Secure Transfer of Nuclear Materials

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25 January 2007

[Federal Register: January 24, 2007 (Volume 72, Number 15)]

[Rules and Regulations]

[Page 3025-3027]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr24ja07-1]

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Rules and Regulations

Federal Register

________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents

having general applicability and legal effect, most of which are keyed

to and codified in the Code of Federal Regulations, which is published

under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.

Prices of new books are listed in the first FEDERAL REGISTER issue of each

week.

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[[Page 3025]]

NUCLEAR REGULATORY COMMISSION

10 CFR Part 73

RIN: 3150-AH90

Secure Transfer of Nuclear Materials

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its

regulations to implement requirements for secure transfer of nuclear

materials as required by Section 656 of the Energy Policy Act of 2005

(EPAct), signed into law on August 8, 2005. The final rule implements

Section 656 by specifically excepting certain licensees from provisions

of Section 170I of the Atomic Energy Act (AEA) of 1954, as amended.

DATES: Effective Date: The final rule is effective on February 23,

2007.

ADDRESSES: Publicly available documents related to this rulemaking may

be viewed electronically on the public computers located at the NRC's

Public Document Room (PDR), Room O1F21, One White Flint North, 11555

Rockville Pike, Rockville, Maryland. The PDR reproduction contractor

will copy documents for a fee. Selected documents can be viewed and

downloaded electronically via the NRC's rulemaking Web site at http://ruleforum.llnl.gov

Publicly available documents created or received at the NRC are

available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/NRC/reading-rm/adams.html.

From this site, the public can

gain entry into the NRC's Agencywide Document Access and Management

System (ADAMS), which provides text and image files of NRC's public

documents. If you do not have access to ADAMS or if there are problems

in accessing the documents located in ADAMS, contact the NRC Public

Document Room (PDR) Reference staff at (800) 397-4209, (301) 415-4737,

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

FOR FURTHER INFORMATION CONTACT: Frank Cardile, Office of Federal and

State Materials and Environmental Management Programs, U.S. Nuclear

Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-

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

SUPPLEMENTARY INFORMATION:

I. Background

The Energy Policy Act of 2005

On August 8, 2005, the President signed into law the EPAct of 2005

Pub. L. No. 109-58,119 Stat. 594 (2005). Section 656 of the EPAct added

Section 170I to the AEA, as amended, 42 U.S.C. 2210i, and requires

that: (a) A system be established by the Commission to ensure that

materials transferred or received in the United States, by any party,

pursuant to an import or export license issued by NRC, are accompanied

by a manifest describing the type and amount of materials; (b) each

individual receiving or accompanying the transfer of materials shall be

subject to a security background check conducted by appropriate Federal

entities; and (c) the Commission issue regulations, within one year

after enactment of the EPAct, identifying radioactive materials or

classes of individuals that, consistent with the protection of the

public health and safety and the common defense and security, are

appropriate exceptions to the requirements in Section 170I of the AEA.

Rulemaking Considerations Related to Proposed Rule To Implement Section

656 of the EPAct

In preparing the proposed rule to implement Section 656 (71 FR

51534; August 30, 2006), the NRC determined that, based on existing

requirements for shipping papers for radioactive materials already in

place in Department of Transportation regulations and incorporated by

reference in NRC regulations in 10 CFR part 71, an appropriate system

is already established to ensure that shipments of radioactive

materials, that would be affected by Section 656, are accompanied by

papers (i.e., a manifest) appropriately describing the materials being

shipped. Thus, NRC did not include any additional requirements for

manifesting of radioactive material shipments in the proposed rule.

In addition, the NRC determined that the most appropriate and

comprehensive approach for establishing requirements for security

background checks is as part of the broader considerations of NRC's

rulemaking to implement Section 652 of the EPAct. Section 652 mandates

the Commission to require fingerprinting and criminal history record

checks for any individual who is permitted unescorted access to risk-

significant radioactive material. The individuals referred to under

Section 656 are a subgroup (i.e., those transferring radioactive

material pursuant to an export or import license) of the larger group

of individuals at a licensed facility, with unescorted access to

radioactive material, and will be covered by the comprehensive Section

652 rulemaking. The Section 652 proposed rule is currently in

preparation and its schedule calls for issuance of a proposed rule in

the Fall of 2007 and a final rule in the Fall of 2008.

While the Section 652 rulemaking is being conducted, NRC has a

regulatory framework for security background checks through an

extensive system of Orders issued during 2002-2006 that includes

requirements for background checks, including fingerprinting for

criminal history checks, for unescorted access to radioactive material

for certain facilities which it licenses. NRC has also issued Orders to

licensees for shipment of radioactive material in quantities of concern

(RAMQC). The purpose of these Orders has been to impose certain

security measures to supplement existing regulations at 10 CFR part 20,

and equivalent Agreement State regulations, for securing licensed

materials from unauthorized access, with the intent of providing the

NRC with reasonable assurance that the common defense and security is

protected. The Orders note that conditions for unescorted access to

risk-significant sources of radioactive material are governed by an

appropriate need-to-know and by background checks as input to a

determination concerning the trustworthiness and reliability of

individuals who have access to the material. Most recently, in October

2006, NRC issued Orders to pool-type irradiator licensees,

[[Page 3026]]

manufacturing and distribution (M&D) licensees, and licensees making

shipments of RAMQC, to specifically require fingerprinting and criminal

history checks for unescorted access to the risk-significant sources of

radioactive material at their facilities.

Issuance of Proposed Rule

Consistent with Section 656(b) of the EPAct, the Commission

proposed to amend NRC's regulations to except from the security

background check requirements of Section 170I of the AEA, as amended,

licensees who have not received NRC Orders containing requirements for

background checks for trustworthiness and reliability, that include

fingerprinting and criminal history record checks, as a prerequisite

for unescorted access to risk-significant radioactive materials. As

noted above, Orders restricting access based on fingerprinting and

criminal history record checks have been issued for pool-type

irradiator licensees, M&D licensees, and licensees who make shipments

of RAMQC. These licensees can use the provisions of their existing

Orders (or new or amended Orders) to comply with Section 170I. Also, if

additional Orders for fingerprinting and criminal history checks for

unescorted access to radioactive material are issued to licensees other

than those noted here, licensees who receive any such new Orders would

no longer be excepted from the security background check requirements

of Section 170I.

The rationale for the exceptions is that it is consistent with the

system of Orders, issued to certain licensees, that the NRC has

instituted for protection of the common defense and security. The

materials possessed and transferred by the licensees who have received

Orders have been deemed, during the process of issuance of the Orders,

to be appropriate for immediately requiring certain security measures

for unescorted access based on potential higher risk resulting from

malevolent use of those materials.

The proposed rule was published in the Federal Register on August

30, 2006 (71 FR 51534) as a proposed new Sec. 73.28 in 10 CFR part 73.

II. Discussion

Summary of Public Comments on the Proposed Rule

The public comment period closed on September 29, 2006. In response

to the request for comments, NRC received two comment responses, one

from the Organization of Agreement States (OAS) and one from the

Nuclear Energy Institute (NEI).

The comment response from the OAS summarized the content of the

NRC's proposed rulemaking and its effect on Agreement States, including

that the proposed Agreement State Compatibility Category of the

proposed rule would be ``NRC.'' The comment response from the OAS

concluded by stating that the NRC approach in the rulemaking seemed

reasonable to the OAS Executive Board.

The comment response letter from NEI stated that NEI supports the

proposed rule as drafted. However, NEI also stated that there were two

areas of confusion regarding the applicability of the rulemaking. In

particular, NEI noted that there are a number of power reactor

licensees that were not issued additional orders, but that have

personnel who come in contact with radioactive materials in transit and

who are not covered by existing rules in 10 CFR 73.57. Particularly

noted were personnel in shipping and receiving operations located

outside of the protected area who are considered outside of the nuclear

power facility and do not require access to Safeguards Information. The

second area of confusion related to a NEI concern as to where this

Section 656 rulemaking will end and where the referenced Section 652

rulemaking, due for issuance in late 2007, will start.

With regard to the first point raised by NEI, the Supplementary

Information in the Federal Register Notice, issuing the proposed rule,

stated that this Section 656 rulemaking is relying upon the framework

of the existing system of NRC Orders, either in place or to be put into

place, as the basis for codifying exceptions. This allows for a

consistent approach for radioactive materials which NRC considers

appropriate, at this time, for exception from the requirements of

Section 170I of the AEA as amended by the EPAct. The materials

possessed and transferred by licensees who have received Orders have

been deemed, during the process of issuance of the Orders, to be

appropriate for immediately requiring certain security measures for

unescorted access based on potential higher risk resulting from

malevolent use of those materials. Orders for fingerprinting and

criminal history checks for persons at licensed facilities shipping

RAMQC were issued in October 2006. As noted previously, the Section 652

rulemaking will take a more comprehensive approach in establishing

requirements for security background checks for licensees, and for

licensee employees, for unescorted access to radioactive material. To

the extent that personnel at a nuclear power plant handle risk-

significant material and are not currently covered by regulation and/or

order with regard to background checks and fingerprinting,

consideration can be given to including such licensee personnel in

NRC's framework of orders. If such additional Orders are issued, those

licensees who have not previously received any such Orders would no

longer be excepted from the security background check requirements of

Section 170I, under the provisions of this final rule.

With regard to the second point raised by NEI, the Supplementary

Information in the proposed rule notes that the NRC intends to address

background checks and fingerprinting for criminal history record checks

for licensees in a more comprehensive manner under the rulemaking to

implement Section 652 of the EPAct. One of the elements of that

rulemaking, as mandated by Section 652(B)(i)(ll), will be determining

requirements for access to quantities of radioactive material, subject

to regulation by the Commission, that the Commission determines to be

of such significance to the public health and safety or to the common

defense and security as to warrant fingerprinting and background

checks. The requirements for exceptions in this Section 656 rulemaking

were issued as part of a mandate of Section 656 of the EPAct for a

limited subset of licensee employees. If necessary, the requirements

now codified at 10 CFR 73.28 will be revisited, and may be amended and/

or superseded by the more comprehensive Section 652 rulemaking.

Summary of Revisions to Proposed Rule

After review of the public comments, the NRC has decided to make

final the approach in the August 30, 2006, proposed rule (i.e., to

amend NRC's regulations to except from the security background check

requirements of Section 170I those licensees that have not received NRC

Orders restricting unescorted access to radioactive materials to

individuals who have undergone background checks, for trustworthiness

and reliability, that include fingerprinting and criminal history

record checks). As of October 2006, Orders for fingerprinting and

criminal history checks for unescorted access to radioactive materials

have been issued to pool-type irradiator licensees, M&D licensees, and

licensees who make shipments of RAMQC. Under the provisions of the

final rule, if additional Orders for fingerprinting and criminal

history checks for unescorted access to radioactive material are issued

to licensees other than those noted above, licensees who receive any

such new Orders would no longer be

[[Page 3027]]

excepted from the security background check requirements of Section

170I of the AEA.

III. Section by Section Analysis of Final Rule

New Sec. 73.28 has not been revised from the wording in the

proposed rule and continues to except licensees from the security

background check provisions of Section 170I of the AEA if they have not

received Orders from the NRC containing requirements for background

checks for trustworthiness and reliability that include fingerprinting

and criminal history checks as a prerequisite for unescorted access to

radioactive materials. Licensees subject to Orders are not excepted

from the security background check provisions, and would use the

requirements in their existing Orders to comply with Section 170I of

the AEA.

IV. Voluntary Consensus Standards

The National Technology Transfer and Advancement Act of 1995 (Pub.

L. 104-113) requires that Federal agencies use technical standards that

are developed or adopted by voluntary consensus standards bodies unless

the use of such a standard is inconsistent with applicable law or

otherwise impractical. In this final rule, NRC is indicating specific

exceptions to the requirements of Section 656 of the EPAct. This action

does not constitute the establishment of a standard that establishes

generally applicable requirements.

V. Agreement State Compatibility

Under the ``Policy Statement on Adequacy and Compatibility of

Agreement State Programs,'' which became effective on September 3, 1997

(62 FR 46517), NRC program elements (including regulations) are placed

into four compatibility categories (Compatibility Category A through

D). In addition, NRC program elements also can be identified as having

particular health and safety significance or as being reserved solely

to NRC.

The amendment to 10 CFR part 73 is a program element designated

``NRC'' based on implementation of the procedure in NRC's Management

Directive 5.9, ``Adequacy and Compatibility of Agreement States.'' The

requirements in this amendment are limited to providing exceptions to

requirements in Section 170I of the AEA and are based on a system of

Orders that were developed under NRC's authority to protect the common

defense and security which are areas of exclusive NRC regulatory

authority and cannot be relinquished to the Agreement States.

Therefore, the requirements of this amendment should not be adopted by

the Agreement States.

VI. Environmental Impact: Categorical Exclusion

NRC has determined that this final rule is the type of action

described in 10 CFR 51.22(c)(3)(ii) as a categorical exclusion.

Therefore, neither an environmental impact statement nor an

environmental assessment has been prepared for this final rule.

VII. Paperwork Reduction Act Statement

This final rule does not contain new or amended information

collection requirements subject to the Paperwork Reduction Act of 1995

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

Existing requirements were approved by the Office of Management and

Budget, approval number 3150-0002.

VIII. Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to

respond to, a request for information or an information collection

requirement unless the requesting document displays a currently valid

Office of Management and Budget control number.

IX. Regulatory Analysis

A regulatory analysis has not been prepared for this regulation

because it relieves restrictions and does not impose any additional

burdens on licensees.

X. Regulatory Flexibility Certification

As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.

605(b), the Commission certifies that this rule will not have a

significant economic impact on a substantial number of small entities.

The amendment does not impose any additional burdens on licensees.

XI. Backfit Analysis

NRC has determined that the backfit rule (Sec. Sec. 50.109, 70.76,

72.62, or 76.76) does not apply to this final rule because this

amendment does not involve any provisions that would impose backfits as

defined in the backfit rule. Therefore, a backfit analysis is not

required.

XII. Congressional Review Act

In accordance with the Congressional Review Act of 1996, the NRC

has determined that this action is not a major rule and has verified

this determination with the Office of Information and Regulatory

Affairs of OMB.

List of Subjects in 10 CFR Part 73

Criminal penalties, Export, Hazardous materials transportation,

Import, Nuclear materials, Nuclear power plants and reactors, Reporting

and recordkeeping requirements, Security measures.

For the reasons set out in the preamble and under the authority of the

AEA, as amended; the Energy Reorganization Act of 1974, as amended; and

5 U.S.C. 552 and 553; NRC is adopting the following amendment to 10 CFR

part 73.

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

1. The authority citation for part 73 continues to read as follows:

Authority: Secs. 53, 161, 68 Stat. 930, 948, as amended, sec.

147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as

amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 Stat.

2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 Stat.

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

Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425,

96 Stat. 2232, 2241 (42 U.S.C, 10155, 10161). Section 73.37(f) also

issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841

note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100

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

2. Section 73.28 is added to read as follows:

Sec. 73.28 Security background checks for secure transfer of nuclear

materials.

Licensees are excepted from the security background check

provisions in Section 170I of the AEA if they have not received Orders

from the Nuclear Regulatory Commission containing requirements for

background checks for trustworthiness and reliability that include

fingerprinting and criminal history record checks as a prerequisite for

unescorted access to radioactive materials.

Dated at Rockville, Maryland, this 18th day of January 2007.

Annette L. Vietti-Cook,

Secretary of the Commission.

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

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