33902 Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Proposed Rules 

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 risksignificant quantities of radioactive 

material should be subject to 

background investigations. 

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Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Proposed Rules 33903 

As part of the development of the 

enhanced security measures, the NRC 

performed vulnerability assessments to 

identify gaps or vulnerabilities in 

security and the effectiveness and costs 

of certain physical protection 

enhancements at various licensed 

facilities. The results of the 

vulnerability assessments were used in 

the development of security 

enhancement orders that were issued to 

licensees using a graded approach based 

on the relative risk and quantity of 

material possessed by the licensee. The 

NRC issued the first series of orders to 

certain panoramic and underwater 

irradiator licensees that possessed more 

than 370 TBq (10,000 Ci) of radioactive 

material (EA–02–249; June 6, 2003) (68 

FR 35458; June 13, 2003). The next 

series of orders were issued to certain 

manufacturing and distribution (M&D) 

licensees (EA–03–225; January 12, 2004) 

(69 FR 5375; February 4, 2004). These 

orders require the implementation of 

additional security measures and the 

protection of the licensee’s physical 

protection information as Safeguards 

Information—Modified Handling (SGI– 

M). The original orders are not publicly 

available because they contain detailed 

security requirements that are 

designated as SGI–M. However, 

redacted versions of these orders have 

been made available to the public (73 

FR 33859; June 13, 2008, and 73 FR 

49714; August 22, 2008). These orders 

were issued to both NRC and Agreement 

State licensees under the NRC’s 

authority to protect the common defense 

and security. Subsequently, the NRC 

issued Increased Control Orders (EA– 

05–090; November 14, 2005) (70 FR 

72128; December 1, 2005) to other 

licensees authorized to possess certain 

risk-significant quantities of radioactive 

material (category 1 and category 2 

quantities). The Increased Control 

Orders do not contain safeguards 

information (SGI) or SGI–M and are 

available on the NRC’s public Web site 

at http://www.nrc.gov/security/ 

byproduct/orders.html. These orders 

were issued under the NRC’s authority 

to protect public health and safety, and 

require licensees to implement 

enhanced security measures known as 

Increased Controls. To effect nationwide 

implementation of the Increased Control 

Orders, each Agreement State issued 

legally binding requirements to put 

enhanced security measures, identical 

to the Increased Controls, in place for 

licensees under that State’s regulatory 

jurisdiction. 

These security orders specifically 

address the security of byproduct 

material possessed in quantities greater 

than, or equal to, category 1 and 

category 2 quantities. The orders 

provide for enhanced security measures 

for such things as license verification 

before transfer, intrusion detection and 

response, access control, and 

coordination with local law 

enforcement authorities (LLEAs). The 

orders also contain requirements for the 

licensee to determine the 

trustworthiness and reliability of 

individuals permitted unescorted access 

to risk-significant radioactive materials. 

The determination involves a 

background investigation of the 

individual. The background 

investigations were originally limited to 

local criminal history records checks 

with law enforcement agencies, 

verification of employment history, 

education, personal references, and 

confirmation of employment eligibility 

(legal immigration status). 

In 2005, Congress passed, and the 

President signed, the Energy Policy Act 

of 2005 (EPAct). The EPAct amended 

Section 149 of the Atomic Energy Act 

(AEA) to authorize the Commission to 

require to be fingerprinted any 

individual who is permitted unescorted 

access to radioactive material or other 

property subject to regulation by the 

Commission that the Commission 

determines to be of such significance to 

the public health and safety or the 

common defense and security as to 

warrant fingerprinting and a Federal 

Bureau of Investigation (FBI) criminal 

history records check. With this new 

authority, the Commission determined 

that individuals who have access to 

category 1 and category 2 quantities of 

radioactive material warrant 

fingerprinting and FBI criminal history 

records checks. On October 17, 2006, 

the NRC issued orders to panoramic and 

underwater irradiator licensees (EA–06– 

248) (71 FR 63043; October 27, 2006), 

manufacturer and distributor licensees 

(EA–06–250) (71 FR 63046; October 27, 

2006), and licensees making shipments 

of category 1 quantities of radioactive 

material (EA–06–249) (71 FR 62302; 

October 24, 2006) to require 

fingerprinting and FBI criminal history 

records checks for unescorted access to 

risk-significant quantities of radioactive 

material at their facilities. In issuing 

these orders, NRC noted that a 

malevolent act by an individual with 

unescorted access to these materials 

could result in significant adverse 

impacts to the public health and safety 

or the common defense and security 

and, thus, necessitated expedited 

implementation of fingerprinting 

requirements. The orders were issued to 

both NRC and Agreement State 

licensees under the NRC’s authority to 

protect the common defense and 

security. On December 5, 2007, the NRC 

issued orders to all other NRC licensees 

that possessed category 1 or category 2 

quantities of radioactive material (EA– 

07–305) (72 FR 70901; December 13, 

2007) to require fingerprinting and FBI 

criminal history records checks for 

unescorted access to category 1 or 

category 2 quantities of radioactive 

material. These orders were issued 

under the NRC’s authority to protect the 

public health and safety and are 

available on the NRC public Web site at 

http://www.nrc.gov/security/byproduct/ 

orders.html. To effect nationwide 

implementation, each Agreement State 

issued legally binding requirements to 

licensees under their regulatory 

jurisdiction. 

During the same time period, efforts 

were underway to enhance 

transportation security of category 1 and 

category 2 quantities of radioactive 

materials. The NRC issued two sets of 

orders to licensees transporting 

radioactive material in quantities of 

concern. The first set of transportation 

security orders was issued to certain 

licensees that might be expected to 

transport radioactive materials in 

quantities of concern (category 1 

quantities) (EA–05–006; July 19, 2005) 

(70 FR 44407; August 2, 2005). The 

orders require the implementation of 

additional security measures and the 

protection of the licensee’s physical 

protection information as SGI–M. The 

original orders are not publicly available 

because they contain detailed security 

requirements that are designated as 

SGI–M. However, a redacted version of 

the order is publicly available (73 FR 

51016; August 29, 2008). These orders 

were issued to both NRC and Agreement 

State licensees under the NRC’s 

authority to protect the common defense 

and security. Subsequently, the NRC 

issued orders (EA–05–090; November 

14, 2005) (70 FR 72128; December 1, 

2005) to other licensees authorized to 

possess certain risk-significant 

quantities of radioactive material 

(category 2 quantities). The Increased 

Control Orders mentioned earlier also 

contain requirements for transporting 

category 2 quantities of radioactive 

material. 

These security orders specifically 

address the transportation security of 

byproduct material transported in 

quantities greater than, or equal to, 

category 2. The additional security 

measures contained in the orders 

provide for enhanced security measures 

during transportation that are beyond 

the current regulations, including 

enhanced security in preplanning and 

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33904 Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Proposed Rules 

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-andcomment 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, lessonslearned during implementation of the 

orders, the recommendations of the 

Independent External Review Panel and 

the Materials Program Working Group, 

and stakeholder comments received on 

the orders and the preliminary rule 

language that was posted on 

Regulations.gov. The Commission 

chartered the Independent External 

Review Panel to: (1) Identify 

vulnerabilities in the NRC’s materials 

licensing program with respect to 

import, export, specific, and general 

licenses; (2) validate the ongoing 

byproduct material security efforts; and 

(3) evaluate the apparent ‘‘good faith 

presumption’’ that pervades the NRC 

licensing process. The Panel’s March 

2008 report is available in ADAMS 

under accession number ML080700957. 

The Materials Program Working Group 

conducted a comprehensive evaluation 

of the materials program to identify 

short- and long-term strategies to 

mitigate security vulnerabilities. The 

Working Group report contains sensitive 

information and is not publicly 

available. However, the Group’s 

comments on the Panel’s report are 

publicly available in ADAMS under 

accession number ML080660424. 

In developing the basis for the 

transportation security aspects of the 

rule, NRC held three public meetings to 

seek public comment on the 

development of the technical basis. The 

NRC published information on the 

requirements being considered along 

with some background information and 

a notice of the three meetings (73 FR 

826; January 4, 2008). In response the 

NRC received more than 100 comments 

from stakeholders that were used to 

finalize the technical basis for the 

transportation portion of this 

rulemaking. The comments addressed a 

number of issues and concerns. 

However, most focused on clarifying 

requirements, adding efficiencies, and 

improving the processes that licensees 

follow to comply with the additional 

security measures currently enforced 

under security orders. 

During the development of the 

proposed rule, the NRC posted 

preliminary rule text for public 

comment on http://www.regulations.gov 

under Docket ID NRC–2008–0120. The 

posting of the preliminary rule text was 

noticed in the Federal Register and 

included the portions of the rule that 

address background investigation and 

access control aspects (subpart B) (74 FR 

17794; April 17, 2009), enhanced 

security during use (subpart C) (74 FR 

20235; May 1, 2009), and transportation 

security aspects (subpart D) (73 FR 

69590; November 19, 2008). The NRC 

allowed a 45-day comment period for 

each subpart. In the documents 

announcing the availability of the 

preliminary regulatory text, the NRC 

made it clear that it would not respond 

to any of the comments received during 

this pre-rulemaking stage. The NRC did 

consider the public input on the 

preliminary rule text in finalizing the 

proposed rule, and areas where they 

made a substantive change based on the 

comments are discussed in this 

Statement of Considerations. The NRC 

also made some editorial changes based 

on the comments; these changes are not 

discussed further. 

PRM–71–13 

On July 16, 2008 (73 FR 40767), the 

NRC published the resolution and 

closure of a petition for rulemaking 

(PRM) filed by Christine O. Gregoire, 

Governor of the State of Washington 

(PRM–71–13). The NRC indicated that 

the issues raised by the petitioner would 

be considered in an ongoing rulemaking 

on the security requirements for the 

transportation of radioactive material in 

quantities of concern. 

The petitioner requested that the NRC 

adopt the use of global positioning 

system (GPS) tracking as a national 

requirement for vehicles transporting 

highly radioactive mobile or portable 

radioactive devices. The petitioner 

stated that the Commission could 

instead grant States the flexibility to 

impose more stringent requirements 

than those required under the current 

increased controls. The petitioner 

believes that GPS technology is an 

effective and relatively inexpensive tool 

that will help when a vehicle with 

radioactive material is missing, but also 

acknowledged that requiring a GPS on 

these vehicles does not ensure that the 

radiological source will be found. 

However, the petitioner believes that 

these suggestions would give law 

enforcement a significant advantage. 

The NRC considered the issues 

identified by the petitioner and the 

petitioner’s suggested approach to 

address those issues in the development 

of this proposed rule. 

II. Discussion 

The NRC believes that a new part of 

the Code of Federal Regulations (CFR) 

should be established for the security 

requirements for use of category 1 and 

category 2 quantities of radioactive 

material. The concept for using a 

separate part for safety and physical 

protection requirements has already 

been established for special nuclear 

material (10 CFR part 73). The 

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Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Proposed Rules 33905 

establishment of a new part for securityrelated 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; californium252; curium-244; cobalt-60; cesium-137; 

gadolinium-153; iridium-192; 

plutonium-238; plutonium-239/ 

beryllium; promethium-147; radium226; 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 Category 2 Threshold 

Terabecquerels 

(TBq) 

Curies 

(Ci) 

Terabecquerels 

(TBq) 

Curies 

(Ci) 

Americium-241 ............................................................................. 60 1,620 0 .6 16 .2 

Americium-241/Beryllium ............................................................. 60 1,620 0 .6 16 .2 

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33906 Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Proposed Rules 

Radioactive Material 

Category 1 Threshold Category 2 Threshold 

Terabecquerels 

(TBq) 

Curies 

(Ci) 

Terabecquerels 

(TBq) 

Curies 

(Ci) 

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 

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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 

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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 risksignificant 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 

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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. 

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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 

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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 needto-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 

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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 

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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. 

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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 

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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, 

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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 

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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 

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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 nolater-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 nolater-than arrival time changes? 

Yes. If the no-later-than arrival time 

will not be met, then under § 37.75(d) of 

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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://nrcstp.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 nolater-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-thanarrival 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 

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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. 

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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 NRCapproved 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. 

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33922 Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Proposed Rules 

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, Nolater-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. 

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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 

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33924 Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Proposed Rules 

results of the review and any findings 

and keep the records for 5 years. 

Section 37.57 Reporting of Events 

Paragraph (a) would require licensees 

to immediately notify the LLEA of any 

actual or attempted theft, sabotage, or 

diversion of category 1 or category 2 

quantities of radioactive material and to 

then notify the NRC. 

Paragraph (b) would require licensees 

to notify the LLEA upon discovery of 

any suspicious activity related to the 

theft, sabotage, or diversion of category 

1 or category 2 quantities of radioactive 

material and to then notify the NRC. 

Paragraph (c) would require licensees 

to submit a written report to the NRC 

within 30 days of any report of actual 

or attempted theft, sabotage, or 

diversion of radioactive material. 

Section 37.71 Additional 

Requirements for Transfer of Category 1 

and Category 2 Quantities of 

Radioactive Material 

This section would establish new 

requirements for licensees transferring 

category 1 and category 2 quantities of 

radioactive material. 

Section 37.73 Applicability of Physical 

Protection of Category 1 and Category 2 

Quantities of Radioactive Material 

During Transit 

This section would establish which 

requirements apply to licensees 

shipping category 1 or category 2 

quantities of radioactive material and 

what requirements apply during the 

domestic portion of a shipment that is 

imported from another country. This 

section would also allow the receiving 

licensee to arrange for the in-transit 

physical protection of a shipment 

instead of the shipping licensee as long 

as the agreement is in writing. 

Section 37.75 Preplanning and 

Coordination of Shipment of Category 1 

or Category 2 Quantities of Radioactive 

Material 

This section would establish the 

preplanning and coordination necessary 

for a shipment of category 1 or category 

2 quantities of radioactive material. 

Section 37.77 Advance Notification of 

Shipment of Category 1 Quantities of 

Radioactive Material. 

This section would establish the 

requirements for advance notification to 

the NRC and the governor of a State, or 

the governor’s designee, of the shipment 

of category 1 quantities of radioactive 

material that will pass through or across 

the State. 

Section 37.79 Requirements for 

Physical Protection of Category 1 and 

Category 2 Quantities of Radioactive 

Material During Shipment 

This section would establish the 

physical protection requirements for 

shipments of category 1 and category 2 

quantities of radioactive material. 

Paragraph (a)(1) would establish the 

requirements for shipping a category 1 

quantity of radioactive material by road. 

Paragraph (a)(2) would establish the 

requirements for a licensee that 

transports category 2 quantities of 

radioactive material by road. Paragraph 

(a)(3) would establish the requirements 

for a licensee that uses a carrier for 

shipping category 2 quantities of 

radioactive material. 

Paragraph (b)(1) would establish the 

requirements for shipping category 1 

quantities of radioactive material by rail. 

Paragraph (b)(2) would establish the 

security requirements for shipping 

category 2 quantities of radioactive 

material by rail. 

Paragraph (c)(1) would require 

licensees who make arrangements for 

the shipment of category 1 quantities of 

radioactive material to develop written 

normal and contingency procedures to 

address notifications, communication 

protocols, loss of communication, and 

response to actual or attempted theft or 

diversion of a shipment, or any 

suspicious activity related to a 

shipment. Paragraph (c)(2) would 

require licensees to ensure that drivers, 

accompanying personnel, train crew, 

and movement control center personnel 

are trained in and understand both the 

normal and contingency procedures. 

Paragraph (d) would require the 

shipping licensee to immediately 

conduct an investigation of any 

shipment of category 1 or category 2 

quantities of radioactive material that is 

lost or unaccounted for after the 

designated no-later-than arrival time in 

the advance notification. 

Section 37.81 Reporting of Events 

This section would establish 

requirements for the shipping licensee 

to make notifications upon the 

discovery that a shipment is lost or 

missing and upon discovery of any 

actual or attempted theft or diversion of 

a shipment, or suspicious activities 

related to the theft or diversion of a 

shipment of either a category 1 or 

category 2 quantity of radioactive 

material. This section would also 

establish requirements for notification 

upon recovery of a lost or missing 

shipment. Written follow-up reports 

would be required for all notifications. 

Section 37.101 Form of Records 

This section would establish the 

requirements for the storage and 

protection of records required by this 

part. 

Section 37.103 Record Retention 

This section would establish the 

Commission’s termination of the license 

as the end point of the retention period 

for any record where a specific retention 

period is not specified. 

Section 37.105 Inspections 

Paragraph (a) would require licensees 

to allow the Commission the 

opportunity to inspect the materials and 

facilities subject to 10 CFR part 37. 

Paragraph (b) would require the 

licensee to make available for inspection 

any records subject to 10 CFR part 37. 

Section 37.107 Violations 

Paragraph (a) of this section would 

establish that the Commission may 

obtain an injunction or other court order 

to prevent a violation of the AEA, Title 

II of the Energy Reorganization Act of 

1974, as amended; or a regulation or 

order issued under those Acts. 

Paragraph (b) of this section would 

establish the violations for which the 

Commission may obtain a court order 

for the payment of a civil penalty 

imposed under section 234 of the AEA. 

Section 37.109 Criminal Penalties 

This section would establish the 

sections in 10 CFR part 37 that are 

issued under one or more of sections 

161b, 161i, or 161o and are therefore 

subject to criminal sanctions for willful 

violations of, attempted violation of, or 

conspiracy to violate the regulation. 

Appendix A to 10 CFR Part 37— 

Category 1 and Category 2 Radioactive 

Materials 

Table 1 of this appendix would 

establish the radionuclides and 

associated thresholds for category 1 and 

category 2 quantities of radioactive 

material. The appendix would also 

provide the methodology for calculating 

the sum of fractions for evaluating 

combinations of multiple radionuclides. 

Section 39.1 Purpose and Scope 

10 CFR part 37 would be added to the 

list of 10 CFR parts that apply to 

applications and licenses subject to this 

part. 

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Section 51.22 Criterion for Categorical 

Exclusion; Identification of Licensing 

and Regulatory Actions Eligible for 

Categorical Exclusion or Otherwise Not 

Requiring Environmental Review 

Paragraph (c)(3) would be revised to 

include 10 CFR part 37. 

Section 71.97 Advance Notification of 

Shipment of Irradiated Reactor Fuel and 

Nuclear Waste 

Paragraph (b) would be revised to 

delete the reference to shipments of 

irradiated reactor fuel in quantities less 

than that subject to the advance 

notification requirements of § 73.37(f). 

Proposed § 73.35 would provide that 

such irradiated reactor fuel shipments 

be subject to the same requirements that 

apply to shipments of category 1 

radioactive material, including the 

advance notification requirements. 

Section 73.35 Requirements for 

Physical Protection of Irradiated Reactor 

Fuel (100 Grams or Less) in Transit 

A new section would be added to 10 

CFR part 73 to address the physical 

protection requirements for shipments 

of irradiated reactor fuel weighing 100 

g (0.22 lb) or less in net weight of 

irradiated fuel, exclusive of cladding or 

other structural or packaging material, 

which has a total external radiation dose 

rate in excess of 1 Sv (100 rem) per hour 

at a distance of 0.91 m (3 ft) from any 

accessible surface without intervening 

shielding. The material would be 

subject to the same transportation 

security requirements as category 1 

quantities of radioactive material. 

IV. Criminal Penalties 

For the purpose of Section 223 of the 

AEA, the Commission is proposing to 

amend 10 CFR parts 30, 32, 33, 34, 35, 

36, 39, 51, 71, and 73 and add new part 

37 under one or more of Sections 161b, 

161i, or 161o of the AEA. Willful 

violations of the rule would be subject 

to criminal enforcement. 

V. Agreement State Compatibility 

Under the ‘‘Policy Statement on 

Adequacy and Compatibility of 

Agreement State Programs’’ approved by 

the Commission on June 30, 1997, and 

published in the Federal Register (62 

FR 46517; September 3, 1997), this 

proposed rule would be a matter of 

compatibility between the NRC and the 

Agreement States, thereby providing 

consistency among the Agreement 

States and the NRC requirements. The 

NRC staff analyzed the proposed rule in 

accordance with the procedure 

established within Part III, 

‘‘Categorization Process for NRC 

Program Elements,’’ of Handbook 5.9 to 

Management Directive 5.9, ‘‘Adequacy 

and Compatibility of Agreement State 

Programs’’ (a copy of which may be 

viewed at http://www.nrc.gov/readingrm/doc-collections/managementdirectives/). 

The NRC program elements 

(including regulations) are placed into 

four compatibility categories (See the 

Draft Compatibility Table in this 

section). In addition, the NRC program 

elements can also be identified as 

having particular health and safety 

significance or as being reserved solely 

to the NRC. Compatibility Category A 

are those program elements that are 

basic radiation protection standards and 

scientific terms and definitions that are 

necessary to understand radiation 

protection concepts. An Agreement 

State should adopt Category A program 

elements in an essentially identical 

manner to provide uniformity in the 

regulation of agreement material on a 

nationwide basis. Compatibility 

Category B are those program elements 

that apply to activities that have direct 

and significant effects in multiple 

jurisdictions. An Agreement State 

should adopt Category B program 

elements in an essentially identical 

manner. Compatibility Category C are 

those program elements that do not 

meet the criteria of Category A or B, but 

the essential objectives of which an 

Agreement State should adopt to avoid 

conflict, duplication, gaps, or other 

conditions that would jeopardize an 

orderly pattern in the regulation of 

agreement material on a nationwide 

basis. An Agreement State should adopt 

the essential objectives of the Category 

C program elements. Compatibility 

Category D are those program elements 

that do not meet any of the criteria of 

Category A, B, or C, above, and, thus, do 

not need to be adopted by Agreement 

States for purposes of compatibility. 

Health and Safety (H&S) are program 

elements that are not required for 

compatibility, but are identified as 

having a particular health and safety 

role (i.e., adequacy) in the regulation of 

agreement material within the State. 

Although not required for compatibility, 

the State should adopt program 

elements in this H&S category based on 

those of the NRC that embody the 

essential objectives of the NRC program 

elements because of particular health 

and safety considerations. Compatibility 

Category NRC are those program 

elements that address areas of regulation 

that cannot be relinquished to 

Agreement States under the AEA or 

provisions of Title 10 of the Code of 

Federal Regulations. These program 

elements are not adopted by Agreement 

States. The following table lists the Parts 

and Sections that would be created or 

revised and their corresponding 

categorization under the ‘‘Policy 

Statement on Adequacy and 

Compatibility of Agreement State 

Programs.’’ A bracket around a category 

means that the section may have been 

adopted elsewhere, and it is not 

necessary to adopt it again. 

The NRC invites comment on the 

compatibility category designations in 

the proposed rule and suggests that 

commenters refer to Handbook 5.9 of 

Management Directive 5.9 for more 

information. The NRC notes that, like 

the rule text, the compatibility category 

designations can change between the 

proposed rule and final rule, based on 

comments received and Commission 

decisions regarding the final rule. The 

NRC encourages anyone interested in 

commenting on the compatibility 

category designations in any manner to 

do so during the comment period. 

DRAFT COMPATIBILITY TABLE FOR PROPOSED RULE

Section Change Subject 

Compatibility 

Existing New 

Part 30 

30.6 ...................................... Amend ................................. Communications ............................................................... D D 

30.13 .................................... Amend ................................. Carriers ............................................................................. B B 

30.32(l) ................................. New ..................................... Application of specific licenses ........................................ C 

30.33(a)(4) ........................... Amend ................................. General requirements for issuance of specific licenses .. D D 

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DRAFT COMPATIBILITY TABLE FOR PROPOSED RULE—Continued 

Section Change Subject 

Compatibility 

Existing New 

Part 32 

32.1(b) ................................. Amend ................................. Purpose and scope .......................................................... D D 

Part 33 

33.1 ...................................... Amend ................................. Purpose and scope .......................................................... D D 

Part 34 

34.1 ...................................... Amend ................................. Purpose and scope .......................................................... D D 

Part 35 

35.1 ...................................... Amend ................................. Purpose and scope .......................................................... D D 

Part 36 

36.1 ...................................... Amend ................................. Purpose and scope .......................................................... D D 

Part 37 

37.1 ...................................... New ..................................... Purpose ............................................................................ D 

37.3 ...................................... New ..................................... Scope ............................................................................... D 

37.5 ...................................... New ..................................... Definition Access control .................................................. C 

37.5 ...................................... New ..................................... Definition Act .................................................................... D 

37.5 ...................................... New ..................................... Definition Aggregated ....................................................... C 

37.5 ...................................... New ..................................... Definition Agreement State .............................................. [B] 

37.5 ...................................... New ..................................... Definition Approved individual .......................................... B 

37.5 ...................................... New ..................................... Definition Background Investigation ................................. C 

37.5 ...................................... New ..................................... Definition Becquerel ......................................................... [A] 

37.5 ...................................... New ..................................... Definition Byproduct Material ........................................... [H&S] 

37.5 ...................................... New ..................................... Definition Category 1 quantities of radioactive material .. B 

37.5 ...................................... New ..................................... Definition Category 2 quantities of radioactive material .. B 

37.5 ...................................... New ..................................... Definition Commission ..................................................... D 

37.5 ...................................... New ..................................... Definition Curie ................................................................. [A] 

37.5 ...................................... New ..................................... Definition Diversion .......................................................... C 

37.5 ...................................... New ..................................... Definition Escorted access ............................................... B 

37.5 ...................................... New ..................................... Definition Fingerprint Orders ............................................ C 

37.5 ...................................... New ..................................... Definition Government agency ......................................... D 

37.5 ...................................... New ..................................... Definition Isolation ............................................................ C 

37.5 ...................................... New ..................................... Definition License ............................................................. D 

37.5 ...................................... New ..................................... Definition License issuing agency .................................... D 

37.5 ...................................... New ..................................... Definition Local law enforcement agency ........................ C 

37.5 ...................................... New ..................................... Definition Lost or missing material ................................... [B] 

37.5 ...................................... New ..................................... Definition Mobile device ................................................... B 

37.5 ...................................... New ..................................... Definition Movement control center ................................. B 

37.5 ...................................... New ..................................... Definition No-later-than arrival time ................................. B 

37.5 ...................................... New ..................................... Definition Person .............................................................. [C] 

37.5 ...................................... New ..................................... Definition Reviewing official ............................................. C 

37.5 ...................................... New ..................................... Definition Sabotage .......................................................... C 

37.5 ...................................... New ..................................... Definition Safe haven ....................................................... B 

37.5 ...................................... New ..................................... Definition Security zone ................................................... C 

37.5 ...................................... New ..................................... Definition State ................................................................. D 

37.5 ...................................... New ..................................... Definition Telemetric position monitoring system ............ B 

37.5 ...................................... New ..................................... Definition Temporary job site ........................................... B 

37.5 ...................................... New ..................................... Definition Trustworthiness and reliability ......................... B 

37.5 ...................................... New ..................................... Definition Unescorted access .......................................... B 

37.5 ...................................... New ..................................... Definition United States ................................................... D 

37.7 ...................................... New ..................................... Communications ............................................................... D 

37.9 ...................................... New ..................................... Interpretations .................................................................. D 

37.11(a) ............................... New ..................................... Specific exemptions ......................................................... D 

37.11(b) ............................... New ..................................... Specific exemptions ......................................................... NRC 

37.13 .................................... New ..................................... Information collection requirements: OMB approval ........ D 

37.21(a) ............................... New ..................................... General ............................................................................. C 

37.21(b) ............................... New ..................................... General performance objective ........................................ B 

37.21(c) ................................ New ..................................... Applicability ...................................................................... B 

37.23(a) ............................... New ..................................... Granting unescorted access authorization ...................... B 

37.23(b) ............................... New ..................................... Reviewing officials ............................................................ B 

37.23(c) ................................ New ..................................... Informed consent ............................................................. B 

37.23(d) ............................... New ..................................... Personal history disclosure .............................................. B 

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DRAFT COMPATIBILITY TABLE FOR PROPOSED RULE—Continued 

Section Change Subject 

Compatibility 

Existing New 

37.23(e) ............................... New ..................................... Determination basis ......................................................... B 

37.23(f) ................................ New ..................................... Procedures ....................................................................... C 

37.23(g) ............................... New ..................................... Right to correct and complete information ....................... B 

37.23(h) ............................... New ..................................... Records ............................................................................ C 

37.25(a) ............................... New ..................................... Initial investigation ............................................................ B 

37.25(b) ............................... New ..................................... Grandfathering ................................................................. C 

37.25(c) ................................ New ..................................... Reinvestigations ............................................................... B 

37.27(a) ............................... New ..................................... General performance objective and requirements .......... B 

37.27(b) ............................... New ..................................... Prohibitions ....................................................................... B 

37.27(c) ................................ New ..................................... Procedures for processing fingerprint checks ................. B 

37.29 .................................... New ..................................... Relief from fingerprinting, identification, and criminal history records checks and other elements of a background investigations for designated categories of individuals permitted unescorted access to certain radioactive materials or other property.B 

37.31(a)–(d) ......................... New ..................................... Protection of information .................................................. B 

37.31(e) ............................... New ..................................... Protection of information .................................................. C 

37.33(a), (b), (c) .................. New ..................................... Access authorization program review .............................. C 

37.41(a) ............................... New ..................................... Applicability ...................................................................... B 

37.41(b) ............................... New ..................................... General performance objective ........................................ B 

37.41(c) ................................ New ..................................... Program features ............................................................. C 

37.41(d) ............................... New ..................................... Information submittal and notification .............................. C 

37.43(a) ............................... New ..................................... Security plan .................................................................... B 

37.43(b) ............................... New ..................................... Implementing procedures ................................................. C 

37.43(c)(1)–(c)(3) ................. New ..................................... Training ............................................................................ B 

37.43(c)(4) ........................... New ..................................... Training ............................................................................ C 

37.43(d)(1)–(d)(7) ................ New ..................................... Protection of Information .................................................. C 

37.43(d)(8) ........................... New ..................................... Protection of Information .................................................. NRC 

37.45(a) ............................... New ..................................... LLEA coordination ............................................................ B 

37.45(b) ............................... New ..................................... LLEA notification for temporary job sites ......................... B 

37.45(c) ................................ New ..................................... Records ............................................................................ C 

37.47(a)–(d) ......................... New ..................................... Security Zones ................................................................. B 

37.49(a) ............................... New ..................................... Monitoring and detection .................................................. B 

37.49(b) ............................... New ..................................... Assessment ...................................................................... B 

37.49(c) ................................ New ..................................... Personnel communications and data transmission ......... B 

37.49(d) ............................... New ..................................... Response ......................................................................... B 

37.51 .................................... New ..................................... Maintenance, testing, and calibration .............................. C 

37.53 .................................... New ..................................... Requirements for mobile devices .................................... B 

37.55(a), (b), (c) .................. New ..................................... Security program review .................................................. C 

37.57(a) ............................... New ..................................... Reporting of events .......................................................... C 

37.57(b) ............................... New ..................................... Reporting of events .......................................................... C 

37.71(a), (b) ......................... New ..................................... Additional requirements for transfer of category 1 and 

category 2 quantities of radioactive material.

B 

37.71(c) ................................ New ..................................... Additional requirements for transfer of category 1 and 

category 2 quantities of radioactive material.

C 

37.73(a), (b), (d), (e) ............ New ..................................... Applicability of physical protection of category 1 and 

category 2 quantities of radioactive material during 

transit.

D 

37.73(c) ................................ New ..................................... Applicability of physical protection of category 1 and 

category 2 quantities of radioactive material during 

transit.

B 

37.75(a)–(d) ......................... New ..................................... Preplanning and coordination of shipment of category 1 

or category 2 quantities of radioactive material.

B 

37.75(e) ............................... New ..................................... Preplanning and coordination of shipment of category 1 

or category 2 quantities of radioactive material.

C 

37.77 .................................... New ..................................... Advance notification for shipments of category 1 quantities of radioactive material.B 

37.77(a) ............................... New ..................................... Procedures for submitting advance notification ............... B 

37.77(b) ............................... New ..................................... Information to be furnished in advance notification of 

shipment.

B 

37.77(c) ................................ New ..................................... Revision notice ................................................................. B 

37.77(d) ............................... New ..................................... Cancellation notice ........................................................... B 

37.77(e) ............................... New ..................................... Records ............................................................................ C 

37.77(f) ................................ New ..................................... Protection of information .................................................. NRC 

37.79(a) ............................... New ..................................... Shipments by road ........................................................... B 

37.79(b) ............................... New ..................................... Shipments by rail ............................................................. B 

37.79(c) ................................ New ..................................... Procedures ....................................................................... B 

37.79(d) ............................... New ..................................... Investigations ................................................................... B 

37.81(a) ............................... New ..................................... Reporting of events .......................................................... B 

37.81(b) ............................... New ..................................... Reporting of events .......................................................... B 

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33928 Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Proposed Rules 

DRAFT COMPATIBILITY TABLE FOR PROPOSED RULE—Continued 

Section Change Subject 

Compatibility 

Existing New 

37.81(c) ................................ New ..................................... Reporting of events .......................................................... B 

37.81(d) ............................... New ..................................... Reporting of events .......................................................... B 

37.81(e) ............................... New ..................................... Reporting of events .......................................................... B 

37.81(f) ................................ New ..................................... Reporting of events .......................................................... B 

37.81(g) ............................... New ..................................... Reporting of events .......................................................... C 

37.81(h) ............................... New ..................................... Reporting of events .......................................................... C 

37.101 .................................. New ..................................... Form of records ................................................................ C 

37.103 .................................. New ..................................... Record retention ............................................................... C 

37.105 .................................. New ..................................... Inspections ....................................................................... D 

37.107 .................................. New ..................................... Violations .......................................................................... D 

37.109 .................................. New ..................................... Criminal penalties ............................................................. D 

Appendix A .......................... New ..................................... Category 1 and 2 thresholds ........................................... B 

Part 39 

39.1 ...................................... Amend ................................. Purpose and scope .......................................................... D D 

Part 51 

51.22(c)(3) ........................... Amend ................................. Criterion for categorical exclusion; identification of licensing and regulatory actions eligible for categorical 

exclusion or otherwise not requiring environmental review.

NRC NRC 

Part 71 

71.97(b) ............................... Amend ................................. Advance notification of shipment of irradiated reactor 

fuel and nuclear waste.

B B 

Part 73 

73.35 .................................... New ..................................... Requirements for physical protection of irradiated reactor fuel (100 grams or less) in transit.NRC 

VI. Plain Language 

The Presidential Memorandum, 

‘‘Plain Language in Government 

Writing’’ published June 10, 1998 (63 FR 

31883), directed that the Government’s 

documents be in clear and accessible 

language. The NRC requests comments 

on this proposed rule specifically with 

respect to the clarity and effectiveness 

of the language used. Comments should 

be sent to the address listed under the 

ADDRESSES heading. 

VII. Voluntary Consensus Standards 

The National Technology Transfer 

and Advancement Act of 1995 (Pub. L. 

104–113) requires that Federal agencies 

use technical standards that are 

developed or adopted by voluntary 

consensus standards bodies unless the 

use of such a standard is inconsistent 

with applicable law or otherwise 

impractical. In this proposed rule, the 

NRC would establish security 

requirements for the use of category 1 

and category 2 quantities of radioactive 

materials. The NRC is not aware of any 

voluntary consensus standards that 

address the proposed subject matter of 

this proposed rule. The NRC will 

consider using a voluntary consensus 

standard if an appropriate standard is 

identified. If a voluntary consensus 

standard is identified for consideration, 

the submittal should explain why the 

standard should be used. 

VIII. Finding of No Significant 

Environmental Impact: Availability 

Under the National Environmental 

Policy Act of 1969, as amended, and the 

NRC regulations in subpart A of 10 CFR 

part 51, the NRC has determined that 

this proposed rule, if adopted, would 

not be a major Federal action 

significantly affecting the quality of the 

human environment, and therefore an 

environmental impact statement is not 

required for this rulemaking. The NRC 

has prepared an environmental 

assessment and, on the basis of this 

environmental assessment, has made a 

finding of no significant impact. 

The implementation of the proposed 

rule’s security requirements would not 

result in significant changes to the 

licensee’s facilities, nor would such 

implementation result in any significant 

increase in effluents released to the 

environment. Similarly the 

implementation of the proposed rule’s 

security requirements would not affect 

occupational exposure requirements. No 

major construction or other earth 

disturbing activities, on the part of the 

affected licensees, is anticipated in 

connection with licensee’s 

implementation of the proposed rule’s 

requirements. The Commission has 

determined that the implementation of 

this proposed rule would be procedural 

and administrative in nature. 

The determination of this 

environmental assessment is that there 

will be no significant impact to the 

public from this action. However, the 

general public should note that the NRC 

welcomes public participation. 

Comments on any aspect of the 

Environmental Assessment may be 

submitted to the NRC as indicated 

under the ADDRESSES heading in this 

document. 

The NRC has sent a copy of the 

Environmental Assessment and this 

proposed rule to every State Liaison 

Officer and requested their comments 

on the Environmental Assessment. The 

Environmental Assessment may be 

examined at the NRC Public Document, 

Room O–1F23, 11555 Rockville Pike, 

Rockville, MD 20852. The 

Environmental Assessment may also be 

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Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Proposed Rules 33929 

viewed and downloaded electronically 

via the Federal eRulemaking Portal at 

http://www.regulations.gov by searching 

for Docket Number ID NRC–2008–0120. 

IX. Paperwork Reduction Act 

Statement 

This proposed rule contains new or 

amended information collection 

requirements that are subject to the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). This rule has been 

submitted to the Office of Management 

and Budget (OMB) for review and 

approval of the information collection 

requirements. 

Type of submission, new or revision: 

New. 

The title of the information collection: 

‘‘10 CFR Parts 30, 32, 33, 34, 35, 36, 37, 

39, 51, 71, and 73, Physical Protection 

of Byproduct Material’’ 

The form number if applicable: NA. 

How often the collection is required: 

One time for initial compliance 

notifications and fingerprints for the 

reviewing officials; and as needed for 

implementation notifications, event 

notifications, notifications of shipments 

of radioactive material, and 

fingerprinting of new employees. 

Who will be required or asked to 

report: Licensees that are authorized to 

possess and use category 1 or category 

2 quantities of radioactive material. 

An estimate of the number of annual 

responses: 83,666 (88,066 responses 

plus 1,400 record keepers). 

The estimated number of annual 

respondents: 1,917 (2,950 the first year, 

1,400 in subsequent years) 

An estimate of the total number of 

hours needed annually to complete the 

requirement or request: 63,446 (5,125 

one-time reporting hours, annualized to 

1,708 hours plus 12,387 reporting hours 

plus 21,694 recordkeeping hours plus 

27,657 third-party hours). 

Abstract: The NRC is proposing to 

amend its regulations to put in place 

security requirements for the use of 

category 1 and category 2 quantities of 

radioactive material. Licensees would 

be required to: (1) Develop procedures 

for implementation of the security 

provisions; (2) develop a security plan 

that describes how security is being 

implemented; (3) conduct training on 

the procedures and security plan; 

(4) conduct background investigations 

for those individuals permitted access to 

category 1 or category 2 quantities of 

radioactive material; (5) coordinate with 

LLEAs so the LLEAs would be better 

prepared to respond in an emergency; 

(6) conduct preplanning and 

coordination activities before shipping 

radioactive material; and (7) implement 

security measures for the protection of 

the radioactive material. Licensees 

would be required to promptly report 

any attempted or actual theft or 

diversion of the radioactive material. 

Licensees would be required to keep 

copies of the security plan, procedures, 

background investigation records, 

training records, and documentation 

that certain activities have occurred. 

The NRC is seeking public comment 

on the potential impact of the 

information collections contained in 

this proposed rule and on the following 

issues: 

1. Is the proposed information 

collection necessary for the proper 

performance of the functions of the 

NRC, including whether the information 

will have practical utility? 

2. Is the estimate of burden accurate? 

3. Is there a way to enhance the 

quality, utility, and clarity of the 

information to be collected? 

4. How can the burden of the 

information collection be minimized, 

including the use of automated 

collection techniques? 

A copy of the OMB clearance package 

may be viewed free of charge at the NRC 

Public Document Room, One White 

Flint North, 11555 Rockville Pike, Room 

O–1F21, Rockville, MD 20852. The 

OMB clearance package and rule are 

available at the NRC worldwide Web 

site http://www.nrc.gov/public-involve/ 

doc-comment/omb/index.html for 60 

days after the signature date of this 

notice. 

Send comments on any aspect of 

these proposed regulations related to 

information collections, including 

suggestions for reducing the burden and 

on the above issues, by July 15, 2010 to 

the Records and FOIA/Privacy Services 

Branch (T–5F52), U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001, or by Internet 

electronic mail to 

Infocollects.Resource@NRC.gov and to 

the Christine Kymm (202–395–4638, 

ckymn@omb.eop.gov), Desk Officer, 

Office of Information and Regulatory 

Affairs, NEOB–10202 (3150–xxxx), 

Office of Management and Budget, 

Washington, DC 20503. Comments on 

the proposed information collections 

may also be submitted via the Federal 

eRulemaking Portal http:// 

www.regulations.gov, Docket Number ID 

NRC–2008–0120. Comments received 

after this date will be considered if it is 

practical to do so, but assurance of 

consideration cannot be given to 

comments received after this date. 

Public Protection Notification 

The NRC may not conduct or sponsor, 

and a person is not required to respond 

to, a request for information or an 

information collection requirement 

unless the requesting document 

displays a currently valid OMB control 

number. 

X. Regulatory Analysis 

The Commission has prepared a draft 

regulatory analysis on this proposed 

regulation. The analysis examines the 

costs and benefits of the alternatives 

considered by the Commission. 

The Commission requests public 

comment on the draft regulatory 

analysis. Comments on the draft 

analysis may be submitted to the NRC 

as indicated under the ADDRESSES

heading. The analysis is available for 

inspection in the NRC Public Document 

Room, 11555 Rockville Pike, Rockville, 

MD 20852. The analysis may also be 

viewed and downloaded electronically 

via the Federal eRulemaking Portal at 

http://www.regulations.gov by searching 

for Docket Number NRC–2008–0120. 

XI. Regulatory Flexibility Certification 

The NRC has prepared an initial 

regulatory analysis of the impact of this 

proposed rule on small entities. The 

proposed rule would affect about 300 

NRC licensees and an additional 1,100 

Agreement State licensees. Affected 

licensees include laboratories, reactors, 

universities, colleges, medical clinics, 

hospitals, irradiators, well loggers, and 

radiographers, some of which may 

qualify as small business entities as 

defined by 10 CFR 2.810. Based on the 

draft regulatory analysis conducted for 

this action, the costs of the proposed 

rule for affected licensees are estimated 

to be between $541 million and $743 

million (7-percent and 3-percent 

discount rate, respectively) total. The 

average licensee would have a one-time 

cost of approximately $27,000 and an 

annual cost of approximately $25,700 to 

fully implement the proposed rule. An 

additional 1,550 licensees would 

experience a one-time cost of about 

$3,500 to develop a security program 

but would not need to implement the 

program. The NRC believes that the 

selected alternative reflected in the 

proposed rule is the least burdensome, 

most flexible alternative that would 

accomplish the NRC’s regulatory 

objective. The draft Regulatory 

Flexibility Analysis is included as 

Appendix to this proposed rule. 

The NRC is seeking public comment 

on the potential impact of the proposed 

rule on small entities. The NRC 

particularly desires comment from 

licensees who qualify as small 

businesses, specifically as to how the 

proposed regulation will affect them 

and how the regulation may be tiered or 

otherwise modified to impose less 

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stringent requirements on small entities 

while still adequately protecting the 

public health and safety and common 

defense and security. Comments on how 

the regulation could be modified to take 

into account the differing needs of small 

entities should specifically discuss– 

(a) The size of the business and how 

the proposed regulation would result in 

a significant economic burden upon it 

as compared to a larger organization in 

the same business community; 

(b) How the proposed regulation 

could be further modified to take into 

account the business’s differing needs or 

capabilities; 

(c) The benefits that would accrue, or 

the detriments that would be avoided, if 

the proposed regulation was modified as 

suggested by the commenter; 

(d) How the proposed regulation, as 

modified, would more closely equalize 

the impact of NRC regulations as 

opposed to providing special advantages 

to any individuals or groups; and 

(e) How the proposed regulation, as 

modified, would still adequately protect 

the public health and safety and 

common defense and security. 

Comments should be submitted as 

indicated under the ADDRESSES heading. 

XII. Backfit Analysis 

The NRC has determined that the 

backfit rule, which is found in the 

regulations at §§ 50.109, 70.76, 72.62, 

76.76, and in 10 CFR part 52, does not 

apply to this proposed rule because this 

amendment would not involve any 

provisions that would impose backfits 

as defined in 10 CFR chapter I. 

Therefore, a backfit analysis is not 

required. 

List of Subjects 

10 CFR Part 30 

Byproduct material, Criminal 

penalties, Government contracts, 

Intergovernmental relations, Isotopes, 

Nuclear materials, Radiation protection, 

Reporting and recordkeeping 

requirements. 

10 CFR Part 32 

Byproduct material, Criminal 

penalties, Labeling, Nuclear materials, 

Radiation protection, Reporting and 

recordkeeping requirements. 

10 CFR Part 33 

Byproduct material, Criminal 

penalties, Nuclear materials, Radiation 

protection, Reporting and recordkeeping 

requirements. 

10 CFR Part 34 

Criminal penalties, Packaging and 

containers, Radiation protection, 

Radiography, Reporting and 

recordkeeping requirements, Scientific 

equipment, Security measures. 

10 CFR Part 35 

Byproduct material, Criminal 

penalties, Drugs, Health facilities, 

Health professions, Medical devices, 

Nuclear materials, Occupational safety 

and health, Radiation protection, 

Reporting and recordkeeping 

requirements. 

10 CFR Part 36 

Byproduct material, Criminal 

penalties, Nuclear materials, Reporting 

and recordkeeping requirements, 

Scientific equipment, Security 

measures. 

10 CFR Part 37 

Byproduct material, Criminal 

penalties, Export, Hazardous materials 

transportation, Import, Licensed 

material, Nuclear materials, Reporting 

and recordkeeping requirements, 

Security measures. 

10 CFR Part 39 

Byproduct material, Criminal 

penalties, Nuclear material, Oil and gas 

exploration—well logging, Reporting 

and recordkeeping requirements, 

Scientific equipment, Security 

measures, Source material, Special 

nuclear material. 

10 CFR Part 51 

Administrative practice and 

procedure, Environmental impact 

statement, Nuclear materials, Nuclear 

power plants and reactors, Reporting 

and recordkeeping requirements. 

10 CFR Part 71 

Criminal penalties, Hazardous 

materials transportation, Import, 

Nuclear materials, Packaging and 

containers, Reporting and 

recordkeeping requirements. 

10 CFR Part 73 

Criminal penalties, Export, Hazardous 

materials transportation, Import, 

Nuclear materials, Nuclear power plants 

and reactors, Reporting and 

recordkeeping requirements, Security 

measures. 

For the reasons set out in the 

preamble and under the authority of the 

Atomic Energy Act of 1954, as amended; 

the Energy Reorganization Act of 1974, 

as amended; and 5 U.S.C. 553; the NRC 

is proposing to adopt the following 

amendments to 10 CFR parts 30, 32, 33, 

34, 35, 36, 37, 39, 51, 71, 73, and 150. 

PART 30—RULES OF GENERAL 

APPLICABILITY TO DOMESTIC 

LICENSING OF BYPRODUCT 

MATERIAL 

1. The authority citation for part 30 

continues to read as follows: 

Authority: Secs. 81, 82, 161, 182, 183, 186, 

68 Stat. 935, 948, 953, 954, 955, as amended, 

sec. 234, 83 Stat. 444, as amended (42 U.S.C. 

2111, 2112, 2201, 2232, 2233, 2236, 2282); 

secs. 201, as amended, 202, 206, 88 Stat. 

1242, as amended, 1244, 1246 (42 U.S.C. 

5841, 5842, 5846); sec. 1704, 112 Stat. 2750 

(44 U.S.C. 3504 note); Energy Policy Act of 

2005, Pub. L. No. 109–58, 119 Stat. 549 

(2005). 

Section 30.7 also issued under Pub. L. 95– 

601, sec. 10, 92 Stat. 2951 as amended by 

Pub. L. 102–486, sec. 2902, 106 Stat. 3123 (42 

U.S.C. 5851). Section 30.34(b) also issued 

under sec. 184, 68 Stat. 954, as amended (42 

U.S.C. 2234). Section 30.61 also issued under 

sec. 187, 68 Stat. 955 (42 U.S.C. 2237). 

2. In § 30.6, the introductory text of 

paragraph (a) is revised to read as 

follows: 

§ 30.6 Communications. 

(a) Unless otherwise specified or 

covered under the regional licensing 

program as provided in paragraph (b) of 

this section, any communication or 

report concerning the regulations in 

parts 30 through 37 and 39 of this 

chapter and any application filed under 

these regulations may be submitted to 

the Commission as follows: 

* * * * * 

3. Section 30.13 is revised to read as 

follows: 

§ 30.13 Carriers. 

Common and contract carriers, freight 

forwarders, warehousemen, and the U.S. 

Postal Service are exempt from the 

regulations in this part and parts 31 

through 37 and 39 of this chapter and 

the requirements for a license set forth 

in section 81 of the Act to the extent that 

they transport or store byproduct 

material in the regular course of carriage 

for another or storage incident thereto. 

4. In § 30.32 a new paragraph (l) is 

added to read as follows: 

§ 30.32 Application for specific licenses. 

* * * * * 

(l) An application for a specific 

license to use, store, or transport 

category 1 or category 2 quantities of 

radioactive material must include 

information concerning whether the 

applicant’s proposed security program 

meets the requirements in part 37 of this 

chapter. 

5. In § 30.33, paragraph (a)(4) is 

revised to read as follows: 

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§ 30.33 General requirements for issuance 

of specific licenses. 

(a) * * * 

(4) The applicant satisfies any special 

requirements contained in parts 32 

through 37 and 39; and 

* * * * * 

PART 32—SPECIFIC DOMESTIC 

LICENSES TO MANUFACTURE OR 

TRANSFER CERTAIN ITEMS 

CONTAINING BYPRODUCT MATERIAL 

6. The authority citation for part 32 

continues to read as follows: 

Authority: Secs. 81, 161, 182, 183, 68 Stat. 

935, 948, 953, 954, as amended (42 U.S.C. 

2111, 2201, 2232, 2233); sec. 201, 88 Stat. 

1242, as amended (42 U.S.C. 5841); sec. 1704, 

112 Stat. 2750 (44 U.S.C. 3504 note); sec. 

651(e), Pub. L. No. 109–58, 119 Stat. 806–810 

(42 U.S.C. 2014, 2021, 2021b, 2111). 

7. In § 32.1, paragraph (b) is revised to 

read as follows: 

§ 32.1 Purpose and scope. 

* * * * * 

(b) The provisions and requirements 

of this part are in addition to, and not 

in substitution for, other requirements 

of this chapter. In particular, the 

provisions of part 30 of this chapter 

apply to applications, licenses and 

certificates of registration subject to this 

part, and the provisions of part 37 of 

this chapter apply to applications and 

licenses subject to this part. 

* * * * * 

PART 33—SPECIFIC DOMESTIC 

LICENSES OF BROAD SCOPE FOR 

BYPRODUCT MATERIAL 

8. The authority citation for Part 33 

continues to read as follows: 

Authority: Secs. 81, 161, 182, 183, 68 Stat. 

935, 948, 953, 954, as amended (42 U.S.C. 

2111, 2201, 2232, 2233); sec. 201, 88 Stat. 

1242, as amended (42 U.S.C. 5841); sec. 1704, 

112 Stat. 2750 (44 U.S.C. 3504 note); sec. 

651(e), Pub. L. No. 109–58, 119 Stat. 806–810 

(42 U.S.C. 2014, 2021, 2021b, 2111). 

9. Section 33.1 is revised to read as 

follows: 

§ 33.1 Purpose and scope. 

This part prescribes requirements for 

the issuance of specific licenses of broad 

scope for byproduct material (‘‘broad 

licenses’’) and certain regulations 

governing holders of such licenses. The 

provisions and requirements of this part 

are in addition to, and not in 

substitution for, other requirements of 

this chapter. In particular, the 

provisions of parts 30 and 37 of this 

chapter apply to applications and 

licenses subject to this part. 

PART 34—LICENSES FOR 

INDUSTRIAL RADIOGRAPHY AND 

RADIATION SAFETY REQUIREMENTS 

FOR INDUSTRIAL RADIOGRAPHIC 

OPERATIONS 

10. The authority citation for Part 34 

continues to read as follows: 

Authority: Secs. 81, 161, 182, 183, 68 Stat. 

935, 948, 953, 954, as amended (42 U.S.C. 

2111, 2201, 2232, 2233); sec. 201, 88 Stat. 

1242, as amended (42 U.S.C. 5841); sec. 1704, 

112 Stat. 2750 (44 U.S.C. 3504 note). 

Section 34.45 also issued under sec. 206, 

88 Stat. 1246 (42 U.S.C. 5846). 

11. Section 34.1 is revised to read as 

follows: 

§ 34.1 Purpose and scope. 

This part prescribes requirements for 

the issuance of licenses for the use of 

sealed sources containing byproduct 

material and radiation safety 

requirements for persons using these 

sealed sources in industrial 

radiography. The provisions and 

requirements of this part are in addition 

to, and not in substitution for, other 

requirements of this chapter. In 

particular, the requirements and 

provisions of parts 19, 20, 21, 30, 37, 71, 

150, 170, and 171 of this chapter apply 

to applications and licenses subject to 

this part. This rule does not apply to 

medical uses of byproduct material. 

PART 35—MEDICAL USE OF 

BYPRODUCT MATERIAL 

12. The authority citation for Part 35 

continues to read as follows: 

Authority: Secs. 81, 161, 182, 183, 68 Stat. 

935, 948, 953, 954, as amended (42 U.S.C. 

2111, 2201, 2232, 2233); sec. 201, 88 Stat. 

1242, as amended (42 U.S.C. 5841); sec. 1704, 

112 Stat. 2750 (44 U.S.C. 3504 note); sec. 

651(e), Pub. L. No. 109–58, 119 Stat. 806–810 

(42 U.S.C. 2014, 2021, 2021b, 2111). 

13. Section 35.1 is revised to read as 

follows: 

§ 35.1 Purpose and scope. 

This part contains the requirements 

and provisions for the medical use of 

byproduct material and for issuance of 

specific licenses authorizing the 

medical use of this material. These 

requirements and provisions provide for 

the radiation safety of workers, the 

general public, patients, and human 

research subjects. The requirements and 

provisions of this part are in addition to, 

and not in substitution for, others in this 

chapter. The requirements and 

provisions of parts 19, 20, 21, 30, 37, 71, 

170, and 171 of this chapter apply to 

applicants and licensees subject to this 

part unless specifically exempted. 

PART 36—LICENSES AND RADIATION 

SAFETY REQUIREMENTS FOR 

IRRADIATORS 

14. The authority citation for Part 36 

continues to read as follows: 

Authority: Secs. 81, 82, 161, 182, 183, 186, 

68 Stat. 935, 948, 953, 954, 955, as amended, 

sec. 234, 83 Stat. 444, as amended (42 U.S.C. 

2111, 2112, 2201, 2232, 2233, 2236, 2282); 

secs. 201, as amended, 202, 206, 88 Stat. 

1242, as amended, 1244, 1246 (42 U.S.C. 

5841, 5842, 5846). 

15. In § 36.1, paragraph (a) is revised 

to read as follows: 

§ 36.1 Purpose and scope. 

(a) This part contains requirements for 

the issuance of a license authorizing the 

use of sealed sources containing 

radioactive materials in irradiators used 

to irradiate objects or materials using 

gamma radiation. This part also 

contains radiation safety requirements 

for operating irradiators. The 

requirements of this part are in addition 

to other requirements of this chapter. In 

particular, the provisions of parts 19, 20, 

21, 30, 37, 71, 170, and 171 of this 

chapter apply to applications and 

licenses subject to this part. Nothing in 

this part relieves the licensee from 

complying with other applicable 

Federal, State and local regulations 

governing the siting, zoning, land use, 

and building code requirements for 

industrial facilities. 

* * * * * 

16. Part 37 is added to read as follows: 

PART 37—PHYSICAL PROTECTION OF 

CATEGORY 1 AND CATEGORY 2 

QUANTITIES OF RADIOACTIVE 

MATERIAL 

Subpart A—General Provisions 

Sec. 

37.1 Purpose. 

37.3 Scope. 

37.5 Definitions. 

37.7 Communications. 

37.9 Interpretations. 

37.11 Specific exemptions. 

37.13 Information collection requirements: 

OMB approval. 

Subpart B—Background Investigations and 

Access Control Program 

37.21 Personnel access authorization 

requirements for category 1 or category 2 

quantities of radioactive material. 

37.23 Access authorization program 

requirements. 

37.25 Background investigations. 

37.27 Requirements for criminal history 

records checks of individuals granted 

unescorted access to category 1 or 

category 2 quantities of radioactive 

material. 

37.29 Relief from fingerprinting, 

identification, and criminal history 

records checks and other elements of 

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background investigations for designated 

categories of individuals permitted 

unescorted access to certain radioactive 

materials or other property. 

37.31 Protection of information. 

37.33 Access authorization program review. 

Subpart C—Physical Protection 

Requirements During Use 

37.41 Security program. 

37.43 General security program 

requirements. 

37.45 LLEA coordination and notification. 

37.47 Security zones. 

37.49 Monitoring, detection, and 

assessment. 

37.51 Maintenance, testing, and calibration. 

37.53 Requirements for mobile devices. 

37.55 Security program review. 

37.57 Reporting of events. 

Subpart D—Physical Protection in Transit 

37.71 Additional requirements for transfer 

of category 1 and category 2 quantities of 

radioactive material. 

37.73 Applicability of physical protection 

of category 1 and category 2 quantities of 

radioactive material during transit. 

37.75 Preplanning and coordination of 

shipment of category 1 or category 2 

quantities of radioactive material. 

37.77 Advance notification of shipment of 

category 1 quantities of radioactive 

material. 

37.79 Requirements for physical protection 

of category 1 and category 2 quantities of 

radioactive material during shipment. 

37.81 Reporting of events. 

Subpart E—[Reserved] 

Subpart F—Records 

37.101 Form of records. 

37.103 Record retention. 

Subpart G—Enforcement 

37.105 Inspections. 

37.107 Violations. 

37.109 Criminal penalties. 

Appendix A to Part 37—Category 1 and 

Category 2 Radioactive Materials 

Authority: Secs. 53, 81, 161, 182, 183, 68 

Stat. 935, 953, 954, as amended (42 U.S.C. 

2111, 2201, 2232, 2233); sec. 223 (42 U.S.C. 

2273); sec 234, 83 Stat. 445, as amended; sec. 

147, 149 (42 U.S.C. 2133, 2134, 2167, 2168, 

2169) 

Subpart A—General Provisions 

§ 37.1 Purpose. 

This part has been established to 

provide the requirements for the 

physical protection program for any 

licensee that is authorized to possess 

category 1 or category 2 quantities of 

radioactive material listed in Appendix 

A to this part. These requirements 

provide reasonable assurance of the 

security of category 1 or category 2 

quantities of radioactive material by 

protecting these materials from theft or 

diversion. Specific requirements for 

access to material, use of material, 

transfer of material, and transport of 

material are included. No provision of 

this part authorizes possession of 

licensed material. 

§ 37.3 Scope. 

(a) Subpart B to this part applies to 

any person who, under the regulations 

in this chapter, is authorized to possess 

or use at any site or contiguous sites 

subject to the control by the licensee, 

category 1 or category 2 quantities of 

radioactive material. 

(b) Subpart C to this part applies to 

any person who, under the regulations 

in this chapter, is authorized to possess 

or use at any site or contiguous sites 

subject to the control by the licensee, 

category 1 or category 2 quantities of 

radioactive material. 

(c) Subpart D applies to any person 

who, under the regulations of this 

chapter, imports, exports, transports, or 

delivers to a carrier for transport in a 

single shipment, category 1 or category 

2 quantities of radioactive material. 

§ 37.5 Definitions. 

As used in this part: 

Access control means a system for 

allowing only approved individuals to 

have unescorted access to the security 

zone and for ensuring that all other 

individuals are subject to escorted 

access. 

Act means the Atomic Energy Act of 

1954 (68 Stat. 919), including any 

amendments thereto. 

Aggregated means accessible by the 

breach of a common physical barrier, 

whether the material made accessible is 

a single sealed source, multiple sealed 

sources, or multiple sources of bulk 

radioactive material. 

Agreement State means any state with 

which the Atomic Energy Commission 

or the Nuclear Regulatory Commission 

has entered into an effective agreement 

under subsection 274b. of the Act. Nonagreement State means any other State. 

Approved individual means an 

individual whom the licensee has 

determined to be trustworthy and 

reliable in accordance with subpart B of 

this part and who has completed the 

training required by § 37.43(c). 

Background investigation means the 

investigation conducted by a licensee or 

applicant to support the determination 

of trustworthiness and reliability. 

Becquerel (Bq) means one 

disintegration per second. 

Byproduct material means—(1) Any 

radioactive material (except special 

nuclear material) yielded in, or made 

radioactive by, exposure to the radiation 

incident to the process of producing or 

using special nuclear material; 

(2) The tailings or wastes produced by 

the extraction or concentration of 

uranium or thorium from ore processed 

primarily for its source material content, 

including discrete surface wastes 

resulting from uranium solution 

extraction processes. Underground ore 

bodies depleted by these solution 

extraction operations do not constitute 

‘‘byproduct material’’ within this 

definition; 

(3)(i) Any discrete source of radium226 that is produced, extracted, or 

converted after extraction, before, on, or 

after August 8, 2005, for use for a 

commercial, medical, or research 

activity; or 

(ii) Any material that— 

(A) Has been made radioactive by use 

of a particle accelerator; and 

(B) Is produced, extracted, or 

converted after extraction, before, on, or 

after August 8, 2005, for use for a 

commercial, medical, or research 

activity; and 

(4) Any discrete source of naturally 

occurring radioactive material, other 

than source material, that— 

(i) The Commission, in consultation 

with the Administrator of the 

Environmental Protection Agency, the 

Secretary of Energy, the Secretary of 

Homeland Security, and the head of any 

other appropriate Federal agency, 

determines would pose a threat similar 

to the threat posed by a discrete source 

of radium-226 to the public health and 

safety or the common defense and 

security; and 

(ii) Before, on, or after August 8, 2005, 

is extracted or converted after extraction 

for use in a commercial, medical, or 

research activity. 

Category 1 quantity of radioactive 

material means a quantity of radioactive 

material meeting or exceeding the 

category 1 threshold in Table 1 of 

Appendix A to this part. The quantity 

is calculated by adding the sum of ratios 

of the total activity of each radionuclide 

to the category 1 threshold for that 

radionuclide. If the ratio is equal to or 

exceeds 1, the quantity would be 

considered a category 1 quantity. 

Category 1 quantities of radioactive 

material do not include the 

radionuclides contained in irradiated or 

mixed oxide fuel. 

Category 2 quantity of radioactive 

material means a quantity of radioactive 

material meeting or exceeding the 

category 2 threshold but less than the 

category 1 threshold in Table 1 of 

Appendix A to this part. The quantity 

is calculated by adding the sum of ratios 

of the total activity of each radionuclide 

to the category 2 threshold for that 

radionuclide. If the ratio is equal to or 

exceeds 1, the quantity would be 

considered a category 2 quantity. 

Category 2 quantities of radioactive 

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material do not include the 

radionuclides contained in irradiated or 

mixed oxide fuel. 

Commission means the Nuclear 

Regulatory Commission or its duly 

authorized representatives. 

Curie means that amount of 

radioactive material which disintegrates 

at the rate of 37 billion atoms per 

second. 

Diversion means the unauthorized 

movement of radioactive material 

subject to this part to a location different 

from the material’s authorized 

destination inside or outside of the site 

at which the material is used or stored. 

Escorted access means 

accompaniment while in a security zone 

by an approved individual who 

maintains line-of-sight surveillance at 

all times over an individual who is not 

approved for unescorted access. 

Fingerprint orders means the orders 

issued by the U.S. Nuclear Regulatory 

Commission or the legally binding 

requirements issued by Agreement 

States that require fingerprints and 

criminal history records checks for 

individuals with unescorted access to 

category 1 and category 2 quantities of 

radioactive material or Safeguards 

Information. 

Government agency means any 

executive department, commission, 

independent establishment, corporation, 

wholly or partly owned by the United 

States of America which is an 

instrumentality of the United States, or 

any board, bureau, division, service, 

office, officer, authority, administration, 

or other establishment in the executive 

branch of the Government. 

Isolation means protection of category 

1 or category 2 quantities of radioactive 

material by allowing access to security 

zones only through established access 

control points. 

License, except where otherwise 

specified, means a license for byproduct 

material issued pursuant to the 

regulations in parts 30 through 36 and 

39 of this chapter; 

License issuing authority means the 

licensing agency that issued the license, 

i.e. the U.S. Nuclear Regulatory 

Commission or the appropriate agency 

of an Agreement State; 

Local law enforcement agency (LLEA) 

means a government entity that has 

authority to make arrests and the 

capability to provide an armed response 

in locations where licensed category 1 

or category 2 quantities of radioactive 

material are used, stored, or transported. 

Lost or missing licensed material 

means licensed material whose location 

is unknown. It includes material that 

has been shipped but has not reached its 

destination and whose location cannot 

be readily traced in the transportation 

system. 

Mobile device means a piece of 

equipment containing licensed 

radioactive material that is either 

mounted on wheels or casters, or 

otherwise equipped for moving without 

a need for disassembly or dismounting; 

or designed to be hand carried. Mobile 

devices do not include stationary 

equipment installed in a fixed location. 

Movement control center means an 

operations center that is remote from 

transport activity and that maintains 

position information on the movement 

of radioactive material, receives reports 

of attempted attacks or thefts, provides 

a means for reporting these and other 

problems to appropriate agencies and 

can request and coordinate appropriate 

aid. 

No-later-than arrival time means the 

date and time that the shipping licensee 

and receiving licensee have established 

as the time at which an investigation 

will be initiated if the shipment has not 

arrived at the receiving facility. The nolater-than-arrival time may not be more 

than 2 hours after the estimated arrival 

time for shipments of category 1 

quantities of radioactive material. The 

no-later-than-arrival time may not be 

more than 4 hours after the estimated 

arrival time for shipments of category 2 

quantities of radioactive material. 

Person means— 

(1) Any individual, corporation, 

partnership, firm, association, trust, 

estate, public or private institution, 

group, Government agency other than 

the Commission or the Department of 

Energy (except that the Department 

shall be considered a person within the 

meaning of the regulations in 10 CFR 

chapter I to the extent that its facilities 

and activities are subject to the licensing 

and related regulatory authority of the 

Commission under section 202 of the 

Energy Reorganization Act of 1974 (88 

Stat. 1244), the Uranium Mill Tailings 

Radiation Control Act of 1978 (92 Stat. 

3021), the Nuclear Waste Policy Act of 

1982 (96 Stat. 2201), and section 3(b)(2) 

of the Low-Level Radioactive Waste 

Policy Amendments Act of 1985 (99 

Stat. 1842)), any State or any political 

subdivision of or any political entity 

within a State, any foreign government 

or nation or any political subdivision of 

any such government or nation, or other 

entity; and 

(2) Any legal successor, 

representative, agent, or agency of the 

foregoing. 

Reviewing official means the 

individual who shall make the 

trustworthiness and reliability 

determination of an individual to 

determine whether the individual may 

have, or continue to have, unescorted 

access to the category 1 or category 2 

quantities of radioactive materials that 

are possessed by the licensee. 

Sabotage means deliberate damage, 

with malevolent intent, to a category 1 

or category 2 quantity of radioactive 

material, a device that contains a 

category 1 or category 2 quantity of 

radioactive material, or the components 

of the security system. 

Safe haven means a readily 

recognizable and readily accessible site 

at which security is present or from 

which, in the event of an emergency, the 

transport crew can notify and wait for 

the local law enforcement authorities. 

Security zone means any temporary or 

permanent area determined and 

established by the licensee for the 

physical protection of category 1 or 

category 2 quantities of radioactive 

material. 

State means a State of the United 

States, the District of Columbia, the 

Commonwealth of Puerto Rico, the 

Virgin Islands, Guam, American Samoa, 

and the Commonwealth of the Northern 

Mariana Islands. 

Telemetric position monitoring 

system means a data transfer system that 

captures information by instrumentation 

and/or measuring devices about the 

location and status of a transport vehicle 

or package between the departure and 

destination locations. 

Temporary job site means, for the 

purposes of this part, a location where 

category 1 or category 2 quantities of 

radioactive material may be used or 

stored other than a location of use that 

is specifically identified on the license. 

Trustworthiness and reliability are 

characteristics of an individual 

considered dependable in judgment, 

character, and performance, such that 

unescorted access to category 1 or 

category 2 quantities of radioactive 

material by that individual does not 

constitute an unreasonable risk to the 

public health and safety or common 

defense and security. A determination 

of trustworthiness and reliability for this 

purpose is based upon the results from 

a background investigation. 

Unescorted access means solitary 

access to category 1 or category 2 

quantities of radioactive material 

granted to an approved individual. 

Unescorted access includes solitary 

access to sufficient quantities of 

radioactive material such that an 

individual could successfully 

accumulate lesser quantities of material 

into a category 1 or category 2 quantity. 

United States, when used in a 

geographical sense, includes Puerto 

Rico and all territories and possessions 

of the United States. 

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§ 37.7 Communications. 

Except where otherwise specified or 

covered under the regional licensing 

program as provided in § 30.6(b), all 

communications and reports concerning 

the regulations in this part may be sent 

as follows: 

(a) By mail addressed to: Attn: 

Document Control Desk; Director, Office 

of Nuclear Reactor Regulation; Director, 

Office of New Reactors; Director, Office 

of Nuclear Material Safety and 

Safeguards; Director, Office of Federal 

and State Materials and Environmental 

Management Programs; or Director, 

Division of Nuclear Security, Office of 

Nuclear Security and Incident 

Response, as appropriate, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001; 

(b) By hand delivery to the NRC’s 

offices at 11555 Rockville Pike, 

Rockville, Maryland; 

(c) Where practicable, by electronic 

submission, for example, Electronic 

Information Exchange, or CD–ROM. 

Electronic submissions must be made in 

a manner that enables the NRC to 

receive, read, authenticate, distribute, 

and archive the submission, and process 

and retrieve it a single page at a time. 

Detailed guidance on making electronic 

submissions can be obtained by visiting 

the NRC’s Web site at http:// 

www.nrc.gov/site-help/esubmittals.html, by e-mail to 

MSHD.Resource@nrc.gov; or by writing 

the Office of Information Services, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001. The 

guidance discusses, among other topics, 

the formats the NRC can accept, the use 

of electronic signatures, and the 

treatment of nonpublic information. 

§ 37.9 Interpretations. 

Except as specifically authorized by 

the Commission in writing, no 

interpretations of the meaning of the 

regulations in this part by any officer or 

employee of the Commission other than 

a written interpretation by the General 

Counsel will be recognized as binding 

upon the Commission. 

§ 37.11 Specific exemptions. 

(a) The Commission may, upon 

application of any interested person or 

upon its own initiative, grant such 

exemptions from the requirements of 

the regulations in this part as it 

determines are authorized by law and 

will not endanger life or property or the 

common defense and security, and are 

otherwise in the public interest. 

(b) Any licensee’s activities are 

exempt from the requirements of this 

part to the extent that its activities are 

covered under the physical protection 

requirements of part 73 of this chapter. 

§ 37.13 Information collection 

requirements: OMB approval. 

(a) The Nuclear Regulatory 

Commission has submitted the 

information collection requirements 

contained in this part to the Office of 

Management and Budget (OMB) for 

approval as required by the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.). 

The NRC may not conduct or sponsor, 

and a person is not required to respond 

to, a collection of information unless it 

displays a currently valid OMB control 

number. OMB has approved the 

information collection requirements 

contained in this part under control 

number 3150–xxxx. 

(b) The approved information 

collection requirements contained in 

this part appear in §§ 37.21, 37.23, 

37.25, 37.27, 37.29, 37.31, 37.33, 37.41, 

37.43, 37.45, 37.49, 37.55, 37.57, 37.71, 

37.75, 37.77, 37.79, and 37.81. 

Subpart B—Background Investigations 

and Access Authorization Program 

§ 37.21 Personnel access authorization 

requirements for category 1 or category 2 

quantities of radioactive material. 

(a) General. 

(1) Each licensee that is authorized to 

possess category 1 or category 2 

quantities of radioactive material at a 

facility shall comply with the 

requirements of this subpart, as 

appropriate. 

(2) Each licensee shall establish, 

implement, and maintain its access 

authorization program in accordance 

with the requirements of this subpart. 

(3) By (30 days after the final rule is 

published in the Federal Register), each 

licensee that is authorized to possess a 

category 1 or category 2 quantity of 

radioactive material on (effective date of 

this rule) shall submit information 

concerning the licensee’s compliance 

with the requirements of this subpart to 

the appropriate NRC regional office 

specified in § 30.6. 

(4) Each licensee that would become 

newly subject to the requirements of 

this subpart upon application for 

modification of its license shall 

implement the requirements of this 

subpart, as appropriate, before taking 

possession of category 1 or category 2 

quantities of radioactive material. 

(b) General performance objective. 

The licensee’s access authorization 

program must ensure that the 

individuals specified in paragraph (c)(1) 

of this section are trustworthy and 

reliable such that they do not constitute 

an unreasonable risk to public health 

and safety or the common defense and 

security. 

(c) Applicability. 

(1) Licensees shall subject the 

following individuals to an access 

authorization program: 

(i) Any individual whose assigned 

duties require unescorted access to 

category 1 or category 2 quantities of 

radioactive material; 

(ii) Vehicle drivers and accompanying 

individuals for road shipments of 

category 1 quantities of radioactive 

material; 

(iii) Movement control center 

personnel for shipments of category 1 

quantities of radioactive material; 

(iv) Any individual whose assigned 

duties provide access to shipment 

information that is considered to be 

Safeguards Information-Modified 

Handling related to category 1 quantities 

of radioactive material; and 

(v) Reviewing officials. 

(2) Licensees need not subject the 

categories of individuals listed in 

§ 37.29(a) through (m) to the 

investigation elements of the access 

authorization program. 

(3) Licensees shall approve for 

unescorted access to category 1 or 

category 2 quantities of radioactive 

material only those individuals with job 

duties that require unescorted access to 

category 1 or category 2 quantities of 

radioactive material. 

§ 37.23 Access authorization program 

requirements. 

(a) Granting unescorted access 

authorization. 

(1) Licensees shall implement the 

requirements of this subpart for granting 

initial or reinstated unescorted access 

authorization. 

(2) Individuals who have been 

determined to be trustworthy and 

reliable shall also complete the security 

training required by § 37.43(c) before 

being allowed unescorted access to 

category 1 or category 2 quantities of 

radioactive material. 

(b) Reviewing officials. 

(1) Each licensee shall nominate one 

or more individuals to be reviewing 

officials and shall submit the names of 

these individuals and their fingerprints 

to the NRC for a criminal history records 

check. The nominated individuals shall 

undergo the background investigation 

aspects that are required by § 37.25(a)(2) 

through (a)(9) before their names and 

fingerprints are submitted to the NRC. 

The fingerprints of the nominated 

reviewing official must be taken by a 

law enforcement agency, Federal or 

State agencies that provide finger 

printing services to the public, or 

commercial fingerprinting services 

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authorized by a State to take 

fingerprints. 

(2) Reviewing officials must be 

required to have unescorted access to 

category 1 or category 2 quantities of 

radioactive materials or access to 

safeguards information, if the licensee 

possesses safeguards information, as 

part of their job duties. 

(3) Reviewing officials cannot approve 

other individuals to act as reviewing 

officials. 

(4) Reviewing officials nominated by 

the licensee and approved by the NRC 

are the only individuals who may make 

trustworthiness and reliability 

determinations and permit unescorted 

access to category 1 or category 2 

quantities of radioactive materials 

possessed by the licensee. 

(5) Reviewing officials may not make 

any trustworthiness and reliability 

determinations or permit any individual 

to have unescorted access until they 

have been approved as a reviewing 

official by the NRC. 

(6) Individuals nominated as 

reviewing officials who receive a 

preliminary denial from the NRC have 

the right to complete, correct, and 

explain information obtained through 

the background investigation prior to a 

final adverse determination. 

(c) Informed consent. 

(1) Licensees may not initiate a 

background investigation without the 

informed and signed consent of the 

subject individual. This consent must 

include authorization to share personal 

information with other individuals or 

organizations as necessary to complete 

the background investigation. Before a 

final adverse determination, the licensee 

shall provide the individual with an 

opportunity to correct any inaccurate or 

incomplete information that is 

developed during the background 

investigation. Licensees do not need to 

obtain signed consent from those 

individuals that have undergone a 

background investigation under the 

Fingerprint Orders. A signed consent 

must be obtained prior to any 

reinvestigation. 

(2) The subject individual may 

withdraw his or her consent at any time. 

Licensees shall inform the individual 

that: 

(i) If an individual withdraws his or 

her consent, the licensee may not 

initiate any elements of the background 

investigation that were not in progress 

at the time the individual withdrew his 

or her consent; and 

(ii) The withdrawal of consent for the 

background investigation is sufficient 

cause for denial or termination of 

unescorted access authorization. 

(d) Personal history disclosure. Any 

individual who is applying for 

unescorted access authorization shall 

disclose the personal history 

information that is required by the 

licensee’s access authorization program 

for the reviewing official to make a 

determination of the individual’s 

trustworthiness and reliability. Refusal 

to provide, or the falsification of, any 

personal history information required 

by this subpart is sufficient cause for 

denial or termination of unescorted 

access. 

(e) Determination basis. 

(1) The reviewing official shall 

determine whether to grant, deny, 

unfavorably terminate, maintain, or 

administratively withdraw an 

individual’s unescorted access 

authorization based on an evaluation of 

all of the information required by this 

subpart. The reviewing official may 

terminate or administratively withdraw 

an individual’s unescorted access 

authorization based on information 

obtained after the background 

investigation has been completed and 

the individual granted unescorted 

access authorization. 

(2) The reviewing official may not 

permit any individual to have 

unescorted access until the reviewing 

official has evaluated all of the 

information required by this subpart 

and determined that the individual is 

trustworthy and reliable. The reviewing 

official may deny unescorted access to 

any individual based on disqualifying 

information obtained at any time during 

the background investigation. 

(3) The licensee shall document the 

basis for concluding whether or not 

there is reasonable assurance that an 

individual granted unescorted access to 

category 1 or category 2 quantities of 

radioactive material is trustworthy and 

reliable. Licensees shall maintain a list 

of persons currently approved for 

unescorted access authorization and a 

list of those individuals that have been 

denied unescorted access authorization. 

When a licensee determines that a 

person no longer requires unescorted 

access, the licensee shall immediately 

remove the person from the approved 

list and take measures to ensure that the 

individual is unable to obtain 

unescorted access. 

(f) Procedures. 

(1) Licensees shall develop, 

implement, and maintain written 

procedures for conducting background 

investigations for persons who are 

applying for unescorted access 

authorization to category 1 or category 

2 quantities of radioactive material. 

(2) Licensees shall develop, 

implement, and maintain written 

procedures for updating background 

investigations for persons who are 

applying for reinstatement of unescorted 

access authorization. 

(3) Licensees shall develop, 

implement, and maintain written 

procedures to ensure that persons who 

have been denied unescorted access 

authorization are not allowed 

unescorted access to category 1 or 

category 2 quantities of radioactive 

material. 

(4) Licensees shall develop, 

implement, and maintain written 

procedures for the notification of 

individuals who are denied unescorted 

access. The procedures must include 

provisions for the review, at the request 

of the affected individual, of a denial or 

termination of unescorted access 

authorization. The procedure must 

contain a provision to ensure that the 

individual is informed of the grounds 

for the denial or termination of 

unescorted access authorization and 

allow the individual an opportunity to 

provide additional relevant information. 

(g) Right to correct and complete 

information. 

(1) Prior to any final adverse 

determination, licensees shall provide 

each individual subject to this subpart 

with the right to complete, correct, and 

explain information obtained as a result 

of the licensee’s background 

investigation. Confirmation of receipt by 

the individual of this notification must 

be maintained by the licensee for a 

period of 1 year from the date of the 

notification. 

(2) If after reviewing their criminal 

history record an individual believes 

that it is incorrect or incomplete in any 

respect and wishes to change, correct, 

update, or explain anything in the 

record, the individual may initiate 

challenge procedures. These procedures 

include direct application by the 

individual challenging the record to the 

law enforcement agency that 

contributed the questioned information 

or a direct challenge as to the accuracy 

or completeness of any entry on the 

criminal history record to the Federal 

Bureau of Investigation, Criminal Justice 

Information Services (CJIS) Division, 

Attn: SCU, Mod. D–2, 1000 Custer 

Hollow Road, Clarksburg, WV 26306 as 

set forth in 28 CFR 16.30 through 16.34. 

In the latter case, the Federal Bureau of 

Investigation (FBI) will forward the 

challenge to the agency that submitted 

the data, and will request that the 

agency verify or correct the challenged 

entry. Upon receipt of an official 

communication directly from the agency 

that contributed the original 

information, the FBI Identification 

Division makes any changes necessary 

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in accordance with the information 

supplied by that agency. Licensees must 

provide at least 10 days for an 

individual to initiate action to challenge 

the results of an FBI criminal history 

records check after the record being 

made available for his or her review. 

The licensee may make a final adverse 

determination based upon the criminal 

history records only after receipt of the 

FBI’s confirmation or correction of the 

record. 

(h) Records. 

(1) The licensee shall retain 

documentation regarding the 

trustworthiness and reliability of 

individual employees for 5 years from 

the date the individual no longer 

requires unescorted access to category 1 

or category 2 quantities of radioactive 

material. 

(2) The licensee shall retain a copy of 

the current access authorization 

program procedures as a record for 5 

years after the procedure is no longer 

needed or until the Commission 

terminates the license, if the license is 

terminated before the end of the 

retention period. If any portion of the 

procedure is superseded, the licensee 

shall retain the superseded material for 

5 years after the record is superseded. 

(3) The licensee shall retain the list of 

persons approved for unescorted access 

authorization and the list of those 

individuals that have been denied 

unescorted access authorization for 5 

years after the list is superseded or 

replaced. 

§ 37.25 Background investigations. 

(a) Initial Investigation. Before 

granting an individual unescorted 

access to category 1 or category 2 

quantities of radioactive material, 

licensees shall complete a background 

investigation of the individual seeking 

unescorted access authorization. The 

scope of the investigation must 

encompass at least the 10 years 

preceding the date of the background 

investigation or since the individual’s 

eighteenth birthday, whichever is 

shorter. The background investigation 

must include at a minimum: 

(1) Fingerprinting and an FBI 

identification and criminal history 

records check in accordance with 

§ 37.27 or part 73 of this chapter; 

(2) Verification of true identity. 

Licensees shall verify the true identity 

of the individual who is applying for 

unescorted access authorization to 

ensure that the applicant is who he or 

she claims to be. A licensee shall review 

official identification documents (e.g., 

driver’s license; passport; government 

identification; certificate of birth issued 

by the state, province, or country of 

birth) and compare the documents to 

personal information data provided by 

the individual to identify any 

discrepancy in the information. 

Licensees shall document the type, 

expiration, and identification number of 

the identification document, or 

maintain a photocopy of identifying 

documents on file in accordance with 

§ 37.31. Licensees shall certify in 

writing that the identification was 

properly reviewed, and shall maintain 

the certification and all related 

documents for review upon inspection; 

(3) Employment history evaluation. 

Licensees shall complete an 

employment history evaluation. 

Licensees shall verify the individual’s 

employment with each previous 

employer for the most recent 10 years 

before the date of application; 

(4) Verification of education. 

Licensees shall verify that the 

individual participated in the education 

process during the claimed period; 

(5) Military history verification. 

Licensees shall verify that the 

individual was in the military during 

the claimed period; 

(6) Credit history evaluation. 

Licensees shall evaluate the full credit 

history of the individual who is 

applying for unescorted access 

authorization. A full credit history 

evaluation must include, but is not 

limited to, a review and evaluation of all 

of the information that is provided by a 

national credit-reporting agency about 

the individual’s credit history. For 

individuals including foreign nationals 

and United States citizens who have 

resided outside the United States and do 

not have established credit history that 

covers at least the most recent 7 years 

in the United States, the licensee must 

document all attempts to obtain 

information regarding the individual’s 

credit history and financial 

responsibility from some relevant entity 

located in that other country or 

countries; 

(7) Criminal history review. 

Reviewing officials shall obtain from 

local criminal justice resources the 

criminal history records of the 

individual who is applying for 

unescorted access authorization and 

evaluate the information to determine 

whether the individual has a record of 

local criminal activity that may 

adversely impact his or her 

trustworthiness and reliability. The 

scope of the applicant’s local criminal 

history review must cover all residences 

of record for the 10-year period 

preceding the date of the application for 

unescorted access authorization; 

(8) Character and reputation 

determination. Licensees shall complete 

reference checks to determine the 

character and reputation of the 

individual who has applied for 

unescorted access authorization. 

Reference checks may not be conducted 

with any person who is known to be a 

close member of the individual’s family, 

including but not limited to the 

individual’s spouse, parents, siblings, or 

children, or any individual who resides 

in the individual’s permanent 

household. Reference checks under this 

subpart must be limited to whether the 

individual has been and continues to be 

trustworthy and reliable; 

(9) The licensee shall also, to the 

extent possible, obtain independent 

information to corroborate that provided 

by the individual (e.g., seek references 

not supplied by the individual); and 

(10) If a previous employer, 

educational institution, or any other 

entity with which the individual claims 

to have been engaged fails to provide 

information or indicates an inability or 

unwillingness to provide information 

within a time frame deemed appropriate 

by the licensee but at least after 10 

business days of the request, the 

licensee shall: 

(i) Document the refusal, 

unwillingness, or inability in the record 

of investigation; and 

(ii) Obtain a confirmation of 

employment, educational enrollment 

and attendance, or other form of 

engagement claimed by the individual 

from at least one alternate source that 

has not been previously used. 

(b) Grandfathering. Individuals who 

have been determined trustworthy and 

reliable for unescorted access to 

category 1 or category 2 quantities of 

radioactive material under the 

Fingerprint Orders do not need to meet 

the background investigation elements 

in this subpart until the 10-year reinvestigation. 

(c) Reinvestigations. Licensees shall 

conduct a criminal history update and 

credit history reevaluation every 10 

years for any individual with 

unescorted access to category 1 or 

category 2 quantities of radioactive 

material. The reinvestigations must be 

completed within 10 years of the date 

on which these elements were last 

completed and must address the 10 

years following the previous 

investigation. 

§ 37.27 Requirements for criminal history 

records checks of individuals granted 

unescorted access to category 1 or 

category 2 quantities of radioactive 

material. 

(a) General performance objective and 

requirements. 

(1) Except for those individuals listed 

in § 37.29, each licensee subject to the 

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provisions of this subpart shall 

fingerprint each individual who is to be 

permitted unescorted access to category 

1 or category 2 quantities of radioactive 

material. Licensees shall transmit all 

collected fingerprints to the 

Commission for transmission to the FBI. 

The licensee shall use the information 

received from the FBI as part of the 

required background investigation to 

determine whether to grant or deny 

further unescorted access to category 1 

or category 2 quantities of radioactive 

materials for that individual. 

(2) The licensee shall notify each 

affected individual that his or her 

fingerprints will be used to secure a 

review of their criminal history record, 

and shall inform him or her of the 

procedures for revising the record or 

adding explanations to the record. 

(3) Fingerprinting is not required if a 

licensee is reinstating an individual’s 

unescorted access authorization to 

category 1 or category 2 quantities of 

radioactive materials if: 

(i) The individual returns to the same 

facility that granted unescorted access 

authorization within 365 days of the 

termination of his or her unescorted 

access authorization; and 

(ii) The previous access was 

terminated under favorable conditions. 

(4) Fingerprints do not need to be 

taken if an individual who is an 

employee of a licensee, contractor, 

manufacturer, or supplier has been 

granted unescorted access to category 1 

or category 2 quantities of radioactive 

material or access to safeguards 

information by another licensee, based 

upon a background investigation 

conducted under this subpart, the 

Fingerprint Orders, or part 73 of this 

chapter. An existing criminal history 

records check file may be transferred to 

the licensee asked to grant unescorted 

access in accordance with the 

provisions of § 37.31(c). 

(5) Licensees shall review the 

criminal history records as part of the 

trustworthiness and reliability 

evaluation for each individual seeking 

unescorted access authorization to 

category 1 or category 2 quantities of 

radioactive material. 

(6) Licensees shall use the 

information obtained as part of a 

criminal history records check solely for 

the purpose of determining an 

individual’s suitability for unescorted 

access authorization to category 1 or 

category 2 quantities of radioactive 

materials or access to Safeguards 

Information. 

(b) Prohibitions. 

(1) Licensees may not base a final 

determination to deny an individual 

unescorted access authorization to 

category 1 or category 2 quantities of 

radioactive material solely on the basis 

of information received from the FBI 

involving: 

(i) An arrest more than 1 year old for 

which there is no information of the 

disposition of the case; or 

(ii) An arrest that resulted in 

dismissal of the charge or an acquittal. 

(2) Licensees may not use information 

received from a criminal history records 

check obtained under this subpart in a 

manner that would infringe upon the 

rights of any individual under the First 

Amendment to the Constitution of the 

United States, nor shall licensees use 

the information in any way that would 

discriminate among individuals on the 

basis of race, religion, national origin, 

gender, or age. 

(c) Procedures for processing of 

fingerprint checks. 

(1) For the purpose of complying with 

this subpart, licensees shall use an 

appropriate method listed in § 37.7 to 

submit to the Office of Administration, 

Division of Facilities and Security, Mail 

Stop TWB–05 B32M, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0012, one completed, legible 

standard fingerprint card (Form FD–258, 

ORIMDNRCOOOZ), electronic 

fingerprint scan or, where practicable, 

other fingerprint record for each 

individual requiring unescorted access 

to category 1 or category 2 quantities of 

radioactive material. Copies of these 

forms may be obtained by writing the 

Office of Information Services, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, by calling 

(301) 415–7232, or by e-mail to 

FORMS.Resource@nrc.gov. Guidance on 

submitting electronic fingerprints can be 

found at http://www.nrc.gov/site-help/esubmittals.html. 

(2) Fees for the processing of 

fingerprint checks are due upon 

application. Licensees shall submit 

payment with the application for the 

processing of fingerprints through 

corporate check, certified check, 

cashier’s check, money order, or 

electronic payment, made payable to 

‘‘U.S. NRC.’’ (For guidance on making 

electronic payments, contact the 

Security Branch, Division of Facilities 

and Security at (301) 492–3531). 

Combined payment for multiple 

applications is acceptable. The 

Commission publishes the amount of 

the fingerprint check application fee on 

the NRC public Web site. (To find the 

current fee amount, go to the Electronic 

Submittals page at http://www.nrc.gov/ 

site-help/e-submittals.html and select 

the link for the Criminal History 

Program.) 

(3) The Commission will forward to 

the submitting licensee all data received 

from the FBI as a result of the licensee’s 

application(s) for criminal history 

records checks. 

§ 37.29 Relief from fingerprinting, 

identification, and criminal history records 

checks and other elements of background 

investigations for designated categories of 

individuals permitted unescorted access to 

certain radioactive materials or other 

property. 

Fingerprinting, and the identification 

and criminal history records checks 

required by section 149 of the Atomic 

Energy Act of 1954, as amended, and 

other elements of the background 

investigation are not required for the 

following individuals prior to granting 

unescorted access to category 1 or 

category 2 quantities of radioactive 

materials: 

(a) An employee of the Commission or 

of the Executive Branch of the U.S. 

Government who has undergone 

fingerprinting for a prior U.S. 

Government criminal history records 

check; 

(b) A Member of Congress; 

(c) An employee of a member of 

Congress or Congressional committee 

who has undergone fingerprinting for a 

prior U.S. Government criminal history 

records check; 

(d) The Governor of a State or his or 

her designated State employee 

representative; 

(e) Federal, State, or local law 

enforcement personnel; 

(f) State Radiation Control Program 

Directors and State Homeland Security 

Advisors or their designated State 

employee representatives; 

(g) Agreement State employees 

conducting security inspections on 

behalf of the NRC under an agreement 

executed under section 274.i. of the 

Atomic Energy Act; 

(h) Representatives of the 

International Atomic Energy Agency 

(IAEA) engaged in activities associated 

with the U.S./IAEA Safeguards 

Agreement who have been certified by 

the NRC; 

(i) Emergency response personnel 

who are responding to an emergency; 

(j) Commercial vehicle drivers for 

road shipments of category 2 quantities 

of radioactive material; 

(k) An individual who has had a 

favorably adjudicated U.S. Government 

criminal history records check within 

the last 5 years, under a comparable 

U.S. Government program involving 

fingerprinting and an FBI identification 

and criminal history records check (e.g. 

National Agency Check, Transportation 

Worker Identification Credentials 

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(TWIC) under 49 CFR 1572, Bureau of 

Alcohol Tobacco Firearms and 

Explosives background check and 

clearances under 27 CFR 555, Health 

and Human Services security risk 

assessments for possession and use of 

select agents and toxins under 42 CFR 

73, Hazardous Material security threat 

assessment for hazardous material 

endorsement to commercial drivers 

license under 49 CFR 1572, Customs 

and Border Patrol’s Free and Secure 

Trade (FAST) Program) provided that he 

or she makes available the appropriate 

documentation. Written confirmation 

from the agency/employer that granted 

the Federal security clearance or 

reviewed the criminal history records 

check must be provided to the licensee. 

The licensee shall retain this 

documentation for a period of 5 years 

from the date the individual no longer 

requires unescorted access to category 1 

or category 2 quantities of radioactive 

material; 

(l) Any individual who has an active 

Federal security clearance, provided 

that he or she makes available the 

appropriate documentation. Written 

confirmation from the agency/employer 

that granted the Federal security 

clearance or reviewed the criminal 

history records check must be provided 

to the licensee. The licensee shall retain 

this documentation for a period of 5 

years from the date the individual no 

longer requires unescorted access to 

category 1 or category 2 quantities of 

radioactive material; and 

(m) Any individual employed by a 

service provider licensee for which the 

service provider licensee has conducted 

the background investigation for the 

individual and approved the individual 

for unescorted access to category 1 or 

category 2 quantities of radioactive 

material. Written verification from the 

service provider must be provided to the 

licensee. The licensee shall retain the 

documentation for a period of 5 years 

from the date the individual no longer 

requires unescorted access to category 1 

or category 2 quantities of radioactive 

material. 

§ 37.31 Protection of information. 

(a) Each licensee who obtains 

background information on an 

individual under this subpart shall 

establish and maintain a system of files 

and written procedures for protection of 

the record and the personal information 

from unauthorized disclosure. 

(b) The licensee may not disclose the 

record or personal information collected 

and maintained to persons other than 

the subject individual, his or her 

representative, or to those who have a 

need to have access to the information 

in performing assigned duties in the 

process of granting or denying 

unescorted access to category 1 or 

category 2 quantities of radioactive 

material or Safeguards Information. No 

individual authorized to have access to 

the information may redisseminate the 

information to any other individual who 

does not have a need to know. 

(c) The personal information obtained 

on an individual from a background 

investigation may be provided to 

another licensee: 

(1) Upon the individual’s written 

request to the licensee holding the data 

to redisseminate the information 

contained in his or her file; and 

(2) The recipient licensee verifies 

information such as name, date of birth, 

social security number, gender, and 

other applicable physical 

characteristics. 

(d) The licensee shall make 

background investigation records 

obtained under this subpart available for 

examination by an authorized 

representative of the NRC to determine 

compliance with the regulations and 

laws. 

(e) The licensee shall retain all 

fingerprint and criminal history records 

(including data indicating no record) 

received from the FBI, or a copy of these 

records if the individual’s file has been 

transferred, on an individual for 5 years 

from the date the individual no longer 

requires unescorted access to category 1 

or category 2 quantities of radioactive 

material. 

§ 37.33 Access authorization program 

review. 

(a) Each licensee shall be responsible 

for the continuing effectiveness of the 

access authorization program. Each 

licensee shall ensure that access 

authorization programs are reviewed to 

confirm compliance with the 

requirements of this subpart and that 

comprehensive actions are taken to 

correct any noncompliance that is 

identified. The review program shall 

evaluate all program performance 

objectives and requirements. Each 

licensee shall ensure that its entire 

access program is reviewed at a 

frequency not to exceed 12 months. 

(b) The results of the reviews, along 

with any recommendations, must be 

documented. Each review report must 

identify conditions that are adverse to 

the proper performance of the access 

authorization program, the cause of the 

condition(s), and, when appropriate, 

recommend corrective actions, and 

corrective actions taken. The licensee 

shall review the findings and take any 

additional corrective actions necessary 

to preclude repetition of the condition, 

including reassessment of the deficient 

areas where indicated. 

(c) Review records must be 

maintained for 5 years. 

Subpart C—Physical Protection 

Requirements During Use 

§ 37.41 Security program. 

(a) Applicability. 

(1) Each licensee that possesses an 

aggregated quantity of category 1 or 

category 2 radioactive material shall 

establish, implement, and maintain a 

security program in accordance with the 

requirements of this subpart. 

(2) A licensee that is authorized to 

possess at least a category 2 quantity of 

radioactive material but does not 

possess an aggregated quantity that 

equals or exceeds the category 2 

threshold shall develop a security 

program in accordance with the 

requirements of this subpart. At least 90 

days before a licensee aggregates 

radioactive material to a quantity that 

equals or exceeds the category 2 

threshold, the licensee shall implement 

its security program. The licensee shall 

provide written notification to the NRC 

regional office specified in § 30.6 of this 

chapter that the licensee is now 

implementing its security program as 

follows: 

(i) If the aggregated quantity of 

radioactive material fluctuates above 

and below the category 2 threshold 

more than once in a 90-day period and 

will continue to do so indefinitely, the 

licensee need only notify the NRC the 

first time the security program is to be 

implemented. This notification must 

inform the NRC that the licensee 

aggregates material at or above the 

category 2 threshold from time to time 

and that the licensee will implement the 

security program whenever the material 

is aggregated at or above the category 2 

threshold. If the security program is 

discontinued for more than 90 days, 

then the licensee shall notify the NRC 

the next time the security program is to 

be implemented. 

(ii) If the aggregated quantity of 

radioactive material does not fluctuate 

above and below the category 2 

threshold more than once in a 90-day 

period, the licensee shall notify the NRC 

each time a previously discontinued or 

new security program is to be 

implemented. 

(b) General performance objective. 

Each licensee shall establish, 

implement, and maintain a security 

program that is designed to monitor, 

and without delay detect, assess, and 

respond to an actual or attempted 

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category 2 quantities of radioactive 

material. 

(c) Program features. Each licensee’s 

security program must include the 

program features, as appropriate, 

described in §§ 37.43, 37.45, 37.47, 

37.49, 37.51, 37.53, and 37.55. 

(d) Information submittal and 

notification. By (30 days after the final 

rule is published in the Federal 

Register), each licensee that is 

authorized to possess a category 1 or 

category 2 quantity of radioactive 

material on the effective date of this 

regulation shall submit information 

concerning the licensee’s compliance 

with the requirements of this subpart to 

the appropriate Regional Administrator. 

§ 37.43 General security program 

requirements. 

(a) Security plan. 

(1) Each licensee subject to the 

requirements of this subpart shall 

develop a written security plan. The 

purpose of the security plan is to 

establish the licensee’s overall security 

strategy to ensure the integrated and 

effective functioning of the security 

program required by this subpart. The 

security plan must at a minimum: 

(i) Describe the measures and 

strategies used to implement the 

requirements of this subpart; 

(ii) Identify the security resources, 

equipment, and technology used to 

satisfy the requirements of this subpart; 

(iii) Describe any site-specific 

conditions that affect implementation of 

Commission requirements; and 

(iv) Describe the training by which 

individuals implementing the security 

program will be informed of their 

responsibilities and of any changes that 

may affect their ability to implement the 

security program. 

(2) The security plan must be 

reviewed and approved by the 

individual with overall responsibility 

for the security program. 

(3) A licensee shall revise its security 

plan as necessary to ensure the effective 

implementation of Commission 

requirements. The licensee shall ensure 

that: 

(i) The revision has been reviewed 

and approved by the individual with 

overall responsibility for the security 

program and licensee management; and 

(ii) The affected individuals are 

instructed on the revised plan before the 

changes are implemented. 

(4) The licensee shall retain a copy of 

the current security plan as a record 

until the Commission terminates the 

license and, if any portion of the plan 

is superseded, retain the superseded 

material for 5 years after the record is 

superseded. 

(b) Implementing procedures. 

(1) The licensee shall develop and 

maintain written procedures that 

document how the requirements of this 

subpart and the security plan will be 

met. 

(2) The implementing procedures and 

revisions to these procedures must be 

approved in writing by the individual 

with overall responsibility for the 

security program. 

(3) The licensee shall retain a copy of 

the current procedure as a record until 

the Commission terminates the license 

and, if any portion of the procedure is 

superseded, retain the superseded 

material for 5 years after the record is 

superseded. 

(c) Training. 

(1) Each licensee shall conduct 

training on the security plan to ensure 

that those individuals responsible for 

implementing the security plan possess 

and maintain the knowledge, skills, and 

abilities to carry out their assigned 

duties and responsibilities effectively. 

The training must include instruction 

in: 

(i) The licensee’s security program 

and procedures to secure category 1 or 

category 2 quantities of radioactive 

material, and in the purposes and 

functions of the security measures 

employed; 

(ii) The responsibility to report 

promptly to the licensee any condition 

that causes or may cause a violation of 

Commission requirements; 

(iii) The responsibility to report 

promptly to the local law enforcement 

agency and licensee any actual or 

attempted theft, sabotage, or diversion 

of category 1 or category 2 quantities of 

radioactive material; and 

(iv) The appropriate response to 

security alarms. 

(2) In determining those individuals 

who shall be trained on the security 

plan, the licensee shall consider each 

individual’s assigned activities during 

authorized use and response to potential 

situations involving actual or attempted 

theft, diversion, or sabotage of category 

1 or category 2 quantities of radioactive 

material. The extent of the training must 

be commensurate with the individual’s 

potential involvement in the security of 

category 1 or category 2 quantities of 

radioactive material as detailed in the 

licensee’s security plan. 

(3) Refresher training must be 

provided at a frequency not to exceed 12 

months and when significant changes 

have been made to the security program. 

This training must include: 

(i) Review of the training 

requirements of paragraph (c) of this 

section, and any changes made since the 

last training; 

(ii) Reports on any relevant security 

issues, problems, and lessons learned; 

(iii) Relevant results of NRC 

inspections; and 

(iv) Relevant results of the licensee’s 

program review and testing and 

maintenance. 

(4) The licensee shall maintain 

records of the initial and refresher 

training for 5 years from the date of the 

training. The training records must 

include dates of the training, topics 

covered, a list of licensee personnel in 

attendance, and related information. 

(d) Protection of information. 

(1) Except as provided in paragraph 

(d)(8) of this section, licensees 

authorized to possess category 1 or 

category 2 quantities of radioactive 

material shall limit access to and 

unauthorized disclosure of their 

security plan and implementing 

procedures. 

(2) Efforts to limit access shall include 

the development, implementation, and 

maintenance of written policies and 

procedures for controlling access to, and 

for proper handling and protection 

against unauthorized disclosure of, the 

security plan and implementing 

procedures. 

(3) Before granting an individual 

access to the security plan or 

implementing procedures, licensees 

shall: 

(i) Evaluate an individual’s need to 

know the security plan or implementing 

procedures; and 

(ii) Complete a background 

investigation to determine the 

individual’s trustworthiness and 

reliability. A trustworthy and reliability 

determination shall be conducted by the 

reviewing official and shall include the 

background investigation elements 

contained in § 37.25(a)(2) through 

(a)(10). The § 37.25(a)(1) fingerprinting 

and criminal history records check 

requirements shall not be applied to 

those individuals who do not require 

unescorted access to category 1 or 

category 2 quantities of radioactive 

material. 

(4) Licensees need not subject the 

following individuals to the background 

investigation elements for protection of 

information: 

(i) The categories of individuals listed 

in § 37.29(a) through (m); or 

(ii) Security service provider 

employees, provided written 

verification that the employee has been 

determined to be trustworthy and 

reliable by the required background 

investigation in § 37.25(a)(2) through 

(a)(10) has been provided by the 

security service provider. 

(5) The licensee shall document the 

basis for concluding that an individual 

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is trustworthy and reliable and should 

be granted access to the security plan or 

implementing procedures. Licensees 

shall maintain a list of persons currently 

approved for access to the security plan 

or implementing procedures. When a 

licensee determines that a person no 

longer needs access to the security plan 

or implementing procedures, the 

licensee shall immediately remove the 

person from the approved list and take 

measures to ensure that the individual 

is unable to obtain the security plan or 

implementing procedures. 

(6) When not in use, the licensee shall 

store their security plan and 

implementing procedures in a manner 

to prevent removal. Information stored 

in non-removable electronic form must 

be password protected. 

(7) The licensee shall retain as a 

record for 5 years after the document is 

no longer needed: 

(i) A copy of the information 

protection procedures; and 

(ii) The list of individuals approved 

for access to the security plan or 

implementing procedures. 

(8) Licensees that possess safeguards 

information or safeguards informationmodified handling are subject to the 

requirements of § 73.21 of this chapter, 

and shall protect any safeguards 

information or safeguards informationmodified handling in accordance with 

the requirements of that section. 

§ 37.45 LLEA coordination and 

notification. 

(a) LLEA coordination. 

(1) A licensee subject to this subpart 

shall provide information to and 

coordinate to the extent practicable with 

an LLEA for responding to threats to the 

licensee’s facility, including any 

necessary armed response. The 

information provided to the LLEA must 

include: 

(i) A description of the facilities and 

radioactive materials subject to this 

subpart; 

(ii) A description of the licensee’s 

security measures that have been 

implemented to comply with this 

subpart; 

(iii) A notification that the licensee 

will request a timely armed response by 

the LLEA to any actual or attempted 

theft, sabotage, or diversion of category 

1 or category 2 quantities of material; 

(iv) A request for information about 

the LLEA’s capabilities to provide a 

timely armed response taking into 

consideration the description of the 

security measures provided in 

paragraph (a)(1)(ii) of this section; 

(v) A request to establish a written 

agreement with the LLEA that describes 

the LLEA’s commitments to provide a 

response in accordance with this 

section; 

(vi) A request to establish a means of 

direct communication with an LLEAdesignated point of contact for security 

emergencies involving actual or 

attempted theft or sabotage of licensee 

materials; 

(vii) A request that the LLEA notify 

the licensee whenever the LLEA’s 

contact information changes; 

(viii) A request that the LLEA notify 

the licensee whenever the LLEA’s 

response capabilities become degraded 

or it becomes incapable of providing a 

timely armed response; and 

(ix) A request for information about 

the LLEA’s willingness to participate in 

drills and exercises. 

(2) The licensee shall notify the 

appropriate NRC regional office listed in 

§ 30.6(a)(2) of this chapter within three 

business days if: 

(i) The LLEA has not responded to the 

request for coordination within 60 days 

of the coordination request; or 

(ii) The LLEA notifies the licensee 

that the LLEA does not plan to 

participate in coordination activities. 

(3) The licensee shall document its 

efforts to coordinate with the LLEA to 

provide a response to threats to the 

licensee’s facility. The licensee’s 

documentation must include: 

(i) Dates, times, and locations of 

meetings with the LLEA; 

(ii) Licensee personnel present; 

(iii) LLEA personnel present; and 

(iv) Copies of any correspondence 

between the licensee and LLEA. 

(4) The licensee shall coordinate with 

the LLEA at a frequency no greater than 

12 months, or when changes to the 

facility design or operation adversely 

affect the potential vulnerability of the 

licensee’s material to theft, sabotage, or 

diversion. The coordination activities 

shall include verification of contact 

information and response capabilities. 

(5) The licensee shall notify the 

appropriate NRC regional office listed in 

§ 30.6(a)(2) of this chapter within three 

business days after the licensee becomes 

aware of any applicable state or local 

agency requirement that an initial 

response to an emergency involving 

radioactive materials must be provided 

by other than armed LLEA personnel. 

(b) LLEA notification for temporary 

job sites. 

(1) At least three business days prior 

to beginning work at temporary job sites 

where the licensee will use or store 

category 1 or category 2 quantities of 

radioactive material for more than seven 

consecutive calendar days, the licensee 

shall provide advance written 

notification to the appropriate LLEA. 

Advance notification must include: 

(i) An explanation that the licensee is 

required to provide this notification to 

the LLEA in accordance with this 

section; 

(ii) An explanation that the licensee 

will request an armed response from the 

LLEA in the event of an actual or 

attempted theft, sabotage, or diversion 

of category 1 or category 2 quantities of 

radioactive material at the temporary job 

site; 

(iii) Information on the quantities of 

radioactive material involved and the 

potential hazards associated with loss of 

control of the material; 

(iv) Scheduled start date and expected 

duration of the licensee’s work requiring 

the use or storage of category 1 or 

category 2 quantities of radioactive 

materials at the temporary job site for 

which this notice is provided; 

(v) Address of the temporary job site, 

if available, or sufficient directions to 

allow the LLEA to determine the 

location of the temporary job site; 

(vi) Names and contact information 

for licensee personnel expected to be 

present at the temporary job site and 

responsible for the security of category 

1 or category 2 quantities of radioactive 

material; 

(vii) Names and contact information 

for other licensee personnel to be 

contacted in an emergency or for 

additional information; 

(viii) Names and contact information 

for the NRC Region responsible for 

oversight of the licensee’s activities at 

the temporary job site that the LLEA 

may contact for information; and 

(ix) A request that the LLEA confirm 

receipt of the notification. 

(2) If an emergency or other 

unforeseen circumstance does not allow 

the licensee to provide three business 

days written advance notice to the 

LLEA, the licensee shall notify the 

LLEA as soon as possible via telephone, 

facsimile, or e-mail. 

(3) The licensee shall maintain 

documentation of all temporary job site 

notifications sent to the LLEA and any 

confirmations provided by the LLEA. 

(c) Records. The licensee shall 

maintain records of its coordination 

activities with any LLEA in the 

development of the licensee’s security 

plan, and copies of all documents and 

correspondence provided to or received 

from any LLEA in accordance with this 

section. Records of coordination 

activities at a temporary job site must be 

maintained for a period of 5 years. 

§ 37.47 Security zones. 

(a) Licensees shall ensure that all 

aggregated category 1 and category 2 

quantities of radioactive material are 

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established security zones. Security 

zones may be permanent or temporary. 

(b) Temporary security zones must be 

established as necessary to meet the 

licensee’s transitory or intermittent 

business activities, such as periods of 

maintenance, source delivery, and 

source replacement. 

(c) Security zones must, at a 

minimum, allow unescorted access only 

to approved individuals through: 

(1) Isolation of category 1 and 

category 2 quantities of radioactive 

materials by the use of continuous 

physical barriers that allow access to the 

security zone only through established 

access control points; or 

(2) Direct control of the security zone 

by approved individuals at all times; or 

(3) A combination of continuous 

physical barriers and direct control. 

(d) For category 1 quantities of 

radioactive material during periods of 

maintenance, source receipt, 

preparation for shipment, installation, 

or source removal or exchange, the 

licensee shall, at a minimum, provide 

an approved individual to maintain 

continuous surveillance of sources in 

temporary security zones and in any 

security zone in which physical barriers 

or intrusion detection systems have 

been disabled to allow such activities. 

§ 37.49 Monitoring, detection, and 

assessment. 

(a) Monitoring and detection. 

(1) Licensees shall establish and 

maintain the capability to continuously 

monitor and detect without delay all 

unauthorized entries into its security 

zones. Licensees shall provide the 

means to maintain continuous 

monitoring and detection capability in 

the event of a loss of the primary power 

source, or provide for an alarm and 

response in the event of a loss of this 

capability to continuously monitor and 

detect unauthorized entries. 

(2) Monitoring and detection must be 

performed by: 

(i) A monitored intrusion detection 

system that is linked to an on-site or offsite central monitoring facility; 

(ii) Electronic devices for intrusion 

detection alarms that will alert nearby 

facility personnel; 

(iii) Visual monitoring by video 

surveillance cameras; or 

(iv) Visual inspection by approved 

individuals. 

(3) A licensee subject to this subpart 

shall also have a means to detect 

unauthorized removal of the radioactive 

material from the security zone. This 

detection capability must provide: 

(i) For category 1 quantities of 

radioactive material, immediate 

detection of any attempted 

unauthorized removal of the radioactive 

material from the security zone. Such 

immediate detection capability must be 

provided by: 

(A) Electronic sensors linked to an 

alarm; 

(B) Continuous monitored video 

surveillance; or 

(C) Direct visual surveillance. 

(ii) For category 2 quantities of 

radioactive material, weekly verification 

through physical checks, tamper 

indicating devices, use, or other means 

to ensure that the radioactive material is 

present. 

(b) Assessment. Licensees shall 

immediately assess each actual or 

attempted unauthorized entry into the 

security zone to determine whether the 

unauthorized access was an actual or 

attempted theft, sabotage, or diversion. 

(c) Personnel communications and 

data transmission. For personnel and 

automated or electronic systems 

supporting the licensee’s monitoring, 

detection, and assessment systems, 

licensees shall: 

(1) Maintain continuous capability for 

personnel communication and 

electronic data transmission and 

processing among site security systems; 

and 

(2) Provide an alternative 

communication capability for 

personnel, and an alternative data 

transmission and processing capability, 

in the event of a loss of the primary 

means of communication or data 

transmission and processing. 

Alternative communications and data 

transmission systems may not be subject 

to the same failure modes as the primary 

systems. 

(d) Response. Licensees shall 

immediately respond to any actual or 

attempted unauthorized access to the 

security zones, or actual or attempted 

theft, sabotage, or diversion of category 

1 or category 2 quantities of radioactive 

material at licensee facilities or 

temporary job sites. For any 

unauthorized access involving an actual 

or attempted theft, sabotage, or 

diversion of category 1 or category 2 

quantities of radioactive material, the 

licensee’s response shall include 

requesting, without delay, an armed 

response from the LLEA. 

§ 37.51 Maintenance, testing, and 

calibration. 

(a) Each licensee subject to this 

subpart shall implement a maintenance, 

testing, and calibration program to 

ensure that intrusion alarms, associated 

communication systems, and other 

physical components of the systems 

used to secure or detect unauthorized 

access to radioactive material are 

maintained in operable condition, are 

capable of performing their intended 

function when needed, and are 

inspected and tested for operability and 

performance at intervals not to exceed 3 

months. 

(b) The licensee shall maintain 

records on the maintenance, testing, and 

calibration activities for 5 years. 

§ 37.53 Requirements for mobile devices. 

Each licensee that possesses mobile 

devices containing category 1 or 

category 2 quantities of radioactive 

material must: 

(a) Have two independent physical 

controls to secure the material from 

unauthorized removal when the device 

is not under direct control and constant 

surveillance by the licensee; and 

(b) For devices in or on a vehicle or 

trailer, utilize a method to disable the 

vehicle or trailer when not under direct 

control and constant surveillance by the 

licensee. Licensees shall not rely on the 

removal of an ignition key to meet this 

requirement. 

§ 37.55 Security program review. 

(a) Each licensee shall be responsible 

for the continuing effectiveness of the 

security program. Each licensee shall 

ensure that the security program is 

reviewed to confirm compliance with 

the requirements of this subpart and 

that comprehensive actions are taken to 

correct any noncompliance that is 

identified. The review must include the 

radioactive material security program 

content and implementation. Each 

licensee shall ensure that the security 

program is reviewed at a frequency not 

to exceed 12 months. 

(b) The results of the review, along 

with any recommendations, must be 

documented. Each review report must 

identify conditions that are adverse to 

the proper performance of the security 

program, the cause of the condition(s), 

and, when appropriate, recommend 

corrective actions, and corrective 

actions taken. The licensee shall review 

the findings and take any additional 

corrective actions necessary to preclude 

repetition of the condition, including 

reassessment of the deficient areas 

where indicated. 

(c) The licensee shall maintain the 

review documentation for 5 years. 

§ 37.57 Reporting of events. 

(a) The licensee shall immediately 

notify the LLEA after initiating an 

appropriate response to any actual or 

attempted theft, sabotage, or diversion 

of a category 1 or category 2 quantity of 

radioactive material. As soon as possible 

after initiating a response, but not at the 

expense of causing delay or interfering 

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with the LLEA response to the event, 

the licensee shall notify the NRC 

Operations Center ((301) 816–5100). In 

no case shall the notification to the NRC 

be later than 4 hours after the discovery 

of any attempted or actual theft, 

sabotage, or diversion. 

(b) The licensee shall notify the LLEA 

upon discovery of any suspicious 

activity related to possible theft, 

sabotage, or diversion of category 1 or 

category 2 quantities of radioactive 

material. As soon as possible but not 

later than 4 hours after notifying the 

LLEA, the licensee shall notify the NRC 

Operations Center ((301) 816–5100). 

(c) The initial telephonic notification 

required by paragraph (a) of this section 

must be followed within a period of 30 

days by a written report submitted to 

the NRC by an appropriate method 

listed in § 37.7. The report must include 

sufficient information for NRC analysis 

and evaluation, including identification 

of any necessary corrective actions to 

prevent future instances of such 

unauthorized access. 

Subpart D—Physical Protection in 

Transit 

§ 37.71 Additional requirements for 

transfer of category 1 and category 2 

quantities of radioactive material. 

(a) Notwithstanding the requirements 

of any other regulation in this chapter, 

any licensee transferring category 1 

quantities of radioactive material to a 

licensee of the Commission or an 

Agreement State, prior to conducting 

such transfer, shall verify with the 

NRC’s license verification system or the 

license issuing authority that the 

transferee’s license authorizes the 

receipt of the type, form, and quantity 

of radioactive material to be transferred 

and that the licensee is authorized to 

receive radioactive material at the 

address requested for delivery. The 

transferor shall document the 

verification. 

(b) Notwithstanding the requirements 

of any other regulation in this chapter, 

any licensee transferring category 2 

quantities of radioactive material to a 

licensee of the Commission or an 

Agreement State, prior to conducting 

such transfer, shall verify with the 

NRC’s license verification system or the 

license issuing authority that the 

transferee’s license authorizes the 

receipt of the type, form, and quantity 

of radioactive material to be transferred. 

The transferor shall document the 

verification. 

(c) The transferor shall keep a copy of 

the verification documentation as a 

record for 5 years. 

§ 37.73 Applicability of physical protection 

of category 1 and category 2 quantities of 

radioactive material during transit. 

(a) For shipments of category 1 

quantities of radioactive material, each 

shipping licensee shall comply with the 

requirements for physical protection 

contained in §§ 37.75(a) and (c) through 

(e); 37.77; 37.79(a)(1), (b)(1), (c) and (d); 

and 37.81(a), (c), (e), (g), and (h). 

(b) For shipments of category 2 

quantities of radioactive material, each 

shipping licensee shall comply with the 

requirements for physical protection 

contained in §§ 37.75(b) through (e); 

37.79(a)(2), (a)(3), (b)(2), and (d); and 

37.81(b), (d), (f), (g), and (h). For those 

shipments of category 2 quantities of 

radioactive material that meet the 

criteria of § 71.97(b) of this chapter, the 

shipping licensee shall also comply 

with the advance notification provisions 

of § 71.97 of this chapter. 

(c) The shipping licensee shall be 

responsible for meeting the 

requirements of this subpart unless the 

receiving licensee has agreed in writing 

to arrange for the in-transit physical 

protection required under this subpart. 

(d) Each licensee that imports 

category 1 quantities of radioactive 

material shall comply with the 

requirements for physical protection 

contained in §§ 37.75(a)(2) and (c) 

through (e); 37.77; 37.79(a)(1), (b)(1), (c), 

and (d); and 37.81(a), (c), (e), (g), and (h) 

during the domestic portion of the 

shipment. 

(e) Each licensee that imports category 

2 quantities of radioactive material shall 

comply with the requirements for 

physical protection during transit 

contained in §§ 37.75(c) through (e); 

37.79(a)(2), (a)(3), (b)(2), and (d); and 

37.81(b), (d), (f), (g), and (h) during the 

domestic portion of the shipment. 

§ 37.75 Preplanning and coordination of 

shipment of category 1 or category 2 

quantities of radioactive material. 

(a) Each licensee that plans to 

transport, or deliver to a carrier for 

transport, licensed material that is a 

category 1 quantity of radioactive 

material outside the confines of the 

licensee’s facility or other place of use 

or storage shall: 

(1) Preplan and coordinate shipment 

arrival, including the no-later-than 

arrival time, and departure times with 

the receiving licensee; 

(2) Preplan and coordinate shipment 

information with the governor or the 

governor’s designee of any State through 

which the shipment will pass to: 

(i) Ensure minimal delays; 

(ii) Discuss the State’s intention to 

provide law enforcement escorts; 

(iii) Arrange for positional 

information sharing when requested; 

(iv) Identify Highway Route Control 

Quantity shipments (as the term 

‘‘Highway Route Control Quantity’’ is 

defined in 49 CFR 173.403); and 

(v) Identify safe havens; and 

(3) Document the preplanning and 

coordination activities. 

(b) Each licensee that plans to 

transport, or deliver to a carrier for 

transport, licensed material that is a 

category 2 quantity of radioactive 

material outside the confines of the 

licensee’s facility or other place of use 

or storage shall verify and document the 

shipment no-later-than arrival time and 

the actual shipment arrival with the 

receiving licensee. Verification may be 

made by e-mail, fax, or written 

documentation of a verbal conversation. 

(c) Each licensee who receives a 

shipment of a category 1 or category 2 

quantity of radioactive material shall 

notify the shipping licensee within 4 

hours when the shipment arrives at its 

destination. 

(d) Each licensee, who transports or 

plans to transport a shipment of a 

category 1 or category 2 quantity of 

radioactive material, and determines 

that the shipment will arrive after the 

no-later-than arrival time provided 

pursuant to paragraph (a)(1) of this 

section, shall promptly notify the 

receiving licensee of the new no-laterthan arrival time. 

(e) The licensee shall retain a copy of 

the documentation for preplanning and 

coordination and any revision thereof, 

as a record for 5 years. 

§ 37.77 Advance notification of shipment 

of category 1 quantities of radioactive 

material. 

As specified in paragraphs (a) and (b) 

of this section, each licensee shall 

provide advance notification to the NRC 

and the governor of a State, or the 

governor’s designee, of the shipment of 

licensed material in a category 1 

quantity, through or across the 

boundary of the State, before the 

transport, or delivery to a carrier for 

transport of the licensed material 

outside the confines of the licensee’s 

facility or other place of use or storage. 

The contact information, including 

telephone and mailing addresses, of 

governors and governors’ designees, is 

available on the NRC Web site at http:// 

nrc-stp.ornl.gov/special/designee.pdf. A 

list of the contact information is also 

available upon request from the 

Director, Division of Intergovernmental 

Liaison and Rulemaking, Office of 

Federal and State Materials and 

Environmental Management Programs, 

U.S. Nuclear Regulatory Commission, 

Washington, DC 20555. 

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(a) Procedures for submitting advance 

notification. (1) The notification must be 

made in writing to the office of each 

appropriate governor or governor’s 

designee and to the NRC’s Director, 

Division of Security Policy, Office of 

Nuclear Security and Incident 

Response, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555. 

(2) A notification delivered by mail 

must be postmarked at least 7 days 

before transport of the shipment 

commences at the shipping facility. 

(3) A notification delivered by any 

other means than mail must reach the 

office of the governor or the governor’s 

designee at least 4 days before transport 

of a shipment within or through the 

State. 

(b) Information to be furnished in 

advance notification of shipment. Each 

advance notification of shipment of 

category 1 quantities of radioactive 

material must contain the following 

information, if available at the time of 

notification: 

(1) The name, address, and telephone 

number of the shipper, carrier, and 

receiver of the category 1 radioactive 

material; 

(2) The license numbers of the 

shipper and receiver; 

(3) A description of the radioactive 

material contained in the shipment, 

including the radionuclides and 

quantity; 

(4) The point of origin of the shipment 

and the estimated time and date that 

shipment will commence; 

(5) The estimated time and date that 

the shipment is expected to enter each 

State along the route; 

(6) The estimated time and date of 

arrival of the shipment at the 

destination; and 

(7) A point of contact, with a 

telephone number, for current shipment 

information. 

(c) Revision notice. 

(1) The licensee shall provide any 

information not previously available at 

the time of the initial notification, as 

soon as the information becomes 

available, to the governor of the State or 

the governor’s designee and to the 

NRC’s Director of Nuclear Security, 

Office of Nuclear Security and Incident 

Response, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555. 

(2) A licensee shall promptly notify 

the governor of the State or the 

governor’s designee of any changes to 

the information provided in accordance 

with paragraphs (b) and (c)(1) of this 

section. The licensee shall also notify 

the NRC’s Director, Division of Security 

Policy, Office of Nuclear Security and 

Incident Response, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555 of any such changes. 

(d) Cancellation notice. Each licensee 

who cancels a shipment for which 

advance notification has been sent shall 

send a cancellation notice to the 

governor of each State or to the 

governor’s designee previously notified 

and to the NRC’s Director, Division of 

Security Policy, Office of Nuclear 

Security and Incident Response. The 

licensee shall state in the notice that it 

is a cancellation and identify the 

advance notification that is being 

cancelled. 

(e) Records. The licensee shall retain 

a copy of the advance notification and 

any revision and cancellation notices as 

a record for 5 years. 

(f) Protection of information. State 

officials, State employees, and other 

individuals, whether or not licensees of 

the Commission or an Agreement State, 

who receive schedule information of the 

kind specified in § 37.77(b) shall protect 

that information against unauthorized 

disclosure as specified in § 73.21 of this 

chapter. 

§ 37.79 Requirements for physical 

protection of category 1 and category 2 

quantities of radioactive material during 

shipment. 

(a) Shipments by road. 

(1) Each licensee who transports, or 

delivers to a carrier for transport, in a 

single shipment, a category 1 quantity of 

radioactive material shall: 

(i) Ensure that movement control 

centers are established that maintain 

position information from a remote 

location. These control centers must 

monitor shipments 24 hours a day, 7 

days a week, and have the ability to 

communicate immediately, in an 

emergency, with the appropriate law 

enforcement agencies. 

(ii) Ensure that redundant 

communications are established that 

allow the transport to contact the escort 

vehicle (when used) and movement 

control center at all times. Redundant 

communications may not be subject to 

the same interference factors as the 

primary communication. 

(iii) Ensure that shipments are 

continuously and actively monitored by 

a telemetric position monitoring system 

or an alternative tracking system 

reporting to a movement control center. 

A movement control center must 

provide positive confirmation of the 

location, status, and control over the 

shipment. The movement control center 

must be prepared to promptly 

implement preplanned procedures in 

response to deviations from the 

authorized route or a notification of 

actual, attempted, or suspicious 

activities related to the theft, loss, or 

diversion of a shipment. These 

procedures will include, but not be 

limited to, the identification of and 

contact information for the appropriate 

LLEA along the shipment route. 

(iv) Provide an individual to 

accompany the driver for those highway 

shipments with a driving time period 

greater than the maximum number of 

allowable hours of service in a 24-hour 

duty day as established by the 

Department of Transportation Federal 

Motor Carrier Safety Administration. 

The accompanying individual may be 

another driver. 

(2) Each licensee that transports 

category 2 quantities of radioactive 

material shall maintain constant control 

and/or surveillance during transit and 

have the capability for immediate 

communication to summon appropriate 

response or assistance. 

(3) Each licensee who delivers to a 

carrier for transport, in a single 

shipment, a category 2 quantity of 

radioactive material shall: 

(i) Use carriers that have established 

package tracking systems. An 

established package tracking system is a 

documented, proven, and reliable 

system routinely used to transport 

objects of value. In order for a package 

tracking system to maintain constant 

control and/or surveillance, the package 

tracking system must allow the shipper 

or transporter to identify when and 

where the package was last and when it 

should arrive at the next point of 

control. 

(ii) Use carriers that maintain constant 

control and/or surveillance during 

transit and have the capability for 

immediate communication to summon 

appropriate response or assistance; and 

(iii) Use carriers that have established 

tracking systems that require an 

authorized signature prior to releasing 

the package for delivery or return. 

(b) Shipments by rail. 

(1) Each licensee who transports, or 

delivers to a carrier for transport, in a 

single shipment, a category 1 quantity of 

radioactive material shall: 

(i) Ensure that rail shipments are 

monitored by a telemetric position 

monitoring system or an alternative 

tracking system reporting to the 

licensee, third-party, or railroad 

communications center. The 

communications center shall provide 

positive confirmation of the location of 

the shipment and its status. The 

communications center shall implement 

preplanned procedures in response to 

deviations from the authorized route or 

to a notification of actual, attempted, or 

suspicious activities related to the theft 

or diversion of a shipment. These 

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33944 Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Proposed Rules 

procedures will include, but not be 

limited to, the identification of and 

contact information for the appropriate 

LLEA along the shipment route. 

(ii) Implement an NRC-approved 

monitoring plan that is designed to 

prevent the use of the shipment for 

malevolent purposes while the 

shipment is in the classification yard. 

(iii) Ensure that periodic reports to the 

communications center are made at 

preset intervals. 

(2) Each licensee who transports, or 

delivers to a carrier for transport, in a 

single shipment, a category 2 quantity of 

radioactive material shall: 

(i) Use carriers that have established 

package tracking systems. An 

established package tracking system is a 

documented, proven, and reliable 

system routinely used to transport 

objects of value. In order for a package 

tracking system to maintain constant 

control and/or surveillance, the package 

tracking system must allow the shipper 

or transporter to identify when and 

where the package was last and when it 

should arrive at the next point of 

control. 

(ii) Use carriers that maintain constant 

control and/or surveillance during 

transit and have the capability for 

immediate communication to summon 

appropriate response or assistance; and 

(iii) Use carriers that have established 

tracking systems that require an 

authorized signature prior to releasing 

the package for delivery or return. 

(c) Procedures. 

(1) Each licensee who makes 

arrangements for the shipment of 

category 1 quantities of radioactive 

material shall develop written normal 

and contingency procedures to address: 

(i) Notifications to the communication 

center and law enforcement agencies; 

(ii) Communication protocols. 

Communication protocols must include 

a strategy for the use of authentication 

and duress codes and provisions for 

refueling or other stops, detours, and 

locations where communication is 

expected to be temporarily lost; 

(iii) Loss of communications; and 

(iv) Responses to an actual or 

attempted theft or diversion of a 

shipment, or any suspicious activities 

related to a shipment. 

(2) Each licensee who makes 

arrangements for the shipment of 

category 1 quantities of radioactive 

material shall ensure that drivers, 

accompanying personnel, train crew, 

and movement control center personnel 

are appropriately trained in normal and 

contingency procedures. 

(d) Investigations. Each licensee who 

makes arrangements for the shipment of 

category 1 or category 2 quantities of 

radioactive material shall immediately 

conduct an investigation, in 

coordination with the receiving 

licensee, of any shipment that is lost or 

unaccounted for after the designated nolater-than arrival time in the advance 

notification. 

§ 37.81 Reporting of events. 

(a) The shipping licensee shall notify 

the appropriate LLEA and the NRC 

Operations Center ((301) 816–5100), 

within 1 hour of its determination that 

a shipment of category 1 quantities of 

radioactive material is lost or missing. 

The appropriate LLEA would be the law 

enforcement agency in the area of the 

shipment’s last confirmed location. 

During the investigation required by 

37.79(d), the shipping licensee will 

provide agreed upon updates to the NRC 

Operations Center on the status of the 

investigation. 

(b) The shipping licensee shall notify 

the NRC Operations Center ((301) 816– 

5100) within 4 hours of its 

determination that a shipment of 

category 2 quantities of radioactive 

material is lost or missing. If, after 24 

hours of its determination that the 

shipment is lost or missing, the 

radioactive material has not been 

located and secured, the licensee shall 

immediately notify the NRC Operations 

Center. 

(c) The shipping licensee shall notify 

the designated LLEA along the shipment 

route, as soon as possible upon 

discovery of any actual or attempted 

theft or diversion of a shipment or 

suspicious activities related to the theft 

or diversion of a shipment of a category 

1 quantity of radioactive material. As 

soon as possible after notifying the 

LLEA, the licensee shall notify the NRC 

Operations Center ((301) 816–5100) 

upon discovery of any actual or 

attempted theft or diversion of a 

shipment, or any suspicious activity 

related to the shipment of category 1 

radioactive material. 

(d) The shipping licensee shall notify 

the NRC Operations Center ((301) 816– 

5100), as soon as possible, upon 

discovery of any actual or attempted 

theft or diversion of a shipment, or any 

suspicious activity related to the 

shipment, of a category 2 quantity of 

radioactive material. 

(e) The shipping licensee shall notify 

the NRC Operations Center ((301) 816– 

5100) and the LLEA as soon as possible 

upon recovery of any lost or missing 

category 1 quantities of radioactive 

material. 

(f) The shipping licensee shall notify 

the NRC Operations Center ((301) 816– 

5100) as soon as possible upon recovery 

of any lost or missing category 2 

quantities of radioactive material. 

(g) The initial telephonic notification 

required by paragraphs (a) through (d) 

must be followed within a period of 30 

days by a written report submitted to 

the NRC by an appropriate method 

listed in § 37.7. In addition, the licensee 

shall provide one copy of the written 

report addressed to the Director, 

Division of Security Policy, Office of 

Nuclear Security and Incident 

Response. The report must include 

sufficient information for NRC analysis 

and evaluation. 

(h) Subsequent to filing the written 

report, the licensee shall also report any 

additional substantive information on 

the loss or theft within 30 days after the 

licensee learns of such information. 

Subpart E—[Reserved] 

Subpart F—Records 

§ 37.101 Form of records. 

Each record required by this part must 

be legible throughout the retention 

period specified by each Commission 

regulation. The record may be the 

original or a reproduced copy or a 

microform, provided that the copy or 

microform is authenticated by 

authorized personnel and that the 

microform is capable of producing a 

clear copy throughout the required 

retention period. The record may also be 

stored in electronic media with the 

capability for producing legible, 

accurate, and complete records during 

the required retention period. Records 

such as letters, drawings, and 

specifications, must include all 

pertinent information such as stamps, 

initials, and signatures. The licensee 

shall maintain adequate safeguards 

against tampering with and loss of 

records. 

§ 37.103 Record retention. 

Licensees shall maintain the records 

that are required by the regulations in 

this part for the period specified by the 

appropriate regulation. If a retention 

period is not otherwise specified, these 

records must be retained until the 

Commission terminates the facility’s 

license. 

Subpart G—Enforcement 

§ 37.105 Inspections. 

(a) Each licensee shall afford to the 

Commission at all reasonable times 

opportunity to inspect category 1 or 

category 2 quantities of radioactive 

material and the premises and facilities 

wherein the nuclear material is used, 

produced, or stored. 

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(b) Each licensee shall make available 

to the Commission for inspection, upon 

reasonable notice, records kept by the 

licensee pertaining to its receipt, 

possession, use, acquisition, import, 

export, or transfer of category 1 or 

category 2 quantities of radioactive 

material. 

§ 37.107 Violations. 

(a) The Commission may obtain an 

injunction or other court order to 

prevent a violation of the provisions 

of— 

(1) The Atomic Energy Act of 1954, as 

amended; 

(2) Title II of the Energy 

Reorganization Act of 1974, as 

amended; or 

(3) A regulation or order issued 

pursuant to those Acts. 

(b) The Commission may obtain a 

court order for the payment of a civil 

penalty imposed under section 234 of 

the Atomic Energy Act: 

(1) For violations of— 

(i) Sections 53, 57, 62, 63, 81, 82, 101, 

103, 104, 107, or 109 of the Atomic 

Energy Act of 1954, as amended: 

(ii) Section 206 of the Energy 

Reorganization Act; 

(iii) Any rule, regulation, or order 

issued pursuant to the sections specified 

in paragraph (b)(1)(i) of this section; 

(iv) Any term, condition, or limitation 

of any license issued under the sections 

specified in paragraph (b)(1)(i) of this 

section. 

(2) For any violation for which a 

license may be revoked under Section 

186 of the Atomic Energy Act of 1954, 

as amended. 

§ 37.109 Criminal penalties. 

(a) Section 223 of the Atomic Energy 

Act of 1954, as amended, provides for 

criminal sanctions for willful violation 

of, attempted violation of, or conspiracy 

to violate, any regulation issued under 

sections 161b, 161i, or 161o of the Act. 

For purposes of section 223, all the 

regulations in part 37 are issued under 

one or more of sections 161b, 161i, or 

161o, except for the sections listed in 

paragraph (b) of this section. 

(b) The regulations in part 37 that are 

not issued under sections 161b, 161i, or 

161o for the purposes of section 223 are 

as follows: §§ 37.1, 37.3, 37.5, 37.7, 37.9, 

37.11, 37.13, 37.107, and 37.109. 

Appendix A to Part 37—Category 1 and 

Category 2 Radioactive Materials 

The terabecquerel (TBq) values are the 

regulatory standard. The curie (Ci) values 

specified are obtained by converting from the 

TBq value. The curie values are provided for 

practical usefulness only. 

TABLE 1—CATEGORY 1 AND CATEGORY 2 THRESHOLD 1

Radioactive material Category 1 

(TBq) 

Category 1 

(Ci) 

Category 2 

(TBq) 

Category 2 

(Ci) 

Americium-241 ............................................................................................. 60 1,620 0 .6 16 .2 

Americium-241/Be ....................................................................................... 60 1,620 0 .6 16 .2 

Californium-252 ............................................................................................ 20 540 0 .2 5 .40 

Cobalt-60 ..................................................................................................... 30 810 0 .3 8 .10 

Curium-244 .................................................................................................. 50 1,350 0 .5 13 .5 

Cesium-137 .................................................................................................. 100 2,700 1 27 .0 

Gadolinium-153 ............................................................................................ 1,000 27,000 10 270 

Iridium-192 ................................................................................................... 80 2,160 0 .8 21 .6 

Plutonium-238 .............................................................................................. 60 1,620 0 .6 16 .2 

Plutonium-239/Be ........................................................................................ 60 1,620 0 .6 16 .2 

Promethium-147 .......................................................................................... 40,000 1,080,000 400 10,800 

Radium-226 ................................................................................................. 40 1,080 0 .4 10 .8 

Selenium-75 ................................................................................................. 200 5,400 2 54 .0 

Strontium-90 ................................................................................................ 1,000 27,000 10 270

Thulium-170 ................................................................................................. 20,000 540,000 200 5,400 

Ytterbium-169 .............................................................................................. 300 8,100 3 81 .0 

1Calculations Concerning Multiple Sources or Multiple Radionuclides. 

The ‘‘sum of fractions’’ methodology for evaluating combinations of multiple sources or multiple radionuclides is to be used in determining 

whether a facility or activity meets or exceeds the threshold and is thus subject to the physical protection requirements of this part. 

I. If multiple sources and/or multiple radionuclides are present in a facility or activity, the sum of the ratios of the activity of each of the radionuclides must be determined to verify the facility or activity is less than the category 1 or category 2 thresholds of Table 1, as appropriate. Otherwise, if the calculated sum of the ratio, using the following equation, is greater than or equal to 1.0, then the facility or activity meets or exceeds 

the thresholds of Table 1, and the applicable physical provisions of this part apply. 

II. Use the equation below to calculate the sum of the ratios by inserting the actual activity of the applicable radionuclides from Table 1 or of 

the individual sources (of the same radionuclides from Table 1) in the numerator of the equation and the corresponding threshold activity from 

the Table 1 in the denominator of the equation. Calculations must be performed in metric values (i.e., TBq) and the numerator and denominator 

values must be in the same units. 

R1 = activity for radionuclides or source 

number 1 

R2 = activity for radionuclides or source 

number 2 

RN = activity for radionuclides or source 

number n 

AR1 = activity threshold for radionuclides or 

source number 1 

AR2 = activity threshold for radionuclides or 

source number 2 

ARN = activity threshold for radionuclides or 

source number n 

R

AR

R

AR

R

AR

n

n

1

1

2

1 2

+ + 1 0 ⎡

⎣

⎢ ⎤

⎦ ∑ ⎥ ≥

n

.

Part 39—LICENSES AND RADIATION 

SAFETY REQUIREMENTS FOR WELL 

LOGGING 

17. The authority citation for Part 39 

continues to read as follows: 

Authority: Secs. 53, 57, 62, 63, 65, 69, 81, 

82, 161, 182, 183, 186, 68 Stat. 929, 930, 932, 

933, 934, 935, 948, 953, 954, 955, as 

amended, sec. 234, 83 Stat. 444, as amended 

(42 U.S.C. 2073, 2077, 2092, 2093, 2095, 

2099, 2111, 2112, 2201, 2232, 2233, 2236, 

2282); secs. 201, as amended, 202, 206, 88 

Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 

5841, 5842, 5846); sec. 1704, 112 Stat. 2750 

(44 U.S.C. 3504 note). 

18. In § 39.1, paragraph (a) is revised 

to read as follows: 

§ 39.1 Purpose and scope. 

(a) This part prescribes requirements 

for the issuance of a license authorizing 

the use of licensed materials including 

sealed sources, radioactive tracers, 

radioactive markers, and uranium sinker 

bars in well logging in a single well. 


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33946 Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Proposed Rules 

This part also prescribes radiation safety 

requirements for persons using licensed 

materials in these operations. The 

provisions and requirements of this part 

are in addition to, and not in 

substitution for, other requirements of 

this chapter. In particular, the 

provisions of parts 19, 20, 21, 30, 37, 40, 

70, 71, and 150 of this chapter apply to 

applicants and licensees subject to this 

part. 

* * * * * 

PART 51—ENVIRONMENTAL 

PROTECTION REGULATIONS FOR 

DOMESTIC LICENSING AND RELATED 

REGULATORY FUNCTIONS 

19. The authority citation for Part 51 

continues to read as follows: 

Authority: Sec. 161, 68 Stat. 948, as 

amended, sec. 1701, 106 Stat. 2951, 2952, 

2953, (42 U.S.C. 2201, 2297f); secs. 201, as 

amended, 202, 88 Stat. 1242, as amended, 

1244 (42 U.S.C. 5841, 5842); sec. 1704, 112 

Stat. 2750 (44 U.S.C. 3504 note). Subpart A 

also issued under National Environmental 

Policy Act of 1969, secs. 102, 104, 105, 83 

Stat. 853–854, as amended (42 U.S.C. 4332, 

4334, 4335); and Pub. L. 95–604, Title II, 92 

Stat. 3033–3041; and sec. 193, Pub. L. 101– 

575, 104 Stat. 2835 (42 U.S.C. 2243). Sections 

51.20, 51.30, 51.60, 51.80, and 51.97 also 

issued under secs. 135, 141, Pub. L. 97–425, 

96 Stat. 2232, 2241, and sec. 148, Pub. L. 

100–203, 101 Stat. 1330–223 (42 U.S.C. 

10155, 10161, 10168). Section 51.22 also 

issued under sec. 274, 73 Stat. 688, as 

amended by 92 Stat. 3036–3038 (42 U.S.C. 

2021) and under Nuclear Waste Policy Act of 

1982, sec. 121, 96 Stat. 2228 (42 U.S.C. 

10141). 

Sections 51.43, 51.67, and 51.109 also 

issued under Nuclear Waste Policy Act of 

1982, sec. 114(f), 96 Stat. 2216, as amended 

(42 U.S.C. 10134(f)). 

20. In § 51.22, the introductory text in 

paragraph (c)(3) is revised to read as 

follows: 

§ 51.22 Criterion for categorical exclusion; 

identification of licensing and regulatory 

actions eligible for categorical exclusion or 

otherwise not requiring environmental 

review. 

* * * * * 

(c) * * * 

(3) Amendments to parts 20, 30, 31, 

32, 33, 34, 35, 37, 39, 40, 50, 51, 52, 54, 

60, 61, 63, 70, 71, 72, 73, 74, 81, and 100 

of this chapter which relate to— 

* * * * * 

PART 71—PACKAGING AND 

TRANSPORTATION OF RADIOACTIVE 

MATERIAL 

21. The authority citation for part 71 

continues to read as follows: 

Authority: Secs. 53, 57, 62, 63, 81, 161, 

182, 183, 68 Stat. 930, 932, 933, 935, 948, 

953, 954, as amended, sec. 1701, 106 Stat. 

2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2092, 

2093, 2111, 2201,2232, 2233, 2297f); secs. 

201, as amended, 202, 206, 88 Stat. 1242, as 

amended, 1244, 1246 (42 U.S.C. 5841, 5842, 

5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 

3504 note); Energy Policy Act of 2005, Pub. 

L. No. 109–58, 119 Stat. 594 (2005). Section 

71.97 also issued under sec. 301, Pub. L. 96– 

295, 94 Stat. 789–790. 

22. In § 71.97, the introductory text of 

paragraph (b) is revised to read as 

follows: 

§ 71.97 Advance notification of shipment 

of irradiated reactor fuel and nuclear waste. 

* * * * * 

(b) Advance notification is also 

required under this section for the 

shipment of licensed material, other 

than irradiated fuel, meeting the 

following three conditions: 

* * * * * 

PART 73—PHYSICAL PROTECTION OF 

PLANTS AND MATERIALS 

23. The authority citation for part 73 

continues to read as follows: 

Authority: Secs. 53, 161, 149, 68 Stat. 930, 

948, as amended, sec. 147, 94 Stat. 780 (42 

U.S.C. 2073, 2167, 2169, 2201); sec. 201, as 

amended, 204, 88 Stat. 1242, as amended, 

1245, sec. 1701, 106 Stat. 2951, 2952, 2953 

(42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 

Stat. 2750 (44 U.S.C. 3504 note); Energy 

Policy Act of 2005, Pub. L. 109–58, 119 Stat. 

594 (2005). 

Section 73.1 also issued under secs. 135, 

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

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

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

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

73.57 is issued under sec. 606, Pub. L. 99– 

399, 100 Stat. 876 (42 U.S.C. 2169). 

24. A new § 73.35 is added to read as 

follows: 

§ 73.35 Requirements for physical 

protection of irradiated reactor fuel (100 

grams or less) in transit. 

Each licensee who transports, or 

delivers to a carrier for transport, in a 

single shipment, a quantity of irradiated 

reactor fuel weighing 100 grams (0.22 

pounds) or less in net weight of 

irradiated fuel, exclusive of cladding or 

other structural or packaging material, 

which has a total external radiation dose 

rate in excess of 1 sievert (100 rem) per 

hour at a distance of 0.91 meters (3 feet) 

from any accessible surface without 

intervening shielding, shall follow the 

physical protection requirements for 

category 1 quantities of radioactive 

material in Subpart D of Part 37 of this 

chapter. 

Dated at Rockville, Maryland, this 26th day 

of May, 2010. 

For the Nuclear Regulatory Commission. 

Annette Vietti-Cook, 

Secretary of the Commission. 

Note: This Appendix Will Not Appear in 

the Code of Federal Regulations. 

Appendix A to This Proposed Rule— 

Regulatory Flexibility Analysis for the 

Proposed Amendments to 10 CFR Parts 

30, 32, 33, 34, 35, 36, 37, 39, 51, 71, 73, 

and 150 (Physical Protection of 

Byproduct Material) 

I. Background 

The Regulatory Flexibility Act (RFA), as 

amended 5 U.S.C. 601 et seq., requires that 

agencies consider the impact of their 

rulemakings on small entities and, consistent 

with applicable statutes, consider 

alternatives to minimize these impacts on the 

businesses, organizations, and government 

jurisdictions to which they apply. 

The NRC has established standards for 

determining which NRC licensees qualify as 

small entities (10 CFR 2.810). These size 

standards were based on the Small Business 

Administration’s most common receiptsbased size standards and include a size 

standard for business concerns that are 

manufacturing entities. 

Description of the Reasons That Action by 

the Agency Is Being Considered 

The NRC has long participated in efforts to 

address radioactive source protection and 

security. However, the terrorist attacks of 

September 11, 2001, heightened concerns 

about the use of risk-significant radioactive 

materials in a malevolent act. Such an attack 

is of particular concern because of the 

widespread use of radioactive materials in 

the United States by industrial, medical, and 

academic institutions. The theft or diversion 

of risk-significant radioactive materials could 

lead to their malicious use in a radiological 

dispersal device or a radiological exposure 

device. 

Commission regulations provide 

requirements for the safe use, transit, and 

control of licensed material. A licensee’s loss 

of control of risk-significant radioactive 

material, whether it is inadvertent or through 

a deliberate act, could result in significant 

adverse impacts that could reasonably 

constitute a threat to the public health and 

safety or the common defense and security of 

the United States. After the attacks of 

September 11, 2001, the Commission 

determined that certain licensed material 

should be subject to enhanced security 

provisions and safeguarded during transport, 

and that individuals with unescorted access 

to risk-significant radioactive material should 

be subject to background investigations. For 

additional information see the Discussion 

portion of the Statements of Consideration 

(SOC). 

Succinct Statement of the Objectives of, and 

Legal Basis for, the Proposed Rule 

The regulatory objective of this rulemaking 

is to establish generically applicable security 

requirements similar to those previously 

imposed by the NRC orders. Although an 

order is legally binding on the licensee 

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Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Proposed Rules 33947 

receiving the order, a rule makes the 

requirements generally applicable to all 

affected licensees. In addition, notice and 

comment rulemaking is an open process that 

allows for public participation. This 

proposed rulemaking would place security 

requirements for category 1 and category 2 

quantities of radioactive material into the 

regulations. In developing the proposed rule, 

the NRC considered, among other things, the 

various security orders, lessons-learned 

during implementation, the 

recommendations from the Independent 

Review Panel and the Materials Working 

Group, and stakeholder comments. The 

proposed rule also considered a petition for 

rulemaking submitted by the State of 

Washington. For additional information see 

the Discussion portion of the SOC. The 

authority citation sections of the proposed 

rule contain the statutory authority for the 

proposed rule. 

Description of and, Where Feasible, an 

Estimate of the Number of Small Entities to 

Which the Proposed Rule Will Apply 

The proposed rule would affect about 300 

NRC licensees and about 1,100 Agreement 

State licensees. This includes a wide range of 

licensees, including pool-type irradiator 

licensees; manufacturer and distributor 

licensees; medical facilities with gamma 

knife devices; self-shielded irradiator 

licensees (including blood irradiators); 

teletherapy unit licensees; radiographers; 

well loggers; broad scope users; radioisotope 

thermoelectric generator licensees; and 

licensees that ship or prepare for shipment 

category 1 or category 2 quantities of 

radioactive material. Some of these licensees 

would be considered small entities. In fiscal 

year 2008, about 26 percent of materials 

licensees qualified as small entities. Using 

the same percentage, 364 of the licensees that 

would be affected by the proposed rule 

would be considered small entities. 

Description of the Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements of the Proposed Rule, 

Including an Estimate of the Classes of Small 

Entities That Will Be Subject to the 

Requirements, and the Type of Professional 

Skills Necessary for Preparation of Reports 

and Records 

Licensees would be required to: (1) 

Develop procedures for implementation of 

the security provisions; (2) develop a security 

plan that describes how security is being 

implemented; (3) conduct training on the 

procedures and security plan: (4) conduct 

background investigations for those 

individuals permitted access to category 1 or 

category 2 quantities of radioactive material; 

(5) coordinate with LLEAs so the LLEAs 

would be better prepared to respond in an 

emergency; (6) conduct preplanning and 

coordination activities before shipping 

radioactive material; and (7) implement 

security measures for the protection of the 

radioactive material. Licensees would be 

required to promptly report any attempted or 

actual theft or diversion of the radioactive 

material. Licensees would be required to 

keep copies of the security plan, procedures, 

background investigation records, training 

records, and documentation that certain 

activities have occurred. For additional 

information on the requirements, see the SOC 

or the proposed rule text. No special skills 

are necessary for the preparation of reports or 

records. 

The average licensee would have a onetime cost of approximately $27,000 and an 

annual cost of approximately $25,700 to fully 

implement the proposed rule. Much of this 

cost would result from the requirements to 

have procedures, conduct training, and to 

develop a security plan. Although not 

required by the various security orders, many 

licensees have already developed procedures 

and conducted training and may only require 

minor revisions; therefore, the actual cost for 

some licensees may be lower. Additional 

large costs are the weekly physical check of 

the category 2 sources and the annual 

program review. The NRC views that the 

weekly check is a vital part of the security 

program, particularly for materials that are 

used infrequently. The program review is 

important for licensees to review the 

effectiveness of the program and to ensure 

that requirements are being implemented. 

More information on the cost of the proposed 

rule is contained in the Regulatory Analysis. 

Identification, to the Extent Practicable, of 

All Relevant Federal Rules That May 

Duplicate, Overlap or Conflict With the 

Proposed Rule 

Several U.S. Government programs involve 

fingerprinting and an FBI identification and 

criminal history records check. These 

include the National Agency Check; 

Transportation Worker Identification 

Credentials in accordance with 49 CFR 1572; 

Bureau of Alcohol, Tobacco, Firearms, and 

Explosives background check and clearances 

in accordance with 27 CFR 555; Health and 

Human Services security risk assessments for 

possession and use of select agents and 

toxins in accordance with 42 CFR 73; 

Hazardous Material security threat 

assessment for hazardous material 

endorsement to commercial drivers license in 

accordance with 49 CFR 1572; and Customs 

and Border Patrol’s Free and Secure Trade 

Program. Any individual that has favorably 

undergone the background investigation 

required by these programs would be 

relieved from the background investigation 

elements of the proposed rule as long as the 

licensee has appropriate documentation. Any 

individual who has an active Federal security 

clearance would also be relieved assuming 

appropriate documentation is provided. 

The Department of Transportation requires 

security plans for the transport of highway 

route control quantities of radioactive 

material in accordance with 49 CFR 172.800. 

This provision covers only a small portion of 

the category 1 and category 2 quantities of 

radioactive material covered by the proposed 

rule. 

The NRC is not aware of any other relevant 

Federal rules that may duplicate, overlap, or 

conflict with the proposed rule. 

Description of any significant alternatives 

to the proposed rule that accomplish the 

stated objectives of applicable statutes and 

that minimize any significant economic 

impact of the proposed rule on small entities, 

including alternatives considered, such as: 

(1) Establishment of differing compliance or 

reporting requirements or timetables that 

take into account the resources available to 

small entities; (2) clarification, consolidation, 

or simplification of compliance and reporting 

requirements under the rule for small 

entities; (3) use of performance rather than 

design standards; and (4) any exemption 

from coverage of the rule, or any part thereof, 

for such small entities. 

As noted earlier, some of the licensees that 

would be impacted by the proposed rule are 

small businesses. The proposed rule would 

impose the minimum requirements that the 

NRC believes is necessary to adequately 

protect the public health and safety and the 

common defense and security. Therefore, the 

NRC could not grant relief to small entities 

to allow them to implement less effective 

measures. The proposed rule would provide 

some flexibility in the particular measures 

that a licensee could choose to employ. 

Licensees affected by the proposed rule have 

already implemented the bulk of the 

requirements in response to various security 

orders. 

[FR Doc. 2010–13319 Filed 6–14–10; 8:45 am] 

BILLING CODE 7590–01–P 

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