[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  

[[Page 33902]]


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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

[[Page 33904]]

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
                                       -------------------------------------------------------------------------
         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
----------------------------------------------------------------------------------------------------------------

    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