Physical Protection of Byproduct Material, 33902-33947 [2010-13319]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 75, Number 114 (Tuesday, June 15, 2010)]
[Proposed Rules]
[Pages 33902-33947]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-13319]



[[Page 33901]]

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

Part II





Nuclear Regulatory Commission





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



10 CFR Parts 30, 32, 33, et al.



Physical Protection of Byproduct Material; Proposed Rule

Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / 
Proposed Rules

[[Page 33902]]


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

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 https://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 https://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 https://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.

[[Page 33903]]

    As part of the development of the enhanced security measures, the 
NRC performed vulnerability assessments to identify gaps or 
vulnerabilities in security and the effectiveness and costs of certain 
physical protection enhancements at various licensed facilities. The 
results of the vulnerability assessments were used in the development 
of security enhancement orders that were issued to licensees using a 
graded approach based on the relative risk and quantity of material 
possessed by the licensee. The NRC issued the first series of orders to 
certain panoramic and underwater irradiator licensees that possessed 
more than 370 TBq (10,000 Ci) of radioactive material (EA-02-249; June 
6, 2003) (68 FR 35458; June 13, 2003). The next series of orders were 
issued to certain manufacturing and distribution (M&D) licensees (EA-
03-225; January 12, 2004) (69 FR 5375; February 4, 2004). These orders 
require the implementation of additional security measures and the 
protection of the licensee's physical protection information as 
Safeguards Information--Modified Handling (SGI-M). The original orders 
are not publicly available because they contain detailed security 
requirements that are designated as SGI-M. However, redacted versions 
of these orders have been made available to the public (73 FR 33859; 
June 13, 2008, and 73 FR 49714; August 22, 2008). These orders were 
issued to both NRC and Agreement State licensees under the NRC's 
authority to protect the common defense and security. Subsequently, the 
NRC issued Increased Control Orders (EA-05-090; November 14, 2005) (70 
FR 72128; December 1, 2005) to other licensees authorized to possess 
certain risk-significant quantities of radioactive material (category 1 
and category 2 quantities). The Increased Control Orders do not contain 
safeguards information (SGI) or SGI-M and are available on the NRC's 
public Web site at https://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 https://www.nrc.gov/security/byproduct/orders.html. To effect nationwide implementation, each Agreement State 
issued legally binding requirements to licensees under their regulatory 
jurisdiction.
    During the same time period, efforts were underway to enhance 
transportation security of category 1 and category 2 quantities of 
radioactive materials. The NRC issued two sets of orders to licensees 
transporting radioactive material in quantities of concern. The first 
set of transportation security orders was issued to certain licensees 
that might be expected to transport radioactive materials in quantities 
of concern (category 1 quantities) (EA-05-006; July 19, 2005) (70 FR 
44407; August 2, 2005). The orders require the implementation of 
additional security measures and the protection of the licensee's 
physical protection information as SGI-M. The original orders are not 
publicly available because they contain detailed security requirements 
that are designated as SGI-M. However, a redacted version of the order 
is publicly available (73 FR 51016; August 29, 2008). These orders were 
issued to both NRC and Agreement State licensees under the NRC's 
authority to protect the common defense and security. Subsequently, the 
NRC issued orders (EA-05-090; November 14, 2005) (70 FR 72128; December 
1, 2005) to other licensees authorized to possess certain risk-
significant quantities of radioactive material (category 2 quantities). 
The Increased Control Orders mentioned earlier also contain 
requirements for transporting category 2 quantities of radioactive 
material.
    These security orders specifically address the transportation 
security of byproduct material transported in quantities greater than, 
or equal to, category 2. The additional security measures contained in 
the orders provide for enhanced security measures during transportation 
that are beyond the current regulations, including enhanced security in 
preplanning and

[[Page 33904]]

coordinating shipments, advance notification of shipments to the NRC 
and States through which the shipment will pass, control and monitoring 
of shipments that are underway, trustworthiness and reliability of 
personnel, information security considerations, and control of mobile 
or portable devices.
    The requirements put in place by the orders supplement the existing 
regulatory requirements. These additional requirements are primarily 
intended to provide reasonable assurance of preventing the theft or 
diversion of this risk-significant material. These requirements provide 
the Commission with reasonable assurance that public health and safety 
and the common defense and security continue to be adequately 
protected.
    Although an order, like a rule, is legally binding on the licensee 
receiving the order, a rule is generally applicable to all licensees. 
Further, the notice-and-comment rulemaking process allows members of 
the public to provide comments on the proposed rule. It is Commission 
policy to implement generally applicable requirements through 
rulemaking.
    If promulgated, this rulemaking would adopt security requirements 
for category 1 and category 2 quantities of radioactive material into 
the regulations. New requirements for background investigations and an 
access authorization program are proposed to ensure that individuals 
who have access to these materials have gone through background 
investigations and are determined to be trustworthy and reliable. New 
requirements are also proposed to establish physical protection systems 
to detect, assess, and respond to unauthorized access to category 1 and 
category 2 quantities of radioactive material. For transport of the 
radioactive materials, new requirements for recipient license 
verification; preplanning and coordination of shipments; advance 
notification of shipments; notification of shipment delays, schedule 
changes, and suspected loss of a shipment; and control and monitoring 
of shipments are proposed. The proposed amendments would also include 
security requirements for shipments of irradiated reactor fuel that 
weighs 100 grams (0.22 pounds (lb)) or less in net weight of irradiated 
fuel, exclusive of cladding or other structural or packaging material, 
which has a total external radiation dose rate in excess of 1 sievert 
(Sv) (100 rem) per hour at a distance of 0.91 meters (m) (3 feet (ft)) 
from any accessible surface without intervening shielding.
    In developing the proposed rule the NRC considered, among other 
things, the various security orders, lessons-learned during 
implementation of the orders, the recommendations of the Independent 
External Review Panel and the Materials Program Working Group, and 
stakeholder comments received on the orders and the preliminary rule 
language that was posted on Regulations.gov. The Commission chartered 
the Independent External Review Panel to: (1) Identify vulnerabilities 
in the NRC's materials licensing program with respect to import, 
export, specific, and general licenses; (2) validate the ongoing 
byproduct material security efforts; and (3) evaluate the apparent 
``good faith presumption'' that pervades the NRC licensing process. The 
Panel's March 2008 report is available in ADAMS under accession number 
ML080700957. The Materials Program Working Group conducted a 
comprehensive evaluation of the materials program to identify short- 
and long-term strategies to mitigate security vulnerabilities. The 
Working Group report contains sensitive information and is not publicly 
available. However, the Group's comments on the Panel's report are 
publicly available in ADAMS under accession number ML080660424.
    In developing the basis for the transportation security aspects of 
the rule, NRC held three public meetings to seek public comment on the 
development of the technical basis. The NRC published information on 
the requirements being considered along with some background 
information and a notice of the three meetings (73 FR 826; January 4, 
2008). In response the NRC received more than 100 comments from 
stakeholders that were used to finalize the technical basis for the 
transportation portion of this rulemaking. The comments addressed a 
number of issues and concerns. However, most focused on clarifying 
requirements, adding efficiencies, and improving the processes that 
licensees follow to comply with the additional security measures 
currently enforced under security orders.
    During the development of the proposed rule, the NRC posted 
preliminary rule text for public comment on https://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

[[Page 33905]]

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.

----------------------------------------------------------------------------------------------------------------
                                               Category 1 Threshold                 Category 2 Threshold
                                       -------------------------------------------------------------------------
         Radioactive Material            Terabecquerels                       Terabecquerels
                                              (TBq)          Curies (Ci)          (TBq)           Curies (Ci)
----------------------------------------------------------------------------------------------------------------
Americium-241.........................                60             1,620                0.6              16.2
Americium-241/Beryllium...............                60             1,620                0.6              16.2

[[Page 33906]]

 
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 https://www.nrc.gov/security/byproduct/enhanced-security.html. In a separate 
effort, the U.S. Department of Energy (DOE) and the NRC reviewed the 
chemical, physical, and radiological characteristics of each 
radioactive material that is licensed in the United States, for its 
attractiveness to a terrorist. This effort identified 16 radioactive 
materials that could pose a serious threat to people and the 
environment. This effort further identified the different quantities or 
``thresholds'' of materials that could be useful to a terrorist. The 
results of the DOE/NRC effort closely matched the Code of Conduct 
Category 2 quantities. The NRC adopted the IAEA Code of Conduct 
Category 1 and Category 2 threshold quantities to provide consistency 
between domestic and international efforts for security of radioactive 
materials that are deemed to be attractive targets for malevolent use.
    IAEA, Safety Series RS-G-1.9, Categorization of Radioactive 
Sources, provides the underlying methodology for the development of the 
Code of Conduct thresholds. Safety guide RS-G-1.9 provides a risk-based 
ranking of radioactive sources in five categories in terms of their 
potential to cause severe deterministic effects for a range of 
scenarios that include both external exposure from an unshielded source 
and internal exposure following dispersal. The categorization system 
uses the `D' values as normalizing factors. The `D' value is the 
radionuclide specific activity of a source that, if not under control, 
could cause severe deterministic effects for a range of scenarios that 
include both external exposure from an unshielded source and internal 
exposure following dispersal of the source material.
6. Why are the requirements limited to these 16 radionuclides?
    The Radiation Source Protection and Security Task Force, an 
interagency task force established by the EPAct, concluded in its 2006 
report to Congress and the President (ADAMS ML062190349) that the 
appropriate radioactive sources were being protected and that the IAEA 
Code of Conduct serves as an appropriate framework for considering 
which sources warrant additional protection. The Task Force did note 
that the U.S. Government should periodically reevaluate the list of 
radionuclides that warrant additional security and protection. 
Therefore, the radionuclides and thresholds could change in the future 
and any changes would be addressed in a future rulemaking.
7. What is the sum of fractions methodology or unity rule?
    The sum of fractions methodology, also known as the unity rule, is 
used to determine if a licensee would be required to implement 10 CFR 
part 37 requirements. A licensee may need to implement the requirements 
in 10 CFR part 37 even if it does not possess any single source or 
single radionuclide in excess of the category 2 thresholds. For 
combinations of materials (to include sealed sources, unsealed sources, 
and bulk material) and radionuclides, a licensee must include multiple 
sources (including bulk material) of the same radionuclide and multiple 
sources (including bulk material) of different radionuclides to 
determine if the requirements apply. For the purposes of this 
calculation, licensees would be required to consider all of the 
radioactive material at a facility. The following formula for the unity 
rule would be used to determine if a licensee is required to implement 
the Part 37 requirements: [(total amount of radionuclide A) / (category 
2 threshold of radionuclide A)] + [(total amount of radionuclide B) / 
(category 2 threshold of radionuclide B)] + etc.....>= 1. If the sum is 
greater than or equal to 1, the licensee would have at least a category 
2 quantity of radioactive material, and the 10 CFR part 37 requirements 
would apply at that facility.
8. Does the NRC plan to issue guidance on these proposed requirements?
    Yes, the NRC plans to issue guidance on the security requirements 
for category 1 and category 2 quantities of radioactive materials. The 
guidance will be made available for public comment sometime during the 
comment period for this proposed rule. The NRC is planning to host at 
least one public workshop on the guidance documents. A separate 
document announcing the availability of the guidance and the 
information on the workshop will be published in the Federal Register.
9. Will all of the information considered to be safeguards information 
under the orders now be made public?
    No. The orders issued to some licensees contained detailed security 
information that could be useful to an adversary. To increase public 
awareness and participation, the NRC identified the primary security 
concepts behind each security measure and included these concepts in 
the proposed rule to allow discussion of the security

[[Page 33907]]

measures in a public forum. But the specific measures that a licensee 
puts in place may be considered SGI-M. The final rule on safeguards 
information became effective on February 23, 2009 (73 FR 63546; October 
24, 2008), and established as SGI-M certain physical protection 
information related to panoramic and underwater irradiators that 
possess greater than 370 TBq (10,000 Ci) of byproduct material in the 
form of sealed sources; manufacturers and distributors of items 
containing source material, byproduct material, or special nuclear 
material in greater than category 2 quantities; and transportation of 
source, byproduct, or special nuclear material in greater than or equal 
to category 1 quantities. Physical protection information for other 
facilities that fall under the requirements of 10 CFR part 37 would be 
considered physical protection information under 10 CFR 2.390(d)(1). 
Licensees would also be required to protect the security plan and 
implementing information from unauthorized disclosure. The rule 
provisions that address SGI-M or include references to the SGI-M 
requirements in part 73 are reserved for the NRC and are considered 
compatibility category NRC.
10. What is the authority for this proposed rule?
    As noted in the background discussion, the NRC issued some orders 
under its authority to protect the common defense and security and some 
orders under its authority to protect the public health and safety. 
With respect to whether the following regulations are being issued 
under ``public health and safety'' or ``common defense and security,'' 
it should be recognized that almost all regulations relating to the 
security of materials serve both purposes to some degree. For example, 
securing radioactive materials with multiple barriers protects the 
public health and safety by preventing the unknowing theft of 
radioactive materials--such as someone stealing a vehicle with material 
stored in the vehicle but whose target is the vehicle--which could 
result in the unintentional exposure of members of the public to the 
material. The barriers also protect the common defense and security by 
preventing the theft of the radioactive material by potential 
terrorists or others targeting the specific material intending to use 
it to affect the common defense and security by exposing members of the 
public to the material. However, the designation of the authority being 
used for these regulations does have significance in determining 
whether Agreement States or the NRC will be responsible for overseeing 
the implementation of these requirements for Agreement State licensees.
    Although the NRC relinquishes its regulatory authority to Agreement 
States for certain materials, under Section 274(m) of the AEA no such 
agreement will affect the authority of the Commission to take 
regulatory action to protect the common defense and security. Thus, as 
evidenced by orders issued to Agreement State licensees after the 
events of September 11, 2001, the NRC always has the ability to take 
necessary steps to address particular common defense and security 
needs. If these regulations were to be issued under the NRC's common 
defense and security authority, only the NRC would have the authority 
to impose these requirements on Agreement State licensees and the NRC 
would be responsible for inspection and enforcement of these 
requirements for Agreement State licensees.
    When regulations such as these complement both the NRC's public 
health and safety and common defense and security missions, the 
operative question is whether NRC oversight is necessary to fulfill the 
common defense and security aspects of the regulations. The NRC 
believes that the Agreement States can consistently and adequately 
implement the physical protection requirements on a nationwide basis, 
and as such, there will be no need for independent NRC action to 
protect the common defense and security. The NRC has regular oversight 
of individual Agreement State programs through its Integrated Materials 
Performance Evaluation Program (IMPEP). As always, the NRC retains the 
authority under Section 274(m) to take any necessary actions for 
protection of the common defense and security should individual 
licensees or State programs develop issues requiring immediate action. 
The Commission also has the authority under Section 274(j) to terminate 
or suspend all or part of its agreement with a State and reassert the 
Commission's licensing and regulatory authority when the Commission 
determines that doing so is necessary to protect the public health and 
safety. The failure of an individual Agreement State to implement 
compatible and adequate legally binding requirements to protect 
radioactive materials within its jurisdiction disrupts the entire 
national scheme to protect radioactive materials such that it might 
raise serious public health and safety or common defense and security 
concerns that the NRC would have to address. As long as all Agreement 
States continue to implement compatible and adequate security 
requirements, there appears to be no benefit to the public health and 
safety, or common defense and security, that would justify removing 
oversight of these requirements from an established regulatory program 
overseeing Agreement State licensees. Implementing these regulations 
under the NRC's public health and safety authority would avoid 
potential complications with licensees being subject to dual regulation 
for a single activity. Thus, the NRC is proposing to issue these 
regulations under its public health and safety authority, and these 
requirements will be applicable to Agreement State licensees through 
the Agreement State Program.
11. When would the rule be effective?
    The NRC is recommending that the final rule be effective 270 days 
after publication in the Federal Register. This would provide time for 
licensees to put in place the necessary programs, develop procedures, 
and conduct training on the new requirements. While most of the 
provisions are similar to those contained in the orders, there are 
differences. The Agreement States would be required to issue compatible 
requirements within 3 years. Licensees in an Agreement State would 
continue to operate under the orders or other legally binding 
requirements until the Agreement State issues compatible requirements. 
The provisions put in place for the inspection of licensees in 
Agreement States that received the orders issued under common defense 
and security would remain in place until the Agreement State implements 
the requirements. For those States that entered into 274i Agreements, 
the State would continue inspections under the Agreement. For those 
States that did not enter into 274i Agreements, the NRC would continue 
to conduct the inspections until the State puts in place the new 
requirements. The NRC would rescind the orders as the regulatory 
requirements become effective.
12. How does the NRC ensure licensees are following these rules?
    The NRC and Agreement States conduct inspections to ensure that 
licensees are following the requirements. The NRC and Agreement State 
inspectors have received training and follow inspection procedures on 
how to ascertain whether licensees are meeting security requirements. 
Potential violations that are identified will be processed in 
accordance with the NRC Enforcement Policy, and depending on the 
severity of a violation, licensees could be subject to civil or 
criminal

[[Page 33908]]

penalties. Additionally, the NRC has developed enforcement guidance to 
ensure consistency in the enforcement process. Agreement State 
licensees would be subject to the State's enforcement process.
13. What should I consider as I prepare my comments to the NRC?
    Tips for preparing your comments--when submitting your comments, 
remember to:
    i. Identify the rulemaking (RIN 3150-AI12, NRC-2008-0120).
    ii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iii. Describe any assumptions and provide any technical information 
and/or data that you used.
    iv. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    v. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    vi. Explain your views as clearly as possible.
    vii. Make sure to submit your comments by the comment period 
deadline identified.
    viii. The NRC is particularly interested in your comments 
concerning the following issues in Section II: (1) Item B5 of this 
document contains a request for comment on whether the reviewing 
official should be fingerprinted as part of the trustworthiness and 
reliability determination; (2) item B8 contains a request for comment 
on the elements of the background investigation; (3) item C6 contains a 
request for comment on the protection of information; (4) item C15 
contains a request for comment on the need to notify the LLEA before 
working at a temporary jobsite; (5) item C17 contains a request for 
comment on vehicle disabling requirements for mobile sources; (6) item 
C19 contains a request for comment on the reporting requirements; (7) 
item D4 contains a request for comment on requiring license 
verification before transferring category 2 quantities of radioactive 
material; and (8) item D21 contains a request for comment on requiring 
an NRC-approved monitoring plan for the classification yard for rail 
shipment. In addition, Section V of this document contains a request 
for comment on the compatibility designations for the proposed rule; 
Section VI contains a request for comment on the use of plain language; 
Section VIII contains a request for comment on the environmental 
assessment; Section IX contains a request for comment on the 
information collection requirements; Section X contains a request for 
comment on the draft regulatory analysis; and Section XI contains a 
request for comment on the impact of the proposed rule on small 
businesses.

B. Background Investigations and Access Authorization Program

1. Who would be required to have an access authorization program?
    Any licensee that is authorized to possess category 1 or category 2 
quantities of radioactive materials at a facility would need to 
determine whether it needs to have an access authorization program. The 
licensee would be required to submit information to the NRC concerning 
its compliance with the access authorization program requirements. The 
information should include a statement that the licensee is or is not 
implementing an access authorization program. The statement should not 
include details of the licensee's access authorization program or 
implementing procedures. Only those licensees that permit unescorted 
access to category 1 or category 2 quantities of radioactive material 
would be required to establish and implement an access authorization 
program. In addition, any applicant for a license or license amendment 
to possess category 1 or category 2 quantities of radioactive material 
at a facility would be required to establish an access authorization 
program before obtaining the radioactive material.
2. What is the objective of the access authorization program?
    The main objective of the access authorization program is to ensure 
that individuals who have unescorted access to category 1 or category 2 
quantities of radioactive material are trustworthy and reliable and do 
not constitute an unreasonable risk to the public health and safety or 
common defense and security.
3. Who would be subject to the licensee's access authorization program?
    The EPAct authorizes the Commission to require fingerprinting of 
any individual who is permitted unescorted access to ``any radioactive 
material that the Commission determines to be of such significance to 
the public health and safety or the common defense and security as to 
warrant fingerprinting and background checks.'' The Commission has 
determined that the threshold that warrants fingerprinting and 
background checks is category 2. Therefore, individuals subject to a 
licensee's access authorization program would include anyone permitted 
to have unescorted access to category 1 or category 2 quantities of 
radioactive material. Unescorted access would be defined as solitary 
access to category 1 or category 2 quantities of radioactive material 
granted to an approved individual, and includes solitary access to 
sufficient quantities of radioactive material such that an individual 
could successfully accumulate lesser quantities of material into a 
category 1 or category 2 quantity. This would be an individual at the 
licensee's facility who has access to various locations within the 
licensee's facility and does not address the situation where a 
contractor might have access to the facilities of several licensees.
    The access authorization program would also include individuals 
that have access to SGI-M, such as vehicle drivers and accompanying 
individuals for road shipments of category 1 quantities of radioactive 
material, movement control center personnel for shipments of category 1 
quantities of radioactive material, and any individual whose assigned 
duties provide access to shipment information on category 1 quantities 
of radioactive material. In response to comments on the preliminary 
rule language, the NRC added text to clarify that ``access to shipping 
information'' referred to shipping information that was considered to 
be SGI-M and not all shipping information.
    Those individuals who have unescorted access to certain quantities 
of byproduct material could pose a threat to the public health and 
safety or the common defense and security because they could divert or 
steal risk-significant radioactive material, or could aid others in the 
commission of such acts. The Radiation Source Protection and Security 
Task Force encouraged the NRC to require fingerprinting and Federal 
criminal history checks of any individual with access to category 1 or 
category 2 quantities of radioactive material.
    Certain categories of individuals would be relieved from the 
background investigation aspect of the access authorization program 
(see Section II, question B20 and B21). Licensees do have the option to 
escort an individual and not make a trustworthiness and reliability 
determination. The escorts would need to be approved for unescorted 
access.
    In response to comments on the preliminary rule language, the NRC 
removed a restriction that would prohibit a licensee from granting 
unescorted access to anyone that had been previously denied unescorted

[[Page 33909]]

access. The NRC agreed that this was too limiting as information upon 
which a denial is based could change, and the individual could be 
unfairly denied access in the future.
4. What are the key access authorization program requirements?
    The key components of an access authorization program would be the 
reviewing official, the informed consent of the subject individual, 
personal history disclosure by the subject individual, a background 
investigation, use of procedures, and the individual's right to correct 
and complete the information on which the decision to grant unescorted 
access is based. Each of these areas is discussed in more detail in the 
following questions and answers.
5. What is the role of the reviewing official?
    The reviewing official would be the individual that makes the 
trustworthiness and reliability determinations for the licensee; the 
reviewing official determines who could be granted unescorted access 
authorization. Note that the Increased Control Fingerprinting Orders 
referred to a trustworthiness and reliability official or T&R official 
as the individual that made determinations on an individual's 
trustworthiness and reliability. Unlike the reviewing official the T&R 
official did not have to be fingerprinted and was not reviewed by the 
regulator. Licensees would need to nominate one or more individuals to 
be a reviewing official and submit their fingerprints to the NRC. The 
fingerprints of the nominated individual(s) would need to be taken by 
either a law enforcement agency, a Federal or State agency that 
provides fingerprinting services to the public, or a commercial 
fingerprinting service authorized by a State to take fingerprints. 
Before sending the nominated individual's fingerprints to the NRC, the 
licensee would need to conduct the rest of the elements of the 
background investigation. Reviewing officials must be permitted either 
access to safeguards information or unescorted access to category 1 or 
category 2 quantities of radioactive material since Section 149 of the 
Atomic Energy Act only authorizes the collection of fingerprints for 
the purposes of unescorted access or access to safeguards information. 
The Commission has requested statutory changes to the Atomic Energy Act 
that would permit fingerprints of reviewing officials without requiring 
access for these purposes. The NRC would then transmit the nominated 
reviewing official's fingerprints to the FBI and would review the 
individual's criminal history records and, if appropriate, approve the 
reviewing official. Reviewing officials would not be able to make 
trustworthiness and reliability determinations until approved by the 
NRC. For certain licensees, the NRC may have already approved reviewing 
officials, either under the October 17, 2006, orders [(EA-06-248, 71 FR 
63043; October 27, 2006), (EA-06-250, 71 FR 53046; October 27, 2006), 
and (EA-06-249; 71 FR 62303; October 24, 2006)], under the August 21, 
2006, SGI-M orders, or under other regulatory requirements. In those 
cases, the reviewing official may continue to act in that capacity for 
an expanded set of persons. If the reviewing (or T&R) official has not 
had an FBI criminal records history check, he or she would need to be 
fingerprinted and receive NRC approval before making additional 
trustworthiness and reliability determinations. The NRC believes that 
it is important that the individual who is making the final 
determination on whether an individual is trustworthy and reliable be 
trustworthy and reliable themselves and have undergone the same 
background investigation as individuals who would be granted unescorted 
access, including fingerprinting and the FBI criminal records check. If 
the reviewing official is not fingerprinted, a gap could be created in 
the security program that could potentially be exploited. The NRC is 
specifically requesting comment on this aspect of the proposed access 
authorization program. In developing comments on this issue, consider 
the following questions:
    (1) Does the reviewing official need to be fingerprinted and have a 
FBI criminal records check conducted?
    (2) Are the other aspects of the background investigation adequate 
to determine the trustworthiness and reliability of the reviewing 
official?
    (3) Are there other methods that could be used to ensure that the 
reviewing official is trustworthy and reliable?
    (4) Does the requirement to fingerprint the reviewing official 
place too large of a burden on the licensee?
    (5) Do Agreement States have the necessary authority to conduct 
reviews of the nominated individual's criminal history record?
6. What is informed consent?
    Informed consent is the authorization provided by an individual 
that allows a background investigation to be conducted to determine 
whether the individual is trustworthy and reliable. The signed consent 
would include authorization to share personal information with other 
individuals or organizations as necessary to complete the background 
investigation. An individual would be able to withdraw his or her 
consent at any time. After the withdrawal, the licensee would not be 
able to initiate any elements of the background investigation that were 
not in process at the time of the withdrawal of consent. The licensee 
would be required to inform the individual that withdrawal of consent 
for the background investigation would be sufficient cause for denial 
or termination of unescorted access authorization.
    Licensees do not need to obtain signed consent from individuals 
that have already undergone a background investigation that included 
fingerprinting and an FBI criminal history records check, been 
determined to be trustworthy and reliable, and permitted unescorted 
access to category 1 or category 2 quantities of radioactive material 
under the NRC orders or the legally binding requirements issued by the 
Agreement States. A signed consent would be needed for any 
reinvestigation.
    In response to comments on the preliminary rule language, the NRC 
removed provisions for retention of background investigation 
information if the individual withdraws consent. If the individual 
later seeks unescorted access, the background investigation information 
collected during the original attempt could no longer be relied on, and 
the investigation would need to be restarted. Requiring the 
preservation of this information would place an unnecessary burden on 
licensees.
7. What is a personal history disclosure?
    The personal history disclosure is the personal history required to 
be provided by the individual seeking unescorted access to category 1 
or category 2 quantities of radioactive material. The information would 
include items such as employment history, education, credit history 
(including bankruptcies), and any arrest record. This information would 
provide the reviewing official with a starting point for the background 
investigation. Failure to provide the information or falsification of 
any information could be grounds for denial of the individual's request 
for unescorted access authorization or termination of access if the 
individual already has access. If the individual provides false 
information, it could be an indication that he or she is not 
trustworthy or reliable.

[[Page 33910]]

8. What are the components of a background investigation?
    A background investigation includes several components: 
Fingerprinting and an FBI identification and criminal history records 
check; verification of true identity; employment history evaluation; 
verification of education; credit history evaluation; criminal history 
review; and character and reputation determination.
    It is the licensee's responsibility to make a trustworthiness and 
reliability determination of an employee, contractor, or other 
individual who would be granted unescorted access to category 1 or 
category 2 quantities of radioactive material or a device containing 
such radioactive material. It is expected that licensees will use their 
best efforts to obtain the information required to conduct a background 
investigation to determine an individual's trustworthiness and 
reliability.
    The full credit history evaluation reflects the Commission's intent 
that all financial information available through credit reporting 
agencies is to be obtained and evaluated as part of the trustworthiness 
and reliability evaluation. The Commission recognizes that some 
countries may not have routinely accepted credit reporting mechanisms. 
Therefore, the Commission allows reviewing officials to use multiple 
sources of credit history that could potentially provide information 
about a foreign national's financial record and responsibility.
    Fingerprinting an individual for a FBI criminal history records 
check is an important element of the background investigation. It can 
provide comprehensive information regarding an individual's recorded 
criminal activities within the U.S. and its territories and the 
individual's known affiliations with violent gangs or terrorist 
organizations.
    The background investigation is a tool to determine whether 
individuals are trustworthy and reliable and could be permitted 
unescorted access to category 1 or category 2 quantities of radioactive 
material. It is essential to ensure that individuals seeking unescorted 
access to radioactive material are dependable in judgment, character, 
and performance, such that unescorted access to category 1 or category 
2 quantities of radioactive material by that individual does not 
constitute an unreasonable risk to the public health and safety or 
common defense and security.
    The NRC is specifically inviting comment on the elements of the 
background investigation. Please consider the following questions in 
developing comments:
    (1) Is a local criminal history review necessary in light of the 
requirement for a FBI criminal history records check?
    (2) Does a credit history check provide valuable information for 
the determination of trustworthiness and reliability?
    (3) Do the Agreement States have the authority to require a credit 
history check as part of the background investigation?
    (4) What are the appropriate elements of a background investigation 
and why are any suggested elements appropriate?
    (5) Are the elements of the background investigation too subjective 
to be effective?
    (6) How much time does a licensee typically spend on conducting the 
background investigation for an individual?
9. Where does a licensee submit the fingerprints for processing?
    Under the EPAct, licensees are required to submit the fingerprints 
to the NRC, which forwards the fingerprints to the FBI for processing. 
If an individual comes under one of the relief categories specified in 
10 CFR 37.29, the licensee would not need to submit the individual's 
fingerprints to the NRC.
10. What should a licensee do if an individual or entity contacted as 
part of a background investigation refuses to respond?
    If a previous employer, educational institution, or any other 
entity fails to provide information or indicates an inability or 
unwillingness to provide information in a timely manner, the licensee 
would be required to document the refusal, unwillingness, or inability 
to respond in the record of investigation. The licensee would then need 
to obtain confirmation from at least one alternate source that has not 
been previously used. In response to comments on the preliminary rule 
language, the NRC revised the rule language to provide more flexibility 
to licensees as to what would be considered a timely manner.
11. Does an individual have the right to correct his or her criminal 
history records?
    Yes, an individual has the right to correct his or her criminal 
history records before any final adverse determination is made. If the 
individual believes that his or her criminal history records are 
incorrect or incomplete in any respect, he or she can initiate 
challenge procedures. These procedures would include direct application 
by the individual challenging the criminal history records to the law 
enforcement agency that contributed the questioned information.
    Before an adverse determination on a request for unescorted access, 
individuals have the right to provide additional information.
12. Is a licensee required to have procedures for conducting background 
investigations?
    Yes, licensees would be required to develop, implement, and 
maintain written procedures for conducting the background 
investigations. Procedures would address notification of individuals 
denied unescorted access authorization and would also