations.
Assured that adequate security is in place for these materials
(because of existing regulations and orders), the NRC is now planning
to formally revise its security requirements and gather public and
stakeholder input. The orders would remain in place for NRC licensees
until the final rule becomes effective. Once the final rule is
effective, the NRC will rescind the orders that were issued to its
licensees. For Agreement State licensees that received an NRC order,
the order would remain in place until the Agreement State issues
compatible requirements. Once the State has issued its requirements,
the NRC would rescind the order. Each Agreement State would follow its
own process for replacing the increased control legally binding
requirements with the requirements contained in the final rule.
4. Who would this action affect?
These requirements would apply to NRC or Agreement State licensees
that are authorized to possess category 1 or category 2 quantities of
radioactive material. This includes a wide range of licensees,
including pool-type irradiator licensees; manufacturer and distributor
licensees; medical facilities with gamma knife devices; self-shielded
irradiator licensees (including blood irradiators); teletherapy unit
licensees; radiographers; well loggers; broad scope users; radioisotope
thermoelectric generator licensees; and licensees that ship or prepare
for shipment category 1 or category 2 quantities of radioactive
material. Nearly 1,400 licensees are implementing the various orders
and are the entities that would be impacted by this proposed rule. In
addition, some fuel cycle and reactor licensees that possess sources at
these levels would be impacted. Licensees whose activities are covered
under the physical protection requirements of 10 CFR part 73 would be
exempt from the requirements of 10 CFR part 37. For example, a reactor
licensed under part 50 that also possesses a radiography source would
not need to implement the part 37 provisions if the source is protected
under the reactor security program required by part 73.
5. What are category 1 and category 2 quantities of radioactive
material?
Category 1 quantities of radioactive material have been called
radioactive material in quantities of concern (RAMQC). Category 1 and
category 2 quantities of radioactive material have been called risk-
significant radioactive material and refer specifically to 16
radioactive materials (14 single radionuclides and 2 combinations).
These materials are: americium-241; americium-241/beryllium;
californium-252; curium-244; cobalt-60; cesium-137; gadolinium-153;
iridium-192; plutonium-238; plutonium-239/beryllium; promethium-147;
radium-226; selenium-75; strontium-90 (yttrium-90); thulium-170; and
ytterbium-169. Irradiated fuel and mixed oxide fuel are not included
even though they may contain category 1 or category 2 quantities of
radioactive material; these materials are covered by other regulations.
The thresholds for category 1 and category 2 quantities of radioactive
material are provided in the following table. Terabecquerels is the
official value to be used for determining whether a radioactive
material is a category 1 or category 2 quantity. Because many licensees
use curies in their activities instead of becquerels, the table
provides the curie value at three figures for practical usefulness.
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Category 1 Threshold Category 2 Threshold
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Radioactive Material Terabecquerels Terabecquerels
(TBq) Curies (Ci) (TBq) Curies (Ci)
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Americium-241......................... 60 1,620 0.6 16.2
Americium-241/Beryllium............... 60 1,620 0.6 16.2
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Californium-252....................... 20 540 0.2 5.40
Curium-244............................ 50 1,350 0.5 13.5
Cobalt-60............................. 30 810 0.3 8.10
Cesium-137............................ 100 2,700 1 27.0
Gadolinium-153........................ 1000 27,000 10.0 270
Iridium-192........................... 80 2,160 0.8 21.6
Plutonium-238......................... 60 1,620 0.6 16.2
Plutonium-239/Beryllium............... 60 1,620 0.6 16.2
Promethium-147........................ 40,000 1,080,000 400 10,800
Radium-226............................ 40 1,080 0.4 10.8
Selenium-75........................... 200 5,400 2.0 54.0
Strontium-90 (Yttrium-90)............. 1,000 27,000 10.0 270
Thulium-170........................... 20,000 540,000 200 5,400
Ytterbium-169......................... 300 8,100 3 81.0
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These materials and thresholds are based on the IAEA Code of
Conduct. The NRC and the international community, led by the IAEA,
revised the IAEA Code of Conduct in 2003 to establish common
international guidance for safety and security measures for radioactive
sources. The IAEA published these results in a document titled ``Code
of Conduct on the Safety and Security of Radioactive Sources.'' A link
to this document can be found on the NRC Web site at http://www.nrc.gov/security/byproduct/enhanced-security.html. In a separate
effort, the U.S. Department of Energy (DOE) and the NRC reviewed the
chemical, physical, and radiological characteristics of each
radioactive material that is licensed in the United States, for its
attractiveness to a terrorist. This effort identified 16 radioactive
materials that could pose a serious threat to people and the
environment. This effort further identified the different quantities or
``thresholds'' of materials that could be useful to a terrorist. The
results of the DOE/NRC effort closely matched the Code of Conduct
Category 2 quantities. The NRC adopted the IAEA Code of Conduct
Category 1 and Category 2 threshold quantities to provide consistency
between domestic and international efforts for security of radioactive
materials that are deemed to be attractive targets for malevolent use.
IAEA, Safety Series RS-G-1.9, Categorization of Radioactive
Sources, provides the underlying methodology for the development of the
Code of Conduct thresholds. Safety guide RS-G-1.9 provides a risk-based
ranking of radioactive sources in five categories in terms of their
potential to cause severe deterministic effects for a range of
scenarios that include both external exposure from an unshielded source
and internal exposure following dispersal. The categorization system
uses the `D' values as normalizing factors. The `D' value is the
radionuclide specific activity of a source that, if not under control,
could cause severe deterministic effects for a range of scenarios that
include both external exposure from an unshielded source and internal
exposure following dispersal of the source material.
6. Why are the requirements limited to these 16 radionuclides?
The Radiation Source Protection and Security Task Force, an
interagency task force established by the EPAct, concluded in its 2006
report to Congress and the President (ADAMS ML062190349) that the
appropriate radioactive sources were being protected and that the IAEA
Code of Conduct serves as an appropriate framework for considering
which sources warrant additional protection. The Task Force did note
that the U.S. Government should periodically reevaluate the list of
radionuclides that warrant additional security and protection.
Therefore, the radionuclides and thresholds could change in the future
and any changes would be addressed in a future rulemaking.
7. What is the sum of fractions methodology or unity rule?
The sum of fractions methodology, also known as the unity rule, is
used to determine if a licensee would be required to implement 10 CFR
part 37 requirements. A licensee may need to implement the requirements
in 10 CFR part 37 even if it does not possess any single source or
single radionuclide in excess of the category 2 thresholds. For
combinations of materials (to include sealed sources, unsealed sources,
and bulk material) and radionuclides, a licensee must include multiple
sources (including bulk material) of the same radionuclide and multiple
sources (including bulk material) of different radionuclides to
determine if the requirements apply. For the purposes of this
calculation, licensees would be required to consider all of the
radioactive material at a facility. The following formula for the unity
rule would be used to determine if a licensee is required to implement
the Part 37 requirements: [(total amount of radionuclide A) / (category
2 threshold of radionuclide A)] + [(total amount of radionuclide B) /
(category 2 threshold of radionuclide B)] + etc.....>= 1. If the sum is
greater than or equal to 1, the licensee would have at least a category
2 quantity of radioactive material, and the 10 CFR part 37 requirements
would apply at that facility.
8. Does the NRC plan to issue guidance on these proposed requirements?
Yes, the NRC plans to issue guidance on the security requirements
for category 1 and category 2 quantities of radioactive materials. The
guidance will be made available for public comment sometime during the
comment period for this proposed rule. The NRC is planning to host at
least one public workshop on the guidance documents. A separate
document announcing the availability of the guidance and the
information on the workshop will be published in the Federal Register.
9. Will all of the information considered to be safeguards information
under the orders now be made public?
No. The orders issued to some licensees contained detailed security
information that could be useful to an adversary. To increase public
awareness and participation, the NRC identified the primary security
concepts behind each security measure and included these concepts in
the proposed rule to allow discussion of the security
[[Page 33907]]
measures in a public forum. But the specific measures that a licensee
puts in place may be considered SGI-M. The final rule on safeguards
information became effective on February 23, 2009 (73 FR 63546; October
24, 2008), and established as SGI-M certain physical protection
information related to panoramic and underwater irradiators that
possess greater than 370 TBq (10,000 Ci) of byproduct material in the
form of sealed sources; manufacturers and distributors of items
containing source material, byproduct material, or special nuclear
material in greater than category 2 quantities; and transportation of
source, byproduct, or special nuclear material in greater than or equal
to category 1 quantities. Physical protection information for other
facilities that fall under the requirements of 10 CFR part 37 would be
considered physical protection information under 10 CFR 2.390(d)(1).
Licensees would also be required to protect the security plan and
implementing information from unauthorized disclosure. The rule
provisions that address SGI-M or include references to the SGI-M
requirements in part 73 are reserved for the NRC and are considered
compatibility category NRC.
10. What is the authority for this proposed rule?
As noted in the background discussion, the NRC issued some orders
under its authority to protect the common defense and security and some
orders under its authority to protect the public health and safety.
With respect to whether the following regulations are being issued
under ``public health and safety'' or ``common defense and security,''
it should be recognized that almost all regulations relating to the
security of materials serve both purposes to some degree. For example,
securing radioactive materials with multiple barriers protects the
public health and safety by preventing the unknowing theft of
radioactive materials--such as someone stealing a vehicle with material
stored in the vehicle but whose target is the vehicle--which could
result in the unintentional exposure of members of the public to the
material. The barriers also protect the common defense and security by
preventing the theft of the radioactive material by potential
terrorists or others targeting the specific material intending to use
it to affect the common defense and security by exposing members of the
public to the material. However, the designation of the authority being
used for these regulations does have significance in determining
whether Agreement States or the NRC will be responsible for overseeing
the implementation of these requirements for Agreement State licensees.
Although the NRC relinquishes its regulatory authority to Agreement
States for certain materials, under Section 274(m) of the AEA no such
agreement will affect the authority of the Commission to take
regulatory action to protect the common defense and security. Thus, as
evidenced by orders issued to Agreement State licensees after the
events of September 11, 2001, the NRC always has the ability to take
necessary steps to address particular common defense and security
needs. If these regulations were to be issued under the NRC's common
defense and security authority, only the NRC would have the authority
to impose these requirements on Agreement State licensees and the NRC
would be responsible for inspection and enforcement of these
requirements for Agreement State licensees.
When regulations such as these complement both the NRC's public
health and safety and common defense and security missions, the
operative question is whether NRC oversight is necessary to fulfill the
common defense and security aspects of the regulations. The NRC
believes that the Agreement States can consistently and adequately
implement the physical protection requirements on a nationwide basis,
and as such, there will be no need for independent NRC action to
protect the common defense and security. The NRC has regular oversight
of individual Agreement State programs through its Integrated Materials
Performance Evaluation Program (IMPEP). As always, the NRC retains the
authority under Section 274(m) to take any necessary actions for
protection of the common defense and security should individual
licensees or State programs develop issues requiring immediate action.
The Commission also has the authority under Section 274(j) to terminate
or suspend all or part of its agreement with a State and reassert the
Commission's licensing and regulatory authority when the Commission
determines that doing so is necessary to protect the public health and
safety. The failure of an individual Agreement State to implement
compatible and adequate legally binding requirements to protect
radioactive materials within its jurisdiction disrupts the entire
national scheme to protect radioactive materials such that it might
raise serious public health and safety or common defense and security
concerns that the NRC would have to address. As long as all Agreement
States continue to implement compatible and adequate security
requirements, there appears to be no benefit to the public health and
safety, or common defense and security, that would justify removing
oversight of these requirements from an established regulatory program
overseeing Agreement State licensees. Implementing these regulations
under the NRC's public health and safety authority would avoid
potential complications with licensees being subject to dual regulation
for a single activity. Thus, the NRC is proposing to issue these
regulations under its public health and safety authority, and these
requirements will be applicable to Agreement State licensees through
the Agreement State Program.
11. When would the rule be effective?
The NRC is recommending that the final rule be effective 270 days
after publication in the Federal Register. This would provide time for
licensees to put in place the necessary programs, develop procedures,
and conduct training on the new requirements. While most of the
provisions are similar to those contained in the orders, there are
differences. The Agreement States would be required to issue compatible
requirements within 3 years. Licensees in an Agreement State would
continue to operate under the orders or other legally binding
requirements until the Agreement State issues compatible requirements.
The provisions put in place for the inspection of licensees in
Agreement States that received the orders issued under common defense
and security would remain in place until the Agreement State implements
the requirements. For those States that entered into 274i Agreements,
the State would continue inspections under the Agreement. For those
States that did not enter into 274i Agreements, the NRC would continue
to conduct the inspections until the State puts in place the new
requirements. The NRC would rescind the orders as the regulatory
requirements become effective.
12. How does the NRC ensure licensees are following these rules?
The NRC and Agreement States conduct inspections to ensure that
licensees are following the requirements. The NRC and Agreement State
inspectors have received training and follow inspection procedures on
how to ascertain whether licensees are meeting security requirements.
Potential violations that are identified will be processed in
accordance with the NRC Enforcement Policy, and depending on the
severity of a violation, licensees could be subject to civil or
criminal
[[Page 33908]]
penalties. Additionally, the NRC has developed enforcement guidance to
ensure consistency in the enforcement process. Agreement State
licensees would be subject to the State's enforcement process.
13. What should I consider as I prepare my comments to the NRC?
Tips for preparing your comments--when submitting your comments,
remember to:
i. Identify the rulemaking (RIN 3150-AI12, NRC-2008-0120).
ii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iii. Describe any assumptions and provide any technical information
and/or data that you used.
iv. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
v. Provide specific examples to illustrate your concerns, and
suggest alternatives.
vi. Explain your views as clearly as possible.
vii. Make sure to submit your comments by the comment period
deadline identified.
viii. The NRC is particularly interested in your comments
concerning the following issues in Section II: (1) Item B5 of this
document contains a request for comment on whether the reviewing
official should be fingerprinted as part of the trustworthiness and
reliability determination; (2) item B8 contains a request for comment
on the elements of the background investigation; (3) item C6 contains a
request for comment on the protection of information; (4) item C15
contains a request for comment on the need to notify the LLEA before
working at a temporary jobsite; (5) item C17 contains a request for
comment on vehicle disabling requirements for mobile sources; (6) item
C19 contains a request for comment on the reporting requirements; (7)
item D4 contains a request for comment on requiring license
verification before transferring category 2 quantities of radioactive
material; and (8) item D21 contains a request for comment on requiring
an NRC-approved monitoring plan for the classification yard for rail
shipment. In addition, Section V of this document contains a request
for comment on the compatibility designations for the proposed rule;
Section VI contains a request for comment on the use of plain language;
Section VIII contains a request for comment on the environmental
assessment; Section IX contains a request for comment on the
information collection requirements; Section X contains a request for
comment on the draft regulatory analysis; and Section XI contains a
request for comment on the impact of the proposed rule on small
businesses.
B. Background Investigations and Access Authorization Program
1. Who would be required to have an access authorization program?
Any licensee that is authorized to possess category 1 or category 2
quantities of radioactive materials at a facility would need to
determine whether it needs to have an access authorization program. The
licensee would be required to submit information to the NRC concerning
its compliance with the access authorization program requirements. The
information should include a statement that the licensee is or is not
implementing an access authorization program. The statement should not
include details of the licensee's access authorization program or
implementing procedures. Only those licensees that permit unescorted
access to category 1 or category 2 quantities of radioactive material
would be required to establish and implement an access authorization
program. In addition, any applicant for a license or license amendment
to possess category 1 or category 2 quantities of radioactive material
at a facility would be required to establish an access authorization
program before obtaining the radioactive material.
2. What is the objective of the access authorization program?
The main objective of the access authorization program is to ensure
that individuals who have unescorted access to category 1 or category 2
quantities of radioactive material are trustworthy and reliable and do
not constitute an unreasonable risk to the public health and safety or
common defense and security.
3. Who would be subject to the licensee's access authorization program?
The EPAct authorizes the Commission to require fingerprinting of
any individual who is permitted unescorted access to ``any radioactive
material that the Commission determines to be of such significance to
the public health and safety or the common defense and security as to
warrant fingerprinting and background checks.'' The Commission has
determined that the threshold that warrants fingerprinting and
background checks is category 2. Therefore, individuals subject to a
licensee's access authorization program would include anyone permitted
to have unescorted access to category 1 or category 2 quantities of
radioactive material. Unescorted access would be defined as solitary
access to category 1 or category 2 quantities of radioactive material
granted to an approved individual, and includes solitary access to
sufficient quantities of radioactive material such that an individual
could successfully accumulate lesser quantities of material into a
category 1 or category 2 quantity. This would be an individual at the
licensee's facility who has access to various locations within the
licensee's facility and does not address the situation where a
contractor might have access to the facilities of several licensees.
The access authorization program would also include individuals
that have access to SGI-M, such as vehicle drivers and accompanying
individuals for road shipments of category 1 quantities of radioactive
material, movement control center personnel for shipments of category 1
quantities of radioactive material, and any individual whose assigned
duties provide access to shipment information on category 1 quantities
of radioactive material. In response to comments on the preliminary
rule language, the NRC added text to clarify that ``access to shipping
information'' referred to shipping information that was considered to
be SGI-M and not all shipping information.
Those individuals who have unescorted access to certain quantities
of byproduct material could pose a threat to the public health and
safety or the common defense and security because they could divert or
steal risk-significant radioactive material, or could aid others in the
commission of such acts. The Radiation Source Protection and Security
Task Force encouraged the NRC to require fingerprinting and Federal
criminal history checks of any individual with access to category 1 or
category 2 quantities of radioactive material.
Certain categories of individuals would be relieved from the
background investigation aspect of the access authorization program
(see Section II, question B20 and B21). Licensees do have the option to
escort an individual and not make a trustworthiness and reliability
determination. The escorts would need to be approved for unescorted
access.
In response to comments on the preliminary rule language, the NRC
removed a restriction that would prohibit a licensee from granting
unescorted access to anyone that had been previously denied unescorted
[[Page 33909]]
access. The NRC agreed that this was too limiting as information upon
which a denial is based could change, and the individual could be
unfairly denied access in the future.
4. What are the key access authorization program requirements?
The key components of an access authorization program would be the
reviewing official, the informed consent of the subject individual,
personal history disclosure by the subject individual, a background
investigation, use of procedures, and the individual's right to correct
and complete the information on which the decision to grant unescorted
access is based. Each of these areas is discussed in more detail in the
following questions and answers.
5. What is the role of the reviewing official?
The reviewing official would be the individual that makes the
trustworthiness and reliability determinations for the licensee; the
reviewing official determines who could be granted unescorted access
authorization. Note that the Increased Control Fingerprinting Orders
referred to a trustworthiness and reliability official or T&R official
as the individual that made determinations on an individual's
trustworthiness and reliability. Unlike the reviewing official the T&R
official did not have to be fingerprinted and was not reviewed by the
regulator. Licensees would need to nominate one or more individuals to
be a reviewing official and submit their fingerprints to the NRC. The
fingerprints of the nominated individual(s) would need to be taken by
either a law enforcement agency, a Federal or State agency that
provides fingerprinting services to the public, or a commercial
fingerprinting service authorized by a State to take fingerprints.
Before sending the nominated individual's fingerprints to the NRC, the
licensee would need to conduct the rest of the elements of the
background investigation. Reviewing officials must be permitted either
access to safeguards information or unescorted access to category 1 or
category 2 quantities of radioactive material since Section 149 of the
Atomic Energy Act only authorizes the collection of fingerprints for
the purposes of unescorted access or access to safeguards information.
The Commission has requested statutory changes to the Atomic Energy Act
that would permit fingerprints of reviewing officials without requiring
access for these purposes. The NRC would then transmit the nominated
reviewing official's fingerprints to the FBI and would review the
individual's criminal history records and, if appropriate, approve the
reviewing official. Reviewing officials would not be able to make
trustworthiness and reliability determinations until approved by the
NRC. For certain licensees, the NRC may have already approved reviewing
officials, either under the October 17, 2006, orders [(EA-06-248, 71 FR
63043; October 27, 2006), (EA-06-250, 71 FR 53046; October 27, 2006),
and (EA-06-249; 71 FR 62303; October 24, 2006)], under the August 21,
2006, SGI-M orders, or under other regulatory requirements. In those
cases, the reviewing official may continue to act in that capacity for
an expanded set of persons. If the reviewing (or T&R) official has not
had an FBI criminal records history check, he or she would need to be
fingerprinted and receive NRC approval before making additional
trustworthiness and reliability determinations. The NRC believes that
it is important that the individual who is making the final
determination on whether an individual is trustworthy and reliable be
trustworthy and reliable themselves and have undergone the same
background investigation as individuals who would be granted unescorted
access, including fingerprinting and the FBI criminal records check. If
the reviewing official is not fingerprinted, a gap could be created in
the security program that could potentially be exploited. The NRC is
specifically requesting comment on this aspect of the proposed access
authorization program. In developing comments on this issue, consider
the following questions:
(1) Does the reviewing official need to be fingerprinted and have a
FBI criminal records check conducted?
(2) Are the other aspects of the background investigation adequate
to determine the trustworthiness and reliability of the reviewing
official?
(3) Are there other methods that could be used to ensure that the
reviewing official is trustworthy and reliable?
(4) Does the requirement to fingerprint the reviewing official
place too large of a burden on the licensee?
(5) Do Agreement States have the necessary authority to conduct
reviews of the nominated individual's criminal history record?
6. What is informed consent?
Informed consent is the authorization provided by an individual
that allows a background investigation to be conducted to determine
whether the individual is trustworthy and reliable. The signed consent
would include authorization to share personal information with other
individuals or organizations as necessary to complete the background
investigation. An individual would be able to withdraw his or her
consent at any time. After the withdrawal, the licensee would not be
able to initiate any elements of the background investigation that were
not in process at the time of the withdrawal of consent. The licensee
would be required to inform the individual that withdrawal of consent
for the background investigation would be sufficient cause for denial
or termination of unescorted access authorization.
Licensees do not need to obtain signed consent from individuals
that have already undergone a background investigation that included
fingerprinting and an FBI criminal history records check, been
determined to be trustworthy and reliable, and permitted unescorted
access to category 1 or category 2 quantities of radioactive material
under the NRC orders or the legally binding requirements issued by the
Agreement States. A signed consent would be needed for any
reinvestigation.
In response to comments on the preliminary rule language, the NRC
removed provisions for retention of background investigation
information if the individual withdraws consent. If the individual
later seeks unescorted access, the background investigation information
collected during the original attempt could no longer be relied on, and
the investigation would need to be restarted. Requiring the
preservation of this information would place an unnecessary burden on
licensees.
7. What is a personal history disclosure?
The personal history disclosure is the personal history required to
be provided by the individual seeking unescorted access to category 1
or category 2 quantities of radioactive material. The information would
include items such as employment history, education, credit history
(including bankruptcies), and any arrest record. This information would
provide the reviewing official with a starting point for the background
investigation. Failure to provide the information or falsification of
any information could be grounds for denial of the individual's request
for unescorted access authorization or termination of access if the
individual already has access. If the individual provides false
information, it could be an indication that he or she is not
trustworthy or reliable.
[[Page 33910]]
8. What are the components of a background investigation?
A background investigation includes several components:
Fingerprinting and an FBI identification and criminal history records
check; verification of true identity; employment history evaluation;
verification of education; credit history evaluation; criminal history
review; and character and reputation determination.
It is the licensee's responsibility to make a trustworthiness and
reliability determination of an employee, contractor, or other
individual who would be granted unescorted access to category 1 or
category 2 quantities of radioactive material or a device containing
such radioactive material. It is expected that licensees will use their
best efforts to obtain the information required to conduct a background
investigation to determine an individual's trustworthiness and
reliability.
The full credit history evaluation reflects the Commission's intent
that all financial information available through credit reporting
agencies is to be obtained and evaluated as part of the trustworthiness
and reliability evaluation. The Commission recognizes that some
countries may not have routinely accepted credit reporting mechanisms.
Therefore, the Commission allows reviewing officials to use multiple
sources of credit history that could potentially provide information
about a foreign national's financial record and responsibility.
Fingerprinting an individual for a FBI criminal history records
check is an important element of the background investigation. It can
provide comprehensive information regarding an individual's recorded
criminal activities within the U.S. and its territories and the
individual's known affiliations with violent gangs or terrorist
organizations.
The background investigation is a tool to determine whether
individuals are trustworthy and reliable and could be permitted
unescorted access to category 1 or category 2 quantities of radioactive
material. It is essential to ensure that individuals seeking unescorted
access to radioactive material are dependable in judgment, character,
and performance, such that unescorted access to category 1 or category
2 quantities of radioactive material by that individual does not
constitute an unreasonable risk to the public health and safety or
common defense and security.
The NRC is specifically inviting comment on the elements of the
background investigation. Please consider the following questions in
developing comments:
(1) Is a local criminal history review necessary in light of the
requirement for a FBI criminal history records check?
(2) Does a credit history check provide valuable information for
the determination of trustworthiness and reliability?
(3) Do the Agreement States have the authority to require a credit
history check as part of the background investigation?
(4) What are the appropriate elements of a background investigation
and why are any suggested elements appropriate?
(5) Are the elements of the background investigation too subjective
to be effective?
(6) How much time does a licensee typically spend on conducting the
background investigation for an individual?
9. Where does a licensee submit the fingerprints for processing?
Under the EPAct, licensees are required to submit the fingerprints
to the NRC, which forwards the fingerprints to the FBI for processing.
If an individual comes under one of the relief categories specified in
10 CFR 37.29, the licensee would not need to submit the individual's
fingerprints to the NRC.
10. What should a licensee do if an individual or entity contacted as
part of a background investigation refuses to respond?
If a previous employer, educational institution, or any other
entity fails to provide information or indicates an inability or
unwillingness to provide information in a timely manner, the licensee
would be required to document the refusal, unwillingness, or inability
to respond in the record of investigation. The licensee would then need
to obtain confirmation from at least one alternate source that has not
been previously used. In response to comments on the preliminary rule
language, the NRC revised the rule language to provide more flexibility
to licensees as to what would be considered a timely manner.
11. Does an individual have the right to correct his or her criminal
history records?
Yes, an individual has the right to correct his or her criminal
history records before any final adverse determination is made. If the
individual believes that his or her criminal history records are
incorrect or incomplete in any respect, he or she can initiate
challenge procedures. These procedures would include direct application
by the individual challenging the criminal history records to the law
enforcement agency that contributed the questioned information.
Before an adverse determination on a request for unescorted access,
individuals have the right to provide additional information.
12. Is a licensee required to have procedures for conducting background
investigations?
Yes, licensees would be required to develop, implement, and
maintain written procedures for conducting the background
investigations. Procedures would address notification of individuals
denied unescorted access authorization and would also ensure that
individuals who have been denied unescorted access authorization are
not allowed unescorted access to category 1 or category 2 quantities of
radioactive material (these individuals could be escorted by an
approved individual.) The NRC agreed with comments on the preliminary
rule language that the provision prohibiting even escorted access for
those individuals denied unescorted access was too inflexible,
licensees should be given the flexibility to escort individuals if they
so choose.
The preliminary language also contained a provision that required a
licensee to provide an opportunity for an independent management review
if the individual was denied unescorted access. Several commenters
noted that the requirement was too prescriptive and that a decision on
whether and how to conduct a review should be left up to the licensee.
The NRC agrees with the commenters and has not included the provision
in the proposed rule.
13. What information should the reviewing official use to determine
that an individual is trustworthy and reliable?
The reviewing official would use all of the information gathered
during the background investigation, including the information received
from the FBI, in making a determination that an individual is
trustworthy and reliable. The reviewing official may not determine that
an individual is trustworthy and reliable and grant them unescorted
access until all of the information for the background investigation
has been obtained and evaluated. The reviewing official may deny
unescorted access to any individual based on any information obtained
at any time during the background investigation. However, as required
by Section 149.c(2)(c) of the Atomic Energy Act, the licensee may
[[Page 33911]]
not base a final determination to deny an individual unescorted access
to category 1 or category 2 quantities of radioactive material solely
on the basis of information received from the FBI involving: (1) An
arrest more than 1 year old for which there is no information of the
disposition of the case; or (2) an arrest that resulted in dismissal of
the charge or an acquittal. If there is no record on the disposition of
the case, it may be that information on a dismissal or acquittal was
not recorded.
14. How frequently would a reinvestigation be required?
A reinvestigation would be required every 10 years to help maintain
the integrity of the access authorization program. This is necessary
because an individual's financial situation or criminal history may
change over time in a manner that can adversely affect his or her
trustworthiness and reliability. The reinvestigation would include the
local criminal history review and credit history check, but would not
include identification through fingerprinting, employment verification,
or the character and reputation determination.
15. Are licensees required to protect information obtained during a
background investigation?
Yes, licensees would be required to protect the information
obtained during a background investigation. The licensee would be
required to establish and maintain a system of files and procedures for
protection of the information from unauthorized disclosure. Licensees
would only be permitted to disclose the information to the subject
individual, the individual's representative, those who have a need-to-
know the information to perform their assigned duties to grant or deny
unescorted access to category 1 or category 2 quantities of material or
safeguards information, or an authorized representative of the NRC.
16. Could a licensee transfer personal information obtained during an
investigation to another licensee?
Yes, a licensee would be able to transfer background information on
an individual to another licensee if the individual makes a written
request to the licensee to transfer the information contained in his or
her file.
17. If I receive background investigation information from another
licensee, can I rely on that information?
Yes, a licensee would be able to rely on the background
investigation information that is transferred from another licensee.
However, a licensee would be required to verify information such as
name, date of birth, social security number, gender, and other physical
characteristics to ensure that the individual is the person whose file
has been transferred.
18. What records are required to be maintained?
Licensees would be required to retain all fingerprint and criminal
history records received from the FBI, or a copy if the individual's
file has been transferred, for 5 years after the individual no longer
requires unescorted access to category 1 or category 2 quantities of
radioactive material. Licensees would also be required to retain the
written confirmation received from entities concerning a security
clearance or favorably adjudicated criminal history records check and
any written verifications received from service providers. In response
to comments on the preliminary rule language, the NRC revised the
record retention requirements so that the language was consistent
throughout subpart B of 10 CFR part 37.
19. How would a licensee determine the effectiveness of the access
authorization control program?
Licensees would be required to review their program to confirm
compliance with the requirements. The review would evaluate all program
performance objectives and requirements, would document any findings
and corrective actions, and would be conducted annually. Any records
would need to be maintained for 5 years. Commenters on the preliminary
rule language suggested that the review period should be annual for
consistency with the radiation protection program review. The NRC
agrees and changed the review frequency from 24 months to 12 months.
20. Would individuals transporting radioactive material be subject to
the background investigation requirements?
As part of this rulemaking, the NRC considered what level of
responsibility to place on its licensees regarding fingerprinting and
criminal history records checks for persons involved in the
transportation of category 1 and category 2 quantities of radioactive
material. Licensees covered by the fingerprinting and criminal history
records check requirements of this proposed rule may decide to transfer
radioactive material away from the site or may receive radioactive
material from another entity.
Such transfers or receipts may occur either as part of a shipment
to or from a domestic company or an international company. Individuals
involved in the shipment, in particular those employed by carriers or
other organizations handling shipments, may have unescorted access to
the material during the shipment process. These persons may not be
employees of the licensee and thus may not be under the licensee's
direct control. In this regard, proposed Sec. 37.21(c) directs that
licensees subject certain classes of individuals to the access
authorization program. Specifically, the NRC is proposing that vehicle
drivers and accompanying individuals for road shipments of category 1
quantities of radioactive material, movement control center personnel
for shipments of category 1 quantities of radioactive material, and any
individual whose assigned duties provide access to shipment information
on category 1 quantities of radioactive material that is considered to
be SGI-M, all be fingerprinted and undergo background investigations.
This was discussed in Section II, question B3 of this document.
21. Who would be relieved from the background investigation
requirements?
Under section 149.b. of the AEA, the NRC may, by rule, relieve
individuals from the fingerprinting, identification, and criminal
history records check requirements if it finds that such action is
``consistent with its obligations to promote the common defense and
security and to protect the health and safety of the public.'' The NRC
issued a final rule, 10 CFR 73.61, relieving certain individuals who
are permitted unescorted access to radioactive materials from the
fingerprinting, identification, and criminal history records checks
required by section 149.a. of the AEA (72 FR 4945; February 2, 2007).
The individuals relieved from fingerprinting, identification, and
criminal history records checks under that rule include Federal, State,
and local officials involved in security planning; Agreement State
employees who evaluate licensee compliance with security-related
orders; and other government officials who may need unescorted access
to radioactive materials or other property subject to regulation by the
Commission as part of their oversight function. The categories of
individuals relieved by the rule also include the same individuals as
those previously relieved in an earlier rulemaking from fingerprinting
and criminal history records check requirements applicable to
safeguards
[[Page 33912]]
information (71 FR 33989; June 13, 2006).
Under this proposed rule, the Commission proposes to use the same
listing of categories of individuals with the following modifications.
Emergency response personnel who are responding to an emergency would
be relieved from the requirements because it is impossible to predict
when emergency access might be necessary. Employees of carriers that
transport category 2 quantities of radioactive material would also be
relieved. The NRC will rely on the U.S. Department of Transportation
(DOT) and the Transportation Security Administration programs for
background investigations of these personnel.
The individuals that would be relieved from the background
investigation requirements are considered trustworthy and reliable by
virtue of their occupational status and have either already undergone a
background investigation as a condition of their employment, or are
subject to direct oversight by government authorities in their day-to-
day job functions.
Certain persons, as part of the duties of their specific
occupation, may be separately or previously subject to background
investigations, either as a result of NRC requirements (as under other
requirements for access to SGI or SGI-M) or as a result of requirements
of other agencies. These persons would not be subject to separate
background investigation requirements under this proposed rule;
individuals who have undergone a background investigation, including
fingerprinting, and found acceptable for unescorted access under
provisions of other such requirements would not need to undergo another
background investigation nor would a separate determination of their
trustworthiness and reliability need to be made.
This rule would not authorize unescorted access to any radioactive
materials or other property subject to regulation by the Commission.
Rather, the rule would make clear that a licensee may permit unescorted
access to certain categories of individuals otherwise qualified for
access without performing a background investigation. Licensees would
still need to decide whether to grant or deny an individual unescorted
access independently of this proposed provision. Any required training
would need to be conducted before granting unescorted access.
C. Physical Protection During Use
1. Who would be affected by the proposed requirements?
Within 30 days of the effective date of the final rule, each
licensee that is authorized to possess category 1 or category 2
quantities of radioactive material would need to submit information to
the NRC concerning the licensee's compliance with the security
requirements. The information should include a statement that the
licensee is implementing a security program. The licensee should not
submit details of the licensee's security program, implementing
procedures, security plan, or other sensitive information.
Any licensee that possesses an aggregated category 1 or category 2
quantity of radioactive material would be required to establish,
implement, and maintain a security program meeting the requirements of
10 CFR subpart C of the proposed rule. (The NRC would consider material
to be ``aggregated'' if an adversary could gain access to a category 2
or greater quantity by breaching a common physical barrier.)
Any licensee that is authorized to possess at least a category 2
quantity of radioactive material would be required to develop a
security program. However, the licensee would not be required to
implement the security program unless the licensee aggregated the
material into a quantity equal to or exceeding the category 2
threshold. At least 90 days before aggregating the radioactive material
to a category 2 quantity or greater, the licensee would be required to
notify the NRC in writing and implement its security program. This
advance notification would provide time for NRC to inspect the
licensee's security program before the licensee actually aggregated the
material.
The NRC recognizes that some licensees may not always have
quantities of radioactive material that equal or exceed category 2, and
may not always have a 90-day notice of the need to cross the threshold
for implementing the security program. Accordingly, the proposed rule
also includes provisions to cover situations where a licensee may
routinely, but not continuously, possess aggregated quantities of
radioactive material at or above the category 2 threshold. A licensee
whose aggregated quantity of radioactive material fluctuates above and
below the category 2 threshold more than once in a 90-day period and
thereafter would only need to notify the NRC the first time that the
security program is implemented. This notice could then serve to inform
the NRC that the licensee will be periodically implementing the
security provisions. If the fluctuation in aggregated quantity does not
reach the category 2 threshold more than once in a 90-day period, the
licensee would need to notify the NRC each time a previously
discontinued or new security program is to be implemented. These
provisions are intended to cover the situation where a licensee
routinely, but not continuously, has aggregated quantities of
radioactive material at or above the category 2 threshold so that they
do not need to report to NRC each time the material is aggregated. This
provides a licensee who may not have 90 days notice an acceptable means
to inform the NRC that they will be periodically implementing the
security provisions.
To illustrate how aggregation might work, here are two examples of
a hospital system with a license to possess materials at different
sites. Hospital A is authorized to possess 0.4 TBq (11 Ci) of cesium-
137 at location 1, 0.7 TBq (19 Ci) at location 2, and 0.9 TBq (24 Ci)
at location 3, each several miles apart. Hospital A would be required
to develop a security program because the total authorization of 2 TBq
(54 Ci) is more than the category 2 threshold. However, Hospital A
would not be required to implement the security program because no
single location is authorized to possess a quantity that could be
aggregated to the category 2 threshold of 1TBq (27 Ci). Hospital B, on
the other hand, is authorized to possess 0.4 TBq (10.8 Ci) of cesium-
137 at location 1, 0.5 TBq (13.5 Ci) at location 2, and 1.1 TBq (29.7
Ci) at location 3. Hospital B's total authorization is also 2 TBq (54
Ci), but Hospital B would be required to develop a security program and
implement the program for location 3 if all the material at that
location is aggregated within a single physical barrier, such as a
locked room, because the total quantity possessed is above the category
2 threshold of 1 TBq (27 Ci). Therefore, Hospital B would have to
either add another physical barrier to isolate the aggregated material;
separate the material into quantities less than category 2 quantities
and place each behind at least one independent physical barrier; or
develop and implement a security program at location 3.
2. What is the objective of the security program and what are the key
security program requirements?
The proposed rule would require affected licensees to establish,
implement, and maintain a security program. The objective of the
security program would be to monitor, and
[[Page 33913]]
without delay detect, assess, and respond to any actual or attempted
unauthorized access to category 1 or category 2 quantities of
radioactive materials. The objective was slightly revised to address
actual or attempted unauthorized access in response to comments on the
preliminary rule language. A licensee's security program would include
a written security plan, implementing procedures, training, use of
security zones, protection of information, coordination with the LLEA,
testing and maintenance of security-related equipment, security
measures, and a program review. Each of these areas is discussed in
more detail in the following questions and answers.
3. What should a licensee's security plan address?
The purpose of a security plan is to establish, in writing, the
licensee's overall security strategy to ensure that all of the required
security measures work effectively and in an integrated way for all
facilities and operations where category 1 or category 2 quantities of
radioactive material will be used or stored. The plan would, among
other things, include a description of the measures and strategies to
implement the security requirements and describe any site-specific
conditions that affect how the licensee will implement the
requirements.
A licensee would be able to revise its security plan to address
changing circumstances. Any changes to the security plan, as well as
the original plan, would be approved by the individual with overall
responsibility for the security program. The security plan would be
retained until the Commission terminates the license, and any
superseded portions would be retained for 5 years.
Security plans are important for the implementation of a
performance-based regulation. An adequate plan requires a licensee to
analyze the particular security needs of its individual facilities and
to explain how it will implement its chosen security measures to ensure
that they work together to meet the applicable performance objectives.
4. Would a licensee be required to have security procedures?
Yes, licensees would be required to develop and maintain written
implementing procedures that document how the security requirements and
the security plan would be met. These procedures must be designed to
meet the individualized security needs of each site where a category 1
or category 2 quantity of radioactive material is used or stored.
Procedures would need to be approved, in writing, by the individual
with overall responsibility for the security program. The licensee
would be required to keep a copy of the current procedures as a record
until the Commission terminates the license. Superseded portions of the
procedures would be retained for 5 years. Licensees should not submit
procedures to the NRC as part of the license.
5. What training would be required?
As part of its physical protection program, each licensee would be
required to conduct training on the security plan to ensure that those
individuals responsible for implementation of the plan possess and
maintain the knowledge, skills, and abilities to carry out their
assigned duties and responsibilities effectively. The extent of the
training would need to be commensurate with the individual's potential
involvement in the security of category 1 or category 2 quantities of
radioactive material. Individuals would have to be instructed in the
licensee's security program and implementing procedures, their
responsibilities, and the appropriate response to alarms. In guidance,
licensees with dedicated security staff will be encouraged to train
their security personnel in the timely notification of affected LLEAs
during emergencies. For improved coordination with LLEAs, such
licensees will also be encouraged to train their security personnel
using drills or table top exercises during integrated tests of their
monitoring, detection, and response systems, and to notify affected
LLEAs of opportunities to participate in such training.
An individual subject to the training requirements of Sec.
37.43(c) would have to complete them before being permitted unescorted
access to category 1 or category 2 quantities of radioactive material.
The licensee would have to provide refresher training at least once
every 12 months or when significant changes have been made to the
security program. The refresher training would address any significant
changes; reports on relevant security issues, problems, or lessons
learned; relevant results from NRC inspections; and relevant results
from the licensee's program review and the testing and maintenance
program. Training records would be maintained for 5 years and would
need to include training topics, training dates, and the list of
personnel that attended the training. The rule language was revised to
address comments on the preliminary rule language to clarify that
refresher training would be necessary and to clarify what training
records need to be maintained.
Training is essential if the licensee is to be adequately prepared
for an effective and coordinated response to any effort to steal or
divert category 1 or category 2 quantities of radioactive material.
Adequate training is indispensable for an appropriate licensee response
to an unauthorized intrusion.
6. Would licensees be required to protect information concerning their
security program?
Yes. To prevent unauthorized disclosure, licensees would be
required to limit access to their security plans and implementing
procedures. These efforts would include measures to allow access to
these documents only to those individuals who have a need to know the
information to perform their duties and have been determined to be
trustworthy and reliable based on the background investigation
requirements set forth in proposed Sec. 37.25(a)(2) through (a)(10).
Licensees would be required to store security information in a manner
to prevent removal, such as storage in a locked office or desk drawer.
To ensure that only trustworthy and reliable individuals with a
need to know are allowed access to security plans and procedures,
licensees would have to develop, implement, and maintain, written
policies and procedures to control access to their security plan and
security procedures. The licensee's information protection policies and
procedures would have to ensure the proper handling and protection of
security plans and implementing procedures against unauthorized
disclosure. Licensees would be required to retain copies of the
policies and procedures.
For the purposes of this proposed requirement, licensees cannot
fingerprint individuals or subject them to an FBI background
investigation to permit them access to security plans or procedures,
unless those individuals are also permitted unescorted access to
Category 1 or 2 radioactive materials. Information previously obtained
during the hiring process may be used to support a licensee's
determination of an individual's trustworthiness and reliability
without having to reverify that information. Licensees that have SGI or
SGI-M would remain subject to the more stringent information protection
requirements of 10 CFR 73.21, including fingerprinting and an FBI
criminal records check.
[[Page 33914]]
The NRC is specifically inviting comment on the requirement to
protect security-related information. Please consider the following
questions in developing comments:
(1) Do the Agreement States have adequate authority to impose the
information protection requirements in this proposed rule?
(2) Can the Agreement States protect the information from
disclosure in the event of a request under a State's Freedom of
Information Act, or comparable State law?
(3) Is the proposed rule adequate to protect the licensees'
security plan and implementing procedures from unauthorized disclosure,
are additional or different provisions necessary, or are the proposed
requirements unnecessarily strict?
(4) Should other information beyond the security plan and
implementing procedures be protected under this proposed requirement?
(5) Should the background investigation elements for determining
whether an individual is trustworthy and reliable for access to the
security information be the same as for determining access to category
1 and category 2 quantities of radioactive material (with the exception
of fingerprinting)?
7. What is the purpose of a security zone?
A security zone would be any area established by a licensee to
provide physical protection for category 1 or category 2 quantities of
radioactive material at a licensed facility. All category 1 and
category 2 quantities of radioactive material at the facility would
have to be used and stored within a security zone.
The purpose of security zones is to isolate and control access to
the material to protect it more effectively and deter theft or
diversion by providing, among other things, more time for licensees and
LLEAs to respond. Isolation measures would protect category 1 or
category 2 quantities of radioactive material by allowing access to
security zones only through established access control points. Access
control measures would allow only approved individuals to have
unescorted access to the security zone, and ensure that other
individuals with a need for access are escorted by approved
individuals. A security zone effectively defines where the licensee
will apply these isolation and access control measures.
To limit unescorted access to only approved individuals, licensees
could isolate the radioactive materials using continuous physical
barriers that allow access to the security zone only through
established access control points; or licensees could exercise direct
control of the security zone by approved individuals at all times.
Security zones may be permanent or temporary. Temporary security
zones would need to be established to meet transitory or intermittent
operating requirements such as periods of maintenance, source delivery,
and source replacement. A licensee could meet the proposed requirement
for a security zone at some temporary job sites (such as those
involving onsite operations lasting less than a day) simply by keeping
the area under ``direct supervision'' by authorized personnel.
Similarly, when work is being done inside a temporary zone, a licensee
could meet the requirements for controlling unescorted access by having
the material, persons, and area within the zone under direct control of
approved individuals at all times.
Because the purpose of security zones is different from the
radiation safety purposes of the restricted areas and controlled areas
defined in 10 CFR part 20, the security zone does not have to be the
same as either of these areas. Because measures to control access are
required for both radiation protection and security, however, a
licensee does have the flexibility to use an area required for
radiation protection purposes to fulfill the required functions of a
security zone. Thus, for a temporary well-logging operation within
which the licensee is required by 10 CFR 39.71 to have a ``restricted
area'' to ``maintain direct surveillance * * * to prevent unauthorized
entry into a restricted area,'' a licensee could define a security zone
with the same boundaries as this ``restricted area,'' which is defined
in 10 CFR 20.1003 as ``an area, access to which is limited by the
licensee for the purpose of protecting individuals against undue risks
from exposure to radiation and radioactive materials.'' Similarly, a
radiographer could choose to define a security zone with the same
boundaries as the ``high radiation area'' over which radiography
licensees are required by 10 CFR 34.51 to ``maintain direct visual
surveillance * * * to protect against unauthorized entry.'' (As defined
in 10 CFR 20.1003, a ``high radiation area'' is ``an area, accessible
to individuals, in which radiation levels from radiation sources
external to the body could result in an individual receiving a dose
equivalent in excess of a 0.1 rem (1 mSv) in 1 hour at 30 centimeters
from the radiation source or 30 centimeters from any surface that the
radiation penetrates.'')
Because materials licensees are differently configured and do not
lend themselves to generically defined physical areas, the security
zone concept permits significant flexibility for licensees to account
for a range of site-specific concerns. It also provides regulators with
a well-defined and enforceable requirement keyed to performance
objectives of isolation and access control.
8. When would special additional measures for category 1 quantities of
radioactive material be required?
One provision of the proposed rule would apply to category 1
quantities of radioactive material during periods of maintenance,
source receipt, preparation for shipment, installation, or source
removal or exchange. Licensees would be required to provide, at a
minimum, an approved individual to maintain continous surveillance of
sources in temporary security zones and in any security zone in which
physical barriers or intrusion detection systems have been disabled to
allow the specified activities. The rule language was clarified in
response to comments on the preliminary rule language.
Due to the natural decay of their radioactivity, sources lose their
effectiveness as they get older and have to be replaced or replenished
periodically with new sources to maintain a device's expected
performance. Tamper-indicating devices and other intrusion detection
equipment typically must be disabled to permit the source to be opened
without tripping alarms. The new sources are typically shipped by an
offsite supplier, who also often performs removal and exchange or
reinstallation. After replacement, the removed older sources must be
prepared onsite for shipment back to the manufacturer or for storage
and eventual disposal. These nonroutine operations by nonlicensee
employees at the licensee's site, during a time when devices for
detecting theft or diversion are disabled, call for additional measures
to compensate for the temporary increase in vulnerability.
9. What would be required to monitor and detect an unauthorized entry
into a security zone?
A licensee would be required to establish and maintain the
capability to continuously monitor and detect all unauthorized entries
into its security zone(s). Monitoring and detection would be performed
by either a monitored intrusion detection system that is linked to an
onsite or offsite central monitoring facility; electronic devices for
intrusion detection alarms
[[Page 33915]]
that would alert nearby facility personnel; visual monitoring by video
surveillance cameras; or visual inspection by approved individuals. The
rule language was clarified in response to comments on the preliminary
rule language.
A licensee would also need the capability to detect unauthorized
removal of the radioactive material. For category 1 quantities of
radioactive material, a licensee would need to immediately detect any
attempted unauthorized removal through the use of electronic sensors
linked to an alarm or continuous visual surveillance. For category 2
quantities of radioactive material, a licensee would need to verify the
presence of the radioactive material through weekly physical checks,
tamper indicating devices, actual usage of the material, or other
means.
10. What are the requirements for personnel communications and data
transmission?
Licensees would be required to maintain continuous capability for
personnel communication and electronic data transmission and processing
among site security systems for any personnel and automated or
electronic systems used to support the site security systems. Licensees
would be required to have alternative capability for any system in the
event of loss of the primary means of communication or data
transmission and processing. The alternative means could not be subject
to the same failure mode as the primary systems.
11. What would a licensee need to do when it detects an intrusion into
its security zone?
A licensee's response to an intrusion would depend on the
licensee's assessment of the purpose of the intrusion, but a response
would be required without delay. If the unauthorized access appeared to
the licensee to be an actual or attempted theft, sabotage, or diversion
of category 1 or category 2 quantities of radioactive material, the
licensee would have to immediately notify and request an armed response
from the appropriate LLEA. An immediate response by the licensee would
permit a more timely response from law enforcement, thereby reducing
the risk that the material could be used for malevolent purposes.
Immediate notification would also allow for early warning to other
possible targets of a simultaneous attempt to divert material from
multiple locations.
A licensee's decision to call the LLEA and the NRC would depend not
only on the licensee's assessment of the intent of the unauthorized
access but also on whether the area where the breach occurred is an
area the licensee had previously determined needed to be monitored in
order to meet the NRC physical protection requirements. Thus, a
licensee's assessment and response to an intrusion alarm in the
business office section of its facility could be entirely different
from its assessment and response to an intrusion alarm in a radioactive
materials storage area.
12. Can a licensee use automated devices to assess an intrusion and
alert an LLEA?
Depending on the security system, the layout of controlled areas,
and the design capabilities of the sensors, automated devices or
systems may be programmed to automatically summon LLEA assistance in
response to an intrusion alarm.
13. What coordination would be required with local law enforcement
agencies?
Licensees would be required to coordinate, to the extent
practicable, with the LLEA to discuss the LLEA response to threats to
the licensee's facility. An LLEA would be defined as a government
entity that has the authority to make arrests and the capability to
provide an armed response. In the event of an actual or attempted
theft, sabotage, or diversion of radioactive material, an armed
response is likely to be necessary. Adversaries could be well armed,
and the small unarmed or lightly-armed private security guard service
typically used at byproduct material licensee sites would not be an
adequate substitute for an LLEA. However, the LLEA need not be a
municipal or county police force. If a hospital or university campus
police force is the nearest law enforcement agency to the licensee's
operation capable of providing an armed response and making arrests,
that police force would meet the proposed definition of an LLEA.
A licensee would also have to consider whether the LLEA could
provide the needed armed response at all times. Some LLEAs are on duty
only during specified hours, and in such cases, the licensee would have
to identify and coordinate with the closest LLEA able to provide an
armed response and arrest perpetrators when the primary LLEA is off-
duty.
Coordination activities include providing a description of the
facility, radioactive materials, and security measures and notification
that the licensee will request a timely and armed response to any
actual or attempted theft, sabotage, or diversion of the licensee's
radioactive materials. Coordination activities also include requesting
information from the LLEA concerning the LLEA's capabilities to provide
a timely armed response and to participate in drills or exercises, and
requesting a contact in order to establish a means of direct
communication. The licensee would be required to request that the LLEA
enter into a written agreement with the licensee that describes the
LLEA's commitments to provide a response. The licensee would be
required to document its coordination efforts, including the dates,
times, and locations of meetings and a list of licensee and LLEA staff
present at the meetings. Licensees would be required to update their
security plans with affected LLEAs every 12 months. At the suggestion
of a commenter on the preliminary rule language, the NRC has added a
new provision for the licensee to request that the LLEA notify the
licensee when the LLEA's response capabilities become degraded. This is
not intended to address a short-term situation where the LLEA may be
responding to another emergency, but to address conditions that would
last for a longer timeframe, such as a severe shortage of law
enforcement personnel during a recovery from a natural disaster.
Coordination with an LLEA is essential in developing an effective
and efficient physical protection program. Because certain situations
may necessitate an armed response, a strategy that is consistent in
scope and timing with realistic potential vulnerabilities of the
subject radioactive material should be coordinated well in advance with
the LLEA. Another purpose of coordination is to provide the responsible
LLEA with an understanding of the potential consequences associated
with unauthorized use of the radioactive material of concern, so that
the LLEA can determine the appropriate priority of its response. The
LLEA response would be needed not only to interdict and disrupt an
attempted theft or sabotage onsite, but possibly for offsite
coordination to protect public health and safety, and to mitigate the
potential consequences of unauthorized use of radioactive material.
14. What if the LLEA declines to coordinate with a licensee?
The NRC recognizes that it cannot exercise authority over LLEAs, or
any party, over which a licensee has no control and the NRC has no
legal jurisdiction. The NRC also recognizes that an LLEA may have good
reasons,
[[Page 33916]]
including resource limitations and possibly other coinciding events
within its jurisdiction, for not entering into a formal agreement with
a licensee.
An LLEA's refusal to coordinate with a licensee would not by itself
render a licensee's security plan inadequate, however. In making its
determination on the adequacy of the plan, the NRC will recognize that
in an actual emergency, State and local government officials will
respond to protect the health and safety of the public. A licensee
would also be required under Sec. 37.45(a)(2) to notify the
appropriate NRC regional office within three business days if the LLEA
has not responded to a request for coordination within 60 days of the
coordination request; or if the LLEA notifies the licensee that the
LLEA does not plan to participate in coordination activities. The
purpose of this notification would be to allow NRC time to notify the
Department of Homeland Security (DHS), or where necessary, contact the
LLEA directly, to ensure that the LLEA understands the importance of
adequate coordination. Through these interactions, the NRC would obtain
confidence that the LLEA would respond in the event of an actual
emergency. Thus, if the LLEA refuses to coordinate beforehand, the
licensee could still comply by making and documenting periodic good-
faith efforts to elicit the LLEA's participation in planning for a
timely and effective response. The licensee would be required to notify
the NRC if the LLEA declines to engage in coordination activities.
15. What are the LLEA notification requirements for work at a temporary
job site?
For temporary job sites (i.e., locations not specifically
identified by the license for possession of radioactive materials), the
proposed rule would require licensees to provide advance written
notification to the appropriate LLEA(s) at least 3 business days in
advance if the licensee plans to use or store category 1 or category 2
quantities of radioactive material at the temporary job site for more
than 7 consecutive calendar days. This requirement is intended to
ensure that local law enforcement officers who might be summoned to
such a job site in the event of a security incident are aware that they
might be summoned, will know the potentially affected location, and are
able to reach responsible licensee representatives before the
operations begin if the officers want additional information.
The NRC is proposing 7 consecutive calendar days as a threshold for
the LLEA notification requirement in an effort to balance the need for
timely LLEA awareness with the need to avoid licensee notification
requirements that may be out of proportion to the security risks. The
NRC is aware that some temporary job sites may only be in use by a
licensee for several days a year on short notice and at unpredictable
intervals. These circumstances make it difficult for individuals or
groups to plan and execute theft, sabotage, or diversion even with the
help of an insider.
The notification would need to include such things as the purpose
of the notification, timeframe and location for the temporary work,
information on the quantities of radioactive material to be used or
stored at the site, and contact information.
The proposed notification requirement would not preclude a licensee
from coordinating with an LLEA at a temporary job site, if the LLEA and
licensee believe it would be beneficial to do so. Notification would
give the LLEA essential information about the time, location, and
nature of the activity so that the LLEA could be prepared to respond if
necessary, and would provide the LLEA with an opportunity to request
more information if needed.
The NRC is specifically inviting comment on the requirement to
contact the LLEA for work at a temporary jobsite. Please consider the
following questions in developing comments:
(1) Is there any benefit in requiring that the LLEA be notified of
work at a temporary jobsite?
(2) Should notifications be made by licensees for work at every
temporary jobsite or only those where the licensee will be working for
longer periods, such as the 7 day timeframe proposed in the rule?
(3) If notifications are required, is 7 days the appropriate
threshold for notification of the LLEA or should there be a different
threshold?
(4) Will licensees be able to easily identify the LLEA with
jurisdiction for temporary jobsites or does this impose an undue
burden?
(5) Are LLEAs interested in receiving these notifications?
16. Would a licensee be prohibited from working at a temporary job site
if the licensee couldn't notify the affected LLEA(s) 3 business days in
advance?
No. The proposed LLEA notification requirement for temporary job
site operations provides for unforeseen circumstances under which a
licensee might not be able to provide 3 business days written advance
notice to the LLEA. If, due to an emergency or other unforeseen
circumstances, a licensee is required to work at a temporary job site
for more than 7 consecutive calendar days and is unable to provide the
3 days advance written notice to the LLEA before the licensee's trip to
the site, the licensee would be required to provide as much advance
notice as possible by telephone, facsimile, or e-mail.
17. What are the proposed special requirements for mobile sources?
The proposed rule would require licensees using mobile devices
containing a category 1 or category 2 quantity of radioactive material
to have two independent physical controls that form tangible barriers
to prevent unauthorized removal of devices. For devices in or on a
vehicle or trailer, a licensee would be required to use a method to
disable the vehicle or trailer when it is not under direct control and
constant surveillance by the licensee. Licensees would not be allowed
to rely on the removal of an ignition key to meet this requirement.
These provisions are in addition to the other requirements in subpart
C.
Mobile devices, particularly portable ones, are likely to be more
vulnerable to attempted theft or diversion because an adversary could
more easily remove these devices before the licensee or LLEA has an
opportunity to respond. The objective of this requirement is to delay
intruders long enough for a timely licensee and LLEA response.
A mobile device is defined in the proposed rule as a piece of
equipment containing licensed radioactive material that is either: (1)
Mounted on wheels or casters, or otherwise equipped for moving without
a need for disassembly or dismounting; or (2) designed to be hand
carried. Mobile devices do not include stationary equipment installed
in a fixed location, such as an irradiator, but the proposed definition
would include radiography cameras, source changers, well logging
equipment, gauges or controllers, storage containers, lead pigs for
holding sources during a source exchange, and onsite or offsite
transportation packages.
Commenters on the preliminary rule language requested that the
requirement to disable the vehicle or trailer when not under direct
control and constant surveillance by the licensee be modified to
provide an exception for oil and gas field service vehicles that may
have to evacuate a work area quickly due to extreme hazard. The extra
time needed to overcome a vehicle disabling feature could delay timely
evacuation and result in bodily harm or death under certain operating
conditions, such as
[[Page 33917]]
fire or loss of well head pressure control. The NRC recognizes the need
to balance security measures against health and safety concerns and is
willing to consider some form of relief from the proposed vehicle
disabling requirements. The NRC is specifically requesting comment on
this issue. Please consider the following questions when developing
comments on this issue:
(1) Should relief from the vehicle disabling provisions be
provided?
(2) Have licensees experienced any problems in implementing this
aspect of the Increased Controls?
(3) Should there be an exemption written into the regulations or
should licensees with overriding safety concerns be required to request
an exemption from the regulations to obtain relief from the provision?
(4) If an exemption is included in the regulations, should it be a
blanket exemption or a specific exemption for the oil and gas industry?
(5) Does the disabling provision conflict with any Occupational
Safety and Health Administration requirements or any State
requirements?
18. What maintenance, testing, and calibration requirements would apply
to the security systems?
Licensees would be required to test intrusion alarms, physical
barriers, and other systems used for securing and monitoring access to
radioactive material, and these would have to be maintained in operable
condition. Each intrusion alarm and associated communication system
subject to the proposed rule's requirements for monitoring, detection,
and assessment would have to be inspected and tested for performance as
described in the licensee's security plan, but no less frequently than
once every quarter. In guidance, licensees will also be encouraged to
conduct periodic testing of the integrated functioning of their
monitoring, detection, and response systems as a whole, including
systems for notifying affected LLEAs. Licensees with dedicated security
staff will also be encouraged to notify affected LLEAs of each
opportunity to participate in drills or table top exercises when
licensees conduct integrated tests of their monitoring, detection, and
response systems. Licensees would be required to maintain records of
the maintenance, testing, and calibration activities for 5 years.
19. What events would a licensee need to report to the NRC?
A licensee would be required to report any actual or attempted
theft, sabotage, or diversion of a category 1 or category 2 quantity of
radioactive material as soon as possible after initiating a response,
which includes notification of the LLEA. The licensee would be required
to submit a written report to the NRC within 30 days after the initial
notification. A licensee would also be required to report any
suspicious activity related to possible theft, sabotage, or diversion
of category 1 or category 2 quantities of radioactive material to both
the LLEA and the NRC. The NRC is specifically requesting comment on the
reporting requirements. Please consider the following questions when
developing comments on this issue.
(1) Are these the appropriate items and thresholds to be reported
to the LLEA?
(2) Are these the appropriate items and thresholds to be reported
to the NRC?
(3) Should suspicious activities be reported? If they are reported,
what type of activities should be considered suspicious?
(4) Is the timeframe for reporting appropriate?
20. How would a licensee determine the effectiveness of the security
program?
Licensees would be required to review the security program every 12
months to confirm compliance with the requirements. The review would
evaluate the security program content and implementation. The licensee
would be required to document any review findings and corrective
actions and the records would need to be maintained for 5 years.
D. Transportation Security
1. What is the NRC authority to issue these transportation security
requirements?
Sections 53, 81, and 161 of the AEA, as amended, provide the NRC
with the statutory authority to issue these transportation security
requirements. The NRC shares overlapping jurisdiction over the
transport of radioactive material over public roadways and by rail with
DOT and the Department of Homeland Security.
2. Why is this material being shipped?
In general, category 1 and category 2 quantities of radioactive
material are shipped to medical institutions, companies that support
medical and academic institutions, and companies that manufacture and
distribute radioactive material for various industrial applications. As
radioactive sources get older, radioactive decay decreases the sources'
strength and the sources lose their effectiveness and have to be
replaced or replenished with new sources. The older sources must be
transported for disposal or back to the manufacturer.
In addition, commercial power plants will occasionally transport
large scale plant equipment that may contain radioactive material
(e.g., steam generators and reactor vessels) for disposal.
3. What are the new transportation security requirements?
In general, the proposed rule includes requirements for pretransfer
checks, preplanning and coordination of shipments, advance notification
of shipments, control, monitoring, and communications during shipments,
procedures and training, investigations of missing shipments, and
reporting of missing material. Each of these areas is discussed in more
detail in the following questions and answers.
These requirements would apply to ground transport of category 1 or
category 2 quantities of radioactive material shipped in a single
package or in multiple packages in a single conveyance. Per proposed
Sec. 73.35, the category 1 requirements would also apply to shipments
of irradiated reactor fuel weighing 100 grams or less in net weight of
irradiated fuel, exclusive of cladding or other structural or packaging
material, which has a total external radiation does rate in excess of 1
Sv (100 rem) per hour at a distance of 0.91 m (3 ft) from any
accessible surface without intervening shielding. Note that a licensee
is not responsible for complying with these requirements when a carrier
aggregates radioactive material, during transport or storage incidental
to transport, for two or more conveyances from separate licensees that
individually do not exceed the limits. As provided in proposed Sec.
37.73(c), the shipping licensee would be responsible for meeting the
requirements unless the receiving licensee agrees in writing to arrange
for the in-transit physical protection. At the suggestion of commenters
on the preliminary rule text, the proposed rule text was revised to
clarify that the requirements would only apply to the domestic portion
of the transportation for imports and exports.
4. Is verification of the transferee's license necessary?
Yes, proposed Sec. 37.71 would require any licensee transferring
category 1 and category 2 quantities of radioactive material to a
licensee of the NRC or an Agreement State to verify that the
[[Page 33918]]
transferee's license authorizes the receipt of the type, form, and
quantity of radioactive material to be transferred. For transfers of
category 1 quantities of radioactive material, the transferring
licensee would also be required to verify that the licensee is
authorized to receive radioactive material at the address requested for
delivery. These verifications would be conducted with the license
issuing authority, i.e., the NRC or the appropriate Agreement State or
by using the license verification system. The license verification
system is a new web-based system that NRC is developing that may be
used to verify the validity of a license issued by either NRC or an
Agreement State. Although this system is in the early stages of
development, it will be available before the effective date of the
final rule. If the system is not available licensees would need to
contact the appropriate licensing agency. Licensees should contact the
appropriate NRC regional office to verify the validity of NRC
licensees. Information on Agreement State contacts is provided on the
NRC web page at http://nrc.stp.ornl.gov/asdirectory.html. Licensees
exporting material would need to meet the requirements in 10 CFR part
110 for checking the documentation that the recipient has the necessary
authorization under the laws and regulations of the importing country.
These actions are intended to mitigate the risk that the material could
be shipped to an unauthorized recipient.
The NRC is considering subjecting the transfers of category 2
quantities of radioactive material to the license address verification
requirement. If category 2 transfers are made subject to the license
address verification requirement, the transferring licensee would be
required to verify with the license issuing authority that the
transferee licensee is authorized to receive radioactive material at
the address requested for delivery. We are specifically inviting public
comment on several aspects of license and address verification. In
developing comments on this aspect, consider the following:
(1) Should there be a requirement for verification of the license
for transfers of category 2 quantities of radioactive material or would
it be acceptable to wait for the system being developed before
requiring license verification for transfers of category 2 quantities
of radioactive material?
(2) We are interested in how address verification might work for
shipments to temporary job sites and the ability of both licensees and
the Agreement States to comply with such a requirement. For example,
would States be able to accommodate such requests with their current
record systems?
(3) We are also seeking comment on the frequency of the license
verification. For example, should a licensee be required to check with
the licensing agency for every transfer or would an annual check (or
some other frequency) of the license be sufficient?
(4) If an annual check is allowed, how would the transferring
licensee know if a license has been modified since the last check and
that the licensee is still authorized to receive the material?
5. Is preplanning and coordination of the shipments necessary?
Yes, Sec. 37.75(a) of the proposed rule would require preplanning
and coordination of shipment information for shipments of category 1
quantities of radioactive material. The shipping licensee (licensee
sending the licensed material) would be required to coordinate the
departure and arrival times, including the no-later-than arrival time,
with the receiving licensee (licensee receiving the licensed material).
This coordination would reduce the risk that theft or diversion of the
material would go unnoticed or unreported. The licensee would also need
to preplan and coordinate the shipment information with the State(s)
through which the shipment will pass. As part of the coordination
activities, the licensee would be required to discuss the State's
intention to provide law enforcement escorts for the shipments,
identify highway route control quantity shipments, identify safe
havens, and arrange for any positional information sharing. The purpose
of the information sharing is to ensure minimal delay of the shipment.
For shipments of category 2 quantities of radioactive material,
Sec. 37.75(b) of the proposed rule would require that the shipping
licensee verify the shipment no-later-than arrival time and the actual
arrival time with the receiving licensee.
The definitions section of the proposed rule would define the term
``no-later-than arrival time'' as the date and time that the shipping
licensee and receiving licensee have established as the time at which
an investigation will be initiated if the shipment has not arrived at
the receiving facility. The no-later-than-arrival time may not be more
than 2 hours after the estimated arrival time for category 1 shipments
and not more than 4 hours after the estimated arrival time for category
2 shipments. Verifying that the shipment arrives on time provides the
licensee with the means to identify and immediately report an unusual
occurrence that could lead to the theft or diversion of the material.
Commenters on the preliminary draft rule text suggested that a
timeframe be added to the definition and suggested 24 hours as the
appropriate timeframe. The NRC agrees that the definition would be
strengthened by adding a timeframe; however, the NRC believes that 2
hours for category 1 shipments and 4 hours for category 2 shipments are
the appropriate timeframes. The NRC believes that 24 hours is too long
before starting an investigation. The sooner an investigation is
started, the better chance there is of recovering the material.
6. What does the NRC consider to be a safe haven?
A definition for the term ``safe haven'' has been added to the
definitions section of the proposed rule text at the request of
commenters on the preliminary rule text. A safe haven would be defined
as ``[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.'' The NRC expects safe havens to be identified and
designated by the licensee.
Licensees should use the following criteria in identifying safe
havens for shipments: 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; the
site is well lit, has adequate parking, and can be used for emergency
repair or to wait for LLEA response on a 24-hour a day basis; and
additional telephone facilities are available should the communications
system of the transport vehicle not function properly. Possible safe
haven sites include: Federal sites having significant security assets;
secure company terminals; State weigh stations; truck stops with secure
areas; and LLEA sites, including State police barracks.
In addition, in response to comments on the preliminary rule text,
the NRC revised the proposed Sec. 37.75(a)(2) to clarify that the
preplanning and coordination of all category 1 shipments with the
governor or designee of each state that the shipment will pass through
will require the identification of safe havens.
7. Is the shipping licensee required to notify the receiving licensee
if the no-later-than arrival time changes?
Yes. If the no-later-than arrival time will not be met, then under
Sec. 37.75(d) of
[[Page 33919]]
the proposed rule, the shipping licensee must inform the receiving
licensee of the new no-later-than arrival time for shipments of
category 1 or category 2 quantities of radioactive material. This
provision allows licensees the ability to modify departure and arrival
time due to unforeseen events and was added at the suggestion of
commenters on the preliminary rule text.
8. Whom would the licensee notify when the shipment arrives?
Proposed Sec. 37.75(c) would require that the receiving licensee
notify the shipping licensee when the shipment of a category 1 or
category 2 quantity of radioactive material arrives at its destination.
The notification must be no later than 4 hours after the package
arrives. A timeframe was added to the proposed rule at the suggestion
of commenters on the preliminary rule text.
9. What does State refer to in the requirements?
As used in the definitions section of the proposed rule, the term
``State'' means the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa,
and the Commonwealth of the Northern Mariana Islands. A list of the
contact information for the governor's designees is published annually
in the Federal Register, most recently on July 14, 2009 (74 FR 34053).
An updated list is posted on the NRC Web site at http://nrc-stp.ornl.gov/special/designee.pdf. Copies may also be obtained by
contacting the Director, Division of Intergovernmental Liaison and
Rulemaking, Office of Federal and State Materials and Environmental
Management Programs, Nuclear Regulatory Commission. If the final rule
is approved, the NRC will work with the States to include a separate
column for contacts for 10 CFR part 37.
10. What advance notifications would be required?
Proposed Sec. 37.77 would require advance written notifications
for shipments containing category 1 quantities of radioactive material.
The advance notifications would be made to the NRC and to any State
through which a shipment was being transported. The State notification
would be made to the governor or the governor's designee.
Advance notification provides States and the NRC with knowledge of
shipments so that in the event there is an increase in the risk of
theft or diversion of the material, the regulator could delay or
reroute the shipment to minimize the risk. This advance notification
also allows States with escort requirements to engage in planning to
support the shipment.
Advance notifications would not be required for shipments of
category 2 quantities of radioactive material, unless the shipment
falls within the scope of 10 CFR 71.97(b).
11. What information would be included in an advance notification?
Proposed Sec. 37.77(b) would require the following information be
included in an advance notification for a category 1 shipment of
radioactive material, if available at the time of notification: (1) The
name, address, and telephone number of the shipper, carrier, and
receiver of the shipment; (2) the license number of the shipper and
receiver; (3) a description of the radioactive material contained in
the shipment, including the radionuclides and quantity; (4) the point
of origin of the shipment and the estimated time and date that shipment
will commence; (5) the estimated time and date that the shipment is
expected to enter each State along the route; (6) the estimated time
and date of arrival of the shipment at the destination; and (7) the
contact and telephone number for the point of contact. For the purpose
of coordination only, the actual information in the advance
notification would not be considered to be SGI-M. Any information that
is not available at the time of the initial notification would be
provided in a revised notification once the information becomes
available.
12. What should a licensee do if the shipment schedule is revised or
the shipment cancelled?
If the shipment schedule is revised or cancelled, Sec. Sec.
37.77(c) and (d), respectively, of the proposed rule would require the
shipping licensee to notify the appropriate States and the NRC. The
preliminary rule text required that the licensee would telephone the
governor's designees when it discovered that the schedule would not be
met. In response to comments on the preliminary rule text, the NRC has
modified the proposed rule text to require that the governor's designee
be notified without specifying a specific means for the notification.
13. What should a licensee do if the shipment does not arrive by the
no-later-than arrival time?
Proposed Sec. 37.79(d) would require a licensee that has shipped
category 1 or category 2 quantities of radioactive material to initiate
an investigation for any shipment that has not arrived at the receiving
licensee's facility by the designated no-later-than arrival time. The
no-later-than arrival time would be defined as the date and time that
the shipping licensee and receiving licensee have established as the
time at which an investigation will be initiated if the shipment has
not arrived at the receiving facility. The no-later-than-arrival time
may not be longer than 2 hours after the estimated arrival time for a
shipment of category 1 quantities of radioactive material and 4 hours
after the estimated arrival time for a shipment of category 2
quantities of radioactive material. Commenters on the preliminary draft
rule text suggested that a timeframe be added to the definition and
suggested 24 hours as the appropriate timeframe. The NRC agrees that
the definition would be strengthened by adding a timeframe; however,
the NRC believes that 2 hours for category 1 shipments and 4 hours for
category 2 shipments are the appropriate timeframes. The NRC believes
that 24 hours is too long before starting an investigation. The sooner
an investigation is started, the better chance there is of recovering
the material.
14. When must a licensee make notification that a shipment is lost or
missing?
When a licensee determines that a shipment of a category 1 quantity
of radioactive material is lost or missing, Sec. 37.81(a) of the
proposed rule would require the licensee to notify the LLEA in the area
of the shipment's last confirmed location within 1 hour and then to
notify the NRC Operations Center. Notification to the NRC should be as
prompt as possible, but not at the expense of causing delay or
interference with the LLEA response to the event.
When a licensee determines that a shipment of category 2 quantities
of radioactive material is lost or missing, Sec. 37.81(b) of the
proposed rule would require the licensee to notify the NRC Operations
Center within 4 hours of such determination. The licensee would also be
required to immediately notify the NRC Operations Center if, after 24
hours from its determination that the shipment was lost or missing, the
location of the material still cannot be determined.
Early notification provides for a more timely response from law
enforcement, thereby reducing the risk of the misuse of the material.
15. Should licensees make notification that a lost or missing shipment
has been found?
Yes, proposed Sec. Sec. 37.81(e) and (f), for category 1 shipments
and category 2 shipments respectively, require the
[[Page 33920]]
licensee to notify the NRC Operations Center when a lost or missing
shipment has been located. This notification would be considered an
update on the initial notification. Without this notification,
regulatory authorities and LLEA would waste resources continuing any
search for the material.
16. What would a licensee be required to do if there is an attempt to
steal or divert a shipment?
For shipments of category 1 quantities of radioactive material,
proposed Sec. 37.81(c) would require a licensee who discovers an
actual or attempted theft or diversion of a shipment, or any suspicious
activity related to a shipment, to notify the designated LLEA along the
shipment route as soon as possible. After notifying the LLEA, the
licensee would be required to notify the NRC Operations Center. The NRC
Operations Center would notify other affected States and the agency's
Federal partners. For shipments of category 2 quantities of radioactive
material, proposed Sec. 37.81(d) would require a licensee who
discovers an actual or attempted theft or diversion of a shipment, or
any suspicious activity related to a shipment, to notify the NRC
Operations Center as soon as possible. These security measures enhance
the likelihood that the material will be successfully protected or
recovered and allows for early warning of other possible victims of a
simultaneous attempt to divert material from multiple locations.
17. What types of procedures and training are necessary for shipping
category 1 quantities of radioactive material?
Proposed Sec. 37.79(c)(1) would require licensees shipping
category 1 quantities of radioactive material to ensure that normal and
contingency procedures are developed to cover notifications;
communication protocols; loss of communication; and response to an
actual or attempted theft or diversion of a shipment, or any suspicious
activity related to a shipment. The licensee would be required to
ensure that drivers, accompanying personnel, railroad personnel, and
movement control center personnel are appropriately trained in the
normal and contingency procedures. Procedures and training provide
reasonable assurance that these individuals are prepared for most
situations and are able to act without delay to prevent the theft or
diversion of shipments.
18. What would be included in the communication protocols?
Proposed Sec. 37.79(c)(1)(ii) would require that the communication
protocols include a strategy for the use of authentication and duress
codes and provisions for refueling or other stops, detours, and
locations where communication is expected to be temporarily lost.
19. What are the physical protection requirements for road shipments of
category 1 quantities of radioactive material?
Proposed Sec. 37.79(a)(1)(i) would require that any licensee that
ships category 1 quantities of radioactive material by road either
establish or use a carrier that has established, movement control
centers that maintain position information from a location remote from
the activity of the transport vehicle or trailer. The control centers
would be required to monitor shipments on a continuous and active
monitoring basis (24 hours a day, 7 days a week), and have the ability
to communicate immediately, in an emergency, with the appropriate law
enforcement agencies.
Proposed Sec. 37.79(a)(1)(ii) would require that the licensee
ensure that redundant communications are in place that would allow the
transport to contact an escort vehicle (if used) and the movement
control center at all times. The redundant communication must not be
subject to the same interference factors as the primary communication
method. The same interference factors mean any two systems that rely on
the same hardware or software to transmit their signal (e.g., cell
tower or proprietary network).
Redundant communications provide drivers with the means to
immediately report an unusual occurrence that could lead to the theft
or diversion of the material. Early notification would permit a more
timely response from law enforcement, thereby reducing the risk of the
misuse of the material.
Proposed Sec. 37.79(a)(1)(iii) would require that the licensee
ensure that the shipments are continuously and actively monitored by a
telemetric position monitoring system or an alternative tracking system
reporting to a movement control center. The movement control center
would be required to provide positive confirmation of the location,
status, and control over the shipment and be prepared to implement
preplanned procedures in response to deviations from the authorized
route or to a notification of actual or attempted theft or diversion or
suspicious activities related to the theft, loss, or diversion of a
shipment. These procedures would include the identification of, and
contact information for, the appropriate LLEA along the shipment route.
A telemetric position monitoring system is a data transfer system
that captures information by instrumentation and/or measuring devices
about the location and status of a transport vehicle or package between
the departure and destination locations. The gathering of this
information permits remote monitoring and reporting of the location of
a transport vehicle or package. GPS and radiofrequency identification
(RFID) are examples of telemetric position monitoring systems.
If the driving time period is greater than the maximum number of
allowable hours of service in a 24-hour duty day as established by the
DOT Federal Motor Carrier Safety Administration, proposed Sec.
37.79(a)(1)(iv) would require that the licensee ensure that an
accompanying individual is provided for the entire shipment. The
accompanying individual may be another driver. This security measure
provides reasonable assurance that the material will be protected from
theft or diversion when it is stationary, as well as in emergency
situations where it becomes necessary for the driver to stop or leave
the vehicle.
20. Would GPS be required?
No, GPS would not be required. For category 1 material, the NRC is
proposing to require continuous and active monitoring for shipments.
Continuous and active monitoring means that at any time while the
shipment is enroute, the licensee must be knowledgeable of the
shipment's whereabouts. Not specifying a particular technology provides
licensees with flexibility to design a continuous and active monitoring
system that meets their unique circumstances. However, GPS would be
considered an acceptable method.
21. What are the physical protection requirements for rail shipments of
category 1 quantities of radioactive material?
Proposed Sec. 37.79(b)(1)(i) would require each licensee that
ships category 1 quantities of radioactive material by rail to ensure
that rail shipments are monitored by a telemetric position monitoring
system or an alternative tracking system reporting to a licensee,
third-party, or railroad communications center which meets certain
criteria. The communications center would need to provide positive
confirmation of the location of the shipment and its status.
[[Page 33921]]
The communications center would also need to be prepared to implement
preplanned procedures in response to deviations from the authorized
route or to a notification of an actual or attempted theft or diversion
of a shipment, or any suspicious activity related to a shipment. These
procedures include the identification of, and contact information for,
the appropriate LLEA along the shipment route. Rail shipment tracking
provides the means for a communications center to immediately report an
unusual occurrence that could lead to the theft or diversion of the
material. Early notification provides for a more timely response from
LLEAs, thereby reducing the risk of the misuse of the material.
Proposed Sec. 37.79(b)(1)(ii) would require that the licensee have
an NRC-approved monitoring plan to ensure that no unauthorized access
to the shipment takes place while the shipment is in a railroad
classification yard. The NRC is specifically seeking comment on the
feasibility of this requirement. In developing comments on this aspect,
consider the following questions:
(1) How could surveillance of the shipment be accomplished while in
the classification yard?
(2) Would the classification yard allow an individual to accompany
a shipment while the shipment is held in the classification yard?
(3) What precautions might be necessary from a personal safety
standpoint?
22. What are the physical protection requirements for shipments of
category 2 quantities of radioactive material?
Proposed Sec. 37.79(a)(2) would require that a licensee shipping
category 2 quantities of radioactive material by road maintain constant
control and/or surveillance during transit and have the capability for
immediate communication to summon appropriate response or assistance.
Proposed Sec. 37.79(a)(3) (for category 2 road shipments) and proposed
Sec. 37.79(b)(2) (for category 2 rail shipments), in the case of the
licensee using a common carrier, would require that licensees use a
carrier that has an established package tracking system. An established
package tracking system means a documented, proven, and reliable system
routinely used to transport objects of value. The package tracking
system must allow the shipper or transporter to identify when and where
the package was last and when it should arrive at the next point of
control. The licensee would be required to use a carrier that maintains
constant control and surveillance during transit and has the capability
for immediate communication to summon appropriate response or
assistance. The carrier must also require an authorized signature prior
to releasing the package for delivery or return.
In general, the licensee must be able to contact the shipping
carrier and determine the approximate location of the shipment. Package
tracking systems, such as common overnight delivery service with
standard tracking would be acceptable. These requirements mitigate with
reasonable assurance the risk of loss, theft or diversion of the
material.
23. How long do records related to a shipment need to be maintained?
Proposed Sec. 37.71 would require licensees to retain records
documenting the verification for license authorization for category 1
quantities of radioactive material transfers for 5 years. Proposed
Sec. 37.75(e) would require that licensees retain records related to
preplanning and coordination for 5 years. Proposed Sec. 37.77(e) would
require that licensees retain records related to the advance
notification for shipments of category 1 quantities of radioactive
material for 5 years. The requirement for documentation and record
retention related to the preplanning and coordination of shipments was
added at the suggestion of commenters on the preliminary rule language.
24. How is the public protected from loss, theft, or diversion of these
shipments?
Regulating transport of radioactive material is a joint
responsibility of the NRC and DOT. The quantities of radioactive
materials being considered as part of this rulemaking, in general, are
transported in packages (casks) that meet rigorous NRC safety
standards. The packages are referred to as ``Type B'' packages in both
NRC and DOT regulations. The NRC fact sheet on transportation of
radioactive materials can be found at http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/transport-spenfuel-radiomats-bg.html.
The carrier transporting radioactive material must also meet the
DOT's requirements for shipment of the radioactive material. A link to
the DOT's Web site is provided on the NRC's Web site at http://www.nrc.gov/materials/transportation.html.
25. What are the requirements for small quantities or irradiated
reactor fuel?
The proposed rule would add a new Sec. 73.35 to Part 73, which
would provide that the requirements for shipments of irradiated reactor
fuel weighing 100 g (0.22 lb) or less in net weight of irradiated fuel,
exclusive of cladding or other structural or packaging material, which
has a total external radiation dose rate in excess of 1 Sv (100 rem)
per hour at a distance of 0.91 m (3 ft) from any accessible surface
without intervening shielding, would be the same as the requirements
for shipments of category 1 quantities of radioactive material.
26. What doesn't this proposed rule cover?
The proposed rule does not address air or water transport.
Transport of radioactive material within airports and by air is
regulated by the Federal Aviation Administration. Transport of
radioactive material within ports and by waterway is regulated by the
U.S. Coast Guard.
The proposed rule also does not address transshipments of category
1 or category 2 quantities of radioactive material through the United
States. Transshipments are shipments that are originated by a foreign
company in one country, pass through the United States, and then
continue on to a company in another country. Transshipments are
regulated by the DOT and DHS.
Finally, this rulemaking does not address transport of spent fuel,
except irradiated reactor fuel weighing 100 g (0.22 lb) or less in net
weight of irradiated fuel, exclusive of cladding or other structural or
packaging material, which has a total external radiation dose rate in
excess of 1 Sv (100 rem) per hour at a distance of 3 ft from any
accessible surface without intervening shielding.
III. Discussion of Proposed Rule by Section
Section 30.6 Communications
This section would be revised to include a reference to the new 10
CFR part 37.
Section 30.13 Carriers
This section would be revised to include 10 CFR part 37 in the list
of regulations that exempt common carriers.
Section 30.32 Application for Specific Licenses
Paragraph (l) would be added to require that an application under
10 CFR part 30 include information concerning whether the applicant's
proposed security program meets the requirements of 10 CFR part 37.
Section 30.33 General Requirements for Issuance of Specific Licenses
Paragraph (a)(4) would be revised to include a reference to the new
10 CFR part 37.
[[Page 33922]]
Section 32.1 Purpose and Scope
10 CFR part 37 would be added to the list of 10 CFR parts that
apply to applications and licenses subject to this part.
Section 33.1 Purpose and Scope
10 CFR Part 37 would be added to the list of 10 CFR parts that
apply to applications and licenses subject to this part.
Section 34.1 Purpose and Scope
10 CFR Part 37 would be added to the list of 10 CFR parts that
apply to applications and licenses subject to this part.
Section 35.1 Purpose and Scope
10 CFR Part 37 would be added to the list of 10 CFR parts that
apply to applications and licenses subject to this part.
Section 36.1 Purpose and Scope
10 CFR Part 37 would be added to the list of 10 CFR parts that
apply to applications and licenses subject to this part.
Section 37.1 Purpose
This section would establish the purpose for the proposed new 10
CFR part 37.
Section 37.3 Scope
This section would establish the scope of the proposed new 10 CFR
part 37. These regulations would apply to any person licensed by the
NRC, who possesses, uses, or transports category 1 or category 2
quantities of radioactive material. Paragraph (a) would establish the
applicability for subpart B. Paragraph (b) would establish the
applicability for subpart C. Paragraph (c) would establish the
applicability for subpart D.
Section 37.5 Definitions
Definitions of the following terms that would be included in this
part are identical to the definition of the term in other parts of this
chapter: Act, Agreement State, Becquerel, Byproduct material,
Commission, Curie, Government agency, License, Lost or missing
material, Person, State, and United States. In addition, definitions
for the following terms are included in this part: Approved
individuals, Access control, Aggregated, Background investigation,
Category 1 quantity of radioactive material, Category 2 quantity of
radioactive material, Diversion, Escorted access, Fingerprint Orders,
Isolation, License issuing authority, Local law enforcement agency,
Mobile device, Movement control center, No-later-than arrival time,
Reviewing official, Sabotage, Safe haven, Security zone, Telemetric
position monitoring system, Temporary job site, Trustworthiness and
reliability, and Unescorted access.
Section 37.7 Communications
This section would specify where all communications and reports
concerning 10 CFR part 37 would be sent.
Section 37.9 Interpretations
This section would establish that no interpretations of the meaning
of the regulations in 10 CFR part 37 by any officer or employee of the
Commission other than a written interpretation by the General Counsel
will be recognized as binding upon the Commission, unless specifically
authorized by the Commission in writing.
Section 37.11 Specific Exemptions
This section would establish that the Commission may grant
exemptions from the requirements of the regulations in 10 CFR part 37
that it determines are authorized by law and that will not endanger
life or property or the common defense and security, and are otherwise
in the public interest. Paragraph (b) would exempt a licensee's
activities from 10 CFR part 37 to the extent that the activities are
covered under the physical protection requirements of 10 CFR part 73.
Section 37.13 Information Collection Requirements: OMB Approval
Paragraph (a) would specify that the NRC may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
Paragraph (b) would list those sections in 10 CFR part 37 that have
approved information collection requirements.
Section 37.21 Personnel Access Authorization Requirements for Category
1 or Category 2 Quantities of Radioactive Material
Paragraph (a) of this section would establish which licensees would
need to comply with the requirements of the proposed subpart B of 10
CFR part 37.
Paragraph (b) would establish the general performance objective to
ensure that the individuals subject to the access authorization program
are trustworthy and reliable.
Paragraph (c)(1) would establish the individuals that would be
subject to the access authorization program. Paragraph (c)(2) would
allow licensees to not subject those individuals listed in 10 CFR
37.29(a) through (l) to the investigation elements of the access
authorization program. Paragraph (c)(3) would require that licensees
only approve those individuals whose job duties permit unescorted
access to category 1 or category 2 quantities of radioactive material.
Section 37.23 Access Authorization Program Requirements
This section would establish the general requirements for the
access authorization program.
Section 37.25 Background Investigations
This section would establish the elements of the background
investigation that is necessary before granting an individual
unescorted access to category 1 or category 2 quantities of radioactive
material. The scope of the initial investigation would be the past 10
years.
Section 37.27 Requirements for Criminal History Records Checks of
Individuals Granted Unescorted Access to Category 1 or Category 2
Quantities of Radioactive Material
Paragraph (a) would establish the general requirements for criminal
history records checks of individuals to be granted unescorted access
to category 1 or category 2 quantities of radioactive material.
Paragraph (b) would prohibit a licensee from basing a final
determination to deny an individual unescorted access authorization
solely on the basis of certain information received from the FBI.
Paragraph (c) would establish the procedure for submitting
fingerprint records to the NRC.
Section 37.29 Relief From Fingerprinting, Identification, and Criminal
History Records Checks and Other Elements of Background Investigations
for Designated Categories of Individuals Permitted Unescorted Access to
Certain Radioactive Materials or Other Property
This section would provide relief from the fingerprinting and
criminal history records check requirements and the background
investigation requirements of this subpart for the certain categories
of individuals.
Section 37.31 Protection of Information
This section would outline the proposed requirements for the
protection and release to authorized personnel of personal information
collected by a licensee during a background investigation.
[[Page 33923]]
Section 37.33 Access Authorization Program Review
This section would outline the requirements for an annual access
authorization program review to confirm compliance with the
requirements of subpart B of 10 CFR part 37 and for comprehensive
corrective actions to be taken in response to any nonconformance
identified by the review.
Section 37.41 Security Program
Paragraph (a) would establish the applicability of the security
program. Paragraph (a)(1) would require licensees that possess an
aggregated quantity of category 1 or category 2 quantities of
radioactive material to develop, establish, implement, and maintain a
security program. Paragraph (a)(2) would require those licensees that
are authorized to possess but don't actually possess an aggregated
quantity to develop a security program. Paragraph (a)(2) would also
require a licensee to implement the security program at least 90 days
before aggregating radioactive material to the category 2 threshold and
to notify the NRC of the implementation.
Paragraph (b) would establish the general performance objective of
the security program.
Paragraph (c) would establish the program features that must be
addressed in the security program.
Paragraph (d) would require licensees that possess a category 1 or
category 2 quantity of radioactive material to submit information
concerning the licensee's compliance with the security program
requirements within 30 days of the final rule's effective date.
Section 37.43 General Security Program Requirements
Paragraph (a)(1) would require licensees to develop a written
security plan that addresses how the licensee will implement the
security program requirements. Paragraph (a)(2) would require the
security plan to be reviewed and approved by the individual with
overall responsibility for the security program. Paragraph (a)(3) would
allow a licensee to revise its security plan to ensure effective
implementation of the plan. Paragraph (a)(4) would require the licensee
to retain a copy of the current security plan until the license is
terminated and any security plan revisions for 5 years.
Paragraph (b)(1) would require licensees to develop and maintain
written procedures for implementation of the security plan. Paragraph
(b)(2) would require the procedures to be approved by the individual
with overall responsibility for the security program. Paragraph (b)(3)
would require the licensee to retain a copy of the procedures until the
license is terminated and any revisions for 5 years.
Paragraph (c) would require licensees to conduct training and
annual refresher training on the security plan. Licensees would be
required to maintain training records for 5 years from the date of the
training.
Paragraph (d) would require licensees to protect the security plan
and implementing procedures from unauthorized disclosure. Licensees
would be required to develop, maintain and implement written policies
and procedures for controlling access to, and for proper handling and
protection against unauthorized disclosure of, the security plan and
implementing procedures. Only individuals with a need-to-know and that
have been determined to be trustworthy and reliable would be able to
have access to the protected information. The information protection
procedures would be retained for 5 years after the document is no
longer needed.
Section 37.45 LLEA Coordination and Notification
Paragraph (a) would require that a licensee attempt to coordinate
with an LLEA and would specify the types of information to be shared
with the LLEA.
Paragraph (b) would establish when the licensee must notify the
LLEA about planned work at a temporary job site and the information to
be shared in the notification.
Paragraph (c) would require the licensee to maintain records of its
coordination activities with any LLEA.
Section 37.47 Security Zones
Paragraph (a) would require licensees to establish security zones
for the use of category 1 or category 2 quantities of radioactive
material.
Paragraph (b) would require the establishment of temporary security
zones, as necessary, to meet transitory or intermittent business
activities.
Paragraph (c) would require that security zones use physical
barriers or direct control of the security zone to allow unescorted
access only to approved individuals.
Paragraph (d) would require licensees to provide an approved
individual to maintain constant surveillance of sources in temporary
security zones or in a security zone in which a physical barrier or
intrusion detection system has been disabled to allow maintenance,
source receipt, preparation for shipment, source installation, or
removal or exchange of category 1 quantities of radioactive material.
Section 37.49 Monitoring, Detection, and Assessment
Paragraph (a) would require the licensee to establish and maintain
the capability to continuously monitor and detect without delay all
unauthorized entries into the security zones.
Paragraph (b) would require the licensee to assess without delay
each actual or attempted unauthorized entry into the security zone.
Paragraph (c)(1) would require the licensee to maintain continuous
capability for personnel communication and electronic data transmission
and processing among site security systems. Paragraph (c)(2) would
require the licensee to provide alternative capabilities for personnel
communication and data transmission and processing.
Paragraph (d) would require the licensee to respond without delay
to any actual or attempted unauthorized access to the security zone.
Section 37.51 Maintenance, Testing, and Calibration
This section would require licensees to implement a maintenance,
testing, and calibration program to ensure that intrusion alarms,
associated communication systems, and other physical components of the
systems used to secure and detect unauthorized access to radioactive
material are maintained in operable condition, are capable of
performing their intended function when needed, and are inspected and
tested for operability and performance every 3 months. Licensees would
be required to maintain the maintenance, testing, and calibration
records for 5 years.
Section 37.53 Requirements for Mobile Devices
This section would require licensees that possess mobile devices
containing category 1 or category 2 quantities of radioactive materials
to have two independent physical controls to secure the radioactive
material from unauthorized removal and to use a method to disable the
vehicle or trailer when the device is on a vehicle or trailer.
Section 37.55 Security Program Review
This section would require licensees to conduct a review of the
security program every 12 months. The licensee would be required to
document the
[[Page 33924]]
results of the review and any findings and keep the records for 5
years.
Section 37.57 Reporting of Events
Paragraph (a) would require licensees to immediately notify the
LLEA of any actual or attempted theft, sabotage, or diversion of
category 1 or category 2 quantities of radioactive material and to then
notify the NRC.
Paragraph (b) would require licensees to notify the LLEA upon
discovery of any suspicious activity related to the theft, sabotage, or
diversion of category 1 or category 2 quantities of radioactive
material and to then notify the NRC.
Paragraph (c) would require licensees to submit a written report to
the NRC within 30 days of any report of actual or attempted theft,
sabotage, or diversion of radioactive material.
Section 37.71 Additional Requirements for Transfer of Category 1 and
Category 2 Quantities of Radioactive Material
This section would establish new requirements for licensees
transferring category 1 and category 2 quantities of radioactive
material.
Section 37.73 Applicability of Physical Protection of Category 1 and
Category 2 Quantities of Radioactive Material During Transit
This section would establish which requirements apply to licensees
shipping category 1 or category 2 quantities of radioactive material
and what requirements apply during the domestic portion of a shipment
that is imported from another country. This section would also allow
the receiving licensee to arrange for the in-transit physical
protection of a shipment instead of the shipping licensee as long as
the agreement is in writing.
Section 37.75 Preplanning and Coordination of Shipment of Category 1 or
Category 2 Quantities of Radioactive Material
This section would establish the preplanning and coordination
necessary for a shipment of category 1 or category 2 quantities of
radioactive material.
Section 37.77 Advance Notification of Shipment of Category 1 Quantities
of Radioactive Material.
This section would establish the requirements for advance
notification to the NRC and the governor of a State, or the governor's
designee, of the shipment of category 1 quantities of radioactive
material that will pass through or across the State.
Section 37.79 Requirements for Physical Protection of Category 1 and
Category 2 Quantities of Radioactive Material During Shipment
This section would establish the physical protection requirements
for shipments of category 1 and category 2 quantities of radioactive
material. Paragraph (a)(1) would establish the requirements for
shipping a category 1 quantity of radioactive material by road.
Paragraph (a)(2) would establish the requirements for a licensee that
transports category 2 quantities of radioactive material by road.
Paragraph (a)(3) would establish the requirements for a licensee that
uses a carrier for shipping category 2 quantities of radioactive
material.
Paragraph (b)(1) would establish the requirements for shipping
category 1 quantities of radioactive material by rail. Paragraph (b)(2)
would establish the security requirements for shipping category 2
quantities of radioactive material by rail.
Paragraph (c)(1) would require licensees who make arrangements for
the shipment of category 1 quantities of radioactive material to
develop written normal and contingency procedures to address
notifications, communication protocols, loss of communication, and
response to actual or attempted theft or diversion of a shipment, or
any suspicious activity related to a shipment. Paragraph (c)(2) would
require licensees to ensure that drivers, accompanying personnel, train
crew, and movement control center personnel are trained in and
understand both the normal and contingency procedures.
Paragraph (d) would require the shipping licensee to immediately
conduct an investigation of any shipment of category 1 or category 2
quantities of radioactive material that is lost or unaccounted for
after the designated no-later-than arrival time in the advance
notification.
Section 37.81 Reporting of Events
This section would establish requirements for the shipping licensee
to make notifications upon the discovery that a shipment is lost or
missing and upon discovery of any actual or attempted theft or
diversion of a shipment, or suspicious activities related to the theft
or diversion of a shipment of either a category 1 or category 2
quantity of radioactive material. This section would also establish
requirements for notification upon recovery of a lost or missing
shipment. Written follow-up reports would be required for all
notifications.
Section 37.101 Form of Records
This section would establish the requirements for the storage and
protection of records required by this part.
Section 37.103 Record Retention
This section would establish the Commission's termination of the
license as the end point of the retention period for any record where a
specific retention period is not specified.
Section 37.105 Inspections
Paragraph (a) would require licensees to allow the Commission the
opportunity to inspect the materials and facilities subject to 10 CFR
part 37.
Paragraph (b) would require the licensee to make available for
inspection any records subject to 10 CFR part 37.
Section 37.107 Violations
Paragraph (a) of this section would establish that the Commission
may obtain an injunction or other court order to prevent a violation of
the AEA, Title II of the Energy Reorganization Act of 1974, as amended;
or a regulation or order issued under those Acts.
Paragraph (b) of this section would establish the violations for
which the Commission may obtain a court order for the payment of a
civil penalty imposed under section 234 of the AEA.
Section 37.109 Criminal Penalties
This section would establish the sections in 10 CFR part 37 that
are issued under one or more of sections 161b, 161i, or 161o and are
therefore subject to criminal sanctions for willful violations of,
attempted violation of, or conspiracy to violate the regulation.
Appendix A to 10 CFR Part 37--Category 1 and Category 2 Radioactive
Materials
Table 1 of this appendix would establish the radionuclides and
associated thresholds for category 1 and category 2 quantities of
radioactive material. The appendix would also provide the methodology
for calculating the sum of fractions for evaluating combinations of
multiple radionuclides.
Section 39.1 Purpose and Scope
10 CFR part 37 would be added to the list of 10 CFR parts that
apply to applications and licenses subject to this part.
[[Page 33925]]
Section 51.22 Criterion for Categorical Exclusion; Identification of
Licensing and Regulatory Actions Eligible for Categorical Exclusion or
Otherwise Not Requiring Environmental Review
Paragraph (c)(3) would be revised to include 10 CFR part 37.
Section 71.97 Advance Notification of Shipment of Irradiated Reactor
Fuel and Nuclear Waste
Paragraph (b) would be revised to delete the reference to shipments
of irradiated reactor fuel in quantities less than that subject to the
advance notification requirements of Sec. 73.37(f). Proposed Sec.
73.35 would provide that such irradiated reactor fuel shipments be
subject to the same requirements that apply to shipments of category 1
radioactive material, including the advance notification requirements.
Section 73.35 Requirements for Physical Protection of Irradiated
Reactor Fuel (100 Grams or Less) in Transit
A new section would be added to 10 CFR part 73 to address the
physical protection requirements for shipments of irradiated reactor
fuel weighing 100 g (0.22 lb) or less in net weight of irradiated fuel,
exclusive of cladding or other structural or packaging material, which
has a total external radiation dose rate in excess of 1 Sv (100 rem)
per hour at a distance of 0.91 m (3 ft) from any accessible surface
without intervening shielding. The material would be subject to the
same transportation security requirements as category 1 quantities of
radioactive material.
IV. Criminal Penalties
For the purpose of Section 223 of the AEA, the Commission is
proposing to amend 10 CFR parts 30, 32, 33, 34, 35, 36, 39, 51, 71, and
73 and add new part 37 under one or more of Sections 161b, 161i, or
161o of the AEA. Willful violations of the rule would be subject to
criminal enforcement.
V. Agreement State Compatibility
Under the ``Policy Statement on Adequacy and Compatibility of
Agreement State Programs'' approved by the Commission on June 30, 1997,
and published in the Federal Register (62 FR 46517; September 3, 1997),
this proposed rule would be a matter of compatibility between the NRC
and the Agreement States, thereby providing consistency among the
Agreement States and the NRC requirements. The NRC staff analyzed the
proposed rule in accordance with the procedure established within Part
III, ``Categorization Process for NRC Program Elements,'' of Handbook
5.9 to Management Directive 5.9, ``Adequacy and Compatibility of
Agreement State Programs'' (a copy of which may be viewed at http://www.nrc.gov/reading-rm/doc-collections/management-directives/).
The NRC program elements (including regulations) are placed into
four compatibility categories (See the Draft Compatibility Table in
this section). In addition, the NRC program elements can also be
identified as having particular health and safety significance or as
being reserved solely to the NRC. Compatibility Category A are those
program elements that are basic radiation protection standards and
scientific terms and definitions that are necessary to understand
radiation protection concepts. An Agreement State should adopt Category
A program elements in an essentially identical manner to provide
uniformity in the regulation of agreement material on a nationwide
basis. Compatibility Category B are those program elements that apply
to activities that have direct and significant effects in multiple
jurisdictions. An Agreement State should adopt Category B program
elements in an essentially identical manner. Compatibility Category C
are those program elements that do not meet the criteria of Category A
or B, but the essential objectives of which an Agreement State should
adopt to avoid conflict, duplication, gaps, or other conditions that
would jeopardize an orderly pattern in the regulation of agreement
material on a nationwide basis. An Agreement State should adopt the
essential objectives of the Category C program elements. Compatibility
Category D are those program elements that do not meet any of the
criteria of Category A, B, or C, above, and, thus, do not need to be
adopted by Agreement States for purposes of compatibility.
Health and Safety (H&S) are program elements that are not required
for compatibility, but are identified as having a particular health and
safety role (i.e., adequacy) in the regulation of agreement material
within the State. Although not required for compatibility, the State
should adopt program elements in this H&S category based on those of
the NRC that embody the essential objectives of the NRC program
elements because of particular health and safety considerations.
Compatibility Category NRC are those program elements that address
areas of regulation that cannot be relinquished to Agreement States
under the AEA or provisions of Title 10 of the Code of Federal
Regulations. These program elements are not adopted by Agreement
States. The following table lists the Parts and Sections that would be
created or revised and their corresponding categorization under the
``Policy Statement on Adequacy and Compatibility of Agreement State
Programs.'' A bracket around a category means that the section may have
been adopted elsewhere, and it is not necessary to adopt it again.
The NRC invites comment on the compatibility category designations
in the proposed rule and suggests that commenters refer to Handbook 5.9
of Management Directive 5.9 for more information. The NRC notes that,
like the rule text, the compatibility category designations can change
between the proposed rule and final rule, based on comments received
and Commission decisions regarding the final rule. The NRC encourages
anyone interested in commenting on the compatibility category
designations in any manner to do so during the comment period.
Draft Compatibility Table for Proposed Rule
----------------------------------------------------------------------------------------------------------------
Compatibility
Section Change Subject -----------------------------------
Existing New
----------------------------------------------------------------------------------------------------------------
Part 30
----------------------------------------------------------------------------------------------------------------
30.6........................... Amend............. Communications......... D D
30.13.......................... Amend............. Carriers............... B B
30.32(l)....................... New............... Application of specific ................ C
licenses.
30.33(a)(4)................... Amend............. General requirements D D
for issuance of
specific licenses.
----------------------------------------------------------------------------------------------------------------
[[Page 33926]]
Part 32
----------------------------------------------------------------------------------------------------------------
32.1(b)........................ Amend............. Purpose and scope...... D D
----------------------------------------------------------------------------------------------------------------
Part 33
----------------------------------------------------------------------------------------------------------------
33.1........................... Amend............. Purpose and scope...... D D
----------------------------------------------------------------------------------------------------------------
Part 34
----------------------------------------------------------------------------------------------------------------
34.1........................... Amend............. Purpose and scope...... D D
----------------------------------------------------------------------------------------------------------------
Part 35
----------------------------------------------------------------------------------------------------------------
35.1........................... Amend............. Purpose and scope...... D D
----------------------------------------------------------------------------------------------------------------
Part 36
----------------------------------------------------------------------------------------------------------------
36.1........................... Amend............. Purpose and scope...... D D
----------------------------------------------------------------------------------------------------------------
Part 37
----------------------------------------------------------------------------------------------------------------
37.1........................... New............... Purpose................ ................ D
37.3........................... New............... Scope.................. ................ D
37.5........................... New............... Definition Access ................ C
control.
37.5........................... New............... Definition Act......... ................ D
37.5........................... New............... Definition Aggregated.. ................ C
37.5........................... New............... Definition Agreement ................ [B]
State.
37.5........................... New............... Definition Approved ................ B
individual.
37.5........................... New............... Definition Background ................ C
Investigation.
37.5........................... New............... Definition Becquerel... ................ [A]
37.5........................... New............... Definition Byproduct ................ [H&S]
Material.
37.5........................... New............... Definition Category 1 ................ B
quantities of
radioactive material.
37.5........................... New............... Definition Category 2 ................ B
quantities of
radioactive material.
37.5........................... New............... Definition Commission.. ................ D
37.5........................... New............... Definition Curie....... ................ [A]
37.5........................... New............... Definition Diversion... ................ C
37.5........................... New............... Definition Escorted ................ B
access.
37.5........................... New............... Definition Fingerprint ................ C
Orders.
37.5........................... New............... Definition Government ................ D
agency.
37.5........................... New............... Definition Isolation... ................ C
37.5........................... New............... Definition License..... ................ D
37.5........................... New............... Definition License ................ D
issuing agency.
37.5........................... New............... Definition Local law ................ C
enforcement agency.
37.5........................... New............... Definition Lost or ................ [B]
missing material.
37.5........................... New............... Definition Mobile ................ B
device.
37.5........................... New............... Definition Movement ................ B
control center.
37.5........................... New............... Definition No-later- ................ B
than arrival time.
37.5........................... New............... Definition Person...... ................ [C]
37.5........................... New............... Definition Reviewing ................ C
official.
37.5........................... New............... Definition Sabotage.... ................ C
37.5........................... New............... Definition Safe haven.. ................ B
37.5........................... New............... Definition Security ................ C
zone.
37.5........................... New............... Definition State....... ................ D
37.5........................... New............... Definition Telemetric ................ B
position monitoring
system.
37.5........................... New............... Definition Temporary ................ B
job site.
37.5........................... New............... Definition ................ B
Trustworthiness and
reliability.
37.5........................... New............... Definition Unescorted ................ B
access.
37.5........................... New............... Definition United ................ D
States.
37.7........................... New............... Communications......... ................ D
37.9........................... New............... Interpretations........ ................ D
37.11(a)....................... New............... Specific exemptions.... ................ D
37.11(b)....................... New............... Specific exemptions.... ................ NRC
37.13.......................... New............... Information collection ................ D
requirements: OMB
approval.
37.21(a)....................... New............... General................ ................ C
37.21(b)....................... New............... General performance ................ B
objective.
37.21(c)....................... New............... Applicability.......... ................ B
37.23(a)....................... New............... Granting unescorted ................ B
access authorization.
37.23(b)....................... New............... Reviewing officials.... ................ B
37.23(c)....................... New............... Informed consent....... ................ B
37.23(d)....................... New............... Personal history ................ B
disclosure.
[[Page 33927]]
37.23(e)....................... New............... Determination basis.... ................ B
37.23(f)....................... New............... Procedures............. ................ C
37.23(g)....................... New............... Right to correct and ................ B
complete information.
37.23(h)....................... New............... Records................ ................ C
37.25(a)....................... New............... Initial investigation.. ................ B
37.25(b)....................... New............... Grandfathering......... ................ C
37.25(c)....................... New............... Reinvestigations....... ................ B
37.27(a)....................... New............... General performance ................ B
objective and
requirements.
37.27(b)....................... New............... Prohibitions........... ................ B
37.27(c)....................... New............... Procedures for ................ B
processing fingerprint
checks.
37.29.......................... New............... Relief from ................ B
fingerprinting,
identification, and
criminal history
records checks and
other elements of a
background
investigations for
designated categories
of individuals
permitted unescorted
access to certain
radioactive materials
or other property.
37.31(a)-(d)................... New............... Protection of ................ B
information.
37.31(e)....................... New............... Protection of ................ C
information.
37.33(a), (b), (c)............. New............... Access authorization ................ C
program review.
37.41(a)....................... New............... Applicability.......... ................ B
37.41(b)....................... New............... General performance ................ B
objective.
37.41(c)....................... New............... Program features....... ................ C
37.41(d)....................... New............... Information submittal ................ C
and notification.
37.43(a)....................... New............... Security plan.......... ................ B
37.43(b)....................... New............... Implementing procedures ................ C
37.43(c)(1)-(c)(3)............. New............... Training............... ................ B
37.43(c)(4).................... New............... Training............... ................ C
37.43(d)(1)-(d)(7)............. New............... Protection of ................ C
Information.
37.43(d)(8).................... New............... Protection of ................ NRC
Information.
37.45(a)....................... New............... LLEA coordination...... ................ B
37.45(b)....................... New............... LLEA notification for ................ B
temporary job sites.
37.45(c)....................... New............... Records................ ................ C
37.47(a)-(d)................... New............... Security Zones......... ................ B
37.49(a)....................... New............... Monitoring and ................ B
detection.
37.49(b)....................... New............... Assessment............. ................ B
37.49(c)....................... New............... Personnel ................ B
communications and
data transmission.
37.49(d)....................... New............... Response............... ................ B
37.51.......................... New............... Maintenance, testing, ................ C
and calibration.
37.53.......................... New............... Requirements for mobile ................ B
devices.
37.55(a), (b), (c)............. New............... Security program review ................ C
37.57(a)....................... New............... Reporting of events.... ................ C
37.57(b)....................... New............... Reporting of events.... ................ C
37.71(a), (b).................. New............... Additional requirements ................ B
for transfer of
category 1 and
category 2 quantities
of radioactive
material.
37.71(c)....................... New............... Additional requirements ................ C
for transfer of
category 1 and
category 2 quantities
of radioactive
material.
37.73(a), (b), (d), (e)........ New............... Applicability of ................ D
physical protection of
category 1 and
category 2 quantities
of radioactive
material during
transit.
37.73(c)....................... New............... Applicability of ................ B
physical protection of
category 1 and
category 2 quantities
of radioactive
material during
transit.
37.75(a)-(d)................... New............... Preplanning and ................ B
coordination of
shipment of category 1
or category 2
quantities of
radioactive material.
37.75(e)....................... New............... Preplanning and ................ C
coordination of
shipment of category 1
or category 2
quantities of
radioactive material.
37.77.......................... New............... Advance notification ................ B
for shipments of
category 1 quantities
of radioactive
material.
37.77(a)....................... New............... Procedures for ................ B
submitting advance
notification.
37.77(b)....................... New............... Information to be ................ B
furnished in advance
notification of
shipment.
37.77(c)....................... New............... Revision notice........ ................ B
37.77(d)....................... New............... Cancellation notice.... ................ B
37.77(e)....................... New............... Records................ ................ C
37.77(f)....................... New............... Protection of ................ NRC
information.
37.79(a)....................... New............... Shipments by road...... ................ B
37.79(b)....................... New............... Shipments by rail...... ................ B
37.79(c)....................... New............... Procedures............. ................ B
37.79(d)....................... New............... Investigations......... ................ B
37.81(a)....................... New............... Reporting of events.... ................ B
37.81(b)....................... New............... Reporting of events.... ................ B
[[Page 33928]]
37.81(c)....................... New............... Reporting of events.... ................ B
37.81(d)....................... New............... Reporting of events.... ................ B
37.81(e)....................... New............... Reporting of events.... ................ B
37.81(f)....................... New............... Reporting of events.... ................ B
37.81(g)....................... New............... Reporting of events.... ................ C
37.81(h)....................... New............... Reporting of events.... ................ C
37.101......................... New............... Form of records........ ................ C
37.103......................... New............... Record retention....... ................ C
37.105......................... New............... Inspections............ ................ D
37.107......................... New............... Violations............. ................ D
37.109......................... New............... Criminal penalties..... ................ D
Appendix A..................... New............... Category 1 and 2 ................ B
thresholds.
----------------------------------------------------------------------------------------------------------------
Part 39
----------------------------------------------------------------------------------------------------------------
39.1........................... Amend............. Purpose and scope...... D D
----------------------------------------------------------------------------------------------------------------
Part 51
----------------------------------------------------------------------------------------------------------------
51.22(c)(3).................... Amend............. Criterion for NRC NRC
categorical exclusion;
identification of
licensing and
regulatory actions
eligible for
categorical exclusion
or otherwise not
requiring
environmental review.
----------------------------------------------------------------------------------------------------------------
Part 71
----------------------------------------------------------------------------------------------------------------
71.97(b)....................... Amend............. Advance notification of B B
shipment of irradiated
reactor fuel and
nuclear waste.
----------------------------------------------------------------------------------------------------------------
Part 73
----------------------------------------------------------------------------------------------------------------
73.35.......................... New............... Requirements for ................ NRC
physical protection of
irradiated reactor
fuel (100 grams or
less) in transit.
----------------------------------------------------------------------------------------------------------------
VI. Plain Language
The Presidential Memorandum, ``Plain Language in Government
Writing'' published June 10, 1998 (63 FR 31883), directed that the
Government's documents be in clear and accessible language. The NRC
requests comments on this proposed rule specifically with respect to
the clarity and effectiveness of the language used. Comments should be
sent to the address listed under the ADDRESSES heading.
VII. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995 (Pub.
L. 104-113) requires that Federal agencies use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
the use of such a standard is inconsistent with applicable law or
otherwise impractical. In this proposed rule, the NRC would establish
security requirements for the use of category 1 and category 2
quantities of radioactive materials. The NRC is not aware of any
voluntary consensus standards that address the proposed subject matter
of this proposed rule. The NRC will consider using a voluntary
consensus standard if an appropriate standard is identified. If a
voluntary consensus standard is identified for consideration, the
submittal should explain why the standard should be used.
VIII. Finding of No Significant Environmental Impact: Availability
Under the National Environmental Policy Act of 1969, as amended,
and the NRC regulations in subpart A of 10 CFR part 51, the NRC has
determined that this proposed rule, if adopted, would not be a major
Federal action significantly affecting the quality of the human
environment, and therefore an environmental impact statement is not
required for this rulemaking. The NRC has prepared an environmental
assessment and, on the basis of this environmental assessment, has made
a finding of no significant impact.
The implementation of the proposed rule's security requirements
would not result in significant changes to the licensee's facilities,
nor would such implementation result in any significant increase in
effluents released to the environment. Similarly the implementation of
the proposed rule's security requirements would not affect occupational
exposure requirements. No major construction or other earth disturbing
activities, on the part of the affected licensees, is anticipated in
connection with licensee's implementation of the proposed rule's
requirements. The Commission has determined that the implementation of
this proposed rule would be procedural and administrative in nature.
The determination of this environmental assessment is that there
will be no significant impact to the public from this action. However,
the general public should note that the NRC welcomes public
participation. Comments on any aspect of the Environmental Assessment
may be submitted to the NRC as indicated under the ADDRESSES heading in
this document.
The NRC has sent a copy of the Environmental Assessment and this
proposed rule to every State Liaison Officer and requested their
comments on the Environmental Assessment. The Environmental Assessment
may be examined at the NRC Public Document, Room O-1F23, 11555
Rockville Pike, Rockville, MD 20852. The Environmental Assessment may
also be
[[Page 33929]]
viewed and downloaded electronically via the Federal eRulemaking Portal
at http://www.regulations.gov by searching for Docket Number ID NRC-
2008-0120.
IX. Paperwork Reduction Act Statement
This proposed rule contains new or amended information collection
requirements that are subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). This rule has been submitted to the Office of
Management and Budget (OMB) for review and approval of the information
collection requirements.
Type of submission, new or revision: New.
The title of the information collection: ``10 CFR Parts 30, 32, 33,
34, 35, 36, 37, 39, 51, 71, and 73, Physical Protection of Byproduct
Material''
The form number if applicable: NA.
How often the collection is required: One time for initial
compliance notifications and fingerprints for the reviewing officials;
and as needed for implementation notifications, event notifications,
notifications of shipments of radioactive material, and fingerprinting
of new employees.
Who will be required or asked to report: Licensees that are
authorized to possess and use category 1 or category 2 quantities of
radioactive material.
An estimate of the number of annual responses: 83,666 (88,066
responses plus 1,400 record keepers).
The estimated number of annual respondents: 1,917 (2,950 the first
year, 1,400 in subsequent years)
An estimate of the total number of hours needed annually to
complete the requirement or request: 63,446 (5,125 one-time reporting
hours, annualized to 1,708 hours plus 12,387 reporting hours plus
21,694 recordkeeping hours plus 27,657 third-party hours).
Abstract: The NRC is proposing to amend its regulations to put in
place security requirements for the use of category 1 and category 2
quantities of radioactive material. Licensees would be required to: (1)
Develop procedures for implementation of the security provisions; (2)
develop a security plan that describes how security is being
implemented; (3) conduct training on the procedures and security plan;
(4) conduct background investigations for those individuals permitted
access to category 1 or category 2 quantities of radioactive material;
(5) coordinate with LLEAs so the LLEAs would be better prepared to
respond in an emergency; (6) conduct preplanning and coordination
activities before shipping radioactive material; and (7) implement
security measures for the protection of the radioactive material.
Licensees would be required to promptly report any attempted or actual
theft or diversion of the radioactive material. Licensees would be
required to keep copies of the security plan, procedures, background
investigation records, training records, and documentation that certain
activities have occurred.
The NRC is seeking public comment on the potential impact of the
information collections contained in this proposed rule and on the
following issues:
1. Is the proposed information collection necessary for the proper
performance of the functions of the NRC, including whether the
information will have practical utility?
2. Is the estimate of burden accurate?
3. Is there a way to enhance the quality, utility, and clarity of
the information to be collected?
4. How can the burden of the information collection be minimized,
including the use of automated collection techniques?
A copy of the OMB clearance package may be viewed free of charge at
the NRC Public Document Room, One White Flint North, 11555 Rockville
Pike, Room O-1F21, Rockville, MD 20852. The OMB clearance package and
rule are available at the NRC worldwide Web site http://www.nrc.gov/public-involve/doc-comment/omb/index.html for 60 days after the
signature date of this notice.
Send comments on any aspect of these proposed regulations related
to information collections, including suggestions for reducing the
burden and on the above issues, by July 15, 2010 to the Records and
FOIA/Privacy Services Branch (T-5F52), U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, or by Internet electronic mail
to [email protected] and to the Christine Kymm (202-395-
4638, [email protected]), Desk Officer, Office of Information and
Regulatory Affairs, NEOB-10202 (3150-xxxx), Office of Management and
Budget, Washington, DC 20503. Comments on the proposed information
collections may also be submitted via the Federal eRulemaking Portal
http://www.regulations.gov, Docket Number ID NRC-2008-0120. Comments
received after this date will be considered if it is practical to do
so, but assurance of consideration cannot be given to comments received
after this date.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.
X. Regulatory Analysis
The Commission has prepared a draft regulatory analysis on this
proposed regulation. The analysis examines the costs and benefits of
the alternatives considered by the Commission.
The Commission requests public comment on the draft regulatory
analysis. Comments on the draft analysis may be submitted to the NRC as
indicated under the ADDRESSES heading. The analysis is available for
inspection in the NRC Public Document Room, 11555 Rockville Pike,
Rockville, MD 20852. The analysis may also be viewed and downloaded
electronically via the Federal eRulemaking Portal at http://www.regulations.gov by searching for Docket Number NRC-2008-0120.
XI. Regulatory Flexibility Certification
The NRC has prepared an initial regulatory analysis of the impact
of this proposed rule on small entities. The proposed rule would affect
about 300 NRC licensees and an additional 1,100 Agreement State
licensees. Affected licensees include laboratories, reactors,
universities, colleges, medical clinics, hospitals, irradiators, well
loggers, and radiographers, some of which may qualify as small business
entities as defined by 10 CFR 2.810. Based on the draft regulatory
analysis conducted for this action, the costs of the proposed rule for
affected licensees are estimated to be between $541 million and $743
million (7-percent and 3-percent discount rate, respectively) total.
The average licensee would have a one-time cost of approximately
$27,000 and an annual cost of approximately $25,700 to fully implement
the proposed rule. An additional 1,550 licensees would experience a
one-time cost of about $3,500 to develop a security program but would
not need to implement the program. The NRC believes that the selected
alternative reflected in the proposed rule is the least burdensome,
most flexible alternative that would accomplish the NRC's regulatory
objective. The draft Regulatory Flexibility Analysis is included as
Appendix to this proposed rule.
The NRC is seeking public comment on the potential impact of the
proposed rule on small entities. The NRC particularly desires comment
from licensees who qualify as small businesses, specifically as to how
the proposed regulation will affect them and how the regulation may be
tiered or otherwise modified to impose less
[[Page 33930]]
stringent requirements on small entities while still adequately
protecting the public health and safety and common defense and
security. Comments on how the regulation could be modified to take into
account the differing needs of small entities should specifically
discuss-
(a) The size of the business and how the proposed regulation would
result in a significant economic burden upon it as compared to a larger
organization in the same business community;
(b) How the proposed regulation could be further modified to take
into account the business's differing needs or capabilities;
(c) The benefits that would accrue, or the detriments that would be
avoided, if the proposed regulation was modified as suggested by the
commenter;
(d) How the proposed regulation, as modified, would more closely
equalize the impact of NRC regulations as opposed to providing special
advantages to any individuals or groups; and
(e) How the proposed regulation, as modified, would still
adequately protect the public health and safety and common defense and
security.
Comments should be submitted as indicated under the ADDRESSES
heading.
XII. Backfit Analysis
The NRC has determined that the backfit rule, which is found in the
regulations at Sec. Sec. 50.109, 70.76, 72.62, 76.76, and in 10 CFR
part 52, does not apply to this proposed rule because this amendment
would not involve any provisions that would impose backfits as defined
in 10 CFR chapter I. Therefore, a backfit analysis is not required.
List of Subjects
10 CFR Part 30
Byproduct material, Criminal penalties, Government contracts,
Intergovernmental relations, Isotopes, Nuclear materials, Radiation
protection, Reporting and recordkeeping requirements.
10 CFR Part 32
Byproduct material, Criminal penalties, Labeling, Nuclear
materials, Radiation protection, Reporting and recordkeeping
requirements.
10 CFR Part 33
Byproduct material, Criminal penalties, Nuclear materials,
Radiation protection, Reporting and recordkeeping requirements.
10 CFR Part 34
Criminal penalties, Packaging and containers, Radiation protection,
Radiography, Reporting and recordkeeping requirements, Scientific
equipment, Security measures.
10 CFR Part 35
Byproduct material, Criminal penalties, Drugs, Health facilities,
Health professions, Medical devices, Nuclear materials, Occupational
safety and health, Radiation protection, Reporting and recordkeeping
requirements.
10 CFR Part 36
Byproduct material, Criminal penalties, Nuclear materials,
Reporting and recordkeeping requirements, Scientific equipment,
Security measures.
10 CFR Part 37
Byproduct material, Criminal penalties, Export, Hazardous materials
transportation, Import, Licensed material, Nuclear materials, Reporting
and recordkeeping requirements, Security measures.
10 CFR Part 39
Byproduct material, Criminal penalties, Nuclear material, Oil and
gas exploration--well logging, Reporting and recordkeeping
requirements, Scientific equipment, Security measures, Source material,
Special nuclear material.
10 CFR Part 51
Administrative practice and procedure, Environmental impact
statement, Nuclear materials, Nuclear power plants and reactors,
Reporting and recordkeeping requirements.
10 CFR Part 71
Criminal penalties, Hazardous materials transportation, Import,
Nuclear materials, Packaging and containers, Reporting and
recordkeeping requirements.
10 CFR Part 73
Criminal penalties, Export, Hazardous materials transportation,
Import, Nuclear materials, Nuclear power plants and reactors, Reporting
and recordkeeping requirements, Security measures.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 553; the NRC is proposing to
adopt the following amendments to 10 CFR parts 30, 32, 33, 34, 35, 36,
37, 39, 51, 71, 73, and 150.
PART 30--RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF
BYPRODUCT MATERIAL
1. The authority citation for part 30 continues to read as follows:
Authority: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948,
953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42
U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.
5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note);
Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 549 (2005).
Section 30.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42
U.S.C. 5851). Section 30.34(b) also issued under sec. 184, 68 Stat.
954, as amended (42 U.S.C. 2234). Section 30.61 also issued under
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
2. In Sec. 30.6, the introductory text of paragraph (a) is revised
to read as follows:
Sec. 30.6 Communications.
(a) Unless otherwise specified or covered under the regional
licensing program as provided in paragraph (b) of this section, any
communication or report concerning the regulations in parts 30 through
37 and 39 of this chapter and any application filed under these
regulations may be submitted to the Commission as follows:
* * * * *
3. Section 30.13 is revised to read as follows:
Sec. 30.13 Carriers.
Common and contract carriers, freight forwarders, warehousemen, and
the U.S. Postal Service are exempt from the regulations in this part
and parts 31 through 37 and 39 of this chapter and the requirements for
a license set forth in section 81 of the Act to the extent that they
transport or store byproduct material in the regular course of carriage
for another or storage incident thereto.
4. In Sec. 30.32 a new paragraph (l) is added to read as follows:
Sec. 30.32 Application for specific licenses.
* * * * *
(l) An application for a specific license to use, store, or
transport category 1 or category 2 quantities of radioactive material
must include information concerning whether the applicant's proposed
security program meets the requirements in part 37 of this chapter.
5. In Sec. 30.33, paragraph (a)(4) is revised to read as follows:
[[Page 33931]]
Sec. 30.33 General requirements for issuance of specific licenses.
(a) * * *
(4) The applicant satisfies any special requirements contained in
parts 32 through 37 and 39; and
* * * * *
PART 32--SPECIFIC DOMESTIC LICENSES TO MANUFACTURE OR TRANSFER
CERTAIN ITEMS CONTAINING BYPRODUCT MATERIAL
6. The authority citation for part 32 continues to read as follows:
Authority: Secs. 81, 161, 182, 183, 68 Stat. 935, 948, 953, 954,
as amended (42 U.S.C. 2111, 2201, 2232, 2233); sec. 201, 88 Stat.
1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44
U.S.C. 3504 note); sec. 651(e), Pub. L. No. 109-58, 119 Stat. 806-
810 (42 U.S.C. 2014, 2021, 2021b, 2111).
7. In Sec. 32.1, paragraph (b) is revised to read as follows:
Sec. 32.1 Purpose and scope.
* * * * *
(b) The provisions and requirements of this part are in addition
to, and not in substitution for, other requirements of this chapter. In
particular, the provisions of part 30 of this chapter apply to
applications, licenses and certificates of registration subject to this
part, and the provisions of part 37 of this chapter apply to
applications and licenses subject to this part.
* * * * *
PART 33--SPECIFIC DOMESTIC LICENSES OF BROAD SCOPE FOR BYPRODUCT
MATERIAL
8. The authority citation for Part 33 continues to read as follows:
Authority: Secs. 81, 161, 182, 183, 68 Stat. 935, 948, 953, 954,
as amended (42 U.S.C. 2111, 2201, 2232, 2233); sec. 201, 88 Stat.
1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44
U.S.C. 3504 note); sec. 651(e), Pub. L. No. 109-58, 119 Stat. 806-
810 (42 U.S.C. 2014, 2021, 2021b, 2111).
9. Section 33.1 is revised to read as follows:
Sec. 33.1 Purpose and scope.
This part prescribes requirements for the issuance of specific
licenses of broad scope for byproduct material (``broad licenses'') and
certain regulations governing holders of such licenses. The provisions
and requirements of this part are in addition to, and not in
substitution for, other requirements of this chapter. In particular,
the provisions of parts 30 and 37 of this chapter apply to applications
and licenses subject to this part.
PART 34--LICENSES FOR INDUSTRIAL RADIOGRAPHY AND RADIATION SAFETY
REQUIREMENTS FOR INDUSTRIAL RADIOGRAPHIC OPERATIONS
10. The authority citation for Part 34 continues to read as
follows:
Authority: Secs. 81, 161, 182, 183, 68 Stat. 935, 948, 953, 954,
as amended (42 U.S.C. 2111, 2201, 2232, 2233); sec. 201, 88 Stat.
1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44
U.S.C. 3504 note).
Section 34.45 also issued under sec. 206, 88 Stat. 1246 (42
U.S.C. 5846).
11. Section 34.1 is revised to read as follows:
Sec. 34.1 Purpose and scope.
This part prescribes requirements for the issuance of licenses for
the use of sealed sources containing byproduct material and radiation
safety requirements for persons using these sealed sources in
industrial radiography. The provisions and requirements of this part
are in addition to, and not in substitution for, other requirements of
this chapter. In particular, the requirements and provisions of parts
19, 20, 21, 30, 37, 71, 150, 170, and 171 of this chapter apply to
applications and licenses subject to this part. This rule does not
apply to medical uses of byproduct material.
PART 35--MEDICAL USE OF BYPRODUCT MATERIAL
12. The authority citation for Part 35 continues to read as
follows:
Authority: Secs. 81, 161, 182, 183, 68 Stat. 935, 948, 953, 954,
as amended (42 U.S.C. 2111, 2201, 2232, 2233); sec. 201, 88 Stat.
1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44
U.S.C. 3504 note); sec. 651(e), Pub. L. No. 109-58, 119 Stat. 806-
810 (42 U.S.C. 2014, 2021, 2021b, 2111).
13. Section 35.1 is revised to read as follows:
Sec. 35.1 Purpose and scope.
This part contains the requirements and provisions for the medical
use of byproduct material and for issuance of specific licenses
authorizing the medical use of this material. These requirements and
provisions provide for the radiation safety of workers, the general
public, patients, and human research subjects. The requirements and
provisions of this part are in addition to, and not in substitution
for, others in this chapter. The requirements and provisions of parts
19, 20, 21, 30, 37, 71, 170, and 171 of this chapter apply to
applicants and licensees subject to this part unless specifically
exempted.
PART 36--LICENSES AND RADIATION SAFETY REQUIREMENTS FOR IRRADIATORS
14. The authority citation for Part 36 continues to read as
follows:
Authority: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948,
953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42
U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.
5841, 5842, 5846).
15. In Sec. 36.1, paragraph (a) is revised to read as follows:
Sec. 36.1 Purpose and scope.
(a) This part contains requirements for the issuance of a license
authorizing the use of sealed sources containing radioactive materials
in irradiators used to irradiate objects or materials using gamma
radiation. This part also contains radiation safety requirements for
operating irradiators. The requirements of this part are in addition to
other requirements of this chapter. In particular, the provisions of
parts 19, 20, 21, 30, 37, 71, 170, and 171 of this chapter apply to
applications and licenses subject to this part. Nothing in this part
relieves the licensee from complying with other applicable Federal,
State and local regulations governing the siting, zoning, land use, and
building code requirements for industrial facilities.
* * * * *
16. Part 37 is added to read as follows:
PART 37--PHYSICAL PROTECTION OF CATEGORY 1 AND CATEGORY 2
QUANTITIES OF RADIOACTIVE MATERIAL
Subpart A--General Provisions
Sec.
37.1 Purpose.
37.3 Scope.
37.5 Definitions.
37.7 Communications.
37.9 Interpretations.
37.11 Specific exemptions.
37.13 Information collection requirements: OMB approval.
Subpart B--Background Investigations and Access Control Program
37.21 Personnel access authorization requirements for category 1 or
category 2 quantities of radioactive material.
37.23 Access authorization program requirements.
37.25 Background investigations.
37.27 Requirements for criminal history records checks of
individuals granted unescorted access to category 1 or category 2
quantities of radioactive material.
37.29 Relief from fingerprinting, identification, and criminal
history records checks and other elements of
[[Page 33932]]
background investigations for designated categories of individuals
permitted unescorted access to certain radioactive materials or
other property.
37.31 Protection of information.
37.33 Access authorization program review.
Subpart C--Physical Protection Requirements During Use
37.41 Security program.
37.43 General security program requirements.
37.45 LLEA coordination and notification.
37.47 Security zones.
37.49 Monitoring, detection, and assessment.
37.51 Maintenance, testing, and calibration.
37.53 Requirements for mobile devices.
37.55 Security program review.
37.57 Reporting of events.
Subpart D--Physical Protection in Transit
37.71 Additional requirements for transfer of category 1 and
category 2 quantities of radioactive material.
37.73 Applicability of physical protection of category 1 and
category 2 quantities of radioactive material during transit.
37.75 Preplanning and coordination of shipment of category 1 or
category 2 quantities of radioactive material.
37.77 Advance notification of shipment of category 1 quantities of
radioactive material.
37.79 Requirements for physical protection of category 1 and
category 2 quantities of radioactive material during shipment.
37.81 Reporting of events.
Subpart E--[Reserved]
Subpart F--Records
37.101 Form of records.
37.103 Record retention.
Subpart G--Enforcement
37.105 Inspections.
37.107 Violations.
37.109 Criminal penalties.
Appendix A to Part 37--Category 1 and Category 2 Radioactive
Materials
Authority: Secs. 53, 81, 161, 182, 183, 68 Stat. 935, 953, 954,
as amended (42 U.S.C. 2111, 2201, 2232, 2233); sec. 223 (42 U.S.C.
2273); sec 234, 83 Stat. 445, as amended; sec. 147, 149 (42 U.S.C.
2133, 2134, 2167, 2168, 2169)
Subpart A--General Provisions
Sec. 37.1 Purpose.
This part has been established to provide the requirements for the
physical protection program for any licensee that is authorized to
possess category 1 or category 2 quantities of radioactive material
listed in Appendix A to this part. These requirements provide
reasonable assurance of the security of category 1 or category 2
quantities of radioactive material by protecting these materials from
theft or diversion. Specific requirements for access to material, use
of material, transfer of material, and transport of material are
included. No provision of this part authorizes possession of licensed
material.
Sec. 37.3 Scope.
(a) Subpart B to this part applies to any person who, under the
regulations in this chapter, is authorized to possess or use at any
site or contiguous sites subject to the control by the licensee,
category 1 or category 2 quantities of radioactive material.
(b) Subpart C to this part applies to any person who, under the
regulations in this chapter, is authorized to possess or use at any
site or contiguous sites subject to the control by the licensee,
category 1 or category 2 quantities of radioactive material.
(c) Subpart D applies to any person who, under the regulations of
this chapter, imports, exports, transports, or delivers to a carrier
for transport in a single shipment, category 1 or category 2 quantities
of radioactive material.
Sec. 37.5 Definitions.
As used in this part:
Access control means a system for allowing only approved
individuals to have unescorted access to the security zone and for
ensuring that all other individuals are subject to escorted access.
Act means the Atomic Energy Act of 1954 (68 Stat. 919), including
any amendments thereto.
Aggregated means accessible by the breach of a common physical
barrier, whether the material made accessible is a single sealed
source, multiple sealed sources, or multiple sources of bulk
radioactive material.
Agreement State means any state with which the Atomic Energy
Commission or the Nuclear Regulatory Commission has entered into an
effective agreement under subsection 274b. of the Act. Non-agreement
State means any other State.
Approved individual means an individual whom the licensee has
determined to be trustworthy and reliable in accordance with subpart B
of this part and who has completed the training required by Sec.
37.43(c).
Background investigation means the investigation conducted by a
licensee or applicant to support the determination of trustworthiness
and reliability.
Becquerel (Bq) means one disintegration per second.
Byproduct material means--(1) Any radioactive material (except
special nuclear material) yielded in, or made radioactive by, exposure
to the radiation incident to the process of producing or using special
nuclear material;
(2) The tailings or wastes produced by the extraction or
concentration of uranium or thorium from ore processed primarily for
its source material content, including discrete surface wastes
resulting from uranium solution extraction processes. Underground ore
bodies depleted by these solution extraction operations do not
constitute ``byproduct material'' within this definition;
(3)(i) Any discrete source of radium-226 that is produced,
extracted, or converted after extraction, before, on, or after August
8, 2005, for use for a commercial, medical, or research activity; or
(ii) Any material that--
(A) Has been made radioactive by use of a particle accelerator; and
(B) Is produced, extracted, or converted after extraction, before,
on, or after August 8, 2005, for use for a commercial, medical, or
research activity; and
(4) Any discrete source of naturally occurring radioactive
material, other than source material, that--
(i) The Commission, in consultation with the Administrator of the
Environmental Protection Agency, the Secretary of Energy, the Secretary
of Homeland Security, and the head of any other appropriate Federal
agency, determines would pose a threat similar to the threat posed by a
discrete source of radium-226 to the public health and safety or the
common defense and security; and
(ii) Before, on, or after August 8, 2005, is extracted or converted
after extraction for use in a commercial, medical, or research
activity.
Category 1 quantity of radioactive material means a quantity of
radioactive material meeting or exceeding the category 1 threshold in
Table 1 of Appendix A to this part. The quantity is calculated by
adding the sum of ratios of the total activity of each radionuclide to
the category 1 threshold for that radionuclide. If the ratio is equal
to or exceeds 1, the quantity would be considered a category 1
quantity. Category 1 quantities of radioactive material do not include
the radionuclides contained in irradiated or mixed oxide fuel.
Category 2 quantity of radioactive material means a quantity of
radioactive material meeting or exceeding the category 2 threshold but
less than the category 1 threshold in Table 1 of Appendix A to this
part. The quantity is calculated by adding the sum of ratios of the
total activity of each radionuclide to the category 2 threshold for
that radionuclide. If the ratio is equal to or exceeds 1, the quantity
would be considered a category 2 quantity. Category 2 quantities of
radioactive
[[Page 33933]]
material do not include the radionuclides contained in irradiated or
mixed oxide fuel.
Commission means the Nuclear Regulatory Commission or its duly
authorized representatives.
Curie means that amount of radioactive material which disintegrates
at the rate of 37 billion atoms per second.
Diversion means the unauthorized movement of radioactive material
subject to this part to a location different from the material's
authorized destination inside or outside of the site at which the
material is used or stored.
Escorted access means accompaniment while in a security zone by an
approved individual who maintains line-of-sight surveillance at all
times over an individual who is not approved for unescorted access.
Fingerprint orders means the orders issued by the U.S. Nuclear
Regulatory Commission or the legally binding requirements issued by
Agreement States that require fingerprints and criminal history records
checks for individuals with unescorted access to category 1 and
category 2 quantities of radioactive material or Safeguards
Information.
Government agency means any executive department, commission,
independent establishment, corporation, wholly or partly owned by the
United States of America which is an instrumentality of the United
States, or any board, bureau, division, service, office, officer,
authority, administration, or other establishment in the executive
branch of the Government.
Isolation means protection of category 1 or category 2 quantities
of radioactive material by allowing access to security zones only
through established access control points.
License, except where otherwise specified, means a license for
byproduct material issued pursuant to the regulations in parts 30
through 36 and 39 of this chapter;
License issuing authority means the licensing agency that issued
the license, i.e. the U.S. Nuclear Regulatory Commission or the
appropriate agency of an Agreement State;
Local law enforcement agency (LLEA) means a government entity that
has authority to make arrests and the capability to provide an armed
response in locations where licensed category 1 or category 2
quantities of radioactive material are used, stored, or transported.
Lost or missing licensed material means licensed material whose
location is unknown. It includes material that has been shipped but has
not reached its destination and whose location cannot be readily traced
in the transportation system.
Mobile device means a piece of equipment containing licensed
radioactive material that is either mounted on wheels or casters, or
otherwise equipped for moving without a need for disassembly or
dismounting; or designed to be hand carried. Mobile devices do not
include stationary equipment installed in a fixed location.
Movement control center means an operations center that is remote
from transport activity and that maintains position information on the
movement of radioactive material, receives reports of attempted attacks
or thefts, provides a means for reporting these and other problems to
appropriate agencies and can request and coordinate appropriate aid.
No-later-than arrival time means the date and time that the
shipping licensee and receiving licensee have established as the time
at which an investigation will be initiated if the shipment has not
arrived at the receiving facility. The no-later-than-arrival time may
not be more than 2 hours after the estimated arrival time for shipments
of category 1 quantities of radioactive material. The no-later-than-
arrival time may not be more than 4 hours after the estimated arrival
time for shipments of category 2 quantities of radioactive material.
Person means--
(1) Any individual, corporation, partnership, firm, association,
trust, estate, public or private institution, group, Government agency
other than the Commission or the Department of Energy (except that the
Department shall be considered a person within the meaning of the
regulations in 10 CFR chapter I to the extent that its facilities and
activities are subject to the licensing and related regulatory
authority of the Commission under section 202 of the Energy
Reorganization Act of 1974 (88 Stat. 1244), the Uranium Mill Tailings
Radiation Control Act of 1978 (92 Stat. 3021), the Nuclear Waste Policy
Act of 1982 (96 Stat. 2201), and section 3(b)(2) of the Low-Level
Radioactive Waste Policy Amendments Act of 1985 (99 Stat. 1842)), any
State or any political subdivision of or any political entity within a
State, any foreign government or nation or any political subdivision of
any such government or nation, or other entity; and
(2) Any legal successor, representative, agent, or agency of the
foregoing.
Reviewing official means the individual who shall make the
trustworthiness and reliability determination of an individual to
determine whether the individual may have, or continue to have,
unescorted access to the category 1 or category 2 quantities of
radioactive materials that are possessed by the licensee.
Sabotage means deliberate damage, with malevolent intent, to a
category 1 or category 2 quantity of radioactive material, a device
that contains a category 1 or category 2 quantity of radioactive
material, or the components of the security system.
Safe haven means 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.
Security zone means any temporary or permanent area determined and
established by the licensee for the physical protection of category 1
or category 2 quantities of radioactive material.
State means a State of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American
Samoa, and the Commonwealth of the Northern Mariana Islands.
Telemetric position monitoring system means a data transfer system
that captures information by instrumentation and/or measuring devices
about the location and status of a transport vehicle or package between
the departure and destination locations.
Temporary job site means, for the purposes of this part, a location
where category 1 or category 2 quantities of radioactive material may
be used or stored other than a location of use that is specifically
identified on the license.
Trustworthiness and reliability are characteristics of an
individual considered dependable in judgment, character, and
performance, such that unescorted access to category 1 or category 2
quantities of radioactive material by that individual does not
constitute an unreasonable risk to the public health and safety or
common defense and security. A determination of trustworthiness and
reliability for this purpose is based upon the results from a
background investigation.
Unescorted access means solitary access to category 1 or category 2
quantities of radioactive material granted to an approved individual.
Unescorted access includes solitary access to sufficient quantities of
radioactive material such that an individual could successfully
accumulate lesser quantities of material into a category 1 or category
2 quantity.
United States, when used in a geographical sense, includes Puerto
Rico and all territories and possessions of the United States.
[[Page 33934]]
Sec. 37.7 Communications.
Except where otherwise specified or covered under the regional
licensing program as provided in Sec. 30.6(b), all communications and
reports concerning the regulations in this part may be sent as follows:
(a) By mail addressed to: Attn: Document Control Desk; Director,
Office of Nuclear Reactor Regulation; Director, Office of New Reactors;
Director, Office of Nuclear Material Safety and Safeguards; Director,
Office of Federal and State Materials and Environmental Management
Programs; or Director, Division of Nuclear Security, Office of Nuclear
Security and Incident Response, as appropriate, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001;
(b) By hand delivery to the NRC's offices at 11555 Rockville Pike,
Rockville, Maryland;
(c) Where practicable, by electronic submission, for example,
Electronic Information Exchange, or CD-ROM. Electronic submissions must
be made in a manner that enables the NRC to receive, read,
authenticate, distribute, and archive the submission, and process and
retrieve it a single page at a time. Detailed guidance on making
electronic submissions can be obtained by visiting the NRC's Web site
at http://www.nrc.gov/site-help/e-submittals.html, by e-mail to
[email protected]; or by writing the Office of Information
Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001. The guidance discusses, among other topics, the formats the NRC
can accept, the use of electronic signatures, and the treatment of
nonpublic information.
Sec. 37.9 Interpretations.
Except as specifically authorized by the Commission in writing, no
interpretations of the meaning of the regulations in this part by any
officer or employee of the Commission other than a written
interpretation by the General Counsel will be recognized as binding
upon the Commission.
Sec. 37.11 Specific exemptions.
(a) The Commission may, upon application of any interested person
or upon its own initiative, grant such exemptions from the requirements
of the regulations in this part as it determines are authorized by law
and will not endanger life or property or the common defense and
security, and are otherwise in the public interest.
(b) Any licensee's activities are exempt from the requirements of
this part to the extent that its activities are covered under the
physical protection requirements of part 73 of this chapter.
Sec. 37.13 Information collection requirements: OMB approval.
(a) The Nuclear Regulatory Commission has submitted the information
collection requirements contained in this part to the Office of
Management and Budget (OMB) for approval as required by the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.). The NRC may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
OMB has approved the information collection requirements contained in
this part under control number 3150-xxxx.
(b) The approved information collection requirements contained in
this part appear in Sec. Sec. 37.21, 37.23, 37.25, 37.27, 37.29,
37.31, 37.33, 37.41, 37.43, 37.45, 37.49, 37.55, 37.57, 37.71, 37.75,
37.77, 37.79, and 37.81.
Subpart B--Background Investigations and Access Authorization
Program
Sec. 37.21 Personnel access authorization requirements for category 1
or category 2 quantities of radioactive material.
(a) General.
(1) Each licensee that is authorized to possess category 1 or
category 2 quantities of radioactive material at a facility shall
comply with the requirements of this subpart, as appropriate.
(2) Each licensee shall establish, implement, and maintain its
access authorization program in accordance with the requirements of
this subpart.
(3) By (30 days after the final rule is published in the Federal
Register), each licensee that is authorized to possess a category 1 or
category 2 quantity of radioactive material on (effective date of this
rule) shall submit information concerning the licensee's compliance
with the requirements of this subpart to the appropriate NRC regional
office specified in Sec. 30.6.
(4) Each licensee that would become newly subject to the
requirements of this subpart upon application for modification of its
license shall implement the requirements of this subpart, as
appropriate, before taking possession of category 1 or category 2
quantities of radioactive material.
(b) General performance objective. The licensee's access
authorization program must ensure that the individuals specified in
paragraph (c)(1) of this section are trustworthy and reliable such that
they do not constitute an unreasonable risk to public health and safety
or the common defense and security.
(c) Applicability.
(1) Licensees shall subject the following individuals to an access
authorization program:
(i) Any individual whose assigned duties require unescorted access
to category 1 or category 2 quantities of radioactive material;
(ii) Vehicle drivers and accompanying individuals for road
shipments of category 1 quantities of radioactive material;
(iii) Movement control center personnel for shipments of category 1
quantities of radioactive material;
(iv) Any individual whose assigned duties provide access to
shipment information that is considered to be Safeguards Information-
Modified Handling related to category 1 quantities of radioactive
material; and
(v) Reviewing officials.
(2) Licensees need not subject the categories of individuals listed
in Sec. 37.29(a) through (m) to the investigation elements of the
access authorization program.
(3) Licensees shall approve for unescorted access to category 1 or
category 2 quantities of radioactive material only those individuals
with job duties that require unescorted access to category 1 or
category 2 quantities of radioactive material.
Sec. 37.23 Access authorization program requirements.
(a) Granting unescorted access authorization.
(1) Licensees shall implement the requirements of this subpart for
granting initial or reinstated unescorted access authorization.
(2) Individuals who have been determined to be trustworthy and
reliable shall also complete the security training required by Sec.
37.43(c) before being allowed unescorted access to category 1 or
category 2 quantities of radioactive material.
(b) Reviewing officials.
(1) Each licensee shall nominate one or more individuals to be
reviewing officials and shall submit the names of these individuals and
their fingerprints to the NRC for a criminal history records check. The
nominated individuals shall undergo the background investigation
aspects that are required by Sec. 37.25(a)(2) through (a)(9) before
their names and fingerprints are submitted to the NRC. The fingerprints
of the nominated reviewing official must be taken by a law enforcement
agency, Federal or State agencies that provide finger printing services
to the public, or commercial fingerprinting services
[[Page 33935]]
authorized by a State to take fingerprints.
(2) Reviewing officials must be required to have unescorted access
to category 1 or category 2 quantities of radioactive materials or
access to safeguards information, if the licensee possesses safeguards
information, as part of their job duties.
(3) Reviewing officials cannot approve other individuals to act as
reviewing officials.
(4) Reviewing officials nominated by the licensee and approved by
the NRC are the only individuals who may make trustworthiness and
reliability determinations and permit unescorted access to category 1
or category 2 quantities of radioactive materials possessed by the
licensee.
(5) Reviewing officials may not make any trustworthiness and
reliability determinations or permit any individual to have unescorted
access until they have been approved as a reviewing official by the
NRC.
(6) Individuals nominated as reviewing officials who receive a
preliminary denial from the NRC have the right to complete, correct,
and explain information obtained through the background investigation
prior to a final adverse determination.
(c) Informed consent.
(1) Licensees may not initiate a background investigation without
the informed and signed consent of the subject individual. This consent
must include authorization to share personal information with other
individuals or organizations as necessary to complete the background
investigation. Before a final adverse determination, the licensee shall
provide the individual with an opportunity to correct any inaccurate or
incomplete information that is developed during the background
investigation. Licensees do not need to obtain signed consent from
those individuals that have undergone a background investigation under
the Fingerprint Orders. A signed consent must be obtained prior to any
reinvestigation.
(2) The subject individual may withdraw his or her consent at any
time. Licensees shall inform the individual that:
(i) If an individual withdraws his or her consent, the licensee may
not initiate any elements of the background investigation that were not
in progress at the time the individual withdrew his or her consent; and
(ii) The withdrawal of consent for the background investigation is
sufficient cause for denial or termination of unescorted access
authorization.
(d) Personal history disclosure. Any individual who is applying for
unescorted access authorization shall disclose the personal history
information that is required by the licensee's access authorization
program for the reviewing official to make a determination of the
individual's trustworthiness and reliability. Refusal to provide, or
the falsification of, any personal history information required by this
subpart is sufficient cause for denial or termination of unescorted
access.
(e) Determination basis.
(1) The reviewing official shall determine whether to grant, deny,
unfavorably terminate, maintain, or administratively withdraw an
individual's unescorted access authorization based on an evaluation of
all of the information required by this subpart. The reviewing official
may terminate or administratively withdraw an individual's unescorted
access authorization based on information obtained after the background
investigation has been completed and the individual granted unescorted
access authorization.
(2) The reviewing official may not permit any individual to have
unescorted access until the reviewing official has evaluated all of the
information required by this subpart and determined that the individual
is trustworthy and reliable. The reviewing official may deny unescorted
access to any individual based on disqualifying information obtained at
any time during the background investigation.
(3) The licensee shall document the basis for concluding whether or
not there is reasonable assurance that an individual granted unescorted
access to category 1 or category 2 quantities of radioactive material
is trustworthy and reliable. Licensees shall maintain a list of persons
currently approved for unescorted access authorization and a list of
those individuals that have been denied unescorted access
authorization. When a licensee determines that a person no longer
requires unescorted access, the licensee shall immediately remove the
person from the approved list and take measures to ensure that the
individual is unable to obtain unescorted access.
(f) Procedures.
(1) Licensees shall develop, implement, and maintain written
procedures for conducting background investigations for persons who are
applying for unescorted access authorization to category 1 or category
2 quantities of radioactive material.
(2) Licensees shall develop, implement, and maintain written
procedures for updating background investigations for persons who are
applying for reinstatement of unescorted access authorization.
(3) Licensees shall develop, implement, and maintain written
procedures to ensure that persons who have been denied unescorted
access authorization are not allowed unescorted access to category 1 or
category 2 quantities of radioactive material.
(4) Licensees shall develop, implement, and maintain written
procedures for the notification of individuals who are denied
unescorted access. The procedures must include provisions for the
review, at the request of the affected individual, of a denial or
termination of unescorted access authorization. The procedure must
contain a provision to ensure that the individual is informed of the
grounds for the denial or termination of unescorted access
authorization and allow the individual an opportunity to provide
additional relevant information.
(g) Right to correct and complete information.
(1) Prior to any final adverse determination, licensees shall
provide each individual subject to this subpart with the right to
complete, correct, and explain information obtained as a result of the
licensee's background investigation. Confirmation of receipt by the
individual of this notification must be maintained by the licensee for
a period of 1 year from the date of the notification.
(2) If after reviewing their criminal history record an individual
believes that it is incorrect or incomplete in any respect and wishes
to change, correct, update, or explain anything in the record, the
individual may initiate challenge procedures. These procedures include
direct application by the individual challenging the record to the law
enforcement agency that contributed the questioned information or a
direct challenge as to the accuracy or completeness of any entry on the
criminal history record to the Federal Bureau of Investigation,
Criminal Justice Information Services (CJIS) Division, Attn: SCU, Mod.
D-2, 1000 Custer Hollow Road, Clarksburg, WV 26306 as set forth in 28
CFR 16.30 through 16.34. In the latter case, the Federal Bureau of
Investigation (FBI) will forward the challenge to the agency that
submitted the data, and will request that the agency 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
[[Page 33936]]
in accordance with the information supplied by that agency. Licensees
must provide at least 10 days for an individual to initiate action to
challenge the results of an FBI criminal history records check after
the record being made available for his or her review. The licensee may
make a final adverse determination based upon the criminal history
records only after receipt of the FBI's confirmation or correction of
the record.
(h) Records.
(1) The licensee shall retain documentation regarding the
trustworthiness and reliability of individual employees for 5 years
from the date the individual no longer requires unescorted access to
category 1 or category 2 quantities of radioactive material.
(2) The licensee shall retain a copy of the current access
authorization program procedures as a record for 5 years after the
procedure is no longer needed or until the Commission terminates the
license, if the license is terminated before the end of the retention
period. If any portion of the procedure is superseded, the licensee
shall retain the superseded material for 5 years after the record is
superseded.
(3) The licensee shall retain the list of persons approved for
unescorted access authorization and the list of those individuals that
have been denied unescorted access authorization for 5 years after the
list is superseded or replaced.
Sec. 37.25 Background investigations.
(a) Initial Investigation. Before granting an individual unescorted
access to category 1 or category 2 quantities of radioactive material,
licensees shall complete a background investigation of the individual
seeking unescorted access authorization. The scope of the investigation
must encompass at least the 10 years preceding the date of the
background investigation or since the individual's eighteenth birthday,
whichever is shorter. The background investigation must include at a
minimum:
(1) Fingerprinting and an FBI identification and criminal history
records check in accordance with Sec. 37.27 or part 73 of this
chapter;
(2) Verification of true identity. Licensees shall verify the true
identity of the individual who is applying for unescorted access
authorization to ensure that the applicant is who he or she claims to
be. A licensee shall review official identification documents (e.g.,
driver's license; passport; government identification; certificate of
birth issued by the state, province, or country of birth) and compare
the documents to personal information data provided by the individual
to identify any discrepancy in the information. Licensees shall
document the type, expiration, and identification number of the
identification document, or maintain a photocopy of identifying
documents on file in accordance with Sec. 37.31. Licensees shall
certify in writing that the identification was properly reviewed, and
shall maintain the certification and all related documents for review
upon inspection;
(3) Employment history evaluation. Licensees shall complete an
employment history evaluation. Licensees shall verify the individual's
employment with each previous employer for the most recent 10 years
before the date of application;
(4) Verification of education. Licensees shall verify that the
individual participated in the education process during the claimed
period;
(5) Military history verification. Licensees shall verify that the
individual was in the military during the claimed period;
(6) Credit history evaluation. Licensees shall evaluate the full
credit history of the individual who is applying for unescorted access
authorization. A full credit history evaluation must include, but is
not limited to, a review and evaluation of all of the information that
is provided by a national credit-reporting agency about the
individual's credit history. For individuals including foreign
nationals and United States citizens who have resided outside the
United States and do not have established credit history that covers at
least the most recent 7 years in the United States, the licensee must
document all attempts to obtain information regarding the individual's
credit history and financial responsibility from some relevant entity
located in that other country or countries;
(7) Criminal history review. Reviewing officials shall obtain from
local criminal justice resources the criminal history records of the
individual who is applying for unescorted access authorization and
evaluate the information to determine whether the individual has a
record of local criminal activity that may adversely impact his or her
trustworthiness and reliability. The scope of the applicant's local
criminal history review must cover all residences of record for the 10-
year period preceding the date of the application for unescorted access
authorization;
(8) Character and reputation determination. Licensees shall
complete reference checks to determine the character and reputation of
the individual who has applied for unescorted access authorization.
Reference checks may not be conducted with any person who is known to
be a close member of the individual's family, including but not limited
to the individual's spouse, parents, siblings, or children, or any
individual who resides in the individual's permanent household.
Reference checks under this subpart must be limited to whether the
individual has been and continues to be trustworthy and reliable;
(9) The licensee shall also, to the extent possible, obtain
independent information to corroborate that provided by the individual
(e.g., seek references not supplied by the individual); and
(10) If a previous employer, educational institution, or any other
entity with which the individual claims to have been engaged fails to
provide information or indicates an inability or unwillingness to
provide information within a time frame deemed appropriate by the
licensee but at least after 10 business days of the request, the
licensee shall:
(i) Document the refusal, unwillingness, or inability in the record
of investigation; and
(ii) Obtain a confirmation of employment, educational enrollment
and attendance, or other form of engagement claimed by the individual
from at least one alternate source that has not been previously used.
(b) Grandfathering. Individuals who have been determined
trustworthy and reliable for unescorted access to category 1 or
category 2 quantities of radioactive material under the Fingerprint
Orders do not need to meet the background investigation elements in
this subpart until the 10-year re-investigation.
(c) Reinvestigations. Licensees shall conduct a criminal history
update and credit history reevaluation every 10 years for any
individual with unescorted access to category 1 or category 2
quantities of radioactive material. The reinvestigations must be
completed within 10 years of the date on which these elements were last
completed and must address the 10 years following the previous
investigation.
Sec. 37.27 Requirements for criminal history records checks of
individuals granted unescorted access to category 1 or category 2
quantities of radioactive material.
(a) General performance objective and requirements.
(1) Except for those individuals listed in Sec. 37.29, each
licensee subject to the
[[Page 33937]]
provisions of this subpart shall fingerprint each individual who is to
be permitted unescorted access to category 1 or category 2 quantities
of radioactive material. Licensees shall transmit all collected
fingerprints to the Commission for transmission to the FBI. The
licensee shall use the information received from the FBI as part of the
required background investigation to determine whether to grant or deny
further unescorted access to category 1 or category 2 quantities of
radioactive materials for that individual.
(2) The licensee shall notify each affected individual that his or
her fingerprints will be used to secure a review of their criminal
history record, and shall inform him or her of the procedures for
revising the record or adding explanations to the record.
(3) Fingerprinting is not required if a licensee is reinstating an
individual's unescorted access authorization to category 1 or category
2 quantities of radioactive materials if:
(i) The individual returns to the same facility that granted
unescorted access authorization within 365 days of the termination of
his or her unescorted access authorization; and
(ii) The previous access was terminated under favorable conditions.
(4) Fingerprints do not need to be taken if an individual who is an
employee of a licensee, contractor, manufacturer, or supplier has been
granted unescorted access to category 1 or category 2 quantities of
radioactive material or access to safeguards information by another
licensee, based upon a background investigation conducted under this
subpart, the Fingerprint Orders, or part 73 of this chapter. An
existing criminal history records check file may be transferred to the
licensee asked to grant unescorted access in accordance with the
provisions of Sec. 37.31(c).
(5) Licensees shall review the criminal history records as part of
the trustworthiness and reliability evaluation for each individual
seeking unescorted access authorization to category 1 or category 2
quantities of radioactive material.
(6) Licensees shall use the information obtained as part of a
criminal history records check solely for the purpose of determining an
individual's suitability for unescorted access authorization to
category 1 or category 2 quantities of radioactive materials or access
to Safeguards Information.
(b) Prohibitions.
(1) Licensees may not base a final determination to deny an
individual unescorted access authorization to category 1 or category 2
quantities of radioactive material solely on the basis of information
received from the FBI involving:
(i) An arrest more than 1 year old for which there is no
information of the disposition of the case; or
(ii) An arrest that resulted in dismissal of the charge or an
acquittal.
(2) Licensees may not use information received from a criminal
history records check obtained under this subpart 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 licensees
use the information in any way that would discriminate among
individuals on the basis of race, religion, national origin, gender, or
age.
(c) Procedures for processing of fingerprint checks.
(1) For the purpose of complying with this subpart, licensees shall
use an appropriate method listed in Sec. 37.7 to submit to the Office
of Administration, Division of Facilities and Security, Mail Stop TWB-
05 B32M, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0012,
one completed, legible standard fingerprint card (Form FD-258,
ORIMDNRCOOOZ), electronic fingerprint scan or, where practicable, other
fingerprint record for each individual requiring unescorted access to
category 1 or category 2 quantities of radioactive material. 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]. Guidance on submitting electronic fingerprints
can be found at http://www.nrc.gov/site-help/e-submittals.html.
(2) Fees for the processing of fingerprint checks are due upon
application. Licensees shall submit payment with the application for
the processing of fingerprints through 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 Security Branch, Division of Facilities and Security at
(301) 492-3531). Combined payment for multiple applications is
acceptable. The Commission publishes the amount of the fingerprint
check application fee on the NRC public Web site. (To find the current
fee amount, go to the Electronic Submittals page at http://www.nrc.gov/site-help/e-submittals.html and select the link for the Criminal
History Program.)
(3) 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 records checks.
Sec. 37.29 Relief from fingerprinting, identification, and criminal
history records checks and other elements of background investigations
for designated categories of individuals permitted unescorted access to
certain radioactive materials or other property.
Fingerprinting, and the identification and criminal history records
checks required by section 149 of the Atomic Energy Act of 1954, as
amended, and other elements of the background investigation are not
required for the following individuals prior to granting unescorted
access to category 1 or category 2 quantities of radioactive materials:
(a) An employee of the Commission or of the Executive Branch of the
U.S. Government who has undergone fingerprinting for a prior U.S.
Government criminal history records check;
(b) A Member of Congress;
(c) An employee of a member of Congress or Congressional committee
who has undergone fingerprinting for a prior U.S. Government criminal
history records check;
(d) The Governor of a State or his or her designated State employee
representative;
(e) Federal, State, or local law enforcement personnel;
(f) State Radiation Control Program Directors and State Homeland
Security Advisors or their designated State employee representatives;
(g) Agreement State employees conducting security inspections on
behalf of the NRC under an agreement executed under section 274.i. of
the Atomic Energy Act;
(h) Representatives of the International Atomic Energy Agency
(IAEA) engaged in activities associated with the U.S./IAEA Safeguards
Agreement who have been certified by the NRC;
(i) Emergency response personnel who are responding to an
emergency;
(j) Commercial vehicle drivers for road shipments of category 2
quantities of radioactive material;
(k) An individual who has had a favorably adjudicated U.S.
Government criminal history records check within the last 5 years,
under a comparable U.S. Government program involving fingerprinting and
an FBI identification and criminal history records check (e.g. National
Agency Check, Transportation Worker Identification Credentials
[[Page 33938]]
(TWIC) under 49 CFR 1572, Bureau of Alcohol Tobacco Firearms and
Explosives background check and clearances under 27 CFR 555, Health and
Human Services security risk assessments for possession and use of
select agents and toxins under 42 CFR 73, Hazardous Material security
threat assessment for hazardous material endorsement to commercial
drivers license under 49 CFR 1572, Customs and Border Patrol's Free and
Secure Trade (FAST) Program) provided that he or she makes available
the appropriate documentation. Written confirmation from the agency/
employer that granted the Federal security clearance or reviewed the
criminal history records check must be provided to the licensee. The
licensee shall retain this documentation for a period of 5 years from
the date the individual no longer requires unescorted access to
category 1 or category 2 quantities of radioactive material;
(l) Any individual who has an active Federal security clearance,
provided that he or she makes available the appropriate documentation.
Written confirmation from the agency/employer that granted the Federal
security clearance or reviewed the criminal history records check must
be provided to the licensee. The licensee shall retain this
documentation for a period of 5 years from the date the individual no
longer requires unescorted access to category 1 or category 2
quantities of radioactive material; and
(m) Any individual employed by a service provider licensee for
which the service provider licensee has conducted the background
investigation for the individual and approved the individual for
unescorted access to category 1 or category 2 quantities of radioactive
material. Written verification from the service provider must be
provided to the licensee. The licensee shall retain the documentation
for a period of 5 years from the date the individual no longer requires
unescorted access to category 1 or category 2 quantities of radioactive
material.
Sec. 37.31 Protection of information.
(a) Each licensee who obtains background information on an
individual under this subpart shall establish and maintain a system of
files and written procedures for protection of the record and the
personal information from unauthorized disclosure.
(b) The licensee may not disclose the record or personal
information collected and maintained to persons other than the subject
individual, his or her representative, or to those who have a need to
have access to the information in performing assigned duties in the
process of granting or denying unescorted access to category 1 or
category 2 quantities of radioactive material or Safeguards
Information. No individual authorized to have access to the information
may redisseminate the information to any other individual who does not
have a need to know.
(c) The personal information obtained on an individual from a
background investigation may be provided to another licensee:
(1) Upon the individual's written request to the licensee holding
the data to redisseminate the information contained in his or her file;
and
(2) The recipient licensee verifies information such as name, date
of birth, social security number, gender, and other applicable physical
characteristics.
(d) The licensee shall make background investigation records
obtained under this subpart available for examination by an authorized
representative of the NRC to determine compliance with the regulations
and laws.
(e) The licensee shall retain all fingerprint and criminal history
records (including data indicating no record) received from the FBI, or
a copy of these records if the individual's file has been transferred,
on an individual for 5 years from the date the individual no longer
requires unescorted access to category 1 or category 2 quantities of
radioactive material.
Sec. 37.33 Access authorization program review.
(a) Each licensee shall be responsible for the continuing
effectiveness of the access authorization program. Each licensee shall
ensure that access authorization programs are reviewed to confirm
compliance with the requirements of this subpart and that comprehensive
actions are taken to correct any noncompliance that is identified. The
review program shall evaluate all program performance objectives and
requirements. Each licensee shall ensure that its entire access program
is reviewed at a frequency not to exceed 12 months.
(b) The results of the reviews, along with any recommendations,
must be documented. Each review report must identify conditions that
are adverse to the proper performance of the access authorization
program, the cause of the condition(s), and, when appropriate,
recommend corrective actions, and corrective actions taken. The
licensee shall review the findings and take any additional corrective
actions necessary to preclude repetition of the condition, including
reassessment of the deficient areas where indicated.
(c) Review records must be maintained for 5 years.
Subpart C--Physical Protection Requirements During Use
Sec. 37.41 Security program.
(a) Applicability.
(1) Each licensee that possesses an aggregated quantity of category
1 or category 2 radioactive material shall establish, implement, and
maintain a security program in accordance with the requirements of this
subpart.
(2) A licensee that is authorized to possess at least a category 2
quantity of radioactive material but does not possess an aggregated
quantity that equals or exceeds the category 2 threshold shall develop
a security program in accordance with the requirements of this subpart.
At least 90 days before a licensee aggregates radioactive material to a
quantity that equals or exceeds the category 2 threshold, the licensee
shall implement its security program. The licensee shall provide
written notification to the NRC regional office specified in Sec. 30.6
of this chapter that the licensee is now implementing its security
program as follows:
(i) If the aggregated quantity of radioactive material fluctuates
above and below the category 2 threshold more than once in a 90-day
period and will continue to do so indefinitely, the licensee need only
notify the NRC the first time the security program is to be
implemented. This notification must inform the NRC that the licensee
aggregates material at or above the category 2 threshold from time to
time and that the licensee will implement the security program whenever
the material is aggregated at or above the category 2 threshold. If the
security program is discontinued for more than 90 days, then the
licensee shall notify the NRC the next time the security program is to
be implemented.
(ii) If the aggregated quantity of radioactive material does not
fluctuate above and below the category 2 threshold more than once in a
90-day period, the licensee shall notify the NRC each time a previously
discontinued or new security program is to be implemented.
(b) General performance objective. Each licensee shall establish,
implement, and maintain a security program that is designed to monitor,
and without delay detect, assess, and respond to an actual or attempted
unauthorized access to category 1 or
[[Page 33939]]
category 2 quantities of radioactive material.
(c) Program features. Each licensee's security program must include
the program features, as appropriate, described in Sec. Sec. 37.43,
37.45, 37.47, 37.49, 37.51, 37.53, and 37.55.
(d) Information submittal and notification. By (30 days after the
final rule is published in the Federal Register), each licensee that is
authorized to possess a category 1 or category 2 quantity of
radioactive material on the effective date of this regulation shall
submit information concerning the licensee's compliance with the
requirements of this subpart to the appropriate Regional Administrator.
Sec. 37.43 General security program requirements.
(a) Security plan.
(1) Each licensee subject to the requirements of this subpart shall
develop a written security plan. The purpose of the security plan is to
establish the licensee's overall security strategy to ensure the
integrated and effective functioning of the security program required
by this subpart. The security plan must at a minimum:
(i) Describe the measures and strategies used to implement the
requirements of this subpart;
(ii) Identify the security resources, equipment, and technology
used to satisfy the requirements of this subpart;
(iii) Describe any site-specific conditions that affect
implementation of Commission requirements; and
(iv) Describe the training by which individuals implementing the
security program will be informed of their responsibilities and of any
changes that may affect their ability to implement the security
program.
(2) The security plan must be reviewed and approved by the
individual with overall responsibility for the security program.
(3) A licensee shall revise its security plan as necessary to
ensure the effective implementation of Commission requirements. The
licensee shall ensure that:
(i) The revision has been reviewed and approved by the individual
with overall responsibility for the security program and licensee
management; and
(ii) The affected individuals are instructed on the revised plan
before the changes are implemented.
(4) The licensee shall retain a copy of the current security plan
as a record until the Commission terminates the license and, if any
portion of the plan is superseded, retain the superseded material for 5
years after the record is superseded.
(b) Implementing procedures.
(1) The licensee shall develop and maintain written procedures that
document how the requirements of this subpart and the security plan
will be met.
(2) The implementing procedures and revisions to these procedures
must be approved in writing by the individual with overall
responsibility for the security program.
(3) The licensee shall retain a copy of the current procedure as a
record until the Commission terminates the license and, if any portion
of the procedure is superseded, retain the superseded material for 5
years after the record is superseded.
(c) Training.
(1) Each licensee shall conduct training on the security plan to
ensure that those individuals responsible for implementing the security
plan possess and maintain the knowledge, skills, and abilities to carry
out their assigned duties and responsibilities effectively. The
training must include instruction in:
(i) The licensee's security program and procedures to secure
category 1 or category 2 quantities of radioactive material, and in the
purposes and functions of the security measures employed;
(ii) The responsibility to report promptly to the licensee any
condition that causes or may cause a violation of Commission
requirements;
(iii) The responsibility to report promptly to the local law
enforcement agency and licensee any actual or attempted theft,
sabotage, or diversion of category 1 or category 2 quantities of
radioactive material; and
(iv) The appropriate response to security alarms.
(2) In determining those individuals who shall be trained on the
security plan, the licensee shall consider each individual's assigned
activities during authorized use and response to potential situations
involving actual or attempted theft, diversion, or sabotage of category
1 or category 2 quantities of radioactive material. The extent of the
training must be commensurate with the individual's potential
involvement in the security of category 1 or category 2 quantities of
radioactive material as detailed in the licensee's security plan.
(3) Refresher training must be provided at a frequency not to
exceed 12 months and when significant changes have been made to the
security program. This training must include:
(i) Review of the training requirements of paragraph (c) of this
section, and any changes made since the last training;
(ii) Reports on any relevant security issues, problems, and lessons
learned;
(iii) Relevant results of NRC inspections; and
(iv) Relevant results of the licensee's program review and testing
and maintenance.
(4) The licensee shall maintain records of the initial and
refresher training for 5 years from the date of the training. The
training records must include dates of the training, topics covered, a
list of licensee personnel in attendance, and related information.
(d) Protection of information.
(1) Except as provided in paragraph (d)(8) of this section,
licensees authorized to possess category 1 or category 2 quantities of
radioactive material shall limit access to and unauthorized disclosure
of their security plan and implementing procedures.
(2) Efforts to limit access shall include the development,
implementation, and maintenance of written policies and procedures for
controlling access to, and for proper handling and protection against
unauthorized disclosure of, the security plan and implementing
procedures.
(3) Before granting an individual access to the security plan or
implementing procedures, licensees shall:
(i) Evaluate an individual's need to know the security plan or
implementing procedures; and
(ii) Complete a background investigation to determine the
individual's trustworthiness and reliability. A trustworthy and
reliability determination shall be conducted by the reviewing official
and shall include the background investigation elements contained in
Sec. 37.25(a)(2) through (a)(10). The Sec. 37.25(a)(1) fingerprinting
and criminal history records check requirements shall not be applied to
those individuals who do not require unescorted access to category 1 or
category 2 quantities of radioactive material.
(4) Licensees need not subject the following individuals to the
background investigation elements for protection of information:
(i) The categories of individuals listed in Sec. 37.29(a) through
(m); or
(ii) Security service provider employees, provided written
verification that the employee has been determined to be trustworthy
and reliable by the required background investigation in Sec.
37.25(a)(2) through (a)(10) has been provided by the security service
provider.
(5) The licensee shall document the basis for concluding that an
individual
[[Page 33940]]
is trustworthy and reliable and should be granted access to the
security plan or implementing procedures. Licensees shall maintain a
list of persons currently approved for access to the security plan or
implementing procedures. When a licensee determines that a person no
longer needs access to the security plan or implementing procedures,
the licensee shall immediately remove the person from the approved list
and take measures to ensure that the individual is unable to obtain the
security plan or implementing procedures.
(6) When not in use, the licensee shall store their security plan
and implementing procedures in a manner to prevent removal. Information
stored in non-removable electronic form must be password protected.
(7) The licensee shall retain as a record for 5 years after the
document is no longer needed:
(i) A copy of the information protection procedures; and
(ii) The list of individuals approved for access to the security
plan or implementing procedures.
(8) Licensees that possess safeguards information or safeguards
information-modified handling are subject to the requirements of Sec.
73.21 of this chapter, and shall protect any safeguards information or
safeguards information-modified handling in accordance with the
requirements of that section.
Sec. 37.45 LLEA coordination and notification.
(a) LLEA coordination.
(1) A licensee subject to this subpart shall provide information to
and coordinate to the extent practicable with an LLEA for responding to
threats to the licensee's facility, including any necessary armed
response. The information provided to the LLEA must include:
(i) A description of the facilities and radioactive materials
subject to this subpart;
(ii) A description of the licensee's security measures that have
been implemented to comply with this subpart;
(iii) A notification that the licensee will request a timely armed
response by the LLEA to any actual or attempted theft, sabotage, or
diversion of category 1 or category 2 quantities of material;
(iv) A request for information about the LLEA's capabilities to
provide a timely armed response taking into consideration the
description of the security measures provided in paragraph (a)(1)(ii)
of this section;
(v) A request to establish a written agreement with the LLEA that
describes the LLEA's commitments to provide a response in accordance
with this section;
(vi) A request to establish a means of direct communication with an
LLEA-designated point of contact for security emergencies involving
actual or attempted theft or sabotage of licensee materials;
(vii) A request that the LLEA notify the licensee whenever the
LLEA's contact information changes;
(viii) A request that the LLEA notify the licensee whenever the
LLEA's response capabilities become degraded or it becomes incapable of
providing a timely armed response; and
(ix) A request for information about the LLEA's willingness to
participate in drills and exercises.
(2) The licensee shall notify the appropriate NRC regional office
listed in Sec. 30.6(a)(2) of this chapter within three business days
if:
(i) The LLEA has not responded to the request for coordination
within 60 days of the coordination request; or
(ii) The LLEA notifies the licensee that the LLEA does not plan to
participate in coordination activities.
(3) The licensee shall document its efforts to coordinate with the
LLEA to provide a response to threats to the licensee's facility. The
licensee's documentation must include:
(i) Dates, times, and locations of meetings with the LLEA;
(ii) Licensee personnel present;
(iii) LLEA personnel present; and
(iv) Copies of any correspondence between the licensee and LLEA.
(4) The licensee shall coordinate with the LLEA at a frequency no
greater than 12 months, or when changes to the facility design or
operation adversely affect the potential vulnerability of the
licensee's material to theft, sabotage, or diversion. The coordination
activities shall include verification of contact information and
response capabilities.
(5) The licensee shall notify the appropriate NRC regional office
listed in Sec. 30.6(a)(2) of this chapter within three business days
after the licensee becomes aware of any applicable state or local
agency requirement that an initial response to an emergency involving
radioactive materials must be provided by other than armed LLEA
personnel.
(b) LLEA notification for temporary job sites.
(1) At least three business days prior to beginning work at
temporary job sites where the licensee will use or store category 1 or
category 2 quantities of radioactive material for more than seven
consecutive calendar days, the licensee shall provide advance written
notification to the appropriate LLEA. Advance notification must
include:
(i) An explanation that the licensee is required to provide this
notification to the LLEA in accordance with this section;
(ii) An explanation that the licensee will request an armed
response from the LLEA in the event of an actual or attempted theft,
sabotage, or diversion of category 1 or category 2 quantities of
radioactive material at the temporary job site;
(iii) Information on the quantities of radioactive material
involved and the potential hazards associated with loss of control of
the material;
(iv) Scheduled start date and expected duration of the licensee's
work requiring the use or storage of category 1 or category 2
quantities of radioactive materials at the temporary job site for which
this notice is provided;
(v) Address of the temporary job site, if available, or sufficient
directions to allow the LLEA to determine the location of the temporary
job site;
(vi) Names and contact information for licensee personnel expected
to be present at the temporary job site and responsible for the
security of category 1 or category 2 quantities of radioactive
material;
(vii) Names and contact information for other licensee personnel to
be contacted in an emergency or for additional information;
(viii) Names and contact information for the NRC Region responsible
for oversight of the licensee's activities at the temporary job site
that the LLEA may contact for information; and
(ix) A request that the LLEA confirm receipt of the notification.
(2) If an emergency or other unforeseen circumstance does not allow
the licensee to provide three business days written advance notice to
the LLEA, the licensee shall notify the LLEA as soon as possible via
telephone, facsimile, or e-mail.
(3) The licensee shall maintain documentation of all temporary job
site notifications sent to the LLEA and any confirmations provided by
the LLEA.
(c) Records. The licensee shall maintain records of its
coordination activities with any LLEA in the development of the
licensee's security plan, and copies of all documents and
correspondence provided to or received from any LLEA in accordance with
this section. Records of coordination activities at a temporary job
site must be maintained for a period of 5 years.
Sec. 37.47 Security zones.
(a) Licensees shall ensure that all aggregated category 1 and
category 2 quantities of radioactive material are used or stored within
licensee-
[[Page 33941]]
established security zones. Security zones may be permanent or
temporary.
(b) Temporary security zones must be established as necessary to
meet the licensee's transitory or intermittent business activities,
such as periods of maintenance, source delivery, and source
replacement.
(c) Security zones must, at a minimum, allow unescorted access only
to approved individuals through:
(1) Isolation of category 1 and category 2 quantities of
radioactive materials by the use of continuous physical barriers that
allow access to the security zone only through established access
control points; or
(2) Direct control of the security zone by approved individuals at
all times; or
(3) A combination of continuous physical barriers and direct
control.
(d) For category 1 quantities of radioactive material during
periods of maintenance, source receipt, preparation for shipment,
installation, or source removal or exchange, the licensee shall, at a
minimum, provide an approved individual to maintain continuous
surveillance of sources in temporary security zones and in any security
zone in which physical barriers or intrusion detection systems have
been disabled to allow such activities.
Sec. 37.49 Monitoring, detection, and assessment.
(a) Monitoring and detection.
(1) Licensees shall establish and maintain the capability to
continuously monitor and detect without delay all unauthorized entries
into its security zones. Licensees shall provide the means to maintain
continuous monitoring and detection capability in the event of a loss
of the primary power source, or provide for an alarm and response in
the event of a loss of this capability to continuously monitor and
detect unauthorized entries.
(2) Monitoring and detection must be performed by:
(i) A monitored intrusion detection system that is linked to an on-
site or off-site central monitoring facility;
(ii) Electronic devices for intrusion detection alarms that will
alert nearby facility personnel;
(iii) Visual monitoring by video surveillance cameras; or
(iv) Visual inspection by approved individuals.
(3) A licensee subject to this subpart shall also have a means to
detect unauthorized removal of the radioactive material from the
security zone. This detection capability must provide:
(i) For category 1 quantities of radioactive material, immediate
detection of any attempted unauthorized removal of the radioactive
material from the security zone. Such immediate detection capability
must be provided by:
(A) Electronic sensors linked to an alarm;
(B) Continuous monitored video surveillance; or
(C) Direct visual surveillance.
(ii) For category 2 quantities of radioactive material, weekly
verification through physical checks, tamper indicating devices, use,
or other means to ensure that the radioactive material is present.
(b) Assessment. Licensees shall immediately assess each actual or
attempted unauthorized entry into the security zone to determine
whether the unauthorized access was an actual or attempted theft,
sabotage, or diversion.
(c) Personnel communications and data transmission. For personnel
and automated or electronic systems supporting the licensee's
monitoring, detection, and assessment systems, licensees shall:
(1) Maintain continuous capability for personnel communication and
electronic data transmission and processing among site security
systems; and
(2) Provide an alternative communication capability for personnel,
and an alternative data transmission and processing capability, in the
event of a loss of the primary means of communication or data
transmission and processing. Alternative communications and data
transmission systems may not be subject to the same failure modes as
the primary systems.
(d) Response. Licensees shall immediately respond to any actual or
attempted unauthorized access to the security zones, or actual or
attempted theft, sabotage, or diversion of category 1 or category 2
quantities of radioactive material at licensee facilities or temporary
job sites. For any unauthorized access involving an actual or attempted
theft, sabotage, or diversion of category 1 or category 2 quantities of
radioactive material, the licensee's response shall include requesting,
without delay, an armed response from the LLEA.
Sec. 37.51 Maintenance, testing, and calibration.
(a) Each licensee subject to this subpart shall implement a
maintenance, testing, and calibration program to ensure that intrusion
alarms, associated communication systems, and other physical components
of the systems used to secure or detect unauthorized access to
radioactive material are maintained in operable condition, are capable
of performing their intended function when needed, and are inspected
and tested for operability and performance at intervals not to exceed 3
months.
(b) The licensee shall maintain records on the maintenance,
testing, and calibration activities for 5 years.
Sec. 37.53 Requirements for mobile devices.
Each licensee that possesses mobile devices containing category 1
or category 2 quantities of radioactive material must:
(a) Have two independent physical controls to secure the material
from unauthorized removal when the device is not under direct control
and constant surveillance by the licensee; and
(b) For devices in or on a vehicle or trailer, utilize a method to
disable the vehicle or trailer when not under direct control and
constant surveillance by the licensee. Licensees shall not rely on the
removal of an ignition key to meet this requirement.
Sec. 37.55 Security program review.
(a) Each licensee shall be responsible for the continuing
effectiveness of the security program. Each licensee shall ensure that
the security program is reviewed to confirm compliance with the
requirements of this subpart and that comprehensive actions are taken
to correct any noncompliance that is identified. The review must
include the radioactive material security program content and
implementation. Each licensee shall ensure that the security program is
reviewed at a frequency not to exceed 12 months.
(b) The results of the review, along with any recommendations, must
be documented. Each review report must identify conditions that are
adverse to the proper performance of the security program, the cause of
the condition(s), and, when appropriate, recommend corrective actions,
and corrective actions taken. The licensee shall review the findings
and take any additional corrective actions necessary to preclude
repetition of the condition, including reassessment of the deficient
areas where indicated.
(c) The licensee shall maintain the review documentation for 5
years.
Sec. 37.57 Reporting of events.
(a) The licensee shall immediately notify the LLEA after initiating
an appropriate response to any actual or attempted theft, sabotage, or
diversion of a category 1 or category 2 quantity of radioactive
material. As soon as possible after initiating a response, but not at
the expense of causing delay or interfering
[[Page 33942]]
with the LLEA response to the event, the licensee shall notify the NRC
Operations Center ((301) 816-5100). In no case shall the notification
to the NRC be later than 4 hours after the discovery of any attempted
or actual theft, sabotage, or diversion.
(b) The licensee shall notify the LLEA upon discovery of any
suspicious activity related to possible theft, sabotage, or diversion
of category 1 or category 2 quantities of radioactive material. As soon
as possible but not later than 4 hours after notifying the LLEA, the
licensee shall notify the NRC Operations Center ((301) 816-5100).
(c) The initial telephonic notification required by paragraph (a)
of this section must be followed within a period of 30 days by a
written report submitted to the NRC by an appropriate method listed in
Sec. 37.7. The report must include sufficient information for NRC
analysis and evaluation, including identification of any necessary
corrective actions to prevent future instances of such unauthorized
access.
Subpart D--Physical Protection in Transit
Sec. 37.71 Additional requirements for transfer of category 1 and
category 2 quantities of radioactive material.
(a) Notwithstanding the requirements of any other regulation in
this chapter, any licensee transferring category 1 quantities of
radioactive material to a licensee of the Commission or an Agreement
State, prior to conducting such transfer, shall verify with the NRC's
license verification system or the license issuing authority that the
transferee's license authorizes the receipt of the type, form, and
quantity of radioactive material to be transferred and that the
licensee is authorized to receive radioactive material at the address
requested for delivery. The transferor shall document the verification.
(b) Notwithstanding the requirements of any other regulation in
this chapter, any licensee transferring category 2 quantities of
radioactive material to a licensee of the Commission or an Agreement
State, prior to conducting such transfer, shall verify with the NRC's
license verification system or the license issuing authority that the
transferee's license authorizes the receipt of the type, form, and
quantity of radioactive material to be transferred. The transferor
shall document the verification.
(c) The transferor shall keep a copy of the verification
documentation as a record for 5 years.
Sec. 37.73 Applicability of physical protection of category 1 and
category 2 quantities of radioactive material during transit.
(a) For shipments of category 1 quantities of radioactive material,
each shipping licensee shall comply with the requirements for physical
protection contained in Sec. Sec. 37.75(a) and (c) through (e); 37.77;
37.79(a)(1), (b)(1), (c) and (d); and 37.81(a), (c), (e), (g), and (h).
(b) For shipments of category 2 quantities of radioactive material,
each shipping licensee shall comply with the requirements for physical
protection contained in Sec. Sec. 37.75(b) through (e); 37.79(a)(2),
(a)(3), (b)(2), and (d); and 37.81(b), (d), (f), (g), and (h). For
those shipments of category 2 quantities of radioactive material that
meet the criteria of Sec. 71.97(b) of this chapter, the shipping
licensee shall also comply with the advance notification provisions of
Sec. 71.97 of this chapter.
(c) The shipping licensee shall be responsible for meeting the
requirements of this subpart unless the receiving licensee has agreed
in writing to arrange for the in-transit physical protection required
under this subpart.
(d) Each licensee that imports category 1 quantities of radioactive
material shall comply with the requirements for physical protection
contained in Sec. Sec. 37.75(a)(2) and (c) through (e); 37.77;
37.79(a)(1), (b)(1), (c), and (d); and 37.81(a), (c), (e), (g), and (h)
during the domestic portion of the shipment.
(e) Each licensee that imports category 2 quantities of radioactive
material shall comply with the requirements for physical protection
during transit contained in Sec. Sec. 37.75(c) through (e);
37.79(a)(2), (a)(3), (b)(2), and (d); and 37.81(b), (d), (f), (g), and
(h) during the domestic portion of the shipment.
Sec. 37.75 Preplanning and coordination of shipment of category 1 or
category 2 quantities of radioactive material.
(a) Each licensee that plans to transport, or deliver to a carrier
for transport, licensed material that is a category 1 quantity of
radioactive material outside the confines of the licensee's facility or
other place of use or storage shall:
(1) Preplan and coordinate shipment arrival, including the no-
later-than arrival time, and departure times with the receiving
licensee;
(2) Preplan and coordinate shipment information with the governor
or the governor's designee of any State through which the shipment will
pass to:
(i) Ensure minimal delays;
(ii) Discuss the State's intention to provide law enforcement
escorts;
(iii) Arrange for positional information sharing when requested;
(iv) Identify Highway Route Control Quantity shipments (as the term
``Highway Route Control Quantity'' is defined in 49 CFR 173.403); and
(v) Identify safe havens; and
(3) Document the preplanning and coordination activities.
(b) Each licensee that plans to transport, or deliver to a carrier
for transport, licensed material that is a category 2 quantity of
radioactive material outside the confines of the licensee's facility or
other place of use or storage shall verify and document the shipment
no-later-than arrival time and the actual shipment arrival with the
receiving licensee. Verification may be made by e-mail, fax, or written
documentation of a verbal conversation.
(c) Each licensee who receives a shipment of a category 1 or
category 2 quantity of radioactive material shall notify the shipping
licensee within 4 hours when the shipment arrives at its destination.
(d) Each licensee, who transports or plans to transport a shipment
of a category 1 or category 2 quantity of radioactive material, and
determines that the shipment will arrive after the no-later-than
arrival time provided pursuant to paragraph (a)(1) of this section,
shall promptly notify the receiving licensee of the new no-later-than
arrival time.
(e) The licensee shall retain a copy of the documentation for
preplanning and coordination and any revision thereof, as a record for
5 years.
Sec. 37.77 Advance notification of shipment of category 1 quantities
of radioactive material.
As specified in paragraphs (a) and (b) of this section, each
licensee shall provide advance notification to the NRC and the governor
of a State, or the governor's designee, of the shipment of licensed
material in a category 1 quantity, through or across the boundary of
the State, before the transport, or delivery to a carrier for transport
of the licensed material outside the confines of the licensee's
facility or other place of use or storage. The contact information,
including telephone and mailing addresses, of governors and governors'
designees, is available on the NRC Web site at http://nrc-stp.ornl.gov/special/designee.pdf. A list of the contact information is also
available upon request from the Director, Division of Intergovernmental
Liaison and Rulemaking, Office of Federal and State Materials and
Environmental Management Programs, U.S. Nuclear Regulatory Commission,
Washington, DC 20555.
[[Page 33943]]
(a) Procedures for submitting advance notification. (1) The
notification must be made in writing to the office of each appropriate
governor or governor's designee and to the NRC's Director, Division of
Security Policy, Office of Nuclear Security and Incident Response, U.S.
Nuclear Regulatory Commission, Washington, DC 20555.
(2) A notification delivered by mail must be postmarked at least 7
days before transport of the shipment commences at the shipping
facility.
(3) A notification delivered by any other means than mail must
reach the office of the governor or the governor's designee at least 4
days before transport of a shipment within or through the State.
(b) Information to be furnished in advance notification of
shipment. Each advance notification of shipment of category 1
quantities of radioactive material must contain the following
information, if available at the time of notification:
(1) The name, address, and telephone number of the shipper,
carrier, and receiver of the category 1 radioactive material;
(2) The license numbers of the shipper and receiver;
(3) A description of the radioactive material contained in the
shipment, including the radionuclides and quantity;
(4) The point of origin of the shipment and the estimated time and
date that shipment will commence;
(5) The estimated time and date that the shipment is expected to
enter each State along the route;
(6) The estimated time and date of arrival of the shipment at the
destination; and
(7) A point of contact, with a telephone number, for current
shipment information.
(c) Revision notice.
(1) The licensee shall provide any information not previously
available at the time of the initial notification, as soon as the
information becomes available, to the governor of the State or the
governor's designee and to the NRC's Director of Nuclear Security,
Office of Nuclear Security and Incident Response, U.S. Nuclear
Regulatory Commission, Washington, DC 20555.
(2) A licensee shall promptly notify the governor of the State or
the governor's designee of any changes to the information provided in
accordance with paragraphs (b) and (c)(1) of this section. The licensee
shall also notify the NRC's Director, Division of Security Policy,
Office of Nuclear Security and Incident Response, U.S. Nuclear
Regulatory Commission, Washington, DC 20555 of any such changes.
(d) Cancellation notice. Each licensee who cancels a shipment for
which advance notification has been sent shall send a cancellation
notice to the governor of each State or to the governor's designee
previously notified and to the NRC's Director, Division of Security
Policy, Office of Nuclear Security and Incident Response. The licensee
shall state in the notice that it is a cancellation and identify the
advance notification that is being cancelled.
(e) Records. The licensee shall retain a copy of the advance
notification and any revision and cancellation notices as a record for
5 years.
(f) Protection of information. State officials, State employees,
and other individuals, whether or not licensees of the Commission or an
Agreement State, who receive schedule information of the kind specified
in Sec. 37.77(b) shall protect that information against unauthorized
disclosure as specified in Sec. 73.21 of this chapter.
Sec. 37.79 Requirements for physical protection of category 1 and
category 2 quantities of radioactive material during shipment.
(a) Shipments by road.
(1) Each licensee who transports, or delivers to a carrier for
transport, in a single shipment, a category 1 quantity of radioactive
material shall:
(i) Ensure that movement control centers are established that
maintain position information from a remote location. These control
centers must monitor shipments 24 hours a day, 7 days a week, and have
the ability to communicate immediately, in an emergency, with the
appropriate law enforcement agencies.
(ii) Ensure that redundant communications are established that
allow the transport to contact the escort vehicle (when used) and
movement control center at all times. Redundant communications may not
be subject to the same interference factors as the primary
communication.
(iii) Ensure that shipments are continuously and actively monitored
by a telemetric position monitoring system or an alternative tracking
system reporting to a movement control center. A movement control
center must provide positive confirmation of the location, status, and
control over the shipment. The movement control center must be prepared
to promptly implement preplanned procedures in response to deviations
from the authorized route or a notification of actual, attempted, or
suspicious activities related to the theft, loss, or diversion of a
shipment. These procedures will include, but not be limited to, the
identification of and contact information for the appropriate LLEA
along the shipment route.
(iv) Provide an individual to accompany the driver for those
highway shipments with a driving time period greater than the maximum
number of allowable hours of service in a 24-hour duty day as
established by the Department of Transportation Federal Motor Carrier
Safety Administration. The accompanying individual may be another
driver.
(2) Each licensee that transports category 2 quantities of
radioactive material shall maintain constant control and/or
surveillance during transit and have the capability for immediate
communication to summon appropriate response or assistance.
(3) Each licensee who delivers to a carrier for transport, in a
single shipment, a category 2 quantity of radioactive material shall:
(i) Use carriers that have established package tracking systems. An
established package tracking system is a documented, proven, and
reliable system routinely used to transport objects of value. In order
for a package tracking system to maintain constant control and/or
surveillance, the package tracking system must allow the shipper or
transporter to identify when and where the package was last and when it
should arrive at the next point of control.
(ii) Use carriers that maintain constant control and/or
surveillance during transit and have the capability for immediate
communication to summon appropriate response or assistance; and
(iii) Use carriers that have established tracking systems that
require an authorized signature prior to releasing the package for
delivery or return.
(b) Shipments by rail.
(1) Each licensee who transports, or delivers to a carrier for
transport, in a single shipment, a category 1 quantity of radioactive
material shall:
(i) Ensure that rail shipments are monitored by a telemetric
position monitoring system or an alternative tracking system reporting
to the licensee, third-party, or railroad communications center. The
communications center shall provide positive confirmation of the
location of the shipment and its status. The communications center
shall implement preplanned procedures in response to deviations from
the authorized route or to a notification of actual, attempted, or
suspicious activities related to the theft or diversion of a shipment.
These
[[Page 33944]]
procedures will include, but not be limited to, the identification of
and contact information for the appropriate LLEA along the shipment
route.
(ii) Implement an NRC-approved monitoring plan that is designed to
prevent the use of the shipment for malevolent purposes while the
shipment is in the classification yard.
(iii) Ensure that periodic reports to the communications center are
made at preset intervals.
(2) Each licensee who transports, or delivers to a carrier for
transport, in a single shipment, a category 2 quantity of radioactive
material shall:
(i) Use carriers that have established package tracking systems. An
established package tracking system is a documented, proven, and
reliable system routinely used to transport objects of value. In order
for a package tracking system to maintain constant control and/or
surveillance, the package tracking system must allow the shipper or
transporter to identify when and where the package was last and when it
should arrive at the next point of control.
(ii) Use carriers that maintain constant control and/or
surveillance during transit and have the capability for immediate
communication to summon appropriate response or assistance; and
(iii) Use carriers that have established tracking systems that
require an authorized signature prior to releasing the package for
delivery or return.
(c) Procedures.
(1) Each licensee who makes arrangements for the shipment of
category 1 quantities of radioactive material shall develop written
normal and contingency procedures to address:
(i) Notifications to the communication center and law enforcement
agencies;
(ii) Communication protocols. Communication protocols must include
a strategy for the use of authentication and duress codes and
provisions for refueling or other stops, detours, and locations where
communication is expected to be temporarily lost;
(iii) Loss of communications; and
(iv) Responses to an actual or attempted theft or diversion of a
shipment, or any suspicious activities related to a shipment.
(2) Each licensee who makes arrangements for the shipment of
category 1 quantities of radioactive material shall ensure that
drivers, accompanying personnel, train crew, and movement control
center personnel are appropriately trained in normal and contingency
procedures.
(d) Investigations. Each licensee who makes arrangements for the
shipment of category 1 or category 2 quantities of radioactive material
shall immediately conduct an investigation, in coordination with the
receiving licensee, of any shipment that is lost or unaccounted for
after the designated no-later-than arrival time in the advance
notification.
Sec. 37.81 Reporting of events.
(a) The shipping licensee shall notify the appropriate LLEA and the
NRC Operations Center ((301) 816-5100), within 1 hour of its
determination that a shipment of category 1 quantities of radioactive
material is lost or missing. The appropriate LLEA would be the law
enforcement agency in the area of the shipment's last confirmed
location. During the investigation required by 37.79(d), the shipping
licensee will provide agreed upon updates to the NRC Operations Center
on the status of the investigation.
(b) The shipping licensee shall notify the NRC Operations Center
((301) 816-5100) within 4 hours of its determination that a shipment of
category 2 quantities of radioactive material is lost or missing. If,
after 24 hours of its determination that the shipment is lost or
missing, the radioactive material has not been located and secured, the
licensee shall immediately notify the NRC Operations Center.
(c) The shipping licensee shall notify the designated LLEA along
the shipment route, as soon as possible upon discovery of any actual or
attempted theft or diversion of a shipment or suspicious activities
related to the theft or diversion of a shipment of a category 1
quantity of radioactive material. As soon as possible after notifying
the LLEA, the licensee shall notify the NRC Operations Center ((301)
816-5100) upon discovery of any actual or attempted theft or diversion
of a shipment, or any suspicious activity related to the shipment of
category 1 radioactive material.
(d) The shipping licensee shall notify the NRC Operations Center
((301) 816-5100), as soon as possible, upon discovery of any actual or
attempted theft or diversion of a shipment, or any suspicious activity
related to the shipment, of a category 2 quantity of radioactive
material.
(e) The shipping licensee shall notify the NRC Operations Center
((301) 816-5100) and the LLEA as soon as possible upon recovery of any
lost or missing category 1 quantities of radioactive material.
(f) The shipping licensee shall notify the NRC Operations Center
((301) 816-5100) as soon as possible upon recovery of any lost or
missing category 2 quantities of radioactive material.
(g) The initial telephonic notification required by paragraphs (a)
through (d) must be followed within a period of 30 days by a written
report submitted to the NRC by an appropriate method listed in Sec.
37.7. In addition, the licensee shall provide one copy of the written
report addressed to the Director, Division of Security Policy, Office
of Nuclear Security and Incident Response. The report must include
sufficient information for NRC analysis and evaluation.
(h) Subsequent to filing the written report, the licensee shall
also report any additional substantive information on the loss or theft
within 30 days after the licensee learns of such information.
Subpart E--[Reserved]
Subpart F--Records
Sec. 37.101 Form of records.
Each record required by this part must be legible throughout the
retention period specified by each Commission regulation. The record
may be the original or a reproduced copy or a microform, provided that
the copy or microform is authenticated by authorized personnel and that
the microform is capable of producing a clear copy throughout the
required retention period. The record may also be stored in electronic
media with the capability for producing legible, accurate, and complete
records during the required retention period. Records such as letters,
drawings, and specifications, must include all pertinent information
such as stamps, initials, and signatures. The licensee shall maintain
adequate safeguards against tampering with and loss of records.
Sec. 37.103 Record retention.
Licensees shall maintain the records that are required by the
regulations in this part for the period specified by the appropriate
regulation. If a retention period is not otherwise specified, these
records must be retained until the Commission terminates the facility's
license.
Subpart G--Enforcement
Sec. 37.105 Inspections.
(a) Each licensee shall afford to the Commission at all reasonable
times opportunity to inspect category 1 or category 2 quantities of
radioactive material and the premises and facilities wherein the
nuclear material is used, produced, or stored.
[[Page 33945]]
(b) Each licensee shall make available to the Commission for
inspection, upon reasonable notice, records kept by the licensee
pertaining to its receipt, possession, use, acquisition, import,
export, or transfer of category 1 or category 2 quantities of
radioactive material.
Sec. 37.107 Violations.
(a) The Commission may obtain an injunction or other court order to
prevent a violation of the provisions of--
(1) The Atomic Energy Act of 1954, as amended;
(2) Title II of the Energy Reorganization Act of 1974, as amended;
or
(3) A regulation or order issued pursuant to those Acts.
(b) The Commission may obtain a court order for the payment of a
civil penalty imposed under section 234 of the Atomic Energy Act:
(1) For violations of--
(i) Sections 53, 57, 62, 63, 81, 82, 101, 103, 104, 107, or 109 of
the Atomic Energy Act of 1954, as amended:
(ii) Section 206 of the Energy Reorganization Act;
(iii) Any rule, regulation, or order issued pursuant to the
sections specified in paragraph (b)(1)(i) of this section;
(iv) Any term, condition, or limitation of any license issued under
the sections specified in paragraph (b)(1)(i) of this section.
(2) For any violation for which a license may be revoked under
Section 186 of the Atomic Energy Act of 1954, as amended.
Sec. 37.109 Criminal penalties.
(a) Section 223 of the Atomic Energy Act of 1954, as amended,
provides for criminal sanctions for willful violation of, attempted
violation of, or conspiracy to violate, any regulation issued under
sections 161b, 161i, or 161o of the Act. For purposes of section 223,
all the regulations in part 37 are issued under one or more of sections
161b, 161i, or 161o, except for the sections listed in paragraph (b) of
this section.
(b) The regulations in part 37 that are not issued under sections
161b, 161i, or 161o for the purposes of section 223 are as follows:
Sec. Sec. 37.1, 37.3, 37.5, 37.7, 37.9, 37.11, 37.13, 37.107, and
37.109.
Appendix A to Part 37--Category 1 and Category 2 Radioactive Materials
The terabecquerel (TBq) values are the regulatory standard. The
curie (Ci) values specified are obtained by converting from the TBq
value. The curie values are provided for practical usefulness only.
Table 1--Category 1 and Category 2 Threshold \1\
----------------------------------------------------------------------------------------------------------------
Category 1 Category 1 Category 2 Category 2
Radioactive material (TBq) (Ci) (TBq) (Ci)
----------------------------------------------------------------------------------------------------------------
Americium-241.................................. 60 1,620 0.6 16.2
Americium-241/Be............................... 60 1,620 0.6 16.2
Californium-252................................ 20 540 0.2 5.40
Cobalt-60...................................... 30 810 0.3 8.10
Curium-244..................................... 50 1,350 0.5 13.5
Cesium-137..................................... 100 2,700 1 27.0
Gadolinium-153................................. 1,000 27,000 10 270
Iridium-192.................................... 80 2,160 0.8 21.6
Plutonium-238.................................. 60 1,620 0.6 16.2
Plutonium-239/Be............................... 60 1,620 0.6 16.2
Promethium-147................................. 40,000 1,080,000 400 10,800
Radium-226..................................... 40 1,080 0.4 10.8
Selenium-75.................................... 200 5,400 2 54.0
Strontium-90................................... 1,000 27,000 10 270
Thulium-170.................................... 20,000 540,000 200 5,400
Ytterbium-169.................................. 300 8,100 3 81.0
----------------------------------------------------------------------------------------------------------------
\1\Calculations Concerning Multiple Sources or Multiple Radionuclides.
The ``sum of fractions'' methodology for evaluating combinations of multiple sources or multiple radionuclides
is to be used in determining whether a facility or activity meets or exceeds the threshold and is thus subject
to the physical protection requirements of this part.
I. If multiple sources and/or multiple radionuclides are present in a facility or activity, the sum of the
ratios of the activity of each of the radionuclides must be determined to verify the facility or activity is
less than the category 1 or category 2 thresholds of Table 1, as appropriate. Otherwise, if the calculated sum
of the ratio, using the following equation, is greater than or equal to 1.0, then the facility or activity
meets or exceeds the thresholds of Table 1, and the applicable physical provisions of this part apply.
II. Use the equation below to calculate the sum of the ratios by inserting the actual activity of the applicable
radionuclides from Table 1 or of the individual sources (of the same radionuclides from Table 1) in the
numerator of the equation and the corresponding threshold activity from the Table 1 in the denominator of the
equation. Calculations must be performed in metric values (i.e., TBq) and the numerator and denominator values
must be in the same units.
R1 = activity for radionuclides or source number 1
R2 = activity for radionuclides or source number 2
RN = activity for radionuclides or source number n
AR1 = activity threshold for radionuclides or source
number 1
AR2 = activity threshold for radionuclides or source
number 2
ARN = activity threshold for radionuclides or source
number n
[GRAPHIC] [TIFF OMITTED] TP15JN10.000
Part 39--LICENSES AND RADIATION SAFETY REQUIREMENTS FOR WELL
LOGGING
17. The authority citation for Part 39 continues to read as
follows:
Authority: Secs. 53, 57, 62, 63, 65, 69, 81, 82, 161, 182, 183,
186, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as
amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2073, 2077,
2092, 2093, 2095, 2099, 2111, 2112, 2201, 2232, 2233, 2236, 2282);
secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244,
1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44
U.S.C. 3504 note).
18. In Sec. 39.1, paragraph (a) is revised to read as follows:
Sec. 39.1 Purpose and scope.
(a) This part prescribes requirements for the issuance of a license
authorizing the use of licensed materials including sealed sources,
radioactive tracers, radioactive markers, and uranium sinker bars in
well logging in a single well.
[[Page 33946]]
This part also prescribes radiation safety requirements for persons
using licensed materials in these operations. The provisions and
requirements of this part are in addition to, and not in substitution
for, other requirements of this chapter. In particular, the provisions
of parts 19, 20, 21, 30, 37, 40, 70, 71, and 150 of this chapter apply
to applicants and licensees subject to this part.
* * * * *
PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC
LICENSING AND RELATED REGULATORY FUNCTIONS
19. The authority citation for Part 51 continues to read as
follows:
Authority: Sec. 161, 68 Stat. 948, as amended, sec. 1701, 106
Stat. 2951, 2952, 2953, (42 U.S.C. 2201, 2297f); secs. 201, as
amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841,
5842); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Subpart A
also issued under National Environmental Policy Act of 1969, secs.
102, 104, 105, 83 Stat. 853-854, as amended (42 U.S.C. 4332, 4334,
4335); and Pub. L. 95-604, Title II, 92 Stat. 3033-3041; and sec.
193, Pub. L. 101-575, 104 Stat. 2835 (42 U.S.C. 2243). Sections
51.20, 51.30, 51.60, 51.80, and 51.97 also issued under secs. 135,
141, Pub. L. 97-425, 96 Stat. 2232, 2241, and sec. 148, Pub. L. 100-
203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161, 10168). Section
51.22 also issued under sec. 274, 73 Stat. 688, as amended by 92
Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear Waste Policy Act
of 1982, sec. 121, 96 Stat. 2228 (42 U.S.C. 10141).
Sections 51.43, 51.67, and 51.109 also issued under Nuclear
Waste Policy Act of 1982, sec. 114(f), 96 Stat. 2216, as amended (42
U.S.C. 10134(f)).
20. In Sec. 51.22, the introductory text in paragraph (c)(3) is
revised to read as follows:
Sec. 51.22 Criterion for categorical exclusion; identification of
licensing and regulatory actions eligible for categorical exclusion or
otherwise not requiring environmental review.
* * * * *
(c) * * *
(3) Amendments to parts 20, 30, 31, 32, 33, 34, 35, 37, 39, 40, 50,
51, 52, 54, 60, 61, 63, 70, 71, 72, 73, 74, 81, and 100 of this chapter
which relate to--
* * * * *
PART 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL
21. The authority citation for part 71 continues to read as
follows:
Authority: Secs. 53, 57, 62, 63, 81, 161, 182, 183, 68 Stat.
930, 932, 933, 935, 948, 953, 954, as amended, sec. 1701, 106 Stat.
2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2201,2232,
2233, 2297f); secs. 201, as amended, 202, 206, 88 Stat. 1242, as
amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112
Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L.
No. 109-58, 119 Stat. 594 (2005). Section 71.97 also issued under
sec. 301, Pub. L. 96-295, 94 Stat. 789-790.
22. In Sec. 71.97, the introductory text of paragraph (b) is
revised to read as follows:
Sec. 71.97 Advance notification of shipment of irradiated reactor
fuel and nuclear waste.
* * * * *
(b) Advance notification is also required under this section for
the shipment of licensed material, other than irradiated fuel, meeting
the following three conditions:
* * * * *
PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS
23. The authority citation for part 73 continues to read as
follows:
Authority: Secs. 53, 161, 149, 68 Stat. 930, 948, as amended,
sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2169, 2201); sec. 201,
as amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106
Stat. 2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112
Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L.
109-58, 119 Stat. 594 (2005).
Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241 (42.U.S.C. 10155, 10161). Section 73.37(f) also
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100
Stat. 876 (42 U.S.C. 2169).
24. A new Sec. 73.35 is added to read as follows:
Sec. 73.35 Requirements for physical protection of irradiated reactor
fuel (100 grams or less) in transit.
Each licensee who transports, or delivers to a carrier for
transport, in a single shipment, a quantity of irradiated reactor fuel
weighing 100 grams (0.22 pounds) or less in net weight of irradiated
fuel, exclusive of cladding or other structural or packaging material,
which has a total external radiation dose rate in excess of 1 sievert
(100 rem) per hour at a distance of 0.91 meters (3 feet) from any
accessible surface without intervening shielding, shall follow the
physical protection requirements for category 1 quantities of
radioactive material in Subpart D of Part 37 of this chapter.
Dated at Rockville, Maryland, this 26th day of May, 2010.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
Note: This Appendix Will Not Appear in the Code of Federal
Regulations.
Appendix A to This Proposed Rule--Regulatory Flexibility Analysis for
the Proposed Amendments to 10 CFR Parts 30, 32, 33, 34, 35, 36, 37, 39,
51, 71, 73, and 150 (Physical Protection of Byproduct Material)
I. Background
The Regulatory Flexibility Act (RFA), as amended 5 U.S.C. 601 et
seq., requires that agencies consider the impact of their
rulemakings on small entities and, consistent with applicable
statutes, consider alternatives to minimize these impacts on the
businesses, organizations, and government jurisdictions to which
they apply.
The NRC has established standards for determining which NRC
licensees qualify as small entities (10 CFR 2.810). These size
standards were based on the Small Business Administration's most
common receipts-based size standards and include a size standard for
business concerns that are manufacturing entities.
Description of the Reasons That Action by the Agency Is Being
Considered
The NRC has long participated in efforts to address radioactive
source protection and security. However, the terrorist attacks of
September 11, 2001, heightened concerns about the use of risk-
significant radioactive materials in a malevolent act. Such an
attack is of particular concern because of the widespread use of
radioactive materials in the United States by industrial, medical,
and academic institutions. The theft or diversion of risk-
significant radioactive materials could lead to their malicious use
in a radiological dispersal device or a radiological exposure
device.
Commission regulations provide requirements for the safe use,
transit, and control of licensed material. A licensee's loss of
control of risk-significant radioactive material, whether it is
inadvertent or through a deliberate act, could result in significant
adverse impacts that could reasonably constitute a threat to the
public health and safety or the common defense and security of the
United States. After the attacks of September 11, 2001, the
Commission determined that certain licensed material should be
subject to enhanced security provisions and safeguarded during
transport, and that individuals with unescorted access to risk-
significant radioactive material should be subject to background
investigations. For additional information see the Discussion
portion of the Statements of Consideration (SOC).
Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
The regulatory objective of this rulemaking is to establish
generically applicable security requirements similar to those
previously imposed by the NRC orders. Although an order is legally
binding on the licensee
[[Page 33947]]
receiving the order, a rule makes the requirements generally
applicable to all affected licensees. In addition, notice and
comment rulemaking is an open process that allows for public
participation. This proposed rulemaking would place security
requirements for category 1 and category 2 quantities of radioactive
material into the regulations. In developing the proposed rule, the
NRC considered, among other things, the various security orders,
lessons-learned during implementation, the recommendations from the
Independent Review Panel and the Materials Working Group, and
stakeholder comments. The proposed rule also considered a petition
for rulemaking submitted by the State of Washington. For additional
information see the Discussion portion of the SOC. The authority
citation sections of the proposed rule contain the statutory
authority for the proposed rule.
Description of and, Where Feasible, an Estimate of the Number of Small
Entities to Which the Proposed Rule Will Apply
The proposed rule would affect about 300 NRC licensees and about
1,100 Agreement State licensees. This includes a wide range of
licensees, including pool-type irradiator licensees; manufacturer
and distributor licensees; medical facilities with gamma knife
devices; self-shielded irradiator licensees (including blood
irradiators); teletherapy unit licensees; radiographers; well
loggers; broad scope users; radioisotope thermoelectric generator
licensees; and licensees that ship or prepare for shipment category
1 or category 2 quantities of radioactive material. Some of these
licensees would be considered small entities. In fiscal year 2008,
about 26 percent of materials licensees qualified as small entities.
Using the same percentage, 364 of the licensees that would be
affected by the proposed rule would be considered small entities.
Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities That Will Be Subject to the Requirements,
and the Type of Professional Skills Necessary for Preparation of
Reports and Records
Licensees would be required to: (1) Develop procedures for
implementation of the security provisions; (2) develop a security
plan that describes how security is being implemented; (3) conduct
training on the procedures and security plan: (4) conduct background
investigations for those individuals permitted access to category 1
or category 2 quantities of radioactive material; (5) coordinate
with LLEAs so the LLEAs would be better prepared to respond in an
emergency; (6) conduct preplanning and coordination activities
before shipping radioactive material; and (7) implement security
measures for the protection of the radioactive material. Licensees
would be required to promptly report any attempted or actual theft
or diversion of the radioactive material. Licensees would be
required to keep copies of the security plan, procedures, background
investigation records, training records, and documentation that
certain activities have occurred. For additional information on the
requirements, see the SOC or the proposed rule text. No special
skills are necessary for the preparation of reports or records.
The average licensee would have a one-time cost of approximately
$27,000 and an annual cost of approximately $25,700 to fully
implement the proposed rule. Much of this cost would result from the
requirements to have procedures, conduct training, and to develop a
security plan. Although not required by the various security orders,
many licensees have already developed procedures and conducted
training and may only require minor revisions; therefore, the actual
cost for some licensees may be lower. Additional large costs are the
weekly physical check of the category 2 sources and the annual
program review. The NRC views that the weekly check is a vital part
of the security program, particularly for materials that are used
infrequently. The program review is important for licensees to
review the effectiveness of the program and to ensure that
requirements are being implemented. More information on the cost of
the proposed rule is contained in the Regulatory Analysis.
Identification, to the Extent Practicable, of All Relevant Federal
Rules That May Duplicate, Overlap or Conflict With the Proposed Rule
Several U.S. Government programs involve fingerprinting and an
FBI identification and criminal history records check. These include
the National Agency Check; Transportation Worker Identification
Credentials in accordance with 49 CFR 1572; Bureau of Alcohol,
Tobacco, Firearms, and Explosives background check and clearances in
accordance with 27 CFR 555; Health and Human Services security risk
assessments for possession and use of select agents and toxins in
accordance with 42 CFR 73; Hazardous Material security threat
assessment for hazardous material endorsement to commercial drivers
license in accordance with 49 CFR 1572; and Customs and Border
Patrol's Free and Secure Trade Program. Any individual that has
favorably undergone the background investigation required by these
programs would be relieved from the background investigation
elements of the proposed rule as long as the licensee has
appropriate documentation. Any individual who has an active Federal
security clearance would also be relieved assuming appropriate
documentation is provided.
The Department of Transportation requires security plans for the
transport of highway route control quantities of radioactive
material in accordance with 49 CFR 172.800. This provision covers
only a small portion of the category 1 and category 2 quantities of
radioactive material covered by the proposed rule.
The NRC is not aware of any other relevant Federal rules that
may duplicate, overlap, or conflict with the proposed rule.
Description of any significant alternatives to the proposed rule
that accomplish the stated objectives of applicable statutes and
that minimize any significant economic impact of the proposed rule
on small entities, including alternatives considered, such as: (1)
Establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for small
entities; (3) use of performance rather than design standards; and
(4) any exemption from coverage of the rule, or any part thereof,
for such small entities.
As noted earlier, some of the licensees that would be impacted
by the proposed rule are small businesses. The proposed rule would
impose the minimum requirements that the NRC believes is necessary
to adequately protect the public health and safety and the common
defense and security. Therefore, the NRC could not grant relief to
small entities to allow them to implement less effective measures.
The proposed rule would provide some flexibility in the particular
measures that a licensee could choose to employ. Licensees affected
by the proposed rule have already implemented the bulk of the
requirements in response to various security orders.
[FR Doc. 2010-13319 Filed 6-14-10; 8:45 am]
BILLING CODE 7590-01-P