[Federal Register Volume 73, Number 164 (Friday, August 22, 2008)]
[Notices]
[Pages 49714-49721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19545]


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NUCLEAR REGULATORY COMMISSION

[ EA-08-212]


In the Matter of; All Licensees Authorized To Manufacture or 
Initially Transfer Items Containing Radioactive Material for Sale or 
Distribution and Possess High-Risk Radioactive Material of Concern; 
Order Imposing Additional Security Measures (Effective Immediately)

I

    The Licensees identified in Attachment 1 \1\ to this Order hold 
licenses issued in accordance with the Atomic Energy Act of 1954, as 
amended, by the U.S. Nuclear Regulatory Commission (NRC or Commission) 
or an Agreement State authorizing them to manufacture or initially 
transfer items containing radioactive material for sale or 
distribution. Commission regulations at 10 CFR 20.1801 or equivalent 
Agreement State regulations require Licensees to secure, from 
unauthorized removal or access, licensed materials that are stored in 
controlled or unrestricted areas. Commission regulations at 10 CFR 
20.1802 or equivalent Agreement State regulations require Licensees to 
control and maintain constant surveillance of licensed material that is 
in a controlled or unrestricted area and that is not in storage.
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    \1\ Attachment 1 contains sensitive information and will not be 
released to the public.
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II

    On September 11, 2001, terrorists simultaneously attacked targets 
in New York, N.Y., and Washington, DC, utilizing large commercial 
aircraft as weapons. In response to the attacks and intelligence 
information subsequently obtained, the Commission issued a number of 
Safeguards and Threat Advisories to its Licensees in order to 
strengthen Licensees' capabilities and readiness to respond to a 
potential attack on a nuclear facility. The Commission has also 
communicated with other Federal, State and local government agencies 
and industry representatives to discuss and evaluate the current threat 
environment in order to assess the adequacy of security measures at 
licensed facilities. In addition, the Commission has been conducting a 
review of its safeguards and security programs and requirements.
    As a result of its consideration of current safeguards and license 
requirements, as well as a review of information provided by the 
intelligence community, the Commission has determined that certain 
additional security measures are required to be implemented by 
Licensees as prudent measures to address the current threat 
environment. Therefore, the Commission is imposing the requirements set 
forth in Attachment 2 \2\ on certain Manufacturing and Distribution 
Licensees identified in Attachment 1 of this Order who currently 
possess, or have near term plans to possess, high-risk radioactive 
material of concern. These requirements, which supplement existing 
regulatory requirements, will provide the Commission with reasonable 
assurance that the public health and safety and common defense and 
security continue to be adequately protected in the current threat 
environment. Attachment 3 of this Order contains the requirements for 
fingerprinting and criminal history record checks for individuals when 
a licensee's reviewing official is determining access to Safeguards 
Information or unescorted access to the radioactive materials. These 
requirements will remain in effect until the Commission determines 
otherwise.
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    \2\ Attachment 2 contains some requirements that are SAFEGUARDS 
INFORMATION, and cannot be released to the public. The remainder of 
the requirements contained in Attachment 2 that are not SAFEGUARDS 
INFORMATION will be released to the public.
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    The Commission concludes that the security measures must be 
embodied in an Order consistent with the established regulatory 
framework. Furthermore, the Commission has determined that some of the 
security measures contained in Attachment 2 of this Order contain 
Safeguards Information and will not be released to the public as per 
the NRC's ``Order Imposing Requirements for the Protection of Certain 
Safeguards Information'' (EA-08-161), regarding the protection of 
Safeguards Information. The Commission hereby provides notice that it 
intends to treat all violations of the requirements contained in 
Attachment 2 to the NRC's ``Order Imposing Requirements for the 
Protection of Certain Safeguards Information'' (EA-08-161), applicable 
to the handling and unauthorized disclosure of Safeguards Information 
as serious breaches of adequate protection of the public health and 
safety and the common defense and security of the United States. Access 
to Safeguards Information is limited to those persons who have 
established a need-to-know the information, are considered to be 
trustworthy and reliable, have been fingerprinted and undergone a 
Federal Bureau of Investigation (FBI) identification and criminal 
history records check in accordance with the NRC's ``Order Imposing 
Fingerprinting and Criminal History Records Check Requirements for 
Access to Safeguards Information'' (EA-08-162). A need-to-know means a 
determination by a person having responsibility for protecting 
Safeguards Information that a proposed recipient's access to Safeguards 
Information is necessary in the performance of official, contractual, 
or licensee duties of employment. Individuals who have been 
fingerprinted and granted access to Safeguards Information by the 
reviewing official under the NRC's ``Order Imposing Fingerprinting and 
Criminal History Records Check Requirements for Access to Safeguards 
Information'' (EA-08-162) do not need to be fingerprinted again for 
purposes of being considered for unescorted access.
    This Order also requires that a reviewing official must consider 
the results of the Federal Bureau of Investigations criminal history 
records check in conjunction with other applicable requirements to 
determine whether an individual may be granted or allowed continued 
unescorted access. The reviewing official may be one that has 
previously been approved by NRC in accordance with the ``Order Imposing 
Fingerprinting and Criminal History Records Check Requirements for 
Access to Safeguards Information'' (EA-08-162). Licensees may nominate 
additional reviewing officials for making unescorted access 
determinations in accordance with NRC Orders EA-08-162. The nominated 
reviewing officials must have access to Safeguards Information or 
require unescorted access to the radioactive material as part of their 
job duties.
    To provide assurance that Licensees are implementing prudent 
measures to achieve a consistent level of protection to address the 
current threat environment, Manufacturing and Distribution Licensees 
identified in Attachment 1 to this Order shall implement the 
requirements identified in Attachments 2 and 3 to this Order. In 
addition, pursuant to 10 CFR 2.202, I

[[Page 49715]]

find that in light of the common defense and security matters 
identified above, which warrant the issuance of this Order, the public 
health, safety and interest require that this Order be effective 
immediately.

III

    Accordingly, pursuant to Sections 81, 147, 149, 161b, 161i, 161o, 
182 and 186 of the Atomic Energy Act of 1954, as amended, and the 
Commission's regulations in 10 CFR Sec.  2.202, 10 CFR Part 30, and 10 
CFR Part 32, it is hereby ordered, effective immediately, that all 
licensees identified in Attachment 1 to this order shall comply with 
the requirements of this order as follows:
    A. The Licensee shall, notwithstanding the provisions of any 
Commission or Agreement State regulation or license to the contrary, 
comply with the requirements described in Attachments 2 and 3 to this 
Order. The Licensee shall immediately start implementation of the 
requirements in Attachments 2 and 3 to the Order and shall complete 
implementation by February 10, 2009, or the first day that 
radionuclides of concern at or above threshold limits (i.e., high-risk 
radioactive material), also identified in Attachment 2, are possessed, 
whichever is later.
    B.1. The Licensee shall, within twenty (20) days of the date of 
this Order, notify the Commission, (1) if it is unable to comply with 
any of the requirements described in Attachments 2 or 3, (2) if 
compliance with any of the requirements is unnecessary in its specific 
circumstances, or (3) if implementation of any of the requirements 
would cause the Licensee to be in violation of the provisions of any 
Commission or Agreement State regulation or its license. The 
notification shall provide the Licensee's justification for seeking 
relief from or variation of any specific requirement.
    2. If the Licensee considers that implementation of any of the 
requirements described in Attachments 2 or 3 to this Order would 
adversely impact safe operation of the facility, the Licensee must 
notify the Commission, within twenty (20) days of this Order, of the 
adverse safety impact, the basis for its determination that the 
requirement has an adverse safety impact, and either a proposal for 
achieving the same objectives specified in Attachments 2 or 3 
requirement in question, or a schedule for modifying the facility to 
address the adverse safety condition. If neither approach is 
appropriate, the Licensee must supplement its response to Condition B.1 
of this Order to identify the condition as a requirement with which it 
cannot comply, with attendant justifications as required in Condition 
B.1.
    C.1. In accordance with the NRC's ``Order Imposing Fingerprinting 
and Criminal History Records Check Requirements for Access to 
Safeguards Information'' (EA-08-162) only the NRC-approved reviewing 
official shall review results from an FBI criminal history records 
check. The licensee may use a reviewing official previously approved by 
the NRC as its reviewing official for determining access to Safeguards 
Information or the licensee may nominate another individual 
specifically for making unescorted access to radioactive material 
determinations, using the process described in EA-08-162. The reviewing 
official must have access to Safeguards Information or require 
unescorted access to the radioactive material as part of their job 
duties. The reviewing official shall determine whether an individual 
may have, or continue to have, unescorted access to radioactive 
materials that equal or exceed the quantities in Attachment 2 to this 
Order. Fingerprinting and the FBI identification and criminal history 
records check are not required for individuals exempted from 
fingerprinting requirements under 10 CFR 73.61 [72 FR 4945 (February 2, 
2007)]. In addition, individuals who have a favorably decided U.S. 
Government criminal history records check within the last five (5) 
years, or have an active federal security clearance (provided in each 
case that the appropriate documentation is made available to the 
Licensee's reviewing official), have satisfied the Atomic Energy Act of 
1954, as amended, fingerprinting requirement and need not be 
fingerprinted again for purposes of being considered for unescorted 
access.
    2. No person may have access to Safeguards Information or 
unescorted access to radioactive materials if the NRC has determined, 
in accordance with its administrative review process based on 
fingerprinting and an FBI identification and criminal history records 
check, either that the person may not have access to Safeguards 
Information or that the person may not have unescorted access to a 
utilization facility or radioactive material or other property subject 
to regulation by the NRC.
    D. Fingerprints shall be submitted and reviewed in accordance with 
the procedures described in Attachment 3 to this Order. Individuals who 
have been fingerprinted and granted access to Safeguards Information by 
the reviewing official under Order EA-08-162, do not need to be 
fingerprinted again for purposes of being considered for unescorted 
access.
    E. The Licensee may allow any individual who currently has 
unescorted access to radioactive materials, in accordance with this 
Order, to continue to have unescorted access without being 
fingerprinted, pending a decision by the reviewing official (based on 
fingerprinting, an FBI criminal history records check and a trustworthy 
and reliability determination) that the individual may continue to have 
unescorted access to radioactive materials that equal or exceed the 
quantities listed in Attachment 2. The licensee shall complete 
implementation of the requirements of Attachments 2 and 3 to this Order 
by February 10, 2009, or the first day that radionuclides of concern at 
or above threshold limits (i.e., high-risk radioactive material), also 
identified in Attachment 2, are possessed, whichever is later.
    F.1. The Licensee shall, within twenty (20) days of the date of 
this Order, submit to the Commission a schedule for completion of each 
requirement described in Attachments 2 and 3.
    2. The Licensee shall report to the Commission when they have 
achieved full compliance with the requirements described in Attachments 
2 and 3.
    G. Notwithstanding any provisions of the Commission's or an 
Agreement State's regulations to the contrary, all measures implemented 
or actions taken in response to this Order shall be maintained until 
the Commission determines otherwise.
    Licensee responses to Conditions B.1, B.2, F.1, and F.2 above shall 
be submitted to the Director, Office of Federal and State Materials and 
Environmental Management Programs, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555. In addition, Licensee submittals that contain 
specific physical protection or security information considered to be 
Safeguards Information shall be put in a separate enclosure or 
attachment and, marked as ``SAFEGUARDS INFORMATION--MODIFIED HANDLING'' 
and mailed (no electronic transmittals i.e., no e-mail or FAX) to the 
NRC.
    The Director, Office of Federal and State Materials and 
Environmental Management Programs, may, in writing, relax or rescind 
any of the above conditions upon demonstration by the Licensee of good 
cause.

IV

    In accordance with 10 CFR 2.202, the Licensee must, and any other 
person adversely affected by this Order may,

[[Page 49716]]

submit an answer to this Order within twenty (20) days of the date of 
this Order. In addition, the Licensee and any other person adversely 
affected by this Order may request a hearing of this Order within 
twenty (20) days of the date of the Order. Where good cause is shown, 
consideration will be given to extending the time to request a hearing. 
A request for extension of time must be made, in writing, to the 
Director, Office of Federal and State Materials and Environmental 
Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 
20555, and include a statement of good cause for the extension.
    The answer may consent to this Order. If the answer includes a 
request for a hearing, it shall, under oath or affirmation, 
specifically set forth the matters of fact and law on which the 
Licensee relies and the reasons as to why the Order should not have 
been issued. If a person other than the Licensee requests a hearing, 
that person shall set forth with particularity the manner in which his 
interest is adversely affected by this Order and shall address the 
criteria set forth in 10 CFR 2.309(d).
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule, which the NRC 
promulgated in August 2007, 72 FR 49139 (Aug. 28, 2007) and codified in 
pertinent part at 10 CFR Part 2, Subpart B. The E-Filing process 
requires participants to submit and serve all adjudicatory documents 
over the Internet, or in some cases to mail copies on electronic 
storage media. Participants may not submit paper copies of their 
filings unless they seek a waiver in accordance with the procedures 
described below.
    To comply with the procedural requirements associated with E-
Filing, at least ten (10) days prior to the filing deadline the 
requestor must contact the Office of the Secretary by e-mail at 
<a href="/cdn-cgi/l/email-protection#6a222f2b3823242d2e2529212f3e2a243829442d253c"><span class="__cf_email__" data-cfemail="551d1014071c1b12111a161e1001151b07167b121a03">[email protected]</span></a>, or by calling (301) 415-1677, to request (1) a 
digital ID certificate, which allows the participant (or its counsel or 
representative) to digitally sign documents and access the E-Submittal 
server for any NRC proceeding in which it is participating; and/or (2) 
creation of an electronic docket for the proceeding (even in instances 
when the requestor (or its counsel or representative) already holds an 
NRC-issued digital ID certificate). Each requestor will need to 
download the Workplace Forms Viewer<SUP>TM</SUP> to access the 
Electronic Information Exchange (EIE), a component of the E-Filing 
system. The Workplace Forms Viewer<SUP>TM</SUP> is free and is 
available at http://www.nrc.gov/site-help/e-submittals/install-viewer.html. Information about applying for a digital ID certificate 
also is available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
    Once a requestor has obtained a digital ID certificate, had a 
docket created, and downloaded the EIE viewer, it can then submit a 
request for a hearing through EIE. Submissions should be in Portable 
Document Format (PDF) in accordance with NRC guidance available on the 
NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. 
A filing is considered complete at the time the filer submits its 
document through EIE. To be timely, electronic filings must be 
submitted to the EIE system no later than 11:59 p.m. Eastern Time on 
the due date. Upon receipt of a transmission, the E-Filing system time-
stamps the document and sends the submitter an e-mail notice confirming 
receipt of the document. The EIE system also distributes an e-mail 
notice that provides access to the document to the NRC Office of the 
General Counsel and any others who have advised the Office of the 
Secretary that they wish to participate in the proceeding, so that the 
filer need not serve the document on those participants separately. 
Therefore, any others who wish to participate in the proceeding (or 
their counsel or representative) must apply for and receive a digital 
ID certificate before a hearing request is filed so that they may 
obtain access to the document via the E-Filing system.
    A person filing electronically may seek assistance through the 
``Contact Us'' link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical help line, 
which is available between 8:30 a.m. and 4:15 p.m., Eastern Time, 
Monday through Friday. The help line number is (800) 397-4209 or 
locally, (301) 415-4737.
    Participants who believe that they have good cause for not 
submitting documents electronically must file a motion, in accordance 
with 10 CFR 2.302(g), with their initial paper filing requesting 
authorization to continue to submit documents in paper format. Such 
filings must be submitted by: (1) first class mail addressed to the 
Office of the Secretary of the Commission, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemaking and 
Adjudications Staff; or (2) courier, express mail, or expedited 
delivery service to the Office of the Secretary, Sixteenth Floor, One 
White Flint North, 11555 Rockville, Pike, Rockville, Maryland 20852, 
Attention: Rulemaking and Adjudications Staff. Participants filing a 
document in this manner are responsible for serving the document on all 
other participants. Filing is considered complete by first-class mail 
as of the time of deposit in the mail, or by courier, express mail, or 
expedited delivery service upon depositing the document with the 
provider of the service.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket which is available to the public at 
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant 
to an order of the Commission, an Atomic Safety and Licensing Board, or 
a Presiding Officer. Participants are requested not to include personal 
privacy information, such as social security numbers, home addresses, 
or home phone numbers in their filings. With respect to copyrighted 
works, except for limited excerpts that serve the purpose of the 
adjudicatory filings and would constitute a Fair Use application, 
Participants are requested not to include copyrighted materials in 
their works.
    If a hearing is requested by the Licensee or a person whose 
interest is adversely affected, the Commission will issue an Order 
designating the time and place of any hearing. If a hearing is held the 
issue to be considered at such hearing shall be whether this Order 
should be sustained.
    Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee may, in addition to 
requesting a hearing, at the time the answer is filed or sooner, move 
the presiding officer to set aside the immediate effectiveness of the 
Order on the ground that the Order, including the need for immediate 
effectiveness, is not based on adequate evidence but on mere suspicion, 
unfounded allegations, or error.
    In the absence of any request for hearing, or written approval of 
an extension of time in which to request a hearing, the provisions 
specified in Section III above shall be final twenty (20) days from the 
date of this Order without further order or proceedings. If an 
extension of time for requesting a hearing has been approved, the 
provisions specified in Section III shall be final when the extension 
expires if a hearing request has not been received.

[[Page 49717]]

    An answer or a request for hearing shall not stay the immediate 
effectiveness of this order.

    Dated this 14th day of August 2008.

    For The Nuclear Regulatory Commission.
Charles L. Miller,
Director, Office of Federal and State Materials and Environmental 
Management Programs.

Attachment 1: Service List of Materials Licensees--Redacted

Attachment 2: Additional Security Measures for Manufacturing and 
Distribution Materials Licensees (U)--(Revision 1)

    These Additional Security Measures (ASMs) and new requirements are 
established to delineate licensee responsibility in response to the 
current threat environment. The following security measures apply to 
Radioactive Material Manufacturing and Distribution Licensees who, at 
any given time, possess greater than or equal to the quantities of 
concern of radioactive material defined in Table 1 (unless the licensee 
documents the basis for concluding that radioactive material possessed 
cannot be easily aggregated into quantities in excess of the limits 
defined in Table 1). As with the additional security measures 
previously provided to other licensees who possess risk significant 
radioactive sources, these increased security measures and requirements 
address licensees who are authorized to possess high-activity 
radioactive material which poses a high risk to human health if not 
managed safely and securely.
    1. Establish a security zone (or zones). A security zone is an 
area, determined by the licensee, that provides for both isolation of 
radioactive material and access control.
    a. Only use and store the radioactive material within the 
established security zone(s); and
    b. The licensee shall demonstrate for each security zone, a means 
to deter, detect and delay any attempt of unauthorized access to 
licensed material. The security zone is not required to be the same as 
the restricted area or controlled area, as defined in 10 CFR Part 20 or 
equivalent agreement state regulations; and
    c. Security zones can be permanent or temporary to meet transitory 
or intermittent business activities (such as during periods of 
maintenance, source delivery, source replacement, and temporary job 
sites). Different isolation/access control measures may be used for 
periods during which the security zone is occupied versus unoccupied.
    2. Control access at all times to the security zone and limit 
admittance to those individuals who are approved and require access to 
perform their duties.
    3. Implement a system to monitor, detect, assess and respond to 
unauthorized entries into or activities in the security zone.
    a. [This paragraph contains SAFEGUARDS INFORMATION and will not be 
publicly disclosed]
    b. Provide a positive measure to detect unauthorized removal of the 
radioactive material from the security zone; and
    c. [This paragraph contains SAFEGUARDS INFORMATION and will not be 
publicly disclosed]
    4. [This paragraph contains SAFEGUARDS INFORMATION and will not be 
publicly disclosed]
    5. Licensees shall document the basis for concluding that there is 
reasonable assurance that individuals granted access to safeguards 
information or unescorted access to the security zone are trustworthy 
and reliable, and do not constitute an unreasonable risk for malevolent 
use of the regulated material. ``Access'' means that an individual 
could exercise some physical control over the material or device 
containing radioactive material.
    a. The trustworthiness and reliability of individuals shall be 
determined based on a background investigation. The background 
investigation shall address at least the past 3 years and, as a 
minimum, include fingerprinting and a Federal Bureau of Investigation 
(FBI) criminal history check, verification of work or education 
references as appropriate to the length of employment, and confirmation 
of employment eligibility.
    b. Fingerprints shall be submitted and reviewed in accordance with 
the procedures described in Attachment 3 to this Order.
    c. A reviewing official that the licensee nominated and has been 
approved by the NRC, in accordance with NRC ``Order Imposing 
Fingerprinting and Criminal History Records Check Requirements for 
Access to Safeguards Information,'' may continue to make 
trustworthiness and reliability determinations. The licensee may also 
nominate another individual specifically for making unescorted access 
determinations using the process identified in the NRC ``Order Imposing 
Fingerprinting and Criminal History Records Check Requirements for 
Access to Safeguards Information.''
    d. Individuals for whom the licensee has not made a determination 
of trustworthiness and reliability, based on the appropriate background 
investigation above, shall be escorted within the security zone to 
prevent unauthorized access or actions to the licensed radioactive 
material. The licensee shall also ensure these individuals are clearly 
identifiable as needing an escort while in the security zone.
    6. Before transfer of radioactive materials that exceed the 
quantities in Table 1, Licensees shall:
    a. [This paragraph contains SAFEGUARDS INFORMATION and will not be 
publicly disclosed]
    b. [This paragraph contains SAFEGUARDS INFORMATION and will not be 
publicly disclosed]
    c. Assure that the material is shipped to an address authorized in 
the license and that the address is valid,
    d. Verify the address for deliveries to temporary job site, and
    e. Document the verification or validation process.
    7. For domestic highway and rail shipments of materials in 
quantities greater than or equal to the quantities in Table 1, per 
conveyance, the licensee shall:
    a. Only use carriers who:
    (1) Use established package tracking systems,
    (2) Implement methods to assure trustworthiness of drivers,
    (3) Maintain constant control and/or surveillance during transit, 
and
    (4) Have the capability for immediate communication to summon 
appropriate response or assistance.
    The licensee shall verify and document that the carrier employs the 
measures listed above.
    b. Coordinate departure and arrival times with the recipient.
    c. Immediately initiate an investigation with the carrier and 
intended recipient If the shipment does not arrive by close of business 
on the day of the previously coordinated arrival time. Not later than 
one hour after the time when, through the course of the investigation, 
it is determined the shipment has become lost or stolen, the licensee 
shall notify the appropriate local law enforcement agency, the NRC 
Operations Center at (301) 816-5100, and the appropriate Agreement 
State regulatory agency. If after 24 hours of initiating the 
investigation, the radioactive material cannot be located, it shall be 
presumed lost and the licensee shall immediately notify the NRC 
Operations Center and, for Agreement State licensees, the appropriate 
Agreement State regulatory agency.
    d. In addition to a and b above, for highway and rail shipments of 
material in quantities greater than or equal to 100 times the 
quantities in Table 1, per conveyance, the licensee shall

[[Page 49718]]

implement the NRC Order for Additional Security Measures on the 
Transportation of Radioactive Material Quantities of Concern.
    8. For imports and exports of material in quantities greater than 
the quantities in Table 1, per conveyance, the licensee shall follow 
the requirements in the Final Rule 10 CFR Part 110, July 1, 2005, (70 
FR 37985 and 46066) Export and Import of Radioactive Materials: 
Security Policies.
    9. The licensee shall protect pre-planning, coordinating, and 
reporting information required by ASM 7 related to shipments of 
radioactive material, and the radioisotopes identified in Table 1 as 
sensitive information (proprietary business financial or confidential). 
Licensees shall restrict access to this information to those licensee 
and contractor personnel with a need to know. Licensees shall require 
all parties receiving this information to protect it similarly. 
Information may be transmitted either in writing or electronically and 
shall be marked as ``Security-Related Information--Withhold Under 10 
CFR 2.390.''
    10. The licensee shall maintain all documentation required by these 
ASMs for a period of not less than three (3) years after the document 
is superseded or no longer effective.

                    Table 1--Radionuclides of Concern
------------------------------------------------------------------------
                                          Quantity of      Quantity of
             Radionuclide                 concern \1\      concern \2\
                                             (TBq)             (Ci)
------------------------------------------------------------------------
Am-241................................              0.6             16
Am-241/BE.............................              0.6             16
Cf-252................................              0.2              5.4
Cm-244................................              0.5             14
Co-60.................................              0.3              8.1
Cs-137................................              1               27
Gd-153................................             10              270
Ir-192................................              0.8             22
Pm-147................................            400           11,000
Pu-238................................              0.6             16
Pu-239/Be.............................              0.6             16
Ra-226 \3\............................              0.4             11
Se-75.................................              2               54
Sr-90 (Y-90)..........................             10              270
Tm-170................................            200            5,400
Yb-169................................              3               81
Combinations of radioactive materials           \(5)\
 listed above \4\.....................
------------------------------------------------------------------------
\1\ The aggregate activity of multiple, collocated sources of the same
  radionuclide should be included when the total activity equals or
  exceeds the quantity of concern.
\2\ The primary values used for compliance with this Order are TBq. The
  curie (Ci) values are rounded to two significant figures for
  informational purposes only.
\3\ The Atomic Energy Act, as amended by the Energy Policy Act of 2005,
  authorizes NRC to regulate Ra-226 and NRC is in the process of
  amending its regulations for discrete sources of Ra-226.
\4\ Radioactive materials are to be considered aggregated or collocated
  if breaching a common physical security barrier (e.g., a locked door
  at the entrance to a storage room) would allow access to the
  radioactive material or devices containing the radioactive material.
\5\ If several radionuclides are aggregated, the sum of the ratios of
  the activity of each source, i of radionuclide, n, A(i,n), to the
  quantity of concern for radionuclide n, Q(n), listed for that
  radionuclide equals or exceeds one. [(aggregated source activity for
  radionuclide A) / (quantity of concern for radionuclide A)] +
  [(aggregated source activity for radionuclide B) / (quantity of
  concern for radionuclide B)] + etc. * * * >= 1.

Guidance for Aggregation of Sources

    NRC supports the use of the International Atomic Energy 
Association's (IAEA) source categorization methodology as defined in 
IAEA Safety Standards Series No. RS-G-1.9, ``Categorization of 
Radioactive Sources,'' (2005) (see http://www-pub.iaea.org/MTCD/publications/PDF/Pub1227_web.pdf) and as endorsed by the agency's Code 
of Conduct for the Safety and Security of Radioactive Sources, January 
2004 (see http://www-pub.iaea.org/MTCD/publications/PDF/Code-2004_web.pdf). The Code defines a three-tiered source categorization scheme. 
Category 1 corresponds to the largest source strength (equal to or 
greater than 100 times the quantity of concern values listed in Table 
1) and Category 3, the smallest (equal or exceeding one-tenth the 
quantity of concern values listed in Table 1). Additional security 
measures apply to sources that are equal to or greater than the 
quantity of concern values listed in Table 1, plus aggregations of 
smaller sources that are equal to or greater than the quantities in 
Table 1. Aggregation only applies to sources that are collocated.
    Licensees who possess individual sources in total quantities that 
equal or exceed the Table 1 quantities are required to implement 
additional security measures. Where there are many small (less than the 
quantity of concern values) collocated sources whose total aggregate 
activity equals or exceeds the Table 1 values, licensees are to 
implement additional security measures.
    Some source handling or storage activities may cover several 
buildings, or several locations within specific buildings. The question 
then becomes, ``When are sources considered collocated for purposes of 
aggregation?'' For purposes of the additional controls, sources are 
considered collocated if breaching a single barrier (e.g., a locked 
door at the entrance to a storage room) would allow access to the 
sources. Sources behind an outer barrier should be aggregated 
separately from those behind an inner barrier (e.g., a locked source 
safe inside the locked storage room). However, if both barriers are 
simultaneously open, then all sources within these two barriers are 
considered to be collocated. This logic should be continued for other 
barriers within or behind the inner barrier.
    The following example illustrates the point: A lockable room has 
sources stored in it. Inside the lockable room, there are two shielded 
safes with additional sources in them. Inventories are as follows:
    The room has the following sources outside the safes: Cf-252, 0.12 
TBq (3.2 Ci); Co-60, 0.18 TBq (4.9 Ci), and Pu-

[[Page 49719]]

238, 0.3 TBq (8.1 Ci). Application of the unity rule yields: (0.12 / 
0.2) + (0.18 / 0.3) + (0.3 / 0.6) = 0.6 + 0.6 + 0.5 = 1.7. Therefore, 
the sources would require additional security measures.
    Shielded safe <greek-i>1 has a 1.9 TBq (51 Ci) Cs-137 source and a 
0.8 TBq (22 Ci) Am-241 source. In this case, the sources would require 
additional security measures, regardless of location, because they each 
exceed the quantities in Table 1.
    Shielded safe <greek-i>2 has two Ir-192 sources, each having an 
activity of 0.3 TBq (8.1 Ci). In this case, the sources would not 
require additional security measures while locked in the safe. The 
combined activity does not exceed the threshold quantity 0.8 TBq (22 
Ci).
    Because certain barriers may cease to exist during source handling 
operations (e.g., a storage location may be unlocked during periods of 
active source usage), licensees should, to the extent practicable, 
consider two modes of source usage--``operations'' (active source 
usage) and ``shutdown'' (source storage mode). Whichever mode results 
in the greatest inventory (considering barrier status) would require 
additional security measures for each location.
    Use the following method to determine which sources of radioactive 
material require implementation of the Additional Security Measures 
(ASMs):
    <bullet> Include any single source equal to or greater than the 
quantity of concern in Table
    <bullet> Include multiple collocated sources of the same 
radionuclide when the combined quantity equals or exceeds the quantity 
of concern
    <bullet> For combinations of radionuclides, include multiple 
collocated sources of different radionuclides when the aggregate 
quantities satisfy the following unity rule: [(amount of radionuclide 
A) / (quantity of concern of radionuclide A)] + [(amount of 
radionuclide B) / (quantity of concern of radionuclide B)] + etc. * * * 
>= 1

Attachment 3: Requirements for Fingerprinting and Criminal History 
Checks of Individuals when Licensee's Reviewing Official is Determining 
Access to Safeguards Information or Unescorted Access to Radioactive 
Materials General Requirements

    Licensees shall comply with the following requirements of this 
attachment.
    1. Each Licensee subject to the provisions of this attachment shall 
fingerprint each individual who is seeking or permitted access to 
safeguards information (SGI) or unescorted access radioactive materials 
equal to or greater than the quantities listed in Attachment 2 to this 
Order. The Licensee shall review and use the information received from 
the Federal Bureau of Investigation (FBI) and ensure that the 
provisions contained in this Order and this attachment are satisfied.
    2. The Licensee shall notify each affected individual that the 
fingerprints will be used to secure a review of his/her criminal 
history record and inform the individual of the procedures for revising 
the record or including an explanation in the record, as specified in 
the ``Right to Correct and Complete Information'' section of this 
attachment.
    3. Fingerprints for access to SGI or unescorted access need not be 
taken if an employed individual (e.g., a Licensee employee, contractor, 
manufacturer, or supplier) is relieved from the fingerprinting 
requirement by 10 CFR 73.59 for access to SGI or 10 CFR 73.61 for 
unescorted access, has a favorably-decided U.S. Government criminal 
history check (e.g. National Agency Check, Transportation Worker 
Identification Credentials in accordance with 49 CFR Part 1572, Bureau 
of Alcohol Tobacco Firearms and Explosives background checks and 
clearances in accordance with 27 CFR Part 555, Health and Human 
Services security risk assessments for possession and use of select 
agents and toxins in accordance with 27 CFR Part 555, Hazardous 
Material security threat assessments for hazardous material endorsement 
to commercial drivers license in accordance with 49 CFR Part 1572, 
Customs and Border Patrol's Free and Secure Trace Program \1\) within 
the last five (5) years, or has an active federal security clearance. 
Written confirmation from the Agency/employer which granted the federal 
security clearance or reviewed the criminal history check must be 
provided for either of the latter two cases. The Licensee must retain 
this documentation for a period of three (3) years from the date the 
individual no longer requires access to SGI or unescorted access to 
radioactive materials associated with the Licensee's activities.
---------------------------------------------------------------------------

    \1\ The FAST program is a cooperative effort between the Bureau 
of Customs and Border Patrol and the governments of Canada and 
Mexico to coordinate processes for the clearance of commercial 
shipments at the U.S.-Canada and U.S.-Mexico borders. Participants 
in the FAST program, which requires successful completion of a 
background records check, may receive expedited entrance privileges 
at the northern and southern borders.
---------------------------------------------------------------------------

    4. All fingerprints obtained by the Licensee pursuant to this Order 
must be submitted to the Commission for transmission to the FBI.
    5. The Licensee shall review the information received from the FBI 
and consider it, in conjunction with the trustworthy and reliability 
requirements of this Order, in making a determination whether to grant, 
or continue to allow, access to SGI or unescorted access to radioactive 
materials.
    6. The Licensee shall use any information obtained as part of a 
criminal history records check solely for the purpose of determining an 
individual's suitability for access to SGI or unescorted access to 
radioactive materials equal to or greater than the quantities used in 
Attachment 2 to this Order.
    7. The Licensee shall document the basis for its determination 
whether to grant, or continue to allow, access to SGI or unescorted 
access to radioactive materials equal to or greater than the quantities 
used in Attachment 2 to this Order.

Prohibitions

    A Licensee shall not base a final determination to deny an 
individual access to radioactive materials solely on the basis of 
information received from the FBI involving: an arrest more than one 
(1) year old for which there is no information of the disposition of 
the case, or an arrest that resulted in dismissal of the charge or an 
acquittal.
    A Licensee shall not use information received from a criminal 
history check obtained pursuant to this Order 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 the Licensee use the 
information in any way which would discriminate among individuals on 
the basis of race, religion, national origin, sex, or age.

Procedures for Processing Fingerprint Checks

    For the purpose of complying with this Order, Licensees shall, 
using an appropriate method listed in 10 CFR 73.4, submit to the NRC's 
Division of Facilities and Security, Mail Stop T-6E46, one completed, 
legible standard fingerprint card (Form FD-258, ORIMDNRCOOOZ) or, where 
practicable, other fingerprint records for each individual seeking 
access to SGI or unescorted access to radioactive materials equal to or 
greater than the quantities used in Attachment 2 to this Order, to the 
Director of the Division of Facilities and Security, marked for the 
attention of the Division's Criminal History Check Section. Copies of 
these forms may be obtained by writing the Office of Information 
Services, U.S. Nuclear Regulatory Commission,

[[Page 49720]]

Washington, DC 20555-0001, by calling (301) 415-7232, or by e-mail to 
<a href="/cdn-cgi/l/email-protection#b3d5dcc1dec09dc1d6c0dcc6c1d0d6f3ddc1d09dd4dcc5"><span class="__cf_email__" data-cfemail="492f263b243a673b2c3a263c3b2a2c09273b2a672e263f">[email protected]</span></a>. Practicable alternative formats are set forth 
in 10 CFR 73.4. The Licensee shall establish procedures to ensure that 
the quality of the fingerprints taken results in minimizing the 
rejection rate of fingerprint cards due to illegible or incomplete 
cards.
    The NRC will review submitted fingerprint cards for completeness. 
Any Form FD-258 fingerprint record containing omissions or evident 
errors will be returned to the Licensee for corrections. The fee for 
processing fingerprint checks includes one resubmission if the initial 
submission is returned by the FBI because the fingerprint impressions 
cannot be classified. The one free re-submission must have the FBI 
Transaction Control Number reflected on the re-submission. If 
additional submissions are necessary, they will be treated as initial 
submittals and will require a second payment of the processing fee.
    Fees for processing fingerprint checks are due upon application 
(Note: other fees may apply to obtain fingerprints from your local law 
enforcement agency). Licensees should submit payments electronically 
via http://www.pay.gov. Payments through Pay.gov can be made directly 
from the Licensee's credit/debit card. Licensees will need to establish 
a password and user ID before they can access Pay.gov. To establish an 
account, Licensee requests must be sent to <a href="/cdn-cgi/l/email-protection#cdbdacb4aaa28da3bfaee3aaa2bb"><span class="__cf_email__" data-cfemail="a1d1c0d8c6cee1cfd3c28fc6ced7">[email protected]</span></a>. The request 
must include the Licensee's name, address, point of contact, e-mail 
address, and phone number. The NRC will forward each request to Pay.gov 
and someone from Pay.gov will contact the Licensee with all of the 
necessary account information. Licensees shall make payments for 
processing before submitting applications to the NRC. Combined payment 
for multiple applications is acceptable. Licensees shall include the 
Pay.gov payment receipt(s) along with the application(s). For 
additional guidance on making electronic payments, contact the 
Facilities Security Branch, Division of Facilities and Security, at 
(301) 415-7404.
    Alternatively, licensees may also submit payment with the 
application for processing fingerprints by fingerprints by corporate 
check, certified check, cashier's check, or money order, made payable 
to ``U.S. NRC.'' Combined payment for multiple applications is 
acceptable.
    The application fee (currently $36) is the sum of the user fee 
charged by the FBI for each fingerprint card or other fingerprint 
record submitted by the NRC on behalf of a Licensee, and an NRC 
processing fee, which covers administrative costs associated with NRC 
handling of Licensee fingerprint submissions. The Commission will 
directly notify Licensees subject to this regulation of any fee 
changes.
    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 checks, including the FBI fingerprint record.

Right To Correct and Complete Information

    Prior to any final adverse determination, the Licensee shall make 
available to the individual the contents of any criminal records 
obtained from the FBI for the purpose of assuring correct and complete 
information. Written confirmation by the individual of receipt of this 
notification must be maintained by the Licensee for a period of one (1) 
year from the date of the notification. If, after reviewing the record, 
an individual believes that it is incorrect or incomplete in any 
respect and wishes to change, correct, or update the alleged 
deficiency, or to explain any matter in the record, the individual may 
initiate challenge procedures. These procedures include either direct 
application by the individual challenging the record to the agency 
(i.e., law enforcement agency) that contributed the questioned 
information, or direct challenge as to the accuracy or completeness of 
any entry on the criminal history record to the Assistant Director, 
Federal Bureau of Investigation Identification Division, Washington, DC 
20537-9700 (as set forth in 28 CFR Part 16.30 through 16.34). In the 
latter case, the FBI forwards the challenge to the agency that 
submitted the data and requests that agency to 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 in accordance with 
the information supplied by that agency. The Licensee must provide at 
least ten (10) days for an individual to initiate an action challenging 
the results of an FBI criminal history records check after the record 
is made available for his/her review. The Licensee may make a final 
determination on access to SGI or unescorted access to radioactive 
materials equal to or greater than the quantities used in Attachment 2 
to this Order based upon the criminal history record only upon receipt 
of the FBI's ultimate confirmation or correction of the record. Upon a 
final adverse determination on access to SGI or unescorted access to 
radioactive materials equal to or greater than the quantities used in 
Attachment 2 to this Order, the Licensee shall provide the individual 
its documented basis for denial. Access to SGI or unescorted access to 
radioactive materials equal to or greater than the quantities used in 
Attachment 2 to this Order shall not be granted to an individual during 
the review process.

Protection of Information

    1. Each Licensee who obtains a criminal history record on an 
individual pursuant to this Order shall establish and maintain a system 
of files and procedures for protecting the record and the personal 
information from unauthorized disclosure.
    2. The Licensee may not disclose the record or personal information 
collected and maintained to persons other than the subject individual, 
his/her representative, or to those who have a need to access the 
information in performing assigned duties in the process of determining 
access to SGI or unescorted access to radioactive materials equal to or 
greater than the quantities used in Attachment 2 to this Order. No 
individual authorized to have access to the information may re-
disseminate the information to any other individual who does not have a 
need-to-know.
    3. The personal information obtained on an individual from a 
criminal history record check may be transferred to another Licensee if 
the Licensee holding the criminal history record receives the 
individual's written request to re-disseminate the information 
contained in his/her file, and the gaining Licensee verifies 
information such as the individual's name, date of birth, social 
security number, sex, and other applicable physical characteristics for 
identification purposes.
    4. The Licensee shall make criminal history records, obtained under 
this section, available for examination by an authorized representative 
of the NRC to determine compliance with the regulations and laws.
    5. The Licensee shall retain all fingerprint and criminal history 
records received from the FBI, or a copy if the individual's file has 
been transferred, for three (3) years after termination of employment 
or denial to access SGI or unescorted access to radioactive materials 
equal to or greater than the quantities used in Attachment 2 to this 
Order. After the required three (3) year period, these documents shall 
be destroyed by a method that will prevent

[[Page 49721]]

reconstruction of the information in whole or in part.

 [FR Doc. E8-19545 Filed 8-21-08; 8:45 am]
BILLING CODE 7590-01-P


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