This section of the FEDERAL REGISTER

contains regulatory documents having general

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are keyed to and codified in the Code of

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Rules and Regulations Federal Register

3025 

Vol. 72, No. 15 

Wednesday, January 24, 2007 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 73 

RIN: 3150–AH90 

Secure Transfer of Nuclear Materials 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Final rule. 

SUMMARY: The Nuclear Regulatory 

Commission (NRC) is amending its 

regulations to implement requirements 

for secure transfer of nuclear materials 

as required by Section 656 of the Energy 

Policy Act of 2005 (EPAct), signed into 

law on August 8, 2005. The final rule 

implements Section 656 by specifically 

excepting certain licensees from 

provisions of Section 170I of the Atomic 

Energy Act (AEA) of 1954, as amended. 

DATES: Effective Date: The final rule is 

effective on February 23, 2007. 

ADDRESSES: Publicly available 

documents related to this rulemaking 

may be viewed electronically on the 

public computers located at the NRC’s 

Public Document Room (PDR), Room 

O1F21, One White Flint North, 11555 

Rockville Pike, Rockville, Maryland. 

The PDR reproduction contractor will 

copy documents for a fee. Selected 

documents can be viewed and 

downloaded electronically via the 

NRC’s rulemaking Web site at http:// 

ruleforum.llnl.gov. 

Publicly available documents created 

or received at the NRC are available 

electronically at the NRC’s Electronic 

Reading Room at http://www.nrc.gov/ 

NRC/reading-rm/adams.html. From this 

site, the public can gain entry into the 

NRC’s Agencywide Document Access 

and Management System (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 

Public Document Room (PDR) Reference 

staff at (800) 397–4209, (301) 415–4737, 

or by e-mail to pdr@nrc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Frank Cardile, Office of Federal and 

State Materials and Environmental 

Management Programs, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001, telephone (301) 415– 

6185, e-mail: fpc@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Energy Policy Act of 2005 

On August 8, 2005, the President 

signed into law the EPAct of 2005 Pub. 

L. No. 109–58,119 Stat. 594 (2005). 

Section 656 of the EPAct added Section 

170I to the AEA, as amended, 42 U.S.C. 

2210i, and requires that: (a) A system be 

established by the Commission to 

ensure that materials transferred or 

received in the United States, by any 

party, pursuant to an import or export 

license issued by NRC, are accompanied 

by a manifest describing the type and 

amount of materials; (b) each individual 

receiving or accompanying the transfer 

of materials shall be subject to a security 

background check conducted by 

appropriate Federal entities; and (c) the 

Commission issue regulations, within 

one year after enactment of the EPAct, 

identifying radioactive materials or 

classes of individuals that, consistent 

with the protection of the public health 

and safety and the common defense and 

security, are appropriate exceptions to 

the requirements in Section 170I of the 

AEA. 

Rulemaking Considerations Related to 

Proposed Rule To Implement Section 

656 of the EPAct 

In preparing the proposed rule to 

implement Section 656 (71 FR 51534; 

August 30, 2006), the NRC determined 

that, based on existing requirements for 

shipping papers for radioactive 

materials already in place in 

Department of Transportation 

regulations and incorporated by 

reference in NRC regulations in 10 CFR 

part 71, an appropriate system is already 

established to ensure that shipments of 

radioactive materials, that would be 

affected by Section 656, are 

accompanied by papers (i.e., a manifest) 

appropriately describing the materials 

being shipped. Thus, NRC did not 

include any additional requirements for 

manifesting of radioactive material 

shipments in the proposed rule. 

In addition, the NRC determined that 

the most appropriate and 

comprehensive approach for 

establishing requirements for security 

background checks is as part of the 

broader considerations of NRC’s 

rulemaking to implement Section 652 of 

the EPAct. Section 652 mandates the 

Commission to require fingerprinting 

and criminal history record checks for 

any individual who is permitted 

unescorted access to risk-significant 

radioactive material. The individuals 

referred to under Section 656 are a 

subgroup (i.e., those transferring 

radioactive material pursuant to an 

export or import license) of the larger 

group of individuals at a licensed 

facility, with unescorted access to 

radioactive material, and will be 

covered by the comprehensive Section 

652 rulemaking. The Section 652 

proposed rule is currently in 

preparation and its schedule calls for 

issuance of a proposed rule in the Fall 

of 2007 and a final rule in the Fall of 

2008. 

While the Section 652 rulemaking is 

being conducted, NRC has a regulatory 

framework for security background 

checks through an extensive system of 

Orders issued during 2002–2006 that 

includes requirements for background 

checks, including fingerprinting for 

criminal history checks, for unescorted 

access to radioactive material for certain 

facilities which it licenses. NRC has also 

issued Orders to licensees for shipment 

of radioactive material in quantities of 

concern (RAMQC). The purpose of these 

Orders has been to impose certain 

security measures to supplement 

existing regulations at 10 CFR part 20, 

and equivalent Agreement State 

regulations, for securing licensed 

materials from unauthorized access, 

with the intent of providing the NRC 

with reasonable assurance that the 

common defense and security is 

protected. The Orders note that 

conditions for unescorted access to risksignificant sources of radioactive 

material are governed by an appropriate 

need-to-know and by background 

checks as input to a determination 

concerning the trustworthiness and 

reliability of individuals who have 

access to the material. Most recently, in 

October 2006, NRC issued Orders to 

pool-type irradiator licensees, 


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manufacturing and distribution (M&D) 

licensees, and licensees making 

shipments of RAMQC, to specifically 

require fingerprinting and criminal 

history checks for unescorted access to 

the risk-significant sources of 

radioactive material at their facilities. 

Issuance of Proposed Rule 

Consistent with Section 656(b) of the 

EPAct, the Commission proposed to 

amend NRC’s regulations to except from 

the security background check 

requirements of Section 170I of the 

AEA, as amended, licensees who have 

not received NRC Orders containing 

requirements for background checks for 

trustworthiness and reliability, that 

include fingerprinting and criminal 

history record checks, as a prerequisite 

for unescorted access to risk-significant 

radioactive materials. As noted above, 

Orders restricting access based on 

fingerprinting and criminal history 

record checks have been issued for pooltype irradiator licensees, M&D licensees, 

and licensees who make shipments of 

RAMQC. These licensees can use the 

provisions of their existing Orders (or 

new or amended Orders) to comply with 

Section 170I. Also, if additional Orders 

for fingerprinting and criminal history 

checks for unescorted access to 

radioactive material are issued to 

licensees other than those noted here, 

licensees who receive any such new 

Orders would no longer be excepted 

from the security background check 

requirements of Section 170I. 

The rationale for the exceptions is 

that it is consistent with the system of 

Orders, issued to certain licensees, that 

the NRC has instituted for protection of 

the common defense and security. The 

materials possessed and transferred by 

the licensees who have received Orders 

have been deemed, during the process 

of issuance of the Orders, to be 

appropriate for immediately requiring 

certain security measures for unescorted 

access based on potential higher risk 

resulting from malevolent use of those 

materials. 

The proposed rule was published in 

the Federal Register on August 30, 2006 

(71 FR 51534) as a proposed new § 73.28 

in 10 CFR part 73. 

II. Discussion 

Summary of Public Comments on the 

Proposed Rule 

The public comment period closed on 

September 29, 2006. In response to the 

request for comments, NRC received 

two comment responses, one from the 

Organization of Agreement States (OAS) 

and one from the Nuclear Energy 

Institute (NEI). 

The comment response from the OAS 

summarized the content of the NRC’s 

proposed rulemaking and its effect on 

Agreement States, including that the 

proposed Agreement State 

Compatibility Category of the proposed 

rule would be ‘‘NRC.’’ The comment 

response from the OAS concluded by 

stating that the NRC approach in the 

rulemaking seemed reasonable to the 

OAS Executive Board. 

The comment response letter from 

NEI stated that NEI supports the 

proposed rule as drafted. However, NEI 

also stated that there were two areas of 

confusion regarding the applicability of 

the rulemaking. In particular, NEI noted 

that there are a number of power reactor 

licensees that were not issued 

additional orders, but that have 

personnel who come in contact with 

radioactive materials in transit and who 

are not covered by existing rules in 10 

CFR 73.57. Particularly noted were 

personnel in shipping and receiving 

operations located outside of the 

protected area who are considered 

outside of the nuclear power facility and 

do not require access to Safeguards 

Information. The second area of 

confusion related to a NEI concern as to 

where this Section 656 rulemaking will 

end and where the referenced Section 

652 rulemaking, due for issuance in late 

2007, will start. 

With regard to the first point raised by 

NEI, the Supplementary Information in 

the Federal Register Notice, issuing the 

proposed rule, stated that this Section 

656 rulemaking is relying upon the 

framework of the existing system of 

NRC Orders, either in place or to be put 

into place, as the basis for codifying 

exceptions. This allows for a consistent 

approach for radioactive materials 

which NRC considers appropriate, at 

this time, for exception from the 

requirements of Section 170I of the AEA 

as amended by the EPAct. The materials 

possessed and transferred by licensees 

who have received Orders have been 

deemed, during the process of issuance 

of the Orders, to be appropriate for 

immediately requiring certain security 

measures for unescorted access based on 

potential higher risk resulting from 

malevolent use of those materials. 

Orders for fingerprinting and criminal 

history checks for persons at licensed 

facilities shipping RAMQC were issued 

in October 2006. As noted previously, 

the Section 652 rulemaking will take a 

more comprehensive approach in 

establishing requirements for security 

background checks for licensees, and for 

licensee employees, for unescorted 

access to radioactive material. To the 

extent that personnel at a nuclear power 

plant handle risk-significant material 

and are not currently covered by 

regulation and/or order with regard to 

background checks and fingerprinting, 

consideration can be given to including 

such licensee personnel in NRC’s 

framework of orders. If such additional 

Orders are issued, those licensees who 

have not previously received any such 

Orders would no longer be excepted 

from the security background check 

requirements of Section 170I, under the 

provisions of this final rule. 

With regard to the second point raised 

by NEI, the Supplementary Information 

in the proposed rule notes that the NRC 

intends to address background checks 

and fingerprinting for criminal history 

record checks for licensees in a more 

comprehensive manner under the 

rulemaking to implement Section 652 of 

the EPAct. One of the elements of that 

rulemaking, as mandated by Section 

652(B)(i)(ll), will be determining 

requirements for access to quantities of 

radioactive material, subject to 

regulation by the Commission, that the 

Commission determines to be of such 

significance to the public health and 

safety or to the common defense and 

security as to warrant fingerprinting and 

background checks. The requirements 

for exceptions in this Section 656 

rulemaking were issued as part of a 

mandate of Section 656 of the EPAct for 

a limited subset of licensee employees. 

If necessary, the requirements now 

codified at 10 CFR 73.28 will be 

revisited, and may be amended and/or 

superseded by the more comprehensive 

Section 652 rulemaking. 

Summary of Revisions to Proposed Rule 

After review of the public comments, 

the NRC has decided to make final the 

approach in the August 30, 2006, 

proposed rule (i.e., to amend NRC’s 

regulations to except from the security 

background check requirements of 

Section 170I those licensees that have 

not received NRC Orders restricting 

unescorted access to radioactive 

materials to individuals who have 

undergone background checks, for 

trustworthiness and reliability, that 

include fingerprinting and criminal 

history record checks). As of October 

2006, Orders for fingerprinting and 

criminal history checks for unescorted 

access to radioactive materials have 

been issued to pool-type irradiator 

licensees, M&D licensees, and licensees 

who make shipments of RAMQC. Under 

the provisions of the final rule, if 

additional Orders for fingerprinting and 

criminal history checks for unescorted 

access to radioactive material are issued 

to licensees other than those noted 

above, licensees who receive any such 

new Orders would no longer be 


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Federal Register / Vol. 72, No. 15 / Wednesday, January 24, 2007 / Rules and Regulations 3027 

excepted from the security background 

check requirements of Section 170I of 

the AEA. 

III. Section by Section Analysis of Final 

Rule 

New § 73.28 has not been revised 

from the wording in the proposed rule 

and continues to except licensees from 

the security background check 

provisions of Section 170I of the AEA if 

they have not received Orders from the 

NRC containing requirements for 

background checks for trustworthiness 

and reliability that include 

fingerprinting and criminal history 

checks as a prerequisite for unescorted 

access to radioactive materials. 

Licensees subject to Orders are not 

excepted from the security background 

check provisions, and would use the 

requirements in their existing Orders to 

comply with Section 170I of the AEA. 

IV. Voluntary Consensus Standards 

The National Technology Transfer 

and Advancement Act of 1995 (Pub. L. 

104–113) requires that Federal agencies 

use technical standards that are 

developed or adopted by voluntary 

consensus standards bodies unless the 

use of such a standard is inconsistent 

with applicable law or otherwise 

impractical. In this final rule, NRC is 

indicating specific exceptions to the 

requirements of Section 656 of the 

EPAct. This action does not constitute 

the establishment of a standard that 

establishes generally applicable 

requirements. 

V. Agreement State Compatibility 

Under the ‘‘Policy Statement on 

Adequacy and Compatibility of 

Agreement State Programs,’’ which 

became effective on September 3, 1997 

(62 FR 46517), NRC program elements 

(including regulations) are placed into 

four compatibility categories 

(Compatibility Category A through D). 

In addition, NRC program elements also 

can be identified as having particular 

health and safety significance or as 

being reserved solely to NRC. 

The amendment to 10 CFR part 73 is 

a program element designated ‘‘NRC’’

based on implementation of the 

procedure in NRC’s Management 

Directive 5.9, ‘‘Adequacy and 

Compatibility of Agreement States.’’ The 

requirements in this amendment are 

limited to providing exceptions to 

requirements in Section 170I of the AEA 

and are based on a system of Orders that 

were developed under NRC’s authority 

to protect the common defense and 

security which are areas of exclusive 

NRC regulatory authority and cannot be 

relinquished to the Agreement States. 

Therefore, the requirements of this 

amendment should not be adopted by 

the Agreement States. 

VI. Environmental Impact: Categorical 

Exclusion 

NRC has determined that this final 

rule is the type of action described in 10 

CFR 51.22(c)(3)(ii) as a categorical 

exclusion. Therefore, neither an 

environmental impact statement nor an 

environmental assessment has been 

prepared for this final rule. 

VII. Paperwork Reduction Act 

Statement 

This final rule does not contain new 

or amended information collection 

requirements subject to the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). 

Existing requirements were approved 

by the Office of Management and 

Budget, approval number 3150–0002. 

VIII. Public Protection Notification 

The NRC may not conduct or sponsor, 

and a person is not required to respond 

to, a request for information or an 

information collection requirement 

unless the requesting document 

displays a currently valid Office of 

Management and Budget control 

number. 

IX. Regulatory Analysis 

A regulatory analysis has not been 

prepared for this regulation because it 

relieves restrictions and does not 

impose any additional burdens on 

licensees. 

X. Regulatory Flexibility Certification 

As required by the Regulatory 

Flexibility Act of 1980, 5 U.S.C. 605(b), 

the Commission certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities. The amendment does not 

impose any additional burdens on 

licensees. 

XI. Backfit Analysis 

NRC has determined that the backfit 

rule (§§ 50.109, 70.76, 72.62, or 76.76) 

does not apply to this final rule because 

this amendment does not involve any 

provisions that would impose backfits 

as defined in the backfit rule. Therefore, 

a backfit analysis is not required. 

XII. Congressional Review Act 

In accordance with the Congressional 

Review Act of 1996, the NRC has 

determined that this action is not a 

major rule and has verified this 

determination with the Office of 

Information and Regulatory Affairs of 

OMB. 

List of Subjects in 10 CFR Part 73 

Criminal penalties, Export, Hazardous 

materials transportation, Import, 

Nuclear materials, Nuclear power plants 

and reactors, Reporting and 

recordkeeping requirements, Security 

measures. 

■ For the reasons set out in the 

preamble and under the authority of the 

AEA, as amended; the Energy 

Reorganization Act of 1974, as 

amended; and 5 U.S.C. 552 and 553; 

NRC is adopting the following 

amendment to 10 CFR part 73. 

PART 73—PHYSICAL PROTECTION OF 

PLANTS AND MATERIALS 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: Secs. 53, 161, 68 Stat. 930, 948, 

as amended, sec. 147, 94 Stat. 780 (42 U.S.C. 

2073, 2167, 2201); sec. 201, as amended, 204, 

88 Stat. 1242, as amended, 1245, sec. 1701, 

106 Stat. 2951, 2952, 2953 (42 U.S.C. 5841, 

5844, 2297f); sec. 1704, 112 Stat. 2750 (44 

U.S.C. 3504 note). 

Section 73.1 also issued under secs. 135, 

141, Pub. L. 97–425, 96 Stat. 2232, 2241 (42 

U.S.C, 10155, 10161). Section 73.37(f) also 

issued under sec. 301, Pub. L. 96–295, 94 

Stat. 789 (42 U.S.C. 5841 note). Section 73.57 

is issued under sec. 606, Pub. L. 99–399, 100 

Stat. 876 (42 U.S.C. 2169). 

■ 2. Section 73.28 is added to read as 

follows: 

§ 73.28 Security background checks for 

secure transfer of nuclear materials. 

Licensees are excepted from the 

security background check provisions in 

Section 170I of the AEA if they have not 

received Orders from the Nuclear 

Regulatory Commission containing 

requirements for background checks for 

trustworthiness and reliability that 

include fingerprinting and criminal 

history record checks as a prerequisite 

for unescorted access to radioactive 

materials. 

Dated at Rockville, Maryland, this 18th day 

of January 2007. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. E7–971 Filed 1–23–07; 8:45 am] 

BILLING CODE 7590–01–P 


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