Physical Protection of Byproduct Material

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.

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

Carol.Gallagher@nrc.gov.

Mail comments to:

Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,

Attn:

Rulemakings and Adjudications Staff.

E-mail comments to: Rulemaking.Comments@nrc.gov.

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

pdr.resource@nrc.gov.

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: Merri.Horn@nrc.gov.

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.

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

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

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.

Radioactive Material

Category 1 Threshold

Terabecquerels

(TBq)

Curies

(Ci)

Category 2 Threshold

Terabecquerels

(TBq)

Curies

(Ci)

Americium-241

60

1,620

0.6

16.2

Americium-241/Beryllium

60

1,620

0.6

16.2

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

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

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

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.

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

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 § 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

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

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 § 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 § 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.

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

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,

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 § 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

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 § 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 § 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 § 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

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, § 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, § 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 § 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 § 37.75(d) of

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 § 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 § 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 § 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, §§ 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 § 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, § 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, § 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 §§ 37.81(e) and (f), for category 1 shipments and category 2 shipments respectively, require the

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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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.

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 § 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 § 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 § 37.79(a)(3) (for category 2 road shipments) and proposed § 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 § 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 § 37.75(e) would require that licensees retain records related to preplanning and coordination for 5 years. Proposed § 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 § 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.

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.

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

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 ma

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