Vol. 78 Tuesday, No. 53 March 19, 2013

Part II

Nuclear Regulatory Commission

10 CFR Parts 20, 30, 32, et al. Physical Protection of Byproduct Material; Rule

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NUCLEAR REGULATORY • NRC’s Agencywide Documents XIII. Backfit Analysis COMMISSION Access and Management System XIV. Congressional Review Act (ADAMS): Publicly available documents I. Background 10 CFR Parts 20, 30, 32, 33, 34, 35, 36, created or received at the NRC are 37, 39, 51, 71, and 73 available online in the NRC Library at The NRC has long participated in efforts to ensure radioactive source [NRC–2008–0120; NRC–2010–0194] http://www.nrc.gov/reading-rm/ adams.html. From this page, the public protection and security. The terrorist RIN 3150–AI12 can gain entry into ADAMS, which attacks of September 11, 2001, heightened concerns about the use of provides text and image files of the Physical Protection of Byproduct risk-significant radioactive materials in NRC’s public documents. If you do not Material a malevolent act. Such an attack is of have access to ADAMS or if there are particular concern because of the problems in accessing the documents AGENCY: Nuclear Regulatory widespread use of radioactive materials located in ADAMS, contact the NRC’s Commission. in the United States by industrial, PDR reference staff at 1–800–397–4209, ACTION: Final rule. medical, and academic institutions. The 301–415–4737, or by email to theft or diversion of risk-significant SUMMARY: The U.S. Nuclear Regulatory [email protected]. quantities of radioactive materials could Commission (NRC) is amending its • Federal Rulemaking Web site: lead to their use in a radiological regulations to establish security Public comments and supporting dispersal device (RDD) or a radiological requirements for the use and transport materials related to this final rule can be exposure device (RED). of category 1 and category 2 quantities found at http://www.regulations.gov by The NRC’s current regulations of radioactive material. The NRC searching on Docket ID NRC–2008– provide requirements for the safe use, considers these quantities to be risk 0120. Public comments on the guidance transportation, and control of licensed significant and, therefore, to warrant document supporting this rule can be radioactive material. Loss of control of additional protection. Category 1 and found by searching Docket ID NRC– risk-significant radioactive material, category 2 thresholds are based on the 2010–0194. Address questions about whether inadvertent or through a quantities established by the NRC dockets to Carol Gallagher, deliberate act, could result in significant International Atomic Energy Agency telephone: 301–492–3668; email: adverse impacts that could reasonably (IAEA) in its Code of Conduct on the [email protected]. constitute a threat to the public health Safety and Security of Radioactive Availability of Guidance and safety or the common defense and Sources, which the NRC endorses. The The NRC is issuing new guidance for security of the United States. In the objective of this final rule is to provide changed threat environment after the reasonable assurance of preventing the the implementation of the requirements of 10 CFR part 37. The guidance attacks of September 11, 2001, the theft or diversion of category 1 and Commission determined that certain category 2 quantities of radioactive document is NUREG–2155, Implementation Guidance for 10 CFR licensed material should be subject to material. The regulations also include enhanced security requirements and security requirements for the part 37, ‘‘Physical Protection of Category 1 and Category 2 Quantities of safeguarded during transport, and that transportation of irradiated reactor fuel individuals with unescorted access to that weighs 100 grams or less in net Radioactive Material’’ (ADAMS Accession No. ML13053A061). This risk-significant quantities of radioactive weight of irradiated fuel. The final rule material should be subject to affects any licensee that possesses an guidance is publicly available as stated in this ADDRESSES section. background investigations. aggregated category 1 or category 2 As part of the development of the FOR FURTHER INFORMATION CONTACT: quantity of radioactive material, any enhanced security measures, the NRC licensee that transports these materials Merri Horn, Office of Federal and State performed threat and vulnerability using ground transportation, and any Materials and Environmental assessments to identify gaps or licensee that transports small quantities Management Programs, U.S. Nuclear vulnerabilities in security and the of irradiated reactor fuel. The rule also Regulatory Commission, Washington, effectiveness and costs of certain considers a petition for rulemaking DC 20555–0001; telephone: 01–415– physical protection enhancements at (PRM–71–13) submitted by the State of 8126, email: [email protected]. various licensed facilities. The results of Washington that requested that the NRC SUPPLEMENTARY INFORMATION: these assessments were used in the adopt the use of global positioning I. Background development of security enhancement satellite tracking as a national PRM 71–1 orders that were issued to licensees requirement for vehicles transporting II. Discussion using a graded approach based on the highly radioactive mobile or portable A. General Applicability relative risk and quantity of material radioactive devices. B. Background Investigations and Access possessed by the licensee. Authorization Program DATES: Effective Date: This final rule is C. Physical Protection During Use The NRC issued the first series of effective on May 20, 2013. D. Transportation Security orders to certain panoramic and Compliance Date: Compliance with III. Summary and Analysis of Public underwater irradiator licensees that this final rule is required on March 19, Comments on the Proposed Rule possessed more than 370 Terabequerels 2014. IV. Discussion of Final Amendments by (TBq) (10,000 curies (Ci)) of radioactive ADDRESSES: You can access publicly Section material (EA–02–249; June 6, 2003) (68 available documents related to this V. Criminal Penalties FR 35458; June 13, 2003). The next document using the following methods: VI. Agreement State Compatibility series of orders were issued to certain • NRC’s Public Document Room VII. Plain Writing manufacturing and distribution (M&D) VIII. Voluntary Consensus Standards (PDR): The public may examine and IX. Finding of No Significant Environmental licensees (EA–03–225; January 12, 2004) have copied, for a fee, publicly available Impact: Availability (69 FR 5375; February 4, 2004). These documents at the NRC’s PDR, O1–F21, X. Paperwork Reduction Act Statement orders require the implementation of One White Flint North, 11555 Rockville XI. Regulatory Analysis additional security measures and the Pike, Rockville, Maryland 20852. XII. Regulatory Flexibility Certification protection of the licensee’s physical

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protection information as Safeguards Section 149 of the Atomic Energy Act licensees that might be expected to Information—Modified Handling (SGI– (AEA) to authorize the Commission to transport radioactive materials in M). The original orders are not publicly require to be fingerprinted any category 1 quantities (EA–05–006; July available because they contain detailed individual who is permitted unescorted 19, 2005) (70 FR 44407; August 2, 2005). security requirements that are access to radioactive material or other These orders require the designated as SGI–M. However, property subject to regulation by the implementation of additional security redacted versions of these orders have Commission that the Commission measures and the protection of the been made available to the public (73 determines to be of such significance to licensee’s physical protection FR 33859; June 13, 2008, and 73 FR the public health and safety or the information as SGI–M. The original 49714; August 22, 2008). These orders common defense and security as to orders are not publicly available were issued to both NRC and Agreement warrant fingerprinting and a Federal because they contain detailed security State licensees under the NRC’s Bureau of Investigation (FBI) criminal requirements that are designated as authority to protect the common defense history records check. With this new SGI–M. However, a redacted version of and security. authority, the Commission determined the order is publicly available (73 FR Subsequently, the NRC issued that individuals who have access to 51016; August 29, 2008). These orders Increased Control Orders (EA–05–090; category 1 and category 2 quantities of were issued to both NRC and Agreement November 14, 2005) (70 FR 72128; radioactive material warrant State licensees under the NRC’s December 1, 2005) to other licensees fingerprinting and FBI criminal history authority to protect the common defense authorized to possess certain risk- records checks. and security. significant quantities of radioactive On October 17, 2006, the NRC issued Subsequently, the NRC issued orders material (category 1 and category 2 orders to panoramic and underwater (EA–05–090; November 14, 2005) (70 FR quantities). The Increased Control irradiator licensees (EA–06–248) (71 FR 72128; December 1, 2005) to specifically Orders do not contain safeguards 63043; October 27, 2006), M&D address the transportation security of information (SGI) or SGI–M, and are licensees (EA–06–250) (71 FR 63046; byproduct material transported in available on the NRC’s public Web site October 27, 2006), and licensees making quantities equal to or greater than at http://www.nrc.gov/security/ shipments of category 1 quantities of category 2. The Increased Control byproduct/orders.html. These orders radioactive material (EA–06–249) (71 FR Orders mentioned earlier also contain were issued under the NRC’s authority 62302; October 24, 2006) to require requirements for transporting category 2 to protect public health and safety, and fingerprinting and FBI criminal history quantities of radioactive material. The require licensees to implement records checks for unescorted access to additional security measures contained enhanced security measures known as risk-significant quantities of radioactive in these two sets of orders provide for Increased Controls. To effect nationwide material at their facilities. In issuing enhanced security measures during implementation of the Increased Control these orders, the NRC noted that a transportation that are beyond the Orders, each Agreement State issued malevolent act by an individual with regulations then applicable, and legally binding requirements to impose unescorted access to these materials include: Enhanced security in enhanced security measures, identical could result in significant adverse preplanning and coordinating to the Increased Controls, for licensees impacts to the public health and safety shipments; advance notification of under that State’s regulatory or the common defense and security shipments to the NRC and States jurisdiction. and, thus, necessitated expedited through which the shipment will pass; All of the orders described above implementation of fingerprinting control and monitoring of shipments specifically address the security of requirements. The orders were issued to that are underway; trustworthiness and byproduct material possessed in both NRC and Agreement State reliability of transport personnel; quantities equal to or greater than licensees under the NRC’s authority to information security considerations; and category 1 or category 2 quantities. The protect the common defense and control of mobile or portable devices orders provide for enhanced security security. On December 5, 2007, the NRC such as radiography cameras and well- measures for such things as license issued orders to all other NRC licensees logging devices. verification before the transfer of these that possessed category 1 or category 2 In November 2009, the NRC issued materials, access control, intrusion quantities of radioactive material (EA– the Increased Control Order and the detection and response, and 07–305) (72 FR 70901; December 13, Fingerprint Order to power reactor coordination with local law 2007) to require fingerprinting and FBI licensees that are undergoing enforcement authorities (LLEAs). The criminal history records checks for decommissioning (EA–09–204 and EA– orders also contain requirements for the unescorted access to category 1 or 09–205; November 23, 2009) (74 FR licensee to determine the category 2 quantities of radioactive 66168 and 74 FR 66164; December 14, trustworthiness and reliability of material. These orders were issued 2009). The orders required these individuals permitted unescorted access under the NRC’s authority to protect the licensees to implement the Increased to risk-significant radioactive materials. public health and safety and are Controls and to obtain fingerprints and The determination involves a available on the NRC’s public Web site criminal history records checks for background investigation of the at http://www.nrc.gov/security/ individuals to have or continue having individual. The background byproduct/orders.html. To effect unescorted access to aggregated category investigations were originally limited to nationwide implementation, each 1 or category 2 quantities of radioactive local criminal history records checks Agreement State issued legally binding material. with law enforcement agencies, requirements consistent with the In December 2009, the NRC issued verification of employment history, Increased Control Orders to licensees orders to service provider licensees that education, personal references, and under their regulatory jurisdiction. were not manufacturers or distributors confirmation of employment eligibility In 2005, the NRC issued two sets of (EA–09–293; December 16, 2009 (75 FR (legal immigration status). orders to licensees transporting 160; January 4, 2010). The order In 2005, Congress passed, and the radioactive material in quantities of required service provider licensees to President signed, the Energy Policy Act concern. The first set of transportation implement specific measures to ensure of 2005 (EPAct). The EPAct amended security orders was issued to certain the trustworthiness and reliability of

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their service representatives that have External Review Panel and the Materials making process and final determination unescorted access to category 1 or Program Working Group, and of the rule requirements in the area of category 2 quantities of radioactive stakeholder comments received on the the petitioner’s concern. The NRC materials. proposed rule and the draft ultimately did not include a The requirements put in place by all implementation guidance. The requirement for GPS tracking in the these above-described orders Commission chartered the Independent rule. However, the rule does contain a supplement the existing regulatory External Review Panel to: (1) Identify requirement to use a telemetric position requirements. These additional vulnerabilities in the NRC’s materials monitoring system or an alternative requirements are primarily intended to licensing program with respect to tracking system when transporting provide reasonable assurance of import, export, specific, and general category 1 quantities of radioactive preventing the theft or diversion of risk- licenses; (2) validate the ongoing material. Use of GPS would be one significant radioactive material. These byproduct material security efforts; and method to satisfy this requirement. For requirements provide the Commission (3) evaluate the apparent ‘‘good faith licensees transporting category 2 with reasonable assurance that public presumption’’ in the NRC licensing quantities of radioactive material, health and safety and the common process that had in the past justified tracking is not required. The licensee is defense and security continue to be minimal investigation of new license required to maintain constant control or adequately protected. applicants or inspection of their surveillance during transit. In addition, It is the Commission’s preference to facilities before allowing their the rule at § 37.53 imposes additional implement generically applicable possession of radioactive material. The security measures on mobile devices requirements through rulemaking rather Panel’s March 2008 report is available that includes using a method to disable than by orders. An order is legally in ADAMS under Accession No. the vehicle or trailer when not under binding only on the licensee or ML080700957. The Materials Program direct control and constant surveillance licensees receiving the order. Further, Working Group conducted a by the licensee. The NRC believes that the notice-and-comment rulemaking comprehensive evaluation of the these requirements provide adequate process allows members of the public to materials program to identify short- and protection for mobile devices and that provide comments on the proposed rule. long-term strategies to mitigate security GPS is neither justified nor necessary. This rulemaking promulgates vulnerabilities. The Working Group The majority of the transportation generically applicable security report contains sensitive information security requirements are Compatibility requirements for licensees possessing and is not publicly available. However, Category B because there are direct and category 1 and category 2 quantities of the Group’s comments on the Panel’s significant transboundary implications. radioactive material in the regulations. report are publicly available in ADAMS Because the requirements are New requirements for background under Accession No. ML080660424. Compatibility B, Agreement States must investigations and an access adopt program elements essentially PRM–71–13 authorization program are included to identical to those of the NRC and do not ensure that individuals who have access On July 16, 2008 (73 FR 40767), the have the flexibility to adopt more to these materials have gone through NRC published the resolution and stringent requirements. See also background investigations and are closure of a petition for rulemaking filed response to comment D29. determined to be trustworthy and by Christine O. Gregoire, Governor of reliable. New requirements are also the State of Washington (PRM–71–13). II. Discussion included to establish physical The NRC indicated that the issues raised The NRC has determined that a new protection systems to detect, assess, and by the petitioner would be considered part for Title 10 of the Code of Federal respond to unauthorized access to in an ongoing rulemaking on security Regulations (10 CFR) should be category 1 and category 2 quantities of requirements for the transportation of established for the security radioactive material. For transport of the radioactive material in quantities of requirements for use and transportation radioactive materials, new requirements concern. of category 1 and category 2 quantities for recipient license verification; The petitioner requested that the NRC of radioactive material. Separate safety preplanning and coordination of adopt the use of global positioning and physical protection requirements shipments; advance notification of system (GPS) tracking as a national have already been established for shipments; notification of shipment requirement for vehicles transporting special nuclear material in 10 CFR part delays, schedule changes, and suspected highly radioactive mobile or portable 73. The establishment of a new part for loss of a shipment; and control and radioactive devices. As an alternative, security-related requirements for monitoring of shipments are included. the petitioner stated that the byproduct material would be more The amendments also include security Commission could grant States the effective and efficient compared to requirements for shipments of irradiated flexibility to impose more stringent interspersing the requirements with reactor fuel that weigh 100 grams (g) requirements than those required under safety requirements or placing them (0.22 pounds (lb)) or less in net weight the current Increased Controls Orders. with the part 73 security requirements of irradiated fuel, exclusive of cladding The petitioner believes that GPS for special nuclear material. A new part or other structural or packaging technology is an effective and relatively specifically directed to byproduct material, which has a total external inexpensive tool that would give law material licensees should make radiation dose rate in excess of 1 Gray enforcement a significant advantage in applicable requirements easier for both (100 rad) per hour at a distance of 1 locating a missing source. However, the licensees and other stakeholders to meters (m) (3.3 feet (ft)) from any petitioner acknowledged that requiring locate and understand. accessible surface without intervening a GPS on these vehicles does not ensure This discussion section has been shielding. that the radiological source will be divided into four subsections to better In developing this final rule, the NRC found. present information on the final rule. considered, among other things, the The NRC considered the issues Each section presents information on a various orders, lessons-learned during identified by the petitioner and the different aspect of the final rule. Section implementation of the orders, the petitioner’s suggested approach to A provides information that is generally recommendations of the Independent address those issues in the decision- applicable to all aspects of this

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rulemaking. Section B provides Imposing long-term requirements reactor licensees may also be impacted. information on background through orders has not traditionally Most licensees whose activities are investigations and the access been the agency’s preferred method of covered under the physical protection authorization program. Section C regulation. Orders, unlike rules, do not requirements of 10 CFR part 73 are provides information on the physical apply prospectively to applicants for exempt from the requirements of 10 CFR protection of the materials during use. new licenses. The NRC would have to part 37. For example, a reactor licensed Lastly, Section D provides information periodically issue new orders to cover under part 50 that also possesses a on transportation security aspects. new and amended licenses, and perhaps radiography source under an NRC reissue orders periodically to existing license does not need to implement the A. General Applicability licensees if requirements or part 37 provisions if the source is 1. What action is the NRC taking? administrative practices change. In protected under the reactor security order to make the requirements program required by part 73. Licensees The NRC is amending its regulations generally applicable to all present and that possess an aggregated quantity of to impose security requirements for the future licensees, the security-related radioactive waste that equals or exceeds use and transportation of category 1 and requirements need to be placed in the the category 2 threshold will need to category 2 quantities of radioactive regulations. meet some requirements, but would not material. The requirements establish the The NRC is now formally revising its need to meet most of the program objectives and minimum requirements security requirements. The orders will elements in part 37. that licensees must meet to protect remain in place for NRC licensees until Aggregated quantity refers to the total against theft or diversion of this the final rule is implemented (1 year quantity of radioactive material, material. These requirements are after publication of the final rule). Once calculated by use of the sum of fractions intended to increase the protection of the final rule is implemented, the NRC method discussed in question 7, that the public against the unauthorized use will rescind the orders that were issued can be accessed by defeating a single of category 1 or category 2 quantities of to its licensees. For Agreement State physical barrier. radioactive material by reducing the risk licensees that received an NRC order, of the theft or diversion of the material. the order will remain in place until the 5. What are Category 1 and Category 2 The NRC is also amending the effective date of compatible quantities of radioactive material? regulations to impose security requirements issued by the Agreement requirements for the transportation of States. Each Agreement State will follow Category 1 quantities of radioactive small quantities (100 grams or less) of its own process for issuing these material have been called radioactive irradiated fuel. requirements. Once the State has issued material in quantities of concern its requirements and they become (RAMQC). Category 1 and category 2 2. Why do the requirements need to be quantities of radioactive material have revised? effective, the NRC will rescind the order. been called risk-significant radioactive Prior to September 11, 2001, the NRC material and refer specifically to 16 requirements focused on safety and 4. Whom would this action affect? radioactive materials (14 single preventing inadvertent or accidental These requirements will apply to NRC radionuclides and 2 combinations). exposure of both workers and the public and Agreement State licensees that These materials are: Americium-241; to these materials. These requirements possess an aggregated category 1 or americium-241/beryllium; californium- also provided security for the material. category 2 quantity of radioactive 252; curium-244; cobalt-60; cesium-137; The events of September 11, 2001, made material or that transport irradiated gadolinium-153; iridium-192; the NRC take a broader look at its reactor fuel less than 100 grams net plutonium-238; plutonium-239/ requirements and reevaluate what a weight. This includes a wide range of beryllium; promethium-147; radium- terrorist might do to obtain these licensees, including pool-type irradiator 226; selenium-75; strontium-90 materials. From this effort, the NRC licensees; manufacturer and distributor (yttrium-90); thulium-170; and identified several areas where licensees; medical facilities with gamma ytterbium-169. Irradiated fuel and additional requirements were necessary knife devices; self-shielded irradiator mixed oxide fuel are not included even to improve security. The security licensees (including blood irradiators); though they may contain category 1 or requirements need to be placed in the teletherapy unit licensees; category 2 quantities of radioactive regulations so that they are generally radiographers; well loggers; broad scope material; these materials are covered by applicable to all licensees. Publication users; radioisotope thermoelectric other regulations. The thresholds for of the proposed rule also provided an generator licensees; and licensees that category 1 and category 2 quantities of opportunity for all stakeholders to ship or prepare for shipment category 1 radioactive material are provided in the comment on the proposed requirements. or category 2 quantities of radioactive following table. Terabecquerels is the material. Nearly 1,400 licensees are official unit to be used for determining 3. Why doesn’t the NRC just keep the implementing the various orders and are whether a radioactive material is a orders in effect? the entities that will be primarily category 1 or category 2 quantity. The orders issued by the NRC could impacted by this final rule. In addition, Because many licensees use curies in stay in place indefinitely. However, the some fuel cycle and reactor licensees their activities instead of Becquerels, the regulations would not reflect current that possess sources at these levels may table provides the curie value at three Commission policy or requirements. be impacted. Some decommissioning significant figures for convenience.

Category 1 threshold Category 2 Threshold Radioactive material Terabecquerels Curies Terabecquerels Curies (TBq) (Ci) (TBq) (Ci)

Americium-241 ...... 60 1,620 0 .6 16 .2 Americium-241/Beryllium ...... 60 1,620 0.6 16 .2 Californium-252 ...... 20 540 0 .2 5 .40

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Category 1 threshold Category 2 Threshold Radioactive material Terabecquerels Curies Terabecquerels Curies (TBq) (Ci) (TBq) (Ci)

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 uses the ‘D’ values as normalizing necessary for these materials, the NRC based on the IAEA Code of Conduct. factors. The ‘D’ value is the radionuclide would consider requiring additional The IAEA published these results in a specific activity of a source that, if not security for these materials. The Task document titled ‘‘Code of Conduct on under control, could cause severe Force periodically reevaluates the list of the Safety and Security of Radioactive deterministic effects for a range of radionuclides that warrant additional Sources.’’ A link to this document can scenarios that include both external security and protection. If the be found on the NRC’s Web site at exposure from an unshielded source radionuclides and/or thresholds change http://www.nrc.gov/security/byproduct/ and internal exposure following in the future, any changes would be enhanced-security.html. The NRC and dispersal of the source material. Safety addressed in a future rulemaking. the international community, led by the Series RS–G–1.9 is available on the IAEA, revised the IAEA Code of IAEA’s Web site at: http://www- 7. What is the sum of fractions Conduct in 2003, to establish common pub.iaea.org/MTCD/publications/PDF/ methodology or unity rule? international guidance for safety and Pub1227_web.pdf. The sum of fractions methodology, security measures for radioactive 6. Why are the requirements limited to also known as the unity rule, is used to sources. In a separate effort, the U.S. these 16 radionuclides? determine if a licensee is required to Department of Energy (DOE) and the NRC reviewed the chemical, physical, The Radiation Source Protection and implement 10 CFR part 37 and radiological characteristics of each Security Task Force, an interagency task requirements. A licensee may need to radioactive material that is licensed in force established by the EPAct, implement the requirements in 10 CFR the United States, for its attractiveness concluded in its 2006 report to Congress part 37 even if it does not possess any to a terrorist. This effort identified 16 and the President (ADAMS Accession single source or single radionuclide in radioactive materials that could pose a No. ML062190349) that the appropriate excess of the category 2 thresholds. For serious threat to people and the radioactive sources were being combinations of materials (to include environment if used malevolently. This protected. The Task Force also sealed sources, unsealed sources, and effort further identified the different concluded that the IAEA Code of bulk or loose material) and quantities or ‘‘thresholds’’ of materials Conduct serves as an appropriate radionuclides, a licensee must include that could be useful to a terrorist. The framework for considering which multiple items (including bulk material) results of the DOE/NRC effort closely sources warrant additional protection. of the same radionuclide and multiple matched the Code of Conduct Category For its 2010, report to Congress and the items (including bulk material) of 2 quantities. The NRC adopted the IAEA President (ADAMS Accession No. different radionuclides to determine if Code of Conduct Category 1 and ML102230141), the Task Force the requirements apply. For the Category 2 threshold quantities to conducted a reevaluation of the purposes of this calculation, licensees provide consistency between domestic radionuclides that warrant additional are required to consider all of the and international efforts for security of security and protection. The Task Force aggregated radioactive material from the radioactive materials that are deemed to found ‘‘that the Category 1 and 2 list of applicable radionuclides at any be attractive targets for malevolent use. quantities remain valid for sealed and location where the material can be IAEA Safety Series RS–G–1.9, unsealed sources as the list and accessed by breaching a single barrier. Categorization of Radioactive Sources, threshold levels of radionuclides that The following formula for the unity rule provides the underlying methodology could result in a significant RED or RDD is used to determine if a licensee is for the development of the Code of event and therefore warrant enhanced required to implement the part 37 Conduct thresholds. Safety Series RS– security and protection.’’ The Task requirements: [(Total amount of G–1.9 provides a risk-based ranking of Force identified seven additional radionuclide A) ÷ (category 2 threshold radioactive sources in five categories in radionuclides that may be of concern of radionuclide A)] + [(total amount of terms of their potential to cause severe when aggregated, but the Task Force did radionuclide B) ÷ (category 2 threshold deterministic effects for a range of not recommend at this time that these of radionuclide B)] + etc.....≥ 1. If the scenarios that include both external additional radionuclides should receive sum is greater than or equal to 1, the exposure from an unshielded source enhanced protection. If in the future the licensee has at least a category 2 and internal exposure following Task Force revises its view and quantity of radioactive material, and the dispersal. The categorization system determines that additional security is 10 CFR part 37 requirements apply.

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8. Does the NRC plan to issue guidance 10. What is the authority for this final necessary to fulfill the common defense on these requirements? rule? and security aspects of the regulations. The NRC believes that the Agreement Yes, the NRC plans to issue guidance As noted in the background discussion, the NRC issued some orders States can consistently and adequately on the security requirements for implement the physical protection category 1 and category 2 quantities of under its authority to protect the common defense and security and some requirements on a nationwide basis, and radioactive materials. The draft as such, there will be no need for guidance was issued for public orders under its authority to protect the public health and safety. With respect to independent NRC action to protect the comment (75 FR 40756; July 14, 2010) whether the following regulations are common defense and security. As during the comment period on the being issued under ‘‘public health and always, the NRC retains the authority proposed rule. The NRC is issuing new safety’’ or ‘‘common defense and under section 274(m) of the AEA to take guidance for the implementation of the security,’’ it should be recognized that any necessary actions for protection of requirements of 10 CFR part 37. The the common defense and security almost all regulations relating to the guidance document is NUREG–2155, should individual licensees or security of materials serve both Implementation Guidance for 10 CFR Agreement State programs develop purposes to some degree. For example, part 37, ‘‘Physical Protection of Category issues requiring immediate action. As securing radioactive materials with 1 and Category 2 Quantities of long as all Agreement States continue to multiple barriers protects the public Radioactive Material’’ (ADAMS implement compatible and adequate health and safety by preventing the security requirements, there appears to Accession No. ML13053A061). This unknowing theft of radioactive be no benefit to the public health and guidance and public comments are materials—such as someone stealing a ADDRESSES safety, or common defense and security, available as stated in the vehicle with material stored in the section of this document. that would justify removing oversight of vehicle, but whose target is the these requirements from an established 9. Will all of the information considered vehicle—which could result in the regulatory program overseeing to be safeguards information under the unintentional exposure of members of Agreement State licensees. orders now be made public? the public to the material. The barriers Implementing these regulations under also protect the common defense and the NRC’s public health and safety No. The orders issued to some security by preventing the theft of the authority avoids potential complications licensees contained detailed security radioactive material by potential with licensees being subject to dual information that could be useful to an terrorists or others targeting the specific regulatory authority for a single license. adversary. To increase public awareness material intending to use it to affect the Thus, the NRC is issuing these and participation, the NRC identified common defense and security by regulations under its public health and the primary security concepts behind exposing members of the public to the safety authority, and these requirements each security measure and included material. However, the designation of are applicable to Agreement State these concepts in the rule to allow the authority being used for these licensees through the Agreement State discussion of the security measures in a regulations does have significance in Program. public forum. But the specific measures determining whether Agreement States that a licensee puts in place may be or the NRC will be responsible for 11. When would the rule be effective? considered SGI–M. The final rule on overseeing the implementation of these The final rule is effective 60 days after safeguards information became effective requirements for Agreement State publication in the Federal Register; on February 23, 2009 (73 FR 63546; licensees. however, licensees do not need to October 24, 2008), and established as Although section 274(b) of the AEA comply with the rule until 1 year after SGI–M certain physical protection allows the NRC to relinquish its publication. This provides time for information related to panoramic and regulatory authority to Agreement States licensees to put in place the necessary underwater irradiators that possess for certain radioactive materials and programs, develop procedures, and greater than 370 TBq (10,000 Ci) of activities, section 274(m) of the AEA conduct training on the new byproduct material in the form of sealed prevents such agreements from affecting requirements. While most of the sources; manufacturers and distributors the authority of the Commission to take provisions are similar to those of items containing source material, regulatory action to protect the common contained in the orders, there are byproduct material, or special nuclear defense and security. Thus, as differences. The Agreement States will material in greater than category 2 evidenced by orders issued to be required to issue compatible quantities; and transportation of source, Agreement State licensees after the requirements within 3 years of the byproduct, or special nuclear material events of September 11, 2001, the NRC publication date of the final rule instead in greater than or equal to category 1 has the ability to take necessary steps to of 3 years from the effective date of the quantities. Physical protection address particular common defense and rule. Licensees in an Agreement State information for other facilities that fall security needs. If these regulations were will continue to operate under the under the requirements of 10 CFR part to be issued under the NRC’s common orders or other legally binding 37 is considered physical protection defense and security authority, only the requirements until the Agreement State information under 10 CFR 2.390(d)(1). NRC would have the authority to issues compatible requirements and Licensees are also required to protect impose these requirements on these requirements take effect. The the security plan and implementing Agreement State licensees and the NRC provisions put in place for the information and the list of individuals would be responsible for inspection and inspection of licensees in Agreement that have unescorted access from enforcement of these requirements for States that received the orders issued unauthorized disclosure. The rule Agreement State licensees. under common defense and security provisions that address SGI–M or When regulations such as these will remain in place until the include references to the SGI–M complement both the NRC’s public Agreement State implements the requirements in part 73 are reserved for health and safety and common defense requirements. For those Agreement the NRC and are considered and security missions, the operative States that enter into 274i Agreements, compatibility category NRC. question is whether NRC oversight is the State can continue inspections

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under the Agreement. For those 2. What is the objective of the access for access to SGI or may include the Agreement States that did not enter into authorization program? program with the part 37 program for 274i Agreements, the NRC will continue The main objective of the access unescorted access to the material. Those individuals who have to conduct the inspections until the new authorization program is to ensure that unescorted access to certain quantities Agreement State requirements become individuals who have unescorted access of byproduct material could pose a effective. The NRC will rescind the to category 1 or category 2 quantities of threat to the public health and safety or orders as the regulatory requirements radioactive material are trustworthy and the common defense and security become effective. reliable and do not constitute an because they could divert or steal risk- unreasonable risk to the public health 12. How does the NRC ensure licensees significant radioactive material, or could and safety or common defense and aid others in the commission of such are following these rules? security. acts. The Radiation Source Protection The NRC and Agreement States 3. Who is subject to the licensee’s access and Security Task Force encouraged the conduct inspections to ensure that authorization program? NRC to require fingerprinting and licensees are following the Section 652 of the EPAct authorizes Federal criminal history checks of any requirements. The NRC and Agreement individual with access to category 1 or the Commission to require category 2 quantities of radioactive State inspectors will receive training fingerprinting of any individual who is material. and follow inspection procedures on permitted unescorted access to ‘‘any how to ascertain whether licensees are Certain categories of individuals are radioactive material that the relieved from the background meeting security requirements. Potential Commission determines to be of such violations that are identified will be investigation aspect of the access significance to the public health and authorization program (see Section II, processed in accordance with the NRC safety or the common defense and Enforcement Policy, and depending on question B20 and B21). Licensees do security as to warrant fingerprinting and have the option to escort an individual the severity of a violation, licensees background checks.’’ The Commission and not make a trustworthiness and could be subject to civil or criminal has determined that the threshold that reliability determination. The escorts penalties. Additionally, the NRC has warrants fingerprinting and background need to be approved for unescorted developed enforcement guidance to checks is category 2. The Commission access. ensure consistency in the enforcement directed that any licensee implementing process. Agreement State licensees are the Increased Control Orders should 4. What are the key access authorization subject to the State’s enforcement also have a fingerprinting and an FBI program requirements? process. Those Agreement State criminal records check for any The key components of an access licensees that were issued NRC orders individual with unescorted access to authorization program are the reviewing under common defense and security category 1 or category 2 quantities of official, a background investigation, use would remain subject to the NRC’s radioactive material. Because only of procedures, and the individual’s right enforcement process, until the licensees that had aggregated quantities to correct and complete the information Agreement State adopts the regulations at or above the category 2 threshold on which the decision to grant with its own legally binding implemented the orders, these are the unescorted access is based. Each of requirements. licensees that need to have an access these areas is discussed in more detail authorization program, i.e., any licensee in the following questions and answers. B. Background Investigations and that has an aggregated quantity of Access Authorization Program radioactive material at or above the 5. What is the role of the reviewing category 2 threshold. Therefore, official? 1. Who is required to have an access individuals subject to a licensee’s access The reviewing official is the authorization program? authorization program include anyone individual that makes the Any licensee that possesses category 1 permitted to have unescorted access to trustworthiness and reliability or category 2 quantities of radioactive category 1 or category 2 quantities of determinations for the licensee; the materials at a facility needs to determine radioactive material. Unescorted access reviewing official determines who can whether it needs to have an access is defined as solitary access to category be allowed unescorted access authorization. Note that the Increased authorization program. Only those 1 or category 2 quantities of radioactive material or the devices that contain the Control Fingerprinting Orders referred licensees that permit unescorted access material. The reviewing official is also to a trustworthiness and reliability to an aggregated category 1 or category included in the program to ensure that official (or T&R official) as the 2 quantity of radioactive material are this individual is subjected to the same individual who made determinations on required to establish and implement an background check and degree of a subject individual’s trustworthiness access authorization program. If the trustworthiness and reliability. and reliability. Unlike the reviewing material can be accessed by the breach The access authorization program official, the T&R official did not have to of a single physical barrier, the licensee may also include individuals that have be fingerprinted. Under this rule, needs to implement an access access to SGI–M, such as vehicle drivers fingerprints of the reviewing official(s) authorization program. In addition, any and accompanying individuals for road need to be taken by either a law applicant for a license or license shipments of category 1 quantities of enforcement agency, a Federal or State amendment to possess category 1 or radioactive material, movement control agency that provides fingerprinting category 2 quantities of radioactive center personnel for shipments of services to the public, or a commercial material at a facility is required to category 1 quantities of radioactive fingerprinting service authorized by a establish an access authorization material, and any individual whose State to take fingerprints and then be program before obtaining the radioactive assigned duties provide access to submitted to the NRC. This ensures the material, if it will be aggregating the shipment information on category 1 identification of the individual material at or above the category 2 quantities of radioactive material. submitting the fingerprints. Without this threshold. Licensees may have a separate program requirement the reviewing official could

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submit the fingerprints of another The signed consent includes radioactive material. It is expected that individual that is known not to have a authorization to share personal licensees will use their best efforts to criminal history or known terrorist ties. information with other individuals or obtain the information required to Reviewing officials must be permitted organizations as necessary to complete conduct a background investigation to either access to safeguards information the background investigation. An determine an individual’s or unescorted access to category 1 or individual can withdraw his or her trustworthiness and reliability. category 2 quantities of radioactive consent at any time. After the Information previously obtained during material because section 149 of the AEA withdrawal, the licensee may not the hiring process may be used to only authorizes the collection of initiate any elements of the background support a licensee’s determination of an fingerprints for the purposes of investigation that were not in process at individual’s trustworthiness and unescorted access to radioactive the time of the withdrawal of consent. reliability without having to reverify material or access to safeguards The licensee is required to inform the that information. There is no particular information. After the licensee has individual that withdrawal of consent piece of information that would completed the background investigation for the background investigation is automatically disqualify an individual for the reviewing official and sufficient cause for denial or from access. The intent is that the determined that the individual is termination of unescorted access information is considered as a whole in trustworthy and reliable, the licensee authorization. determining if an individual is both must provide under oath and Licensees do not need to obtain trustworthy and reliable. affirmation, a certification that the signed consent from individuals that Fingerprinting an individual for an reviewing official is deemed trustworthy have already undergone a background FBI criminal history records check is an and reliable. For certain licensees, the investigation that included important element of the background NRC may have approved reviewing fingerprinting and an FBI criminal investigation. It can provide officials, either under the October 17, history records check, been determined comprehensive information regarding 2006, orders (EA–06–248, EA–06–250, to be trustworthy and reliable, and an individual’s recorded criminal and EA–06–249), under the August 21, permitted unescorted access to category activities within the United States and 2006, SGI–M Orders, or under other 1 or category 2 quantities of radioactive its territories and the individual’s regulatory requirements. In those cases, material under the NRC orders or the known affiliations with violent gangs or the reviewing official may continue to legally binding requirements issued by terrorist organizations. act in that capacity. If the reviewing (or the Agreement States. A signed consent Verification of true identity is T&R) official has not had an FBI is needed for any reinvestigation. necessary to make sure that the criminal records history check, he or individual is who he or she claims to be 7. What is a personal history disclosure? she needs to be fingerprinted and and that the documentation matches. undergo a background investigation and The personal history disclosure is the This check is important to make sure be named by the licensee before making personal history required to be provided that someone is not posing as someone additional trustworthiness and by the individual seeking unescorted else. reliability determinations. If the access to category 1 or category 2 Employment history, education individual falls under one of the quantities of radioactive material. The verification, character and reputation categories of individuals granted relief information includes items such as determination; and obtaining from the background investigation, the employment history, education, and any independent information are necessary individual can be determined to be arrest record. This information provides to ensure that the individual is who trustworthy and reliable without going the reviewing official with a starting they claim to be, that the individual has through a full background investigation. point for the background investigation. not made false claims, has a good The NRC believes that it is important Failure to provide the information or reputation, and conducts his or herself that the individual who is making the falsification of any information could be in a trustworthy and reliable manner. final determination on whether an grounds for denial of the individual’s The background investigation is a tool individual is trustworthy and reliable be request for unescorted access to determine whether individuals are trustworthy and reliable themselves and authorization or termination of access if trustworthy and reliable and could be have undergone the same background the individual already has access. If the permitted unescorted access to category investigation as individuals who would individual provides false information, it 1 or category 2 quantities of radioactive be granted unescorted access, including could be an indication that he or she is material. It is essential to ensure that fingerprinting and the FBI criminal not trustworthy or reliable. individuals seeking unescorted access to records check. If the reviewing official radioactive material are dependable in 8. What are the components of a is not fingerprinted, a gap could be judgment, character, and performance, background investigation? created in the security program that such that unescorted access to category could potentially be exploited. The A background investigation includes 1 or category 2 quantities of radioactive reviewing official could have a criminal several components: Fingerprinting and material by that individual does not history or terrorist ties and allow other an FBI identification and criminal constitute an unreasonable risk to the individuals with a criminal history or history records check; verification of public health and safety or common terrorist ties to have unescorted access true identity; employment history defense and security. to radioactive material in quantities of verification; verification of education; Nothing in the regulations prevents a concern. This addresses the good faith and character and reputation licensee from including other elements presumption. determination. in its background investigation. It is the licensee’s responsibility to Although the NRC did not include the 6. What is informed consent? make a trustworthiness and reliability credit history check as a required Informed consent is the authorization determination of an employee, element of the background provided by an individual that allows a contractor, or other individual who will investigation, a credit history check can background investigation to be be granted unescorted access to category provide supplemental information that conducted to determine whether the 1 or category 2 quantities of radioactive could be useful to licensees, particularly individual is trustworthy and reliable. material or a device containing such in the situation where it is difficult to

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make a trustworthiness and reliability authorization, including provisions for quantities of material or safeguards determination. Information from a credit review of the denial. information, or an authorized history check could provide additional 13. What information should the representative of the NRC. information that would be useful in reviewing official use to determine that making that final decision. To the extent 16. Can a licensee transfer personal an individual is trustworthy and information obtained during an that a licensee decides to use a credit reliable? history check as a measure beyond the investigation to another licensee? regulatory minimum required for the The reviewing official uses all of the Yes, a licensee can transfer access authorization program, the NRC information gathered during the background information on an acknowledges the merit of such use. background investigation, including the information received from the FBI, in individual to another licensee if the 9. Where does a licensee submit the making a determination that an individual makes a written request to fingerprints for processing? individual is trustworthy and reliable. the licensee to transfer the information Under the EPAct, licensees are The reviewing official may not contained in his or her file. determine that an individual is required to submit the fingerprints to 17. If I receive background investigation the NRC, which forwards the trustworthy and reliable and grant information from another licensee, can fingerprints to the FBI for processing. If unescorted access until the information I rely on that information? an individual comes under one of the obtained for the background categories for relief specified in 10 CFR investigation has been evaluated. The Yes, a licensee can rely on the 37.29, the licensee does not need to reviewing official may deny unescorted background investigation information access to any individual based on any submit the individual’s fingerprints to that is transferred from another licensee. information obtained at any time during the NRC. However, a licensee is required to verify the background investigation. However, 10. What should a licensee do if an as required by section 149.c(2)(c) of the information such as name, date of birth, individual or entity contacted as part of AEA, the licensee may not base a final social security number, gender, and a background investigation refuses to determination to deny an individual other physical characteristics to ensure respond? unescorted access to category 1 or that the individual is the person whose If a previous employer, educational category 2 quantities of radioactive file has been transferred. The licensee institution, or any other entity fails to material solely on the basis of can also choose to verify other provide information or indicates an information received from the FBI information that is transferred or to inability or unwillingness to provide involving: (1) An arrest more than 1 year escort the individual and not grant him information in a timely manner, the old for which there is no information of or her unescorted access. licensee is required to document the the disposition of the case; or (2) an 18. What records are required to be refusal, unwillingness, or inability to arrest that resulted in dismissal of the maintained? respond in the record of investigation. charge or an acquittal. If there is no The licensee then needs to attempt to record on the disposition of the case, it Licensees are required to retain all obtain confirmation from at least one may be that information on a dismissal fingerprint and criminal history records alternate source that has not been or acquittal was not recorded. received from the FBI, or a copy if the previously used. 14. How frequently is a reinvestigation individual’s file has been transferred, 11. Does an individual have the right to required? for 3 years after the individual no longer correct his or her criminal history A reinvestigation is required every 10 requires unescorted access to category 1 records? years to help maintain the integrity of or category 2 quantities of radioactive Yes, an individual has the right to the access authorization program. This material. Licensees are also required to correct his or her criminal history is necessary because an individual’s retain the written confirmation received records before any final adverse situation may change over time in a from entities concerning a security determination is made. If the individual manner that can adversely affect his or clearance or favorably adjudicated believes that his or her criminal history her trustworthiness and reliability. The criminal history records check and any records are incorrect or incomplete in reinvestigation includes only the written verifications received from any respect, he or she can initiate fingerprinting and the FBI criminal service providers. A licensee is not challenge procedures. These procedures history check. required to retain the actual include direct application by the 15. Are licensees required to protect fingerprints. The licensee must keep the individual challenging the criminal information obtained during a determination basis and the list of history records to the law enforcement background investigation? individuals permitted unescorted agency that contributed the questioned access. information. Before an adverse Yes, licensees are required to protect determination on a request for the information obtained during a 19. How does a licensee determine the unescorted access, individuals have the background investigation. The licensee effectiveness of the access authorization right to provide additional information. is required to establish and maintain a control program? system of files and procedures for 12. Is a licensee required to have protection of the information from Licensees are required to review their procedures for implementing the access unauthorized disclosure. Licensees are program annually to confirm authorization program? only permitted to disclose the compliance with the requirements. The Yes, licensees are required to develop, information to the subject individual, review evaluates all program implement, and maintain written the individual’s representative, those performance objectives and procedures for implementing the access who have a need-to-know the requirements, documents any findings authorization program. At a minimum, information to perform their assigned and corrective actions, and is conducted procedures need to address notification duties to grant or deny unescorted annually. Any records need to be of individuals denied unescorted access access to category 1 or category 2 maintained for 3 years.

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20. Are individuals transporting who conduct security inspections on investigation, including fingerprinting, radioactive material subject to the behalf of the NRC pursuant to 274.i. of and been found acceptable for background investigation requirements? the AEA; and other government officials unescorted access under provisions of As part of this rulemaking, the NRC who may need unescorted access to other such requirements, do not need to considered what level of responsibility radioactive materials or other property undergo another background to place on its licensees regarding subject to regulation by the Commission investigation nor would a separate fingerprinting and criminal history as part of their oversight function. The determination of their trustworthiness records checks for persons involved in categories of individuals relieved by the and reliability need to be made. the transportation of category 1 and rule included the same individuals as Individuals that have undergone those relieved in an earlier rulemaking category 2 quantities of radioactive fingerprinting and an FBI criminal from fingerprinting and criminal history material. Licensees covered by the history records check under other records check requirements applicable fingerprinting and criminal history agency programs do not need to be to safeguards information (71 FR 33989; records check requirements of this final fingerprinted again, but would be June 13, 2006). subject to the other elements of the rule may decide to transfer radioactive Under this final rule, the Commission material away from the site or may background investigation. These is using the same listing of categories of programs include the National Agency receive radioactive material from individuals with the following another entity. Check, Transportation Worker modifications. Emergency response Identification Credentials (TWIC) under Such transfers or receipts may occur personnel who are responding to an either as part of a shipment to or from 49 CFR 1572, Bureau of Alcohol, emergency are relieved from the Tobacco, Firearms, and Explosives a domestic company or an international requirements because it is impossible to company. Individuals involved in the background check and clearances under predict when emergency access might 27 CFR 555, Health and Human Services shipment, in particular those employed be necessary. The need to provide an by carriers or other organizations security risk assessments for possession escort for those responding to an and use of select agents and toxins handling shipments, may have emergency could impede the response unescorted access to the material during under 42 CFR 73, Hazardous Material function. Employees of carriers that security threat assessment for hazardous the shipment process. These persons transport category 2 quantities of may not be employees of the licensee material endorsement to commercial radioactive material and package drivers license under 49 CFR 1572, and and thus may not be under the handlers at transportation facilities are licensee’s direct control. Section Customs and Border Patrol’s Free and also relieved. These individuals would Secure Trade (FAST) Program. The 37.29(a) grants relief from the typically be outside the control of the background investigation for those individual must make available the licensee and the licensee would have no appropriate documentation. Written individuals who are commercial vehicle way of knowing or influencing who drivers for road shipments of category 2 confirmation from the agency/employer those individuals might be. The NRC that granted the Federal security quantities of radioactive material and will rely on the U.S. Department of package handlers at transportation clearance or reviewed the criminal Transportation (DOT) and the history records check must be provided facilities such as freight terminals and Transportation Security Administration railroad yards. Individuals that have to the licensee. (TSA) programs for background This rule does not authorize access to SGI–M, such as drivers for investigations of these personnel. While category 1 shipments and movement unescorted access to any radioactive the background investigation may not be materials or other property subject to control personnel for category 1 identical to those required under 10 shipments, must undergo fingerprinting regulation by the Commission. Rather, CFR part 37, the NRC believes that the the rule makes clear that a licensee may and an FBI criminal history records potential risk that a commercial driver check as required by 10 CFR 73.21. permit unescorted access to certain or package handler might pose due to categories of individuals otherwise 21. Who would be relieved from the any difference in the background qualified for access without performing background investigation requirements? investigation is acceptably small. a background investigation. Licensees Many of the individuals that are still need to decide whether to grant or Under section 149.b. of the AEA, the relieved from the background deny an individual unescorted access NRC may, by rule, relieve individuals investigation requirements are independently of this provision. Any from the fingerprinting, identification, considered trustworthy and reliable by and criminal history records check virtue of their occupational status and required training needs to be conducted requirements if it finds that such action have either already undergone a before allowing unescorted access. is ‘‘consistent with its obligations to background investigation as a condition C. Physical Protection During Use promote the common defense and of their employment, or are subject to security and to protect the health and direct oversight by government 1. Who is affected by the requirements? safety of the public.’’ The NRC issued a authorities in their day-to-day job Any licensee that possesses an final rule, 10 CFR 73.61, relieving functions. aggregated category 1 or category 2 certain individuals who are permitted Certain persons, as part of the duties quantity of radioactive material is unescorted access to radioactive of their specific occupation, may be required to establish, implement, and materials from the fingerprinting, separately or previously subject to maintain a security program meeting the identification, and criminal history background investigations, either as a requirements of 10 CFR part 37 of records checks required by section result of NRC requirements (such as subpart C. (The NRC considers material 149.a. of the AEA (72 FR 4945; February under other requirements for access to to be ‘‘aggregated’’ if an adversary could 2, 2007). The individuals relieved from SGI or SGI–M) or as a result of gain access to a category 2 or greater fingerprinting, identification, and requirements of other agencies. These quantity by breaching a single physical criminal history records checks under persons are not subject to separate barrier.) In addition, any applicant for a that rule include Federal, State, and background investigation requirements license or license amendment to possess local officials involved in security under this final rule; individuals who category 1 or category 2 quantities of planning; Agreement State employees have undergone a background radioactive material at a facility is

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required to establish a security program 4. Is a licensee required to have security any effort to steal or divert category 1 or before obtaining the radioactive procedures? category 2 quantities of radioactive material, if it will be aggregating the Yes, licensees are required to develop material. Adequate training is material at or above the category 2 and maintain written implementing indispensable for an appropriate threshold. procedures that document how the licensee response to an unauthorized intrusion. 2. What is the objective of the security security requirements and the security program and what are the key security plan will be met. These procedures 6. Are licensees required to protect must be designed to meet the program requirements? information concerning their security individualized security needs of each program? The final rule requires affected location where an aggregated category 1 Yes. To prevent unauthorized licensees to establish, implement, and or category 2 quantity of radioactive disclosure, licensees are required to maintain a security program. The material is used or stored. Procedures limit access to their security plans, objective of the security program is to need to be approved, in writing, by the implementing procedures, and the list monitor, and without delay detect, individual with overall responsibility of individuals that have unescorted assess, and respond to any actual or for the security program. Licensees are access to the material. These efforts attempted unauthorized access to required to keep a copy of the current include measures to allow access to procedures as a record for 3 years. category 1 or category 2 quantities of these documents only to those Superseded portions of the procedures radioactive materials. A licensee’s individuals who have a need to know are retained for 3 years. Licensees security program needs to include a the information to perform their duties should not submit procedures to the and have been determined to be written security plan, implementing NRC as part of the license application. procedures, training, use of security trustworthy and reliable based on the zones, protection of information, 5. What training is required? background investigation requirements coordination with the LLEA, testing and set forth in 10 CFR 37.25(a)(2) through As part of its physical protection (a)(7). Licensees are required to store maintenance of security-related program, each licensee is required to security information in a manner to equipment, security measures, and a conduct training on the security plan to prevent unauthorized removal, such as program review. Each of these areas is ensure that those individuals storage in a locked office or desk discussed in more detail in the responsible for implementation of the drawer. following questions and answers. plan possess and maintain the To ensure that only trustworthy and knowledge, skills, and abilities to carry reliable individuals with a need to know 3. What should a licensee’s security out their assigned duties and plan address? are allowed access to security plans and responsibilities effectively. The extent procedures, licensees need to develop, The purpose of a security plan is to of the training needs to be implement, and maintain written establish, in writing, the licensee’s commensurate with the individual’s policies and procedures to control potential involvement in the security of overall security strategy to ensure that access to their security plan and category 1 or category 2 quantities of all of the required security measures security procedures. The licensee’s radioactive material. Individuals need to work effectively and in an integrated information protection policies and be instructed in the licensee’s security procedures need to ensure the proper way for all facilities and operations program and implementing procedures, where aggregated quantities of category handling and protection of security their responsibilities, and the plans and implementing procedures 1 or category 2 quantities of radioactive appropriate response to alarms. material will be used or stored. The plan against unauthorized disclosure. Licensees with dedicated security staff Licensees are required to retain copies should, among other things, include a are encouraged to train their security description of the measures and of the policies and procedures. personnel in the timely notification of Licensees that have SGI or SGI–M strategies to implement the security affected LLEAs during emergencies. would remain subject to the more requirements and identify the security An individual subject to the training stringent information protection resources being used to meet the requirements of 10 CFR 37.43(c) needs requirements of 10 CFR 73.21, including requirements. to complete the training before being fingerprinting and an FBI criminal A licensee can revise its security plan allowed unescorted access to category 1 records check. to address changing circumstances. Any or category 2 quantities of radioactive 7. What is the purpose of a security changes to the security plan, as well as material. The licensee needs to provide zone? the original plan, must be approved by refresher training annually or when the individual with overall significant changes have been made to A security zone is any area responsibility for the security program. the security program. The refresher established by a licensee to provide The security plan must be retained for training addresses any significant physical protection for category 1 or 3 years after it is no longer needed. The changes; reports on relevant security category 2 quantities of radioactive licensee must retain any superseded issues, problems, or lessons learned; material. All category 1 and category 2 portions of the security plan for 3 years. relevant results from NRC inspections; quantities of radioactive material need and relevant results from the licensee’s to be used and stored within a security Security plans are important for the program review and the testing and zone. implementation of a performance-based maintenance program. Training records The purpose of security zones is to regulation. An adequate plan requires a must be maintained for 3 years and need isolate and control access to the material licensee to analyze the particular to include training topics, training to protect it more effectively and deter security needs of its individual facilities dates, and the list of personnel that theft or diversion by providing, among and to explain how it will implement its attended the training. other things, more time for licensees chosen security measures to ensure that Training is essential if the licensee is and LLEAs to respond. Isolation they work together to meet the to be adequately prepared for an measures protect category 1 or category applicable performance objectives. effective and coordinated response to 2 quantities of radioactive material by

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allowing access to security zones only themselves to generically defined A licensee also needs the capability to through established access control physical areas, the security zone detect unauthorized removal of the points. Access control measures allow concept permits significant flexibility radioactive material. For category 1 only approved individuals to have for licensees to account for a range of quantities of radioactive material, a unescorted access to the security zone, site-specific concerns. It also provides licensee needs to immediately detect and ensure that other individuals with regulators with a well-defined and any attempted unauthorized removal a need for access are escorted by enforceable requirement keyed to through the use of electronic sensors approved individuals. A security zone performance objectives of isolation and linked to an alarm or continuous visual effectively defines where the licensee access control. surveillance. For category 2 quantities of will apply these isolation and access radioactive material, a licensee needs to control measures. 8. When are special additional measures verify the presence of the radioactive To limit unescorted access to only for category 1 quantities of radioactive material through weekly physical approved individuals, licensees could material required? checks, tamper indicating devices, isolate the radioactive materials using One provision of the final rule applies actual usage of the material, or other continuous physical barriers that allow to category 1 quantities of radioactive means. access to the security zone only through material during periods of maintenance, 10. What are the requirements for established access control points; or source receipt, preparation for licensees could exercise direct control personnel communications and data shipment, installation, or source transmission? of the security zone by approved removal or exchange. Licensees are individuals at all times. required to provide, at a minimum, an Licensees are required to maintain Security zones may be permanent or approved individual to maintain continuous capability for personnel temporary. Temporary security zones continuous surveillance of sources in communication and electronic data need to be established to meet transitory temporary security zones and in any transmission and processing among site or intermittent operating requirements security zone in which physical barriers security systems for any personnel and automated or electronic systems used to such as periods of maintenance, source or intrusion detection systems have support the site security systems. delivery, and source replacement. A been disabled to allow the specified Licensees are required to have licensee could meet the requirements activities. for a security zone at some temporary alternative capability for any system in job sites (such as those involving onsite Due to the natural decay of their the event of loss of the primary means operations lasting less than a day) radioactivity, sources lose their of communication or data transmission simply by keeping the area under effectiveness as they get older and have and processing. The alternative means ‘‘direct supervision’’ by authorized to be replaced or replenished cannot be subject to the same failure personnel. Similarly, when work is periodically with new sources to mode as the primary systems. being done inside a temporary zone, a maintain a device’s expected 11. What does a licensee need to do licensee could meet the requirements performance. Tamper-indicating devices when it detects an intrusion into its for controlling unescorted access by and other intrusion detection equipment security zone? having the material, persons, and area typically must be disabled to permit the within the zone under direct control of device to be opened without tripping A licensee’s response to an intrusion approved individuals at all times. alarms. The new sources are typically depends on the licensee’s assessment of Because the purpose of security zones shipped by an offsite supplier, who also the purpose of the intrusion, but a is different from the radiation safety often performs removal and exchange or response is required without delay. If purposes of the restricted areas and reinstallation. After replacement, the the unauthorized access appeared to the controlled areas defined in 10 CFR part removed older sources must be prepared licensee to be an actual or attempted 20, the security zone does not have to onsite for shipment back to the theft, sabotage, or diversion of category be the same as either of these areas. manufacturer or for storage and eventual 1 or category 2 quantities of radioactive Because measures to control access are disposal. These non-routine operations material, the licensee needs to required for both radiation protection by non-licensee employees at the immediately notify and request an and security, however, a licensee does licensee’s site, during a time when armed response from the appropriate have the flexibility to use an area devices for detecting theft or diversion LLEA. An immediate response by the required for radiation protection are disabled, call for additional licensee permits a more timely response purposes to fulfill the required measures to compensate for the from law enforcement, thereby, functions of a security zone. Thus, for temporary increase in vulnerability. reducing the risk that the material could a temporary well-logging operation 9. What is required to monitor and be used for malevolent purposes. within which the licensee is required by detect an unauthorized entry into a Immediate notification also allows for 10 CFR 39.71 to have a ‘‘restricted area’’ security zone? early warning to other possible targets of to ‘‘maintain direct surveillance * * * a simultaneous attempt to divert to prevent unauthorized entry into a A licensee is required to establish and material from multiple locations. restricted area,’’ a licensee could define maintain the capability to continuously A licensee’s decision to call the LLEA a security zone with the same monitor and detect all unauthorized and the NRC depends not only on the boundaries as this ‘‘restricted area.’’ entries into its security zone(s). licensee’s assessment of the intent of the Similarly, a radiographer could choose Monitoring and detection are performed unauthorized access but also on to define a security zone with the same by either a monitored intrusion whether the area where the breach boundaries as the ‘‘high radiation area’’ detection system that is linked to an occurred is an area the licensee had over which radiography licensees are onsite or offsite central monitoring previously determined needed to be required by 10 CFR 34.51 to ‘‘maintain facility; electronic devices for intrusion monitored in order to meet the NRC’s direct visual surveillance * * * to detection alarms that would alert nearby physical protection requirements. Thus, protect against unauthorized entry.’’ facility personnel; monitoring by a a licensee’s assessment and response to Because materials licensee sites are video surveillance system; or direct an intrusion alarm in the business office differently configured and do not lend visual surveillance by individuals. section of its facility could be entirely

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different from its assessment and strategy that is consistent in scope and 16. What are the special requirements response to an intrusion alarm in a timing with realistic potential for mobile sources? radioactive materials storage area. vulnerabilities of the subject radioactive The rule requires licensees using 12. Can a licensee use automated material should be coordinated well in mobile devices containing a category 1 devices to assess an intrusion and alert advance with the LLEA. Another or category 2 quantity of radioactive an LLEA? purpose of coordination is to provide material to have two independent the responsible LLEA with an physical controls that form tangible Depending on the security system, the understanding of the potential layout of controlled areas, and the barriers to prevent unauthorized consequences associated with design capabilities of the sensors, removal of the device. For devices in or unauthorized use of the radioactive automated devices or systems may be on a vehicle or trailer, a licensee is programmed to automatically summon material of concern, so that the LLEA required to use a method to disable the LLEA assistance in response to an can determine the appropriate priority vehicle or trailer when it is not under intrusion alarm. of its response. The LLEA response is direct control and constant surveillance needed not only to interdict and disrupt by the licensee. Licensees are not 13. What coordination is required with an attempted theft or sabotage onsite, allowed to rely on the removal of an LLEA? but also possibly for offsite coordination ignition key to meet this requirement. Licensees are required to coordinate, to protect public health and safety and The rule does allow for the situation to the extent practicable, with the LLEA to mitigate the potential consequences where a site’s health and safety to discuss the LLEA response to threats of unauthorized use of the radioactive procedures prohibit the disabling of the to the licensee’s use of Category 1 or 2 material. ignition. In those instances, the licensee quantities of radioactive material. An would not be required to disable the LLEA is defined as a public or private 14. What if the LLEA declines to ignition. These provisions are in organization that has been approved by coordinate with a licensee? addition to the other requirements in subpart C. a Federal, State, or local government to The NRC recognizes that it cannot Mobile devices, particularly portable carry firearms and make arrests, and is exercise authority over LLEAs, or any ones, are likely to be more vulnerable to authorized and has the capability to party over which a licensee has no provide an armed response in the attempted theft or diversion because an control and the NRC has no legal jurisdiction where the licensed category adversary could more easily remove jurisdiction. The NRC also recognizes 1 or category 2 quantity of radioactive these devices before the licensee or that an LLEA may have good reasons for material is used, stored, or transported. LLEA has an opportunity to respond. In the event of an actual or attempted not engaging in coordination activities. The objective of this requirement is to theft, sabotage, or diversion of An LLEA’s refusal to coordinate with delay intruders long enough for a timely radioactive material, an armed response a licensee does not by itself render a licensee and LLEA response. is likely to be necessary. Adversaries licensee’s security plan inadequate. The A mobile device is defined in the rule could be well armed, and the small NRC recognizes that in an actual as a piece of equipment containing unarmed or lightly-armed private emergency, State and local government licensed radioactive material that is security guard service typically used at officials will respond to protect the either: (1) Mounted on wheels or casters byproduct material licensee sites would health and safety of the public. A or otherwise equipped for moving not be an adequate substitute for an licensee is required under 10 CFR without a need for disassembly or LLEA. However, the LLEA need not be 37.45(a)(2) to notify the appropriate dismounting, or (2) designed to be hand a municipal or county police force. If a NRC regional office within 3 business carried. Mobile devices do not include hospital or university campus police days if the LLEA has not responded to stationary equipment installed in a fixed force is the nearest law enforcement a request for coordination within 60 location, such as an irradiator, but the agency to the licensee’s operation days of the coordination request, or if definition includes radiography capable of providing an armed response the LLEA notifies the licensee that the cameras, source changers, well logging and making arrests, that police force LLEA does not plan to participate in equipment, and gauges or controllers. would meet the definition of an LLEA. coordination activities. The notification The definition could also include Coordination activities include allows the NRC to contact the LLEA storage containers, lead pigs for holding providing a description of the facility, directly to ensure that the LLEA sources during a source exchange, and radioactive materials, and security understands the importance of adequate onsite or offsite transportation packages, measures and notification that the coordination. In some cases, the NRC if they contained category 1 or category licensee will request a timely and armed might contact the Department of 2 quantities of radioactive material. response to any actual or attempted Homeland Security (DHS) and request 17. What maintenance and testing theft, sabotage, or diversion of the DHS assistance with the LLEA. If the requirements apply to the security licensee’s radioactive materials. The LLEA refuses to coordinate beforehand, systems? licensee is required to document its the licensee could still comply by coordination efforts. The documentation Consistent with 10 CFR 37.51, making and documenting periodic good- could include such items as the dates, licensees are required to test intrusion faith efforts to elicit the LLEA’s times, and locations of meetings or alarms, physical barriers, and other participation in planning for a timely phone calls and a list of licensee and systems used for securing and and effective response. LLEA staff present at the meetings. monitoring access to radioactive Licensees are required to coordinate 15. What are the LLEA notification material, and these items need to be with the LLEA at least every 12 months. requirements for work at a temporary maintained in operable condition. Each Coordination with an LLEA is job site? intrusion alarm and associated essential in developing an effective and communication system subject to the efficient physical protection program. The final rule does not require any rule’s requirements for monitoring, Because certain situations may notification of or coordination with the detection, and assessment needs to be necessitate an armed response, a LLEA for work at temporary jobsites. inspected and tested for performance.

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The licensee only needs to test the shipped to medical institutions, the same organization do not need to equipment that it relies on to meet the companies that support medical and verify the validity of the license (i.e., for requirements of 10 CFR part 37. This academic institutions, and companies companies that have licenses in several would include any backup equipment that manufacture and distribute States). The licensee should know if its or systems relied upon in the event of radioactive material for various licenses are valid. For transfers of a primary system failure. If the licensee industrial applications. As radioactive category 1 quantities of radioactive has additional equipment or systems sources get older, radioactive decay material, the transferring licensee is also that are not relied on to meet the rule decreases the sources’ strength and the required to verify that the licensee is requirements, the extra equipment and sources lose their effectiveness and have authorized to receive radioactive systems would not need to be tested and to be replaced or replenished with new material at the address requested for maintained. sources. The older sources must be delivery. These verifications are The frequency for testing is based on transported for disposal or back to the conducted with the license issuing the manufacturer’s suggested timing. If manufacturer. authority, i.e., the NRC or the the manufacturer does not suggest a appropriate Agreement State, or by 3. What are the new transportation frequency, the licensee must conduct using the license verification system. security requirements? the maintenance and testing at least The license verification system is a new annually. Licensees are required to In general, the final rule includes web-based system that NRC is maintain records of the maintenance requirements for pretransfer checks, developing that may be used to verify and testing activities for 3 years. preplanning and coordination of the validity of a license issued by either shipments, advance notification of NRC or an Agreement State. The license 18. What events does a licensee need to shipments, control, monitoring, and report to the NRC? verification system is currently communications during shipments, scheduled to be operational by the A licensee is required to report any procedures, investigations of missing effective date of the final rule. If it actual or attempted theft, sabotage, or shipments, and reporting of missing appears that the system will not be diversion of a category 1 or category 2 material. Each of these areas is available in time to support the rule, the quantity of radioactive material as soon discussed in more detail in the NRC will change the compliance date of as possible after initiating a response, following questions and answers. this provision. Licensees should contact which includes notification of the These requirements apply to ground the appropriate NRC regional office to LLEA. The licensee is required to transport of category 1 or category 2 verify the validity of NRC licensees. submit a written report to the NRC quantities of radioactive material Information on Agreement State within 30 days after the initial shipped in a single package or in contacts is provided on the NRC’s Web notification. A licensee is also required multiple packages in a single page at http://nrc-stp.ornl.gov/ to assess any suspicious activity related conveyance. The category 1 asdirectory.html. If the license to possible theft, sabotage, or diversion requirements also apply to shipments of verification system is non-functional of category 1 or category 2 quantities of irradiated reactor fuel weighing 100 g and the licensee cannot reach the radioactive material and notify the (0.22 lb) or less in net weight of license issuing authority, the rule does LLEA as appropriate. If the licensee irradiated fuel, exclusive of cladding or have a provision that allows the licensee notifies the LLEA, it must also notify the other structural or packaging material, to obtain certification from the NRC. The written 30-day report is not which has a total external radiation does requesting licensee. Licensees are required for suspicious activity reports. rate in excess of 1 Gray (100 rad) per required to document any method of hour at a distance of 1 m (3.3 ft) from 19. How does a licensee determine the verification, except for use of the license effectiveness of the security program? any accessible surface without verification system. Licensees exporting intervening shielding. Note that a material need to meet the requirements Licensees are required to review the licensee is not responsible for in 10 CFR part 110 for checking the security program annually to confirm complying with these requirements documentation that the recipient has the compliance with the requirements. The when a carrier aggregates radioactive necessary authorization under the laws review is to evaluate the security material, during transport or storage and regulations of the importing program content and implementation. incidental to transport, for two or more country. These actions are intended to The licensee is required to document conveyances from separate licensees mitigate the risk that the material could any review findings and corrective that individually do not exceed the be shipped to an unauthorized actions, and the records need to be limits. The shipping licensee is recipient. maintained for 3 years. responsible for meeting the 5. Is preplanning and coordination of D. Transportation Security requirements unless the receiving licensee agrees in writing to arrange for the shipments necessary? 1. What is the NRC authority to issue the in-transit physical protection, Yes, 10 CFR 37.75(a) requires these transportation security including preplanning and coordination preplanning and coordination of requirements? activities. shipment information for shipments of Sections 53, 81, and 161 of the AEA, category 1 quantities of radioactive 4. Is verification of the transferee’s as amended, provide the NRC with the material. The shipping licensee license necessary? statutory authority to issue these (licensee sending the licensed material) transportation security requirements. Yes, 10 CFR 37.71 requires any is required to coordinate the departure The NRC shares jurisdiction over the licensee transferring category 1 or and arrival times with the receiving transport of radioactive material category 2 quantities of radioactive licensee (licensee receiving the licensed traveling over public roadways and by material to a licensee of the NRC or an material). This coordination reduces the rail with DOT and DHS. Agreement State to verify that the risk that theft or diversion of the transferee’s license authorizes the material would go unnoticed or 2. Why is this material being shipped? receipt of the type, form, and quantity unreported. The licensee also needs to In general, category 1 and category 2 of radioactive material to be transferred. preplan and coordinate the shipment quantities of radioactive material are Licensees that transfer material within information with the State(s) through

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which the shipment will pass. As part 7. Is the shipping licensee required to transported. The State notification is of the coordination activities, the notify the receiving licensee if the no- made to the governor or the governor’s licensee is required to discuss the later-than arrival time changes? designee. The NRC shares the State’s intention to provide law Yes. If the no-later-than arrival time information with some of its Federal enforcement escorts for the shipments will not be met, the shipping licensee partners. and identify safe havens. Under the must inform the receiving licensee of Advance notification provides States rule, safe havens are sites at which the new no-later-than arrival time for and the NRC with knowledge of security is present or from which the shipments of category 2 quantities of shipments so that in the event there is transport crew can notify and wait for radioactive material. This provision an increase in the risk of theft or the local law enforcement authorities in allows licensees the ability to modify diversion of the material, the regulator the event of an emergency. The licensee departure and arrival times due to could delay or reroute the shipment to is responsible for identification of the unforeseen events. minimize the risk. This advance safe havens. The purpose of the notification also allows States with information sharing is to ensure 8. Whom does the licensee notify when escort requirements to engage in minimal delay of the shipment. the shipment arrives? planning to support the shipment. For shipments of category 2 quantities The receiving licensee is required to Advance notifications are not of radioactive material, 10 CFR 37.75(b) notify the shipping licensee when the required for shipments of category 2 requires that the shipping licensee shipment of a category 2 quantity of quantities of radioactive material, unless verify the shipment no-later-than arrival radioactive material arrives at its the shipment falls within the scope of time and the expected arrival time with destination. This requirement ensures 10 CFR 71.97(b). the receiving licensee. positive communication between the 11. What information should be The definitions section of the final shipper and recipient. Additionally, this included in an advance notification? rule defines the term ‘‘no-later-than requirement ensures that the shipper does not unnecessarily start an The final rule requires that the arrival time’’ as the date and time that following information be included in an the shipping licensee and receiving investigation because they are not sure that the shipment has arrived. The advance notification for a category 1 licensee have established as the time at shipment of radioactive material, if which an investigation will be initiated receiving licensee must notify the shipping licensee if the shipment has available at the time of notification: (1) if the shipment has not arrived at the The name, address, and telephone receiving facility. The no-later-than- not arrived by the no-later-than arrival time. This notification is the trigger to number of the shipper, carrier, and arrival time may not be more than 6 receiver of the shipment; (2) the license hours after the estimated arrival time for initiate an investigation into where the package is located. number of the shipper and receiver; (3) category 2 shipments. Verifying that the a description of the radioactive material shipment arrives on time provides the 9. What does the term state mean in the contained in the shipment, including licensee with the means to identify and requirements? the radionuclides and quantity; (4) the immediately report an unusual As used in the definitions section of point of origin of the shipment and the occurrence that could lead to the theft the final rule, the term ‘‘State’’ means estimated time and date that shipment or diversion of the material. the 50 States, the District of Columbia, will commence; (5) the estimated time 6. What does the NRC consider to be a the Commonwealth of Puerto Rico, the and date that the shipment is expected safe haven? Virgin Islands, Guam, American Samoa, to enter each State along the route; (6) and the Commonwealth of the Northern the estimated time and date of arrival of A safe haven is a readily recognizable Mariana Islands. A list of the contact the shipment at the destination; and (7) and readily accessible site at which information for the governor’s designees the contact and telephone number for security is present or from which, in the is published annually in the Federal the point of contact. For the purpose of event of an emergency, the transport Register, most recently on October 31, coordination only, the actual crew can notify and wait for the LLEA. 2011 (76 FR 67229). An updated list is information in the advance notification The NRC expects safe havens to be posted on the NRC’s Web site at http:// would not be considered to be SGI–M. identified and designated by the nrc-stp.ornl.gov/special/designee.pdf. Any information that is not available at licensee. Copies may also be obtained by the time of the initial notification would Licensees should use the following contacting the Director, Division of be provided in a revised notification criteria in identifying safe havens for Intergovernmental Liaison and once the information becomes available. shipments: Close proximity to the route, Rulemaking, Office of Federal and State i.e., readily available to the transport Materials and Environmental 12. What should a licensee do if the vehicle; security from local, State, or Management Programs, U.S. Nuclear shipment schedule is revised or the Federal assets is present or is accessible Regulatory Commission, Washington, shipment cancelled? for timely response; the site is well lit, DC 20555–0001. The NRC will work If the category 1 shipment schedule is has adequate parking, and can be used with the States to include a separate revised or cancelled, the final rule for emergency repair or to wait for LLEA column. requires the shipping licensee to notify response on a 24-hour a day basis; and the appropriate States and the NRC. additional telephone facilities are 10. What advance notifications are available should the communications required? 13. What should a licensee do if the system of the transport vehicle not The final rule requires advance shipment does not arrive by the no- function properly. Possible safe haven written notifications for shipments later-than arrival time? sites include: Federal sites having containing category 1 quantities of The final rule requires a licensee that significant security assets; secure radioactive material. The advance has shipped category 2 quantities of company terminals; State weigh notifications are made to the NRC (or radioactive material to initiate an stations; truck stops with secure areas; Agreement State which then would investigation for any shipment that has and LLEA sites, including State police notify the NRC) and to any State not arrived at the receiving licensee’s barracks. through which a shipment is being facility by the designated no-later-than

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arrival time. The no-later-than arrival 16. What is a licensee required to do if 19. What are the physical protection time is defined as the date and time that there is an attempt to steal or divert a requirements for road shipments of the shipping licensee and receiving shipment? category 1 quantities of radioactive licensee have established as the time at material? For shipments of category 1 quantities which an investigation will be initiated The final rule requires that any of radioactive material, a licensee who if the shipment has not arrived at the licensee that ships category 1 quantities discovers an actual or attempted theft or receiving facility. The no-later-than- of radioactive material by road either arrival time may not be longer than 6 diversion of a shipment, or any establish or use a carrier that has hours after the estimated arrival time for suspicious activity related to a established, movement control centers a shipment of category 2 quantities of shipment, is required to notify the that maintain position information from radioactive material. A no-later-than designated LLEA along the shipment a location remote from the activity of arrival time was not included for route as soon as possible. After notifying the transport vehicle or trailer. The category 1 shipments as the licensee is the LLEA, the licensee is required to control centers are required to monitor required to maintain continuous notify the NRC’s Operations Center. The shipments on a continuous and active position monitoring and detect any NRC’s Operations Center will notify monitoring basis (24 hours a day, 7 days unauthorized access to or removal of the other affected States and the agency’s a week), and have the ability to material immediately. This would Federal partners. For shipments of communicate immediately, in an enable the shipping licensee of a category 2 quantities of radioactive emergency, with the appropriate law category 1 shipment to know right away material, a licensee who discovers an enforcement agencies. if the shipment was late or experiencing actual or attempted theft or diversion of The final rule requires that the problems. a shipment, or any suspicious activity licensee ensure that redundant 14. When must a licensee make related to a shipment, is required to communications are in place that would notification that a shipment is lost or notify the NRC’s Operations Center as allow the transport to contact an escort missing? soon as possible. These security vehicle (if used) and the movement measures enhance the likelihood that control center at all times. The When a licensee determines that a redundant communication must not be shipment of a category 1 quantity of the material will be successfully protected or recovered and allows for subject to the same interference factors radioactive material is lost or missing, as the primary communication method. the rule requires the licensee to notify early warning of other possible victims of a simultaneous attempt to divert The same interference factors mean any the LLEA in the area of the shipment’s two systems that rely on the same material from multiple locations. last confirmed location within 1 hour hardware or software to transmit their and then to notify the NRC’s Operations 17. What types of procedures are signal (e.g., cell tower or proprietary Center. Notification to the NRC should necessary for shipping category 1 network). be as prompt as possible, but not at the quantities of radioactive material? Redundant communications provide expense of causing delay or interference drivers with the means to immediately with the LLEA response to the event. Licensees shipping category 1 report an unusual occurrence that could When a licensee determines that a quantities of radioactive material by lead to the theft or diversion of the shipment of category 2 quantities of road are required to ensure that normal material. Early notification would radioactive material is lost or missing, and contingency procedures are permit a more timely response from law the rule requires the licensee to notify developed to cover notifications; enforcement, thereby, reducing the risk the NRC’s Operations Center within 4 communication protocols; loss of of the misuse of the material. hours of such determination. The communication; and response to an The final rule also requires that the licensee is also required to immediately actual or attempted theft or diversion of licensee ensure that category 1 notify the NRC’s Operations Center if, a shipment, or any suspicious activity shipments are continuously and actively after 24 hours from its determination related to a shipment. The licensees are monitored by a telemetric position that the shipment was lost or missing, required to ensure that drivers, monitoring system or an alternative the location of the material still cannot tracking system reporting to a be determined. accompanying personnel, railroad personnel, and movement control center movement control center. The Early notification provides for a more movement control center is required to personnel have access to the normal and timely response from law enforcement, provide positive confirmation of the contingency procedures. Procedures thereby reducing the risk of the misuse location, status, and control over the provide reasonable assurance that these of the material. shipment and be prepared to implement individuals are prepared for most 15. Should licensees make notification preplanned procedures in response to situations and are able to act without deviations from the authorized route or that a lost or missing shipment has been delay to prevent the theft or diversion found? to a notification of actual or attempted of shipments. theft or diversion or suspicious Yes, 10 CFR 37.81(e) and (f), for 18. What should be included in the activities related to the theft, loss, or category 1 shipments and category 2 communication protocols? diversion of a shipment. These shipments, respectively, require the procedures include the identification of, licensee to notify the NRC’s Operations The final rule requires that the and contact information for, the Center when a lost or missing shipment communication protocols include a appropriate LLEA along the shipment has been located. This notification is strategy for the use of authentication route. considered an update on the initial and duress codes and provisions for A telemetric position monitoring notification. refueling or other stops, detours, and system is a data transfer system that Without this notification, regulatory locations where communication is captures information by instrumentation authorities and LLEA may waste expected to be temporarily lost. and/or measuring devices about the resources continuing any search for the location and status of a transport vehicle material. or package between the departure and

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destination locations. The gathering of 22. What are the physical protection 25. What are the requirements for small this information permits remote requirements for shipments of category quantities or irradiated reactor fuel? monitoring and reporting of the location 2 quantities of radioactive material? The final rule adds a new § 73.35 to of a transport vehicle or package. GPS The final rule requires that a licensee 10 CFR part 73, which provides that the and radiofrequency identification shipping category 2 quantities of requirements for shipments of irradiated (RFID) are examples of telemetric radioactive material by road maintain reactor fuel weighing 100 g (0.22 lb) or position monitoring systems. constant control and/or surveillance less in net weight of irradiated fuel, If the driving time period is greater during transit and have the capability exclusive of cladding or other structural than the maximum number of allowable for immediate communication to or packaging material, which has a total hours of service in a 24-hour duty day summon appropriate response or external radiation dose rate in excess of as established by the DOT Federal assistance. In the case of the licensee 1 Gray (100 rad) per hour at a distance Motor Carrier Safety Administration, the using a common carrier, the final rule of 1 m (3.3 ft) from any accessible final rule requires that the licensee requires that licensees use a carrier that surface without intervening shielding. ensure that an accompanying individual has an established package tracking The requirements are the same as the is provided for the entire shipment. The system. An established package tracking requirements for shipments of category system means a documented, proven, 1 quantities of radioactive material. accompanying individual may be and reliable system routinely used to another driver. This security measure 26. What means of transportation are transport objects of value. The package provides reasonable assurance that the not addressed in this rule? tracking system must allow the shipper material will be protected from theft or or transporter to identify when and The rule does not address air or water diversion when it is stationary, as well where the package was last and when it transport. Transport of radioactive as in emergency situations where it should arrive at the next point of material within airports and by air is becomes necessary for the driver to stop control. The licensee is required to use regulated by the Federal Aviation or leave the vehicle. a carrier that maintains constant control Administration. Transport of radioactive 20. Is GPS required? and surveillance during transit and has material within ports and by waterway the capability for immediate is regulated by the U.S. Coast Guard. No, GPS is not required. For category communication to summon appropriate The rule also does not address 1 material, the NRC requires continuous response or assistance. The carrier must transshipments of category 1 or category and active monitoring for shipments. also require an authorized signature 2 quantities of radioactive material Continuous and active monitoring prior to releasing the package for through the United States. means that at any time while the delivery or return. Transshipments are shipments that are shipment is enroute, the licensee must In general, the licensee must be able originated by a foreign company in one be knowledgeable of the shipment’s to contact the shipping carrier and country, pass through the United States, whereabouts. Not specifying a particular determine the approximate location of and then continue on to a company in another country. Transshipments are technology provides licensees with the shipment. Package tracking systems, regulated by DOT and DHS. flexibility to design a continuous and such as common overnight delivery service with standard tracking, are Finally, this rulemaking does not active monitoring system that meets acceptable. These requirements mitigate address transport of spent fuel, except their unique circumstances. However, with reasonable assurance the risk of irradiated reactor fuel weighing 100 g GPS is considered an acceptable method loss, theft, or diversion of the material. (0.22 lb) or less in net weight of of continuous and active monitoring. irradiated fuel, exclusive of cladding or 23. How long do records related to a other structural or packaging material, 21. What are the physical protection shipment need to be maintained? requirements for rail shipments of which has a total external radiation dose category 1 quantities of radioactive Licensees are required to retain rate in excess of 1 Gray (100 rad) per material? records for 3 years. hour at a distance of 1 m (3.3 ft) from any accessible surface without 24. How is the public protected from intervening shielding. The final rule requires each licensee loss, theft, or diversion of these that ships category 1 quantities of shipments? III. Summary and Analysis of Public radioactive material by rail to ensure Comments on the Proposed Rule that rail shipments are monitored by a Regulating transport of radioactive telemetric position monitoring system material is a joint responsibility of the The proposed rule was published on or an alternative tracking system NRC and DOT. The quantities of June 15, 2010 (75 FR 33902), for a 120- reporting to a licensee, third party, or radioactive materials being considered day public comment period that ended as part of this rulemaking are on October 13, 2010. After receiving railroad communications center which transported in packages (casks) that several requests to extend the comment meets certain criteria. The meet rigorous NRC and DOT safety period, the NRC published an extension communications center needs to standards. The NRC fact sheet on notice on October 8, 2010 (75 FR provide positive confirmation of the transportation of radioactive materials 62330), that extended the public location of the shipment and its status. can be found at: http://www.nrc.gov/ comment period until January 18, 2011. Rail shipment tracking provides the reading-rm/doc-collections/fact-sheets/ The NRC received comments from 110 means for a communications center to transport-spenfuel-radiomats-bg.html. organizations and individuals. The immediately report an unusual The carrier transporting radioactive commenters on the proposed rule occurrence that could lead to the theft material must also meet DOT’s included States, licensees, industry or diversion of the material. Early requirements for shipment of the organizations, individuals, and a notification provides for a more timely radioactive material. A link to DOT’s Federal agency. response from LLEAs, thereby reducing Web site is provided on the NRC’s Web In general, there was a range of the risk of the misuse of the material. site at: http://www.nrc.gov/materials/ stakeholder views concerning the transportation.html. rulemaking, supporting some aspects of

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the rulemaking, others opposing some term bulk material aligns with DOT the time while they are in the security aspects of the rulemaking. Some terminology for bulk packaging. zone.’’ commenters described the new Response: The NRC agrees that the Response: The NRC agrees with the requirements as going beyond the order definition could be confusing and has comment in part. The NRC has removed requirements. It is important to note that revised the definition to make it clear the term ‘‘line-of-sight surveillance’’ the Commission never intended to just that radioactive material in any form from the definition and changed it to place the orders into the regulations to should be included. The definition is ‘‘direct continuous visual surveillance.’’ make them generically applicable. The not related to DOT. The intent was to The revised definition will provide Commission always intended to include all material, whether it was in greater flexibility for the licensee. The consider insights gained from the form of a source (sealed or unsealed) definition of escorted access was not implementation of the orders and any or was contained in a container of some intended to eliminate a licensee’s use of lessons learned during implementation. sort, such as feed material, that might be video surveillance. Video surveillance is In addition, the Commission considered used to create a source. appropriate in some, but not all cases. recommendations from the Independent Comment A3: One commenter noted For example, video surveillance of Review Panel and the Materials that the term ‘‘Aggregated’’ uses the patients during a treatment would be Working Group, as well as a petition term ‘‘sealed source’’ in its definition appropriate. filed by the State of Washington. and that ‘‘sealed source’’ should be Comment A5: One commenter The comments and responses have defined in 10 CFR part 37 as the use requested that the definition of license been grouped into five areas: General, lacks clarity and safety significance. The be revised as follows: ‘‘License, except access authorization program, security commenter stated that the definition for where otherwise specified, means a during use, transportation security, and sealed source should also be revised in license for byproduct material issued pursuant to the regulations in 10 CFR miscellaneous. To the extent possible, 10 CFR parts 30 and 70. The commenter parts 30 through 36 and 39 of this all of the comments on a particular provided a suggested definition for chapter or a permit issued by a master subject are grouped together. The ‘‘sealed source’’ as follows: ‘‘Sealed materials licensee.’’ Commission specifically requested source means any radioactive material input on eight subjects: (1) Response: The NRC disagrees that the contained to minimize the spread of definition for license should be revised. Fingerprinting of the reviewing official; contamination in accordance with the (2) background investigation elements; The definition used in 10 CFR part 37 presentation made in a Sealed Source is identical to the definition used in 10 (3) protection of information; (4) LLEA and Device Registry certificate issued by notification at temporary jobsites; (5) CFR part 30. No license will be issued the U.S. Nuclear Regulatory reporting requirements; (6) disabling under 10 CFR part 37. Commission, an Agreement State or the vehicle exemption; (7) license Comment A6: One commenter International Atomic Energy Agency.’’ verification; and (8) monitoring plans requested that the definition of license Response: The NRC disagrees with the for railroad classification yard. These issuing authority be revised to include eight subjects are addressed within the comment. The term ‘‘sealed source’’ has a master materials licensee (MML) as appropriate area grouping. A discussion been in the regulations for a long time the MML issues individual permits. of the comments and the NRC’s and the NRC is not aware of any issues Response: The NRC disagrees with the responses follow. that have arisen due to a lack of clarity comment. An MML is not equivalent to or safety significance. The term does not an Agreement State and does not issue A. General need to also be defined in 10 CFR part licenses. The MML does authorize Comment A1: One commenter stated 37 as it is defined in the parts under individual permits for specific that the definition for access control which a sealed source would be locations, but cannot authorize beyond should be expanded to include persons licensed. Changing the definition of what is specified on the MML license. with access to SGI, as such individuals sealed source in 10 CFR parts 30 and 70 Comment A7: Several commenters are subject to the requirements in is beyond the scope of this rulemaking. requested that the definition of LLEAs § 37.21(c). Comment A4: One commenter be revised by removing the requirement Response: The NRC disagrees with the requested that the definition of that the agency be a government entity comment. A licensee may include the ‘‘Escorted Access’’ be revised to delete and to broaden the definition to include SGI component in its access the term ‘‘line-of-sight’’ as it is too private security forces that possess the authorization program, but it is not prescriptive and creates compliance authority to carry firearms and make required to include SGI. The issues should someone ‘‘look away’’ or arrests. Commenters felt that the requirements for SGI are contained in 10 stand in an area of the security zone definition was confusing and was not CFR part 73, and the licensee can where the escorted individual’s view clear whether university police could be choose to use the same reviewing may be blocked by some object or considered an LLEA under the official and process or may use a equipment in the zone. The commenter definition. One of the commenters noted different reviewing official and process. noted that surveillance can also be that some university police departments If a licensee chooses to include SGI in accomplished by remote video serve as the LLEA and are a fully badged its access authorization program under monitoring. Two commenters suggested and sworn police force with the 10 CFR part 37, it will meet the that the term escorted access should be authority to make arrests and provide requirements of 10 CFR part 73. revised to allow for video surveillance. armed response. Some of the Comment A2: One commenter noted The commenters noted that, although commenters suggested revised rule that the definition for aggregated was the definition was a straightforward, language to clarify the definition. unclear. Another commenter suggested easy way to define escorting, certain Response: The NRC agrees with the including unsealed sources and bulk video surveillance systems provide commenters and has revised the material in this definition. Commenters improved security and should be definition of LLEA as follows: ‘‘Local recommended either clarifying allowed. The commenters suggested law enforcement agency (LLEA) means a ‘‘multiple sources of bulk material’’ or revising the definition as follows: public or private organization that has giving it its own definition. A ‘‘Escorted access means that the actions been approved by a federal, state, or commenter noted it was unclear if the of the individual are observed 100% of local government to carry firearms and

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make arrests, and is authorized and has reliability determination of an the State’s designated contact (usually the capability to provide an armed individual who has access to SGI–M. State police). response in the jurisdiction where the Response: The NRC disagrees with the Comment A12: One commenter (a licensed category 1 or category 2 comment. A licensee may use the same State) noted that the definition for quantity of radioactive material is used, reviewing official for trustworthiness temporary job site has a compatibility of stored, or transported.’’ and reliability determinations for both Level B, which requires identical Comment A8: Five commenters unescorted access and access to SGI. wording. The commenter noted that this suggested revising the definition of However, the licensee is not required to definition does not meet its definition ‘‘Lost or missing licensed material.’’ use the same reviewing official. which is much more restrictive in that Commenters indicated that the Determining access for SGI can be a it limits the amount of time radioactive definition contains subjective terms that separate program. material can be used at a temporary job make compliance with the reporting Comment A10: One commenter stated site. The commenter stated that there criteria difficult. Two commenters that the definition for ‘‘sabotage’’ should should not be two different definitions recommended removing ‘‘readily’’ from include a definition of ‘‘security for the same word listed in different the definition as it is too subjective and system’’ that is referenced in the parts of the regulations. Another could lead to inadvertent definition. commenter stated that the temporary job noncompliance. One commenter Response: The NRC disagrees with the site definition would be more comment. Security system does not recommended linking the definition for appropriate with a designation of C need to be defined in the definition of lost or missing licensed material with instead of B as it would allow States to Sabotage. The security system will be the no-later-than arrival time definition be more restrictive. different for each licensee as it is the and providing a specific criterion in Response: The NRC agrees with the system that a licensee uses to protect its regards to time to locate material in comment in part and disagrees in part. category 1 and category 2 quantities of transit. The commenter suggested the The NRC tries to use the same definition radioactive material. following definition: ‘‘Lost or missing for terms that are used in more than one Comment A11: Two commenters part of the regulations. However, there licensed material’’ means licensed suggested modifications to the are terms that have different meanings material whose location is unknown. It definition for safe haven. Another depending on the use. Temporary job includes material that has been shipped commenter noted that the provision site is defined in both 10 CFR part 34 but has not reached its destination and cannot be implemented. The commenter and part 39 with definitions that are whose whereabouts have not been noted that based on discussions with specific to the part. Since activities that traced in the transportation system military and other Federal institutions, are covered by both 10 CFR part 34 within 8 hours past the scheduled no- material shipments could not be (radiography) and part 39 (well logging) later-than arrival time.’’ The commenter diverted to them under any may also be subject to 10 CFR part 37 noted that compliance and enforcement circumstances. The commenter security provisions, the NRC extracted of the reporting criteria established in suggested that safe havens be contacted, the common elements of the definitions § 37.81 is difficult and that an 8-hour confirmed, and identified. The for use in 10 CFR part 37. However, the investigation period seems reasonable. commenter noted that the licensee and requirements related to temporary job Another commenter noted that it carrier are capable of determining safe sites have been removed from 10 CFR typically gives the carrier 24 hours to havens along the route and that past part 37, and the term is no longer trace within their transportation cycle, experience has shown that requesting a defined in the rule. before the package is declared as lost or State to identify safe havens has been Comment A13: Three commenters missing, and that anything less than the fruitless. Two commenters suggested suggested revising the definition of 24 hours does not allow sufficient time that the NRC work with the States to ‘‘Trustworthiness and reliability.’’ One for the carrier to do a complete identify potential safe havens and commenter stated that the definition is document and tracking search and/or a publish a list with the final rule. One vague and subjective and that use of physical search at potential locations. commenter noted that a licensee does subjective terms in the definition such The commenter noted that to declare the not need to work with the State to as ‘‘dependable’’ and ‘‘unreasonable’’ package as lost or missing before that identify safe havens. Two commenters makes it impossible to apply. The will result in many false positives, as noted that the term ‘‘safe haven’’ is commenter noted that a licensee cannot 99.99% of the time the package is loosely defined by various agencies and ensure that individuals are trustworthy located within the 24-hour window. States, and that States do not recognize, and reliable and as such do not Response: The NRC disagrees with the identify, or acknowledge that they have constitute an unreasonable risk to comment. The term ‘‘lost and missing such sites. Two commenters noted that public health and safety. The licensed material’’ has been in part 20 DOT removed the term from its commenter requested that concrete and for some time, and the definition in 10 regulations because it could not be nonsubjective criteria be provided. CFR part 37 is identical. It would be implemented. Another commenter requested that the confusing to have different definitions Response: The definition for safe definition be revised by adding ‘‘or as for the same term and concept in the haven has been retained in the final provided for in § 37.29’’ to the end of regulations and licensees would still rule. Licensees, not States, are the definition. One commenter stated need to meet the 10 CFR part 20 responsible for identifying safe havens. that the definition should be modified reporting requirements. A change to 10 Identification of safe havens has been in to include characteristics required by CFR part 20 is beyond the scope of this the regulations for spent fuel individuals having access to SGI–M. rulemaking. The NRC will provide transportation for a number of years and Response: The NRC disagrees with the additional information on the security- was included in the RAMQC Orders for comment. The NRC does not believe specific meaning of ‘‘lost or missing’’ in transport of category 1 shipments, so it that these terms make it impossible for the 10 CFR part 37 guidance document. is not a new concept. If a licensee is licensees to determine trustworthiness Comment A9: One commenter stated having trouble identifying safe havens and reliability. The concepts of that the definition for reviewing official along a route, it may discuss possible dependable and unreasonable were also should include a trustworthiness and locations with the NRC, State police, or contained in the orders. The

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determination is performance based and specifically mentioned anywhere in the signs, and smoke detectors, where the provides licensees the flexibility to regulations, and the NRC does not public can have a higher acceptable risk develop programs and criteria that they believe that there is a need to mention for the benefits which the materials are comfortable with. The definition in it in 10 CFR part 37 as licenses are not bring them. 10 CFR part 37 is consistent with the issued under 10 CFR part 37. Response: The NRC disagrees with the definition of the term in 10 CFR part 73. Comment A16: One commenter comment. The category 1 and category The NRC does not believe that it is suggested including a definition for 2 quantities of radioactive material necessary to add provisions that include security plan at least to the extent that possessed by a medical facility present access to SGI. Access to SGI is covered ‘security plan’ is meant to encompass a the same risk as category 1 and category by 10 CFR part 73. While a licensee may description of a licensee’s background 2 quantities of radioactive material use the same access authorization investigation process, access control possessed by other licensees. Almost program for determinations for access to program, and physical protection any user could argue that its use SGI, the licensee may have a separate measures with those specific features as benefits society in some manner. The program. identified elsewhere in the part. comparison to generally-licensed Comment A14: One commenter Response: The NRC disagrees with the sources is not applicable, as generally suggested maintaining the current comment and does not believe that a licensed sources contain less than interpretation for unescorted access that definition of security plan is necessary. category 2 quantities of radioactive an individual having unescorted access Section 37.43(a) contains the purpose of material and are considered safe for use to several less than category 2 quantity the security plan and specifies in without additional measures. sources which are secured behind their general terms what must be included in Comment A19: One commenter own physical barrier would not require the security plan. A definition would expressed concern that the source inclusion in the trustworthiness and not add further to the understanding. aggregation changes could cause reliability determination program. The Comment A17: One commenter additional medical facilities to come commenter noted that the rule defines suggested that a limited exemption be under the rule. The commenter was unescorted access to include provided to licensees who consistently opposed to the rule applying to any individuals who have access to meet the requirements imposed by the facilities beyond those under the orders. sufficient quantities of radioactive orders. The commenter noted that the Response: The application of the materials such that the individual could NRC could establish criteria for the source aggregation criteria has not successfully accumulate lesser assessment of licensee’s security changed from the orders. The concept of quantities of material into a category 1 programs and if the program was co-location and breaching of a common or category 2 quantity. The commenter deemed inadequate, corrective action physical barrier are still factors. While noted that this is a significant change could be initiated. the rule may apply to licensees that and would result in a big increase in the Response: The NRC disagrees with the were not subject to a particular order, number of individuals who will need comment. The NRC believes that the the licensee would only be subject to background checks completed or require requirements in 10 CFR part 37 are the requirements if it aggregates the very complex source handling necessary to ensure adequate protection material. Some licensees that have an procedures to prevent the ability to of category 1 and category 2 quantities aggregated category 1 quantity may have aggregate sources. One commenter of radioactive material. A licensee can only been subject to the Increased noted that the examples provided in the always ask for relief from a particular Control Orders and would now be Statements of Consideration did not measure and if the NRC agrees that subject to some additional requirements appear to apply to an individual with adequate basis exists and that it is under the rule that apply to all licensees access to multiple licensee facilities protective of public health and safety, it that possess a category 1 quantity of listed on the same license or multiple can grant the request. radioactive material. separate licenses by the same Comment A18: One commenter, while Comment A20: Several commenters organization. The commenter noted that supporting the decision to limit the rule expressed concern about the extension these persons could aggregate materials to category 1 and category 2 sources, of applicability for the proposed rule just as easily as if they were at a single noted that not all category 2 sources are beyond byproduct material licensees to location under one license, but the realistically in danger of being tampered power reactor, research and test reactor, security rules would not apply to them. with, particularly in large medical and fuel cycle licensees. Commenters One commenter stated that the NRC facilities with exhaustive security noted that extending the requirements should reevaluate the need to include controls in place. The commenter noted to large component or radioactive accumulation considerations for access that if a large medical facility’s security material storage facilities located on authorization control. measures are breached, sealed sources power reactor plant sites appears Response: The NRC has reevaluated in medical devices are generally not unwarranted. Commenters the requirement and has revised the readily accessible even by technicians recommended limiting the applicability definition for Unescorted access. All with highly specialized skills and tools. to exclude material that meet a criterion provisions of the rule now only apply to Two commenters suggested exempting for a specific activity, surface licensees that possess an aggregated medical and research facilities from all contaminated objects, bulk packages quantity of radioactive material that of the 10 CFR part 37 requirements with mass exceeding 100 pounds or equals or exceeds the category 2 except for the security program or limit aggregating material to a small threshold. The term aggregated contains security plan. The commenters noted number (fewer than 10) of discrete the concept of co-location and breach of that the public pays for and benefits sources, and areas where a large number a barrier. from medical and research use of these of packages containing low Comment A15: One commenter sources, and as such, should have a concentrations of radionuclides of requested that the NRC add a definition higher acceptable risk. The commenters interest are stored over a very large area, for master material license to 10 CFR noted that this is similar to the basic because they believe the risk is low and part 37. premise behind the patient release should not present a security concern. Response: The NRC disagrees with the criteria in 10 CFR part 35 (§ 35.75), Commenters recommended that an comment. Master material license is not generally licensed sources, tritium exit appropriate threshold be developed that

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exempts large volume or weight of a Commenters noted that the packaging States, in a single year, the annualized single item or of the aggregated quantity of the source is relevant to potential risk of premature death would be a such that exemption requests are not theft and diversion. Commenters small fraction of the 1E–6 probability necessary and the security provisions of indicated that a quantity of material frequently used in establishing 10 CFR part 37 would not apply. where the total activity exceeds a regulatory requirements. Commenters noted that such materials category 2 level but is dispersed in Response: The NRC disagrees with the are typically either of such large mass or contaminated metal and other material comment that the security provisions volume, or of such a diffuse within one or more large concrete and/ should not apply to category 2 sources. constitution, that they should be or steel containers presents a different The Commission has determined that considered low risk for any malevolent hazard than the same amount in a category 2 sources are risk significant purpose. Commenters noted that the relatively small unshielded source. and, therefore, warrant additional industry is concerned that casting a Commenters noted that large and heavy security measures. The NRC does not wide net will present a situation containers are difficult to move and regulate transshipments. whereby certain categories of facilities steal without detection and that the Comment A22: One commenter noted are regulated through exemptions. containers themselves are self- that the scope suggests that 10 CFR part One commenter suggested that NRC protecting from a sabotage point of 37 applies to any person who is should consider using dose rates at 1 view. The commenter noted that this is authorized to possess or use category 1 meter relative to the Appendix I important for licensees engaged in or category 2 quantities of radioactive definitions in IAEA TECDOC–1344 for decommissioning, processing, and material at any site or contiguous sites other than sealed sources as an shipping of bulk waste material. subject to the control by the licensee. alternative. The commenter noted that Commenters noted that the volume and The commenter pointed out that when the IAEA document acknowledges that mass required for a category 2 quantity radioactive material is used at the categorization system may not be of material renders theft an incredible temporary job sites, the licensee will be appropriate for waste management. The scenario and that damaging and in control of the quantities of commenter noted that tables in the dispersing a category 2 quantity of radioactive material, but may not document are based primarily on material such that deterministic effects necessarily be in control of the sites. discrete sealed sources of very high result from internal or external The commenter also noted that the specific activity and do not apply to exposures are not credible. scope does not indicate that this applies packages in transport. The commenter Commenters provided examples of: to persons who have access to SGI–M further noted that IAEA also (1) A commercial waste processor that and implies it only applies to those recommends 100 rads (1 Gy) to bone could have several thousand packages authorized. marrow in 100 hours at 1 meter from in a common storage area, each Response: The NRC agrees that the sources that cannot be carried as the containing waste forms of relatively low language may be confusing as it applies threshold for a ‘‘dangerous’’ source. specific activity and each with a mass to temporary job sites and has revised With a category 2 source threshold at 10 of several hundred to several thousand the scope to clarify the intent. The x D, this also provides a practical pounds and (2) a radioactive waste requirements of 10 CFR part 37 do not justification for exempting low specific disposal facility that has a 60-car train apply to SGI–M. However, some of the activity (LSA) materials, as they are of radioactive waste within its security information developed under restricted to dose rates of 1 rem/h at 3 controlled area. 10 CFR part 37 would be considered meters. Using very restrictive point Response: The NRC agrees with the SGI–M and needs to be protected in source consideration (i.e., an inverse comment in part. The NRC has accordance with 10 CFR part 73. The square relationship), LSA materials determined that it is appropriate to requirements for SGI–M are contained cannot result in dose rates exceeding 10 include a partial exemption in the in §§ 73.21 and 73.23. rads/h at 1 meter. The other regulation instead of treating Comment A23: One commenter stated deterministic considerations presented exemptions requests on a case-by-case that the exemption provided in in the TECDOC are similarly bounded basis. Paragraph (c) has been added to § 37.11(b) for facilities with 10 CFR part by the low specific activity of such § 37.11 to address radioactive waste 73 security plans should be retained but wastes. materials. The provision does require offered a suggested revision to clarify Commenters noted that there is a that some security measures be applied who has inspection/security oversight. distinct difference between a given to the waste, but the majority of the 10 The commenter noted that it would be amount of activity confined in a CFR part 37 requirements would not a significant paperwork task to keep relatively small sealed source and the apply. Measures include the use of records showing compliance with both same quantity dispersed around a large continuous physical barriers, alarmed sets of controls without a real increase site in numerous containers, none of locked gates or doors, and assessment in the security of either material. The which individually contains activity and response of unauthorized entry. The commenter also noted that it would be approaching a category 2 amount. provision does not include the use of an added inspection burden if the Commenters noted that low specific dose rates, but would cover much of the program required separate inspections activity material, objects with low levels low specific activity waste addressed by by an Agreement State and the NRC. of surface contamination, or numerous the comment. The commenter suggested adding a small sources would not be attractive for Comment A21: One commenter felt sentence at the end of the paragraph: theft or sabotage because of the disperse that the proposed requirements should ‘‘Although the NRC maintains primary nature of the radioactivity. One not apply to holders of category 2 oversight of these facilities, inspection commenter noted that this is recognized sources, particularly since the new by Agreement State representatives is in the transportation arena that allows requirements would not apply to the permitted.’’ use of industrial packages for low transshipment of category 1 and Response: The NRC is retaining the specific activity and surface category 2 sources. The commenter exemption for licensees that possess the contaminated materials versus more noted that if the Juarez, Goiana and category 1 or category 2 quantities of robust Type A or Type B packages for Mayapuri radioactive material dispersal radioactive material under an NRC shipping higher activity materials. incidents all occurred in the United license. For those licensees located in

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non-Agreement States, the licensee can incorporated by reference (or listed in a states the NRC will not enter such choose if it wants to protect the material new Appendix F of 10 CFR part 30). agreement for common defense and under the security plan required by 10 This rule is in addition to any other security. The commenter indicated that CFR part 73 and approved by the NRC requirements specified in applicable 10 category 1 materials must be considered or protect the material under a 10 CFR CFR parts.’’ and ‘‘30.34(n) Licensees under the terms of common defense and part 37 security plan. If the material is must notify NRC of their intention to security and should remain under NRC protected under a 10 CFR part 73 possess an individual source greater jurisdiction for security. The commenter security plan, the licensee’s records than category 1 of the isotopes listed in noted that the proposed rule states should note that the material is Appendix E to 10 CFR part 20— ‘‘licensees who activities are covered protected under a 10 CFR part 73 Nationally Tracked Sources under part 73 would be exempt from security plan. Any inspection would be Thresholds.’’ part 37.’’ The commenter stated that against the security plan under which Two commenters stated that the most of the irradiator requirements the material is protected. For licensees authority to regulate the physical (SGI–M) are based in 10 CFR part 73 that are located in an Agreement State protection of category 1 and 2 quantities and therefore indicates that there are no and possess category 1 or category 2 of material in transit (subpart D) should category 1 licensees that are subject to quantities of radioactive material under not be relinquished to the Agreement State purview. The commenter noted an NRC license, the licensee can choose States. The commenter noted that while that there are references to SGI–M in the whether to protect the material under the adequacy and compatibility proposed rule which further leads to the the 10 CFR part 37 or the required and requirements of Agreement State need for clarification. approved 10 CFR part 73 security plan. programs would require the Agreement One commenter noted the drafted For licensees that possess the category State regulations to be ‘‘essentially document appears to be inconsistent in 1 or category 2 quantities of radioactive identical’’ to those contained in subpart this regard and that the issue of material under an Agreement State D, there are several instances where jurisdiction and responsibility for these license, it will be up to the Agreement Agreement State regulations include licensees must be clearly made and the State to decide if it will allow the requirements in addition to those found necessary inclusions and exclusions to licensee to protect the material under an in the analogous NRC regulations. The the rules made accordingly. NRC-required and approved 10 CFR part commenter noted that Agreement State Response: The NRC disagrees with the 73 security plan. The licensee would regulations that go beyond those comment. The NRC believes that it is want to discuss this with its State contained in subpart D could hinder appropriate for the Agreement States to regulator. Agreement States are not interstate commerce and result in regulate the physical protection of required to adopt the provision on additional burden and expense to the category 1 and category 2 quantities of radioactive material. Although some of exemptions in § 37.11(b) as a matter of licensees. Another commenter stated the security information is considered to compatibility. As for adding a provision that there is value to Federal be SGI–M under 10 CFR part 73, the to allow State personnel to inspect, the preemption in regulating the NRC does not believe that this prevents NRC disagrees with the comment. A transportation security of category 1 and the Agreement States from regulating new provision is not necessary to allow category 2 quantities of radioactive the security aspects for those facilities. an Agreement State to inspect against a material as this would ensure While the State could not inspect the license that it has issued. uniformity of the administration of the requirements. One commenter suggested SGI provisions for protection of the Comment A24: One commenter stated that the authority be transferred to DOT material unless it entered into a 274i that the NRC should not promulgate the and not the States. Agreement with the NRC, the State rule for licensees currently under NRC Two commenters stated that the NRC could inspect and enforce the 274i Security and Fingerprinting Orders should retain authority for the security provisions of 10 CFR part 37. The specified in EA–08–225 issued August of category 1 licensees under common exemption provided in § 37.11 was 29, 2008. The commenter noted that defense and security unless the States intended to only cover facilities that had these licensees are few in number, and are given authority to regulate all a security plan under 10 CFR part 73 the NRC should continue to regulate aspects of category 1 sources. The and not the information protection them under the existing orders. The commenters noted that the rule does not aspects. The NRC has clarified the commenter noted that this should give the States authority to regulate the exemption. See also the responses to include possession of certain isotopes safeguards information and, therefore, comments A23, A46, and A47 and the greater than category 1. The commenter the regulatory authority would be split. response to question 10 in Section II.A suggested new paragraphs for § 30.34 as Commenters suggested removing the of the Statement of Considerations. follows: ‘‘30.34(m) Security SGI designation. One commenter noted Comment A25: One commenter noted requirements for licenses who possess that under Supplementary Information that the rule should adopt the entire an individual source less than category Item II.(A)(10), it states, ‘‘Although the categorization of radioactive sources 1 but greater than or equal to category NRC relinquishes authority to States for from the IAEA Safety Guide No. RS–G– 2 of the isotopes listed in Appendix E certain materials, under section 274(m) 1.9—Categorization of Radioactive to 10 CFR part 20—Nationally Tracked of the AEA no such agreement will Sources. The commenter pointed out Sources Thresholds. Licensees or affect the authority of the Commission that the IAEA Safety Guide provides a applicants must submit to NRC for to take regulatory action to protect the more robust, risk-based categorization of review and approval of information to common defense and security.’’ The quantities than the categorization comply with the requirements and time commenter noted that Item 11 states, provided in the proposed rule as it frames specified in NRC Order EA–07– ‘‘The provisions put in place for the describes five different categories that 305 dated December 5, 2007, and its inspection of licensees that received the differentiate sources possessed by attachments titled ‘‘Table 1 orders issued under common defense various licensees based on quantity as Radionuclide of Concern and and security would remain in place well as use. The commenter also stated Attachment 3 Specific Requirements until the State implements the that the rule should be limited to source Pertaining to Fingerprinting and requirements.’’ The commenter stated quantities characterized as category 1 Criminal Records Checks’’ which are that this contradicts Item 19 which and category 2 in the IAEA Safety

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Guide. The commenter noted that the would apply once the shipment clears retained offered suggested language. types of sources used in refineries and customs and for exports, up to the point One commenter stated 30 days did not petrochemical plants are considered the shipment crosses the border. provide adequate time. Commenters category 3 and according to the IAEA Holders of the TWIC do not need to noted that requiring a licensee to report Safety Guide, the types of sources used undergo fingerprinting and the FBI compliance was an unnecessary burden in refineries and petrochemical plants criminal history records check again as as licensees are expected to comply and present less risk than the source § 37.29 relieves them from the that the normal terms of implementation quantities in category 1 and 2. requirement. However, the individuals for rulemaking are adequate. One Response: While the NRC agrees that would need to undergo the remaining commenter suggested deleting § 37.41(d) category 3 sources present less risk elements of the background as unnecessary since current individually than category 2 sources, investigation. implementation of the Increased Control the NRC disagrees with the remainder of As for the NPRA member facilities, Orders is an adequate basis to conclude the comment. Unlike RS–G–1.9, the the provisions for access authorization the current licensees will transition to NRC and the IAEA Code of Conduct do under 10 CFR part 37 would only apply compliance with the new regulations. not consider use (e.g., fixed gauges, well if the facility allows unescorted access Response: The NRC agrees that the logging, and radiography) in the to category 1 or category 2 quantities of submittal of compliance information is determination of source categorization. radioactive material. The licensee not needed and has removed the Regardless of its intended use, any decides who is in charge of the security requirement from the rule. The NRC and category 2 quantity may pose a program as the regulations do not the Agreement States already know significant risk to individuals, society, specify any specific position. which licensees will need to implement and the environment. Additionally, 10 Comment A27: One commenter asked 10 CFR part 37. A provision has been CFR part 37 applies not only to sources, for clarification whether the provisions added in § 37.41 to require a licensee but also to bulk material. The rule also apply to those licensees authorized to that has never implemented the orders addresses aggregation of radioactive possess the material or those that or 10 CFR part 37 to notify the NRC 90 material at or above the category 2 actually possess the material. The days before aggregating material to a threshold. If several sources are stored commenter noted that the language category 1 or category 2 quantity of together that individually are discrepancy occurs throughout the rule radioactive material. considered to be category 3 sources, but and must be corrected. Another Comment A29: One commenter stated together form an aggregated category 2 commenter asked that the requirements that in § 30.32 the wording implies the quantity, the attractiveness of the be spelled out separately to avoid application must include an affirmation material as a group would be the same confusion. that the proposed security program as if there were only one category 2 Response: The proposed rule meets the requirements in 10 CFR part source. If the sources used in the contained some provisions that 37. The commenter stated that instead refineries and petrochemical plants are pertained to licensees that were the application should include a not aggregated, 10 CFR part 37 would authorized to possess category 1 or proposal as to how the requirements not apply. category 2 quantities of radioactive will be satisfied and be subject to Comment A26: One commenter material. The final rule contains evaluation for sufficiency. The indicated that for facilities covered provisions that apply only to those that commenter suggested the following under the Maritime Transportation actually possess and aggregate the language: ‘‘(1) An application for a Security Act, the rule would mean material to a category 1 or category 2 specific license to use, store, or additional burdens, redundancies and quantity. transport category 1 or category 2 confusion. The commenter Comment A28: Some commenters quantities of radioactive material must recommended that for facilities objected to the need to submit include information outlining the regulated under DHS/DOT Personnel compliance information. The applicant’s security program designed to Surety programs, the rule should allow commenters felt that this is an satisfy the requirements in part 37 of a program of reciprocity to reduce unnecessary burden to both the this chapter.’’ redundancy. The commenter noted that licensees who have already Response: The NRC has reevaluated at National Petrochemical & Refiners implemented a program and the the need for the requirement and has Association (NPRA) member facilities, regulatory agency. The commenters decided that it is unnecessary. A new the Radiation Safety Officer (RSO) and noted that the licensees subject to this applicant will be evaluated on the need technicians have intimate contact with part have already been inspected to implement 10 CFR part 37 as part of source holders and the rule would be multiple times and have established a a prelicensing review and inspection. If best implemented by the RSO and compliance history, and therefore these the licensee will be aggregating the technicians and not the entire facility licensees should be exempted from material to a category 1 or category 2 population. having to resubmit existing information. quantity of radioactive material, the Response: The NRC disagrees that the One commenter thought that the licensee will be expected to implement rule imposes additional burdens, provision was vague as written and the provisions of part 37 before redundancies, and confusion. The requested clarification that compliance receiving a license. Maritime Transportation Security Act, with the provision would be achieved Comment A30: One commenter noted which amends the Merchant Marine Act by submitting a letter to the NRC that institutions that have aggregated of 1936, establishes a program to ensure indicating that the licensee has material may require significant time to greater security for United States successfully implemented the program. implement the provisions as it will seaports and provides requirements One commenter noted that the NRC require a financial investment. The pertaining to personnel whose duties must identify in the regulation what commenter did not suggest an are related to import and export essential elements are to be included appropriate timeframe. Several activities at the ports. Part 37 because placing the information in commenters noted that 30 days for transportation requirements only apply guidance is unacceptable. One implementation was not sufficient for to the domestic portion of an import or commenter thought the provisions the changes that need to be made. Two export. For an import, the provisions should be removed from the rule but if commenters suggested a 1-year effective

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date. Commenters supported Response: The rule does not require period is not specified, § 37.103 terminating the orders on the effective co-location or aggregation of radioactive specifies that the record be retained date of the rule to avoid confusion and material. If a licensee does not aggregate until the Commission terminates the noncompliance. One commenter stated the material above a category 2 license. The NRC has added a retention that the rule should be clarified as to the threshold, the licensee will not need to period of 3 years for the documentation compliance date and asked what implement the provisions of 10 CFR records. The NRC agrees with the happens if a licensee is not in part 37. The final rule only applies to comment and has changed § 37.43(a)(4) compliance by that date. One those licensees that possess aggregated to indicate that the security plan must commenter noted that it would be quantities at or above the category 2 be retained for 3 years after it is no difficult to comply with the 30-day threshold. longer required. timeframe for preparing and Comment A32: Several commenters Comment A34: One commenter implementing the security plan and objected to the change from a 3-year requested clarification in § 37.101 on implement the security program at least retention period for records to a 5-year the concept of ‘‘safeguards against 90 days before it ‘‘ * * * aggregates retention period. One of the commenters tampering with’’ to preclude radioactive material to a quantity that believed that the change from the unwarranted interpretations during a equals or exceeds the category 2 standard practice where most regulatory inspection about the thresholds.’’ The commenter further documents in the industry have a requirements for records. The noted that work varies significantly mandated 3-year retention period is commenter offered suggested language from project to project and that security redundant and unnecessary and will as follows: ‘‘the licensee shall maintain plans that are sufficiently robust to be add a potential for confusion where adequate safeguards against tampering effective also would vary significantly. none need exist. One commenter with and loss of records. The The commenter noted that it is not questioned why there was a need to requirements in § 37.43 for protection of possible to prepare or implement a keep superseded portions of procedures information are not applicable to this project-specific security plan without and the security plan for 5 years. The section.’’ Another commenter knowing the details of the project and commenter stated that this was an recommended replacing the term that frequently licensees need to added burden and does not add to the ‘‘safeguard’’ with ‘‘protect’’ in § 37.101. mobilize and initiate work within a security of the material or to the The commenter felt that safeguard matter of a few days, which would not protection of the health and welfare of should be only used when referring to be possible if a 90-day advance notice the general public. The commenter also safeguards. was required. questioned the need to keep training Response: The NRC disagrees with the records for 5 years stating that it should comment. The records provision in Response: The NRC notes that the be adequate for a licensee to show that § 37.101 is identical to provisions in proposed rule indicated that the final it is conducting annual training and other parts of the regulations. The NRC rule would be implemented 270 days suggesting a 1-year retention period. is not aware of any issues that have after publication in the Federal Response: The NRC agrees with the arisen over interpretation. The Register. The 30-day timeframe was for comment on the retention period and provisions of § 37.43 would apply if the the licensee to submit compliance has changed the record retention period records were the security plan, information. The NRC has removed the for most records to 3 years. Safety implementing procedures, or the list of requirement to submit the compliance records are maintained for 3 years, and individuals allowed unescorted access. information. In addition, the NRC is the NRC agrees that there is no benefit Comment A35: One commenter stated providing a 1-year implementation to keeping only the security records for that the enforceability in regulations of period for the final rule. This should 5 years. There are a few licenses that records retention for reporting allow ample time for licensees to have an inspection frequency of 5 years; suspicious activities is unduly implement the requirements, including however, the majority of the licensees burdensome on the licensee. The the development of any new procedures impacted by 10 CFR part 37 have a 3- commenter stated that due to the and the conduct of necessary training. year inspection frequency. Superseded clandestine nature of reporting Agreement States will be given 3 years procedures and training records are suspicious activities to LLEAs, the from publication of the final rule to necessary from an inspection and licensee may not have the LLEA’s or adopt the rule provisions instead of enforcement aspect. NRC’s fluid responses to these reports from the effective date. This will still Comment A33: One commenter for security reasons and that ongoing provide the States with a 3-year window questioned how long to hold on to the investigations can encompass years, so to adopt the regulations. old security plan once it is updated and the recordkeeping requirement is Comment A31: One commenter noted how long the documentation of the inconsistent and can be inconsistent that its business depends on the ability coordination activities is to be with other recordkeeping requirements to not co-locate or aggregate its maintained. Another commenter depending on the incident nature of the radioactive material and that it manages recommended changing the record reporting. its radioactive material through quantity retention period for the security plan so Response: The NRC does not control and physical separation of that the record could be destroyed 5 understand the commenter’s concern. material not in use at any one time. The years after it is no longer needed. The There are no record retention commenter noted that, if it was required commenter noted that there was no requirements associated with reporting to aggregate all of its material, which value in keeping the security plan once suspicious activities. The 30-day written includes the standard, returned sources, a licensee was no longer allowed to report is not required for suspicious sources packed and ready to ship, cell possess materials that would require a activity reporting. The licensee is waste (cell sweep, dust, chips), plus security plan. required to assess the suspicious isotope material, it would be Response: Section 37.43(a)(4) activities and notify the LLEA, only if continuously above the category 2 specifies that the superseded portions of the licensee believes it is appropriate to threshold, and the additional the security plan be retained for 3 years do so. The licensee is only required to requirements would be a significant (note the proposed rule specified 5 notify the NRC if the LLEA is notified. economic hardship on the company. years). For any record where a retention The NRC acknowledges that there is

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some subjectivity involved in Another commenter stated that a suspicious activities should continue to determining what is considered to be specific timeframe should be specified be reported on a voluntary basis as it is suspicious. instead of immediate and upon very subjective and would be difficult to Comment A36: One commenter discovery. The commenter stated that enforce. One commenter recommended questioned who was authorized to failure to set specific time limits will defining suspicious activity. One authenticate reproduced records in result in delay in implementing the commenter expressed concern over the § 37.101. Federal response framework. requirement to report suspicious Response: ‘‘Authorized personnel’’ in In addition to those that provided activities asking how it could be § 37.101 are those authorized by the responses to the specific questions, enforced as individual judgment may licensee to authenticate duplicated seven commenters addressed this differ as to what constitutes a suspicious documents. subject in their comments. Two action. The commenter also questioned Comment A37: In the proposed rule, commenters noted that classifying some why, if the LLEA provides an immediate the NRC specifically requested comment of these events will be very subjective assessment and determines that the on the reporting requirements. and some are likely to be impossible to event is completely harmless, the NRC Commenters were requested to provide distinguish from events that are not needs to be notified. The commenter information on: (1) Whether the suggested language for § 37.57(b) to proposed rule contained the appropriate malicious or are not related to category 1 or category 2 quantities of radioactive increase the clarity and to allow for items and thresholds to be reported to some local interpretation. The suggested the LLEA; (2) whether the proposed rule material. The commenters noted that reasonable persons could interpret the language is as follows: ‘‘The licensee contained the appropriate items and shall notify the LLEA upon the thresholds to be reported to the NRC; (3) expectations of the NRC and the details of a specific event very differently. The discovery, of any security-related events whether suspicious activities should be involving suspicious activity that may reported and if they are reported, what commenters further noted that these events will require a period of indicate preoperational surveillance, type of activities should be considered reconnaissance, or intelligence- suspicious; and 4) whether the assessment, and sometimes a lengthy period of assessment, to determine the gathering activities directed against timeframe for reporting was appropriate. licensees, or their facilities related to nature of the event and that the Fifteen commenters provided responses possible theft, sabotage, or diversion of timeframes for reporting do not to the specific questions on this subject. category 1 or category 2 quantities of anticipate a period of assessment. As an Of those that provided responses to radioactive material. If the event is not example the commenters provided the the questions on the reporting found to be harmless, the licensee situation where a discrepancy in the requirements, the majority agreed that should notify the NRC’s Operations inventory is discovered without any the reportable items and thresholds Center (301–816–5100) as soon as evidence of an ‘‘actual theft’’ (e.g., locks were appropriate, and five commenters possible, but not later than 4 hours, after that have been cut), requiring a period felt the items and/or thresholds should notifying the LLEA.’’ be changed. One of the commenters of assessment to determine the nature of Response: The NRC has revised the indicated that the NRC and/or FBI the event. Two commenters stated that reporting requirement to make it clear should be notified of any denial for the requirement for sabotage reporting the licensee does not need to contact the cause of a request for unescorted access should be removed. The commenters LLEA when it has determined that an as this might be domestic intelligence noted that it would not be possible for alarm was not the result of an attempted information of interest to the FBI or a licensee to determine the ‘‘intent’’ of or actual theft, sabotage or diversion. DHS. The commenter also felt that the the person causing any damage and The NRC does not believe that it is NRC/FBI should be notified of activities whether his or her ‘‘intent’’ is necessary for the licensee to report to determined to be suspect by the LLEA. malevolent. One commenter noted that the NRC the denials for unescorted Three commenters stated that actual and § 37.57(b) requires NRC notification access. The NRC has access to the attempted theft were appropriate when there is ‘‘suspicious’’ activity information during inspections. The reportable actions but that suspicious related to ‘‘possible’’ theft, sabotage, or NRC has retained the reporting activities should be removed from the diversion. The commenter stated that it requirement for sabotage. If an rule. Of the commenters that supported would only be appropriate to notify the individual has caused damage and reporting of suspicious activities, no NRC if the licensee, in conjunction with placed the radioactive material at risk, commenter offered suggestions as to the LLEA, determines that there is some the NRC wants to know regardless of the what type of activities should be validity to the suspicion. The individual’s intent. The NRC disagrees considered suspicious. A couple of the commenter noted that the NRC should that it is necessary to establish a set commenters stated that the licensee is encourage open communication timeframe for reporting attempted theft, the best judge of what type of activities between the licensee and LLEA, and diversion, or sabotage as the would be considered suspicious at its licensees should feel free to express terminology is consistent with other facility. Other commenters just even minor concerns, uncertainties, etc. similar reporting requirements. The suggested that the NRC should provide to LLEAs for their assistance without NRC agrees that it is good practice to guidance to assist the licensee. Most of having to notify the NRC in each have open communication between the the commenters indicated that the instance. One commenter agreed with LLEA and the licensee. reporting timeframes were appropriate. the reporting requirement for suspicious On the question of reporting One commenter stated that the activities but noted that it would be suspicious activities, the NRC has timeframes did not allow for a realistic dependent on the licensee’s judgment decided to retain a requirement on period of assessment. The commenter based on its circumstances. The suspicious activities. The reporting of noted that classifying some of these commenter noted that it would be suspicious activities is an important events will be very subjective and some difficult to quantify what suspicious component of evaluating the threat may be impossible to distinguish from activity is ahead of time, and the against licensed facilities and material. events that are not malicious or not licensee should not be second guessed The NRC reviews individual related to a category 1 or category 2 on whether or not it made this type of notifications of suspicious activities to quantity of radioactive material. notification. One commenter noted that evaluate whether potential

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preoperational activities (i.e., multiple investigation before the first phone call noted that immediate notifications of events at a single site or multiple events to the NRC. Similar to the order theft should be made to the LLEA, not at multiple sites) may be part of a larger requirement, the licensee is required to as soon as possible as the proposed rule plan and to integrate this information notify the NRC a second time if the would allow. Another commenter noted with other agencies in the homeland material is still missing after 24 hours of that the reporting requirements should security and intelligence communities. investigating. The rule should not result be consistent to ensure that multiple The NRC is not requesting that the in a change in practice and in fact gives reports for the same event are not an licensees actively gather intelligence but the licensee additional time before unintended consequence. rather that they report information they starting an investigation. Response: The NRC disagrees with the believe is relevant to the security of Comment A39: Several commenters need to move the 10 CFR part 37 their facility or activity. The reporting requested information on how diversion reporting requirements to 10 CFR part requirements provide a consistent differs from a theft as in both cases the 20. The NRC has revised § 20.2201(c) to means of communicating this material is removed and the movement include a reference to 10 CFR part 37 so information to the NRC. The is unauthorized. The commenters felt that duplicative reports are not required. requirement has been revised to require that the requirements for reporting The NRC disagrees with the comment to the licensee to assess suspicious diversion and suspicious activities were change as soon as possible to immediate activities and to only contact the LLEA subjective and that the NRC’s in § 37.81(c) and (d). The historic if the licensee believes it is appropriate expectations concerning diversion and interpretation of immediate reporting to do so. The licensee is required to suspicious activities were not clear. has been up to 4 hours. The NRC does notify the NRC only if notifying the Response: Diversion means the not believe that 4 hours is the LLEA. Some suspicious actions may be unauthorized movement of radioactive appropriate timeframe for the successfully handled by the licensee material subject to this part to a location notification; notifications need to be without the need to involve law different from the material’s authorized made promptly. For this reason, the enforcement or the NRC. The NRC destination inside or outside of the site NRC has used ‘‘as soon as possible’’ in believes that the revision will provide at which the material is used or stored. both the orders and the rule language. the licensee more flexibility in As an example, a source purchased Comment A41: One commenter determining how to address any using a legitimate license may be questioned the difference between the situation that involves what might be shipped to an unauthorized location. requirements to report no later than 4 considered suspicious activities. The Diversion does not require the adversary hours after the discovery of any actual NRC does recognize that what is to defeat the licensee’s physical security theft or diversion in § 37.57 and the considered to be suspicious is subjective system. Theft is the act of taking requirement in § 37.81 to report within and not all licensees will handle the material from a facility, vehicle, or 1 hour of lost or missing material. same situation in the same way. On temporary job site and requires the Response: Under § 37.57, the licensee balance, the NRC believes that it will adversary to defeat the licensee’s is to immediately notify the LLEA and receive information on the more serious physical security system. then to contact the NRC as soon as instances, but not the trivial instances. What constitutes a suspicious activity possible. If contacting the NRC would Comment A38: One commenter noted can be subjective and may vary from somehow interfere with or delay the that in the absence of any suspicious or one licensee to another. Examples of LLEA response, the licensee can take up known mitigating factors, it has suspicious activities are provided in the to 4 hours to notify the NRC. The LLEA typically given the carrier 24 hours to guidance. The reporting of suspicious would be in charge of any response as trace within their transportation cycle, activities is an important component of the occurrence was at a fixed location. before the package is declared as lost or evaluating the threat against licensed It is the NRC’s expectation that the missing. The commenter noted that this facilities and material. The NRC reviews notification would occur very quickly has proven to be the most effective time individual notifications of suspicious after the LLEA is notified. Under period and that anything less than the activities to evaluate whether potential § 37.81, the licensee is required to 24 hours does not allow sufficient time preoperational activities (i.e., multiple contact the NRC within 1 hour because for the carrier to do a complete events at a single site or multiple events the NRC may need to initiate a response document and tracking search and/or a at multiple sites) may be part of a larger as the occurrence was during transit. physical search at potential locations. plan and to integrate this information Comment A42: One commenter noted The commenter noted that to declare the with other agencies in the homeland that the rule should not require the package as lost or missing before that security and intelligence communities. licensee to provide a copy of the reports will result in many false positives, as The NRC is not requesting that the required under § 37.81(g) to the Office of 99.99% of the time the package is licensees actively gather intelligence, Nuclear Security and Incident Response located within the 24-hour window but rather that they report information (NSIR). The commenter believes that the which will result in significant they believe is relevant to the security NRC should provide the copy to NSIR. resources of both the regulatory agencies of their facility or activity. The reporting One commenter recommended that the and licensees involved, trying to get requirements provide a consistent written follow-up report for event useful information that just isn’t means of communicating this reporting be submitted within 60 days available. information to the NRC. instead of 30 days. The commenter Response: Part 37 requirements would Comment A40: One commenter noted that 30 days is insufficient time not change this practice. The reporting recommended placing the reporting for licensees to complete an requirement in § 37.81(b) is similar to requirements in §§ 37.57 and 37.81 in investigation, prepare, and submit a the requirement from the orders. The subpart M of 10 CFR part 20 to avoid written report and that the 30 days is licensee is not required to notify the duplicative regulations. The commenter inconsistent with the timeframe for NRC when the material has not arrived stated that the notifications in § 37.81 submittal of written follow-up reports by the no-later-than arrival time, rather should be the same as 10 CFR part 20 that are required elsewhere in 10 CFR it is to notify the NRC once it has been and should be immediately after Chapter I. One commenter objected to determined that the material is lost or discovery, but only after initially the wording of the requirement in missing. This allows some time for notifying the LLEA. The commenter § 37.81(g) to ‘‘include sufficient

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information for NRC analysis and Response: The NRC disagrees with the more of the requirements,’’ encompasses all evaluation’’ as it is too open-ended and comment. The provision is identical to requirements of Section 274, including the the commenter felt that further the provision in § 20.2201(d). A licensee requirement for compatibility in Subsection explanation is necessary. The should use judgment on whether the 274(g). Under Subsection 274d.(2), the commenter stated that the NRC is doing information should be provided sooner Commission is authorized to enter into an a disservice to licensees if it wishes to than 30 days. agreement with a State if the Commission claim that such items are difficult or Comment A45: One commenter stated makes both requisite findings that the State impossible to predict for all cases or that certain provisions of the proposed program is compatible with the NRC’s would be more fully addressed in rule would be matters of mandatory program and adequate to protect public guidance. compatibility between the NRC and the health and safety. Absent a continuing Response: The NRC agrees with the Agreement States. The commenter compatibility requirement, an Agreement comment in part and disagrees with the stated that the NRC has no statutory State could divert from having a compatible comment in part. The NRC often program the day after any agreement is basis requiring an Agreement State to signed with NRC. This would render the specifies that a copy of a report should maintain regulations compatible with Commission’s initial compatibility finding be submitted to a specific office and those of the Commission. The required by Subsection 274d.(2) meaningless. does not believe that it presents a large commenter believes that the In addition, the NRC has an burden on the licensee. While some of Commission may request compatibility obligation, pursuant to section 274j. of the follow-up reports contained in Title by the State, but cannot require it. 10 Chapter I are submitted within 60 Response: Section 274, ‘‘Cooperation the AEA, to periodically review existing days, some are submitted within 30 with States,’’ of the AEA provides for Agreement State programs to ensure days. The 30-day timeframe for a cooperation with States, authorizing the continued adequacy and compatibility. written follow-up report is consistent Commission to enter into Agreements Section 274j. of the AEA also provides with the requirement for the follow-up with States for certain materials that the NRC may terminate or suspend report for reporting lost and missing provided that certain conditions are all or part of its agreement with a State material contained in 10 CFR part 20. If met. Two specific sections of the AEA if the Commission finds that such the investigation is not complete, a final provide for compatibility requirements: termination is necessary to protect report can be submitted upon (1) Subsection 274d. gives the public health and safety or that the State completion. The NRC agrees with the Commission the authority to enter into has not complied with the provisions of comment on sufficient information and an Agreement with a State if the section 274j. In fulfilling this statutory has added language similar to the Commission finds that the State responsibility, NRC provides oversight provisions in § 20.2201(b). program is compatible with the of Agreement State radiation control Comment A43: One commenter Commission’s program for regulation of programs to ensure that they are requested that a subsection be added to such materials (subsection 274d(2); and adequate and compatible prior to § 37.57 to clarify requirements for (2) under subsection 274g. of the AEA, entrance into a section 274b. agreement reporting by a licensee or permittee the Commission is authorized and and that they continue to be adequate under a master materials license that directed to cooperate with the States in and compatible after an agreement is has an onsite LLEA in order to preclude the formulation of standards for effective. The NRC, in cooperation with unwarranted interpretations during a protection against hazards of radiation the Agreement States, established and regulatory inspection about reporting to to assure that the State and Commission implements a performance evaluation NRC. The commenter offered suggested programs for protection against hazards program to provide NRC and Agreement language as follows: ‘‘(d) For a licensee of radiation will be coordinated and State management with systematic, or permittee under a master materials compatible. integrated, and reliable evaluations of license with an on-site LLEA, reporting In the Commission’s policy statement, the strengths and weaknesses of their in this subsection is required only after ‘‘Policy Statement on Adequacy and respective radiation control programs the on-site LLEA has confirmed the Compatibility’’ (62 FR 46517; September and identification of areas needing attempted, actual, or actual activity 3, 1997), the Commission addressed a improvement, the Integrated Materials related to theft, sabotage, or diversion of similar comment. At that time, it was Performance Evaluation Program category 1 or category 2 quantities of the Commission’s view that, pursuant to (IMPEP). radioactive material.’’ section 274, an Agreement State’s There have been no changes to the Response: The NRC disagrees with the program should be compatible with AEA or to Commission policy that comment. The reporting requirements NRC’s program for the duration of the would render a different interpretation remain the same whether the LLEA is Agreement for the following reasons, set of these sections of the AEA. Therefore, on site or off site. The NRC does note forth in the policy statement: no changes were made to the rule in that the LLEA does not need to be response to this comment. contacted until after the licensee has Subsection 274g. authorizes and directs the Comment A46: Two commenters assessed the situation. The LLEA needs Commission to cooperate with the States in stated that it was unclear if the rule can the formulation of radiation protection to be notified only if the licensee has standards ‘‘to assure that the State and be implemented under a public health determined that an attempted or actual Commission programs for the protection and safety basis. The commenters noted theft, diversion, or sabotage act has against hazards of radiation will be that the performance objective in occurred or is taking place, or, as coordinated and compatible.’’ This provision § 37.21(b) is to prevent an unreasonable appropriate, if the licensee has demonstrates Congress’ intention that the risk to public health and safety or the identified suspicious activities. compatibility between the NRC and common defense and security, but that Comment A44: One commenter Agreement State programs should be the basis for the rule is health and safety recommended defining substantive maintained on a continuing basis. and not common defense and security. information in § 37.81(h). The Subsection 274j.(1) calls on the Response: This rule can be Commission to suspend or terminate an commenter noted that the term Agreement State’s program if ‘‘the State has implemented under the NRC’s authority substantive information indicated a not complied with one or more of the to protect the public health and safety. higher priority notification than 30 requirements’’ of Section 274. The The rule amends NRC’s regulations to days. Commission believes that this phrase ‘‘one or impose security requirements for the

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use of category 1 and category 2 regulation pertaining to the physical adding requirements beyond those quantities of radioactive material. The protection in transit of category 1 and provided in 10 CFR part 37 where the proposed security requirements set forth category 2 quantities of radioactive additional requirements would not meet the objectives and minimum materials if the Agreement State the compatibility designation for a given requirements that licensees must meet regulation does not comply with the provision. to protect against theft or diversion of general criteria provided in 49 U.S.C. Comment A48: Numerous category 1 or category 2 quantities of 5125. The commenter stated that if the commenters stated that the radioactive material. Accordingly, these NRC concludes that it is indeed requirements created too much burden requirements increase the protection of appropriate for the Agreement States to with little, if any, improvement in the public from harm resulting from the regulate the physical protection of security and are not necessary or unauthorized use of these materials. category 1 and 2 quantities of justified and are a waste of taxpayer As discussed in the Statements of radioactive material while in transit money. Some commenters felt that the Consideration for the proposed rule (75 then a mechanism has to be in place to requirements were not commensurate FR 33902, 33907 (June 15, 2010)), when ensure these Agreement State with the risk of the material and were regulations such as these address both regulations cannot add requirements in unnecessarily complex, complicated, the NRC’s public health and safety and addition to those provided in 10 CFR and long. Some commenters noted that common defense and security missions, part 37. there were no quantifiable benefits, only the operative question is whether NRC Response: The NRC in its Policy qualitative benefits and, therefore, there oversight is necessary to fulfill the Statement on Criteria for Guidance of is no evidence that additional measures common defense and security aspects of State and NRC in Discontinuance of are necessary. One commenter noted the regulations. The NRC believes that NRC Regulatory Authority and that there must be a balance between the the Agreement States can consistently Assumption Thereof by States Through real benefit of providing the services and adequately implement the physical Agreement, developed criteria to that the category 1 and category 2 protection requirements, and as such, implement the Agreement State sources provide, against a hypothetical there is no need for independent NRC program, authorized by Public Law 86– malevolent act that may involve one of action to protect the common defense 373 which was enacted in the form of these sources. Some commenters felt and security. However, the NRC retains a new section to the AEA (section 274) that implementation of the new the authority under section 274(m) of and approved by the President on requirements would financially cripple the AEA to take any necessary actions September 23, 1959 (46 FR 7540–7546; small companies and would limit for protection of common defense and January 23, 1981). Criterion 10 of the funding for new, safer technologies. security should individual licensees or Policy Statement, Regulations Some commenters indicated that the the State program develop issues Governing Shipment of Radioactive burden could result in some medical requiring immediate action. Materials, provides that the State shall facilities not offering radiation therapy Implementing these regulations under to the extent of its jurisdiction services, a reduction in research, and the NRC’s public health and safety promulgate regulations applicable to the will negatively impact patient care. One authority avoids potential complications shipment of radioactive materials, such commenter was of the opinion that the with licensees being subject to dual regulations to be compatible with those number of licensees would drop by 25 regulatory authorities for a single established by the U.S. Department of to 30 percent. Commenters felt that the license. Agreement States can impose Transportation and other agencies of the original order requirements are adequate these security requirements because United States whose jurisdiction over and should be maintained with no they provide a reasonable assurance of interstate shipment of such materials additions as they were sufficient to preventing the theft or diversion of necessarily continues. Therefore, State ensure security. Commenters felt that category 1 and category 2 quantities of regulations regarding transportation of additional requirements should be radioactive material that has a potential radioactive materials must be based on documented deficiencies in to result in significant adverse health compatible with 10 CFR part 71. the orders and not on the very low impacts and reasonably constitutes a The NRC believes that it is indeed likelihood of a terrorist event. One threat to public health and safety. In appropriate for the Agreement States to commenter noted that inspections addition, making these requirements regulate the physical protection of insure that licensees are performing applicable to Agreement State licensees category 1 and category 2 quantities of operations in such a manner as to meet through the Agreement State Program radioactive material while in transit regulatory requirements as they stand. allows Agreement States to impose under the provisions of the 274b. One commenter noted that the NRC has these requirements on its licensees and Agreements and the continued oversight not conducted a national performance- makes Agreement States responsible for provided by the NRC. Many of the based assessment of the current orders. enforcement of these requirements on transportation requirements fall within Commenters stated that the rule was its licensees. the Compatibility Category B, Program overly prescriptive. Several commenters Comment A47: One commenter noted Elements with Significant stated that the requirements should be that while the NRC has regular oversight Transboundary Implications. Agreement graded for different types of facilities of individual Agreement State programs State program elements under and material and fixed versus portable through its Integrated Materials Compatibility Category B should be material. Some commenters felt that the Performance Evaluation Program essentially identical to those of the NRC. NRC has lost touch with the way the (IMPEP), the NRC should evaluate its The NRC evaluates these program industry operates or wouldn’t suggest authority under IMPEP against the elements under IMPEP and can take unnecessary changes. authority granted to the Secretary of actions when a State has a program that Commenters noted that monetary Transportation under U.S.C. Title 49 is not compatible including termination burden of compliance with the orders Section 5125—Preemption. Prior to or suspension of an agreement. We has required industry to reduce the relinquishing its regulatory authority to believe that this mechanism amount of resources allocated for other the Agreement State, the NRC should appropriately addresses the concern that aspects of its business and has made it ensure that it is authorized and capable a mechanism be in place to address the challenging to compete in the global of preempting an Agreement State scenario of Agreement State regulations, market. Some commenters expressed

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concern over the cumulative impact a strategic rulemaking, which may need Comment A50: One commenter stated noting the implementation of the to include changes in legislative that the total cost of the 10 CFR part 37 National Source Tracking System and authority, to develop a 10 CFR part 37 revision should include the costs that the license verification system. One with a more risk-informed and the licensees incurred to meet the orders commenter noted that it wasn’t just the performance-based model. The and that the estimate and burden on initial outlay, but also the annual commenters noted that this effort licensees is out of proportion to the burden that needed to be considered. should include evaluating requirements actual risk. Another commenter stated One commenter noted that the rule for different types and quantities of that the option 1 cost analysis was would impact licensees who have radioactive material and different uses, inappropriate because it assumed no previously not been impacted by the working with States and law security measures had been orders. The commenter noted that enforcement groups to determine implemented, and it should have educating and inspecting these new effective ways to transport material and considered that the orders were in licensees will impact the NRC staff working with law enforcement groups to place. The commenter stated that an resources, and could diminish their determine effective ways that an LLEA additional cost option determining the focus on ensuring security compliance can know and provide emergency cost of implementing a new 10 CFR part for existing category 1 and category 2 response support to licensees. Another 37 with requirements equivalent to the sources. One commenter noted that the commenter suggested using subparts orders would be helpful. Several rule would be burdensome on the based on the type of business and commenters stated that the cost regulatory agency and LLEAs, as well as security risks commensurate with each estimates were underestimated but did licensees. type. One commenter noted that the not offer better cost estimates. One One commenter suggested placing two-part approach would be a major commenter stated that the annual generic requirements in the rule and accomplishment for the NRC and would recurring licensee cost was then address subsets of licensees in the be consistent with NRC’s ‘‘Principles of underestimated by at least a factor of 2. NUREG–1556 series. One commenter Good Regulation.’’ The commenter One commenter estimated that it would suggested that the proposed rule should noted that this approach would reflect cost about $30,000 to implement the be renoticed after making changes with the Commission’s Staff Requirements provisions and about $20,000 every year more detail provided as to the actual Memorandum (SRM) on the draft policy to maintain the plan and that the safety and security benefits to be statement on the protection of Cesium- reinvestigation would cost between obtained. One commenter noted that the 137 Chloride sources (SRM for $10,000 and $20,000 depending on the rule does not conform to the recent draft COMSECY–09–0029) which states: ‘‘any policy statement on the Protection of Cs- number of users that need to be additional efforts to enhance security for rechecked. One commenter noted that 137 Chloride sources. these sources should consider whether Response: The NRC understands the the regulatory analysis did not there are benefits of further risk concerns of the commenters and has specifically describe the average reduction given the NRC’s actions to tried to limit the burden while licensee on which the analysis is based. date and the current threat continuing to ensure the adequate safety One commenter (a research facility) environment.’’ and security of sources of concern. The noted that it would need to process an security orders were issued based on the Response: It was never the NRC’s additional 60 individuals per year and specific knowledge and information intent to include in the rulemaking only that the rule would cost approximately available to the Commission at the time the order provisions. While there are $23,000 per year and an initial outlay of the orders were issued. The NRC never differences from the orders, the NRC $30,000. One commenter noted that it intended to simply make generically believes that the requirements contained had added one additional employee to applicable security requirements in the final rule are necessary. As a address the order requirements and that identical to the orders. The NRC always general principle, the NRC prefers to the rule would add yet more burden. intended to consider insights gained construct performance-based regulation One commenter stated that the from the implementation of the orders rather than explicit, prescriptive regulatory analysis does not provide any and implementation of the inspection regulation where possible. The rule does technical data to support the statement program, as well as other factors. A not dictate what measures each licensee that the qualitative benefits outweigh number of changes have been made must use to protect the radioactive the costs of the rule. One commenter based on specific public comment. The materials under its possession and noted that a major medical facility could result of these rule changes significantly control, rather the rule allows the have hundreds of individuals in its reduces the burden of the final rule as licensee to choose those measures that access authorization program. One compared to the proposed rule. The best meet its needs. The NRC believes commenter noted that it had spent about NRC believes that the provisions in the that the rule is risk informed and $250,000 on physical site upgrades final rule are necessary to protect the contains an optimized mix of alone and has recurring costs of $50,000 public health and safety and ensure performance-based and prescriptive annually for the alarm system to support security. There could be some facilities requirements. A two-step process to the existing orders. One commenter impacted by the rule that were not conduct two rulemakings would be a stated that it spends approximately impacted by the orders. Some facilities, waste of not only to the NRC and $100,000 a year for the transportation of such as reactors and fuel facilities, may Agreement State resources but also category 1 and category 2 sources under be impacted by 10 CFR part 37. There those of licensees. The basic the orders. The commenter noted that should not be any byproduct material requirements in the orders were the the amount of employee resources to facilities newly impacted by 10 CFR same for all licensees. The NRC is aware implement and support the orders has part 37 that were not impacted by the of the areas that need enhancements and been approximately 400 man days orders. these areas are addressed in the rule. initially and 75 man days annually with Comment A49: A couple of The NRC did add a new option to the total costs to date of approximately $1.5 commenters stated that the NRC should regulatory analysis for the final rule that million. The commenter estimated that only include the order provisions in the addresses only including the order to implement the additional rule and then start work on developing provisions in the rule. requirements in the rule, it would cost

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$250,000 initially which includes 100 implement the security provisions and a matter of compatibility. A State could man days to set up all the programs and that another 1,550 licensees would need choose to charge a fee whether the procedures and an ongoing annual cost to conduct some activities. The transport occurred under NRC or State of $100,000 to $200,000 for hiring at commenter is correct that the regulatory requirements. The fees aspect is beyond least one to two individuals as a flexibility analysis only addressed those the scope of this rulemaking. technical/administrative resource to that fully implemented the provisions. Comment A53: One commenter noted implement all the procedural and Comment A52: Two commenters that because Agreement States have 3 documentation requirements. The noted that the regulatory analysis does years to adopt regulations compatible commenter stated that the costs not address how harmonization between with the final rule, provisions need to assumed in the regulatory analysis the NRC proposed rule and eventual be made so licensees with both NRC and ($25,000 initially and $27,000 annually) Agreement State regulations will be Agreement State licenses who modify to be substantially underestimated. assured; specifically in regards to the their programs to comply with the NRC Some commenters noted that the requirements contained in subpart D. requirements are not cited as regulatory analysis did not identify any The commenter noted that noncompliant with the Agreement State quantifiable values and that the inconsistencies between Agreement license. qualitative benefits were identical to the State transport security requirements Response: A licensee must be in program in place today. One commenter could greatly hinder the ability to compliance with the regulations for the noted that National Nuclear Security transport category 1 and 2 quantities of jurisdiction in which it operates. Part 37 Agency (NNSA) is spending $26 million radioactive materials in commerce and is no different than any other regulation to implement voluntary enhancements could also serve as barriers to in that regard. A licensee that has at certain facilities. One commenter transporting category 1 and 2 quantities implemented the 10 CFR part 37 noted that it was not clear that NRC had of materials through an Agreement requirements should be in compliance considered the potential impacts to State. The commenter noted that it is with the majority of the provisions in licensee safety programs, research, and also unclear if the NRC considered what the orders. The licensee can have an increase in disused sources due to fees Agreement States may impose to discussions with its Agreement State ’’deteriorating financial circumstances’’ fund the cost of regulating the physical regulator about adopting the provisions (mentioned in SECY 10–0164) that may protection of material in transit. The before the State has issued compatible result from the rulemaking. commenter noted that the State of Iowa requirements. Response: The NRC appreciates the currently has what Industry considers Comment A54: One commenter information provided on cost and excessive fees to transport category 1 addressed the questions related to small considered that information when quantities of materials through the State. businesses. The commenter indicated estimating the costs in the final Response: The commenter is correct that the rule needs to be more risk regulatory analysis, increasing the that harmonization of the requirements informed and better recognize the actual annual cost of implementing the between the NRC and the Agreement risk associated with category 2 sources measures, increasing the number of States is not addressed in the regulatory by providing more flexibility. The individuals requiring a background analysis; the cost for the States to adopt commenter indicated that the annual investigation, and using different values the regulations is addressed. The final risk from a category 2 radioactive for a small, medium, and large facility. rule is a matter of compatibility between material dispersal device is between The regulatory analysis prepared to the NRC and the Agreement States. The 10,000 and 100,000 times less likely support the proposed rule did contain NRC analyzed the final rule in than many other sources of premature the cost information on the orders. As accordance with the procedure death that the United States population the cost has already been expended, it established within Part III, commonly accepts from smoking, is considered a sunk cost and is not ‘‘Categorization Process for NRC obesity, medical accidents, and auto included in the main analysis. The cost Program Elements,’’ of Handbook 5.9 to accidents. is provided for informational purposes. Management Directive 5.9, ‘‘Adequacy Response: The Commission has Many attributes considered in a and Compatibility of Agreement State determined that category 1 and category regulatory analysis can only be Programs.’’ Most of the provisions in 2 quantities of radioactive material expressed in a qualitative way and subpart D are Compatibility Category B warrant additional security measures. In cannot be quantified. Differences in because there are significant addition, the Radiation Source quality cannot be easily assessed or transboundary implications. The Protection and Security Task Force expressed. While it is possible that some Agreement States must adopt Category B found that the category 1 and category licensees may decide to go out of program elements in an essentially 2 quantities warrant enhanced security business and there could be additional identical manner. The Agreement States and protection. See also QA5 and QA6 disused sources, the NRC is not able to do have 3 years to adopt the regulations. in Section II of this document. predict how many, if any, companies For transportation of category 1 Comment A55: Two commenters might decide to go out of business. quantities of radioactive material, an provided input on the specific questions Comment A51: One commenter noted Agreement State licensee will continue related to information collection. On the that the regulatory analysis and to follow the NRC order on question of whether the proposed regulatory flexibility analysis did not transportation until the State adopts the information collection is necessary for reflect the actual number of licensees regulation. The order would then be the proper performance of the functions impacted (closer to 2,900) versus the withdrawn and the transportation of the NRC and the information has number actually implementing the would occur under the Agreement practical utility, one commenter agreed orders (about 1,400). States’ regulations. For category 2 with the need for signed consent but Response: The regulatory analysis did shipments, an Agreement State licensee questioned the usefulness of the credit reflect the 2,950 licensees that would be will follow the Increased Control history review and the FBI criminal impacted by the proposed rule. Section provisions on transportation until the history records check. The commenter 3.2.3 lays out the assumptions used in State adopts the regulations. As for the agreed that a licensee needs to have an the analysis. The analysis assumed that fees that a State may charge, the NRC individual’s employment and education 1,400 licensees would need to fully does not have any control as this is not history, but questioned the need to

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require the individual to provide the information a second time. Effort for the factors to consider, the decision-making information multiple times if the personal history disclosure was not responsibility remains unchanged. licensee already has the information in included because it was viewed as Comment A57: One commenter stated the individual’s employment record. information that would be provided that the sections for the Paperwork The commenter did not address the when seeking employment and Reduction Act Statement and utility of any other aspects of the completing an application for Regulatory Flexibility Certification do information collection. Two employment. The information on cost not appear to have included pool commenters did not agree with the and time was factored into the irradiator and manufacturer/distributor burden estimate. One commenter stated regulatory analysis for the final rule. As licensees with category 1 quantities of that the estimate of the number of for the E-verify system, a licensee may radioactive material in their scope, and individuals who would need to have a use it as one tool for completing a the documents will need to be background investigation was low; but background investigation, but use of E- augmented. provided no other estimates. The verify alone would not meet the Response: Pool irradiator and commenter also indicated that the cost requirements for the background manufacturer/distributor licensees were of the background investigation was investigation. Guidance on the included in the analysis conducted for underestimated, and estimated that a background investigation is available in the Paperwork Reduction Act Statement background check would cost from $60 the implementation guidance. and the Regulatory Flexibility to $250 and higher. The commenter Comment A56: Commenters requested Certification. guidance for various provisions of the noted that it would take licensee B. Access Authorization Program personnel 10 hours to gather, submit, rule, noting that the guidance was and review background information for necessary for both the licensees and the Comment B1: One commenter stated a normal background check, to more regulatory agency. Commenters were that § 37.21(a) did not address the than 20 hours if the individual had specifically interested in guidance for requirements for currently approved resided in multiple State and foreign both the determination on the reviewing access authorization programs or the jurisdictions. The commenter estimated official that would be used by the actions that must be taken by the that it would take an individual 2 hours regulator and for the determination for licensee within a specific timeframe. to complete a personal disclosure those to be allowed unescorted access to Another commenter noted that it was history, and that this was not included the material that could be used by the not clear what licensees that in the analysis. The commenter noted reviewing official. Commenters felt that implemented the orders needed to do. Response: The NRC did not approve that a licensee would have to develop a the lack of criteria or guidance will access authorization programs under the compliance program required by the result in inconsistent approval or denial orders. The NRC approved them in the Fair Credit Reporting Act to obtain of the individuals. Commenters noted sense that we inspected and did not cite credit history and arrest records. A that compliance determinations are them if their programs were adequate. second commenter stated that the performance based and that the All licensees that allow unescorted current labor rate for nonroutine regulatory agency would have no access to an aggregated category 1 or technical support is $149 per hour. The recourse but to deem a licensee’s category 2 quantity of radioactive commenter stated that first-year determination appropriate as long as the material must have an access implementation would be about 320 licensee documented the basis. Several commenters agreed that licensees authorization program that meets the hours, or $47,000 and about $30,000 a should be allowed flexibility in requirements of subpart B on the date year thereafter. On the question of conducting the background reviews. that the rule is effective in the State in whether the burden of the information One commenter suggested that the NRC which the licensee conducts its collection could be minimized, one should review 49 CFR 73.8 for specific operations. The NRC is providing a 1- commenter noted that a more prudent guidance for denying an individual year implementation period for the final and efficient method of checking access. rule. background and overall status of an Response: Guidance on the rule is Comment B2: One commenter employee is to use the federal database available in the document requested clarification as to whether ‘‘E-verify.’’ The commenter stated that ‘‘Implementation Guidance for 10 CFR § 37.21(a)(2) is based on possession or the NRC could rely on the E-verify part 37 Physical Protection of Byproduct authorized possession. check as one of the background check Material Category 1 and Category 2 Response: The proposed rule tools for a licensee’s access Quantities of Radioactive Material,’’ contained several provisions that were authorization program. The commenter which will be published at based on authorization to possess. These also requested that guidance be given on approximately the same time as this provisions are not contained in the final FBI criminal background reports to final rule. Guidance on what should be rule. The NRC has revised the text to assist a licensee’s understanding of what considered in evaluating the results make clear that the provisions apply the information in the report means. from the background investigation is in only to those that actually possess the Response: The NRC notes that the FBI the document. The document does not material. criminal history records check is contain a checklist, but provides general Comment B3: One commenter stated required by the EPAct. The NRC has guidelines for making the determination that in § 37.21(b), the term removed the requirement for a credit on whether to grant an individual ‘‘unreasonable risk’’ should be defined. history evaluation as part of the unescorted access. The determination Response: The NRC disagrees with the background investigation. See response basis is performance based; each comment. The NRC acknowledges that to Comment B67 for further discussion licensee is responsible for making its implementation is dependent on the on credit history. There is no own determination. Under the orders, judgment of the reviewing official; requirement for an individual to provide the trustworthiness and reliability however, this is a performance-based employment and education history official made the determinations of who requirement and provides the licensee multiple times. If the licensee already was granted access and that official is with flexibility in the implementation of has that information, it does not need to now called the reviewing official. its program. Although, the NRC has go back to an individual to obtain the Although there will be additional removed the term ‘‘unreasonable risk’’

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from the requirement, the concept are used for shipments of category 1 investigation for individuals that have remains because the concept is inherent quantities. undergone the DOT check. in the definition of trustworthy and Response: The movement control Comment B10: Two commenters reliable. center personnel were included because requested clarification whether an Comment B4: One commenter stated they have access to SGI–M. The vehicle engineer designing the security systems that § 37.21(c) should be deleted as driver and accompanying personnel for an irradiator room would need being redundant to previous sections were included, in part, because they unescorted access. The commenters about who is approved for unescorted have access to the SGI–M information. noted that it would be beneficial if the access. Whether these individuals come under requirements for individuals with Response: The NRC disagrees that 10 CFR part 37 access authorization access to sensitive information were § 37.21(c) is redundant. The section program or not, they would still need to clearly described. establishes the individuals that are be fingerprinted and determined to be Response: Whether to grant subject to the access authorization trustworthy and reliable under the unescorted access to an engineer program. requirements of 10 CFR part 73. The designing the security systems would be Comment B5: One commenter stated NRC has revised § 37.21(c) to reflect that up to the licensee. The licensee could that § 37.21(c)(1) introduces new criteria those with access to SGI may be placed arrange for the engineer to be escorted for approval (individuals with job duties under 10 CFR part 37 access while in the irradiator room or could that require unescorted access) that are authorization program or they may be conduct a background investigation and not otherwise used in the regulations. part of a separate program that meets the grant the engineer unescorted access if The commenter indicated that if it was requirements of 10 CFR part 73. Law the licensee believed it was warranted. considered necessary to limit approvals, enforcement personnel are relieved from The requirements for individuals with the section should be modified by the fingerprinting and background access to sensitive information are inserting the word ‘‘only.’’ check that are required for access to SGI contained in § 37.43(d). Response: The NRC disagrees with the Comment B11: One commenter asked and are relieved from the background comment. Section 37.21(c)(1) what shipping information requires an investigation required under 10 CFR establishes the individuals who are access authorization program. subject to the access authorization part 37. Response: The shipping information program and, therefore, need to undergo Comment B8: One commenter stated related to shipments of category 1 a background investigation and be that § 37.21(c)(3) conflicts with the quantities of radioactive material is determined to be trustworthy and requirements of § 37.21(c)(1)(ii), (iii), considered to be SGI–M. Part 73 reliable. (iv), and (v) as none of those personnel contains requirements for individuals to Comment B6: One commenter asked if require unescorted access to radioactive undergo a background check and be the shipper or the carrier was material. determined to be trustworthy and responsible in § 37.21. Response: The NRC disagrees that reliable before being allowed access to Response: The licensee is responsible there is conflict with the requirements. SGI. A licensee can include those for assuring that all individuals who Some of the personnel referenced in individuals needing access to SGI–M in have unescorted access to the category § 37.21(c)(1) were part of the access its access authorization program under 1 or category 2 quantities of radioactive authorization program because they 10 CFR part 37 or in a separate program material have undergone a background required access to SGI information under 10 CFR part 73. If a licensee has investigation (or fall under one of the which also requires a determination of an access authorization program that categories for relief) and been trustworthiness and reliability. meets the requirements of 10 CFR part determined to be trustworthy and However, the requirements for the 37, the program will also meet the reliable. A commercial carrier is subject background investigation required for requirements of 10 CFR part 73 for to separate State and federal SGI and unescorted access are not access to SGI–M. transportation security requirements, identical, so the NRC has revised Comment B12: One commenter noted and is not a licensee under 10 CFR part § 37.21(c) to reflect that those requiring that a licensee’s access authorization 37. access to SGI may be included in the program expands beyond those Comment B7: One commenter noted access authorization program, but are permitted to have unescorted access to that movement control center personnel not required to be included. The category 1 or 2 sources and, therefore, were included in the list of individuals licensee can choose to have a separate the rule text must accurately reflect the who were to be subject to an access program to provide access to SGI need to include such individuals control program. The commenter noted information. without requiring them to have that the licensee may not have direct Comment B9: One commenter noted unescorted access to the sources. oversight of these centers and the center that the specific requirement for access Response: The access authorization may be monitored by LLEA or other to materials included transport of program may also apply to those that security or emergency personnel which category 1 and category 2 materials and require access to SGI, such as personnel could make enforcement difficult or that the requirements should be involved in transportation of category 1 impossible as these individuals would consistent with 10 CFR part 71 and 49 quantities of radioactive material. The likely not be responding to an CFR 171 through 180. rule has been clarified to reflect that emergency. One commenter noted that Response: Part 71 does not contain those with access to SGI may be part of the vehicle driver and accompanying requirements related to access of the access authorization program for individual(s) and movement control materials. The referenced DOT materials unless the licensee chooses to center personnel are typically employed regulations do not contain requirements have a separate program. Although the by the carrier, and the access for access to materials, except for a comment is not clear, the NRC believes authorization program should be under driver who needs a hazardous material that the commenter was referring to the the carrier’s responsibility. One certification which includes fingerprints reviewing official as someone that commenter stated that licensees can’t and an FBI criminal history check. Part should not be required to have implement the requirement of 37 provides relief from the unescorted access to the sources. The § 37.21(c)(1)(ii) and (iii) when carriers fingerprinting aspects of the background NRC believes that it is important that

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the reviewing official undergo the same to require fingerprinting of the However, 62 percent did support the background investigation as those being reviewing official. The majority of those requirement that the reviewing official reviewed and approved by the responding indicated that the other be fingerprinted. Some commenters reviewing official. Therefore, the aspects of the background investigation noted that there may be some States that reviewing official is included in the were adequate to determine the may not have the authority to adjudicate access authorization program. See also trustworthiness and reliability of the fingerprints for approval. CRCPD the responses to B14 and B15. reviewing official, including several reported that 69 percent of the Comment B13: One commenter noted commenters that supported the responders to its survey indicated that that if the radioactive material is in a fingerprinting requirement. Several they do not have the necessary authority secured area within a room, then a responded that specific guidance and to conduct the criminal history reviews trustworthiness and reliability acceptance or rejection criteria must be without legislative action. Some of the determination shouldn’t be required for made available. Several commenters States noted that they have the authority personnel who need access to that room. indicated that the reviewing official but do not want to conduct fingerprint Response: Secured area can mean should meet all of the requirements for reviews. One State indicated that it may different things. If the material is unescorted access. Three commenters not have the statutory authority to write accessible by breaching a common stated that other aspects of the a rule to approve the reviewing official, barrier, then the individuals would need background investigation were not and another noted that it did not have to undergo a background investigation adequate but also indicated that they the authority unless there were clear and be determined to be trustworthy did not support the concept of a criteria. At least one State noted that it and reliable. See the implementation reviewing official. Based on its may not be able to completely protect guidance for examples. experience with the orders, one the findings of the criminal history Comment B14: In the proposed rule, commenter stated that the criminal records check from public release. the NRC specifically invited comment history derived from the FBI should Several commenters expressed concern on the issue of fingerprinting the serve as the sole basis. Most of the that the regulatory body (NRC or the reviewing official. Commenters were commenters did not think that the Agreement State) would be basing the specifically requested to provide fingerprinting placed too large a burden regulatory approval of the reviewing information on: (1) Whether the on the licensee. Of the two commenters official on only the results of the reviewing official needs to be that felt that fingerprinting did place too fingerprints for a criminal history fingerprinted and have an FBI criminal large of a burden on the licensee, one of records check, and the other elements of records check conducted; (2) whether the commenters did not explain its the background investigation would not the other aspects of the background rationale and the other stated that it was be part of the approval process. investigation are adequate to determine unnecessary for the reviewing official to Commenters noted that neither the the trustworthiness and reliability of the have access to the material. One regulatory body nor the licensee would reviewing official; (3) whether there are commenter indicated that this placed have the benefit of the complete other methods that could be used to information on an individual in order to ensure that the reviewing official is too large a burden on the States. On the trustworthy and reliable; (4) whether the question of whether the States have the make an informed determination. requirement to fingerprint the reviewing authority to conduct reviews of the Commenters felt that the approval of the official places too large of a burden on nominated individual’s criminal history reviewing official should remain with the licensee; and (5) whether the record, the response was inconclusive, the licensee and not the regulatory body Agreement States have the necessary with many commenters noting the because the licensee has more direct authority to conduct reviews of the authority was undetermined or not clear personal knowledge and experience nominated individual’s criminal history whether the State had authority. One with the individual, and the licensee record. Twenty commenters provided State indicated that it did have the has much more to lose by approving an responses to the specific questions on authority, two States that they probably incompetent reviewing official. Some this subject. had the authority, and one State commenters supported the approval of Of those that provided responses to indicated that it did only if specific the reviewing official to be an outside the questions on fingerprinting of disqualifying criteria are put in the agency such as the NRC as a logical reviewing officials, the commenters regulations. Suggestions for other methodology. were evenly split on whether the methods that could be used to ensure Some commenters noted that the reviewing official should be that the reviewing official is trustworthy regulator should not deny someone fingerprinted. Of those that responded and reliable included deferring the based only on the fingerprint results. no on the fingerprinting, most did not decision to licensee management using Several commenters noted that this support the concept of a reviewing best business practices; using a would put additional resource burden official at all and stated that the background investigation by a on the regulatory body and that there is trustworthiness and reliability official professional such as a police no compelling evidence of threat to established under the Increased Control investigator, private security clearance public health and safety or security or Orders should remain in place. One of contractor, or human resource that the current system is not working. those opposed to the fingerprinting of professional; and use of employment Some States expressed concern over the the reviewing official stated that the history with the licensee. possible liability for approving a official should be approved by the In addition to those that addressed the reviewing official. Some commenters licensee as did a couple of the specific questions, 33 commenters objected to the need to submit or commenters that indicated support for addressed this subject. The Conference remove the background check results fingerprinting. One of those supporting of Radiation Control Program Directors outside of their offices and send them to fingerprinting was opposed to requiring (CRCPD) conducted a survey of the the regulatory body. Commenters the individual to have access to Agreement States, and 69 percent of questioned how the Agreement State radioactive material. The commenter those that responded disagreed with the will be able to review the fingerprint suggested that the NRC table this requirement for the regulatory body to results when the fingerprints are sent to element until NRC is granted authority approve the reviewing official. the NRC. One commenter stated that the

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rule should specify who evaluates all of would be given unescorted access, then permitted unescorted access, and the the information for the reviewing the regulation should be amended to phrase ‘‘as part of their job duties’’ has official, as a licensee is required to have state as much. One commenter noted been removed. However, these the information reviewed before that the orders were quite emphatic that individuals are not being required to submittal of the fingerprints. The no individual should be granted access physically access the material. The proposed rule puts the burden of review unless the individual actually needed changes were made to better match the of fingerprint results on the regulatory access and that requiring the reviewing language in the AEA. The compatibility body which will result in a resource official to have access appears to reduce of § 37.23(b)(3) was changed to Category burden. Commenters noted that it is security. Several commenters noted that C to allow States to be more restrictive unknown what the impact on the workaround needed to require as it relates to access to the material. Agreement States’ resources will be to fingerprinting was an inappropriate Some States may have authority to begin approving reviewing officials. approach and that NRC should complete require fingerprinting by use of other Response: After considering the the process of obtaining from Congress mechanisms than the AEA. comments, the NRC has decided to the authority to fingerprint the Comment B16: Several commenters change the approval for the reviewing reviewing official. Commenters noted suggested allowing a reviewing official official. The NRC (or Agreement State) that the requirement is unduly approve others to be a reviewing official will no longer approve the reviewing restrictive on management options and as this would provide the licensee with official. The final rule adopts a similar an invasion of the rights to operate a more flexibility in assigning individual process to what was in the Increased business as they see fit. Commenters duties. Commenters noted that the Control Orders. Each licensee will be also noted that there may be other restriction seemed arbitrary. One of the required to provide the name of the requirements surrounding unescorted commenters noted that there was no reviewing official(s) to the NRC (or access that could be implemented in the reason why a reviewing official couldn’t Agreement State) and certify, under oath future and may not apply to the approve someone as there is no or affirmation, that the reviewing reviewing official that could cause difference in the determination for a official is trustworthy and reliable. By hardships for licensees. While a few reviewing official and someone for the licensee certifying under oath and commenters were opposed to the unescorted access. Commenters noted affirmation that the individual is requirement to have the reviewing that if this requirement was an attempt trustworthy and reliable, the NRC official fingerprinted, most of the to maintain a list of reviewing officials believes that it adequately addresses the commenters did not object. One it could be accomplished in a different good faith presumption concern. This commenter noted that relying on manner. certification occurs after the licensee someone to compile the information and Response: The NRC does not believe that the reviewing official should be has completed the background have the reviewing official make the allowed to approve another individual investigation for the reviewing official. final decision also introduces the to be a reviewing official. While the The determination basis for the possibility of the individual compiling background investigation is identical, reviewing official is subject to the information to act in a malevolent the responsibility for the reviewing inspection. If the individual has manner. One commenter suggested the official is greater. However, under the undergone fingerprinting and an FBI following language: ‘‘Reviewing officials final rule, a licensee is able to name its criminal history records check, a must meet the necessary requirements own reviewing officials. The existing licensee can continue to use the to have unescorted access to category 1 trustworthiness and reliability official or reviewing official could be involved in or category 2 quantities of radioactive the reviewing official used under the the background investigation material.’’ Two commenters noted that, orders. evaluation. See also response to Comment B15: Many commenters if a reviewing official is granted comment B14. objected to the need to grant the unescorted access as a routine job Comment B17: One commenter reviewing official access to the requirement, the individual receive and suggested adding the word ‘‘nominated’’ radioactive material or SGI. Many satisfactorily complete radiation safety before reviewing official in § 37.23(b)(5) licensees have used Human Resources training required by the licensee. because the person is not a reviewing (HR) personnel to conduct the Response: The NRC believes that it is official until approved by the NRC. background investigations under the essential that the individual that Response: The requirement for orders as they are the hiring experts for approves others for unescorted access to nominating a reviewing official has their companies. It was further noted radioactive material undergo the same changed in the final rule. A licensee that HR personnel would not have a background investigation before now names the reviewing official and need for unescorted access to category 1 approving individuals for unescorted certifies under oath and affirmation, to and category 2 quantities of radioactive access. The NRC needs to have the NRC, that the reviewing official is material. Licensees noted that this confidence in the integrity of the trustworthy and reliable. See also means that HR personnel are either reviewing official. The reviewing response to Comment B14. prohibited from doing the access official is one of the layers for defense- Comment B18: Two commenters authorization or must be permitted in-depth of the security program. If the objected to the wording in § 37.23(b)(4) access to the material or SGI. Further, reviewing official exercises the and (5) that implies that the reviewing commenters note that permitting HR permission for unescorted access to the official permits unescorted access. The personnel access creates possible material, the individual would need to commenters agreed that the reviewing radiation safety/security issues or undergo any required training, official should be the individual who creates an untenable business model for including any safety training, before makes the trustworthiness and Increased Controls licensees with no actually having unescorted access. reliability determinations but asserted evidence that the current system under There are often individuals at facilities that the reviewing official should not be the orders is flawed in any way. Some that have unescorted access permission the individual who gives permission for commenters noted that if it is the intent but seldom exercise the permission. The unescorted access. The commenters simply to have this person undergo the language has been revised slightly to noted that after a positive determination same level of scrutiny as those who note that the reviewing official must be is made, the actual determinations for

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unescorted access should be controlled requirement for other individuals. The have fingerprints on file from by someone else such as the RSO. The commenters also noted that 10 CFR part submitting fingerprints again. commenters suggested that the two 73 did not contain a similar provision. Response: The NRC disagrees with the sections be revised to remove the permit Response: The NRC disagrees with the comment in part. The commenters have unescorted access language. The comment. Because the reviewing official misunderstood the grandfather clause. commenters also suggested that has extra responsibility in the access The T&R officials would only be § 37.23(e)(2) be modified by changing authorization program and will be grandfathered if they had been the word ‘‘permit’’ to ‘‘authorize.’’ making the determinations to allow fingerprinted under the orders for either Response: The NRC agrees with the access, the NRC believes that it is unescorted access to the radioactive comment. The NRC has revised the necessary for the reviewing official’s material or to SGI. If the T&R official has language in § 37.23(b)(1) (formerly fingerprints to be taken by an entity that not previously undergone the paragraph (b)(4)) to read: ‘‘Reviewing will verify that the identification fingerprinting and criminal history officials are the only individuals who matches the person being fingerprinted. records check, he or she would need to may make trustworthiness and This ensures the identification of the complete the fingerprinting before reliability determinations that allow individual submitting the fingerprints. making any additional determinations individuals to have unescorted access to Without this requirement the reviewing for access to material. The expanded set category 1 or category 2 quantities of official could submit the fingerprints of simply referred to those individuals, radioactive materials possessed by the another individual that is known not to including new employees, who might licensee.’’ The NRC has removed the have a criminal history or known newly require a background provision in § 37.23(b)(5) as it was terrorist ties. investigation. duplicative of paragraph (b)(4) (now Comment B22: Two commenters Comment B24: Several commenters noted that both the NRC-Agreement paragraph (b)(1)). The NRC has not asked how a licensee will know if an State working group and the NRC staff revised the language in § 37.23(e)(2) appointed reviewing official has been steering committee developing the because permit is the term used in the approved. Commenters also asked how fingerprinting orders discussed at great AEA. long the review would take. One Comment B19: One commenter noted length whether to require fingerprinting commenter asked the NRC to describe that § 37.23(b)(5) is redundant as and background checks for T&R the controls that will be in place to § 37.23(b)(4) conveys the same officials. Under the orders, T&R officials protect the personal information requirement. were not subject to the requirements. provided to the NRC on behalf of the Response: The NRC agrees with the Commenters noted that they were not prospective reviewing official. One comment and has removed § 37.23(b)(5) aware of any subsequent developments from the rule. commenter noted that the regulation that would change the situation and Comment B20: Two commenters does not indicate what the NRC will do now warrant requiring fingerprinting recommended that the reviewing official with the fingerprints and how long the and background checks for reviewing be allowed to authorize access to SGI. NRC retains personal information and officials now required under part 37. Response: The reviewing official may the FBI data. The commenter wanted to The commenters objected to what they approve individuals for access to SGI. know how long the FBI and NRC retain called the appearance of an attempt to Part 73 requires that a reviewing official the fingerprints and personal incorporate in rule a concept that did conduct the background check review, information and who they can or will not have consensus and was not but does not specify who that individual share that information with. incorporated after going through the is or specify any qualifications for the Commenters were concerned how the previous security orders working group position. A licensee can choose to use transition period, before a reviewing process. They are opposed to requiring the same individual for both the SGI official is approved, could impact a the reviewing official to undergo access under 10 CFR part 73 and program. Some commenters questioned fingerprinting and a background check unescorted access under 10 CFR part 37. the length of time for NRC review. because in their opinion the Comment B21: One commenter noted Response: The final rule does not requirements provide no plausible that licensees were allowed fingerprint contain the provision for the NRC (or added benefit to the existing structure exemptions based on submittal to other Agreement State) to approve the under the orders. governmental programs, such as those to reviewing official. The only information Response: The 10 CFR part 37 access Select Agents or government provided to the NRC is the name of the working group considered the order clearances. The commenter noted that individual and the fingerprints. The requirements, lessons learned, these programs allow for licensee NRC typically does not retain the implementation issues, inspection personnel to be trained to take the fingerprints and FBI results beyond 30 issues, recommendations from other fingerprints but that the rule does not days. Either the cards are destroyed or reviews, as well as the comments on the allow the reviewing official to be the electronic file is deleted in preliminary rule language. The 10 CFR fingerprinted by the licensee personnel accordance with Federal guidelines. part 37 working group determined that which will result in additional cost to Comment B23: A few commenters there was a potential gap with the travel to an authorized agency and fees indicated that the T&R officials under individual approving others for access to have the authorized agency take the orders would be grandfathered and without undergoing the same fingerprints. Two commenters noted become reviewing officials under the background investigation. Requiring the that the requirement for the fingerprints rule. Another commenter wanted to reviewing official to undergo a of the reviewing official must be taken know what is meant by the statement background investigation addresses the by a law enforcement agency, Federal or that the already deemed reviewing good faith presumption. See also the State agencies that provide official may continue to act in that response to question B5 in Section II. fingerprinting services to the public, or capacity for an expanded set of persons, Comment B25: One commenter commercial fingerprinting services i.e., what is classified as an expanded objected to the timing of the submittal authorized by a State to take fingerprints set of persons. One commenter of the fingerprints for the reviewing and that this seemed arbitrarily recommended revising the rule to official, noting that the approval process restrictive and was not a similar relieve reviewing officials who already would be timelier if the fingerprints

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were processed at the same time the Response: The licensee is now elements of the background licensee is conducting the other responsible for approval of the investigation. elements of the background reviewing official. The NRC is not Comment B33: One commenter investigation. involved in the decision. See also questioned whether the NRC would Response: The requirement for NRC response to comment B14. develop a standard consent form and approval of the reviewing official has Comment B31: One commenter background questionnaire form so that been removed from the rule. The rule suggested changing the characteristics everyone asks the same questions and requires the licensee to certify that the derived from the background evaluates on the same basis. reviewing official is trustworthy and investigation. The commenter stated Response: The NRC has included a reliable and to then provide the name of that for the reviewing official to state consent form in the guidance that could that individual designated as the that an individual is ‘‘trustworthy and be used by licensees. A standard reviewing official to the NRC. See also reliable’’ implies more of an intimate background questionnaire was not response to Comment B14. knowledge of the characteristics of a included as this would be similar to the Comment B26: One commenter noted person than would be gained from information included in applications for that many of the items in subparts A simply running the required checks. employment. Information would through D do not reference SGI, but the The commenter suggested that defining include job history, education history, requirements in this rule apply, and the an individual as ‘‘low-risk’’ may be and a list of references. inconsistencies must be corrected. more appropriate. Comment B34: One commenter stated Response: The NRC disagrees with the Response: The NRC disagrees with the that § 37.23(e) was improperly named as comment. Requirements for protection comment to change the rule. The NRC no basis for making a determination was of SGI are contained in 10 CFR part 73, recognizes that determining that an included, only a requirement for not 10 CFR part 37. Part 37 contains individual is considered to be licensees to develop, implement, and appropriate references to the trustworthy and reliable is subjective, maintain written procedures with the requirements for SGI that are contained and not a guarantee that the individual determination basis that they deem in §§ 73.21 and 73.23. won’t ever commit, or conspire to assist appropriate. Response: The NRC disagrees with the Comment B27: One commenter others in committing, a malevolent act. comment. The section contains the requested that a section for a master The trustworthy and reliable concept is requirement for the reviewing official to materials licensee to approve reviewing in the orders and is in other locations make determinations on authorizing officials at the permittee level facilities in the regulations. be added. unescorted access, and the NRC believes Comment B32: One commenter Response: The licensee is now that it is appropriately named. The suggested that, for those individuals responsible for approving the reviewing licensee is provided flexibility in the who are relieved from the official. See also the response to criteria that it uses to make a fingerprinting, identification, and other comment B14. determination. Comment B28: One commenter noted elements under § 37.29, the licensee Comment B35: One commenter stated that it was not clear how the licensee should be exempt from the requirement that NRC should provide the specific would comply with the requirement in in § 37.23(c) to provide informed and detailed adjudication criteria that § 37.25(a)(1) to complete fingerprinting consent and obtain a signed consent will be used to approve the reviewing and an FBI identification and criminal form. The commenter noted that it official. history records check for reviewing conducts a background investigation on Response: The guidance document officials before granting them all badge-holders (employees, fellows, contains the general criteria that the unescorted access inasmuch as NRC (or contractors, etc), the vast majority of NRC used in approving reviewing the Agreement State) would have the whom have no intent of applying for officials under the orders. The specific responsibility of reviewing the FBI purposes of unescorted access and that criteria to be used are up to each identification and criminal history there is no opportunity, or it is a licensee. records check information, in lieu of the misplaced opportunity, to request an Comment B36: One commenter stated licensee doing so. individual’s signed consent under this that licensees are not in a position and Response: The NRC (or the Agreement regulation at the point of background do not have the knowledge and skill to State) is no longer involved in the investigation initiation. The commenter ensure that personnel are trustworthy approval of the reviewing official. See stated that there should also be an and reliable and that all that licensees also response to comment B14. exemption for this situation as there is can be expected to do is to follow the Comment B29: One commenter raised no need to repeat the background NRC rule that was presumably written the issue of how individuals denied investigation just because an individual to provide licensees with methods to approval for reviewing official duties later determines a need to request screen personnel. will be tracked to avoid going to another unescorted access. Other commenters Response: Licensees are required to jurisdiction for approval. questioned why an individual that has follow the requirements in 10 CFR part Response: The final rule does not already been subject to fingerprinting 37 to acquire information about require the NRC to approve the now needs to provide consent. personnel and to make their own reviewing official. The NRC does not Response: Section 37.23(c) states that judgments of the trustworthiness and plan a tracking system to track the licensee does not need to obtain reliability of their employees. These reviewing officials. signed consent from those individuals determinations do not require Comment B30: Two commenters who have undergone a background specialized knowledge or skill and are requested information on what happens investigation under the orders or 10 CFR similar to the determinations that if the company appointed reviewing part 73. A signed consent is not licensees make in hiring decisions. official is denied, particularly in smaller necessary until the reinvestigation Comment B37: One commenter companies where the owner, manager, occurs. A licensee would not need to requested that § 37.23(e)(1) and (2) be or RSO may be the appointed reviewing obtain a signed consent from an revised to remove the requirement to official and how such a denial might individual subject to § 37.29, unless the review all of the background affect the operation of the company. licensee conducted one or more of the investigation information required in

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making a determination on demonstrated unreliability that would access authorization are not allowed trustworthiness and reliability. The result in withdrawal of the person’s access was redundant. The commenters commenter felt that some of the trustworthiness and reliability status. stated that a person denied unescorted information would be impossible to The other commenter stated that access would not be provided with a obtain and therefore, if you are required immediate removal was not warranted key or codes to access the sources, and to review all information, a licensee but should be done in a timely manner. a procedure is not needed. could never approve some personnel. The commenter suggested replacing Response: The NRC believes that The commenter suggested that the ‘‘immediately’’ with ‘‘as soon as procedures are necessary to implement language be changed to ‘‘collected practical.’’ Another commenter the access authorization program. Not background investigation information.’’ suggested removal from the list in a all licensees use keys or codes to control Several commenters suggested removing timely manner not to exceed 30 days access to the material. the term ‘‘disqualifying’’ from the after the determination. Comment B43: Two commenters paragraph as the NRC has not provided Response: The NRC agrees with the stated that for licensees subject to 10 a list of disqualifying factors. comment in part. An immediate CFR part 73 with additional radioactive Response: The NRC agrees with the removal from the list is probably not materials not covered by the 10 CFR comment and has revised the rule to necessary. However, prompt actions do part 73 security plan, the procedures specify that the evaluation is of the need to be taken to prevent access, such used for 10 CFR part 73 background information collected to meet the as deactivating his or her access code. investigations and updating of requirements. The NRC has also The NRC has revised the language to background investigations, etc., should removed the term ‘‘disqualifying’’ from reflect that the action should occur as be considered adequate to meet the § 37.23(e)(2). soon as possible but no later than 7 intent of 10 CFR part 37. One of the Comment B38: Two commenters working days. The NRC believes that it commenters suggested adding a new noted that in § 37.23(e)(3) ‘‘reasonable is important to maintain a current list of paragraph (5) to § 37.23(f) to read as assurance’’ is not defined. One of the those individuals that are allowed follows: ‘‘Procedures and policies commenters felt that the lack of clarity unrestricted access to the material. meeting the requirements of the security in this requirement and in what Comment B40: One commenter plans required by part 73 meet the documentation should consist of will questioned whether § 37.23(e)(3) means requirements of this subpart B of this result in disputes with NRC inspection that the licensee must document its chapter.’’ findings. One commenter objected to the basis for approval of the trustworthiness Response: The NRC agrees that a need to document the determination and reliability determination as a licensee does not need to maintain two basis for granting someone unescorted written policy. The commenter noted sets of procedures; however, a provision access. The commenter felt that only the that an alternate interpretation could be is not needed in the regulations. As long reasons for denial should be that the licensee must document a as 10 CFR part 73 procedure addresses documented. rationale for each individual’s the content of the required procedures Response: The NRC does not believe trustworthiness and reliability approval, under 10 CFR part 37, additional that ‘‘reasonable assurance’’ needs to be as opposed to a generic basis for procedures are not necessary. defined in the regulations. The approval for all applicants. Comment B44: One commenter determination basis is a performance- Response: The licensee must suggested that NRC develop a generic based requirement, and licensees are document the rationale for each set of procedures for the conduct of provided flexibility to develop criteria individual’s trustworthiness and background investigations as guidance that best meet their needs. The NRC reliability determination. The for licensees. believes that documentation of the documentation does not need to be Response: The NRC has not included determination basis is essential. The extensive. The NRC notes that the generic procedures for conducting a documentation does not need to be orders also required the licensee to background investigation. extensive. It can consist only of an document the basis for concluding that Implementation of background indication that no negative information there is reasonable assurance that an investigation requirements will vary was found during the investigation or an individual granted unescorted access is with the circumstances of individual explanation of why negative trustworthy and reliable. licensees. Guidance is available on the information did not disqualify the Comment B41: One commenter stated various elements. individual. Without documentation an that the access authorization program Comment B45: One commenter stated inspector could not be assured that the requirements were overly prescriptive, that in § 37.23(g) at least 10 days should individual had actually undergone the particularly the number of required be allowed for an individual to correct, required background investigation. procedures and amount of associated complete, or explain other components Documentation of the basis is also documentation. The commenter noted of the background investigation. beneficial to the licensee if it needs to that the licensee should be allowed to Response: The NRC has not specified reevaluate whether an individual determine the level of detail of its a timeframe in order to allow licensees should continue to have unescorted program as appropriate depending on flexibility to choose a timeframe that access. the size and complexity of the program. they believe is appropriate for their Comment B39: Several commenters Response: The NRC agrees with the program. The NRC has provided a 10- objected to the requirement in comment, in part, and has made some day timeframe to challenge the FBI § 37.23(e)(3) to immediately remove the changes to the access authorization criminal history records, and 10 days person from the approved list once he program. Section 37.23(f) has been would be an appropriate timeframe for or she no longer require access. One revised to remove some of the allowing a challenge of other aspects of commenter noted that ‘‘immediately’’ is specificity in the types of required the background investigation results. not defined and that it is not realistic for procedures. The licensee may choose the timeframe routine terminations such as student Comment B42: Two commenters that works best for it. graduations and deaths. The commenter noted that the requirement to have Comment B46: One commenter noted indicated that the only justification for procedures to ensure that individuals that since § 37.23(g)(2) specifies that the immediate removal would be who have been denied unescorted licensee can’t act on challenged

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information until the FBI goes through that a list of all persons denied or much time a licensee typically spends their due process, the FBI needs to be removed from the unescorted access list conducting a background investigation on board. The commenter suggested be maintained (± a month). Another for an individual. Twenty-seven adding a requirement to allow the commenter noted that maintaining a list commenters provided responses to the licensee to make a final determination if has no value as a licensee may develop specific questions on this subject. nothing is heard from the FBI within 30 a badge system that indicates a person’s Of those who provided responses to days. level of access. Another commenter the questions on the background Response: The rule contains noted that there was no value in keeping investigation elements, no one procedures for an individual to correct a list since the determination basis has supported inclusion of the local background check information that are to be documented. criminal history check as part of the identical to the procedures in Response: The NRC agrees, in part, background investigation elements and § 73.57(e)(2). The NRC disagrees that a and disagrees, in part, with the only one commenter indicated that the 30-day cut-off period is needed because comment. The NRC agrees that it is not credit history check added any value. such a provision would circumvent an necessary to maintain a list of those Most commenters indicated that the FBI individual’s right to complete, correct, individuals not approved for access and criminal history records check was and explain information obtained as a has removed the provision. The fact that sufficient, and that requiring a local result of the licensee’s background someone is not included on the access criminal history check was redundant investigation. Further, the 30-day cut-off list means that they should not be and overly burdensome. Many period may be unreasonably short. The granted unescorted access to the commenters noted that conducting a FBI has indicated that once it receives material, and a second list is not local criminal history check would be a formal challenge to an individual’s needed. There is currently no very difficult for foreign nationals and record, a recheck is completed within mechanism in place to share those who have moved frequently. Most approximately 3–4 weeks (52 FR 6310; information among licensees, so there is commenters stated that the credit March 2, 1987). Given the rule’s 10-day no benefit in maintaining a list of those history evaluation was not useful, and window for an individual to initiate a not approved for access. The NRC that poor credit and untrustworthiness challenge, the timeframe for resolution disagrees with the comment to remove do not go hand-in-hand. Commenters of challenges could potentially be the requirement to maintain every were also concerned that there were no greater than 30 days. Accordingly, the change to the list; however, the NRC has clear guidelines on what credit score NRC declines to impose a 30-day time changed the retention time to 3 years. would be cause for concern. Many limit for challenges to an individual’s The superseded lists are necessary for commenters expressed concern over the background check information. inspections. If an inspector discovers accuracy of information in credit Comment B47: One commenter stated something during an inspection, the histories. Some commenters questioned that § 37.23(h)(2) requires the licensee to superseded list could be reviewed to whether requiring a credit history check retain a list of persons approved for determine who had unescorted access was legal in some States, noting that the unescorted access for 5 years after the during a given time period. requirement was an invasion of privacy. list is superseded and noted that the Comment B49: One commenter One commenter suggested Social word ‘‘list’’ implies a written document. requested clarification whether the Security number (SSN) validation The commenter asked if the ‘‘list’’ may notification required by § 37.27(a)(2) is instead of the credit history check. include database records that contain different from the informed consent In response to the question of whether unescorted access approval and removal required by § 37.23(c)(1). the Agreement States have the legal dates and thus would allow discarding Response: The informed consent authority to require a credit history printed copies that are no longer useful. under § 37.23(c)(1) is consent to conduct check, most commenters indicated that The commenter noted that other NRC the background investigation. The they did not know. One State responded regulations (e.g., §§ 20.2110 and 37.51) notification required by § 37.27(a)(2) is that recent legislation prohibits allow records to ‘‘be stored in electronic specifically for the FBI criminal history discrimination based on credit history, media with the capability for producing records check. The licensee may but did note that the law provides for legible, accurate, and complete records develop one consent form that covers exceptions. One State indicated that it during the required retention period.’’ both aspects. did have authority, and another noted it The commenter recommended changing Comment B50: In the proposed rule, did if specific criteria were provided. the wording to add similar wording as the NRC specifically invited comment The majority of commenters indicated in other NRC regulations making it clear on the appropriate elements for a that the current background that the ‘‘lists’’ do not need to be printed background investigation. Commenters investigation elements from the orders copies. were requested to provide information were adequate. One commenter Response: Section 37.101 already on: (1) Whether a local criminal history suggested as appropriate elements: allows records to be maintained in review is necessary in light of the Verification of legal citizenship, electronic media. The language is requirement for an FBI criminal history personal references, former employers, similar to that provided in § 20.2110 records check; (2) whether a credit education, fingerprinting and FBI and applies to all records that are history check provides valuable criminal background investigation, and required by 10 CFR part 37. information for the determination of personal knowledge. Another Comment B48: Two commenters trustworthiness and reliability; (3) commenter noted that the elements objected to the requirement in whether the Agreement States have the should be employment history, § 37.23(h)(3) to maintain a list of authority to require a credit history education history, reference check, and individuals not approved for access. check as part of the background FBI history check. Two commenters Two commenters objected to the need to investigation; (4) the appropriate noted that the background investigation maintain every change to the list for 5 elements of a background investigation should be limited to the fingerprint- years. One commenter felt that it would and why any suggested elements are based criminal history check, and that seem reasonable to ask that a list of all appropriate; (5) whether the elements of an adverse criminal history could be persons currently granted unescorted the background investigation are too mitigated by satisfactory employment access be maintained (+ a month) and subjective to be effective; and (6) how history with the licensee. One

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commenter suggested a two-person rule and that the requirements are overly that when implementing the orders it for truly significant sources instead of a prescriptive. Commenters expressed had initiated a credit history evaluation background check. One commenter concern that the required checks could that created a significant uproar and indicated that the area that needed result in lost jobs if individuals did not resulted in several researchers review is the background investigation meet the standards set forth by the withdrawing their irradiator access for foreign nationals and students licensee. One commenter noted that a privileges. The commenter noted that because the required information is licensee would probably investigate the this created an atmosphere of distrust. troublesome to obtain. individual before hiring, which would Commenters felt that the information Most of the commenters felt that the result in multiple expenditures for one was not relevant when attempting to elements of the background eventual employee. One commenter determine trustworthiness and investigation were too subjective, and noted that the background investigation reliability and was unjustified and not that guidance or criteria were needed so could deter some talented and a valid gauge of trustworthiness and that the elements could be consistently knowledgeable professionals from reliability. Commenters noted that applied across the country with applying due to the potential invasion having a bad credit history did not make minimum second guessing by auditors of privacy. One commenter noted that the individual untrustworthy and that a and inspectors. Other commenters the NRC needs to find the fine line good credit history did not define an stated that while the elements were between cautious and correct and overly individual as trustworthy and reliable. subjective, this did not mean that they cautious and burdensome. Some commenters requested that the were ineffective. Commenters stated Some commenters felt that the FBI NRC provide some study or peer that there is a good mixture of criminal history checks and work reviewed document that demonstrates subjectivity and objectivity for the history are sufficient. Two commenters that persons with poor credit may be reviewing official to use in making a felt that the background investigation more easily coerced into helping determination of a person’s should only require a fingerprint-based terrorists. Some commenters stated that trustworthiness and reliability. One criminal history check and that adverse the requirement could potentially be commenter noted that some subjectivity criminal history may be mitigated by the viewed as discriminatory by workers. is necessary to evaluate the situation employment history of an employee One commenter questioned how to deal and the individual, as strict adherence with more than 3 years employment with identity theft. to guidelines could lead to rejection and with the licensee. Commenters noted Commenters noted the difficulty of a serious impact on an applicant’s that employment history is far more obtaining a credit history of individuals career. accurate for determining who have lived outside the United NRC also requested information on trustworthiness and reliability than any States, such as foreign nationals. how much time a licensee spends other check proposed. One commenter Commenters noted that in some cases it conducting a background investigation. suggested allowing licensees to use a was impossible to obtain the Responses varied from a few hours to graded approach taking into information. Commenters noted that months; the longer times typically consideration multiple variables, such many countries do not have a combined included wait times and not actual as: Whether the activity is category 1 or credit history reporting agency. One effort. category 2; the desirability of the source commenter expressed concern that One commenter suggested to an adversary; the physical security individuals who have established a centralization of the background present; how quickly the radioactivity credit history in the United States and investigation process, suggesting that could be removed from the device and whose credit history is poor will be at the security clearance process readily dispersed or used to cause a disadvantage over individuals with a performed by the Defense Industrial serious harm; the mobility of the source similar but undocumentable credit Clearance Security Offices for various or device, and the frequency of physical history in another country, as an Federal agencies could be tailored to inspection/observation by more than employer may choose to allow access to meet the 10 CFR part 37 requirements. one individual. One commenter the foreign national based on The commenter indicated that this suggested revising the requirement so incomplete information and deny access could be more efficient than requiring that the licensee could use either to a United States citizen based on more each licensee to develop a process. employment history evaluation, extensive but unfavorable information. In addition to those who provided verification of employment, or military One commenter noted that Title 11 of responses to the specific questions, 70 history evaluation. At least one the United States Code, Section 525, commenters addressed this topic. commenter noted that the insider threat makes it illegal to discriminate against Several commenters felt that the current would be best controlled with employees or job applicants solely background investigation elements were monitoring and detection. because of filing for bankruptcy. sufficient and questioned the value of Sixty commenters objected to the Another commenter noted that the the proposed additional elements (credit inclusion of the credit history element Equal Employment Opportunity history evaluation, verification of true in the background investigation. Commission has been cracking down on identity, military history verification, Commenters noted that, in the current efforts to disqualify potential hires with and criminal history review from local economic environment, a credit history bad credit history as the practice can be criminal justice resources). Some evaluation could reflect an inaccurate discriminatory. Several commenters commenters felt that specific justifiable and erroneous assessment of a person’s noted that some States have laws that evidence that current trustworthiness trustworthiness and reliability and prohibit employers from discriminating and reliability programs aren’t working could result in some skilled individuals against employees on the basis of credit is needed to justify any new being removed from employment history and prevent employers from requirements, and that a cost-benefit consideration. Commenters felt that the inquiring about credit history. One analysis should be used to justify credit history check was an unnecessary commenter stated that if Congress, in inclusion of any new elements. Several invasion of privacy, and that most consultation with the NRC, had deemed commenters noted that the cost of individuals would choose not to pursue credit history checks significantly useful obtaining the necessary information unescorted access if faced with a credit to provide for the common defense, the may be burdensome in time and money, history check. One commenter noted checks would have been included

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within the most recent amendments in impossible to obtain for foreign possible’’ because it made the section section 149 of the AEA. Another nationals, and that a provision must be meaningless. One commenter asked commenter noted that Congress has provided that allows less-than-absolute what he or she should do if it is not considered passing an act to make it compliance. One commenter noted that practicable to confirm information. unlawful to base adverse employment licensees in rural areas may have Another commenter stated that the decisions on consumer credit reports. limited access to local resources, and documentation would be excessive and In a CRCPD survey of Agreement that some local resources may have time consuming. One commenter States, 70 percent of those responding limited capabilities to respond to such suggested requiring independent indicated that they did not have the requests. Commenters asked how to information only in situations where the authority to require a credit history determine the appropriate local law accuracy or completeness of information check as part of a background enforcement agency and what provided by the applicant is in doubt, investigation. Some Agreement States constituted local. or where the licensee can’t confidently indicated that they were not sure if they Several commenters objected to the make an evaluation based on an analysis had the authority to require a credit inclusion of a character and reputation of all of the gathered information. One history check. One State indicated that element in the background commenter suggested changing the (assuming it has authority) its investigation. Commenters felt that the phrase ‘‘to the extent possible’’ to ‘‘to administrative procedures would determination would be very subjective, the extent practicable.’’ Three require specific criteria for pass/fail. added little value, and unnecessarily commenters objected to the need to One commenter noted that there are added to the licensee’s burden. obtain information from an alternate State laws that prohibit Commenters noted that an adverse source when a previous employer or ‘‘discrimination’’ against employees due judgment about an employee’s character other entity does not respond. One to credit history and asked how this and reputation could be perceived as commenter noted that where a company would affect the credit history check discriminatory. One commenter has gone out of business, it would be requirement. The commenter noted that suggested removing the term impossible to obtain confirmation that a Google search indicated that States ‘‘trustworthy and reliable’’ from the the individual worked at the company. that have and/or are considering such character and reputation element and The commenters felt that it was unclear laws include: Connecticut, Wisconsin, thereby removing the connotation that a how a licensee could obtain this Hawaii, Illinois, Missouri, New York, personal reference can attest to the information in some cases. One Oregon, Washington, and Texas. present state of an individual’s commenter noted that it doesn’t have One commenter felt that much of the trustworthiness or reliability. The the resources to confirm an applicant’s information obtained from a credit commenter noted that including a information independently, particularly history report would already be character and reputation check would if the person’s family is excluded. included in the personal history require references to be knowledgeable disclosure. Two commenters stated that about that definition, and very few Commenters noted that obtaining the for category 2 sources it should be up references can attest to the present information for some groups of people, to the reviewing official to decide if they status of an individual, as required by (e.g., foreign nationals, research have enough information to grant the words ‘‘continues to be.’’ Some students, and citizens who have resided unescorted access to a category 2 source commenters expressed concern over outside the United States for long without the need for a credit history possible invasion of privacy. One periods), is difficult or impossible. check. One commenter noted that commenter recommended requiring a Some commenters noted that licensees individuals relieved from the minimum of three references. One with a high turnover, such as background investigation elements were commenter noted that, for a reference to universities and research facilities, just as likely to have negative credit provide a worthwhile evaluation of the would incur substantial cost and would history but will not be subject to the applicant, a minimum time frame for have difficulty implementing the same scrutiny. One commenter contact with the individual should be provisions. One commenter provided recommended defining ‘‘full credit established in the rule. The commenter some cost information, noting that the history,’’ as a licensee can’t comply with also cautioned that the reference should current cost is $131 per applicant, open-ended requirements. Two not be from someone, such as a excluding the $100 average cost for commenters noted that this concept had supervisor, who may benefit from the processing new employees. The costs been considered in the working group applicant’s unescorted access. included $25 for fingerprinting, $26 for for the orders but was rejected, and, Several commenters objected to the fingerprint processing through the NRC therefore, should not have been requirement to obtain independent and FBI, and $80 for a WorldScan. The included in the proposed rule. information to corroborate the commenter noted that adding the credit Several commenters opposed the information provided by the individual. history and military history would inclusion of the criminal history check Commenters stated that the provision increase the cost per approved person to in the background investigation. They was vague and unreasonable, and they $155 for United States records, and even questioned why a criminal history did not understand how it could be if the credit history and military records check from local sources was necessary accomplished. Commenters stated that were obtainable and reliable, getting this if a national check through the FBI was it was unreasonable to expect licensees information on foreign applicants would conducted. One commenter stated that to track down independent information, be prohibitively expensive. Two the local check would be an added as they are not investigative agencies. commenters noted that a foreign credit benefit if the FBI check was somehow Commenters noted that many entities history check costs $170, and one inadequate. Commenters stated that the cannot or will not provide background commenter noted that that a credit information would be difficult to obtain information, and licensees do not have check would cost $1,000 per individual in many locales and would be an the resources to obtain information for a foreign national, and another said increased burden to both the licensee elsewhere. Commenters noted that the that the cost of military verification was and local law enforcement without a cost would be prohibitive in many $80 per person. Another commenter corresponding benefit. Commenters also cases. One commenter recommended noted that the current cost of noted that the information would be removing the phrase ‘‘to the extent conducting background investigations

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was $125, and adding a credit check and a character and reputation some licensees may decide not to grant military records check would increase determination. Many of these items are unescorted access to fully qualified this to $400 per person (assuming that part of routine employment checks that individuals because of the lack of half the individuals require foreign an individual may go through before information or the difficulty in credit checks). One commenter noted being hired by a company. The NRC has obtaining the information. Many smaller that it would take 2 to 3 person-days to removed military history verification licensees may not have staff and/or perform the different checks. from the elements as it is considered knowledge to be able to fully utilize the Several commenters recommended part of the employment history and does information obtained from the credit that NRC consider using the same not need to be a separate element. The history. The NRC has determined that background check process used by the NRC has also removed the provision to the potential benefit of the credit history Centers for Disease Control (CDC) for conduct a local criminal history check is not justified by the cost and, select agents because centralized NRC as part of the background investigation. therefore, the NRC has not included coordination would probably result in The NRC determined that while the credit history as a required element of more consistent evaluations at reduced local criminal history check would the background investigation. While not cost. Other commenters suggested that provide some beneficial information, requiring a credit history, the NRC does the NRC authorize unescorted access the burden of obtaining the information note that information obtained from the using a method similar to the is not justified by the limited benefit. credit history could be useful to Transportation Safety Administration’s The NRC recognizes that conducting the licensees, and nothing in the NRC TWIC program. They noted that the CDC background investigation for some regulations prohibits a licensee from and the U.S. Department of Agriculture individuals, such as foreign nationals, conducting a credit history. In situations programs for select agents and the DOT may be difficult. If there was no where a trustworthiness and reliability system for issuing hazardous material education or military service in the 7- determination is difficult, the certifications for Commercial Driver’s year period preceding the need for information from a credit history could Licenses, all have the applicable Federal unescorted access to the material, the provide the determining information. A government agency perform the reviews investigation would not need to include licensee can always use measures and grant the approvals. The these items. beyond the regulatory minimum that is commenters stated that this approach required by the access authorization After careful deliberation and would provide consistency in the program. consideration of all the comments conduct of the reviews and would best The NRC is not providing specific assure that all needed information is received on including credit history as criteria that would disqualify an collected and reviewed by well-trained a background investigation element, the individual from obtaining unescorted individuals. One commenter suggested NRC has decided not to include credit access to the material. There is no that the NRC review the visa process to history as a required element for the checklist. Because the individual see if any of the requirements could be background investigation or circumstances of each applicant may replaced with a verification of visa, reinvestigation. The credit history can vary significantly, each licensee needs since foreign nationals must go through provide information that is useful in the flexibility to establish its own a Homeland Security review to get a making a determination that an program. The implementation guidance visa. One commenter noted that it has individual is trustworthy and reliable. document does provide general reviewed 3,182 persons since the Credit history can add an extra layer of information and items for consideration, Fingerprint Order was implemented and defense in mitigating the insider threat but no specific disqualifying has determined that 38 could not be and can provide some information that information. A licensee should consider judged trustworthy and reliable based is not easily available from other any negative information together with only on the FBI criminal history report sources. Credit history was never all of the other information in making a and not because of any other intended to be the determining factor for final determination. background investigation elements. The trustworthiness and reliability but At this time, the NRC has no plans to commenter noted that more than 90% of simply one more piece of information in establish a new program to conduct the persons it judged to be trustworthy making that determination. However, as background investigations similar to the and reliable were also judged many of the commenters pointed out, TSA or CDC programs. The NRC does trustworthy and reliable by the U.S. there are issues with the accuracy of relieve individuals who have been Bureau of Alcohol, Tobacco, Firearms, credit reports, and a poor credit history approved under these programs from and Explosives (BATFE), and that this is not necessarily an indicator that an the fingerprinting element of the experience appears to validate why all individual is not trustworthy or reliable, background investigation. other federal agencies that perform particularly in these tough economic Information provided by the similar checks do so solely on the basis times. Although NRC disagrees, some of commenters on the burden of of the FBI criminal history. the commenters indicated that there is conducting a background investigation One commenter noted that his or her the potential that some Agreement has been factored into the final industry is subject to three different States might not be able to implement regulatory analysis, as appropriate. Federal background check programs the provision due to State laws. These Comment B51: One commenter (BATFE, DOT, and NRC), and things could result in uneven expressed concern that the new recommended that the agencies come implementation of the provision across requirements could force employment up with one background check that the country. As pointed out by the decisions based on incomplete would satisfy all three. commenters, it is harder and more information and that this could lead to Response: The NRC has determined expensive to obtain a credit history for significant legal implications for the that the appropriate elements of the those that have resided in other facility. The commenter noted that the background investigation include: countries for long periods of time. This intersection of these requirements with Fingerprinting and an FBI criminal could lead to an imbalance in the the Equal Employment Opportunity Act history records check, verification of information collected and used in should be investigated. identity, employment history making the trustworthiness and Response: The NRC does not agree verification, education verification, and reliability determination. In addition, that the background investigation

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requirements force licensees to make 3 years or until the person’s 18th that the licensee review available employment decisions based on birthday, whichever is shorter. One information from an ID that is provided incomplete information. Individuals commenter requested that NRC clarify to the licensee by the applicant, and who are granted unescorted access to the date used to determine the 10-year resolve any discrepancies. One category 1 or category 2 quantities of reinvestigation. One commenter noted commenter asked how verification of radioactive material must be deemed that the rule needs to be clear that the true identity was supposed to be done trustworthy and reliable. The expectation for the review is to go back and questioned the expense and value. background investigation is one 10 years or to such time as the One commenter noted that it already component designed to provide the individual was a minor. performed an I–9 or E-verify for licensee with sufficient relevant Response: The NRC has reconsidered employees but not in the case of information before making this the time frame for the initial background students at universities. determination. It is the licensee’s investigation and has changed the Response: The licensee is not responsibility to evaluate the timeframe to 7 years as suggested by the expected to determine that an ID has information received as a result of the commenters. This may reduce the cost been forged. Section 37.25(a)(2) states background investigation and all other of the investigation. The rule does that the licensee is to review the relevant information to make its provide that the investigation only goes identification documents provided, trustworthiness and reliability back to the individual’s 18th birthday. such as a driver’s license or passport, to determination. These requirements do Comment B53: One commenter noted make sure that the information matches not relieve a licensee from its obligation that the rule did not provide a tiered what was provided by the individual. If to comply with all applicable Federal approach for individuals who had been the information such as the name of the and State labor laws. Further, the NRC with the licensee for greater than 3 individual or social security number does not believe that fulfillment of these years. The commenter noted that under doesn’t match, the licensee should trustworthiness and reliability the orders the licensee could review the investigate further. E-verify is one tool determination requirements would individual’s employment history (i.e. that can be used. The guidance cause the licensee to violate any labor personnel files) and obtain the document on the rule contains laws. Accordingly, the NRC does not supervisor’s standardized information on how this provision believe that it is necessary to develop recommendation. The commenter should be addressed. guidance on this issue. recommended retaining this system for Comment B55: One commenter the initial and reinvestigation for suggested that the requirements to verify Comment B52: Two commenters individuals who have been with the employment history, education history, questioned the 10-year period for the licensee for a long period of time (i.e. 10 and military history were too rigid and background investigation versus the 3- years). that the language should be revised to year period contained in the orders. The Response: The NRC disagrees with the ‘‘the licensee shall attempt to verify commenters felt that 10 years is an comment. The NRC believes that the * * *’’ The commenter noted that this arbitrary timeframe and that 3 years is longer timeframe is appropriate. If the would recognize that businesses fail and sufficient. One of the commenters noted individual has been with the company overseas employers and schools may be that going back 10 years is more for 7 years, the licensee would not need impossible to contact. The commenter expensive and that it is more important to check with previous employers. The indicated that the unsuccessful attempts what happened in the last few years of reinvestigation does not include all of should then be documented. Another the person’s life and not distant history. the elements of the initial background commenter noted that it could be very Another commenter suggested changing investigation. expensive to verify foreign employment. the timeframe to 7 years as the standard Comment B54: One commenter Response: The NRC agrees in part criminal history and credit checks only requested clarification on whether the with the comment. Section 37.25(a)(7) go back 7 years. The commenter noted licensee verified the true identity of (previously (a)(10)) already contains a that many States charge an extra fee to individuals or the licensee’s reviewing provision for when an employer or other extend the check beyond 7 years. One official. The commenter also objected to entity doesn’t provide any information. commenter noted that there could be a the language in the rule to verify ‘‘true The provision had been modified to problem when attempting to use the 10 identity’’ and ‘‘ensure’’ the individual is provide additional clarification and to year criteria for students. Another who he or she claims to be. The add a requirement that the licensee commenter asked for clarification for commenter felt that making it the document the actions taken when it is how far back the investigation should go licensee’s responsibility to establish unsuccessful in verifying the history. and what sources could be used. One anyone’s ‘‘true identity’’ is not always Comment B56: One commenter commenter noted that the employment possible as identification documents questioned the relevance of obtaining history evaluation period of 10 years (IDs) can be forged, and very few military history and how the results was not consistent with 10 CFR parts 26 licensees are experts at identifying would be used. The commenter stated and 73 which only cover the most forged documents. The commenter felt that NRC should perform this service for recent 3 years and that justification that the language is too strong, cannot foreign nationals. Another commenter should be provided for going with 10 be guaranteed, and needs to be rewritten noted that military history verification years. One commenter suggested going to just state that the licensee is can be a lengthy and difficult process. back the last two employers or 10 years responsible to review the identification The commenter noted that obtaining whichever is less restrictive. One documents. The commenter also stated records from the Department of Veterans commenter stated that the timeframe that the requirement to compare the Affairs was difficult, particularly for should be left to the discretion of the personal information data to identify Korean and Vietnam era veterans, and licensee based on the situation of the any discrepancy in the information is compliance is dependent on another applicant. One commenter felt that 10 too vague. The commenter asked what Federal agency. One commenter noted years was too long an evaluation period personal information and what should that in some countries military service and that there was no stopping point to be done when discrepancies are is a requirement of its citizens so the 18th birthday. The commenter discovered. The commenter suggested verification has little bearing on an recommended changing the 10 years to that the language be revised to require individual’s trustworthiness and

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reliability. Another commenter noted Response: Employment history was examples of situations where the that the return rate for requests on not ignored by the NRC and it is one of licensee’s best efforts will suffice, as military history has been about 20 the elements of the background long as the licensee documents the percent and takes between 3–6 months. investigation. The NRC agrees that efforts taken to obtain the information. Commenters do not believe that this employment history can and should be The NRC understands that judgment adds any value. Another commenter used when considering the information and character are subjective items. questioned how to obtain military obtained during the background Licensees make determinations on history verification. investigation. The licensee has the judgment and character every time they Response: Military history is flexibility to determine how much hire someone or trust an individual with considered part of the employment weight to give each element of the company assets. history. The rule text has been revised background investigation. Comment B63: One commenter stated to include military history as part of the Comment B59: One commenter noted that the NRC should ensure that the FBI employment history instead of a that it was impossible to verify check includes checks against known separate element. For some individuals, employment if the individual has never terrorists or denied entity lists. military service could be their only worked before. Response: In addition to a criminal employment. The licensee only needs to Response: Part 37 specifically requires history records check, the names and verify the service if the military service that the licensee verify the individual’s fingerprints sent to the FBI are checked occurred in the last 7 years. Information employment with each previous against various terrorist watch lists. Comment B64: One commenter on foreign nationals can be more employer for the most recent 7 years requested clarification on whether the difficult to obtain. The NRC notes that before the date of application. If an fingerprints and associated criminal licensees always have the option of individual has never worked before, history records check was part of the escorting the individuals. Additional there is no previous employer and no background investigation conducted by guidance on foreign nationals is employment to verify. For this the licensee since the FBI does the provided in the implementation individual, no employment verification check and not the licensee. guidance. would be required. Comment B60: One commenter Response: The background Comment B57: One commenter questioned what was meant by the investigation includes the collection questioned the value of verifying claimed period and indicated it should and review of all the information education history and questioned how be defined in the rule. submitted by the applicant and any the verification should be Response: The NRC disagrees that information provided by outside sources accomplished. Another commenter claimed period needs to be defined in upon the licensee’s request. While the questioned how far back a company the rule. The claimed period is simply actual criminal records check is needed to go for someone employed at the period of time for which the conducted by the FBI upon receipt of an the company for 10 years. One individual indicates that they were applicant’s fingerprints, the results of commenter noted that the verification engaged in a particular activity such as the FBI’s check are returned to the should be for the degree and not the attending college, being a member of the licensee, and that information should be time period of attendance. The military, or working for a company. reviewed as part of the licensee’s commenter noted that it would be a Comment B61: One commenter asked determination of an individual’s huge burden to verify every time period for the definition of ‘‘timely manner’’ for trustworthiness and reliability. at every institution for those who when an entity refuses to respond Comment B65: One commenter completed their education over during a background investigation. requested clarification on whether the numerous years at various institutions. Response: The rule itself does not use background investigation elements Response: Education history is similar the term ‘‘timely manner.’’ The rule could be outsourced by licensees to a to employment history and helps to indicates that within a timeframe third-party verification service. Another validate what the individual was deemed appropriate by the licensee but commenter requested clarification on engaged in during the noted timeframe. at least after 10 business days of the whether some elements of the Education history would typically be request. background investigation could be verified by checking with the Comment B62: One commenter performed by HR personnel and have educational institution. Education objected to the language in response B8 them certify what steps had been taken. history only needs to be verified if it in the Statements of Consideration Response: The background occurred in the last 7 years. indicating that licensees should use investigation elements could be Comment B58: Two commenters felt their best efforts to obtain background outsourced. However, the final that the employment history was information. The commenter noted that determination must be made by the completely ignored as the rule did not best efforts can’t be enforced and must licensee’s reviewing official. If the provide for limiting the background be clearly defined. The commenter also investigation elements were outsourced, investigation to the FBI criminal history objected to the concept of dependable in the licensee would need to assure that check for employees with more than 3 judgment, character, and performance the information was properly protected years with the licensee. The commenter and noted that this must be reduced to and controlled. noted that employment history is a something quantifiable and enforceable Comment B66: One commenter factor that can be used when and not subject to disparate expressed support for grandfathering determining whether an employee with interpretations. individuals already allowed unescorted a criminal history is trustworthy and Response: The NRC disagrees with the access under the orders. One commenter reliable. One of the commenters felt that comment. The NRC believes that the recommended that the grandfathering employment history is a far more concept of best efforts in this context is provision also include those individuals accurate set of data for determining necessary because sometimes it is determined trustworthy and reliable trustworthiness and reliability than any impossible to obtain information. under 10 CFR part 73. other check proposed and that the Companies going out of business and Response: The NRC agrees that those employment history should not be entities refusing to provide information individuals deemed trustworthy and ignored. or not getting back to the licensee are reliable under 10 CFR part 73 should be

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grandfathered or relieved from the on whether the criminal history will commenter felt that if the information fingerprinting and background really be the criminal history or just an indicated that an employee lied on an investigation elements. Those arrest record. employment application, the licensee individuals who have been deemed to Response: The NRC believes that should be able to fire the individual be trustworthy and reliable under other periodic reevaluation of an individual’s based on this information. security fingerprinting orders (such as trustworthiness and reliability is Response: The NRC disagrees with the those for fuel cycle facilities and important. The reinvestigation is not a commenter’s suggestion that independent fuel storage installations) complete check. The reinvestigation is § 37.27(a)(6) be deleted. The language in should also be grandfathered. The NRC limited to the FBI criminal history § 37.27(a)(6) of the proposed rule has revised the rule to provide records check. The relief provided by implements the statutory requirement grandfathering for those individuals. § 37.29 does apply to the set forth in section 149c.(2)(B) of the Comment B67: Two commenters reinvestigation. The licensee would AEA, 42 U.S.C. 2169(c)(2)(B). questioned the value of the 10-year need to check that the individual still Information obtained from an FBI reinvestigation. They felt that meets the relief category. criminal history check shall be used by Comment B68: One commenter conducting a complete check again licensees solely to make suitability questioned whether the reviewing makes no sense if the employee has determinations for unescorted access to official was subject to the worked for the licensee that long. One category 1 or category 2 quantities of reinvestigation requirement. radioactive material, or access to SGI. commenter recommended removing the Response: The reviewing official is Information which pertains to the reinvestigation, or if it is retained, subject to the reinvestigation. The rule trustworthiness of an employee making it simpler, such as a local text has been revised. obviously is pertinent to a suitability criminal history check and supervisor Comment B69: One commenter stated determination. With that said, the NRC evaluation. One commenter stated that that §§ 37.25 and 35.27 have some does not make employment decisions the reevaluation needed to include duplication of information and that for the regulated community. character and reputation sections should be reviewed to avoid Comment B72: One commenter stated determinations. The commenter noted duplication. that the requirement in § 37.27(b)(1) that changes in a person’s attitude or Response: There is some overlap in prohibiting a licensee from basing a demeanor can indicate a change in the requirements. However, the final determination to deny an circumstances that warrants restricting provisions of § 35.27 apply solely to the individual unescorted access solely on access, whereas there may have been no fingerprints and FBI criminal history information received from the FBI is change in a credit or criminal history. records checks. The provisions of inconsistent with the intent of the rule Two commenters recommended using § 37.25 apply to the complete to protect the public from category 1 the FBI background check for the 10- background investigation. and category 2 radioactive sources. The year reinvestigation. One commenter Comment B70: One commenter noted commenter questioned how a asserted that, if there are no indicators that there is potential for discrepancy responsible licensee could not use that something has changed, the FBI between different licensees’ basis information provided by the FBI to check should be adequate for a determination for unescorted access and restrict a terrorist from access to these reinvestigation. The commenter noted questioned the wisdom of allowing sources. that employees are typically evaluated transfer of an individual’s Response: The prohibition on using by their employer at least annually, and trustworthiness and reliability information received from the FBI only this provides ample opportunity to determination under § 37.27(a)(4). involves information on an arrest more ensure that there have been no changes Response: The commenter is correct than a year old for which there is no negatively affecting security concerns. that there may be differences between information on the disposition of the One commenter noted that § 37.25(c) licensees’ determination bases for case or an arrest that resulted in the suggests that only a criminal history unescorted access. The NRC still dismissal of a case or an acquittal. The records check and credit history check believes that there is merit in allowing licensee may still consider the are needed, and this implies that licensees to transfer information and information, but it cannot base its trustworthiness and reliability is not accept another licensee’s determination decision solely on the information. If sufficiently demonstrated by 10 years’ on an individual. The individual has there is no disposition of the case in the worth of access without an incident to undergone a background investigation file, the individual may have been revoke the individual’s unescorted (or met one of the categories for relief) acquitted of the charge, and an acquittal access. The commenter stated that the and been determined to be trustworthy is information that would be pertinent reinvestigation requirement seemed and reliable. If the second licensee has to the decision to grant unescorted overly draconian, given that the federal reason to doubt the determination or access. Office of Personnel Management (OPM) does not feel comfortable relying on the Comment B73: One commenter stated standard for background investigations first licensee’s determination, the that a licensee would need to have in- only requires a reinvestigation for a licensee is not obligated to allow the depth knowledge of constitutional law security level higher than even an individual unescorted access. The to understand the requirement in NACIC—and the OPM reinvestigation is licensee could also decide to conduct its § 37.27(b)(2) that prohibits a licensee required only every 15 years. The own background investigation before from using the information from a commenter also asked for clarification allowing the individual unescorted criminal history records check obtained on whether the relief provided by access. under 10 CFR part 37 in a manner that § 37.29 applies to the reinvestigation. Comment B71: One commenter would infringe upon the rights of any The commenter also requested questioned the language in § 37.27(a)(6) individual under the first amendment of clarification on when the 10-year that limits use of information obtained the Constitution. The commenter noted reinvestigation is triggered. One as part of the criminal history records that NRC should not be proposing any commenter stated that reinvestigation check (from the FBI) to determining an regulation that will be unconstitutional requirement does not make sense as individual’s suitability for unescorted or be apt to be used to infringe on the there would be insufficient information access to the material or SGI. The rights of workers.

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Response: The NRC disagrees with the on the Web site, it can be changed history check. The commenter noted commenter’s suggestion that quickly when necessary. that the relief is inappropriate for § 37.27(b)(2) be deleted. The NRC is not Comment B76: Two commenters certain categories of individuals, in proposing a regulation that is stated that § 37.29 should be deleted particular those covered under unconstitutional or that infringes on the and that there should not be any § 37.29(k). As an example, the rights of any individual. This provision categories of individuals that are commenter noted that a favorably implements section 149c.(2)(D) of the provided relief from the background adjudicated Security Risk Assessment AEA, 42 U.S.C. 2169c.(2)(D), which investigation elements. One of the under the Select Agent program does provides that the NRC is to protect commenters noted that any person not assess the depth and breadth of individuals subject to fingerprinting entering a facility and having information required under the full from misuse of criminal history records. unescorted access to or transporting background checks specified either by The onus is on the licensee, not the category 1 or category 2 quantities of existing orders or the proposed NRC, to ensure that the information it radioactive material should be regulations. The commenter noted that obtains as a result of an FBI criminal fingerprinted, without exemption or the risk assessment only includes those history records check will have limited relief. The commenter stated that given checks specified under the Patriot Act use, and be used in accordance with all the significance of theft of such material and that character determination, credit applicable Federal and State laws. and the cost of dispersal of such history, verification of education, Comment B74: One commenter stated radioactive material outside a controlled verification of employment, and the that the licensee should be allowed to area, the cost and very minor use of time gathering of corroborating information submit fingerprint cards to the FBI. The for fingerprinting is totally insignificant. are not explicitly included. The commenter noted that submittal of The commenter noted that there are commenter noted that the acceptance of fingerprint cards to the NRC is many examples of Congress or other a Security Risk Assessment in place of cumbersome, time-consuming, and persons who have been fingerprinted the more extensive checks creates a apparently done only to provide an and who have broken criminal or other double standard and introduces additional revenue source to the NRC. law and, therefore, should not be potential vulnerability into the The commenter noted that it had exempted. The commenter noted that personnel reliability process. The experienced NRC losing one set of fingerprinting is required in many commenter noted that the information fingerprint cards. Another commenter situations not involving threats to that would be analyzed for personnel noted that the rule does not allow national security or dispersal of under § 37.29(k) does not provide licensees with a fully-accredited radioactive material in public places sufficient basis to assess whether an program to do their own collection and and that the process is inexpensive, individual is trustworthy and reliable transmission of fingerprints to the FBI. unobtrusive, and, if the person being under the requirements set forth under The commenter requested an exemption fingerprinted has no reason to fear the either the NRC orders or under the process, insignificant and irrelevant. to this restriction for licensees who proposed background check The commenter noted that most of the possess a fully-accredited program. requirements. individuals covered by the relieved Response: The NRC agrees with the Response: The NRC cannot exempt a categories would be escorted and that comment and has revised the rule. The licensee from the statutory requirement providing relief causes confusion and relief provided for individuals that to submit fingerprint cards to the makes the process more complicated. come under § 37.29(b) (formerly Attorney General of the United States The commenter further noted that there § 37.39(k)) only applies to the through the Commission, even if that is no more guarantee that these persons fingerprints and FBI criminal history licensee possesses a fully-accredited are more reliable than other workers; records checks; the other elements of program to collect and transmit therefore, why proceed with exemptions the background investigation must still fingerprint cards to the FBI. Section 149 that weaken the regulation. be completed. For the other categories of of the AEA states that fingerprints Response: The NRC disagrees with the individuals in § 37.29(a), relief is obtained by an individual or entity must comment. NRC continues to believe that provided from all the background be submitted to the Attorney General of these categories of individuals should investigation elements. the United States through the be provided relief. Many of these Comment B78: One commenter Commission for identification and a individuals have undergone equivalent objected to exempting commercial criminal history records check. background investigations or by the vehicle drivers for road shipments of Consistent with the statutory nature of their positions are considered category 2 quantities of radioactive requirements, a licensee is required to to be trustworthy and reliable as a material. The commenter felt that submit fingerprint cards to the NRC. matter of policy. Just because an devices and sources are more vulnerable The NRC will then submit the individual is relieved from the during shipment by a nonlicensee fingerprint cards to the FBI for background investigation elements, a carrier than under licensee or processing and transmit the results licensee is not required to provide manufacturer control and, therefore, received back from the FBI to the unescorted access to the material. For carriers must require a background licensee. example, if a member of Congress were investigation for their staff with Comment B75: One commenter stated to visit a facility, the licensee would unescorted access to category 2. that the fees for fingerprint processing likely escort the individual and not Response: While understanding the should be placed in the regulations allow him or her to wander the facility commenter’s concern, the NRC believes instead of a reference to the Web site. unescorted. An individual would still that the relief is appropriate. The Response: The NRC disagrees with the need to receive security and radiation licensee does not control the carrier or comment. The fees change based on protection training before being granted whom the carrier employs. However, what the FBI charges. If the fee was unescorted access. the carriers are subject to DOT. Title 49 placed in the regulations, it would Comment B77: One commenter CFR 172.800 requires that each person require the NRC to conduct a disagreed with providing relief from the who offers for transportation in rulemaking every time the fee changed. background investigation elements other commerce or transports in commerce By placing the current fee information than the fingerprints and criminal category 1 or category 2 quantities of

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radioactive material to develop and background investigation elements as background investigations that meet the adhere to a transportation security plan. the individual is still a licensee requirements of § 37.25. The service The components of the transportation employee. The individuals who were provider would need to provide written security can be found in 49 CFR granted relief would be subject to the verification that the individual has been 172.802. 10-year reinvestigation. If the individual determined to be trustworthy and Comment B79: One commenter still fell under one of the categories, reliable under a subpart B program. requested that information be provided such as § 37.29(l), he or she would Additional information has been added on what elements of the background continue to be relieved. However, the to the implementation guidance to investigation each category of licensee would need to document that address this situation. individual relieved from the background the relief category still applied. Comment B85: One commenter investigation under § 37.29 go through. Comment B82: One commenter indicated that § 37.29 should include Response: The NRC acknowledges requested that the relief provided by exemption provisions for reputable that the background investigation § 37.29(i), from background security system vendors. The conducted for individuals in the investigations for emergency personnel commenter noted that these vendors relieved categories contained in § 37.29 responding to an emergency, be perform extensive background checks as may not contain all of the aspects of the extended to emergency response part of their hiring process and it seems background investigation required personnel who are not responding to an reasonable to consider the service under part 37. In some cases, the emergency. The commenter pointed out providers, software engineers, etc. who background investigation is more that these individuals need frequent work at or with a licensee’s institution exhaustive, such as the Federal access for smoke detector checks, safety to be authorized to access the controlled background investigation for access to inspections of fire walls, assessment of areas. The commenter noted that it is classified information, and some may and response to false alarms, etc. unreasonable to expect the licensee to contain fewer elements. The licensee is Response: The NRC disagrees with the conduct its own background checks on not required to allow these individuals comment. Fire department personnel all employees of the company who may unescorted access to radioactive who need to check smoke detectors and be involved in the security system at the material and can choose to escort them. conduct safety inspections can be particular institution. The commenter The licensee can also choose to conduct escorted. The NRC does not see why noted that by not allowing this an investigation that included some or these individuals would need exemption, the licensee may be less all of the background investigation unescorted access to radioactive inclined to use the state-of-the-art elements before allowing such an material. Someone responding to an security systems available and this may individual unescorted access to the alarm would be considered responding be detrimental to the overall security of material. to an emergency, even if the alarm the material. The commenter noted that Comment B80: Two commenters turned out to be false. although security service providers are recommended that the relief from the Comment B83: One commenter addressed in the ‘‘protection of background investigation elements for suggested expanding § 37.29(j) to information’’ section (§ 37.43(d)), they individuals with a Federal security include handlers at the transportation should be included here as well, since clearance be extended to include other facilities, i.e., the people who physically they not only have knowledge of the aspects of the authorized individual handle the package at the freight security program but may also have the process such as NRC approval of the terminals and move the packages from ability to grant access. reviewing official. One commenter one location to another. The commenter Response: The NRC disagrees with the requested clarification as to whether the noted that licensees cannot perform comment. It is not clear why security relief granted by this regulation may be checks for these nonemployees. system vendors, particularly software extended to individuals who will serve Response: The NRC agrees with the engineers, would need to have as the licensee’s reviewing official. comment and has added a new category unescorted access to the radioactive Response: The NRC agrees with the to include handlers at transportation material. These individuals would need comment that if the potential reviewing facilities such as freight terminals and to have access to some of the licensee’s official meets one of the relief categories rail yards. security information, which is why they of § 37.29, the individual would not Comment B84: One commenter noted were included in § 37.43(d). Security need to be fingerprinted and undergo a that there is a gap whereby § 37.29(m) system vendors may or may not conduct new background investigation. The rule does not cover self-employed service fingerprinting and an FBI criminal has been clarified. provider licensees who are small history records check as part of their Comment B81: One commenter business owners, for example, investigation during the hiring process. requested that § 37.29(g) be revised to independent service technicians who Licensees may accept documentation include master materials licensee are licensed to perform maintenance from vendors that vendor employees employees conducting inspections and repairs on sealed source irradiators. have undergone a background check under their license authority. The The commenter noted that these meeting the requirements of this part, commenter also requested that individuals are qualified in a similar but in the absence of evidence that all subparagraph (k) be revised to contain way for the applicability of § 37.29, yet vendors’ employment checks meet part an explicit statement about whether the wording of this regulation does not 37 requirements; vendor employees persons approved under a government appear to extend to them. should not be exempted by rule. program have to be reapproved after a Response: The NRC believes that Licensees also retain the prerogative to specified time interval. § 37.29(a)(13) (formerly § 37.29(m)) does escort such employees when they are Response: The NRC disagrees with the cover a self-employed service provider. onsite. comment. A licensee employee The access authorization program Comment B86: One commenter, while conducting an inspection on the would not be required of a service noting that several State employees licensee’s own program is not the same provider that does not possess material; listed by job duties are listed as being thing as an NRC or Agreement State however, there is nothing in the relieved from the background inspector. The NRC disagrees that the regulation that would prevent the investigation requirements, suggested individual should be relieved from the service provider from conducting that State licensing staff, information

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technology staff, and legal staff be from elements of the background licensee is only required to retain the included. The commenter noted that investigation under § 37.29. records returned from the FBI and not these individuals may also have access Response: The NRC does not believe the actual fingerprints. The NRC is not to such information. that it is necessary to make the sure what the commenter meant by Response: The NRC believes that the requested revisions. Section 37.29(a) method of review. provisions in § 37.29 are broad enough relieves the licensee from conducting Comment B93: Two commenters to include other State employees that the fingerprinting and all other elements suggested revising the language for the may require access. of the background investigation. timing of the program review to Comment B87: The Nebraska However, the licensee can still choose to ‘‘periodically (at least annually) review’’ Emergency Management Agency stated conduct all or some of the elements similar to what is contained in that it believes that it is exempt from the before providing unescorted access to an § 20.1101. The commenters stated that fingerprinting, identification, and individual who is covered by one of the the proposed wording is onerous and criminal history records check categories listed in § 37.29. The licensee unnecessary. Another commenter requirements and only needs to provide will still need to verify identification. suggested adding the access physical security for its one category 2 Comment B91: One commenter, while authorization program review to the quantity source until such time as the supporting the transfer of background security program review. Several source is collected under the DOE information to outside entities allowed commenters suggested a 36-month source recovery program. by § 37.31(c) felt that it would create timeframe or after changes to the Response: No licensee is exempt from additional legal issues and burdens on program. The commenter noted that the the provision of 10 CFR part 37. Section the HR department that they would not program should see little revision once 37.29 does provide relief from the be able to meet. The commenter was it is put in place and that an annual fingerprinting and background concerned about the ability to review seems excessive. One commenter authenticate the documentation investigations for individuals that fall indicated that NRC should specify those presented and avoid fraudulent under one of the categories. State essential program elements for inclusion documentation. The commenter is employees would likely come under the in the program review noting that concerned that there is no legally proper provision of § 37.29(a)(4) or (6) and placing such information in the way to transfer such private information would be relieved from the background guidance would not be enforceable and in a secure manner that would not investigation elements. would be a disservice to licensees. create legal failure points and possible Another commenter stated that there Comment B88: One commenter asked violations, as such, they would neither were too many criteria and it could lead what ‘‘other property’’ refers to in request nor offer such information. someone to think that the annual § 37.29. Response: The language in the security review was more important Response: The term ‘‘other property’’ rulemaking under § 37.31(c) states that than the safety review. Another comes from the AEA. The NRC has the personal information obtained on an commenter suggested every 3 to 5 years removed the term as it has no meaning individual from a background for the program review. One commenter in the context of 10 CFR part 37. investigation may be provided to noted that the program review could Comment B89: One commenter another licensee. While an individual take from 1 to 3 man days. suggested that the regulation itself may request that this information be Response: The NRC agrees with the makes it clear that a licensee has the transferred or shared, the licensee is not comment in part and has revised the option of escorting the category of required by these regulations to do so, language for the program review to be individuals provided relief from the thereby minimizing or eliminating consistent with § 20.1101. The use of background investigation (§ 37.29), and additional legal issues or burdens on the consistent terminology between the that granting unescorted access to these HR department that could arise from safety and security programs should individuals is not required. The such requests. Any decision to request enhance the licensee’s understanding of commenter also noted that it should be or provide such information should be the requirement. The content of the made clear that the security training made at the licensee’s discretion. The program review has not been revised. must be provided before granting rule merely states that NRC considers it Comment B94: Two commenters unescorted access. an acceptable practice, provided that the recommend that facilities utilizing Response: The NRC does not believe stipulations in § 37.31(c) are met. Federal security clearances should be that the regulation needs to specify that Per the language provided in exempted from the program review. the licensee has the option of escorting § 37.31(c)(2), the recipient licensee must Response: The NRC disagrees with the the individuals. It is always up to the verify information such as name, date of comment. While the actual background licensee to decide whom it allows to birth, social security number, gender, investigations and protection of have unescorted access. The provision and other applicable physical information would be covered by the in § 37.29 only provides relief from the characteristics, which should aid in Federal program, other aspects of the background investigation elements and authentication and the avoidance of access authorization program would not does not require granting unescorted utilizing fraudulent documentation. necessarily be included in the Federal access to designated categories of Comment B92: Two commenters program. For example, the licensee individuals. Any individual allowed noted that the proposed rule has no would still need to have a program in unescorted access to the material must mention of safeguards of the privacy of place to document the information on meet all of the licensee’s applicable this background information, or of the who has access. training requirements before having method of review. One commenter Comment B95: One commenter stated unescorted access to the material. requested clarification on whether the that the reviewing official and the Comment B90: One commenter licensee needed to retain the individual with overall responsibility requested that each subsection in fingerprints or just the records returned for the security program should be § 37.25, ‘‘Background investigations,’’ be from the FBI. required to review the access revised to explicitly state if the Response: Information protection authorization program review findings. subsection is applicable and must be provisions for the background The commenter felt that it was logical followed for those who are relieved investigation are located in § 37.31. The for the individual with overall security

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responsibility to be involved in the of SGI, including access restrictions, are noted that it should be assumed that review; otherwise, the program could located in §§ 73.21 and 73.23. The licensees are implementing the result in split responsibility for the requirements do not need to be repeated measures if they aggregate. One security program. in 10 CFR part 37. Part 37 contains commenter disagreed with the Response: The NRC disagrees that a appropriate references to the 10 CFR notification for activation of the security rule change is warranted. The rule part 73 SGI requirements. plans. provides the licensee with flexibility as Comment B99: One commenter noted Response: The NRC agrees in part and to who should be designated to review that language is necessary to include the disagrees in part. The provision was the program review findings. The NRC phrase ‘unless otherwise suspended or added to help licensees that do not does agree that it would be appropriate revoked’ to address those situations routinely possess an aggregated category for both the reviewing official and the where such restrictive actions became 2 quantity, but may on occasion. The individual with overall responsibility to necessary in regard to access to provision was intended to provide some conduct the review. information or the material. relief from the need to always meet the Comment B96: One commenter Response: The NRC disagrees with the requirements. However, since the questioned whether licensees should be comment. Section 37.23(e)(4) contains wording has caused confusion, the NRC obligated to provide unescorted access language that permits the reviewing has revised the provision to simplify to any inspectors. The commenter asked official to terminate or revoke an and clarify the requirement. A licensee whether Agreement State inspectors are individual’s unescorted access only needs to provide a 90-day notice required to present credentials authorization. The NRC does not believe before aggregating the material if the indicating that they are in compliance that additional language is necessary. licensee has never implemented either with the background investigation. Comment B100: One commenter the orders or the 10 CFR part 37 Response: Licensees are not obligated indicated that the rule should include a provisions. to provide unescorted access to an limitation on escorted access to only Comment C3: One commenter inspector. A licensee always has the those needing such access to perform a suggested adding a provision in option of accompanying the inspector. job function or assist in educational § 37.41(2) to note that the NRC or The regulations only require that the activities. Agreement State may prohibit the licensee ‘‘shall afford to the Commission Response: The NRC disagrees with the transfer of radioactive material in at all reasonable times opportunity to comment. The licensee should be quantities of concern should an inspect category 1 or category 2 allowed to determine who should be evaluation of the security plan be found quantities of radioactive material and provided escorted access to the facility lacking until corrective measures are the premises and facilities wherein the and materials. While there should be a taken and verified. nuclear material is used, produced, or need for the escorted access, there could Response: The NRC disagrees with the stored.’’ This means that the licensee be reasons other than to perform a job comment. The NRC or State may take must allow the inspector to go anywhere function or for educational activities. action to prohibit the transfer of in the facility but can choose to material in such a situation; however, a C. Security During Use accompany the inspector. A licensee has provision in the regulations is not the right to request that an inspector Comment C1: One commenter stated necessary. NRC would typically issue an present his or her credentials (e.g., an that § 37.41(a) did not allow for the order to the licensee or issue a agency issued badge) and to confirm concept of co-location of sources, only confirmatory action letter documenting with the inspector’s home office that the addressing aggregated sources. The the licensee’s agreement not to ship individual is indeed an employee of the commenter noted that it was not cost material until the issues have been agency. However, the inspector is effective to require increased controls resolved. relieved from the background on fixed gauges that are scattered Comment C4: One commenter investigation elements and does not throughout a facility. recommended that the general need to present any documentation of Response: The concept of co-location performance objective in § 37.41(b) be compliance with the background is built into the definition for revised to remove the phrases ‘‘without investigation. aggregated. Fixed gauges that did not delay’’ and ‘‘an actual or attempted.’’ Comment B97: One commenter fall under the orders do not fall under Two commenters noted that this recommended adding language that 10 CFR part 37. objective is unrealistic during normal states that the licensee is not prohibited Comment C2: Several commenters business hours as unauthorized access, from revoking previously granted stated that the provisions in whether actual or attempted, would authorizations at any time. § 37.41(a)(2), providing for a 90-day only be detected ‘‘without delay’’ if Response: The rule contains language notice before aggregation of material, individuals were in the vicinity and in § 37.23(e)(4) that allows the were confusing and unnecessary and could witness the access or attempt to reviewing official to terminate or that aggregation would be detected access. One of the commenters stated administratively withdraw an during routine inspections. The that ‘‘without delay’’ is unrealistic individual’s unescorted access commenters felt that the provisions during normal business hours as a authorization based on information would lead to unintentional business’ security system will not be set obtained after the individual has noncompliance. Another commenter to alarm. One of the commenters noted obtained unescorted access. questioned how the agency would know that areas that may contain category 1 or Comment B98: One commenter noted when a licensee aggregated the material, category 2 quantities may be locked and that language needs to be included to indicating that it would be time unoccupied but not monitored. The allow access to SGI–M and other consuming and costly to coordinate and commenters further noted that, after security related information identified track. Another commenter suggested business hours, an armed security in the part in addition to unescorted adding language to address the system could detect (without delay) access privileges for category 1 and permittee system under master materials unauthorized access to an area that category 2 materials. licenses. One commenter noted that contained a category 1 or category 2 Response: The NRC disagrees with the § 37.41(a)(4) required implementation quantity of material but may not be able comment. Provisions for the protection before possession. One commenter to detect an ‘‘attempt’’ to access the area

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as the attempt may have failed without individual with overall responsibility brush’’ application of arbitrary compromising a security measure or for the security program, does not requirements is not how to increase triggering an alarm. One commenter believe that the requirement needs to be security; it should be based on each suggested revising the performance in the regulations. If there were a licensee’s unique requirements. One objective in § 37.41(b) as follows: ‘‘Each requirement most licensees would likely commenter noted that there should be licensee shall establish, implement, and name the individual on the license and an exemption for licensees that already maintain a security program that is then it would take a license amendment have a security plan in place. designed to monitor, detect, assess, and to change the named individual. Response: The NRC does not agree respond to unauthorized access to Comment C6: Several commenters with the comment that the security category 1 or category 2 quantities of objected to the requirement to develop program is too prescriptive. The radioactive material.’’ One commenter a security plan if they are authorized but licensee is free to choose the methods recommended defining ‘‘without delay’’ never possess a category 2 quantity or that work best for its facility; the exact in § 37.41(b), particularly with regard to never aggregate the material above a security measures to be used are not the assessment of an access incident. category 2 threshold. Commenters felt prescribed. The content of the security One commenter suggested the following that the exercise to develop a plan was plan is based on the measures that the language for § 37.41(b): ‘‘Each licensee a waste of time and manpower and licensee chooses to use. The NRC has shall establish, implement, and questioned the value of preparing for an made changes to § 37.43(a) to clarify maintain a security program that is eventuality that will never occur. Some that the security plan is specific to a designed to monitor, and without undue commenters noted that the material was facility and its operation and to remove delay detect, assess, and respond to an in different buildings or scattered the requirement to address site-specific actual or attempted unauthorized access throughout a facility. One commenter conditions that affect implementation. to category 1 or category 2 quantities of stated that physical protection The NRC has determined that the site- radioactive material as outlined in their requirements during use have already specific aspects would be addressed by security plan.’’ been met and there isn’t any evidence the measures used by the licensee and Response: The NRC disagrees with the that requiring licensees to try and track could not be addressed for temporary comment. The purpose of the security locations of small amounts of source jobsites without creating a security plan program is to prevent unauthorized material so as not to aggregate to a for each site. It was not the NRC’s intent access and to detect unauthorized threshold quantity is unnecessary to to require a unique security plan for removal of the material. The sooner protect the security of the general each temporary jobsite. The NRC has material is discovered to be missing, the public. One commenter asked what the also removed the requirement to include more quickly a response can be started security plan should contain if a a description of the training program. that includes trying to apprehend those licensee doesn’t possess category 2 There is a separate requirement that who stole the material and to recover quantities of material. Two commenters addresses training, and it is not the material before it can be used for stated that a licensee must implement a necessary to describe the program in the malevolent purposes. The NRC agrees full security program based on security plan. that the licensee is not expected to authorization and not possession and Comment C8: One commenter noted respond to events that do not trigger the that this is inconsistent and places an that the original security plan must be security system. The threshold for the undue burden on licensees. One reviewed and approved by the security systems should not be set so commenter requested clarification on individual with overall security high that actual attempts, such as whether the security plan would need to responsibility but that any revisions to someone trying to pry open the door, are be implemented if the licensee was the plan must also be reviewed by not detected or so low such as someone authorized for sources above the licensee management. The commenter casually brushing a doorknob sets off category 2 threshold but the sources questioned the different review and the alarm. The NRC does not see any were located at different sites. approval requirements. The commenter benefit to adding ‘‘as outlined in their Response: The NRC agrees with the further noted that licensee management security plan’’ to the rule text. The comment and has revised the rule. may not have a need-to-know and may security plan must meet the Licensees will only be required to not wish to go through the background requirements, and the licensee must develop and implement a security plan investigation process just to review a follow the security plan. if it aggregates the material to a category plan, particularly if the authority and Comment C5: One commenter 1 or category 2 quantity of radioactive responsibility have been delegated. recommended that a provision be added material at a specific location. Another commenter noted that this also to require the licensee to appoint an Comment C7: Several commenters felt contradicts the requirement to limit individual with overall responsibility that the specified contents for the access to the security plan. for the security program. The security plan were too prescriptive. Response: The NRC agrees with the commenter noted examples where no Commenters felt that each facility needs comment and has removed the one individual had responsibility to to have the flexibility necessary to requirement for licensee management to implement the security measures and develop a security plan that works best review the revised plan. noted that a default person such as the for them and that every security plan Comment C9: One commenter stated RSO may not have the necessary may not need all the prescriptive that the phrase ‘‘measures and authority or ability to ensure that the requirements specified in the proposed strategies’’ in § 37.43(a)(1)(i) is program is working. The commenter rule. Commenters noted that licensees meaningless and unenforceable even as noted that having the licensee have already developed their programs a performance-based goal. The specifically designate an individual will to implement the orders and that the commenter stated that the phrase clarify responsibility and provide some programs have already been inspected should either be removed or the intent authority. Another commenter noted and compliance verified. Commenters made clear by measurable, quantifiable, that the individual should be placed on felt that the specificity of the rule was or otherwise objective expectations. the license as is done for the RSO. in conflict with the concept of a Response: The NRC disagrees with the Response: The NRC, while agreeing performance-based regulation. One comment. The licensee is required to that it is good practice to have an commenter noted that the blind ‘‘broad describe the overall approach, methods,

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and equipment that it uses to meet the would require marking and handling as should be more specific to avoid security requirements. Additional SGI–M, then the licensee must ensure security plans required by other parts. information has been added to the that all copies of the existing documents Response: The NRC disagrees with the guidance. are appropriately marked and handled. comment. The term, as used in 10 CFR Comment C10: One commenter Comment C13: One commenter part 37, refers to the security plan indicated that the present security plan proposed that for mobile licensees the required by 10 CFR part 37, and there (from the orders) is sufficient and that rule be modified to allow the should be no confusion. Anywhere in a more stringent security plan is preparation and submittal of a generic this Federal Register notice or in the unnecessary. security plan that would be guidance for the rule where a different Response: The NRC disagrees with the supplemented by a project-specific security plan is being referred to, comment. The orders did not require security plan prior to initiating work on language has been added to make clear licensees to even develop a security any given project. The commenter that it is a 10 CFR part 73 security plan. plan. The NRC does not believe that the proposed that the submittal of the Comment C16: One commenter stated requirements for the security plan are generic security plan be required within that the security program is too overly stringent. In fact, the licensee has 30 days of publication of the final rule prescriptive and suggested using the flexibility to include in the plan the as proposed by NRC; however, the 90- language similar to § 20.1101 to site-specific measures that the licensee day requirement would not apply. implement a program commensurate employs. Response: It was not the intent of the with the scope and extent of licensing Comment C11: One commenter NRC to require the development of a activities and sufficient to ensure requested clarification in the situation site-specific security plan for each compliance with the provision of this where there is a high-level corporate temporary jobsite. Development of a Part. The commenter stated that this security plan in place. The commenter’s general security plan that addresses how would allow the licensee the necessary interpretation is that the security plan is security will be applied at temporary flexibility in documenting its specific not required to apply exclusively to the program but would not be prescriptive. jobsites will meet the requirement for security of category 1 and 2 radioactive Response: The NRC disagrees with the having a security plan. The security materials but can be an adaptation of a comment. The NRC believes that the 10 plan is not submitted to the NRC for preexisting site or corporate-wide plan CFR part 37 requirements provide the as long as the required elements are met. approval but would be available at a licensee flexibility. The rule does not Response: The NRC agrees with the facility or temporary jobsite during specify what specific measures that a comment. As long as a preexisting site inspection. The NRC has removed the licensee must use; a licensee can choose or corporate-wide plan meets the requirement that the security plan those methods that fit its facility. The requirements of subpart C as to the address site-specific conditions. security plan, procedures, and training content of the security plan, the plan Comment C14: One commenter noted would address the measures that the would be acceptable and a new plan that, since the security plan is to licensee has chosen to use to protect the would not need to be developed. include a description of the material. Comment C12: One commenter asked environment, buildings, or facility Comment C17: One commenter whether the written security plan must where the material is used or stored, suggested deleting § 37.43(b) on be a separate document in addition to this would require companies that work implementing procedures because the Standard Operating Procedures at temporary jobsites to develop a separate procedures for the (SOPs) that pertain to security. The separate plan for each jobsite. The implementation of the security program commenter felt that it is acceptable for commenter noted that this would be are unnecessary since they should be a set of written SOPs to constitute a extremely costly and would require at incorporated into the security ‘‘written security plan’’ and would like least one additional employee per crew procedures. Another commenter stated the regulation to confirm that. Another to follow the workers around, assess the that many implementing procedures commenter requested that a subsection surrounding environment, write a will be developed that do not include be added to § 37.43 to allow the security security plan, and train the crew in the specific security measures designed to plan and procedures to be the same new security plan prior to any work protect the sources and that do not need document or a group of documents. being performed each day. The to be protected under this section. As Response: Each licensee must commenter stated that this would cause examples the commenter offered determine what information is undue burden on the licensee with no procedures and forms on how to apply applicable to its facility and must be evidence that it would in any way stop for unescorted access, how to add included and documented in its security an attack or protect the general public. people to Radiation Use Authorizations plan. If a licensee already has a security Response: The NRC agrees with the involving irradiators, or procedures on plan developed to meet the comment and has removed the record destruction. requirements of an order or for other requirement for the security plan to Response: The NRC disagrees with the purposes, and this plan meets all the address site-specific conditions. It was comment in part and agrees in part. requirements in 10 CFR part 37, there is not the intent of the NRC to require the Implementing procedures are a no need to develop a new plan. development of a site-specific plan for necessary component of both safety and However, it is unlikely that many each temporary jobsite. Development of security programs. If a licensee already licensees will already have all the a general security plan that addresses has security procedures, it is acceptable required information in place in existing how security will be applied at to continue using those procedures and procedures. temporary jobsites will meet the update the procedures to reflect any If a licensee has existing written requirement for having a security plan. changes to the program. The licensee is procedures and policies in place that For those temporary jobsites that may be not required to protect all of its will be incorporated as part of its considered permanent (i.e., pipe yards), procedures under this provision. The security plan under 10 CFR part 37, the licensee should develop a more only procedures that require protection these may be referenced in the security specific security plan. are procedures that document how the plan as such; however, if these existing Comment C15: One commenter noted security program is implemented. This procedures contain information which that references to the security plan would include procedures on alarm

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response, security guard checks, and requirements are too prescriptive. The Comment C24: One commenter did procedures that describe actual security NRC believes that training is an not think that the licensee should be measures. It would not include the essential element of any program and training the LLEA on rules of types of procedures mentioned by the should be required. The orders did not engagement, such as the proper commenter. Examples have been added require any training to be conducted. response to an alarm. The commenter to the guidance document. The training must address the licensee’s also asked whether it would be Comment C18: One commenter noted security program and procedures and considered self defense to shoot a that § 37.43 does not mention that the the security measures employed by the perpetrator that holds a category 2 requirements apply to individuals who facility. Individuals do not need to be source up as to expose the responder. have access to SGI. trained on the complete security plan; Another commenter noted that the Response: Section 37.43(d)(8) does the training should be commensurate LLEA does not have the time or the contain a reference to the protection of with their responsibilities. The inclination to undergo licensee training. SGI. The requirements for access to and provisions in § 37.43(c)(1)(ii), (iii), and One commenter requested clarification protection and handling of SGI are (iv) are also general and are similar to on whether the training program contained in 10 CFR part 73. the training provisions of § 19.12. included LLEAs. Comment C19: Several commenters The term ‘‘adequate training’’ is not Response: The training is not for the stated that there was no need for the used in the rule language. However, the LLEA but for the licensee’s staff that refresher training unless something training must cover the information for would be responding to the alarm. The specific about the program changes. an individual to carry out his or her licensee is not required to conduct any Commenters felt that only those assigned duties and responsibilities. training of the LLEA, although individuals with a need-to-know should Comment C21: One commenter stated providing the LLEA an overview of the receive training on specific changes and that § 37.23(a)(2) requires users to be facility is a good practice. The rule does that not everyone should be trained on trained in all aspects of the security not authorize lethal force or arming of the security plan. One commenter noted plan and that this conflicts with licensee personnel. that those who just use the device do § 37.43(c)(2) which notes that the Comment C25: In the proposed rule, not need to be trained on the security training should be commensurate with the NRC specifically invited comment of the device. Two commenters felt that the individual’s responsibilities. on the requirement to protect security- refresher training every 12 months Response: The NRC disagrees that related information. Commenters were would be burdensome, particularly if there is a conflict between the sections. requested to provide information on: (1) you have many employees needing the Section 37.23(a)(2) requires the training Whether the Agreement States have training. One commenter suggested that required by § 37.43(c) to be completed adequate authority to impose the the periodicity of the refresher training before allowing the individual to have information protection requirements in be based on licensee’s expectations and unescorted access. It does not state that this proposed rule; (2) whether the assessments for a need for refresher the individual must be trained on all Agreement States can protect the training. One commenter noted that the aspects of the security plan. information from disclosure in the event inclusion of training on the security Comment C22: One commenter of a request under a State’s Freedom of program just added to the overhead. recommended defining ‘‘relevant Information Act or comparable State Another commenter expressed concern results’’ in § 37.43(c)(3). law; (3) whether the proposed rule is with the probable cost of the training Response: The NRC disagrees with the adequate to protect the licensee’s program and noted that it could require comment. The term relevant is a security plan and implementing a staff member to be assigned to the task common term and in this case simply procedures from unauthorized full time to keep up with the training, refers to items that are related to disclosure, whether additional or refresher training, and testing for large security. Examples of some items that different provisions are necessary, or numbers of diverse individuals with would be included are areas where staff whether the proposed requirements are frequent turnover such as at a has had trouble following the security unnecessarily strict; (4) whether other university. One commenter requested requirements, violations of the security information beyond the security plan cost estimates specific to the training requirements that have been discussed and implementing procedures should be requirement. in an inspection report, and measures protected under this proposed Response: The NRC disagrees with the taken to fix any identified security requirement; and (5) whether the comment. The NRC believes that issues. Additional information has been background investigation elements for training is an essential element of any added to the associated implementation determining if an individual is program. If employees are not trained, guidance. trustworthy and reliable for access to how will they know what to do if an Comment C23: Two commenters the security information should be the alarm sounds or material is determined requested clarification on the timing of same as for determining access to to be missing? The training needs to be the refresher training. The commenters category 1 and category 2 quantities of commensurate with the individuals’ noted that their understanding was that radioactive material. Nineteen responsibilities. The estimated cost for refresher training could be taken more commenters provided responses to the the training is included in the regulatory than 365 days after the previous specific questions on this subject. analysis prepared to support the rule. training, as long as it is taken within the Of those that provided responses to Comment C20: One commenter stated same month of the succeeding year. the questions on the protection of that the training program requirements Response: The commenter is correct information, the commenters were were too prescriptive and go well above in its understanding that the training is divided in their views. Some felt that what is in the existing orders. One to be provided at a 12-month frequency the proposed provisions were sufficient, commenter wanted to know what the and be conducted within the same some felt that they were unnecessarily training entails and requested a month of each succeeding year. This strict, and some felt that the current definition of the term ‘‘adequate allows licensees greater scheduling provisions from the Increased Control training.’’ flexibility to accommodate the needs of Orders were sufficient. One commenter Response: The NRC disagrees with the their operations, instead of holding stated that with the proposed comment that the training program them to a strict 365-day time constraint. provisions, there was no continued need

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for any of the security information to be ‘‘(1) Except as provided in paragraph The commenter stated that it may be considered SGI or SGI–M. One (d)(8) of this section, licensees more appropriate to approve the commenter stated that the requirements authorized to possess category 1 or security service provider as a whole should be clarified to indicate that only category 2 quantities of radioactive since it may be difficult for the licensee written copies of the plan and material shall limit access to copies of to maintain a current list of all procedures will be protected. One their written security plan and employees of the vendor who may have commenter stated that the rule was implementing procedures and intimate knowledge of the security unnecessarily strict by requiring that unauthorized disclosure of substantive system at the licensee’s location(s). The persons with access to the security plan details of the plan or procedures that commenter noted that it would be and procedures also be permitted facilitate unauthorized access.’’ burdensome for the licensee to track unescorted access to the sources. Two Commenters noted that the individual employees of these commenters suggested that the list of fingerprinting element was not included companies. The commenter stated that a individuals granted unescorted access to in the background investigation letter documenting the background the security zone should also be elements for access to security investigation procedures of the security protected. Most of the commenters information, and several commenters vendor could be provided to the agreed that the background investigation stated that it should be included. Other licensee to allow it to forego the access elements for determining whether an commenters requested clarification authorization procedures for the individual has access to the information whether fingerprints were prohibited for security vendor employees. One and radioactive material should be the this purpose. Commenters requested commenter stated that each subsection same. Two individuals stated that a that the NRC make the requirements for on the protection of information criminal history records check should background checks consistent (background investigation information) be part of the background investigation throughout the rule. One of the should be revised to state explicitly for access to the information. Two commenters noted that a licensee is left which subsections are applicable and commenters stated that the elements either to perform incomplete checks on must be followed for individuals should be different but did not indicate individuals with whom information is provided relief in § 37.29. what should be different. On the shared, or to grant unrestricted access to One commenter stated that there question of whether the States have individuals who truly do not need the should be no need to have another adequate authority to impose the access, just to allow the licensee to documented basis for an individual to information requirements, many conduct the main element of the have access to the security plan if it has commenters indicated that the States do background check (i.e., the FBI already been documented that the have the authority or that they thought identification and criminal history individual has unescorted access to the States did. On the question of records check). One commenter stated material as it is redundant and create whether the States can protect the that the response discussion for C6 in additional burden. One commenter also information from disclosure in the event the Statements of Consideration should requested that a table or flow diagram be of a request under a State’s Freedom of be modified to include the requirement added to the guidance document to Information Act, most of the responses that anyone seeking information on show when the background were not definitive. Several commenters category 1 quantities of radioactive investigation elements apply. indicated that an opinion from the State material must also have undergone the Response: All aspects of the Attorney General’s Office would be access authorization process, including information protection requirements necessary; four States indicated that the FBI criminal history review and apply to all of the background they did have the necessary authority. fingerprint identification verification. investigation information possessed by In addition to those that provided The commenter stated that this would the licensee whether the information is responses to the specific questions, 8 be a practical threshold for States to the full background investigation or commenters addressed the information have equivalent rules in place that information on how the individual met protection provisions. One State noted mimic the NRC’s SGI–M requirements a category in § 37.29 for relief from that it did have authority to impose the in 10 CFR part 73. background investigation requirements. information protection requirements One commenter stated that the phrase The NRC agrees that the list of and could protect the information from ‘‘security service provider employees’’ individuals that have been approved for disclosure. One commenter noted that as used in paragraph § 37.43(d)(4)(ii) is unescorted access should be protected there are already processes in place too general. The commenter indicated and has added it to the list of items for under SGI and/or official use only that it didn’t appear that the intent of protection. Individuals do not need to (OUO) to protect security information. the NRC was to require background have unescorted access to the One commenter recommended adding checks on individuals who do not radioactive material in order to have the list of individuals approved for access the facility and simply monitor access to the protected information. An unescorted access authorization to the the facility’s security system from an individual who has been granted information that must be protected from offsite location, such as alarm service unescorted access to the radioactive unauthorized disclosure, noting that if providers. The commenter further asked material would not need to undergo the names become public, the if the requirement is intended to address another background investigation to individuals could potentially be security guard service employees who have access to the security information. targeted to gain unabated access to work on the licensee’s premises that The licensee would need to document sources. One commenter requested that contain category 1 and category 2 that the individual has a need-to-know § 37.43(d)(1) be revised to clarify that quantities of materials. Another the information. The rule has been the protection of information refers to commenter requested clarification and clarified that a second background the written security plan or procedures suggested revised language. One investigation is not necessary. only, so as to preclude unwarranted commenter noted that the exemption to On the issue of protecting only interpretations during a regulatory performing background investigations written copies of sensitive information, inspection about what information or for employees of security service the NRC disagrees with the comment. discussions to restrict. The commenter providers requires written verification The licensee must protect against any offered suggested language as follows: from the provider for each employee. form of unauthorized disclosure of the

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protected information, including verbal person * * *’’ be revised to remove the Response: The NRC disagrees with the or electronic disclosure. word ‘‘immediately’’ and to substitute comment. Safeguards information and On the issue of the security service ‘‘as soon as practical.’’ The commenter safeguards information modified provider, the NRC disagrees with the noted that the person won’t handling are defined in 10 CFR part 73 suggested change as a security service immediately forget the information in where the requirements for handling provider may not be a guard and could the plan and that there is no need for such material are located. The reference include other occupations. Language in immediate removal. in 10 CFR part 37 is merely a pointer to § 37.43(d)(4)(ii) allows the licensee to Response: The NRC agrees with the the requirements and does not establish accept a security service provider’s comment. An immediate removal from any new requirements; therefore, the determination of trustworthiness and the list is probably not necessary. The NRC does not believe that a definition reliability based on a full background NRC has revised the language to reflect for these terms is necessary in 10 CFR investigation. Additional information that the removal should occur as soon part 37. has been added to the implementation as possible but no later than 7 working Comment C32: One commenter asked guidance. days. that the NRC define ‘‘to the extent On the issue of requiring fingerprints Comment C28: One commenter practicable’’ for coordination with and FBI criminal history records for objected to the phrase ‘‘in a manner to LLEAs. access to the information, the NRC does prevent removal’’ in § 37.43(d)(6). The Response: This provision was added not have the authority to require commenter felt that the phrase was to the rule to provide the licensee with fingerprints for access to this type of exceedingly vague. The commenter some flexibility. Some LLEAs may be security information. The NRC can only suggested a change to ‘‘secure the plan reluctant to engage in coordination require fingerprints for access to SGI to prevent unauthorized access.’’ activities with a licensee. The provision and unescorted access to radioactive Response: The NRC agrees with the ‘‘to the extent practicable’’ allows the material. The NRC has added a table to comment and has revised the rule text licensee to remain in compliance with the guidance document on the to read: ‘‘When not in use, the licensee the rule when an LLEA will not background investigation elements. shall store its security plan and participate in any coordination Comment C26: One commenter implementing procedures in a manner activities. The NRC does not believe that requested clarification of § 37.43(d)(3) as to prevent unauthorized access.’’ phrase needs to be defined. Guidance is to whether individuals, who by nature Comment C29: One commenter available on this topic and other aspects of their job position have knowledge of requested clarification on whether a of the rule in the associated critical components of the security plan, reinvestigation is required for implementation guidance. would be required to undergo a individuals who have access to sensitive Comment C33: Two commenters background investigation unless they information only, and if so, the recommended deleting paragraph have access to the security plan procedure that should be followed. § 37.45(a)(1)(ii) as this information document or any of its implementing Response: Yes, the reinvestigation would be classified as SGI or SGI–M for SOPs. Examples include a security applies to individuals who have access some licensees and would require guard with access to an alarm-response to sensitive information. The rule has handling and control in accordance schematic or an IT specialist who been clarified to make the requirement with § 73.21. The commenter indicated supports an IT system responsible for clear. that there appears to be little if any alerting security personnel of adverse Comment C30: One commenter benefit in providing this information to indicators in the area of category 1 or requested that language from the orders the LLEA that would warrant the category 2 radioactive sources. In each addressing marking and transmission of dissemination of SGI or SGI–M. Another case the individual has knowledge of security related documents be added to commenter felt it was unnecessary to security plan components but would not the rule. describe specific security measures such have access to the plan itself or Response: The NRC disagrees with the as alarm types and locations unless the implementing SOPs. comment and does not believe that the LLEA is actually monitoring these Response: Employees or service marking and transmission measures alarms. The commenter asserted that a providers with limited knowledge of the need to be added to the rule. Licensees generic description would be adequate security plan but without access to the are not required to submit either the for the purpose of LLEA situational plan or the implementing procedures security plan or implementing awareness. would not necessarily need to undergo procedures to the NRC. The NRC Response: The NRC disagrees with the a background investigation. The reviews these documents during comments. The NRC believes that the licensee would have to decide in some inspections at the site. The transmission information on the facility can be useful cases how much knowledge of the plan portion is therefore not necessary. The to the LLEA. In an event where someone the employee has; if the employee is necessary elements from the orders on is trying to steal the material, the LLEA familiar with the plan and procedures, access to and protection of the can mount a more informed response if even if he does not have access to the information are in the rule. The other information about the facility is document, it may be necessary to elements are good practice, but the NRC available to the responders. When NRC conduct a background investigation and does not believe that they are essential staff has met with LLEA representatives, make a determination of trustworthiness for the adequate protection of the the representatives have indicated and reliability. Note that new language information. However, if a licensee interest in the coordination activities. in § 37.43(d)(4)(ii) allows the licensee to believes that information submitted to LLEAs are deemed trustworthy and accept a security service provider’s the NRC should be withheld from reliable for access to sensitive security determination of trustworthiness and public disclosure, the licensee should information as well as SGI. reliability based on a full background follow the requirements in § 2.390. Comment C34: One commenter noted investigation. Comment C31: One commenter that an LLEA is not going to tell every Comment C27: One commenter suggested that the terms ‘‘Safeguards licensee whether the initial response to requested that the language in information’’ and ‘‘Safeguards an emergency involving radioactive § 37.43(d)(5) requiring that ‘‘* * * the information modified handling’’ be materials must be provided by other licensee shall immediately remove the defined in 10 CFR part 37. than armed LLEA personnel and

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questioned how a licensee would know commenter suggested a reevaluation of information or updated contact this information. The commenter the information provided to the LLEA information. Most licensees in the case suggested removing the provision as it such that release of information would of an actual threat would call 911 and was a nonsense requirement. One not cause a breach in security. Two not the contact. Additionally, no contact commenter stated that the NRC should commenters noted that they had would be available 24/7. The provision coordinate with the States to be notified successfully coordinated with their is not included in the final rule. instead of requiring the licensee to LLEA under the orders and do not Comment C37: Many commenters notify the NRC after the licensee believe that any additional requirements objected to the requirement that a becomes aware of any State or local are needed. One commenter indicated licensee request the LLEA to notify it of requirements that an initial response to that the coordination process should be degraded capabilities as unrealistic, an emergency involving radioactive a clearly defined process. One unnecessary, unenforceable, and would material must be provided by other than commenter stated that LLEA probably violate LLEA ‘‘need-to-know’’ armed LLEA personnel. Another coordination requirements were overly procedures. Some commenters felt that commenter recommended removing the prescriptive and difficult to implement. the requirement that the LLEA notify requirement. One commenter asked The commenter stated that, if NRC feels licensees of a degradation of their what the NRC would do after such this is necessary, NRC should take the response capabilities was clearly notification. lead and identify contacts and provide outside the purview of the regulating Response: The NRC agrees that there training. A commenter noted that the agencies. Others noted that licensees may be some reluctance on the part of use of 911 is effective for all kinds of have no authority over nonlicensed the LLEA to provide the information. emergencies and should be used by entities such as LLEAs. Commenters felt The provision is not included in the licensees. One commenter agreed that that the LLEA is better equipped to final rule. there is value in a coordinated response arrange for alternative response Comment C35: One commenter from an LLEA and that such a response capabilities than would the licensee and questioned the need for a specific should include the capability of that this would be an inherent part of written agreement for response. The bringing armed force; however, the LLEA organizational framework; some commenter also requested clarification commenter stated that it was commenters asked what the direction on what must be included in the inappropriate to place the requirement was if a licensee was notified of a agreement. Some commenters on the licensee. The commenter stated degraded LLEA response capability. questioned the benefit of requiring that the extent of the response should be Another commenter asked what the coordination with the LLEAs and left to the discretion of the LLEA. The State was to do if notified that the LLEA questioned whether this was the best commenter noted that the requirement was not cooperating in providing the use of LLEA resources given the low for a written agreement with the LLEA degraded capability information. probability of an actual threat to was unenforceable and outside the Commenters noted that it is sabotage or steal a category 2 source. State’s jurisdiction. Two commenters inconceivable to believe that the LLEA Commenters indicated that, based on noted that the LLEA coordination was would notify a licensee that their their experience to date with the orders, one of the most difficult areas to response capabilities have become the LLEA coordination was not implement from the orders and places degraded, not only because that would beneficial, noting that at best the LLEAs responsibility on licensees for activities appear to be an open invitation to the would acknowledge the coordination they cannot control. criminal sector, but also, if capabilities attempts with no commitments, other Response: While the orders contained are degraded, logically the LLEA would than to respond in the manner they a requirement for a prearranged plan not have the capability to notify believed was proper, and that most with the LLEA, the proposed rule only licensees. Commenters asked what they LLEAs were completely disinterested contained a provision to request that the would do with the information if and did not acknowledge any LLEA enter into a written agreement. provided. One commenter suggested as information provided by the licensee. After evaluation of all of the comments an alternative that the licensee request They noted that in their discussions on the LLEA coordination, the NRC has the LLEA to confirm that it has a with those LLEAs where feedback was simplified the requirement. The NRC contingency plan in case of provided, the LLEAs were unwilling to continues to believe that coordination compromised response capabilities. discuss the manner in which they with the LLEA is important, and the Another commenter noted that it was planned to respond and unwilling to rule contains a requirement for more important for the licensee to commit to any specific action as each coordination. However, the decision discuss this issue with the LLEA during decision to respond must be based on was made that several of the items, the coordination meetings. Another their judgment of the circumstance. One while good ideas, were better addressed commenter noted that there is not commenter indicated that LLEAs would in the guidance document and not in prescribed action for the licensee to take not want to disclose their capabilities. the rule itself. A written agreement and if notified and questioned the purpose One commenter noted that the LLEA is several of the coordination activities are of the notification. not required to comply with the request. not included in the final rule. Even if a Response: The NRC agrees that many At least one commenter questioned written agreement had been reached, an LLEAs may not want to provide whether it would be more efficient to LLEA will respond as it feels is information on degraded capabilities. inform/train only the LLEA involved appropriate to the particular situation. The provision is not included in the when the billions we spend on Comment C36: One commenter final rule. intelligence indicate a credible threat. objected to requesting the LLEA to Comment C38: One commenter stated Commenters felt that adding a provide updated contact information as that the participation of licensees and requirement does not address the root it places a burden on the LLEA. Two LLEAs in drills and exercises was an cause. One commenter expressed commenters suggested that this only be unfunded mandate and should not be concern that security could be reduced a requirement if a facility is not served required. The commenter also if the LLEA failed to protect the by a 911 system. questioned whether drills and exercises information or had to release the Response: The NRC agrees that it is contribute to the security of the sources information under a FOIA request. The not necessary to request contact or the public health and safety. Two

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commenters suggested removing this cited if the LLEA refused to meet on an additional outreach to LLEAs. However, requirement as there is no requirement annual basis. the DOE has a program to provide to conduct such drills. Response: The NRC disagrees with the LLEAs with additional training for Response: The NRC agrees in part and comment. The NRC believes that it is responding to the attempted or actual disagrees in part. The proposed rule did important to maintain contact with the theft of category 1 or category 2 not require that drills and exercises be LLEA. Turnover at both the LLEA and quantities of radioactive material. The conducted. The rule did contain a the licensee occurs over time and if Global Threat Reduction Initiative provision that required the licensee to contacts are not maintained, the (GTRI) program provides security ask whether the LLEA would be willing knowledge obtained during the initial personnel and local law enforcement to participate in drills and exercises. As coordination is lost. The annual follow with tools (e.g. radios, repeaters, and there is no requirement to conduct drills up does not need to be extensive. If the personal detection devices) and and exercises, the NRC has removed this LLEA refuses to participate, the licensee additional training to respond to a provision as suggested by the should document the attempt. The security incident. To ensure that both commenters. The NRC does note that licensee would not be cited as long as onsite and offsite responders drills and exercises can contribute to the it had documented the attempt(s). understand how to respond to enhanced public health and safety and the Comment C41: One commenter noted security system alarms, GTRI developed security of the material. that the requirement to document an alarm response training course, Comment C39: Several commenters coordination activities with the LLEA which is held at the Y–12 National felt that the requirement for a licensee would now require regulatory agency Security Complex in Oak Ridge, to notify the regulatory agency if an inspectors to visit LLEAs to determine Tennessee. This alarm response training LLEA declines to participate in licensee compliance, resulting in longer also prepares responders to protect inspection times and possibly creating a coordination activities creates an themselves and the public when situation that may be interpreted by the unnecessary burden for the regulatory responding to events involving LLEA as intrusive. radiological materials. The participants agencies that will now be required to Response: It is not clear why the notify the Department of Homeland conduct hands-on training in a realistic commenter feels that an inspector setting using actual protection Security or contact the LLEA directly to would be required to visit the LLEA to explain the importance of cooperating. equipment and real radioactive sources. determine a licensee’s compliance with The courses include operational Some commenters suggested that if NRC the rule’s coordination requirements believes this is truly a critical issue, exercise scenarios that build on under § 37.45. The licensee is required classroom instruction and allow NRC should coordinate with the Federal to document the coordination activities, Department of Homeland Security’s response forces to exercise their own and an inspector would be expected to procedures during realistic alarm Nuclear Sector Government review the documentation. An inspector Coordination Council to engage law scenarios. may choose to contact the LLEA to gain Comment C43: One commenter noted enforcement from a broader perspective. a greater understanding of the nature of that not all events that occur are of a One commenter asked what actions the the coordination efforts. However, this nature that an LLEA would have to be NRC would take when notified and rule does not require that an inspector involved and questioned why it should what the NRC would do if the NRC did contact the LLEA to determine licensee be mandatory that an LLEA respond to not gain confidence that the LLEA compliance with § 37.45. events that could be handled by internal would respond in an actual emergency. Comment C42: Two commenters security. Response: The NRC disagrees with the noted that the goals and objectives for Response: It is not mandatory that the comment. The NRC believes it is vitally coordination activities with LLEAs are LLEA respond to all events. The important for the licensee to coordinate admirable, but the commenters stated licensee is suppose to assess the event with the LLEA, and the agency wants to that this is an area where the NRC and contact the LLEA only if there has know if the LLEA won’t participate. should consider taking concerted efforts been an actual or attempted theft, There were instances during to engage law enforcement communities diversion, or sabotage attempt. The implementation of the orders where the to improve situational awareness now, language has been clarified. NRC met with the LLEA to explain the rather than waiting for feedback from Comment C44: One commenter importance of LLEA cooperation with licensees regarding potential LLEAs questioned how the failure of the LLEA the licensee. The State is not required to refusing to cooperate. The commenters to coordinate fully with the licensee contact DHS or the LLEA if the LLEA suggested that the NRC consider an would impact the status of a license. does not want to participate in outreach campaign aimed at direct The commenter noted that licensees coordination activities. DHS does have communications with LLEAs to better should not be held accountable for training programs to educate LLEAs. understand their perspectives regarding noncooperation or lack of resources on Comment C40: Two commenters these issues. Another commenter the part of the LLEA. The commenter objected to the requirement to suggested a Federal outreach training stated that it should be under the coordinate with the LLEA every 12 program to LLEAs for radioactive purview of the NRC or Agreement State months, noting that it took several materials incident response. The to ensure that the LLEA works with the months to set up a meeting for the commenter noted that DOT has an licensee in the requested manner. coordination required by the orders. The outreach program for transportation Response: Failure of the LLEA to commenter felt that, as there had been incident response. coordinate does not affect the status of no events requiring contact with the Response: During the security the license, and licensees will not be LLEA and no changes to the security inspection process, the NRC inspectors held responsible if the LLEAs do not program, there was no need to meet have been contacting the LLEAs to both coordinate. Under § 37.45(b) and (c), annually. The commenter noted that ensure that licensees have been licensees are only required to document both parties have plenty of work and are coordinating and to improve the LLEAs their coordination efforts and notify not just sitting around and focusing on understanding of the importance of their appropriate NRC regional office if this one agenda item. The commenters providing a timely response. At this the LLEA does not wish to coordinate. asked whether the licensee would be time, the NRC is not planning any The NRC will contact the LLEA to

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explain the potential consequences of full response and arrest capabilities system is adequate in the case of a the theft of category 1 or category 2 while working at the facility. security event. One commenter noted quantities of radioactive material and Response: If the third-party service that the LLEA would also need to be encourage the LLEA to participate in provides individuals that meet the notified when the job ended. One coordination activities with the definition of LLEA and the third-party commenter suggested that notifications licensee. service can provide a timely armed go to a central location, such as the NRC Comment C45: One commenter response 24 hours per day, then the or Agreement State, and then the central requested that the NRC add a subsection third party service providers meet the organization could coordinate with to clarify requirements for coordination requirement for LLEA coordination. State and local police. The commenter by a licensee or permittee under a Comment C47: One commenter indicated that this would reduce the master materials license that has an questioned what would be expected of confusion and workload on both the onsite LLEA that would preclude the State if the LLEA did not respond to licensees and the LLEA and help to unwarranted interpretations during a an event? maintain a healthy working relationship regulatory inspection about the extent Response: The expected response and be more effective. Some that coordination must be documented. would depend on the circumstances and commenters noted that clarification The commenter offered suggested would be up to the State. The NRC would be needed to address cumulative language as follows: ‘‘For a licensee or believes that it would be highly unlikely time where 7 days are not consecutive that the LLEA would not respond to an permittee under a master materials and to better define the boundary of a actual or attempted theft of radioactive license with an on-site LLEA, temporary jobsite for jobs along material. pipelines. Commenters indicated that it coordination requirements in this Comment C48: In the proposed rule, would be difficult to identify LLEA with subsection are considered to have been the NRC specifically invited comment jurisdiction over temporary jobsites, completed if the security plan and on the requirement to contact the LLEA noting issues with overlapping implementing procedures establish for work at a temporary jobsite. jurisdictions, moving jobsites, offshore methods for LLEA response at the Commenters were requested to provide locations, etc. Commenters stated that facility.’’ Another commenter raised the information on: (1) Whether there is any this would impose a huge burden issue of unnecessary documentation of benefit in requiring that the LLEA be without meaningful benefit. Most coordination activities when the LLEA notified of work at a temporary jobsite; is part of the same organization that (2) whether notifications should be commenters indicated that the LLEA owns the radioactive material. The made by licensees for work at every would not be interested in receiving commenter noted that the lack of temporary jobsite or only those where temporary jobsite notifications. documentation activities should be seen the licensee will be working for longer Commenters indicated that LLEAs as good news unless the LLEA refuses periods, such as the 7 day timeframe would respond in the case of an to respond to appropriate requests for proposed in the rule; (3) whether 7 days emergency whether there was an assistance. The commenter also notes is the appropriate threshold for advance notification or not. No LLEAs that burdening the police with detailed notification of the LLEA or should there provided comments. paperwork is an ‘‘insult to their be a different threshold; (4) whether In addition to those commenters that understanding of the risks inherent to licensees can easily identify the LLEA provided responses to the questions, 32 their mission.’’ This commenter also with jurisdiction for temporary jobsites commenters provided comment on the suggested adding a new subparagraph as or whether this imposes an undue issue of LLEA notification for temporary follows: ‘‘When the LLEA is part of the burden; and (5) whether LLEAs are jobsites. Most of the commenters organization that owns and controls the interested in receiving these objected to the requirement to notify Category sources, the documentation in notifications. Eighteen commenters LLEA for work at temporary jobsites. § 37.45(a)(2)’’ {was (a)(1)} ‘‘is not provided responses to the specific Commenters thought that the required provided all the elements of questions on this subject. requirement was unrealistic and created good willful coordination are clear.’’ Of those that provided responses to an unnecessary burden, both in Response: Even when the LLEA is on the questions on LLEA notification at personnel and operations. One licensee site, the licensee should conduct temporary jobsites, the majority noted that its company had over 5,000 coordination activities. The indicated that there was no benefit to jobs a year that would meet the coordination would likely be simplified notifying the LLEA of temporary requirement and that in addition many but still needs to occur. The jobsites. Only one commenter indicated jobs, that were to be less than 7 days, coordination activities to meet the that there is some benefit for experience delays that are beyond the requirements of § 37.45 need to be notification of work using category 1 control of the company. Commenters documented even if the LLEA is part of materials and one noting some benefit noted that the paperwork for the the same organization. The licensee for a temporary jobsite lasting longer notifications will be time consuming to would not need to document all than 30 days. Commenters indicated produce and, if it is to be valuable, time interactions with the LLEA, only those that temporary jobsites are consuming for LLEAs to read and necessary to meet the requirements. unpredictable in nature and therefore comprehend. Many noted that there is Note that it is not the LLEA that is unlikely to be a primary target. no practical means to identify the required to document the coordination Commenters noted that in most cases appropriate LLEA, particularly in areas activities. the licensee does not know 3 days in that the licensee is not familiar with, Comment C46: One licensee asked advance where work might occur and and in some cases a temporary jobsite whether a written agreement with a that due to the nature of the job it is might cover a very large area with third party service that provides off- often not possible to determine the several overlapping jurisdictions, and it duty local law enforcement agents on length of the job in advance. can be difficult to determine which site at all times would be acceptable to Commenters noted that the notifications agency is the first responder. demonstrate compliance with the LLEA may cause confusion for the LLEA and Commenters noted that many times coordination requirement. The would likely be intrusive. Commenters licensees are notified of the necessity of commenter stated that the agents have indicated that the emergency 911 work on the same day the work is

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required and don’t know 3 days in include local authorities was asking a the security of any jobsite, permanent or advance, with one commenter noting lot. temporary. Licensees are free to take that only about 3 percent of its jobs are One commenter suggested an whatever actions they feel are known 3 days in advance. Commenters alternative of requiring daily contact appropriate to develop this type of noted that these jobs often involve with the home office and noted that working relationship. repair of critical oil and gas failure to contact would prompt an Comment C50: One commenter noted infrastructure which could be delayed investigation by the home office which that the temporary jobsite notification while attempting to determine which would lead to LLEA notification as could be via email and that email is LLEA has jurisdiction and coordinating appropriate. Commenters asked who generally unsecured unless it is with them, creating significant cost to will offer training to every jurisdiction encrypted or sent as password protected the industries with no benefit. One and who will subsidize those attachments. The commenter noted that commenter suggested that, if the jurisdictions, current local budgets the rule does not contain any provision was retained, it be modified to being what they are. restrictions as outlined in Regulatory Response: After reviewing the Issue Summary 2005–31. require the notification be made within comments received on this issue, the Response: The provision for LLEA three business days subsequent to NRC has decided not to include the notification for temporary jobsites is not beginning work as this would alleviate LLEA notification for work at temporary included in the final rule. See the some of the problems created by jobsites in the final rule. While there is response to comment C48. advance notifications. some limited benefit in receiving the Comment C51: Some commenters Some commenters noted that the notifications, the benefit does not objected to the concept of a security LLEAs do not want to receive these outweigh the burden that the zone because they believe it is abstract, notifications and would be unprepared requirement would impose. nebulous, and unworkable in actual to receive the notifications. Some Identification of the appropriate LLEA work environments of the types of commenters thought that the contacts would not be easy. The notifications licensees who must comply with the with the LLEA without possible could also cause confusion among the regulation, and unnecessary and response from the LLEA may LLEAs as to what they should do with burdensome with no benefit. accomplish nothing but aggravation and the information. In the event of a theft, Commenters felt that the concept would frustration for the LLEA. One the licensees will likely call 911, and cause confusion. Commenters stated commenter (a State) indicated that, the LLEA will respond as appropriate to that it would add an unneeded term and based on a survey of LLEAs, the LLEAs the call. Also, as pointed out by the concept that would likely lead to want to know about a temporary jobsite, commenters, companies often don’t confusion and would add burden with no matter how long the site will be know where they will be working in little intrinsic benefit. The commenters used, so they can plan for emergencies. advance. Locations, particularly along noted that the licensees’ procedures that The commenter indicated that the LLEA pipelines, shift consistently making it have been put into place to meet the would like a standardized form to be difficult to know who to contact. current orders create security and have used by States that clearly indicates the Comment C49: One commenter been verified through inspections and suggested that instead of mandating the that no change is necessary. Two of the high priority of the information. Many licensees to take on this burden, the commenters stated that the security commenters noted that the 911 system Commission’s approach should be to zone concept was discussed during the is the best tool if there was an attempted encourage licensees to offer LLEAs their orders working group process and that theft and that responders would quickly expertise and offer some form of the concept was not incorporated in the respond once they realized that training to the local departments. The orders. The two commenters indicated radioactive material was involved. commenter noted that the Increased that this had the appearance of an Commenters noted that it is expected Control Orders require the licensees to attempt to incorporate in rule a concept that the LLEA will respond to a security establish their presence with LLEAs as that did not have consensus and was not event in fulfillment of their the facilities clearly are a much more incorporated after going through the responsibility to protect life and attractive target to an attack than the orders working group process. One property and that in many jurisdictions mobile fleets. The commenter suggested commenter noted that the industrial use LLEA resources are somewhat limited. that an adjustment in the rule of radioactive materials when used at its Commenters felt that the NRC lacked a encouraging a closer relationship in this facility is essentially a security zone true understanding of the nature of the area would be more accepted by all because facility access is restricted due temporary jobsite work that is done or parties involved and would not overly to ITAR requirements. This commenter the concept of using the 911 system impact said parties financially or on a said it should be sufficiently secure to when law enforcement is needed. At personnel basis. Creating a program that set up restricted areas based on the least one commenter felt that the NRC encourages and supports licensees and radiation level and monitor the material was placing the licensee in a position LLEAs working together would or could until it is secured in storage. One that would likely result in unintentional create close relationships that will have commenter noted that the increased violations to the rule. Commenters felt far more impacting and lasting results controls are in place, and it was not that due to the itinerant nature of than calls to the departments advising aware of any situations that have temporary jobsites and being constantly them of work that is proposed to last occurred that now warrant the inclusion on the move, it would be very difficult more than 7 days. of a security zone designation. to plan a theft in the field setting. One Response: The NRC has not included Response: While working groups for commenter noted that licensees are the notification provision for work at the orders may not have been able to already required to negotiate and pay for temporary jobsites in the final rule, and reach a consensus on an issue, this does reciprocity, as well as inform the there are no requirements for training not mean that the working group for the applicable State agency as to when and affected LLEAs. See the response to rule was unable to reach consensus. The where operations are planned and the comment C48. The NRC recognizes the 10 CFR part 37 rule working group had duration of the project and that benefits to licensees of having a close information available that was not expansion of this requirement to working relationship with the LLEA for available to the orders working group.

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The 10 CFR part 37 working group allowing the licensee to propose the Increased Control Orders. The NRC considered the orders, lessons learned, measures to compensate for the lack of is unaware of any operating conditions implementation issues, inspection a continuous barrier when that barrier that would require more space for issues, recommendations from other would obstruct the use of the compliance with any of the additional reviews, as well as the comments on the radioactive material for its intended measures required by this rule. The preliminary rule language and proposed purpose and when there is no available licensee establishes the security zone, rule. The purpose of security zones is to alternative. and because measures to control access isolate and control access to category 1 Response: A continuous barrier is not are required for both radiation and category 2 quantities of radioactive the only method that a licensee can use protection and security, a licensee has material to protect them more to meet the requirement. Direct the flexibility to use an area required for effectively and deter theft or diversion. observation is also allowed, as is a radiation protection purposes to fulfill A security zone effectively defines combination of barrier and direct the required functions of a security where the licensee will apply these observation. A continuous barrier does zone. The NRC is unaware of any isolation and access control measures. It not have to be expensive; it can be a petrochemical or other industrial plants is thus a logical extension of the metal cage or walls. The commenter that have designated the entire plant as requirement in the Increased Control seems to believe that unauthorized a radiation safety area for their Orders that licensees ‘‘control access at individuals cannot be in a security zone. radiography or other sources, and the all times to [category 1 and category 2] This was not the intent of the rule. NRC sees no reason why such licensees radioactive material quantities * * * Unauthorized individuals can have or licensed service providers would and limit access to such radioactive access to the security zone as long as need to designate the entire plant a material and devices to only approved they are escorted by an approved security zone for the purposes of this individuals who require access to individual. The rule language has been rule. A licensee could of course choose perform their duties.’’ clarified, and additional information has to do so. Because the purpose of security zones been added to the implementation Because the concept of aggregation is is different from the radiation safety guidance. The licensee can establish the no different from the concept of purposes of the restricted areas and boundaries of the security zone as aggregation and co-location under the controlled areas defined in 10 CFR part appropriate for a particular facility; the orders, it is not clear why the 20, the security zone does not have to rule does not dictate where the security application of security zone be the same as either of these areas. zone is located. In most cases, whatever requirements would result in confusion Because measures to control access are a licensee used to meet the orders will at jobsites where multiple low-level required for both radiation protection also meet the 10 CFR part 37 radiation sources are aggregated. and security, however, a licensee does requirements. The Increased Control Comment C54: Several commenters have the flexibility to use an area Orders did not use the term ‘‘security requested clarification on what required for radiation protection zones’’ but the concept was a factor. constitutes a physical barrier and purposes to fulfill the required Comment C53: One commenter recommended that physical barrier be functions of a security zone. expressed concern with the security either defined or guidance provided. Comment C52: One commenter noted zone concept at temporary jobsites. The Another commenter suggested changing that the security zone concept commenter noted that implementation the term to physical security barrier to potentially has serious operational and would require additional personnel and avoid confusion with the definition of financial repercussions and is expensive expense, and the security zone will physical barrier in 10 CFR part 73. One overkill. The commenter noted that require areas that will be larger than the commenter suggested the physical adding continuous barriers could be radiation areas. Another commenter barrier is where the security zone has extremely expensive and may introduce noted that the concept could cause been established. scattered radiation into labs that have confusion in certain types of jobsites Response: The NRC has revised very specific operational requirements. where aggregation of multiple low level § 37.47(c)(1) to provide additional The commenter noted that isolating and sources would constitute a security clarity. This provision now notes that a controlling access does not appear to zone. The commenter provided the physical barrier is ‘‘a natural or man- comply with the requirements for the example of petrochemical plants that made structure or formation sufficient physical barriers and that locks, cables, use low level sources to monitor for the isolation of the category 1 or etc. would not isolate the same product levels, noting that aggregation category 2 quantities of radioactive radioactive material in a security zone of these sources will constitute a material within a security zone.’’ as required. The commenter noted that security zone which would require Additional information has also been individuals could frequent the security direct control by approved individuals added to the implementation guidance. zones but still be separated from the at all times and\or intrusion detection Comment C55: One commenter asked radioactive material due to the lock but systems and physical barriers. The how many security zones needed to be that the rule requires that only commenter felt that this could mean designated and noted that the rule is authorized individuals have access to that the entire plant would be a security unclear for those licensees within fixed the security zones. The commenter zone, and only trustworthy and reliable facilities. stated that these two concepts seem to employees could enter. Response: The licensee is responsible conflict with each other and if the Response: The NRC disagrees with the for establishing security zones. The common physical barrier concept is not comment. It is not clear why the number of security zones established by acceptable, then many more licensees security zone concept would result in a licensee is dependent on the needs of will fall under these requirements due additional personnel and expense, or the licensee. A licensee may have only to the aggregation of radioactive why it will require security zones larger one security zone or may have several. material. The commenter noted that it than the radiation areas at either Comment C56: One commenter would cost over $200,000 to develop temporary or permanent jobsites. A recommended including a provision in continuous barriers and redo security zone effectively defines where § 37.47 that exempts the security zone calibrations, procedures, etc., if it can be the licensee will apply the isolation and requirements for category 1 or category done at all. The commenter suggested access control measures required under 2 quantities of material stored in casks

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or packages that require specialized would be handled under the rule. The licensee must provide an approved equipment to move, open, or access, if commenter also requested clarification individual and questioned whether the the equipment needed to access the on the situation where there are service provider approved under material is unavailable. One commenter individual sources that are each less § 37.29(m) is permitted to provide the noted that the continuous monitoring of than category 2 but when they are continuous surveillance while working. security zones and detection capability collocated/aggregated the total quantity Response: The continuous is a significant additional cost without exceeds category 2, whether the surveillance may be by remote any benefit for category 1 and category individual sources need to have this monitoring. If a service provider has 2 materials that may be stored at a physical check performed. The been approved for unescorted access, nuclear facility in a concrete commenter noted that depending on the then the individual can provide the mausoleum or within individual answer, the quantity of sources affected surveillance. It is noted that if that concrete vaults that require heavy at a large facility could be more than a individual is conducting work of some equipment, such as a crane, to access. thousand and that this would affect sort, it may be difficult for that One commenter stated that clear criteria many smaller facilities including individual to also maintain continuous for applicability would be needed to medical institutions, universities, and surveillance. implement security zones. The gauging. The commenter noted that the Comment C60: One commenter noted commenter offered the example of requirement has significant implication that § 37.47(d) requires additional multiple high integrity containers with and needs to be carefully considered to measures for security zones for category lids weighing 10 tons, each inside a avoid unintended adverse 1 radioactive material during shield, stored inside a fenced common consequences. maintenance, source receipt, etc. when area which contains, in the aggregate, a Response: The licensee is not required security zones are compromised and category 1 or category 2 quantity of to conduct a weekly physical inventory that permanent security zones are radioactive material and no crane in the of the category 2 quantities of required in § 37.47(c) for both category area to lift the shield container lid. The radioactive material; other methods can 1 and 2 radioactive material. The commenter stated that establishing a be used. The other means allowed by commenter questioned why the security zone for the common storage the rule are intended to provide the additional measures are required only area is required and that this is licensee with the flexibility to use the for category 1 radioactive material if the excessive. method that works best for its facility. security zones are compromised during Response: A licensee can always A licensee could use methods to detect certain times. The commenter noted that request an exemption for material or removal of the material from the it appears that the isolation items that it believes should be exempt security zone. If a licensee is currently requirements for radiation protection from all or some of the 10 CFR part 37 using an agreed on method, the method under restricted, radiation, high requirements. Exemptions are handled should continue to meet the intent of radiation and very high radiation areas on a case-by-case basis. Some of the the requirement. Any of the methods provide the same or better levels of material addressed by this comment is deployed for category 1 materials could security than those described (i.e., covered by the partial exemption in also be used for category 2 materials. continuous physical barriers that allow § 37.11(c). See also response to Additional information is available in access to the security zone only through comment A20. the implementation guidance. Comment C57: One commenter noted Comment C58: One commenter established access control points; or that large manufacturing and requested clarification on where an NRC licensees could exercise direct control distribution facilities will have several security zone at a licensee site and a of the security zone by approved security zones with significant DOT security zone for transport take individuals at all times). The quantities of category 2 sources in effect for shipments leaving a facility. commenter noted that you do not need storage and that it would be impossible One commenter noted that the NRC to have duplicate regulations that apply to perform an effective physical check should clarify at what point the to category 1 and category 2 quantities on a weekly basis. The commenter also shipment is under DOT rules and not of radioactive material. noted that a weekly check is not under 10 CFR part 37. The commenter Response: The additional measures consistent with the ALARA principle. asked if this occurs once a shipment of are only required for the category 1 The commenter noted that putting category 1 or category 2 radioactive material because these materials are tamper indicators on each source/device material is prepared (DOT paperwork in considered higher risk than the category would be cost prohibitive and require a possession of the driver) but still on a 2 materials. A security zone can be the significant amount of time and licensee’s site. The commenter noted same as the area used for radiation personnel dose to install, monitor, and that a temporary security zone cannot protection if it meets the requirements subsequently remove. The commenter accompany the shipment until it of part 37. The measures in part 37 are noted that sources are constantly physically exits the licensee’s property intended to prevent/detect theft of the transferred from one container to or jobsite. material and not to protect an another in the course of manufacturing, Response: It is the licensee’s individual from radiation exposure. storage, and preparing for shipment and responsibility to implement the Comment C61: One commenter noted receiving. The commenter requested requirements of 10 CFR part 37 that § 37.47(d) indicates that during clarification as what ‘‘other means’’ throughout the shipment regardless of those identified periods an approved would cover and/or be acceptable in the location. individual must be provided to § 37.49(a)(3)(ii). The commenter noted Comment C59: One commenter noted maintain continuous surveillance of the that under the orders it has a method that § 37.47(d) is not clear whether the sources. The commenter noted that approved by the Regulatory Authority to regulation requires a physical presence ‘‘approved individual’’ is not defined. ensure that the category 2 radioactive for maintaining continuous The commenter also noted that material is present and that the process surveillance, or whether the continuous depending on the design of the facility, is considered SGI–M information. The surveillance may be by remote multiple approved individuals may be commenter wanted to know how such monitoring. The commenter also noted necessary to adequately monitor pre-existing compliance agreements that the wording implies that the activities throughout a site, which does

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not appear to be clearly required by the compliance with the orders or the rule. the licensee of an unauthorized attempt rule. No change has been made to the rule. to remove radioactive material from the Response: The NRC agrees with the Comment C63: One commenter noted security zone. The commenter stated comment and has revised the rule to that the intent of § 37.49(a)(1), in the that, if the method is not added, clarify that an approved individual is event of a power failure or tampering revision is needed in the someone approved for unescorted that affects the monitoring and detection implementation guide that allows the access and to reflect that more than one system, should be to provide (1) a licensee to rely on its main site wide individual may be necessary. reliable power back up or (2) prompt intrusion detection system when the Comment C62: One commenter notification of the power failure/ intrusion detection system is activated, recommend deleting the phrase tampering such that the licensee will the facility is not occupied by the ‘‘without delay’’ from § 37.49(a)(1) as take immediate corrective action to licensee, AND the intrusion detection the phrase is unrealistic during normal restore the power and provide for system can detect access to the security business hours. The commenter noted alternate monitoring and detection that zone. that unauthorized access whether actual meets the requirements of the part until Response: The NRC disagrees with the or attempted would only be detected the system is repaired. One commenter comment that a 4th method needs to be ‘‘without delay’’ if individuals were in asked what the NRC’s expectations were added to the rule. Although this is not the vicinity and could witness the for implementation of the security the preferred method, the situation access or attempt to access. One requirements in an emergency, described in the comment is not commenter stated that the monitoring, including the expectation as to how prohibited under the rule. Additional detection and assessment requirements long backup systems were required to information has been added to the in § 37.49 are unduly onerous. The operate. The commenter asked how a implementation guidance. commenter indicated that the licensee is supposed to implement these Comment C66: One commenter asked requirement to maintain the capability requirements when there are no whether a tamper device was sufficient to detect without delay attempted provisions for individuals to even to verify the presence of material or unauthorized entry into the security reenter a disaster area. would a weekly check still be necessary. zone should be eliminated or defined in Response: The backup power for the One commenter noted that a weekly a more concrete manner for the sake of monitoring and detection system needs verification should only be performed clarity in enforcement. One commenter to be available until power is restored or for sources/devices that do not have asked how much time is allowed for other measures need to be used such as tamper-indicating devices. Another response when an unauthorized entry direct surveillance. Disaster situations commenter stated that the weekly check into the security zone is discovered. The such as flooding or earthquakes that was too prescriptive and asked about commenter also asked for clarification prevent entry to the facility would be the basis for the timeframe. Another on the meaning of without delay. One addressed on a case-by-case basis. commenter stated that a weekly check commenter requested clarification on Comment C64: One commenter stated was not adequate. The commenter noted what is meant by detect without delay that § 37.49(a)(2)(ii) should contain a that the orders require the licensee to all unauthorized entries into a security more accurate description such as respond immediately to any actual or zone. The commenter asked if the ‘‘* * * alert personnel within audible attempted theft, sabotage, or diversion licensee was to respond immediately range of the alarm.’’ Another commenter and that a weekly check would allow and also asked how this could be noted that ‘‘nearby’’ needed to be the material to be missing for up to a accomplished when using an alarm clarified as NNSA representatives week before it is discovered. The monitoring service. The commenter recommended only silent alarms in the commenter suggested that recommended removing ‘‘without area immediately surrounding category § 37.49(a)(3)(ii) be revised to read: ‘‘For delay’’ from § 37.49(a)(1). The 2 sources. category 2 quantities of radioactive commenter stated that ‘‘without delay’’ Response: The NRC believes that the material, the licensee must maintain is unrealistic during normal business language is appropriate and has not control of licensed material, secure it hours as a business’ security system will revised the rule. Additional information from unauthorized removal or access, not be set to alarm. The commenter is provided in the implementation and without delay, detect and recover noted that areas that may contain guidance document. all stolen, missing or lost licensed category 1 or category 2 quantities may Comment C65: Two commenters material.’’ One commenter stated that be locked and unoccupied but not recommended adding a 4th method to verification of the radioactive material monitored. The commenter noted that § 37.49(a)(3)(i) to allow security zone may not be appropriate for sources unauthorized access whether actual or intrusion detection alarms. The housed in devices. The commenter attempted would only be detected commenter explained that when the suggested requiring verification ‘‘to ‘‘without delay’’ if individuals were in intrusion detection system is monitoring ensure that the source/device is the vicinity and could witness the the security zone, an attempt to gain present’’ and suggested that this access or attempt to access. unauthorized access into the security verification could be made by means of Response: The NRC disagrees with the zone results in an alarm that is equated a camera in the room housing the comment. The NRC notes that the orders to an attempt to remove or sabotage the device/source. contain a similar provision to material. The commenter noted that Response: Category 2 quantities of immediately detect, assess, and respond during normal business hours when an radioactive material are considered risk- to unauthorized access. ‘‘Without intrusion detection alarm to a security significant and if not in use, the material delay’’ means promptly or immediately. zone is disabled the licensee prevents needs to be checked to make sure it is The purpose of security provisions is to unauthorized access into security zones still present. Contrary to the comment, quickly detect and respond to any with locks, physical barriers, and the rule is not prescriptive. The rule potential theft of the material. The NRC surveillance or some combination of does not require that a licensee conduct further notes that, if a licensee is merely each. The commenter stated that it is a physical check. The rule allows the locking the material in a room and not during these periods that a tamper- licensee to pick a method that best fits implementing any other security indicating alarm or radiation detection its needs; a physical check is one of the provisions, they would not be in alarm or video surveillance could alert methods that could be used. There are

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many other methods that could be used radioactive material from the security access. As an example the commenter to conduct the verification. Tamper zone was unnecessary and would create noted the situation where someone indicating devices are considered a huge burden to establish. The walking by tries to open the door and adequate to meet the requirement. The commenter also noted that the the licensee would be required to be licensee can also use methods to detect requirement does not even account for able to detect that and assess. For the removal of the material. the fact that the alarm has to be same reasons, the commenter stated that Comment C67: One commenter monitored or by whom. the requirement to respond to attempted suggested deleting the weekly Response: The purpose of the security unauthorized access should also be verification for category 2 quantities in program is to detect and prevent removed. Another commenter felt that § 37.49(a)(3)(ii) and include the category unauthorized removal of the category 1 the requirement was too broad. This 2 material in the category 1 material and category 2 quantities of radioactive commenter also noted the situation requirement for continuous material. The provision in question does where someone (including an inspector) surveillance. The commenter noted that not require an alarm. If alarms are used, tries a locked doorknob of a secured the provision implies that it may be the licensee has flexibility in area. The commenter noted that there is acceptable for a missing category 2 determining who conducts the no point in responding to this sort of quantity of material to go undetected for monitoring and who responds. challenge to the system as long as the up to a week when this is clearly not the Comment C70: One commenter asked door remains locked as there is no case. what the NRC’s expectation was for security benefit gained by responding to Response: Category 1 quantities of implementation of the requirement to this type of situation. The commenter radioactive material are considered immediately detect any attempted stated that to prevent and reduce higher risk than category 2 quantities of unauthorized removal through the use unnecessary responses to this sort of radioactive material. Therefore, there of electronic sensors linked to an alarm. trivial challenge, a continuous are more requirements on the category The commenter wanted to know if the watchman would be needed or a locked 1 material. The commenter is correct, electronic sensors are to be mounted to door outside the security zone to however, that the NRC does not mean to the actual source, hot cell, or storage prevent access to the boundary of the imply that it is acceptable for missing area. The commenter noted that there security zone to keep individuals away category 2 materials to go undetected for are numerous ways to shield radioactive from the security zone. The commenter a week. A weekly verification is just one material, therefore, the method has to be suggested the following change to the of several acceptable methods to make able to detect an unauthorized removal rule text: ‘‘The licensee shall sure that unauthorized removal of the of a shielded container, and using a immediately respond to any action that material has not occurred. Each licensee building or area alarm is specifically not breaches the perimeter of the Security must determine its own compliance allowed. Zone.’’ One commenter noted that strategy to meet the security Response: The NRC assumes the § 37.49(d) requires the licensee to requirements of this rule, but the rule commenter is referring to the immediately respond to any actual or provides significant latitude for each requirements in § 37.49(a)(3). This attempted unauthorized access in licensee to comply in a way that requirement is in addition to the addition to requesting an armed LLEA optimizes its individual operating requirements in §§ 37.49(a)(1) and response. The commenter noted that requirements. 37.49(a)(2). Licensees must be able to Comment C68: Two commenters presumably this means the alarm detect the unauthorized removal of a service will notify the LLEA on behalf stated that the monitoring and detection category 1 source. Licensees can choose requirements of the security program of the licensee as requiring the licensee any method to detect unauthorized to physically respond could put them in need to be more prescriptive, with a removal. Some methods that the minimum requirement for electronic harm’s way should the intruder be licensee may use to meet this armed. The commenter also asked what sensors and a detection system linked to requirement include, but are not limited an onsite or offsite monitoring facility. other actions the licensee should take to, the following: (i.e., do surveys, inventory material, The commenters did not believe that • Alarming electronic tamper- etc.). allowing monitoring and detection to be indicating device; performed only by visual inspection or • Alarming radiation detector; or Response: The NRC disagrees with the direct visual surveillance was adequate. • Visual surveillance by an approved comment. The NRC believes that it is The commenters noted that the concepts individual. important to assess the attempts to gain of detection, delay, and deterrence are If a licensee uses electronic tamper- unauthorized entry. An individual best implemented through multiple tiers indicating alarms, the alarm should be could test the system before an actual of security. The commenters stated that capable of alarming either when an break-in to steal the material. in the scenario of armed terrorists with attempt is made to remove a category 1 Comment C72: One commenter explosives attacking a facility, reliance quantity of radioactive material from a pointed out that the NRC supported and on individuals to be the sentinels would device, or when an attempt is made to recommended that licensee’s volunteer allow the security program to be remove the device itself. The tamper- to participate in the NNSA GTRI defeated rather easily. indicating alarms should be armed at all program. The commenter noted that the Response: While the NRC agrees that times, except during periods of rule does not acknowledge or defense in depth is always a good maintenance. differentiate its requirements for fixed practice, the NRC believes that allowing Comment C71: One commenter stated facilities which have completed or are direct visual surveillance is appropriate. that it is an unreal expectation that in the process of completing The NRC attempts to balance the burden licensees can assess an attempted participation in the GTRI and that the of imposing additional requirements unauthorized entry and that the NRC should acknowledge the against the risk of the material and the requirement should be removed as there differences between facilities that added protection a measure provides. is no resulting gain in security. The merely meet the NRC requirements and Comment C69: One commenter stated commenter noted that this increases the those that have the robust security that the requirement to have a means to surveillance burden on licensees to provided by the GTRI. The commenter detect unauthorized removal of the monitor not just access but attempted stated that licensees will be unable to

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meet specific requirements prescribed be tested and calibrated, what for interpretation but that performance- in proposed part 37. performance standard should be used, based regulations should allow for a Response: The NRC does support the and noted that the timeframe was risk-based analysis. The commenter GTRI program that provides security arbitrary. The commenter suggested that stated that testing of all alarms places an upgrades to licensee facilities. However, annual testing would be more consistent unnecessary burden on licensees and all licensees are required to meet all of with other requirements. One will encourage licensees to minimize the requirements of 10 CFR part 37 commenter suggested every quarter at the number of alarm points in a system regardless of participation in the GTRI intervals not to exceed 5 months. The which is counter to the intent of this program. Licensees that participate in same commenter also suggested adding regulation. Testing of necessary alarms the GTRI program may take credit for ‘‘Equipment without a known failure will show that the system is functioning those upgrades that meet the 10 CFR mechanism shall be tested after initial appropriately. Another commenter part 37 requirements. installation and at a frequency not to noted that some devices may require Comment C73: One commenter asked exceed 10 years.’’ One commenter partial disassembly of the equipment for how long the continuous (primary or suggested a monthly frequency, another testing and that repeated disassembly alternative) communication capability suggested an annual frequency. One and reassembly for testing purposes must continue to be operable. The commenter stated that testing should be could lead to premature failure or wear commenter asked what arrangements more frequent than quarterly but did not on components. The commenter need to be made to maintain the specify a timeframe. One commenter suggested that internally installed capability in any emergency. The suggested testing every 6 months and detection devices be allowed to be commenter noted that there is no noted that testing required 40 man- tested on an annual basis, which could practicable means to implement this hours to complete. One commenter coincide with an annual preventive requirement as no communications stated that any testing should include maintenance of the equipment. One systems work reliably for many hours or verification of the notification process to commenter noted that the rule needs to days, particularly if there is no power the responding individuals, including be modified to indicate what testing is available, nor personnel allowed in the the LLEA, on at least an annual basis. required. One commenter requested that area to start a generator. One commenter recommended an the following be addressed in the Response: During most emergencies, annual requirement to exercise the discussion when the final rule is the licensee would be expected to assessment and response portions of the published. If an alarm system/device is maintain operability of either the physical protection systems including removed/de-energized from service primary or alternative system an invitation to the LLEA to participate because the ‘‘individual with overall throughout the emergency. Disaster if reasonable to do so. One commenter responsibility for the security program’’ situations such as flooding or stated that an annual requirement deemed the device unnecessary, earthquakes that prevent entry to the should be included that exercises the obviously there are no testing/ facility would be addressed on a case- assessment and response portions of the maintenance requirements; however, if by-case basis. physical protection systems. the device is deemed unnecessary, but Comment C74: One commenter noted Response: The NRC reevaluated the remains energized, must testing/ that guidance on allowable dose limits testing frequency. The requirement has maintenance be performed and should be added to § 37.49(d) for LLEA been changed to allow the licensee to documented? first responders. The commenter noted conduct the maintenance and testing at Response: The NRC agrees with the that most licensees are probably the manufacturer’s suggested frequency. comment. The licensee is only required following the EPA’s Protective Action The manufacturer’s suggested frequency to maintain and test those components Guidance of 25 rem whole body dose for would presumably account for known that it relies on to meet the security life-saving actions and protection of failure rates. If the manufacturer does requirements of 10 CFR part 37. See also large populations and that it would be not suggest a frequency, the testing must the response to C75. helpful to have guidance on what to not exceed 1 year. Comment C77: Three commenters plan for, as part of LLEA training. The NRC agrees that exercising the recommended removing the Response: The NRC disagrees with the response portion of the security plan is requirement for calibration from § 37.51. comment and notes that guidance does a good practice, and we encourage One commenter noted that there are not belong in the regulations. First licensees to exercise their plans with the procedures to test and maintain these responders are subject to the dose LLEA. However, requiring licensees to systems, but the term calibration seems restrictions in State or Federal exercise their response plans may be too out of place. Another commenter occupational safety regulations. burdensome for small licensees with questioned how you calibrate an Comment C75: Several commenters less complex security plans. intrusion detection system. Several suggested revising the frequency of the Comment C76: One commenter stated commenters requested clarification on testing, maintenance, and calibration that the rule and guidance should allow what is expected beyond maintenance requirement. One commenter licensees to limit testing of alarms, and testing. One commenter suggested questioned the technical basis to require associated communication systems, and changing calibration to appropriate operability and performance testing of other physical components of the operational checks. The commenter intrusion alarms and communication security system to those alarms, noted that true calibration of radiation systems every 3 months and asked if the systems, and components necessary to monitors would expose staff to frequency was supported by industry meet the requirements. The commenter unnecessary radiation dose. data or a probabilistic risk analysis from pointed out that testing all alarms, Response: The NRC agrees with the the nuclear power industry. Another systems, and components quarterly is a comment and has removed the commenter stated that the test frequency long-term financial burden and could calibration requirement. Testing the for a device should have a relationship result in licensees removing all operability of a system is sufficient to to the device’s known failure rate. unnecessary alarms, systems, and ensure that the equipment is operational Another commenter stated that the components. The commenter noted that and able to serve its function. Some of requirement was extremely vague, requiring only testing of necessary the equipment, such as meters, relied on questioned what standard things are to equipment leaves the requirement open for safety may be calibrated, but some

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equipment would not be calibrated as rules. A couple of commenters noted licensee shall secure the vehicle or the term is typically considered. that the requirement was in conflict trailer containing the device from theft Comment C78: One commenter stated with OSHA and/or State requirements. when not under the direct control of the that it was not clear what is expected for On the question of whether an licensee. This may be accomplished by compliance for the maintenance, testing, exemption should be written into the removing the ignition key and arming a and calibration requirement. Another regulations or handled on a case-by-case vehicle alarm system, or through the use commenter asked what was considered basis, the commenters were split, but a of disabling device or by the removal of acceptable maintenance, testing, and slight majority favored writing the component that would result in the calibration. exemption into the regulations. Those inability to operate the vehicle or Response: The licensee must ensure supporting the exemption being written trailer.’’ One commenter stated that that the intrusion detection system (IDS) into the regulations noted that providing further guidance was necessary on what is operational and capable of performing an exemption on a case-by-case basis was meant by disable and that the its required function. To maintain creates a burden on the licensee to commenter assumed that the disabling functionality, licensees must prepare the request and on the was temporary. One commenter periodically test the IDS and perform regulatory agency to review the request. indicated that any exemption should be maintenance on malfunctioning One of the commenters supporting the broader than just for the oil and gas components. The testing program is regulatory exemption still felt that the industry. One commenter recommend considered acceptable if the IDS licensee should provide adequate revising § 37.53(b) to allow credit for operates in a manner consistent with the justification for claiming the exemption. removing the key from the ignition and licensees’ physical security plan. Those not supporting the regulatory maintaining the key with the individual. Licensees will be required to test the exemption felt that the case-by-case The commenter noted that a disabling entire IDS or components of the IDS at review would allow the regulator to device could add additional risks to the the frequency specified by the review whether the exemption was worker; for instance, if the device fails, manufacturer or at least annually. The actually warranted. Two of the the individual may become stranded, or licensee may choose to test the entire commenters stated that the requirement it may slow emergency egress. IDS or components of the IDS should be removed as the requirement Response: After consideration of the throughout the 12 months. to remove the ignition key is not comments on this issue, the NRC has Comment C79: In the proposed rule, warranted and unnecessary. On the decided that an exemption should be the NRC specifically requested comment question of whether an exemption added to the regulations instead of on whether an exemption for disabling should be specific for the oil and gas doing reviews on a case-by-case basis. vehicles should be provided in certain industry or be broader, most Requiring licensees to submit an hazardous situations. Commenters were commenters supported a blanket or application for an exemption that would requested to provide information on: (1) broader exemption. One commenter in most cases be approved imposes Whether relief from the vehicle suggested a blanket exemption for all unnecessary burden on both the disabling provisions should be licensee and the agency staff. The NRC provided; (2) any problems experienced category 2 sources. On the question of whether the disabling provision was in has also decided that the exemption in implementing this aspect of the should be broader than for just the oil Increased Controls; (3) whether there conflict with OSHA or any State requirements, three commenters and gas industry as there are other should be an exemption written into the situations where a similar health and indicated a possible conflict but did not regulations or should licensees with safety issue may arise. The NRC has provide any specifics. overriding safety concerns be required revised § 37.53(b) to provide flexibility to request an exemption from the In addition to those that responded to for situations where the health and regulations to obtain relief from the the specific questions, five commenters safety requirements for a site prohibit provision; (4) whether any exemption provided comments on this topic. One the disabling of the vehicle. should be a blanket exemption or a commenter noted that the requirement Comment C80: One commenter specific exemption for the oil and gas for disabling mobile sources presents indicated that the terms ‘‘mobile’’ and industry; and (5) whether the disabling safety concerns within a refinery or ‘‘portable devices’’ are used differently provision conflicts with any petrochemical plant. The commenter in 10 CFR part 37 than elsewhere in the Occupational Safety and Health noted that individuals must be able to regulations. The commenter stated that Administration (OSHA) requirements or quickly evacuate the site in the event of the NRC should change the terminology any State requirements. Fourteen an emergency and that unoccupied or the requirements be changed to be commenters provided responses to the vehicles must be able to be moved by applicable to already defined mobile specific questions on this subject. other evacuees or emergency and portable devices. Of those that provided responses to responders. The commenter noted that Response: The NRC disagrees with the the questions on the exemption for requiring a secondary securing device interpretation that the terms ‘‘mobile’’ disabling vehicles when a mobile source other than the key from a vehicle and ‘‘portable devices’’ are used is in or on the vehicle, the majority prevents the easy movement of the differently in 10 CFR part 37 than supported providing some sort of relief vehicle and compromises safety in the elsewhere in the regulations. The usage from the vehicle disabling provisions event of an emergency. One commenter of the terms in 10 CFR part 37 is in where there is a potential threat due to indicated that relief should be provided agreement with previously issued NRC the work environment, such as a on an as-needed basis. Another guidance. Specifically, the Increased refinery or oil field. Only one commenter noted that there is a Controls Question and Answer #159, commenter opposed providing relief. A possibility that an individual using a provides guidance for definitions for couple of commenters did indicate that mobile device needs to evacuate an area ‘‘portable’’ and ‘‘mobile’’ as provided by they had had problems in implementing quickly and that using a disabling the American National Standard for the vehicle disabling requirement under device could jeopardize the health and Gamma Radiography. the Increased Controls, some safety of the individual. The commenter Comment C81: A few commenters commenters noted that the provision suggested the following language: ‘‘For suggested a change to the timing of the was in opposition to the facility safety devices in or on a vehicle or trailer, the program reviews. Commenters

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suggested an annual frequency not to served, including penalties escalating Comment C87: One commenter stated exceed 14 months between the dates of up to $4000 for requested LLEA that the proposed regulations, as the reviews, a timeframe of 15 months, responses that are judged to be false. applied to Gamma Knife radiosurgery a timeframe of 8 to 15 months, and The commenter noted that this places units, do not give sufficient weight to language similar to § 20.1101 of the licensee in a very bad position to engineered controls. The commenter felt periodically (at least annually). The attempt compliance with this regulation that the greatest risk was during source commenters noted that this would and risk fines from the LLEA. The exchange, which only occurs every 5 to provide some flexibility to allow for commenter noted that there does not 7 years, and not from someone obtaining circumstances beyond the control of the need to be evidence of criminal activity access to the equipment overnight or on workforce. One commenter noted that for the licensee to perceive a threat to a weekend. The commenter further the program review could be eliminated its facility, and appropriately request stated the opinion that there is almost and included under § 20.1101(c). One LLEA response. The commenter no danger during the ordinary operation commenter stated that the review requested that NRC conduct outreach to of the equipment to treat patients. should include a requirement for the the LLEA community with the intent of Response: The NRC acknowledges licensee to summarize those occasions clarifying NRC’s expectations on this that accessibility of a category 2 where an unauthorized access resulted topic. source(s) depends on the design of the in activation of the monitoring and Response: Section 37.57 states that device containing the source(s) and the detection systems, but the licensee’s the licensee shall immediately notify means used to gain access to and assessment showed no actual or the LLEA after determining that an possibly remove the source(s). However attempted theft or diversion of unauthorized entry was an actual or it is anticipated that an adversary will radioactive material as such alarms attempted theft, sabotage, or diversion use whatever means is available to gain could be indicative of a ‘probe’ to test of a category 1 or category 2 quantity of access to and possibly remove a source. or evaluate a licensee’s response by a radioactive material. The NRC believes The category 2 designation has no basis potential intruder. that such an unauthorized entry would in regard to the time it would take to Response: The NRC agrees with the likely constitute criminal activity. remove a source from the device in comment and has revised the language Furthermore, suspicious activity related which it is contained. The security for the program review to be consistent to possible theft, sabotage, or diversion program is designed to deny an with § 20.1101. The use of consistent of category 1 or category 2 quantities of adversary the opportunity to gain access terminology between the safety and radioactive material would also to a category 2 source. It is reasonable security programs should enhance the constitute suspicion of criminal activity. to expect that overnight and weekend licensee’s understanding of the When coordinating with the LLEA, the periods would provide an opportunity requirement. The NRC does not believe licensee must explain that it will to an adversary. Comment C88: One commenter stated that it is necessary to add additional request a timely armed response to any that the requirement limiting unescorted detail on what must be included in the actual or attempted theft, sabotage, or access to approved individuals would program review. diversion of category 1 or category 2 Comment C82: One commenter noted appear to preclude the treatment of quantities of material. that § 37.55 introduces the term patients with a Gamma Knife ‘‘radioactive material security program’’ Comment C85: One commenter radiosurgery unit since the patient is which should be clarified and requested that §§ 37.41 and 37.49 be required to be unescorted in the consistently used in the regulations. revised to reflect that a licensee is treatment room due to the high Response: The concept of the security restricted in detection and assessment radiation levels, and the treatment room program is introduced in § 37.41. The by available technology and resources. would normally be considered to be the NRC believes that the term has been Response: The NRC does not believe security zone. The commenter noted used consistently in the regulations and the change is necessary. The that closed circuit television is used to that the concept is clear. The requirements do not specify a monitor the patient rather than line-of- implementation guidance contains technology, and the licensee can change sight observation, and that this could be information on the security program. the method used to meet the used in place of human escort for those Comment C83: One commenter requirements whenever it wants, as long individuals needing entry to the requested clarification on what as the plan is updated and training treatment room. radioactive materials should be conducted on the revised plan. Response: A patient undergoing included in the security program Comment C86: One commenter treatment is considered to be an review. expressed concern that the vocabulary escorted individual. Closed circuit Response: Part 37 only applies to was not consistent with part 73 and that television used to monitor the patient category 1 and category 2 quantities of it was unclear exactly what the rule meets the requirements of §§ 37.45 and radioactive material. The security required from a security standpoint in 37.47. program review would only address the §§ 37.41(b) and 37.49. Comment C89: One commenter stated security of the category 1 and category Response: The commenter is correct that for a Gamma Knife radiosurgery 2 quantities of radioactive material. that the terminology between 10 CFR unit, individuals subject to background Comment C84: One commenter parts 73 and 37 may not be consistent. investigations should be defined as indicated that the LLEA required it to Part 37 does not have any requirement those who have the key or pass code for file Non-Residential Burglary Alarm for a design basis accident and pertains the treatment room door and the ability Registrations for each room in which an to less risky materials. Part 37 applies to to turn off the security system and not irradiator is housed (and to which they a different type of material and licensee the personnel who may need access to are expected to respond in the event of in most cases. The terminology used in a patient on treatment day. The an alarm). The commenter noted that 10 CFR part 37 is geared for a materials commenter stated that individuals with the LLEA has indicated that an LLEA licensee and not a reactor or fuel cycle the keys or pass code are the ones that response is deemed false if no evidence facility. Guidance for implementing 10 can enter a room and have access to the of criminal activity is found, in which CFR part 37 is contained in the unit for a long enough time, such as case a ‘‘False Alarm Notice’’ will be implementation guidance. outside of normal treatment days, to

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remove any or all of the radioactive equipment and the source holders are comment on several aspects of license sources. typically very large, heavy, cumbersome and address verification. Commenters Response: Gamma Knife radiosurgery metal containers. The commenter noted were requested to provide information is typically performed by a team of that to remove the source holders on: (1) Whether there should be a individuals. The licensee has the option requires tools, cranes, hoist or scaffold requirement for verification of the of escorting those team members not support because of their weight and license for transfers of category 2 authorized for unescorted access. For position on the process equipment. The quantities of radioactive material or example, the licensee may decide to commenter also noted that the sources whether it would be acceptable to wait grant unescorted access to authorized are not aggregated but are located within for the system being developed before medical physicists and have them the various operating unit locations requiring license verification for provide escorted access for physicians, scattered over several acres. transfers of category 2 quantities of nurses, technologists, etc. Response: Part 37 only applies if the radioactive material; (2) how the Comment C90: One commenter noted material is aggregated such that the total address verification might work for that it is important that Gamma Knife equals or exceeds the category 2 shipments to temporary job sites and the units secured behind electronically threshold. As with the orders, the ability of both licensees and the locked doors have a backup door alarm licensee can take measures such that the Agreement States to comply with such which operates during a fire alarm. The provisions do not apply. For example, if a requirement; (3) the frequency of the commenter noted that hospitals are a source holder is welded to the column license verification, and (4) how the increasingly adopting electronic locks and has a cage around it, the NRC has transferring licensee would know if a for securing rooms and that the fire code determined that this is sufficient and license has been modified since the last requires electronic locks to be disabled the sources would not need to be check and that the licensee is still during a fire alarm. The commenter considered in aggregating the material. authorized to receive the material. noted that frequently the door alarm and Additional information has been added Seventeen commenters provided motion detector are tied into the same to the implementation guidance to responses to the specific questions on system. clarify what types of barriers would be this subject. Response: The licensee must meet the sufficient. requirements of the rule. Any additional Comment C93: One commenter noted Of those that provided responses to alarms or other systems beyond those that the type and configuration of the questions on license verification, used to meet the requirements are at the irradiators would render the probability most commenters indicated that the discretion of the licensee. of their use in an act of terrorism as current system for license verification Comment C91: One commenter noted extremely unlikely. The commenter for category 2 quantities of radioactive that since a Gamma Knife treatment noted that they are stationary, weigh in material is acceptable until the license room has a single entrance that could be excess of 1000 pounds, and are secured verification is developed and ready for controlled by an assailant, one or more within segregated and separately locked implementation. A few commenters panic alarm buttons, unobtrusively facilities on a secure campus requiring indicated that phone verification for placed, should be installed so that the separate authorized keycard access to category 2 would be acceptable before staff could summon security without both the buildings themselves and the the new system is available; others being noticed. The commenter also irradiator rooms 365 days per year. The indicated that the NRC should wait for suggested requiring use of a portal commenter recommended that the NRC the new system. One commenter radiation monitor tied into security at exempt irradiators from 10 CFR part 37. suggested that verification not be the exit. Response: The NRC disagrees that required for shipments that result in a Response: The use of duress/panic irradiators should be exempt from the change of jurisdiction but not a change alarms could be used to enhance the requirements of 10 CFR part 37. The of licensee. Most commenters did not licensee’s response plans and a requirements are designed to control support a requirement for address radiation monitor can be used to detect access both to the radioactive material verification for temporary jobsites, a situation where a source has been and to the irradiator by controlling noting that in most cases the regulatory removed from a device. The licensee access to the security zone. The NRC authority will not know the address for can determine which methods it will has engaged the expertise of national a temporary site and that in some cases use to comply with the rule. Any laboratories that have shown that these there is no address. One State indicated additional alarms or other systems devices may be vulnerable to theft, that it did not allow shipments to beyond those used to meet the sabotage, or diversion under certain temporary jobsites. On the issue of requirements are at the discretion of the scenarios. For this reason, and the frequency of license verification (every licensee. possibility that the necessary trained transfer, annual, etc.), the response was Comment C92: One commenter stated individual could be a malevolent mixed; some noted that annual that additional security measures insider, the NRC has determined that verification was adequate, some noted addressing radioactive materials are not certain additional security measures are that every transfer should be verified, necessary in the refining or necessary in the current threat some noted that every transfer would be petrochemicals industry due to the environment. Part 37 uses a layered, ok once the new system is available, location, lack of accessibility, source defense-in-depth approach to enhance some suggested semiannual, and some holder design, and currently applicable the security of radioactive material in felt that use of the National Source security requirements. The commenter category 1 and category 2 quantities. No Tracking System was sufficient. One noted that the sources are continually single measure can provide the required commenter noted that amendments and monitored by process control systems security for this material. Therefore, a enforcement actions typically take a and there would be an immediate licensee must implement all applicable long time so the likelihood of a license response, due to process safety 10 CFR part 37 requirements. being modified after a copy is obtained concerns, if they were to go off-line. The by the transferor is very small. The commenter noted that most sources are D. Transportation Security commenter indicated that there was no contained within source holders bolted Comment D1: In the proposed rule, compelling reason to take extra individually to a process column or the NRC specifically invited public measures to verify that the license has

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not been modified since that last check. verify the information. Commenters developed to prevent these scenarios Most commenters noted the current indicated that this could result in delays from occurring. Licensees are required practice was acceptable until the new and/or stopped shipments. As an to use either the License Verification license verification system is up and alternative, one commenter suggested System or contact the regulatory agency running. One commenter suggested that the regulatory agency could send a (NRC or Agreement State) to verify that obtaining a written statement from the copy of an amended license to ensure a license is valid before shipping receiving licensee RSO attesting to the up to date and valid copies are on file. category 1 or category 2 quantities of current amendment number. One commenter recommended radioactive material to a domestic In addition to those that responded to removing reference to the License company. For category 1 shipments, the the specific questions, 18 commenters Verification System as it does not exist licensee must also verify that the provided comments on this topic. One yet and another commenter noted that shipping address is valid. Transfers commenter noted that it was unclear the system would unlikely be within the same company in a different why additional work over and beyond operational when the final rule is State do not need to be verified as the the current requirements in § 30.41 is published. Several commenters company knows what it is authorized to needed. Some commenters objected to expressed some concern over how well possess. The rule language has been the need to verify a licensee’s validity the license verification system will clarified to make this clear. Verification prior to shipment as it creates a large work; some asked for clarification on is not required for imports and exports; burden on the licensee and the possible access to the system. One the requirements of part 110 apply. The regulatory agency. At least one commenter recommended that the NRC agrees that the License Verification commenter felt that the current method verification provision should not be System (LVS) needs to be fully of obtaining a copy of the receiving implemented until the system is fully functional before this provision of the licensee’s license via either fax or email operational and demonstrated to be regulations is implemented. Although was adequate to verify the validity of a effective. the NRC expects a timely startup of the licensee. Commenters felt that, for One commenter asked if the LVS, this provision of 10 CFR part 37 companies with which they do frequent verification of license provisions permits a separate compliance date that business, verification was not necessary applied to exports. One commenter can be changed if this startup is and that having a copy of the license on asked if these requirements would delayed. file or verification within the last year replace the National Source Tracking The NRC does understand that it can was adequate. Some commenters noted System requirements. be difficult to reach regulator personnel that verifying for every shipment would One commenter noted that there is no and that there may be times when the take time and personnel and increase need to document that a check has been system is down. Therefore, the NRC has the cost of doing business. One done as it can be covered under a added a new provision that provides an commenter indicated that they felt that procedure that the licensee has in place alternative so that licensees can still it would take half a day to process 30 for license checks and that adding ship. If the licensee cannot reach the orders using the system which is 4 times additional documentation just adds time regulator and the system is the current time. Other commenters felt and effort without value. One nonfunctional, the licensee will be able that that an annual check would not be commenter questioned what to use certification from the receiving acceptable and the verification should documentation was required for the licensee that the licensee is authorized occur close to the shipping date. One transfer verification. to receive the requested radioactive commenter stated that a company Response: One of the material. The licensee must follow-up should not be required to verify a same recommendations from the Independent by the end of the next business day to company license in another State prior Review Panel was that licenses be confirm the license was valid. to transfer between the same company confirmed for all transfers of radioactive The NRC has also changed the but at different locations. Two material in risk-significant quantities. documentation requirement. The final commenters requested clarification on The NRC agrees with the rule only requires documentation if the the need to report shipments within the recommendation and believes that licensee conducts the verification by same company but within different verification of the license before transfer contacting the license issuing authority jurisdictions, such as temporary jobsites is an important component that (NRC or Agreement State). The in another State. enhances the security of the material by documentation can simply be a note to One commenter suggested that the validating the licensee’s legitimacy. Use file or a copy of an email response from verification requirement be revised to of the License Verification System is a the NRC or Agreement State. The allow for verification of the delivery key component to allow 100 percent license verification system will keep the address through the receiving licensee’s validation of licenses before transfer of record of any verification conducted RSO or another individual specifically category 1 or category 2 quantities of using the system, therefore, the licensee identified on the license. The radioactive material. While some is not required to keep separate commenter pointed out that some commenters felt that a fax or email was documentation. Documentation is licenses may list the primary address adequate to verify the validity of a important from an inspection and but not individual buildings and that license, the NRC disagrees. An enforcement aspect. the delivery (or dock) address may be individual can alter or tamper with a Comment D2: One commenter noted different than the official building license to change the possession limits that the verification requirement address that is listed on the license. or location of use, or even the person appears to duplicate the transfer Commenters were opposed to including that received the license. Currently, requirements under § 30.41. The a requirement to validate the address for many licensees obtain copies of the commenter noted that licensees should transfers of category 2 quantities of license and keep the copy on file. The be exempted from § 30.41 if they have radioactive material. problem with this method is that the category 1 or category 2 quantities and Commenters noted that it can be license could be amended or terminated follow 10 CFR part 37. The commenter difficult to reach the regulator and once and the licensee would not know that noted that this is an example of an area reached that it may take the individual the license was no longer valid. The where industry and the NRC could some time to look up the license and License Verification System is being constructively work together through

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public meetings to find the most more flexibility. Information has been for a State to block the transport of efficient and effective solution to added to the implementation guidance. category 1 material through the State if address NRC’s concern. One commenter Comment D4: One commenter stated the requesting state official cannot log noted that the proposed regulations that in § 37.75(a)(2) alternate onto the tracking system. Another should be consistent with existing NRC requirements should be added for those commenter expressed concern over regulations related to radioactive States who will not be providing law possible denial of a shipment through a materials, should not duplicate any enforcement escorts for the licensee to State due to tracking system existing requirements, and should not identify the intended LLEA contacts it incompatibility. The commenter noted rely on the general statements of ‘‘not will use to summon an armed response that denial of shipment could result in withstanding the requirements of any should there be an actual or attempted noncompliance with Federal interstate other regulations in this chapter.’’ theft or diversion of the shipment. transportation laws. The commenter Response: The verification Response: The NRC disagrees with the noted that the licensee and carrier are requirements in § 37.71 are in place of comment. Part 37 does not require the capable of determining safe havens the requirements in § 30.41(d). The use of escorts for shipments of category along the route and that past experience language has been revised to make this 1 or category 2 quantities of radioactive has shown that requesting a State to clear. In addition, the NRC has added a material; therefore, an alternate identify safe havens has been fruitless. provision to address emergency requirement is not necessary. One commenter strongly agreed with Comment D5: Two commenters noted situations where the License the preplanning and coordination that in § 37.75(a)(2)(i) the term Verification System is down and the requirements as both necessary and ‘‘minimal delay’’ is ambiguous and licensee cannot reach the licensing desirable. The commenter urged the subject to interpretation. The authority. NRC to encourage States to coordinate commenter recommended that the term with the LLEAs and affected Tribes, Comment D3: One commenter be clarified or deleted. objected to the preplanning and including route and schedule Response: The NRC agrees with the information in the shipment verification coordination requirements in § 37.75 comment and has removed the stating that it would be impossible to system, as it can help States monitor requirement. While the purpose of the shipments and the no-later-than arrival implement for category 2 sources for preplanning and coordination with the facilities that make numerous shipments times. One commenter noted that the State is to ensure minimal delays, the coordination with the States is typically a day. The commenter noted that it language is not necessary in the rule would require a dedicated individual to conducted by email and that there is no itself. discussion unless the State initiates one constantly communicate with customers Comment D6: Several commenters and carriers throughout the day for the in response to the licensee’s recommended removing the provisions notification. One commenter stated that 40–60 shipments and receipts that occur for preplanning and coordination there shouldn’t be any additional during the day. The commenter noted activities with the Governors of each requirements for category 1 quantities that currently the customer is told of the State that the category 1 shipment will that might serve to dilute attention paid shipment date and method of shipment pass through. The commenters noted to highway route control quantities and that the preplanning system takes that the advanced notification provided (HRCQ). One commenter suggested advantage of the already understood to the State by the licensee provides including the Agreement State program arrival times if using FedEx or similar. sufficient time for the State to contact on the list for notification and The commenter noted that the shipper the licensee if a revision to the route or preplanning coordination for category 1 can review the FedEx confirmed additional State imposed controls, such shipments. The commenter noted that deliveries each day (one central as escorts, are to be implemented. The the Governor’s designee is not always location) which verifies receipt by the commenters noted that Appendix A of the Agreement State program director. customer. The commenter noted that the regulatory analysis indicates that One commenter noted that the need to this has been working very effectively, there had been zero event notifications coordinate with all States for transport so there is no reason to change to a in the past 10 years regarding missing or will be very burdensome unless there is much more burdensome method. lost material, suspicious activities, theft, a tool to assist with implementation. Response: It is not clear why the or diversion of category 1 materials and Response: The NRC has determined commenter believes that it will need to questioned how additional coordination that the requirement for preplanning constantly communicate with customers efforts that are not currently required by and coordination with each State for and carriers throughout the day. The the orders can be justified. The category 1 shipments is necessary, but basic requirements are similar to the commenters noted that the licensee has removed several of the proposed orders, with the exception of would be unable to comply with the elements. establishing a no-later-than arrival time. requirement to arrange for positional The NRC believes that it is necessary The licensee could easily establish the information sharing when required by to coordinate with the State to no-later-than arrival time as the close of the State because, as written, States determine whether the State plans to the business day on the expected arrival would be authorized to dictate which provide escorts. If the licensee doesn’t date. If the licensee is already telling the position tracking provider a carrier must find out about the need for an escort customer the shipping information, the utilize, or the State could request that until after the advance notification is addition of one additional piece of the carrier authorize the State to log into provided to the State, the licensee information does not present a large the carrier’s tracking system. This would likely need to adjust the schedule burden and does not require the would result in additional costs as there and reissue the advance notifications. shipping licensee to conduct its are licensing and data communication Knowing upfront about the need for business in a different manner than it fees associated with tracking systems. escorts is likely to reduce the overall currently does. The NRC has revised the One commenter asked if the NRC has burden on the licensee and allow the language to clarify the coordination determined whether carriers are willing licensee to better plan the route for any activities and has removed the to share their positional information real shipment. The licensee is responsible requirement that specified methods of time. One commenter noted that this for identifying safe havens along the sharing information to provide licensees requirement could provide a mechanism route. The licensee would provide that

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information to the State. If the licensee movement of material that is not than arrival time for category 1 has difficulty identifying safe havens, it completely in their control. The shipments has been removed as the may want to discuss this with the NRC, commenter did agree that notification licensee is required to maintain State police, or other State contact. (See between the shipper and consignee is continuous communication capability. also response to Comment A11.) important but felt no need for further The no-later-than arrival time provision The NRC agrees that the other restrictions or regulations in this area. only applies to domestic shipments. elements of preplanning and Another commenter noted that the There is no requirement that email be coordination are not necessary. It was shipper currently sends an email encrypted and faxes be made to an not the intent that the State be given notification that has a receiving awaiting, known entity. direct access to the position monitoring document attached to the message Comment D8: One commenter stated system, only that the state be provided noting when the shipment was received. that § 37.75(c) is a redundant information about the shipment’s The commenters believe that licensees requirement as licensees are already location upon request. This provision is already effectively track the movement required to input data into the NSTS not included in the final rule. The NRC of sources without the need to impose when shipping or receiving radioactive has only retained what it believes are additional regulation. One commenter material. The commenter noted that the minimum requirements for the noted that category 1 shipments are licensees are already required to initiate preplanning and coordination. The rule often held up in States for inspection. an investigation if a shipment does not does not specify the method for Commenters noted that common carrier arrive and that there is no reason to conducting the preplanning and delivery guarantees are not accurate to require a licensee to notify the shipper coordination. The licensee can conduct within 4 hours. Commenters noted that when the shipment occurs as it is the preplanning and coordination by the 2- and 4-hour timeframes would scheduled. The commenter noted that email. result in numerous modifications to the this would require a tremendous The NRC will maintain the list of time or ultra conservative estimates. amount of resources and is unnecessary State contacts as it does for 10 CFR part Several commenters suggested 24 hours as a licensee is already required to 73 shipments. The list will be available as the timeframe. One commenter noted notify the shipper if the shipment does on the NRC’s Web site at http://nrc- that licensees routinely monitor the not arrive. One commenter requested stp.ornl.gov/special/designee.pdf. The status of shipments and notify the clarification on whether § 37.75(c) list will also be published in the Federal carrier and regulatory agency when the applied to notify international shippers Register on an annual basis, typically in shipment does not arrive within a of receipt within 4 hours. One early July. reasonable timeframe. The commenter commenter noted that the transferee Comment D7: Some commenters stated that the regulations should licensee should notify the NRC (and the objected to the requirement to establish specify what is required and not how to License Verification System) and the a no-later-than arrival time. One achieve it. One commenter noted that host State when a shipment arrives. The commenter pointed out that the the time of a shipment will not be commenter indicated that the shipping licensee has no control over notification should reasonably occur when a common carrier delivers the known for material that is transported by common carrier as shippers like within 2 hours after arrival instead of material, noting that typically they the 4 hours proposed in the rule. know the day but not an exact hour. The FedEx simply verify that a shipment will arrive by a certain date, and often Another commenter objected to the commenter felt that the requirement need to confirm a shipment with the the only notice that a shipment will be would result in many unnecessary shipper and noted that it was redundant late is that it doesn’t arrive by the end reports or an exaggeration of the time in to current requirements for the NSTS. A of the business day. One commenter order to avoid making reports and noted commenter noted that if a notification requested clarification that the no-later- that licensees are responsible enough must be made when a shipment does than arrival time applies only to not to need a regulation that will burden not arrive that it doesn’t make sense to domestic transfers, either within the them and ultimately be subverted. also require that a notification be made definition or in the guidance. One Another commenter felt that the rule when and if it does arrive and therefore commenter noted that § 37.75(b) would be extremely costly and time it just adds burden without benefit. One requires licensees to email or fax arrival consuming to implement and commenter recommended that the impractical. The commenter stated that times for shipments of category 2 licensee should notify the NRC (and the the NRC should place the requirement material and that licensees must be License Verification System) as well as on the carrier and not the licensee, as made aware that the email must be the States affected when a shipment is the licensee has no control. Another encrypted and faxes be made to an revised or cancelled. The commenter commenter suggested waiting until the awaiting, known entity as was noted in noted that the change should be end of the day, which was previously Regulatory Issue Summary 2005–31. reported by the carrier company after agreed to, and send a report (NRC 748) Response: The NRC continues to communication/coordination with the into NSTS and hope that it gets put into believe that the establishment of a no- driver. One commenter objected to the the system, maybe receiving later-than arrival time is beneficial. The requirement for the receiving licensee to confirmation that the reports were NRC notes that the orders currently notify the shipping licensee within 4 received. Two commenters require the licensee to coordinate the hours of a package arrival and recommended allowing licensees to use expected arrival time of the shipment recommended that the requirement be the NSTS as method to fulfill the and to initiate an investigation if the removed from the rule. The commenter notification requirement in § 37.75(b) shipment has not arrived by the indicated that this would result in an and (c). One commenter supported the expected arrival time. The provision for undue cost and would require licensees concept and suggested timeframes. One the no-later-than arrival time actually to have personnel on evenings, commenter noted that a loss of material provides the licensee with more weekends, and holidays to receive/send is an immediate notification and that flexibility. The no-later-than arrival time the information. One commenter asked the rule as proposed places the licensee allows for traffic delays due to weather why using NSTS wasn’t sufficient. in a burdensome position of devoting and other circumstances before an Response: The requirement in additional time, effort, and concern over investigation is initiated. The no-later- § 37.75(c) to notify that a shipment has

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been received and the requirement to licensee may not have this information Response: The NRC disagrees with the report to NSTS are not redundant. The until the shipment is in progress, or comment. It is the licensee’s reporting to NSTS is a report to a system even when it is received. The responsibility to notify the affected and does not notify the shipping commenter noted that if it is assumed States. The need for the NRC’s licensee that a source has been received. that this requirement is only applicable Operations Center to notify affected The shipping licensee would need to from the point of customs clearance, States could interfere with its primary access the system to see if the status of then it may be practicable. The responsibility to be available for the source has changed in order to commenter indicated that the regulation response to events. Additionally, for determine if a shipment has been should specifically state that it is those shipments that are made by an received. The reporting to NSTS is by applicable to the portion of the Agreement State licensee, the NRC the close of the next business day which movement of shipments after customs would not be notified as the notification means information on the receipt of the clearance. One commenter asked if NRC would go to the Agreement State. The shipment might not be available for has coordinated with DOT to determine Agreement State will need to provide several days and this would be too long if the advance notification is the information to the NRC so that the for a shipment to go missing without practicable. One commenter noted that NRC can share the information with its starting an investigation. Additionally, the activity levels are not available with Federal partners. not all shipments are reported to NSTS. much degree of accuracy as the activity Comment D13: Two commenters When shipments don’t arrive on time, is often not measured until the recommended including an email the shipping licensee needs to start an shipment arrives. One commenter noted address and fax number for the NRC investigation to determine if the that the shipper may not know when a point of contact receiving the material is missing or just delayed in shipment will commence, cross State notification in § 37.77(a)(1). The shipment. The requirement to confirm lines, and arrive. The commenter also commenters noted that the email shipment is not new as it is a current noted that the shipper may not know of address and fax numbers should be requirement from the orders. The schedule changes ahead of time. readily available as most notifications notification provisions do not apply to Response: The NRC understands that are made by email or fax. international shipments. all of the information may not be Response: The NRC agrees with the Comment D9: One commenter noted available at the time of the initial comment and has included the secure an inconsistency in the timeframes for advance notification. Section 37.77(b) fax number and email address to submit the receiving licensee to notify the specifically states that the licensee must the notifications to the NRC. shipping licensee no later than 4 hours provide the required information if Comment D14: Two commenters after the package arrives but that the available at the time of the notification. recommended removing the option in shipping licensee is to begin an In addition, § 37.77(c) provides for § 37.77(a)(2) to mail in notifications or investigation within 2 hours of a revised notifications for information require that notifications not submitted category 1 shipment not arriving by the that was not available at the time of the by fax or email be sent via certified mail no-later-than arrival time. initial notification and for instances or delivery service. The commenters Response: The NRC has removed the where information changes. The noted that 7 days prior to the shipment no-later-than arrival requirements for commenter is correct that the provisions date may not be sufficient time to allow shipments of category 1 quantities of only apply to the domestic portion of a notification transmitted through the radioactive material because they are the transport for both imports and regular mail to reach the intended not needed with the communication exports. The requirements would begin recipient. and monitoring requirements associated at the point of customs clearance for Response: The NRC disagrees with the with these shipments. The provision for imports and end at the border for comment. The 7 days prior notice no-later-than arrival time remains for exports. Section 37.73(d) and (e) notes requirement is consistent with the category 2 shipments. The arrival time that the provisions only apply to the similar provision for advance and the no-later-than arrival time are domestic portion of the shipment. Both notifications for spent fuel shipments. not the same times. The arrival time is sections have been revised to address Transmittal of the SGI–M information the time the shipment actually arrives at exports. must meet the requirements of § 73.23. the facility. The no-later-than arrival Although the NRC coordinates with The licensee always has the option of time is the time established that when DOT on a number of safety and security sending the notification earlier than a shipment has not arrived and an matters of mutual interest, licensees required. The NRC has revised investigation will be started to have implemented advance notification § 37.77(a) to clarify the procedures for determine the whereabouts of the requirements for many years, and the submitting the notifications. shipment. practicability of these notifications is no Comment D15: Two commenters Comment D10: Two commenters longer in serious question. recommended increasing the pointed out an editorial error in Comment D12: Two commenters notification requirement in § 37.77(a)(3) § 37.75(d), noting that the reference to recommended that the advanced from 4 days to 7 days. The commenters § 37.75(a)(1) should be § 37.75(b). notifications to the Governor be made noted that the additional time would Response: The NRC agrees with the through the NRC’s Operations Center. provide States enough time to review comment and has made the correction. The commenters noted that the licensee and evaluate the details regarding the Comment D11: One commenter noted could simply provide the advanced shipment and would preclude the need that it may not be possible to provide notification to the NRC’s Operations to conduct the required preplanning and the information for an advance Center with a list of States affected and coordination. The commenters noted notification before the shipment. The the NRC’s Operations Center would that this advance notification process commenter stated that the information then transmit the advanced notification has been in place and proven effective is not available to most licensees to the affected States. The commenters for the past 6 years. One commenter because carriers are not willing and may noted that this would reduce the record recommended that ‘‘other means’’ in not be able to provide the detailed retention and notification burden on the § 37.77(a)(3) be defined or clarified. The information to licensees. The licensee and would ensure consistency commenter assumed it meant by email commenter noted that for an import, a in how the States receive notifications. or fax.

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Response: The NRC disagrees with the requiring that they all be accomplished have their own processes and comment. The NRC believes that 4 days by one entity as the functions may be procedures in place and would be provide sufficient time for the States to accomplished by separate departments required to follow them. The NRC has review and evaluate, particularly since or personnel. removed the requirement for railroad the licensee is required to conduct Response: The movement control shipments. preplanning and coordination with the center definition does not require that Comment D23: One commenter stated States in addition to the advance all of the functions be carried out by the that the regulation must make it clear notifications. The timeframe is also same department or personnel. It does that the requirements in § 37.79 are only consistent with the similar provision for require an operations center or base applicable from the point of customs advance notifications for spent fuel from which all of the functions are clearance. shipments. No State that commented on handled. The primary purpose of the Response: Section 37.73(d) and (e) the rule indicated that additional time movement control center is to have staff makes it clear that the provisions only was necessary. Other means could available that can immediately respond apply during the domestic portion of the include fax or email, or delivery by to an emergency and coordinate the shipment. For imports, the provisions messenger. Additional information has required response. begin at the point of customs clearance. been added to the implementation Comment D20: One commenter Comment D24: One commenter noted guidance. requested clarification in that § 37.79 requires licensees to use Comment D16: Two commenters § 37.79(c)(1)(ii) on the use of companies who use package tracking indicated that it was unclear what authentication and duress codes. The systems (for category 2) and that it information the point of contact, commenter noted that it wasn’t clear if should be clarified that the package requested in § 37.77(b)(7) for the there were two codes or if there needed itself should be accounted for and not advance notifications, should be able to to be a strategy for the ‘‘use’’ and simply the paperwork. provide. The commenter noted that ‘‘authentication’’ of duress codes. Response: The NRC believes that the ‘‘current shipping information’’ could Response: The NRC has revised the regulations are clear that it is the imply that the point of contact should rule language to clarify that there are package that is being tracked and not be a person accompanying the two types of codes. the paperwork. No change to the shipment, or did it mean someone who Comment D21: One commenter noted regulations is needed. has information regarding the details of that redundant communications systems Comment D25: One commenter the notification. are required but it was not clear if objected to the requirement to start an Response: The point of contact would redundant position location or tracking investigation if a package does not be someone that has information systems are necessary. arrive within 2 to 4 hours of its regarding the details of the notification. Response: The rule does not contain designated arrival time. The commenter It is not intended to be a person a requirement for a redundant position noted that weather, traffic, etc. could accompanying the shipment. Additional location or tracking system. affect delivery times and that starting an information has been added to the Comment D22: One commenter noted investigation because a package did not implementation guidance. that although a licensee can make arrive on time due to poor weather, etc Comment D17: One commenter noted arrangements to ensure that personnel is a waste of time and resources with no that the NRC should provide for are trained and can audit the carrier for foreseeable gains for security. The advance notification to Tribes for compliance, it cannot ensure that commenter noted that the timeframe shipments that cross their reservation. personnel are trained as required. One should allow some time for The commenter noted that this rule commenter objected to the requirement investigation and suggested an 8- and should be consistent with the rule that for licensees providing training to 24-hour timeframes. the NRC promulgates for Tribal entities beyond its control such as Response: The NRC agrees in part notifications. railroad personnel. The commenter with the comment. The NRC has Response: The NRC may consider noted that the carriers already have clarified the text in § 37.79(d) to remove providing advance notification of these training and certification requirements reference to lost or unaccounted for materials to Tribes in the future but under DOT. Two commenters material. The requirement to establish a does not currently plan to include the recommended allowing the licensee to no-later-than-arrival time for shipment provision. provide current copies of normal and of category 1 quantities has been Comment D18: Three commenters contingency procedures in lieu of removed as the licensee is required to suggested changing the phrase training as required by § 37.79(c)(2). The maintain constant communication ‘‘movement control center’’ to commenter noted that it is not feasible capability. The NRC has increased the ‘‘communication control center’’ in to provide ‘‘appropriate training’’ to a timeframe for the no-later-than arrival § 37.79 to maintain consistency with the group of individuals that the licensee time for category 2 shipments to 6 orders. has no control over. hours. Response: The NRC disagrees with the Response: The NRC agrees with the Comment D26: One commenter stated comment. Although the orders called comment. The NRC agrees that it is that when shipping radioactive material the centers communication control acceptable to provide copies of the meeting the requirements of HRCQ and centers, these centers are typically normal and contingency procedures in RAMQC the requirements should called movement control centers. The lieu of a formal training program. If this include having two forms of terms refer to the same function. The mechanism is used, the licensee should communications available at all times NRC is retaining the term movement have a signoff sheet associated with the for reporting incidents and requesting control center to be consistent with the procedure that the individual would assistance. term in 10 CFR part 73 as the centers sign indicating that he or she has read Response: The NRC agrees and serve the same function. and understands the procedure. The included a requirement for redundant Comment D19: One commenter noted NRC also agrees that the licensee would communication capability for category 1 that in the definition of ‘‘movement be unable to dictate that railroad shipments (RAMQC) in the proposed control center’’ various functions are personnel undergo training and follow rule. The final rule in § 37.79(a)(1)(ii) combined and that there is no value in the licensee’s procedures. Railroads requires licensees to ‘‘Ensure that

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redundant communications are when packages traverse through compatibility of the provisions, the established that allow the transport to delivery hubs. The commenter noted provisions need to remain compatibility contact the escort vehicle (when used) that an exclusive use shipment removes B because there are significant and movement control center at all the risk of lost or misdirected packages transboundary implications. times. Redundant communications may and would provide the same level of Comment D30: One commenter noted not be subject to the same interference control as a package tracking system. that the shipping requirements are factors as the primary communication.’’ The commenter noted that adding the somewhat demanding with the Redundant communications are exemption would give the licensee the authorized shippers having added required to mitigate an interruption, ability to transport their own category 1 responsibilities. The commenter caused by either natural events, such as materials. assumed that the Commission will storms, or deliberate actions, such as Response: The NRC disagrees with the communicate with the shipping signal jamming, that may cause comment and does not believe that an agencies accordingly. The commenter communications to be lost on the exemption is appropriate for shipments noted that the addition of GPS primary communication device. One or transported as Exclusive Use. The capabilities combined with vehicle/ more additional communication devices shipment should still have the same trailer alarms with remote features will must be available to operate security measures applied even if the be an added expense. Another independently of the primary device, shipment is in a dedicated truck. While commenter asked how to find the thereby minimizing the possibility that it might remove the risk of a misdirected approved carriers. whatever disabled the primary device package, it does not remove the Response: The NRC is not sure what will impact the redundant devices. For possibility that the material could be the commenter meant by authorized category 2 shipments, the NRC is not stolen during transport. The licensee is shipper, but assumes that it refers to the requiring a redundant means of allowed to transport its own category 1 licensee that is shipping the material. communication. or category 2 material under the rule. The NRC is also uncertain what the The requirements for HRCQ Comment D29: One commenter was commenter meant by shipping agencies, shipments, other than the category 1 disappointed that the proposed rule did but assumes that the term refers to material, are beyond the scope of this not contain the requirement for GPS common carriers. Common carriers do rulemaking. tracking for trucks carrying category 2 not have any responsibilities under part Comment D27: One commenter felt quantities of radioactive material that 37 as the NRC does not regulate the that the rule should be revised to was requested in PRM–71–13 or, carrier. It is each licensee’s require the licensee to provide some alternatively, for the rule to give responsibility to make sure that its level of armed security during transport Agreement States the flexibility to be shipments are compliant with the of HRCQ. more stringent than NRC. The regulations. The NRC believes that the Response: The NRC disagrees and commenter was disappointed that the requirements in subpart D are necessary feels that the physical protection NRC did not request comments on the for the safe transport of category 1 and measures in place are adequate without issues raised in the petition nor category 2 quantities of radioactive requiring the use of armed security provided any further discussion or material. The regulations do not require personnel. The licensees that ship explanation for not including the two the licensee to use GPS or vehicle/trailer category 1 quantities of radioactive recommendations in the proposed rule. alarms during shipment of the material. material by road would be required to The commenter noted that NMED data Alarms may be necessary, however, if have sufficient protective measures shows that since the letter was sent, the material is stored in the vehicle or which include: A movement control another truck carrying radiography trailer while the vehicle is unoccupied. center that maintains periodic position sources was stolen, and the commenter The NRC does not approve the carriers. information from a location remote from further noted that it only takes one to Comment D31: One commenter stated the activity of the transport vehicle or become the terrorist event. The that § 73.35 is not clear on what to trailer and monitors shipments 24 hours commenter noted that GPS tracking is include/exclude from the calculation for a day, 7 days a week; redundant very inexpensive and an easy way to ‘‘net weight.’’ The commenter indicated communications that would allow the help with rapid recovery should that if the ‘‘net weight’’ is intended to transport to contact an escort vehicle; preventative measures fail and that GPS include only the weight of the nuclear and the ability to communicate an tracking for category 2 sources should or radioactive material contained in the emergency immediately to appropriate be required. irradiated fuel, then this should be law enforcement agencies that would Response: The NRC reevaluated the clearly stated. The commenter noted provide an armed response. Since the need for requiring GPS tracking for that calculation by ‘‘exclusion’’ may appropriate States are to be notified in trucks carrying category 2 quantities of lead to wide variation in interpretation. advance of the shipment, the State may material. The NRC continues to disagree Response: The rule addresses the decide to have armed escorts with the comment. Tracking a truck can irradiated reactor fuel weighing 100 g accompany the shipment within the be misleading as either the source or the (0.22 lb) or less in net weight of State’s borders. device containing the source can be irradiated fuel, exclusive of cladding or The requirements for HRCQ removed and the GPS would provide no other structural or packaging material, shipments, other than the category 1 benefit. There is no easy method of and that has a total external radiation material, are beyond the scope of this placing the GPS tracking mechanism on dose rate in excess of 1 Gray (100 rad) rulemaking. either the source or device. While GPS per hour at a distance of 1 m (3.3 ft) Comment D28: One commenter could help with locating the truck, the from any accessible surface without suggested adding an exemption to source/device may not still be on the intervening shielding. § 37.79 for shipments transported as truck. For devices in or on a vehicle, the Comment D32: One commenter Exclusive Use, in accordance with 49 licensee is supposed to maintain control proposed an exemption for the CFR 173.441. The commenter noted that and have constant surveillance of the aggregation of packages that package tracking systems are necessary material or use a method to disable the individually each contain less than a when a carrier handles multiple vehicle. The NRC believes that these category 2 quantity of material and were consignments on single vehicles and measures are adequate. As for the in a package with an external volume

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exceeding 1 cubic foot and with a mass responses to the specific questions on endorse any particular company. The exceeding 100 pounds. The commenter this subject. regulations require licensees to use noted that these parameters would Of the commenters that addressed the carriers that have an established present a practical, individual barrier to questions on the monitoring plans for package tracking system which is a theft. The commenter also suggested, as use in railroad classification yards, only documented, proven, and reliable an alternative, the addition of a specific one commenter gave an answer other system routinely used to transport activity threshold to the category 2 than unknown. The commenter noted objects of value. This gives licensees the table, and materials not exceeding the that, due to insurance and liability flexibility to use tracking systems that specified concentration values (sum of concerns, it was highly unlikely that the work within their organization. The fractions could be applied to packages classification yard would allow an package tracking system must allow the containing multiple radionuclides of individual to accompany a shipment. shipper or transporter to identify when interest) would be exempted from the The commenter noted that DOT and where the package was last located requirements. regulations were sufficient for personal and when it should arrive at the next Response: The NRC disagrees that the safety from a radiological perspective. point of control. The NRC does not parameters described would present a In addition to those that addressed the object to the use of Federal Express, as practical barrier to theft. The specific questions, two commenters long as they continue to meet these requirements do not allow an individual provided comment in this area. One requirements. licensee to aggregate less-than-category- commenter indicated that additional Comment D37: One commenter asked 2-quantity packages of material to monitoring while the shipment is in a how the security provision must be exceed category 2 limits for an railroad classification yard is an implemented when using a freight individual shipment unless the impractical and unenforceable forwarder. shipment complies with 10 CFR part 37 requirement. The commenter noted that Response: Transportation security requirements. If two or more packages, the systems that are currently in place requirements will still apply to each containing less than a category 2 are sufficient. One commenter stated shipments using a freight forwarder. quantity, in aggregate reach or exceed a that remote monitoring of the package The NRC expects licensees to ensure category 2 quantity in a shipment from and not the railcar is necessary in a that their shipments are received by the one NRC licensee, the licensee would be classification yard. recipient in a timely manner and that required to meet applicable subpart D Response: The NRC has decided not any suspicious, attempted, or actual acts requirements before shipping. to include the provision for an NRC- against a shipment would be quickly The NRC did consider specific approved monitoring plan for the time detected, assessed, and immediately activity and grants an exemption as that a shipment is located in a railroad reported to law enforcement authorities. stated in § 37.11(c), which states that classification yard. The NRC agrees that Comment D38: One commenter licensees that possess radioactive waste DOT regulations are sufficient. questioned who would be responsible that contains category 1 or category 2 Comment D35: One commenter asked for complying with the security quantities of radioactive material are if the requirement for continuous and requirements when a carrier aggregates exempt from the requirements of active monitoring by licensees applies the material during transport or storage subpart B, C, and D of 10 CFR part 37, only to shipments carried by the incidental to transport. The commenter unless the radioactive waste contains licensee. The commenter noted that noted that it would be logical for the discrete sources, ion-exchange resins, or real-time information is not available to responsibility to be with the carrier. activated material that weighs less than the licensee when a carrier is used. Response: Licensees are not 2,000 kg (4,409 lbs). Response: The continuous and active responsible for packages that are Comment D33: One commenter noted monitoring of category 1 shipments, aggregated by the carrier as long as the that category 1 rail shipments should be whether by the licensee or by a carrier, individual licensee does not exceed by dedicated trains. is the responsibility of the licensee. It is category 2 thresholds. The licensees are Response: The NRC disagrees with the also the licensee’s responsibility to not responsible if the carrier picks up comment. There is no security or health ensure that its carrier has the radioactive material from multiple and safety basis for requiring dedicated capabilities for continuous and active locations that, in the aggregate, meet or trains for rail shipments of category 1 monitoring. Any time a shipment is exceed the category 2 threshold, since quantities of radioactive material. enroute, the licensee must be the licensees have no knowledge of Comment D34: The proposed rule knowledgeable of its whereabouts, what the total quantity of material might contained a provision that would which can be verified by a phone call be in the shipment. The NRC does not require the licensee to have an NRC- to the movement control center or other regulate the carrier. approved monitoring plan to ensure that means of communication. This provides Comment D39: One commenter no unauthorized access to the shipment licensees with flexibility to design suggested using a table to denote takes place while the shipment is in a continuous and active monitoring applicability for the different types of railroad classification yard. The NRC systems that meet their unique shipments in § 37.73 as the paragraph specifically sought comment on the circumstances. A licensee may use a format was confusing. feasibility of this requirement. carrier or third-party communications Response: The NRC has added a table Commenters were requested to provide center in lieu of establishing one itself. to denote applicability for different information on: (1) Whether Comment D36: One commenter asked types of shipments to the surveillance of the shipment could be if FedEx’s tracking system is considered implementation guidance. accomplished while in the classification to be proven and reliable as they are the Comment D40: One commenter yard; (2) whether the classification yard primary carrier of radioactive material. indicated that synchronization of the would allow an individual to Response: The NRC does not NRC and DOT requirements should be accompany a shipment while the prescribe a particular system for addressed. The commenter noted that shipment is held in the classification tracking shipments. The NRC the rulemaking does not discuss the yard; and (3) what precautions might be regulations describe the performance connection between the NRC and DOT necessary from a personal safety characteristics for a method used for requirements on security and physical standpoint. Five commenters provided category 2 shipments and does not protection. The commenter noted that

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the rulemaking appears to regulate fees for transportation of HRCQ the NRC to work with other Federal carriers even if only for security shipments of radioactive material and agencies to harmonize the regulations so purposes. The commenter felt that this that this results in longer transportation that licensees and their regulators at the situation could violate the separation of times and greater risk for shipment Federal and State level follow consistent responsibilities that the two incidents because of the additional rules for all shipments. The commenter organizations have and will, at a transit time and miles traveled. The suggested general licensing of carriers as minimum, create confusion among commenter noted that because one way to resolve this issue. One carriers. One commenter felt that the shipments of radioactive material are commenter asked why transuranic rule should more closely align with the being routed around the fee States, they shipments were not addressed in 10 DOT requirements for HRCQ shipments are now traveling through areas where CFR part 37 and whether these for routes used. One commenter asked there is little training and coordination shipments fell under other security if there has been coordination between of response to radioactive material program requirements. Another DOT and NRC regarding security during incidents increasing the risk and commenter asked what security transport, particularly in light of vulnerability. The commenter suggested requirements covered transshipments HM232F. that language be added to require the and noted that it does not make sense Response: The NRC shares shortest, most direct, approved route for to impose additional security on responsibility for the safe and secure all HRCQ shipments and to prohibit licensees, if transshipments are not transport of radioactive material with avoidance of States with transportation covered. Another commenter DOT and DHS. The NRC has a fees. The commenter further suggested recommended consistent regulations for Memorandum of Understanding (MOU) that licensees and shippers of HRCQ transshipments, air shipments, and with DOT for safety and is currently in materials be required to meet and water shipments regardless of the the process of developing an MOU with preplan shipment routes with States on Federal authority and that the standards DOE, DHS, and DOT on transportation an annual basis to ensure the States are for transshipments must be consistent security to ensure that the agencies ready to respond to incidents as needed. with domestic shipments. The work together. The Commission believes Response: Routing of HRCQ material commenter urged the NRC to provide that it is necessary and appropriate to lies within the jurisdiction of DOT’s leadership in promoting consistency, require licensees to implement the regulations and is beyond the scope of perhaps via interagency agreement. The proposed requirements, believes that the this rulemaking. For category 1 commenter also recommended that the issuance of security requirements for the shipments, the licensee is required to license verification system (licensees transport of the material is not a preplan and coordinate with the States and shipments by and among licensees) significant regulatory impediment, and along the shipment route. incorporate all RAMQC shipments, believes that licensees and carriers can Comment D44: One commenter regardless of the Federal authority questioned why spent fuel was not successfully implement the under which they are made and that the addressed in the rule. requirements of both Title 49 and Title relevant information in the License Response: The rule does address 10. Verification System be appropriately Comment D41: One commenter noted transportation security of small shared with the State and local that the NRC’s intent for shipments of quantities (less than 100 grams) of authorities involved in enforcement. category 2 quantities of radioactive irradiated fuel. Transportation security Response: The NRC does not have any material is not clear for licensees that of spent fuel is being addressed in a authority over transshipments and does are consignee, shipper, and consignor, separate rulemaking. The proposed rule not regulate common carriers. However, as is the case for the movement of most was published for public comment on the NRC has provided copies of industrial radiography sources used in October 13, 2010; 75 FR 62695. Most of transportation security orders to the field. The commenter noted that this the licensees impacted by 10 CFR part companies that transship category 1 common situation should be addressed 37 do not possess spent fuel and large quantities of radioactive materials. for clarity either by inclusion or quantities of special nuclear material. These companies have agreed to exclusion in the rule. Security of special nuclear material and Response: The situation where a spent fuel security is addressed in 10 voluntarily implement the security licensee is transporting its own material CFR part 73 and in orders that were requirements for transshipments. DHS is covered by § 37.79(a)(2). issued to specific licensees possessing has the overall lead for harmonizing Comment D42: One commenter stated the material. Security for independent transshipment security, and the NRC that the requirements placed on spent fuel storage installations will be has and will continue to work with licensees to coordinate with and to addressed in a future rulemaking. other Federal agencies on the security notify the LLEA for transport of category Comment D45: One commenter noted requirements for transshipments. The I and category 2 quantities cannot be that the link for Agreement State License Verification System will be achieved by the licensee alone, and thus contacts did not appear to work. available to Agreement State personnel. seem unreasonable. Response: The NRC has tested the Comment D47: One commenter Response: The NRC disagrees with the link for Agreement State contacts recommended that NRC work with the comment. The rule does not contain any provided in the response to Q4 and it States and law enforcement groups to provisions to coordinate with the LLEA does take you to the Web page on the determine effective ways to support for transport of material. Licensees are Agreement States. From that location, transport of category 1 and category 2 required to notify the LLEA if a you can access the State transportation quantities of radioactive material. shipment of category 1 materials is lost contacts. Part 37 contacts will not be Response: The NRC did coordinate or missing. The NRC continues to added until just before the rule is with the States. The Agreement States believe that this is an appropriate implemented. were involved in both the development notification and sees nothing Comment D46: One commenter stated of the orders and development of 10 unreasonable in the requirement. that it is imperative that the CFR part 37. Law enforcement is not Comment D43: One commenter (a requirements for the transshipment of involved in the routine transport of State) noted that a number of shippers radioactive material be identical to category 1 and category 2 quantities of are routing around States that charge those for domestic shipments, and urged radioactive material. If a shipment is

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lost or stolen, law enforcement would licensee can issue permits within its enforcement’’ activities. The NRC be contacted to assist. organization for the use of material, the assumes that the commenters are permittees must still meet the referring to the regulatory agency E. Miscellaneous requirements of the license and the approval of the reviewing official. The Comment E1: One commenter wanted regulations. The NRC is not aware of NRC does not believe that this is a law a clear, concise statement that the any implementation or inspection issues enforcement function, but in any case, requirements in 10 CFR part 37 that have resulted from a licensee being regulatory agency approval of the supersede the Increased Control Orders. a master material licensee or a Federal reviewing official has been removed and The commenter suggested adding a agency. is not in the final rule. As for the NRC second paragraph to § 37.1. Comment E4: Some States expressed paying the direct costs of increased Response: The NRC disagrees with the concern that the proposed rule would staffing levels, the NRC is not comment. A provision in the rule is not result in a potential increase in authorized to pay the salary costs for necessary to note that the rule workload for the Agreement State Agreement State staff. The NRC can and supersedes the orders. The orders will programs and that many States, will continue to pay for the necessary be formally rescinded (withdrawn) on particularly smaller States, may have training for Agreement State staff. the effective date of the final rule in trouble accommodating the additional Comment E5: One commenter agreed each jurisdiction (Agreement State or workload. Some of the Agreement States with the proposed provisions to remove NRC). also noted that the radiation control the concept of sensitive information as Comment E2: One commenter noted programs within the States do not have used in the orders and address that the rule does not contain any the necessary expertise to handle what information security in relevant sections punitive provisions regarding situations are essentially ‘‘law enforcement’’ of the proposed rule. One commenter where employees or outside persons activities, nor will they likely be able to noted that placing all of the security compromise safety and/or security. The hire additional staff to undertake these requirements in one chapter commenter noted that there are no responsibilities. They also noted that significantly enhanced their clarity. One provisions that can be cited in the event many of the proposed changes would commenter supported the NRC decision that a licensee or an unlicensed person impose duties that are beyond to forgo conventional significant figure attempts to or gains unauthorized traditional radiation control agency conventions and list the actual curie access, breaches security systems, or functions, and it is likely that they activity equivalents to three figures as otherwise compromises the security of would need to seek amendments to many licensees use curies in their radioactive material. enabling legislation to undertake the activities instead of Becquerels. One Response: The NRC does not agree activities. One commenter stated that commenter supported the general with the commenter’s statement. The since the regulatory activities formerly objective of the rulemaking. Two proposed rule does contain punitive carried out under the NRC’s Common commenters supported the approach to provisions for situations where Defense and Security authority are being terminate the orders coincident with the employees or outside persons shifted to the Agreement States because effective date of the rule in each compromise safety and/or security. the rule is being issued under the NRC’s jurisdiction to avoid potential confusion Specifically, § 37.109 provides for Health and Safety authority, the NRC and noncompliance. One commenter criminal penalties. Section 37.109 of should provide the funds necessary to expressed general support for the subpart G states that section 223 of the pay the direct costs incurred by the overall rulemaking and suggested AEA provides criminal sanctions for Agreement State governments in enhancements in the transportation violations of any regulation issued implementing the regulation. One security area. Several commenters under 161b., 161i., or 161o., of the AEA. commenter (a State) indicated that NRC supported placing the security As stated in § 37.109, all relevant must determine if funding will be requirements in a rule instead of in portions of this final rule have been provided to the States to increase orders as it allows for public input and issued pursuant to one or more of staffing levels to implement the rule or shows the American population steps sections 161b., 161i., or 161o. of the if other health and safety programs that are being taken to ensure their AEA. Further, there are other applicable should be cut. security. statutory provisions that provide Response: The NRC acknowledges Response: No response necessary. punitive sanctions for trespass and that the rule will result in a potential Suggested enhancements were sabotage of nuclear facilities or fuel that increase in workload for the Agreement considered as separate comments. could be imposed on employees or State programs. However, this is not Comment E6: One commenter outside persons who compromise safety unique to 10 CFR part 37. Any time the suggested that the NRC develop and/or security. NRC issues a rule that is a matter of programs and information packets to all Comment E3: One commenter noted compatibility for the Agreement States, involved (regulatory personnel, that the proposed rule fails to provide there will be an increased workload for shipping agencies, law enforcement descriptions in most sections to outline the States. The State must expend some agencies, Governors) so that everyone how the regulations are applicable to a effort to adopt the regulations and to can be on the same page. master materials licensee or a Federal include the provisions in its inspection Response: The NRC does have agency. The commenter felt that this programs. These costs are addressed in information on its Web site. Information lack of descriptions follows the pattern the regulatory analysis. The Agreement on radioactive material security can be of the previously issued increased States will now need to conduct the found at http://www.nrc.gov/security/ controls and will likely result in security inspections for those facilities byproduct.html and information on confusion during NRC compliance in their State that were issued orders radioactive material transportation at inspections at master materials licensee under common defense and security http://www.nrc.gov/materials/ facilities. and budget for those inspections instead transportation.html. These sites provide Response: A master material licensee of being reimbursed by the NRC for links to a variety of source documents and a Federal agency are still a licensee conducting the inspections. The NRC and specific NRC security enhancement and are treated the same as any other disagrees that the rule contains activities, including those on a Web licensee. While a master material provisions that are essentially ‘‘law page on current NRC radioactive

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material security orders and Comment E11: One commenter noted those having access to safeguarded or requirements (http://www.nrc.gov/ that while the rule will help protect the sensitive information also need to be security/byproduct/orders.html) and a United States from terrorists, we should included in the majority of the sections Web page on material transportation be thinking of the environmental in the rule, and the NRC should regulations, guidance, and consequences. consider the inclusion of 10 CFR part 73 communications (http://www.nrc.gov/ Response: The NRC prepared an among the list of provisions of parts materials/transportation/regs-guides- environmental assessment to support affecting licensees in § 37.1. comm.html). The NRC also routinely the rulemaking. Response: The NRC disagrees with the participates in interagency efforts, such Comment E12: One commenter comment. Part 73 contains the physical as the Task Force on Radiation Source suggested that the concept of what protection requirements for special Protection and Security, where subjects category 1 and category 2 quantities are nuclear material as well as requirements of common interest are discussed. should be introduced earlier in the for protection of SGI. Reference to the Comment E7: One commenter (a State summary and background sections to SGI provisions in 10 CFR part 73 were agency that possesses radioactive ensure that the distinction between added to parts 30, 35, etc., as part of the material subject to the rule) stated that radioactive materials and category 1 and SGI rule that was published in the the State would not provide the 2 quantities of radioactive material is Federal Register on October 24, 2008; additional funding necessary to clear and that each term is used 73 FR 63546. References to 10 CFR part implement the requirements in 10 CFR appropriately. 73 are included at appropriate locations part 37. Response: The NRC disagrees with the in 10 CFR part 37. Section 37.1 contains comment. The summary notes that the Response: Licensees are responsible the purpose of 10 CFR part 37 and does rule establishes security requirements for implementing and complying with not include a reference to any affected for category 1 and category 2 quantities relevant regulations. A licensee may provisions of other NRC rules. of radioactive material and that the always request an exemption from Comment E15: One commenter stated category 1 and category 2 thresholds are specific aspects of the requirements for that the rule (and orders) moves the based on the IAEA Code of Conduct. its regulator to consider. The NRC believes that the Statements of emphasis for security away from Comment E8: One commenter stated Consideration adequately describe the engineered controls toward that the phrase ‘Background Check’ was material and are clear on what administrative controls and that this used inconsistently and seemed to mean radioactive material is covered by the goes against decades of NRC safety different things in different places. The rule. policy and generally-accepted safety commenter recommended reviewing the Comment E13: One commenter noted philosophy. rule text for consistent use of all that since few changes were made by Response: The NRC disagrees with the terminology. NRC as a result of Agreement States comment. Part 37 contains a mix of Response: The term ‘‘background comments on the predecisional draft of engineered controls and administrative check’’ is only used in the rule in the the proposed regulations, the NRC controls. context of the Bureau of Alcohol, should make available to the Director of Comment E16: One Agreement State Tobacco, Firearms, and Explosives the Office of Management and Budget expressed disappointment in what was background checks. The term is used (OMB) any written communications viewed to be the overly prescriptive consistently in the rule. The NRC tries submitted to the agency by State content of the proposed rule and the to be consistent within the document, officials, including State comments on resurgence of issues that were and any inconsistencies identified have the pre-decisional draft of 10 CFR part previously discussed and agreed upon been corrected. 37. as resolved in the orders. One Comment E9: Three commenters Response: The NRC made a number of Agreement State indicated that the addressed plain language in the rule. changes in response to Agreement State operational and practical understanding One commenter suggested using ‘‘you’’ comments on the predecisional draft of of the orders, together with the instead of ‘‘licensee,’’ pointed out some the proposed rule. The NRC did not knowledge of the effectiveness of the long sentences, and noted some use of make changes to the major issues on the orders that the collective Agreement passive instead of active voice. One reviewing official, background States have gained during this time, commenter suggested rewriting the rule investigation, and temporary jobsites, should be taken into consideration by to address these concerns. Another but specifically invited comment on the NRC. Other Agreement States noted commenter noted that a single standard, these issues in the proposed rule. Major disappointment and concern that many clearly spelled out in living room differences with the States were concepts that were discussed at length language, would better meet the need of identified to the Commission as is during the development of the orders all licensees. One commenter noted that common practice. The NRC does not and rejected by the orders working the rule did not meet the goal or the provide any comments to OMB, other groups/steering committees now appear intent of the President’s directive. than comments on the information in this proposed rule. They further Response: The NRC has considered collection associated with the rule. noted that they disagree with the new the editorial changes and made changes Comment E14: One commenter stated provisions and do not believe that the as appropriate. that the title of the rule should also added benefit warrants the significant Comment E10: One commenter noted include a reference to the protection of resource burden that would be incurred. that 10 CFR part 37 does nothing to information (SGI–M and SUNSI). The One Agreement State felt that the rule improve the security of radioactive commenter also stated that references to contained too many prescriptive items materials that could be introduced into the protection of information need to be and was not adequately performance the United States from foreign origins. made more consistent throughout the based. One commenter noted that the Response: The NRC’s regulations only rule as most sections and subsections knowledge and understanding that the apply once the radioactive material is in only require implementation if Agreement States have obtained during the U.S. The NRC does not have individuals have access to category 1 implementation of the orders should be authority over material in foreign and category 2 quantities of radioactive helpful to the NRC in improving the countries. material. The commenter stated that rulemaking.

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Response: The rulemaking process is the myriad of issues that the inspection. The commenter noted that a more deliberative process than what is Congressionally mandated Radiation the agency should ensure used to develop an order. The 10 CFR Source Protection and Security Task implementation before issuing a license. part 37 working group also had Force is addressing as all stakeholders Response: The NRC agrees that additional information to consider that continue to work collectively toward licensees should have the majority of included information from lessons mutual safety and security objectives. the provisions in place before the learned, implementation issues, Response: Continued stakeholder license is issued; some measures could inspection issues, recommendations involvement in the security area is not be implemented until material is from other reviews, as well as the beyond the scope of this rulemaking. actually at the facility. The NRC comments on the preliminary rule Comment E20: Two commenters conducts prelicensing inspections language. In some cases the 10 CFR part noted that the NRC does not routinely before granting a license to anyone that 37 working group and steering share the technical basis for would be authorized to possess category committee came to a different resolution rulemakings with stakeholders and 1 or category 2 quantities of radioactive than that for the orders. Agreement State recommended that this become routine material. experience was utilized. There were practice. The commenters noted that Comment E23: One commenter noted Agreement State representatives on the providing the technical basis may have that certain materials licensees would 10 CFR part 37 working group and on proven helpful for this rule. remain subject to the SGI requirements. the steering committee that brought Response: Stakeholder involvement in The commenter recommended that their experience to the discussions. In regulatory basis development is beyond conforming changes to 10 CFR part 73 the scope of this rulemaking. The some areas where agreement could not be included as part of the regulation decision to solicit stakeholder input be reached, the NRC sought public development under 10 CFR part 37, to during the development of the comment on the issue to better inform ensure efficiency, clarity, and help regulatory (technical) basis for a the final decision. ensure compliance. The commenter potential rule is decided on a case-by- Comment E17: One commenter noted that SECY–09–0181 was silent on case basis. The NRC does obtain suggested that the NRC reconsider its the timing of the future rulemaking to stakeholder input more routinely than it decision to use the same software revise 10 CFR part 73 to remove the SGI did a few years ago. The NRC did obtain developers for the verification system as handling requirements for licensees stakeholder input during the were used for the National Source subject to 10 CFR part 37. Tracking System based on the multiple development of the technical basis for the transportation security portion of Response: The changes to 10 CFR part continuing problems with the system. 73 to revise the SGI requirements are Response: The comment is beyond the this rulemaking. beyond the scope of this rulemaking. scope of the rulemaking. Comment E21: One commenter stated Comment E18: Two commenters that the NRC should conduct The timing of any potential changes to suggested that NRC conduct one or more inspections to ensure that licensees are 10 CFR part 73 is unknown at this time. additional public workshops prior to following the requirements and that the Comment E24: One commenter noted submitting the draft final rule and focus on compliance verified by that the rule could result in institutions implementation guidance to the inspection should receive greater choosing to store materials, including Commission for approval. The emphasis instead of imposing additional waste, in separate locations. The commenters noted that the NRC could administrative burdens based on commenter noted that this could cause explain at the meeting how it addressed authorized use. Another commenter logistical problems to keep track of the and resolved the more significant or noted that the NRC must ensure material and could inadvertently controversial topics addressed by the compliance through periodic increase the risk to the security of these public comments. The commenters inspections as is currently done. Several materials. noted that the September 2008 commenters recommended that the NRC Response: A licensee may choose to workshop that NRC conducted on the perform compliance audit based reviews store radioactive materials, in any form, Security and Continued Use of Cesium- similar to what was done after the in separate locations to avoid being 137 Chloride sources could serve as an orders were implemented. The subject to the proposed security excellent model for such workshops. commenter noted that the reviews were requirements. Such action would not One commenter suggested holding done with a level of discretion and conflict with the intent of the proposed public meetings to discuss the without citation as long as the licensee rule, which is to limit access to an regulatory analysis document and made significant efforts to address the aggregated category 2 quantity of receive insights and perspectives on its orders. One commenter requested that radioactive material listed in Table 1. content. the inspection frequency be modified to Aggregated, for purposes of this rule, Response: The NRC does not plan to more closely coincide with the risk. means accessible by breach of a single hold any public meetings or workshops Response: The NRC will conduct physical barrier. on the 10 CFR part 37 final rule. The inspections to ensure that licensees are Comment E25: One commenter made public was provided opportunity to complying with 10 CFR part 37 several comments related to a change in provide input on the rule and regulatory requirements. The inspections will be the annual occupational radiation dose analysis during the public comment conducted as part of the normal to a lower range and how it would period. The NRC considered the inspection program. The comment on impact the licensee. comments received and made changes inspection frequency is beyond the Response: These comments are to the rule and supporting documents as scope of the rulemaking as the beyond the scope of the rulemaking as appropriate. inspection frequency is not set by the the proposed rule did not include any Comment E19: Two commenters rule. changes to the annual occupational stated that continued stakeholder input Comment E22: One commenter noted radiation dose. These comments and involvement in the security area are that a new licensee must have the appeared to be filed under the wrong essential and requested that the NRC physical protection measures in place docket and were provided to the NRC allow substantive opportunities to prior to a license being issued and that working group that is looking at engage industry over the next 4 years on this would be part of any prelicensing possible changes to 10 CFR part 20.

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IV. Discussion of Final Amendments by of this chapter: Act, Agreement State, Section 37.21 Personnel Access Section Becquerel, Byproduct material, Carrier, Authorization Requirements for Commission, Curie, Government Category 1 or Category 2 Quantities of Section 20.2201(c) Reports of Theft or agency, License, Lost or missing Radioactive Material Loss of Licensed Material material, Person, State, and United Paragraph (a) of this section This section is revised to include a States. In addition, definitions for the establishes which licensees need to reference to the reporting requirements following terms are included in this comply with the requirements of in 10 CFR part 37 so that a licensee is Part: Approved individuals, Access subpart B of 10 CFR part 37. not required to file duplicate reports for control, Aggregated, Background Paragraph (b) establishes the general the same event. investigation, Category 1 quantity of performance objective to ensure that the Section 30.6 Communications radioactive material, Category 2 quantity individuals subject to the access of radioactive material, Diversion, authorization program are trustworthy This section is revised to include a Escorted access, Fingerprint Orders, and reliable. reference to the new 10 CFR part 37. License issuing authority, Local law Paragraph (c)(1) establishes the Section 30.13 Carriers enforcement agency, Mobile device, individuals that are subject to the access Movement control center, No-later-than authorization program. Paragraph (c)(2) This section is revised to include 10 arrival time, Reviewing official, allows licensees to not subject those CFR part 37 in the list of regulations Sabotage, Security zone, Telemetric individuals listed in § 37.29(a) to the that exempt common carriers. position monitoring system, investigation elements of the access Section 30.33 General Requirements Trustworthiness and reliability, and authorization program. Paragraph (c)(3) for Issuance of Specific Licenses Unescorted access. requires that licensees only approve those individuals whose job duties Paragraph (a)(4) is revised to include Section 37.7 Communications a reference to the new 10 CFR part 37. permit unescorted access to category 1 This section specifies where all or category 2 quantities of radioactive Section 32.1 Purpose and Scope communications and reports concerning material. 10 CFR part 37 is added to the list of 10 CFR part 37 are to be sent. Section 37.23 Access Authorization 10 CFR parts that apply to applications Section 37.9 Interpretations Program Requirements and licenses subject to this part. This section establishes that no This section establishes the general Section 33.1 Purpose and Scope interpretations of the meaning of the requirements for the access 10 CFR part 37 is added to the list of regulations in 10 CFR part 37 by any authorization program, such as the use 10 CFR parts that apply to applications officer or employee of the Commission of reviewing officials, informed consent, and licenses subject to this part. other than a written interpretation by personal history disclosure, the General Counsel will be recognized determination basis, procedures, the Section 34.1 Purpose and Scope as binding upon the Commission, unless right to correct and complete 10 CFR part 37 is added to the list of specifically authorized by the information, and record retention. 10 CFR parts that apply to applications Commission in writing. Section 37.25 Background and licensees subject to this part. Section 37.11 Specific Exemptions Investigations Section 35.1 Purpose and Scope This section establishes the elements This section establishes that the 10 CFR part 37 is added to the list of of the background investigation that are Commission may grant exemptions from necessary before granting an individual 10 CFR parts that apply to applications the requirements of the regulations in 10 and licenses subject to this part. unescorted access to category 1 or CFR part 37 that it determines are category 2 quantities of radioactive Section 36.1 Purpose and Scope authorized by law and that will not material. The scope of the initial endanger life or property or the common 10 CFR part 37 is added to the list of investigation is the past 7 years. This defense and security, and are otherwise 10 CFR parts that apply to applications section also addresses reinvestigation in the public interest. Paragraph (b) and licenses subject to this part. and grandfathering of individuals. exempts an NRC licensee’s activities Section 37.1 Purpose from 10 CFR part 37 to the extent that Section 37.27 Requirements for Criminal History Records Checks of This section establishes the purpose the activities are covered under the Individuals Granted Unescorted Access for the new 10 CFR part 37. physical protection requirements of 10 CFR part 73. Paragraph (c) provides to Category 1 or Category 2 Quantities Section 37.3 Scope security measures for certain radioactive of Radioactive Material This section establishes the scope of waste that contains category 1 or Paragraph (a) establishes the general the proposed new 10 CFR part 37. These category 2 quantities of radioactive requirements for criminal history regulations apply to any person licensed waste. records checks of individuals to be by the NRC, who possesses, uses, or Section 37.13 Information Collection granted unescorted access to category 1 transports an aggregated category 1 or Requirements: OMB Approval or category 2 quantities of radioactive category 2 quantity of radioactive material. material. Paragraph (a) establishes the Paragraph (a) specifies that the NRC Paragraph (b) prohibits a licensee applicability for subpart B and C. may not conduct or sponsor, and a from basing a final determination to Paragraph (b) establishes the person is not required to respond to, a deny an individual unescorted access applicability for subpart D. collection of information unless it authorization solely on the basis of displays a currently valid OMB control certain information received from the Section 37.5 Definitions number. Paragraph (b) lists those FBI. Definitions of the following terms that sections in 10 CFR part 37 that have Paragraph (c) establishes the are included in this part are identical to approved information collection procedure for submitting fingerprint the definition of the term in other parts requirements. records to the NRC.

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Section 37.29 Relief From implement the security program Paragraph (b) requires the Fingerprinting, Identification, and requirements. Paragraph (a)(2) requires establishment of temporary security Criminal History Records Checks and the security plan to be reviewed and zones, as necessary, to meet transitory Other Elements of Background approved by the individual with overall or intermittent business activities. Investigations for Designated Categories responsibility for the security program. Paragraph (c) requires that security of Individuals Permitted Unescorted Paragraph (a)(3) allows a licensee to zones use physical barriers or direct Access to Certain Radioactive Materials revise its security plan to ensure control of the security zone to allow This section provides relief from the effective implementation of the plan. unescorted access only to approved fingerprinting and criminal history Paragraph (a)(4) requires the licensee to individuals. records check requirements and the retain a copy of the current security Paragraph (d) requires licensees to background investigation requirements plan until the license is terminated and provide an approved individual to of this subpart for certain categories of any security plan revisions for 3 years. maintain constant surveillance of individuals. Paragraph (b)(1) requires licensees to sources in temporary security zones or develop and maintain written in a security zone in which a physical Section 37.31 Protection of procedures for implementation of the barrier or intrusion detection system has Information security plan. Paragraph (b)(2) requires been disabled to allow maintenance, This section outlines the requirements the procedures to be approved by the source receipt, preparation for for the protection and release to individual with overall responsibility shipment, source installation, or authorized personnel of personal for the security program. Paragraph removal or exchange of category 1 information collected by a licensee (b)(3) requires the licensee to retain a quantities of radioactive material. during a background investigation. copy of the procedures for 3 years after Paragraph (e) requires individuals not the procedure is no longer needed or approved for unescorted access to be Section 37.33 Access Authorization escorted by an approved individual Program Review upon termination of the license and any revisions for 3 years. when in a security zone. This section outlines the requirements Paragraph (c) requires licensees to Section 37.49 Monitoring, Detection, for an annual access authorization conduct training and annual refresher and Assessment program review to confirm compliance training on the security plan. Licensees Paragraph (a) requires the licensee to with the requirements of subpart B of 10 are required to maintain training records establish and maintain the capability to CFR part 37 and for comprehensive for 3 years from the date of the training. corrective actions to be taken in continuously monitor and detect Paragraph (d) requires licensees to without delay all unauthorized entries response to any nonconformance protect the security plan, implementing identified by the review. into the security zones. procedures, and the list of individuals Paragraph (b) requires the licensee to Section 37.41 Security Program that have been approved for unescorted assess without delay each actual or Paragraph (a) establishes the access from unauthorized disclosure. attempted unauthorized entry into the applicability of the security program. Licensees are required to develop, security zone. Paragraph (a)(1) requires licensees that maintain and implement written Paragraph (c)(1) requires the licensee possess an aggregated quantity of policies and procedures for controlling to maintain continuous capability for category 1 or category 2 quantities of access to, and for proper handling and personnel communication and radioactive material to establish, protection against unauthorized electronic data transmission and implement, and maintain a security disclosure of, the security plan and processing among site security systems. program. Paragraph (a)(2) requires those implementing procedures. Only Paragraph (c)(2) requires the licensee licensees that are newly subject to individuals with a need-to-know and to provide alternative capabilities for subpart C, upon application for that have been determined to be personnel communication and data modification of its license or an trustworthy and reliable should have transmission and processing. applicant submitting a new application, access to the protected information. The Paragraph (d) requires the licensee to to implement the requirements before information protection procedures are respond without delay to any actual or taking possession of an aggregated retained for 3 years after the document attempted unauthorized access to the category 1 or category 2 quantity of is no longer needed. security zone. radioactive material. Paragraph (a)(3) Section 37.45 LLEA Coordination Section 37.51 Maintenance and requires any licensee that has not Testing previously implemented either the Paragraph (a) requires that a licensee orders or subpart C to notify the NRC at attempt to coordinate with an LLEA and This section requires licensees to least 90 days before aggregating specifies the types of information to be implement a maintenance and testing radioactive material to a quantity that shared with the LLEA. program to ensure that intrusion alarms, equals or exceeds the category 2 Paragraph (b) requires the licensee to associated communication systems, and threshold. notify the NRC if the LLEA isn’t willing other physical components of the Paragraph (b) establishes the general to participate in coordination activities systems used to secure or detect performance objective of the security or does not respond to the coordination unauthorized access to radioactive program. request. material are maintained in operable Paragraph (c) establishes the program Paragraph (c) requires the licensee to condition, are capable of performing features that must be addressed in the maintain records of its coordination their intended function when needed, security program. activities with any LLEA. and are inspected and tested for operability and performance. The Section 37.43 General Security Section 37.47 Security Zones testing and maintenance are to be Program Requirements Paragraph (a) requires licensees to conducted at the frequency Paragraph (a)(1) requires licensees to establish security zones for the use of recommended by the manufacturer or develop a written security plan that category 1 or category 2 quantities of annually if there is no manufacturer’s addresses how the licensee will radioactive material. recommended frequency. Licensees are

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required to maintain the maintenance Section 37.73 Applicability of Physical conduct an investigation once it is and testing records for 3 years. Protection of Category 1 and Category 2 determined that a category 1 shipment Quantities of Radioactive Material is lost or missing. Section 37.53 Requirements for Mobile During Transit Devices Section 37.81 Reporting of Events This section establishes which This section requires licensees that requirements apply to licensees This section establishes requirements possess mobile devices containing shipping category 1 or category 2 for the shipping licensee to make category 1 or category 2 quantities of quantities of radioactive material and notifications upon the discovery that a radioactive materials to have two what requirements apply during the shipment is lost or missing and upon independent physical controls to secure domestic portion of a shipment that is discovery of any actual or attempted the radioactive material from imported from another country or theft or diversion of a shipment, or unauthorized removal and to use a exported to another country. This suspicious activities related to the theft method to disable the vehicle or trailer section also allows the receiving or diversion of a shipment of either a when the device is on a vehicle or licensee to arrange for the in-transit category 1 or category 2 quantity of trailer, unless the site prohibits the use physical protection of a shipment radioactive material. This section also of a disabling mechanism due to health instead of the shipping licensee as long establishes requirements for notification and safety concerns. as the agreement is in writing. upon recovery of a lost or missing shipment. Written follow-up reports are Section 37.55 Security Program Section 37.75 Preplanning and required for notifications of actual theft Review Coordination of Shipment of Category 1 or Category 2 Quantities of Radioactive or attempted theft or diversion of a This section requires licensees to Material shipment. conduct an annual review of the This section establishes the Section 37.101 Form of Records security program. The licensee is preplanning and coordination necessary required to document the results of the for a shipment of category 1 or category This section establishes the review and any findings and keep the 2 quantities of radioactive material. requirements for the storage and records for 3 years. protection of records required by this Section 37.77 Advance Notification of part. Section 37.57 Reporting of Events Shipment of Category 1 Quantities of Section 37.103 Record Retention Paragraph (a) requires licensees to Radioactive Material immediately notify the LLEA of any This section establishes the This section establishes the actual or attempted theft, sabotage, or requirements for advance notification to Commission’s termination of the license diversion of category 1 or category 2 the NRC and the governor of a State, or as the end point of the retention period quantities of radioactive material and to the governor’s designee, of the shipment for any record where a specific retention then notify the NRC. of category 1 quantities of radioactive period is not specified. material that will pass through or across Paragraph (b) requires licensees to Section 37.105 Inspections assess any suspicious activity related to the State. the theft, sabotage, or diversion of Section 37.79 Requirements for Paragraph (a) requires licensees to category 1 or category 2 quantities of Physical Protection of Category 1 and allow the Commission the opportunity radioactive material and to notify the Category 2 Quantities of Radioactive to inspect the materials and facilities LLEA as appropriate and then notify the Material During Shipment subject to 10 CFR part 37. NRC. This section establishes the physical Paragraph (b) requires the licensee to Paragraph (c) requires licensees to protection requirements for shipments make available for inspection any submit a written report to the NRC of category 1 and category 2 quantities records subject to 10 CFR part 37. within 30 days of any report of actual of radioactive material. Paragraph (a)(1) Section 37.107 Violations or attempted theft, sabotage, or establishes the requirements for diversion of radioactive material. shipping a category 1 quantity of Paragraph (a) of this section radioactive material by road. Paragraph Section 37.71 Additional establishes that the Commission may (a)(2) establishes the requirements for a Requirements for Transfer of Category 1 obtain an injunction or other court order licensee that transports category 2 and Category 2 Quantities of to prevent a violation of the AEA, Title quantities of radioactive material by Radioactive Material II of the Energy Reorganization Act of road. Paragraph (a)(3) establishes the 1974, as amended; or a regulation or Paragraphs (a) and (b) establish new requirements for a licensee that uses a order issued under those Acts. carrier for shipping category 2 quantities requirements for licensees transferring Paragraph (b) of this section category 1 and category 2 quantities of of radioactive material. Paragraph (b)(1) establishes the establishes the violations for which the radioactive material. The licensee is Commission may obtain a court order required to verify the validity of the requirements for shipping category 1 quantities of radioactive material by rail. for the payment of a civil penalty license by using the license verification imposed under Section 234 of the AEA. system or contacting the license issuing Paragraph (b)(2) establishes the security authority. requirements for shipping category 2 Section 37.109 Criminal Penalties quantities of radioactive material by rail. Paragraph (c) provides an emergency Paragraph (c) requires the shipping This section establishes the sections method for when the licensee can’t licensee to immediately conduct an in 10 CFR part 37 that are issued under reach the license issuing authority and investigation of any shipment of one or more of Sections 161b, 161i, or the license verification system is category 2 quantities of radioactive 161o and are therefore subject to nonfunctional. material that is lost or unaccounted for criminal sanctions for willful violation Paragraph (d) requires documentation after the designated no-later-than arrival of, attempted violation of, or conspiracy to be maintained for 3 years. time. It also requires the licensee to to violate the regulation.

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Appendix A to 10 CFR Part 37— category 1 quantities of radioactive have direct and significant effects in Category 1 and Category 2 Radioactive material. multiple jurisdictions. An Agreement Materials State should adopt Category B program V. Criminal Penalties Table 1 of this appendix establishes elements in an essentially identical For the purpose of Section 223 of the the radionuclides and associated manner. Compatibility Category C AEA, the Commission is amending 10 thresholds for category 1 and category 2 elements are those program elements CFR parts 20, 30, 32, 33, 34, 35, 36, 39, quantities of radioactive material. The that do not meet the criteria of Category 51, 71, and 73 and adding new 10 CFR appendix also provides the A or B, but the essential objectives of part 37 under one or more of Sections methodology for calculating the sum of which an Agreement State should adopt 161b, 161i, or 161o of the AEA. Willful fractions for evaluating combinations of to avoid conflict, duplication, gaps, or violations of the rule would be subject multiple radionuclides. other conditions that would jeopardize to criminal enforcement. an orderly pattern in the regulation of Section 39.1 Purpose and Scope VI. Agreement State Compatibility agreement material on a nationwide 10 CFR part 37 is added to the list of basis. An Agreement State should adopt Under the ‘‘Policy Statement on 10 CFR parts that apply to applications the essential objectives of the Category Adequacy and Compatibility of and licenses subject to this part. C program elements. Compatibility Agreement State Programs’’ approved by Category D elements are those program Section 51.22 Criterion for Categorical the Commission on June 30, 1997, and elements that do not meet any of the Exclusion; Identification of Licensing published in the Federal Register (62 criteria of Category A, B, or C, above, and Regulatory Actions Eligible for FR 46517; September 3, 1997), this final and, thus, do not need to be adopted by Categorical Exclusion or Otherwise Not rule is a matter of compatibility between Agreement States for purposes of Requiring Environmental Review the NRC and the Agreement States, compatibility. thereby providing consistency among Paragraph (c)(3) is revised to include Health and Safety (H&S) elements are 10 CFR part 37. the Agreement States and the NRC requirements. The NRC analyzed the program elements that are not required Section 71.97 Advance Notification of final rule in accordance with the for compatibility, but are identified as Shipment of Irradiated Reactor Fuel and procedure established within part III, having a particular health and safety Nuclear Waste ‘‘Categorization Process for NRC role (i.e., adequacy) in the regulation of Paragraph (b) is revised to delete the Program Elements,’’ of Handbook 5.9 to agreement material within the State. reference to shipments of irradiated Management Directive 5.9, ‘‘Adequacy Although not required for compatibility, reactor fuel in quantities less than those and Compatibility of Agreement State the State should adopt program subject to the advance notification Programs’’ (a copy of which may be elements in this H&S Category based on requirements of 10 CFR 73.37(f). Section viewed at http://www.nrc.gov/reading- those of the NRC that embody the 73.35 provides that such irradiated rm/doc-collections/management- essential objectives of the NRC program reactor fuel shipments be subject to the directives/). elements because of particular health same requirements that apply to The NRC program elements and safety considerations. Compatibility shipments of category 1 radioactive (including regulations) are placed into Category NRC elements are those material, including the advance four compatibility categories (see the program elements that address areas of notification requirements. Compatibility Table in this section). In regulation that cannot be relinquished addition, the NRC program elements can to Agreement States under the AEA or Section 73.35 Requirements for also be identified as having particular provisions of 10 CFR. These program Physical Protection of Irradiated Reactor health and safety significance or as elements are not adopted by Agreement Fuel (100 Grams or Less) in Transit being reserved solely to the NRC. States. The following table lists the parts A new section is added to 10 CFR part Compatibility Category A elements are and sections that have been created or 73 to address the physical protection those program elements that are basic revised and their corresponding requirements for shipments of irradiated radiation protection standards and categorization under the ‘‘Policy reactor fuel weighing 100 g (0.22 lb) or scientific terms and definitions that are Statement on Adequacy and less in net weight of irradiated fuel, necessary to understand radiation Compatibility of Agreement State exclusive of cladding or other structural protection concepts. An Agreement Programs.’’ A bracket around a category or packaging material, which has a total State should adopt Category A program means that the section may have been external radiation dose rate in excess of elements in an essentially identical adopted elsewhere, and it is not 1 Gray (100 rad) per hour at a distance manner to provide uniformity in the necessary to adopt it again. of 1 m (3.3 ft) from any accessible regulation of agreement material on a The Agreement States have 3 years surface without intervening shielding. nationwide basis. Compatibility from the publication of the final rule in The material is subject to the same Category B elements are those program the Federal Register to adopt transportation security requirements as elements that apply to activities that compatible regulations.

COMPATIBILITY TABLE FOR FINAL RULE

Compatibility Section Change Subject Existing New

Part 20

20.2201(c) ...... Amend ...... Reports of theft or loss of licensed material ...... D ...... D

Part 30

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

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COMPATIBILITY TABLE FOR FINAL RULE—Continued

Compatibility Section Change Subject Existing New

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

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 Carrier ...... [B] 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 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 ...... 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 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 ...... D 37.11(c) ...... New ...... Specific exemptions ...... B 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)(1), (2), (4), (5) ...... New ...... Reviewing officials ...... B 37.23(b)(3) ...... New ...... Reviewing officials ...... C

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COMPATIBILITY TABLE FOR FINAL RULE—Continued

Compatibility Section Change Subject Existing New

37.23(c) ...... New ...... Informed consent ...... B 37.23(d) ...... New ...... Personal history disclosure ...... B 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(a), (b) ...... New ...... Relief from fingerprinting, identification, and criminal history records ...... B checks and other elements of a background investigations for des- ignated categories of individuals permitted unescorted access to cer- tain radioactive materials. 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 37.43(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)(8) ...... New ...... Protection of Information ...... C 37.43(d)(9) ...... New ...... Protection of Information ...... NRC 37.45(a), (b), (d) ...... New ...... LLEA coordination ...... B 37.45(c) ...... New ...... LLEA coordination (records) ...... C 37.47(a)–(e) ...... 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 and testing ...... 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 ...... New ...... Additional requirements for transfer of category 1 and category 2 quan- ...... B tities of radioactive material. 37.71(a), (b) (c) ...... New ...... Additional requirements for transfer of category 1 and category 2 quan- ...... B tities of radioactive material. 37.71(d) ...... New ...... Additional requirements for transfer of category 1 and category 2 quan- ...... C tities of radioactive material. 37.73(a), (b), (d), (e) ...... New ...... Applicability of physical protection of category 1 and category 2 quan- ...... D tities of radioactive material during transit. 37.73(c) ...... New ...... Applicability of physical protection of category 1 and category 2 quan- ...... B tities of radioactive material during transit. 37.75(a)–(d) ...... New ...... Preplanning and coordination of shipment of category 1 or category 2 ...... B quantities of radioactive material. 37.75(e) ...... New ...... Preplanning and coordination of shipment of category 1 or category 2 ...... C quantities of radioactive material. 37.77 ...... New ...... Advance notification for shipments of category 1 quantities of radioactive ...... B material. 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 ...... Investigations ...... B 37.81(a) ...... New ...... Reporting of events ...... B 37.81(b) ...... New ...... Reporting of events ...... B 37.81(c) ...... New ...... Reporting of events ...... B 37.81(d) ...... New ...... Reporting of events ...... B 37.81(e) ...... New ...... Reporting of events ...... B

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COMPATIBILITY TABLE FOR FINAL RULE—Continued

Compatibility Section Change Subject Existing New

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 regu- NRC ..... NRC latory actions eligible for categorical exclusion or otherwise not requir- ing environmental review.

Part 71

71.97(b) ...... Amend ...... Advance notification of shipment of irradiated reactor fuel and nuclear B ...... B waste.

Part 73

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

VII. Plain Writing IX. Finding of No Significant this final rule is procedural and Environmental Impact: Availability administrative in nature. The Plain Writing Act of 2010 (Pub. The determination of this L. 111–274) requires Federal agencies to Under the National Environmental environmental assessment is that there write documents in a clear, concise, and Policy Act of 1969, as amended, and the will be no significant impact to the well-organized manner. The NRC has NRC regulations in subpart A of 10 CFR public from this action. written this document to be consistent part 51, the NRC has determined that This conclusion was published in the with the Plain Writing Act as well as the this final rule, if adopted, would not be environmental assessment that was Presidential Memorandum, ‘‘Plain a major Federal action significantly posted to the NRC’s rulemaking Web Language in Government Writing,’’ affecting the quality of the human site: http://www.regulations.gov after published June 10, 1998 (63 FR 31883). environment, and therefore an publication of the proposed rule. No environmental impact statement is not comments were received on the content VIII. Voluntary Consensus Standards required for this rulemaking. The NRC of the environmental assessment. The National Technology Transfer has prepared an environmental X. Paperwork Reduction Act Statement and Advancement Act of 1995 (Pub. L. assessment and, on the basis of this This final rule contains new 104–113), requires that Federal agencies environmental assessment, has made a finding of no significant impact. information collection requirements in use technical standards that are 10 CFR part 37 that are subject to the developed or adopted by voluntary The implementation of the final rule’s Paperwork Reduction Act of 1995 (44 consensus standards bodies unless the security requirements would not result U.S.C. 3501 et seq.). These requirements use of such a standard is inconsistent in significant changes to the licensee’s were approved by the Office of with applicable law or otherwise facilities, nor would such Management and Budget (OMB), impractical. In this final rule, the NRC implementation result in any significant approval number 3150–0214. The is establishing security requirements for increase in effluents released to the changes to 10 CFR parts 20, 30, 32, 33, the use of category 1 and category 2 environment. Similarly, the 34, 35, 36, 39, 51, 71, and 73 do not quantities of radioactive materials. The implementation of the final rule’s contain new or amended information NRC is not aware of any voluntary security requirements would not affect collection requirements. Existing consensus standards that address the occupational exposure requirements. No requirements were approved by the subject matter of this final rule. This major construction or other earth- OMB, approval numbers 3150–0014, action does not constitute the disturbing activities on the part of 3150–0017, 3150–0001, 3150–0015, establishment of a standard that affected licensees are anticipated in 3150–0007, 3150–0010, 3150–0158, establishes generally applicable connection with licensees’ 3150–0130, 3150–0021, 3150–0008, and requirements. implementation of the final rule’s 3150–0002. requirements. The Commission has The burden to the public for the determined that the implementation of information collections in 10 CFR part

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37 is estimated to average1.7 hours per implement the final rule. The NRC 10 CFR Part 35 response. This includes the time for believes that the selected alternative Byproduct material, Criminal reviewing instructions, searching reflected in the final rule is the least penalties, Drugs, Health facilities, existing data sources, gathering and burdensome, most flexible alternative Health professions, Medical devices, maintaining the data needed, and that accomplishes the NRC’s regulatory Nuclear materials, Occupational safety completing and reviewing the objective. The Regulatory Flexibility and health, Radiation protection, information collection. Send comments Analysis is included as an Appendix to Reporting and recordkeeping on any aspect of these information this final rule. requirements. collections, including suggestions for reducing the burden, to the Information XIII. Backfit Analysis 10 CFR Part 36 Services Branch (T–5 F53), U.S. Nuclear The NRC has determined that the Byproduct material, Criminal Regulatory Commission, Washington, backfit rule, which is found in the penalties, Nuclear materials, Reporting DC 20555–0001, or by Internet regulations at 10 CFR 50.109, 70.76, and recordkeeping requirements, electronic mail to INFOCOLLECTS. 72.62, 76.76, and in 10 CFR part 52, Scientific equipment, Security [email protected]; and to the Desk does not apply to this final rule because measures. Officer, Chad Whiteman, Office of this amendment would not involve any Information and Regulatory Affairs, provisions that would impose backfits 10 CFR Part 37 NEOB–10202, (3150–0214), Office of as defined in 10 CFR chapter I. Byproduct material, Criminal Management and Budget, Washington, Therefore, a backfit analysis is not penalties, Export, Hazardous materials DC 20503. required. transportation, Import, Licensed Public Protection Notification XIV. Congressional Review Act material, Nuclear materials, Reporting The NRC may not conduct or sponsor, and recordkeeping requirements, In accordance with the Congressional and a person is not required to respond Security measures. Review Act of 1996, the NRC has to, a request for information or an determined that this action is a major 10 CFR Part 39 information collection requirement rule and has verified this determination unless the requesting document Byproduct material, Criminal with the Office of Information and displays a currently valid OMB control penalties, Nuclear material, Oil and gas Regulatory Affairs of OMB. number. exploration—well logging, Reporting List of Subjects and recordkeeping requirements, XI. Regulatory Analysis Scientific equipment, Security The Commission has prepared a 10 CFR Part 20 measures, Source material, Special nuclear material. regulatory analysis on this final Byproduct material, Criminal regulation. The analysis examines the penalties, Licensed material, Nuclear 10 CFR Part 51 costs and benefits of the alternatives materials, Nuclear power plants and Administrative practice and considered by the Commission. reactors, Occupational safety and The analysis is available for procedure, Environmental impact health, Packaging and containers, statement, Nuclear materials, Nuclear inspection in the NRC’s Public Radiation protection, Reporting and Document Room, 11555 Rockville Pike, power plants and reactors, Reporting recordkeeping requirements, Source and recordkeeping requirements. Rockville, Maryland 20852. The material, Special nuclear material, analysis may also be viewed and Waste treatment and disposal. 10 CFR Part 71 downloaded electronically via the Federal erulemaking portal at http:// 10 CFR Part 30 Criminal penalties, Hazardous www.regulations.gov by searching for materials transportation, Nuclear Byproduct material, Criminal Docket ID NRC–2008–0120. materials, Packaging and containers, penalties, Government contracts, Reporting and recordkeeping XII. Regulatory Flexibility Certification Intergovernmental relations, Isotopes, requirements. The NRC has prepared a regulatory Nuclear materials, Radiation protection, 10 CFR Part 73 analysis of the impact of this final rule Reporting and recordkeeping on small entities. The final rule will requirements. Criminal penalties, Export, Hazardous affect about 300 NRC licensees and an 10 CFR Part 32 materials transportation, Import, additional 1,100 Agreement State Nuclear materials, Nuclear power plants licensees. Affected licensees include Byproduct material, Criminal and reactors, Reporting and laboratories, reactors, universities, penalties, Labeling, Nuclear materials, recordkeeping requirements, Security colleges, medical clinics, hospitals, Radiation protection, Reporting and measures. recordkeeping requirements. irradiators, manufacturers and For the reasons set out in the distributors, well loggers, and 10 CFR Part 33 preamble and under the authority of the radiographers, some of which may Atomic Energy Act of 1954, as amended; Byproduct material, Criminal qualify as small business entities as the Energy Reorganization Act of 1974, penalties, Nuclear materials, Radiation defined by 10 CFR 2.810. Based on the as amended; and 5 U.S.C. 552 and 553; protection, Reporting and recordkeeping regulatory analysis conducted for this the NRC is adopting the following requirements. action, the costs of the rule for affected amendments to 10 CFR parts 20, 30, 32, licensees are estimated to be between 10 CFR Part 34 33, 34, 35, 36, 37, 39, 51, 71, and 73. $358 million and $488 million (7- percent and 3-percent discount rate over Criminal penalties, Packaging and PART 20—STANDARDS FOR 20 years, respectively) total. The average containers, Radiation protection, PROTECTION AGAINST RADIATION licensee will have a one-time cost of Radiography, Reporting and approximately $23,375 and an annual recordkeeping requirements, Scientific ■ 1. The authority citation for part 20 cost of approximately $21,736 to fully equipment, Security measures. continues to read as follows:

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Authority: Atomic Energy Act secs. 53, 63, regulations in this part and parts 31 § 33.1 Purpose and scope. 65, 81, 103, 104, 161, 182, 186, 223. 234 1701 through 37 and 39 of this chapter and This part prescribes requirements for (42 U.S.C. 2073, 2093, 2095, 2111, 2133, the requirements for a license set forth the issuance of specific licenses of broad 2134, 2201, 2232, 2236, 2273, 2282, 2297f), in section 81 of the Act to the extent that Energy Reorganization Act secs. 201, 202, scope for byproduct material (‘‘broad 206 (42 U.S.C. 5841, 5842, 5846); they transport or store byproduct licenses’’) and certain regulations Government Paperwork Elimination Act sec. material in the regular course of carriage governing holders of such licenses. The 1704 (44 U.S.C. 3504 note); Energy Policy Act for another or storage incident thereto. provisions and requirements of this part of 2005 sec. 651(e), Pub. L. No. 109–58, 119 are in addition to, and not in ■ 6. In § 30.33, paragraph (a)(4) is Stat. 549 (2005) (42 U.S.C. 2014, 2021, 2021b, substitution for, other requirements of revised to read as follows: 2111). this chapter. In particular, the ■ 2. In § 20.2201, paragraph (c) is § 30.33 General requirements for issuance provisions of parts 30 and 37 of this revised to read as follows: of specific licenses. chapter apply to applications and licenses subject to this part. § 20.2201 Reports of theft or loss of (a) * * * (4) The applicant satisfies any special licensed material. PART 34—LICENSES FOR requirements contained in parts 32 * * * * * INDUSTRIAL RADIOGRAPHY AND through 37 and 39 of this chapter; and (c) A duplicate report is not required RADIATION SAFETY REQUIREMENTS under paragraph (b) of this section if the * * * * * FOR INDUSTRIAL RADIOGRAPHIC licensee is also required to submit a OPERATIONS report pursuant to §§ 30.55(c), 37.57, PART 32—SPECIFIC DOMESTIC LICENSES TO MANUFACTURE OR 37.81, 40.64(c), 50.72, 50.73, 70.52, ■ 11. The authority citation for part 34 TRANSFER CERTAIN ITEMS 73.27(b), 73.67(e)(3)(vii), 73.67(g)(3)(iii), continues to read as follows: CONTAINING BYPRODUCT MATERIAL 73.71, or 150.19(c) of this chapter. Authority: Atomic Energy Act secs. 81, * * * * * ■ 7. The authority citation for part 32 161, 181, 182, 183, 223, 234 (42 U.S.C. 2111, continues to read as follows: 2201, 2231, 2232, 2233, 2273, 2282); Energy PART 30—RULES OF GENERAL Reorganization Act sec. 201 (42 U.S.C. 5841); APPLICABILITY TO DOMESTIC Authority: Atomic Energy Act secs. 81, Government Paperwork Elimination Act sec. LICENSING OF BYPRODUCT 161, 181, 182, 183, 223, 234 (42 U.S.C. 2111, 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). MATERIAL 2201, 2231, 2232, 2233, 2273, 2282); Energy Atomic Energy Act of 2005 sec. 651(e), Pub. Reorganization Act sec. 201 (42 U.S.C. 5841); L. No. 109–58, 119 Stat. 806–810 (42 U.S.C. ■ 3. The authority citation for part 30 Government Paperwork Elimination Act sec. 2014, 2021, 2021b, 2111). Section 34.45 also continues to read as follows: 1704 (44 U.S.C. 3504 note); Energy Policy Act issued under Energy Reorganization Act sec. of 2005, sec. 651(e), Pub. L. No. 109–58, 119 206 (42 U.S.C. 5846). Authority: Atomic Energy Act secs. 81, 82, Stat. 806–810 (42 U.S.C. 2014, 2021, 2021b, ■ 161, 181, 182, 183, 186, 223, 234 (42 U.S.C. 2111). 12. Section 34.1 is revised to read as 2111, 2112, 2201, 2231, 2232, 2233, 2236, follows: 2273, 2282); Energy Reorganization Act secs. ■ 8. In § 32.1, paragraph (b) is revised to 201, 202, 206 (42 U.S.C. 5841, 5842, 5846); read as follows: § 34.1 Purpose and scope. Government Paperwork Elimination Act sec. This part prescribes requirements for 1704 (44 U.S.C. 3504 note); Energy Policy Act § 32.1 Purpose and scope. the issuance of licenses for the use of of 2005, Pub. L. No. 109–58, 119 Stat. 549 * * * * * sealed sources containing byproduct (2005). (b) The provisions and requirements material and radiation safety Section 30.7 also issued under Energy Reorganization Act sec. 211, Pub. L. 95–601, of this part are in addition to, and not requirements for persons using these sec. 10, as amended by Pub. L. 102–486, sec. in substitution for, other requirements sealed sources in industrial 2902 (42 U.S.C. 5851). Section 30.34(b) also of this chapter. In particular, the radiography. The provisions and issued under Atomic Energy Act sec. 184 (42 provisions of part 30 of this chapter requirements of this part are in addition U.S.C. 2234). Section 30.61 also issued under apply to applications, licenses and to, and not in substitution for, other Atomic Energy Act sec. 187 (42 U.S.C. 2237). certificates of registration subject to this requirements of this chapter. In ■ 4. In § 30.6, the introductory text of part, and the provisions of part 37 of particular, the requirements and paragraph (a) is revised to read as this chapter apply to applications and provisions of parts 19, 20, 21, 30, 37, 71, follows: licenses subject to this part. 150, 170, and 171 of this chapter apply * * * * * to applications and licenses subject to § 30.6 Communications. this part. This rule does not apply to (a) Unless otherwise specified or PART 33—SPECIFIC DOMESTIC medical uses of byproduct material. covered under the regional licensing LICENSES OF BROAD SCOPE FOR program as provided in paragraph (b) of BYPRODUCT MATERIAL PART 35—MEDICAL USE OF this section, any communication or BYPRODUCT MATERIAL report concerning the regulations in ■ 9. The authority citation for part 33 parts 30 through 37 and 39 of this continues to read as follows: ■ 13. The authority citation for part 35 continues to read as follows: chapter and any application filed under Authority: Atomic Energy Act secs. 81, these regulations may be submitted to 161, 181, 182, 183, 223, 234 (42 U.S.C. 2111, Authority: Atomic Energy Act secs. 81, the Commission as follows: 2201, 2231, 2232, 2233, 2273, 2282); Energy 161, 181, 182, 183, 223, 234 (42 U.S.C. 2111, * * * * * Reorganization Act sec. 201 (42 U.S.C. 5841); 2201, 2231, 2232, 2233, 2273, 2282); Energy ■ Government Paperwork Elimination Act sec. Reorganization Act sec. 201, 206 (42 U.S.C. 5. Section 30.13 is revised to read as 1704 (44 U.S.C. 3504 note); Energy Policy Act 5841, 5842, 5846); sec. 1704 (44 U.S.C. 3504 follows: of 2005 sec. 651(e), Public Law 109–58, 119 note); Energy Policy Act of 2005, sec. 651(e), Public Law 109–58, 119 Stat. 806–810 (42 § 30.13 Carriers. Stat. 806–810 (42 U.S.C. 2014, 2021, 2021b, 2111). U.S.C. 2014, 2021, 2021b, 2111). Common and contract carriers, freight forwarders, warehousemen, and the U.S. ■ 10. Section 33.1 is revised to read as ■ 14. Section 35.1 is revised to read as Postal Service are exempt from the follows: follows:

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§ 35.1 Purpose and scope. 37.3 Scope. Appendix A to Part 37—Category 1 and This part contains the requirements 37.5 Definitions. Category 2 Radioactive Materials and provisions for the medical use of 37.7 Communications. 37.9 Interpretations. byproduct material and for issuance of Authority: Atomic Energy Act secs. 53, 81, specific licenses authorizing the 37.11 Specific exemptions. 103, 104, 147, 148, 149, 161, 182, 183, 223, medical use of this material. These 37.13 Information collection requirements: 234 (42 U.S.C. 2073, 2111, 2133, 2134, 2167, requirements and provisions provide for OMB approval. 2168, 2169, 2201a., 2232, 2233, 2273, 2282). the radiation safety of workers, the Subpart B—Background Investigations and general public, patients, and human Access Control Program Subpart A—General Provisions research subjects. The requirements and 37.21 Personnel access authorization § 37.1 Purpose. provisions of this part are in addition to, requirements for category 1 or category 2 This part has been established to and not in substitution for, others in this quantities of radioactive material. provide the requirements for the chapter. The requirements and 37.23 Access authorization program physical protection program for any provisions of parts 19, 20, 21, 30, 37, 71, requirements. licensee that possesses an aggregated 170, and 171 of this chapter apply to 37.25 Background investigations. category 1 or category 2 quantity of applicants and licensees subject to this 37.27 Requirements for criminal history radioactive material listed in Appendix part unless specifically exempted. records checks of individuals granted A to this part. These requirements unescorted access to category 1 or provide reasonable assurance of the PART 36—LICENSES AND RADIATION category 2 quantities of radioactive SAFETY REQUIREMENTS FOR security of category 1 or category 2 material. quantities of radioactive material by IRRADIATORS 37.29 Relief from fingerprinting, protecting these materials from theft or identification, and criminal history ■ 15. The authority citation for part 36 records checks and other elements of diversion. Specific requirements for continues to read as follows: background investigations for designated access to material, use of material, transfer of material, and transport of Authority: Atomic Energy Act secs. 81, 82, categories of individuals permitted 161, 181, 182, 183, 186, 223, 234 (42 U.S.C. unescorted access to certain radioactive material are included. No provision of 2111, 2112, 2201, 2232, 2233, 2236, 2273, materials. this part authorizes possession of 2282); Energy Reorganization Act secs. 201, 37.31 Protection of information. licensed material. 202, 206 (42 U.S.C. 5841, 5842, 5846); 37.33 Access authorization program review. Government Paperwork Elimination Act sec. § 37.3 Scope. 1704 (44 U.S.C. 3504 note); Atomic Energy Subpart C—Physical Protection (a) Subparts B and C of this part apply Act of 2005 sec. 651(e), Pub. L. No. 109–58, Requirements During Use to any person who, under the 119 Stat. 806–810 (42 U.S.C. 2014, 2021, 37.41 Security program. regulations in this chapter, possesses or 2021b, 2111). 37.43 General security program uses at any site, an aggregated category ■ 16. In § 36.1, paragraph (a) is revised requirements. 1 or category 2 quantity of radioactive to read as follows: 37.45 LLEA coordination. material. 37.47 Security zones. (b) Subpart D of this part applies to § 36.1 Purpose and scope. 37.49 Monitoring, detection, and any person who, under the regulations (a) This part contains requirements for assessment. of this chapter: the issuance of a license authorizing the 37.51 Maintenance and testing. (1) Transports or delivers to a carrier use of sealed sources containing 37.53 Requirements for mobile devices. for transport in a single shipment, a radioactive materials in irradiators used 37.55 Security program review. category 1 or category 2 quantity of to irradiate objects or materials using 37.57 Reporting of events. radioactive material; or gamma radiation. This part also Subpart D—Physical Protection in Transit (2) Imports or exports a category 1 or category 2 quantity of radioactive contains radiation safety requirements 37.71 Additional requirements for transfer for operating irradiators. The of category 1 and category 2 quantities of material; the provisions only apply to requirements of this part are in addition radioactive material. the domestic portion of the transport. to other requirements of this chapter. In 37.73 Applicability of physical protection § 37.5 Definitions. particular, the provisions of parts 19, 20, of category 1 and category 2 quantities of 21, 30, 37, 71, 170, and 171 of this As used in this part: radioactive material during transit. Access control means a system for chapter apply to applications and 37.75 Preplanning and coordination of allowing only approved individuals to licenses subject to this part. Nothing in shipment of category 1 or category 2 have unescorted access to the security this part relieves the licensee from quantities of radioactive material. complying with other applicable 37.77 Advance notification of shipment of zone and for ensuring that all other Federal, State and local regulations category 1 quantities of radioactive individuals are subject to escorted governing the siting, zoning, land use, material. access. Act means the Atomic Energy Act of and building code requirements for 37.79 Requirements for physical protection 1954 (68 Stat. 919), including any industrial facilities. of category 1 and category 2 quantities of radioactive material during shipment. amendments thereto. * * * * * 37.81 Reporting of events. Aggregated means accessible by the ■ 17. Part 37 is added to read as follows: breach of a single physical barrier that Subpart E—[Reserved] would allow access to radioactive PART 37—PHYSICAL PROTECTION OF Subpart F—Records material in any form, including any CATEGORY 1 AND CATEGORY 2 devices that contain the radioactive QUANTITIES OF RADIOACTIVE 37.101 Form of records. 37.103 Record retention. material, when the total activity equals MATERIAL or exceeds a category 2 quantity of Subpart G—Enforcement Sec. radioactive material. 37.105 Inspections. Agreement State means any state with Subpart A—General Provisions 37.107 Violations. which the Atomic Energy Commission 37.1 Purpose. 37.109 Criminal penalties. or the U.S. Nuclear Regulatory

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Commission has entered into an by land or water as a common, contract, States of America which is an effective agreement under subsection or private carrier, or by civil aircraft. instrumentality of the United States, or 274b. of the Act. Non-agreement State Category 1 quantity of radioactive any board, bureau, division, service, means any other State. material means a quantity of radioactive office, officer, authority, administration, Approved individual means an material meeting or exceeding the or other establishment in the executive individual whom the licensee has category 1 threshold in Table 1 of branch of the Government. determined to be trustworthy and Appendix A to this part. This is License, except where otherwise reliable for unescorted access in determined by calculating the ratio of specified, means a license for byproduct accordance with subpart B of this part the total activity of each radionuclide to material issued pursuant to the and who has completed the training the category 1 threshold for that regulations in parts 30 through 36 and required by § 37.43(c). radionuclide and adding the ratios 39 of this chapter; Background investigation means the together. If the sum is equal to or License issuing authority means the investigation conducted by a licensee or exceeds 1, the quantity would be licensing agency that issued the license, applicant to support the determination considered a category 1 quantity. i.e. the U.S. Nuclear Regulatory of trustworthiness and reliability. Category 1 quantities of radioactive Commission or the appropriate agency Becquerel (Bq) means one material do not include the radioactive of an Agreement State; disintegration per second. material contained in any fuel assembly, Local law enforcement agency (LLEA) Byproduct material means— subassembly, fuel rod, or fuel pellet. means a public or private organization (1) Any radioactive material (except Category 2 quantity of radioactive that has been approved by a federal, special nuclear material) yielded in, or material means a quantity of radioactive state, or local government to carry made radioactive by, exposure to the material meeting or exceeding the firearms and make arrests, and is radiation incident to the process of category 2 threshold but less than the authorized and has the capability to producing or using special nuclear category 1 threshold in Table 1 of provide an armed response in the material; Appendix A to this part. This is jurisdiction where the licensed category (2) The tailings or wastes produced by determined by calculating the ratio of 1 or category 2 quantity of radioactive the extraction or concentration of the total activity of each radionuclide to material is used, stored, or transported. uranium or thorium from ore processed the category 2 threshold for that Lost or missing licensed material primarily for its source material content, radionuclide and adding the ratios means licensed material whose location including discrete surface wastes together. If the sum is equal to or is unknown. It includes material that resulting from uranium solution exceeds 1, the quantity would be has been shipped but has not reached its extraction processes. Underground ore considered a category 2 quantity. destination and whose location cannot bodies depleted by these solution Category 2 quantities of radioactive be readily traced in the transportation extraction operations do not constitute material do not include the radioactive system. ‘‘byproduct material’’ within this material contained in any fuel assembly, Mobile device means a piece of definition; subassembly, fuel rod, or fuel pellet. equipment containing licensed (3)(i) Any discrete source of radium- Commission means the U.S. Nuclear radioactive material that is either 226 that is produced, extracted, or Regulatory Commission or its duly mounted on wheels or casters, or converted after extraction, before, on, or authorized representatives. otherwise equipped for moving without after August 8, 2005, for use for a Curie means that amount of a need for disassembly or dismounting; commercial, medical, or research radioactive material which disintegrates or designed to be hand carried. Mobile activity; or at the rate of 37 billion atoms per devices do not include stationary (ii) Any material that— second. equipment installed in a fixed location. (A) Has been made radioactive by use Diversion means the unauthorized Movement control center means an of a particle accelerator; and movement of radioactive material operations center that is remote from (B) Is produced, extracted, or subject to this part to a location different transport activity and that maintains converted after extraction, before, on, or from the material’s authorized position information on the movement after August 8, 2005, for use for a destination inside or outside of the site of radioactive material, receives reports commercial, medical, or research at which the material is used or stored. of attempted attacks or thefts, provides activity; and Escorted access means a means for reporting these and other (4) Any discrete source of naturally accompaniment while in a security zone problems to appropriate agencies and occurring radioactive material, other by an approved individual who can request and coordinate appropriate than source material, that— maintains continuous direct visual aid. (i) The Commission, in consultation surveillance at all times over an No-later-than arrival time means the with the Administrator of the individual who is not approved for date and time that the shipping licensee Environmental Protection Agency, the unescorted access. and receiving licensee have established Secretary of Energy, the Secretary of Fingerprint orders means the orders as the time at which an investigation Homeland Security, and the head of any issued by the U.S. Nuclear Regulatory will be initiated if the shipment has not other appropriate Federal agency, Commission or the legally binding arrived at the receiving facility. The no- determines would pose a threat similar requirements issued by Agreement later-than-arrival time may not be more to the threat posed by a discrete source States that require fingerprints and than 6 hours after the estimated arrival of radium-226 to the public health and criminal history records checks for time for shipments of category 2 safety or the common defense and individuals with unescorted access to quantities of radioactive material. security; and category 1 and category 2 quantities of Person means— (ii) Before, on, or after August 8, 2005, radioactive material or safeguards (1) Any individual, corporation, is extracted or converted after extraction information-modified handling. partnership, firm, association, trust, for use in a commercial, medical, or Government agency means any estate, public or private institution, research activity. executive department, commission, group, Government agency other than Carrier means a person engaged in the independent establishment, corporation, the Commission or the DOE (except that transportation of passengers or property wholly or partly owned by the United the Department shall be considered a

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person within the meaning of the material by that individual does not Counsel will be recognized as binding regulations in 10 CFR chapter I to the constitute an unreasonable risk to the upon the Commission. extent that its facilities and activities are public health and safety or security. A subject to the licensing and related determination of trustworthiness and § 37.11 Specific exemptions. regulatory authority of the Commission reliability for this purpose is based upon (a) The Commission may, upon under section 202 of the Energy the results from a background application of any interested person or Reorganization Act of 1974 (88 Stat. investigation. upon its own initiative, grant such 1244), the Uranium Mill Tailings Unescorted access means solitary exemptions from the requirements of Radiation Control Act of 1978 (92 Stat. access to an aggregated category 1 or the regulations in this part as it 3021), the Nuclear Waste Policy Act of category 2 quantity of radioactive determines are authorized by law and 1982 (96 Stat. 2201), and section 3(b)(2) material or the devices that contain the will not endanger life or property or the of the Low-Level Radioactive Waste material. common defense and security, and are Policy Amendments Act of 1985 (99 United States, when used in a otherwise in the public interest. Stat. 1842), any State or any political geographical sense, includes Puerto (b) Any licensee’s NRC-licensed subdivision of or any political entity Rico and all territories and possessions activities are exempt from the within a State, any foreign government of the United States. requirements of subparts B and C of this or nation or any political subdivision of part to the extent that its activities are any such government or nation, or other § 37.7 Communications. included in a security plan required by entity; and Except where otherwise specified or part 73 of this chapter. (2) Any legal successor, covered under the regional licensing (c) A licensee that possesses representative, agent, or agency of the program as provided in § 30.6(b) of this radioactive waste that contains category foregoing. chapter, all communications and reports 1 or category 2 quantities of radioactive Reviewing official means the concerning the regulations in this part material is exempt from the individual who shall make the may be sent as follows: requirements of subparts B, C, and D of trustworthiness and reliability (a) By mail addressed to: ATTN: this part. Except that any radioactive determination of an individual to Document Control Desk; Director, Office waste that contains discrete sources, determine whether the individual may of Nuclear Reactor Regulation; Director, ion-exchange resins, or activated have, or continue to have, unescorted Office of New Reactors; Director, Office material that weighs less than 2,000 kg access to the category 1 or category 2 of Nuclear Material Safety and (4,409 lbs) is not exempt from the quantities of radioactive materials that Safeguards; Director, Office of Federal requirements of this part. The licensee are possessed by the licensee. and State Materials and Environmental shall implement the following Sabotage means deliberate damage, Management Programs; or Director, requirements to secure the radioactive with malevolent intent, to a category 1 Division of Security Policy, Office of waste: or category 2 quantity of radioactive Nuclear Security and Incident (1) Use continuous physical barriers material, a device that contains a Response, as appropriate, U.S. Nuclear that allow access to the radioactive category 1 or category 2 quantity of Regulatory Commission, Washington, waste only through established access radioactive material, or the components DC 20555–0001; control points; of the security system. (b) By hand delivery to the NRC’s (2) Use a locked door or gate with Safe haven means a readily offices at 11555 Rockville Pike, monitored alarm at the access control recognizable and readily accessible site Rockville, Maryland 20852; point; at which security is present or from (c) Where practicable, by electronic (3) Assess and respond to each actual which, in the event of an emergency, the submission, for example, Electronic or attempted unauthorized access to transport crew can notify and wait for Information Exchange, or CD–ROM. determine whether an actual or the local law enforcement authorities. Electronic submissions must be made in attempted theft, sabotage, or diversion Security zone means any temporary or a manner that enables the NRC to occurred; and permanent area determined and receive, read, authenticate, distribute, (4) Immediately notify the LLEA and established by the licensee for the and archive the submission, and process request an armed response from the physical protection of category 1 or and retrieve it a single page at a time. LLEA upon determination that there category 2 quantities of radioactive Detailed guidance on making electronic was an actual or attempted theft, material. submissions can be obtained by visiting sabotage, or diversion of the radioactive State means a State of the United the NRC’s Web site at http:// waste that contains category 1 or States, the District of Columbia, the www.nrc.gov/site-help/e- category 2 quantities of radioactive Commonwealth of Puerto Rico, the submittals.html; by email to material. Virgin Islands, Guam, American Samoa, [email protected]; or by writing and the Commonwealth of the Northern the Office of Information Services, U.S. § 37.13 Information collection Mariana Islands. Nuclear Regulatory Commission, requirements: OMB approval. Telemetric position monitoring Washington, DC 20555–0001. The (a) The U.S. Nuclear Regulatory system means a data transfer system that guidance discusses, among other topics, Commission has submitted the captures information by instrumentation the formats the NRC can accept, the use information collection requirements and/or measuring devices about the of electronic signatures, and the contained in this part to the Office of location and status of a transport vehicle treatment of nonpublic information. Management and Budget (OMB) for or package between the departure and approval as required by the Paperwork destination locations. § 37.9 Interpretations. Reduction Act (44 U.S.C. 3501 et seq.). Trustworthiness and reliability are Except as specifically authorized by The NRC may not conduct or sponsor, characteristics of an individual the Commission in writing, no and a person is not required to respond considered dependable in judgment, interpretations of the meaning of the to, a collection of information unless it character, and performance, such that regulations in this part by any officer or displays a currently valid OMB control unescorted access to category 1 or employee of the Commission other than number. The OMB has approved the category 2 quantities of radioactive a written interpretation by the General information collection requirements

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contained in this part under control (4) Licensees may include individuals determined to be trustworthy and number 3150–0214. needing access to safeguards reliable by the licensee; or (b) The approved information information-modified handling under (ii) The individual is subject to a collection requirements contained in part 73 of this chapter in the access category listed in § 37.29(a). this part appear in §§ 37.11, 37.21, authorization program under this (c) Informed consent. (1) Licensees 37.23, 37.25, 37.27, 37.29, 37.31, 37.33, subpart B. may not initiate a background 37.41, 37.43, 37.45, 37.49, 37.51, 37.55, investigation without the informed and 37.57, 37.71, 37.75, 37.77, 37.79, and § 37.23 Access authorization program signed consent of the subject individual. requirements. 37.81. This consent must include authorization (a) Granting unescorted access to share personal information with other Subpart B—Background Investigations authorization. (1) Licensees shall individuals or organizations as and Access Authorization Program implement the requirements of this necessary to complete the background subpart for granting initial or reinstated investigation. Before a final adverse § 37.21 Personnel access authorization unescorted access authorization. determination, the licensee shall requirements for category 1 or category 2 provide the individual with an quantities of radioactive material. (2) Individuals who have been determined to be trustworthy and opportunity to correct any inaccurate or (a) General. (1) Each licensee that reliable shall also complete the security incomplete information that is possesses an aggregated quantity of training required by § 37.43(c) before developed during the background radioactive material at or above the being allowed unescorted access to investigation. Licensees do not need to category 2 threshold shall establish, category 1 or category 2 quantities of obtain signed consent from those implement, and maintain its access radioactive material. individuals that meet the requirements authorization program in accordance (b) Reviewing officials. (1) Reviewing of § 37.25(b). A signed consent must be with the requirements of this subpart. officials are the only individuals who obtained prior to any reinvestigation. (2) An applicant for a new license and (2) The subject individual may each licensee that would become newly may make trustworthiness and reliability determinations that allow withdraw his or her consent at any time. subject to the requirements of this Licensees shall inform the individual subpart upon application for individuals to have unescorted access to category 1 or category 2 quantities of that: modification of its license shall (i) If an individual withdraws his or implement the requirements of this radioactive materials possessed by the licensee. her consent, the licensee may not subpart, as appropriate, before taking initiate any elements of the background possession of an aggregated category 1 (2) Each licensee shall name one or more individuals to be reviewing investigation that were not in progress or category 2 quantity of radioactive at the time the individual withdrew his material. officials. After completing the background investigation on the or her consent; and (3) Any licensee that has not (ii) The withdrawal of consent for the reviewing official, the licensee shall previously implemented the Security background investigation is sufficient provide under oath or affirmation, a Orders or been subject to the provisions cause for denial or termination of certification that the reviewing official of this subpart B shall implement the unescorted access authorization. provisions of this subpart B before is deemed trustworthy and reliable by (d) Personal history disclosure. Any aggregating radioactive material to a the licensee. The fingerprints of the individual who is applying for quantity that equals or exceeds the named reviewing official must be taken unescorted access authorization shall category 2 threshold. by a law enforcement agency, Federal or disclose the personal history (b) General performance objective. State agencies that provide information that is required by the The licensee’s access authorization fingerprinting services to the public, or licensee’s access authorization program program must ensure that the commercial fingerprinting services for the reviewing official to make a individuals specified in paragraph (c)(1) authorized by a State to take determination of the individual’s of this section are trustworthy and fingerprints. The licensee shall recertify trustworthiness and reliability. Refusal reliable. that the reviewing official is deemed to provide, or the falsification of, any (c) Applicability. (1) Licensees shall trustworthy and reliable every 10 years personal history information required subject the following individuals to an in accordance with § 37.25(b). by this subpart is sufficient cause for access authorization program: (3) Reviewing officials must be denial or termination of unescorted (i) Any individual whose assigned permitted to have unescorted access to access. duties require unescorted access to category 1 or category 2 quantities of (e) Determination basis. (1) The category 1 or category 2 quantities of radioactive materials or access to reviewing official shall determine radioactive material or to any device safeguards information or safeguards whether to permit, deny, unfavorably that contains the radioactive material; information-modified handling, if the terminate, maintain, or administratively and licensee possesses safeguards withdraw an individual’s unescorted (ii) Reviewing officials. information or safeguards information- access authorization based on an (2) Licensees need not subject the modified handling. evaluation of all of the information categories of individuals listed in (4) Reviewing officials cannot approve collected to meet the requirements of § 37.29(a)(1) through (13) to the other individuals to act as reviewing this subpart. investigation elements of the access officials. (2) The reviewing official may not authorization program. (5) A reviewing official does not need permit any individual to have (3) Licensees shall approve for to undergo a new background unescorted access until the reviewing unescorted access to category 1 or investigation before being named by the official has evaluated all of the category 2 quantities of radioactive licensee as the reviewing official if: information collected to meet the material only those individuals with job (i) The individual has undergone a requirements of this subpart and duties that require unescorted access to background investigation that included determined that the individual is category 1 or category 2 quantities of fingerprinting and an FBI criminal trustworthy and reliable. The reviewing radioactive material. history records check and has been official may deny unescorted access to

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any individual based on information questioned information or a direct (1) Fingerprinting and an FBI obtained at any time during the challenge as to the accuracy or identification and criminal history background investigation. completeness of any entry on the records check in accordance with (3) The licensee shall document the criminal history record to the Federal § 37.27; basis for concluding whether or not Bureau of Investigation, Criminal Justice (2) Verification of true identity. there is reasonable assurance that an Information Services (CJIS) Division, Licensees shall verify the true identity individual is trustworthy and reliable. ATTN: SCU, Mod. D–2, 1000 Custer of the individual who is applying for (4) The reviewing official may Hollow Road, Clarksburg, WV 26306 as unescorted access authorization to terminate or administratively withdraw set forth in 28 CFR 16.30 through 16.34. ensure that the applicant is who he or an individual’s unescorted access In the latter case, the Federal Bureau of she claims to be. A licensee shall review authorization based on information Investigation (FBI) will forward the official identification documents (e.g., obtained after the background challenge to the agency that submitted driver’s license; passport; government investigation has been completed and the data, and will request that the identification; certificate of birth issued the individual granted unescorted agency verify or correct the challenged by the state, province, or country of access authorization. entry. Upon receipt of an official birth) and compare the documents to (5) Licensees shall maintain a list of communication directly from the agency personal information data provided by persons currently approved for that contributed the original the individual to identify any unescorted access authorization. When information, the FBI Identification discrepancy in the information. a licensee determines that a person no Division makes any changes necessary Licensees shall document the type, longer requires unescorted access or in accordance with the information expiration, and identification number of meets the access authorization supplied by that agency. Licensees must the identification document, or requirement, the licensee shall remove provide at least 10 days for an maintain a photocopy of identifying the person from the approved list as individual to initiate action to challenge documents on file in accordance with soon as possible, but no later than 7 the results of an FBI criminal history § 37.31. Licensees shall certify in working days, and take prompt records check after the record being writing that the identification was measures to ensure that the individual made available for his or her review. properly reviewed, and shall maintain is unable to have unescorted access to The licensee may make a final adverse the certification and all related the material. documents for review upon inspection; (f) Procedures. Licensees shall determination based upon the criminal history records only after receipt of the (3) Employment history verification. develop, implement, and maintain Licensees shall complete an written procedures for implementing FBI’s confirmation or correction of the record. employment history verification, the access authorization program. The including military history. Licensees procedures must include provisions for (h) Records. (1) The licensee shall shall verify the individual’s the notification of individuals who are retain documentation regarding the employment with each previous denied unescorted access. The trustworthiness and reliability of employer for the most recent 7 years procedures must include provisions for individual employees for 3 years from before the date of application; the review, at the request of the affected the date the individual no longer (4) Verification of education. individual, of a denial or termination of requires unescorted access to category 1 Licensees shall verify that the unescorted access authorization. The or category 2 quantities of radioactive individual participated in the education procedures must contain a provision to material. process during the claimed period; ensure that the individual is informed of (2) The licensee shall retain a copy of (5) Character and reputation the grounds for the denial or the current access authorization determination. Licensees shall complete termination of unescorted access program procedures as a record for 3 reference checks to determine the authorization and allow the individual years after the procedure is no longer character and reputation of the an opportunity to provide additional needed. If any portion of the procedure individual who has applied for relevant information. is superseded, the licensee shall retain unescorted access authorization. Unless (g) Right to correct and complete the superseded material for 3 years after other references are not available, information. (1) Prior to any final the record is superseded. reference checks may not be conducted adverse determination, licensees shall (3) The licensee shall retain the list of with any person who is known to be a provide each individual subject to this persons approved for unescorted access close member of the individual’s family, subpart with the right to complete, authorization for 3 years after the list is including but not limited to the correct, and explain information superseded or replaced. individual’s spouse, parents, siblings, or obtained as a result of the licensee’s children, or any individual who resides § 37.25 Background investigations. background investigation. Confirmation in the individual’s permanent of receipt by the individual of this (a) Initial investigation. Before household. Reference checks under this notification must be maintained by the allowing an individual unescorted subpart must be limited to whether the licensee for a period of 1 year from the access to category 1 or category 2 individual has been and continues to be date of the notification. quantities of radioactive material or to trustworthy and reliable; (2) If, after reviewing his or her the devices that contain the material, (6) The licensee shall also, to the criminal history record, an individual licensees shall complete a background extent possible, obtain independent believes that it is incorrect or investigation of the individual seeking information to corroborate that provided incomplete in any respect and wishes to unescorted access authorization. The by the individual (e.g., seek references change, correct, update, or explain scope of the investigation must not supplied by the individual); and anything in the record, the individual encompass at least the 7 years preceding (7) If a previous employer, may initiate challenge procedures. the date of the background investigation educational institution, or any other These procedures include direct or since the individual’s eighteenth entity with which the individual claims application by the individual birthday, whichever is shorter. The to have been engaged fails to provide challenging the record to the law background investigation must include information or indicates an inability or enforcement agency that contributed the at a minimum: unwillingness to provide information

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within a time frame deemed appropriate provisions of this subpart shall (i) An arrest more than 1 year old for by the licensee but at least after 10 fingerprint each individual who is to be which there is no information of the business days of the request or if the permitted unescorted access to category disposition of the case; or licensee is unable to reach the entity, 1 or category 2 quantities of radioactive (ii) An arrest that resulted in the licensee shall document the refusal, material. Licensees shall transmit all dismissal of the charge or an acquittal. unwillingness, or inability in the record collected fingerprints to the (2) Licensees may not use information of investigation; and attempt to obtain Commission for transmission to the FBI. received from a criminal history records the information from an alternate The licensee shall use the information check obtained under this subpart in a source. received from the FBI as part of the manner that would infringe upon the (b) Grandfathering. (1) Individuals required background investigation to rights of any individual under the First who have been determined to be determine whether to grant or deny Amendment to the Constitution of the trustworthy and reliable for unescorted further unescorted access to category 1 United States, nor shall licensees use access to category 1 or category 2 or category 2 quantities of radioactive the information in any way that would quantities of radioactive material under materials for that individual. discriminate among individuals on the the Fingerprint Orders may continue to (2) The licensee shall notify each basis of race, religion, national origin, have unescorted access to category 1 affected individual that his or her gender, or age. and category 2 quantities of radioactive fingerprints will be used to secure a (c) Procedures for processing of material without further investigation. review of his or her criminal history fingerprint checks. (1) For the purpose These individuals shall be subject to the record, and shall inform him or her of of complying with this subpart, reinvestigation requirement. the procedures for revising the record or licensees shall use an appropriate (2) Individuals who have been adding explanations to the record. method listed in § 37.7 to submit to the determined to be trustworthy and (3) Fingerprinting is not required if a U.S. Nuclear Regulatory Commission, reliable under the provisions of part 73 licensee is reinstating an individual’s Director, Division of Facilities and of this chapter or the security orders for unescorted access authorization to Security, 11545 Rockville Pike, ATTN: access to safeguards information, category 1 or category 2 quantities of Criminal History Program/Mail Stop safeguards information-modified radioactive materials if: TWB–05 B32M, Rockville, Maryland handling, or risk-significant material (i) The individual returns to the same 20852, one completed, legible standard may have unescorted access to category fingerprint card (Form FD–258, 1 and category 2 quantities of facility that granted unescorted access authorization within 365 days of the ORIMDNRCOOOZ), electronic radioactive material without further fingerprint scan or, where practicable, investigation. The licensee shall termination of his or her unescorted access authorization; and other fingerprint record for each document that the individual was individual requiring unescorted access determined to be trustworthy and (ii) The previous access was to category 1 or category 2 quantities of reliable under the provisions of part 73 terminated under favorable conditions. radioactive material. Copies of these of this chapter or a security order. (4) Fingerprints do not need to be forms may be obtained by writing the Security order, in this context, refers to taken if an individual who is an Office of Information Services, U.S. any order that was issued by the NRC employee of a licensee, contractor, Nuclear Regulatory Commission, that required fingerprints and an FBI manufacturer, or supplier has been Washington, DC 20555–0001, by calling criminal history records check for granted unescorted access to category 1 1–630–829–9565, or by email to access to safeguards information, or category 2 quantities of radioactive [email protected]. Guidance on safeguards information-modified material, access to safeguards submitting electronic fingerprints can be handling, or risk significant material information, or safeguards information- found at http://www.nrc.gov/site-help/e- such as special nuclear material or large modified handling by another licensee, submittals.html. quantities of uranium hexafluoride. based upon a background investigation (2) Fees for the processing of These individuals shall be subject to the conducted under this subpart, the fingerprint checks are due upon reinvestigation requirement. Fingerprint Orders, or part 73 of this application. Licensees shall submit (c) Reinvestigations. Licensees shall chapter. An existing criminal history payment with the application for the conduct a reinvestigation every 10 years records check file may be transferred to processing of fingerprints through for any individual with unescorted the licensee asked to grant unescorted corporate check, certified check, access to category 1 or category 2 access in accordance with the cashier’s check, money order, or quantities of radioactive material. The provisions of § 37.31(c). electronic payment, made payable to reinvestigation shall consist of (5) Licensees shall use the ‘‘U.S. NRC.’’ (For guidance on making fingerprinting and an FBI identification information obtained as part of a electronic payments, contact the and criminal history records check in criminal history records check solely for Security Branch, Division of Facilities accordance with § 37.27. The the purpose of determining an and Security at 301–492–3531.) reinvestigations must be completed individual’s suitability for unescorted Combined payment for multiple within 10 years of the date on which access authorization to category 1 or applications is acceptable. The these elements were last completed. category 2 quantities of radioactive Commission publishes the amount of § 37.27 Requirements for criminal history materials, access to safeguards the fingerprint check application fee on records checks of individuals granted information, or safeguards information- the NRC’s public Web site. (To find the unescorted access to category 1 or modified handling. current fee amount, go to the Electronic category 2 quantities of radioactive (b) Prohibitions. (1) Licensees may not Submittals page at http://www.nrc.gov/ material. base a final determination to deny an site-help/e-submittals.html and see the (a) General performance objective and individual unescorted access link for the Criminal History Program requirements. (1) Except for those authorization to category 1 or category under Electronic Submission Systems.) individuals listed in § 37.29 and those 2 quantities of radioactive material (3) The Commission will forward to individuals grandfathered under solely on the basis of information the submitting licensee all data received § 37.25(b), each licensee subject to the received from the FBI involving: from the FBI as a result of the licensee’s

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application(s) for criminal history years from the date the individual no the record and the personal information records checks. longer requires unescorted access to from unauthorized disclosure. category 1 or category 2 quantities of (b) The licensee may not disclose the § 37.29 Relief from fingerprinting, radioactive material; and record or personal information collected identification, and criminal history records and maintained to persons other than checks and other elements of background (13) Any individual employed by a investigations for designated categories of service provider licensee for which the the subject individual, his or her individuals permitted unescorted access to service provider licensee has conducted representative, or to those who have a certain radioactive materials. the background investigation for the need to have access to the information (a) Fingerprinting, and the individual and approved the individual in performing assigned duties in the identification and criminal history for unescorted access to category 1 or process of granting or denying records checks required by section 149 category 2 quantities of radioactive unescorted access to category 1 or of the Atomic Energy Act of 1954, as material. Written verification from the category 2 quantities of radioactive amended, and other elements of the service provider must be provided to the material, safeguards information, or background investigation are not licensee. The licensee shall retain the safeguards information-modified required for the following individuals documentation for a period of 3 years handling. No individual authorized to prior to granting unescorted access to from the date the individual no longer have access to the information may category 1 or category 2 quantities of requires unescorted access to category 1 disseminate the information to any radioactive materials: or category 2 quantities of radioactive other individual who does not have a (1) An employee of the Commission material. need to know. or of the Executive Branch of the U.S. (b) Fingerprinting, and the (c) The personal information obtained Government who has undergone identification and criminal history on an individual from a background fingerprinting for a prior U.S. records checks required by section 149 investigation may be provided to Government criminal history records of the Atomic Energy Act of 1954, as another licensee: (1) Upon the individual’s written check; amended, are not required for an request to the licensee holding the data (2) A Member of Congress; individual who has had a favorably to disseminate the information (3) An employee of a member of adjudicated U.S. Government criminal contained in his or her file; and Congress or Congressional committee history records check within the last 5 (2) The recipient licensee verifies who has undergone fingerprinting for a years, under a comparable U.S. information such as name, date of birth, prior U.S. Government criminal history Government program involving social security number, gender, and records check; fingerprinting and an FBI identification other applicable physical (4) The Governor of a State or his or and criminal history records check characteristics. her designated State employee provided that he or she makes available the appropriate documentation. Written (d) The licensee shall make representative; background investigation records (5) Federal, State, or local law confirmation from the agency/employer that reviewed the criminal history obtained under this subpart available for enforcement personnel; examination by an authorized (6) State Radiation Control Program records check must be provided to the licensee. The licensee shall retain this representative of the NRC to determine Directors and State Homeland Security compliance with the regulations and Advisors or their designated State documentation for a period of 3 years from the date the individual no longer laws. employee representatives; (e) The licensee shall retain all requires unescorted access to category 1 (7) Agreement State employees fingerprint and criminal history records or category 2 quantities of radioactive conducting security inspections on (including data indicating no record) material. These programs include, but behalf of the NRC under an agreement received from the FBI, or a copy of these are not limited to: executed under section 274.i. of the records if the individual’s file has been (1) National Agency Check; Atomic Energy Act; transferred, on an individual for 3 years (8) Representatives of the (2) Transportation Worker from the date the individual no longer International Atomic Energy Agency Identification Credentials (TWIC) under requires unescorted access to category 1 (IAEA) engaged in activities associated 49 CFR part 1572; or category 2 quantities of radioactive with the U.S./IAEA Safeguards (3) Bureau of Alcohol, Tobacco, material. Agreement who have been certified by Firearms, and Explosives background the NRC; check and clearances under 27 CFR part § 37.33 Access authorization program (9) Emergency response personnel 555; review. who are responding to an emergency; (4) Health and Human Services (a) Each licensee shall be responsible (10) Commercial vehicle drivers for security risk assessments for possession for the continuing effectiveness of the road shipments of category 2 quantities and use of select agents and toxins access authorization program. Each of radioactive material; under 42 CFR part 73; licensee shall ensure that access (11) Package handlers at (5) Hazardous Material security threat authorization programs are reviewed to transportation facilities such as freight assessment for hazardous material confirm compliance with the terminals and railroad yards; endorsement to commercial drivers requirements of this subpart and that (12) Any individual who has an active license under 49 CFR part 1572; and comprehensive actions are taken to Federal security clearance, provided (6) Customs and Border Protection’s correct any noncompliance that is that he or she makes available the Free and Secure Trade (FAST) Program. identified. The review program shall appropriate documentation. Written evaluate all program performance confirmation from the agency/employer § 37.31 Protection of information. objectives and requirements. Each that granted the Federal security (a) Each licensee who obtains licensee shall periodically (at least clearance or reviewed the criminal background information on an annually) review the access program history records check must be provided individual under this subpart shall content and implementation. to the licensee. The licensee shall retain establish and maintain a system of files (b) The results of the reviews, along this documentation for a period of 3 and written procedures for protection of with any recommendations, must be

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documented. Each review report must ensure the integrated and effective enforcement agency and licensee any identify conditions that are adverse to functioning of the security program actual or attempted theft, sabotage, or the proper performance of the access required by this subpart. The security diversion of category 1 or category 2 authorization program, the cause of the plan must, at a minimum: quantities of radioactive material; and condition(s), and, when appropriate, (i) Describe the measures and (iv) The appropriate response to recommend corrective actions, and strategies used to implement the security alarms. corrective actions taken. The licensee requirements of this subpart; and (2) In determining those individuals shall review the findings and take any (ii) Identify the security resources, who shall be trained on the security additional corrective actions necessary equipment, and technology used to program, the licensee shall consider to preclude repetition of the condition, satisfy the requirements of this subpart. each individual’s assigned activities including reassessment of the deficient (2) The security plan must be during authorized use and response to areas where indicated. reviewed and approved by the potential situations involving actual or (c) Review records must be individual with overall responsibility attempted theft, diversion, or sabotage maintained for 3 years. for the security program. of category 1 or category 2 quantities of (3) A licensee shall revise its security radioactive material. The extent of the Subpart C—Physical Protection plan as necessary to ensure the effective training must be commensurate with the Requirements During Use implementation of Commission individual’s potential involvement in requirements. The licensee shall ensure the security of category 1 or category 2 § 37.41 Security program. that: quantities of radioactive material. (a) Applicability. (1) Each licensee (i) The revision has been reviewed (3) Refresher training must be that possesses an aggregated category 1 and approved by the individual with provided at a frequency not to exceed 12 or category 2 quantity of radioactive overall responsibility for the security months and when significant changes material shall establish, implement, and program; and have been made to the security program. maintain a security program in (ii) The affected individuals are This training must include: accordance with the requirements of instructed on the revised plan before the (i) Review of the training this subpart. changes are implemented. requirements of paragraph (c) of this (2) An applicant for a new license and (4) The licensee shall retain a copy of section and any changes made to the each licensee that would become newly the current security plan as a record for security program since the last training; subject to the requirements of this 3 years after the security plan is no (ii) Reports on any relevant security subpart upon application for longer required. If any portion of the issues, problems, and lessons learned; modification of its license shall plan is superseded, the licensee shall (iii) Relevant results of NRC implement the requirements of this retain the superseded material for 3 inspections; and subpart, as appropriate, before taking years after the record is superseded. (iv) Relevant results of the licensee’s possession of an aggregated category 1 (b) Implementing procedures. (1) The program review and testing and or category 2 quantity of radioactive licensee shall develop and maintain maintenance. material. written procedures that document how (4) The licensee shall maintain (3) Any licensee that has not the requirements of this subpart and the records of the initial and refresher previously implemented the Security security plan will be met. training for 3 years from the date of the Orders or been subject to the provisions (2) The implementing procedures and training. The training records must of subpart C shall provide written revisions to these procedures must be include dates of the training, topics notification to the NRC regional office approved in writing by the individual covered, a list of licensee personnel in specified in § 30.6 of this chapter at with overall responsibility for the attendance, and related information. least 90 days before aggregating security program. (d) Protection of information. (1) radioactive material to a quantity that (3) The licensee shall retain a copy of Except as provided in paragraph (d)(9) equals or exceeds the category 2 the current procedure as a record for 3 of this section, licensees authorized to threshold. years after the procedure is no longer possess category 1 or category 2 (b) General performance objective. needed. Superseded portions of the quantities of radioactive material shall Each licensee shall establish, procedure must be retained for 3 years limit access to and unauthorized implement, and maintain a security after the record is superseded. disclosure of their security plan, program that is designed to monitor (c) Training. (1) Each licensee shall implementing procedures, and the list and, without delay, detect, assess, and conduct training to ensure that those of individuals that have been approved respond to an actual or attempted individuals implementing the security for unescorted access. unauthorized access to category 1 or program possess and maintain the (2) Efforts to limit access shall include category 2 quantities of radioactive knowledge, skills, and abilities to carry the development, implementation, and material. out their assigned duties and maintenance of written policies and (c) Program features. Each licensee’s responsibilities effectively. The training procedures for controlling access to, and security program must include the must include instruction in: for proper handling and protection program features, as appropriate, (i) The licensee’s security program against unauthorized disclosure of, the described in §§ 37.43, 37.45, 37.47, and procedures to secure category 1 or security plan and implementing 37.49, 37.51, 37.53, and 37.55. category 2 quantities of radioactive procedures. material, and in the purposes and (3) Before granting an individual § 37.43 General security program functions of the security measures access to the security plan or requirements. employed; implementing procedures, licensees (a) Security plan. (1) Each licensee (ii) The responsibility to report shall: identified in § 37.41(a) shall develop a promptly to the licensee any condition (i) Evaluate an individual’s need to written security plan specific to its that causes or may cause a violation of know the security plan or implementing facilities and operations. The purpose of Commission requirements; procedures; and the security plan is to establish the (iii) The responsibility of the licensee (ii) If the individual has not been licensee’s overall security strategy to to report promptly to the local law authorized for unescorted access to

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category 1 or category 2 quantities of § 37.45 LLEA coordination. (3) A combination of continuous radioactive material, safeguards (a) A licensee subject to this subpart physical barriers and direct control. information, or safeguards information- shall coordinate, to the extent (d) For category 1 quantities of modified handling, the licensee must practicable, with an LLEA for radioactive material during periods of complete a background investigation to responding to threats to the licensee’s maintenance, source receipt, determine the individual’s facility, including any necessary armed preparation for shipment, installation, trustworthiness and reliability. A response. The information provided to or source removal or exchange, the trustworthiness and reliability the LLEA must include: licensee shall, at a minimum, provide determination shall be conducted by the (1) A description of the facilities and sufficient individuals approved for reviewing official and shall include the the category 1 and category 2 quantities unescorted access to maintain background investigation elements of radioactive materials along with a continuous surveillance of sources in contained in § 37.25(a)(2) through (a)(7). description of the licensee’s security temporary security zones and in any (4) Licensees need not subject the measures that have been implemented security zone in which physical barriers following individuals to the background to comply with this subpart; and or intrusion detection systems have investigation elements for protection of (2) A notification that the licensee been disabled to allow such activities. information: will request a timely armed response by (e) Individuals not approved for (i) The categories of individuals listed the LLEA to any actual or attempted unescorted access to category 1 or in § 37.29(a)(1) through (13); or theft, sabotage, or diversion of category category 2 quantities of radioactive (ii) Security service provider 1 or category 2 quantities of material. material must be escorted by an employees, provided written (b) The licensee shall notify the approved individual when in a security verification that the employee has been appropriate NRC regional office listed in zone. determined to be trustworthy and § 30.6(a)(2) of this chapter within 3 reliable, by the required background § 37.49 Monitoring, detection, and business days if: investigation in § 37.25(a)(2) through assessment. (1) The LLEA has not responded to (a)(7), has been provided by the security (a) Monitoring and detection. (1) the request for coordination within 60 service provider. Licensees shall establish and maintain (5) The licensee shall document the days of the coordination request; or the capability to continuously monitor basis for concluding that an individual (2) The LLEA notifies the licensee that and detect without delay all is trustworthy and reliable and should the LLEA does not plan to participate in unauthorized entries into its security be granted access to the security plan or coordination activities. zones. Licensees shall provide the implementing procedures. (c) The licensee shall document its means to maintain continuous (6) Licensees shall maintain a list of efforts to coordinate with the LLEA. The monitoring and detection capability in persons currently approved for access to documentation must be kept for 3 years. the event of a loss of the primary power the security plan or implementing (d) The licensee shall coordinate with source, or provide for an alarm and procedures. When a licensee determines the LLEA at least every 12 months, or response in the event of a loss of this that a person no longer needs access to when changes to the facility design or capability to continuously monitor and the security plan or implementing operation adversely affect the potential detect unauthorized entries. procedures or no longer meets the vulnerability of the licensee’s material (2) Monitoring and detection must be access authorization requirements for to theft, sabotage, or diversion. performed by: access to the information, the licensee § 37.47 Security zones. (i) A monitored intrusion detection shall remove the person from the system that is linked to an onsite or (a) Licensees shall ensure that all approved list as soon as possible, but no offsite central monitoring facility; or aggregated category 1 and category 2 later than 7 working days, and take (ii) Electronic devices for intrusion quantities of radioactive material are prompt measures to ensure that the detection alarms that will alert nearby used or stored within licensee- individual is unable to obtain the facility personnel; or established security zones. Security security plan or implementing (iii) A monitored video surveillance zones may be permanent or temporary. procedures. system; or (7) When not in use, the licensee shall (b) Temporary security zones must be (iv) Direct visual surveillance by store its security plan and implementing established as necessary to meet the approved individuals located within the procedures in a manner to prevent licensee’s transitory or intermittent security zone; or unauthorized access. Information stored business activities, such as periods of (v) Direct visual surveillance by a in nonremovable electronic form must maintenance, source delivery, and licensee designated individual located be password protected. source replacement. outside the security zone. (8) The licensee shall retain as a (c) Security zones must, at a (3) A licensee subject to this subpart record for 3 years after the document is minimum, allow unescorted access only shall also have a means to detect no longer needed: to approved individuals through: unauthorized removal of the radioactive (i) A copy of the information (1) Isolation of category 1 and material from the security zone. This protection procedures; and category 2 quantities of radioactive detection capability must provide: (ii) The list of individuals approved materials by the use of continuous (i) For category 1 quantities of for access to the security plan or physical barriers that allow access to the radioactive material, immediate implementing procedures. security zone only through established detection of any attempted (9) Licensees that possess safeguards access control points. A physical barrier unauthorized removal of the radioactive information or safeguards information- is a natural or man-made structure or material from the security zone. Such modified handling are subject to the formation sufficient for the isolation of immediate detection capability must be requirements of § 73.21 of this chapter, the category 1 or category 2 quantities provided by: and shall protect any safeguards of radioactive material within a security (A) Electronic sensors linked to an information or safeguards information- zone; or alarm; or modified handling in accordance with (2) Direct control of the security zone (B) Continuous monitored video the requirements of that section. by approved individuals at all times; or surveillance; or

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(C) Direct visual surveillance. frequency, the testing must be but not at the expense of causing delay (ii) For category 2 quantities of performed at least annually, not to or interfering with the LLEA response to radioactive material, weekly verification exceed 12 months. the event, the licensee shall notify the through physical checks, tamper (b) The licensee shall maintain NRC’s Operations Center (301–816– indicating devices, use, or other means records on the maintenance and testing 5100). In no case shall the notification to ensure that the radioactive material is activities for 3 years. to the NRC be later than 4 hours after present. the discovery of any attempted or actual (b) Assessment. Licensees shall § 37.53 Requirements for mobile devices. theft, sabotage, or diversion. immediately assess each actual or Each licensee that possesses mobile (b) The licensee shall assess any attempted unauthorized entry into the devices containing category 1 or suspicious activity related to possible security zone to determine whether the category 2 quantities of radioactive theft, sabotage, or diversion of category unauthorized access was an actual or material must: 1 or category 2 quantities of radioactive attempted theft, sabotage, or diversion. (a) Have two independent physical material and notify the LLEA as (c) Personnel communications and controls that form tangible barriers to appropriate. As soon as possible but not data transmission. For personnel and secure the material from unauthorized later than 4 hours after notifying the automated or electronic systems removal when the device is not under LLEA, the licensee shall notify the supporting the licensee’s monitoring, direct control and constant surveillance NRC’s Operations Center (301–816– detection, and assessment systems, by the licensee; and 5100). licensees shall: (b) For devices in or on a vehicle or (c) The initial telephonic notification (1) Maintain continuous capability for trailer, unless the health and safety required by paragraph (a) of this section personnel communication and requirements for a site prohibit the must be followed within a period of 30 electronic data transmission and disabling of the vehicle, the licensee days by a written report submitted to processing among site security systems; shall utilize a method to disable the the NRC by an appropriate method and vehicle or trailer when not under direct listed in § 37.7. The report must include (2) Provide an alternative control and constant surveillance by the sufficient information for NRC analysis communication capability for licensee. Licensees shall not rely on the and evaluation, including identification personnel, and an alternative data removal of an ignition key to meet this of any necessary corrective actions to transmission and processing capability, requirement. prevent future instances. in the event of a loss of the primary means of communication or data § 37.55 Security program review. Subpart D—Physical Protection in transmission and processing. (a) Each licensee shall be responsible Transit Alternative communications and data for the continuing effectiveness of the transmission systems may not be subject security program. Each licensee shall § 37.71 Additional requirements for to the same failure modes as the primary ensure that the security program is transfer of category 1 and category 2 quantities of radioactive material. systems. reviewed to confirm compliance with (d) Response. Licensees shall the requirements of this subpart and A licensee transferring a category 1 or immediately respond to any actual or that comprehensive actions are taken to category 2 quantity of radioactive attempted unauthorized access to the correct any noncompliance that is material to a licensee of the Commission security zones, or actual or attempted identified. The review must include the or an Agreement State shall meet the theft, sabotage, or diversion of category radioactive material security program license verification provisions listed 1 or category 2 quantities of radioactive content and implementation. Each below instead of those listed in material at licensee facilities or licensee shall periodically (at least § 30.41(d) of this chapter: temporary job sites. For any annually) review the security program (a) Any licensee transferring category unauthorized access involving an actual content and implementation. 1 quantities of radioactive material to a or attempted theft, sabotage, or (b) The results of the review, along licensee of the Commission or an diversion of category 1 or category 2 with any recommendations, must be Agreement State, prior to conducting quantities of radioactive material, the documented. Each review report must such transfer, shall verify with the licensee’s response shall include identify conditions that are adverse to NRC’s license verification system or the requesting, without delay, an armed the proper performance of the security license issuing authority that the response from the LLEA. program, the cause of the condition(s), transferee’s license authorizes the and, when appropriate, recommend receipt of the type, form, and quantity § 37.51 Maintenance and testing. corrective actions, and corrective of radioactive material to be transferred (a) Each licensee subject to this actions taken. The licensee shall review and that the licensee is authorized to subpart shall implement a maintenance the findings and take any additional receive radioactive material at the and testing program to ensure that corrective actions necessary to preclude location requested for delivery. If the intrusion alarms, associated repetition of the condition, including verification is conducted by contacting communication systems, and other reassessment of the deficient areas the license issuing authority, the physical components of the systems where indicated. transferor shall document the used to secure or detect unauthorized (c) The licensee shall maintain the verification. For transfers within the access to radioactive material are review documentation for 3 years. same organization, the licensee does not maintained in operable condition and need to verify the transfer. are capable of performing their intended § 37.57 Reporting of events. (b) Any licensee transferring category function when needed. The equipment (a) The licensee shall immediately 2 quantities of radioactive material to a relied on to meet the security notify the LLEA after determining that licensee of the Commission or an requirements of this part must be an unauthorized entry resulted in an Agreement State, prior to conducting inspected and tested for operability and actual or attempted theft, sabotage, or such transfer, shall verify with the performance at the manufacturer’s diversion of a category 1 or category 2 NRC’s license verification system or the suggested frequency. If there is no quantity of radioactive material. As soon license issuing authority that the suggested manufacturer’s suggested as possible after initiating a response, transferee’s license authorizes the

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receipt of the type, form, and quantity (e) Each licensee that imports or provide advance notification to the NRC of radioactive material to be transferred. exports category 2 quantities of and the governor of a State, or the If the verification is conducted by radioactive material shall comply with governor’s designee, of the shipment of contacting the license issuing authority, the requirements for physical protection licensed material in a category 1 the transferor shall document the during transit contained in quantity, through or across the verification. For transfers within the §§ 37.79(a)(2), (a)(3), and (b)(2); and boundary of the State, before the same organization, the licensee does not 37.81(b), (d), (f), (g), and (h) for the transport, or delivery to a carrier for need to verify the transfer. domestic portion of the shipment. transport of the licensed material (c) In an emergency where the outside the confines of the licensee’s licensee cannot reach the license issuing § 37.75 Preplanning and coordination of facility or other place of use or storage. authority and the license verification shipment of category 1 or category 2 (a) Procedures for submitting advance quantities of radioactive material. system is nonfunctional, the licensee notification. (1) The notification must be may accept a written certification by the (a) Each licensee that plans to made to the NRC and to the office of transferee that it is authorized by license transport, or deliver to a carrier for each appropriate governor or governor’s to receive the type, form, and quantity transport, licensed material that is a designee. The contact information, of radioactive material to be transferred. category 1 quantity of radioactive including telephone and mailing The certification must include the material outside the confines of the addresses, of governors and governors’ license number, current revision licensee’s facility or other place of use designees, is available on the NRC’s number, issuing agency, expiration date, or storage shall: Web site at http://nrc-stp.ornl.gov/ and for a category 1 shipment the (1) Preplan and coordinate shipment special/designee.pdf. A list of the authorized address. The licensee shall arrival and departure times with the contact information is also available keep a copy of the certification. The receiving licensee; upon request from the Director, Division certification must be confirmed by use (2) Preplan and coordinate shipment of Intergovernmental Liaison and of the NRC’s license verification system information with the governor or the Rulemaking, Office of Federal and State or by contacting the license issuing governor’s designee of any State through Materials and Environmental authority by the end of the next which the shipment will pass to: Management Programs, U.S. Nuclear business day. (i) Discuss the State’s intention to Regulatory Commission, Washington, (d) The transferor shall keep a copy of provide law enforcement escorts; and DC 20555–0001. Notifications to the the verification documentation as a (ii) Identify safe havens; and NRC must be to the NRC’s Director, record for 3 years. (3) Document the preplanning and Division of Security Policy, Office of coordination activities. Nuclear Security and Incident § 37.73 Applicability of physical protection (b) Each licensee that plans to Response, U.S. Nuclear Regulatory of category 1 and category 2 quantities of transport, or deliver to a carrier for Commission, Washington, DC 20555– radioactive material during transit. transport, licensed material that is a 0001. The notification to the NRC may (a) For shipments of category 1 category 2 quantity of radioactive be made by email to RAMQC_ quantities of radioactive material, each material outside the confines of the SHIPMENTS@nrc.gov or by fax shipping licensee shall comply with the licensee’s facility or other place of use to 301–816–5151. requirements for physical protection or storage shall coordinate the shipment (2) A notification delivered by mail contained in §§ 37.75(a) and (e); 37.77; no-later-than arrival time and the must be postmarked at least 7 days 37.79(a)(1), (b)(1), and (c); and 37.81(a), expected shipment arrival with the before transport of the shipment (c), (e), (g) and (h). receiving licensee. The licensee shall commences at the shipping facility. (b) For shipments of category 2 document the coordination activities. (3) A notification delivered by any quantities of radioactive material, each (c) Each licensee who receives a means other than mail must reach NRC shipping licensee shall comply with the shipment of a category 2 quantity of at least 4 days before the transport of the requirements for physical protection radioactive material shall confirm shipment commences and must reach contained in §§ 37.75(b) through (e); receipt of the shipment with the the office of the governor or the 37.79(a)(2), (a)(3), (b)(2), and (c); and originator. If the shipment has not governor’s designee at least 4 days 37.81(b), (d), (f), (g), and (h). For those arrived by the no-later-than arrival time, before transport of a shipment within or shipments of category 2 quantities of the receiving licensee shall notify the through the State. radioactive material that meet the originator. (b) Information to be furnished in criteria of § 71.97(b) of this chapter, the (d) Each licensee, who transports or advance notification of shipment. Each shipping licensee shall also comply plans to transport a shipment of a advance notification of shipment of with the advance notification provisions category 2 quantity of radioactive category 1 quantities of radioactive of § 71.97 of this chapter. material, and determines that the material must contain the following (c) The shipping licensee shall be shipment will arrive after the no-later- information, if available at the time of responsible for meeting the than arrival time provided pursuant to notification: requirements of this subpart unless the paragraph (b) of this section, shall (1) The name, address, and telephone receiving licensee has agreed in writing promptly notify the receiving licensee of number of the shipper, carrier, and to arrange for the in-transit physical the new no-later-than arrival time. receiver of the category 1 radioactive protection required under this subpart. (e) The licensee shall retain a copy of material; (d) Each licensee that imports or the documentation for preplanning and (2) The license numbers of the exports category 1 quantities of coordination and any revision thereof, shipper and receiver; radioactive material shall comply with as a record for 3 years. (3) A description of the radioactive the requirements for physical protection material contained in the shipment, during transit contained in § 37.77 Advance notification of shipment including the radionuclides and §§ 37.75(a)(2) and (e); 37.77; 37.79(a)(1), of category 1 quantities of radioactive quantity; (b)(1), and (c); and 37.81(a), (c), (e), (g), material. (4) The point of origin of the shipment and (h) for the domestic portion of the As specified in paragraphs (a) and (b) and the estimated time and date that shipment. of this section, each licensee shall shipment will commence;

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(5) The estimated time and date that § 37.79 Requirements for physical (D) Responses to an actual or the shipment is expected to enter each protection of category 1 and category 2 attempted theft or diversion of a State along the route; quantities of radioactive material during shipment. shipment. (6) The estimated time and date of (vi) Each licensee who makes (a) Shipments by road. (1) Each arrangements for the shipment of arrival of the shipment at the licensee who transports, or delivers to a destination; and category 1 quantities of radioactive carrier for transport, in a single material shall ensure that drivers, (7) A point of contact, with a shipment, a category 1 quantity of accompanying personnel, and telephone number, for current shipment radioactive material shall: movement control center personnel information. (i) Ensure that movement control have access to the normal and (c) Revision notice. (1) The licensee centers are established that maintain contingency procedures. shall provide any information not position information from a remote (2) Each licensee that transports location. These control centers must previously available at the time of the category 2 quantities of radioactive monitor shipments 24 hours a day, 7 initial notification, as soon as the material shall maintain constant control days a week, and have the ability to information becomes available but not and/or surveillance during transit and communicate immediately, in an later than commencement of the have the capability for immediate emergency, with the appropriate law shipment, to the governor of the State or communication to summon appropriate enforcement agencies. response or assistance. the governor’s designee and to the (ii) Ensure that redundant (3) Each licensee who delivers to a NRC’s Director of Nuclear Security, communications are established that carrier for transport, in a single Office of Nuclear Security and Incident allow the transport to contact the escort shipment, a category 2 quantity of Response, U.S. Nuclear Regulatory vehicle (when used) and movement radioactive material shall: Commission, Washington, DC 20555– control center at all times. Redundant (i) Use carriers that have established 0001. communications may not be subject to package tracking systems. An (2) A licensee shall promptly notify the same interference factors as the established package tracking system is a the governor of the State or the primary communication. (iii) Ensure that shipments are documented, proven, and reliable governor’s designee of any changes to system routinely used to transport the information provided in accordance continuously and actively monitored by a telemetric position monitoring system objects of value. In order for a package with paragraphs (b) and (c)(1) of this tracking system to maintain constant section. The licensee shall also or an alternative tracking system reporting to a movement control center. control and/or surveillance, the package immediately notify the NRC’s Director, tracking system must allow the shipper Division of Security Policy, Office of A movement control center must provide positive confirmation of the or transporter to identify when and Nuclear Security and Incident where the package was last and when it Response, U.S. Nuclear Regulatory location, status, and control over the shipment. The movement control center should arrive at the next point of Commission, Washington, DC 20555– control. 0001 of any such changes. must be prepared to promptly implement preplanned procedures in (ii) Use carriers that maintain constant (d) Cancellation notice. Each licensee response to deviations from the control and/or surveillance during who cancels a shipment for which authorized route or a notification of transit and have the capability for advance notification has been sent shall actual, attempted, or suspicious immediate communication to summon send a cancellation notice to the activities related to the theft, loss, or appropriate response or assistance; and governor of each State or to the diversion of a shipment. These (iii) Use carriers that have established governor’s designee previously notified procedures will include, but not be tracking systems that require an and to the NRC’s Director, Division of limited to, the identification of and authorized signature prior to releasing Security Policy, Office of Nuclear contact information for the appropriate the package for delivery or return. Security and Incident Response, U.S. LLEA along the shipment route. (b) Shipments by rail. (1) Each Nuclear Regulatory Commission, (iv) Provide an individual to licensee who transports, or delivers to a Washington, DC 20555–0001. The accompany the driver for those highway carrier for transport, in a single licensee shall send the cancellation shipments with a driving time period shipment, a category 1 quantity of notice before the shipment would have greater than the maximum number of radioactive material shall: commenced or as soon thereafter as allowable hours of service in a 24-hour (i) Ensure that rail shipments are possible. The licensee shall state in the duty day as established by the monitored by a telemetric position notice that it is a cancellation and Department of Transportation Federal monitoring system or an alternative identify the advance notification that is Motor Carrier Safety Administration. tracking system reporting to the being cancelled. The accompanying individual may be licensee, third-party, or railroad communications center. The (e) Records. The licensee shall retain another driver. (v) Develop written normal and communications center shall provide a copy of the advance notification and positive confirmation of the location of any revision and cancellation notices as contingency procedures to address: (A) Notifications to the the shipment and its status. The a record for 3 years. communication center and law communications center shall implement (f) Protection of information. State enforcement agencies; preplanned procedures in response to officials, State employees, and other (B) Communication protocols. deviations from the authorized route or individuals, whether or not licensees of Communication protocols must include to a notification of actual, attempted, or the Commission or an Agreement State, a strategy for the use of authentication suspicious activities related to the theft who receive schedule information of the codes and duress codes and provisions or diversion of a shipment. These kind specified in § 37.77(b) shall protect for refueling or other stops, detours, and procedures will include, but not be that information against unauthorized locations where communication is limited to, the identification of and disclosure as specified in § 73.21 of this expected to be temporarily lost; contact information for the appropriate chapter. (C) Loss of communications; and LLEA along the shipment route.

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(ii) Ensure that periodic reports to the immediately notify the NRC’s against a recurrence of the loss or theft communications center are made at Operations Center. of licensed material. preset intervals. (c) The shipping licensee shall notify (h) Subsequent to filing the written (2) Each licensee who transports, or the designated LLEA along the shipment report, the licensee shall also report any delivers to a carrier for transport, in a route as soon as possible upon additional substantive information on single shipment, a category 2 quantity of discovery of any actual or attempted the loss or theft within 30 days after the radioactive material shall: theft or diversion of a shipment or licensee learns of such information. (i) Use carriers that have established suspicious activities related to the theft package tracking systems. An or diversion of a shipment of a category Subpart E—[Reserved] established package tracking system is a 1 quantity of radioactive material. As documented, proven, and reliable soon as possible after notifying the Subpart F—Records system routinely used to transport LLEA, the licensee shall notify the § 37.101 Form of records. objects of value. In order for a package NRC’s Operations Center (301–816– tracking system to maintain constant Each record required by this part must 5100) upon discovery of any actual or be legible throughout the retention control and/or surveillance, the package attempted theft or diversion of a tracking system must allow the shipper period specified by each Commission shipment, or any suspicious activity regulation. The record may be the or transporter to identify when and related to the shipment of category 1 where the package was last and when it original or a reproduced copy or a radioactive material. microform, provided that the copy or should arrive at the next point of (d) The shipping licensee shall notify control. microform is authenticated by the NRC’s Operations Center (301–816– authorized personnel and that the (ii) Use carriers that maintain constant 5100) as soon as possible upon control and/or surveillance during microform is capable of producing a discovery of any actual or attempted clear copy throughout the required transit and have the capability for theft or diversion of a shipment, or any immediate communication to summon retention period. The record may also be suspicious activity related to the stored in electronic media with the appropriate response or assistance; and shipment, of a category 2 quantity of (iii) Use carriers that have established capability for producing legible, radioactive material. accurate, and complete records during tracking systems that require an (e) The shipping licensee shall notify authorized signature prior to releasing the required retention period. Records the NRC’s Operations Center (301–816– such as letters, drawings, and the package for delivery or return. 5100) and the LLEA as soon as possible (c) Investigations. Each licensee who specifications, must include all upon recovery of any lost or missing makes arrangements for the shipment of pertinent information such as stamps, category 1 quantities of radioactive category 1 quantities of radioactive initials, and signatures. The licensee material. material shall immediately conduct an shall maintain adequate safeguards (f) The shipping licensee shall notify investigation upon the discovery that a against tampering with and loss of the NRC’s Operations Center (301–816– category 1 shipment is lost or missing. records. 5100) as soon as possible upon recovery Each licensee who makes arrangements of any lost or missing category 2 § 37.103 Record retention. for the shipment of category 2 quantities quantities of radioactive material. Licensees shall maintain the records of radioactive material shall (g) The initial telephonic notification that are required by the regulations in immediately conduct an investigation, required by paragraphs (a) through (d) of this part for the period specified by the in coordination with the receiving this section must be followed within a appropriate regulation. If a retention licensee, of any shipment that has not period of 30 days by a written report period is not otherwise specified, these arrived by the designated no-later-than submitted to the NRC by an appropriate records must be retained until the arrival time. method listed in § 37.7. A written report Commission terminates the facility’s § 37.81 Reporting of events. is not required for notifications on license. All records related to this part (a) The shipping licensee shall notify suspicious activities required by may be destroyed upon Commission the appropriate LLEA and the NRC’s paragraphs (c) and (d) of this section. In termination of the facility license. Operations Center (301–816–5100) addition, the licensee shall provide one Subpart G—Enforcement within 1 hour of its determination that copy of the written report addressed to a shipment of category 1 quantities of the Director, Division of Security Policy, § 37.105 Inspections. Office of Nuclear Security and Incident radioactive material is lost or missing. (a) Each licensee shall afford to the Response, U.S. Nuclear Regulatory The appropriate LLEA would be the law Commission at all reasonable times Commission, Washington, DC 20555– enforcement agency in the area of the opportunity to inspect category 1 or 0001. The report must set forth the shipment’s last confirmed location. category 2 quantities of radioactive following information: During the investigation required by material and the premises and facilities (1) A description of the licensed § 37.79(c), the shipping licensee will wherein the nuclear material is used, material involved, including kind, provide agreed upon updates to the produced, or stored. NRC’s Operations Center on the status quantity, and chemical and physical (b) Each licensee shall make available of the investigation. form; to the Commission for inspection, upon (b) The shipping licensee shall notify (2) A description of the circumstances reasonable notice, records kept by the the NRC’s Operations Center (301–816– under which the loss or theft occurred; licensee pertaining to its receipt, 5100) within 4 hours of its (3) A statement of disposition, or possession, use, acquisition, import, determination that a shipment of probable disposition, of the licensed export, or transfer of category 1 or category 2 quantities of radioactive material involved; category 2 quantities of radioactive material is lost or missing. If, after 24 (4) Actions that have been taken, or material. hours of its determination that the will be taken, to recover the material; shipment is lost or missing, the and § 37.107 Violations. radioactive material has not been (5) Procedures or measures that have (a) The Commission may obtain an located and secured, the licensee shall been, or will be, adopted to ensure injunction or other court order to

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prevent a violation of the provisions (iii) Any rule, regulation, or order under one or more of sections 161b, of— issued pursuant to the sections specified 161i, or 161o, except for the sections (1) The Atomic Energy Act of 1954, as in paragraph (b)(1)(i) of this section; listed in paragraph (b) of this section. amended; (iv) Any term, condition, or limitation (b) The regulations in this part 37 that of any license issued under the sections are not issued under sections 161b, (2) Title II of the Energy specified in paragraph (b)(1)(i) of this 161i, or 161o for the purposes of section Reorganization Act of 1974, as section. 223 are as follows: §§ 37.1, 37.3, 37.5, amended; or (2) For any violation for which a 37.7, 37.9, 37.11, 37.13, 37.107, and (3) A regulation or order issued license may be revoked under Section 37.109. pursuant to those Acts. 186 of the Atomic Energy Act of 1954, Appendix A to Part 37—Category 1 and (b) The Commission may obtain a as amended. Category 2 Radioactive Materials court order for the payment of a civil § 37.109 Criminal penalties. penalty imposed under section 234 of Table 1—Category 1 and Category 2 the Atomic Energy Act: (a) Section 223 of the Atomic Energy Act of 1954, as amended, provides for Threshold (1) For violations of— criminal sanctions for willful violation The terabecquerel (TBq) values are the (i) Sections 53, 57, 62, 63, 81, 82, 101, of, attempted violation of, or conspiracy regulatory standard. The curie (Ci) 103, 104, 107, or 109 of the Atomic to violate, any regulation issued under values specified are obtained by Energy Act of 1954, as amended: sections 161b, 161i, or 161o of the Act. converting from the TBq value. The (ii) Section 206 of the Energy For purposes of section 223, all the curie values are provided for practical Reorganization Act; regulations in this part 37 are issued usefulness only.

Category 1 Category 1 Category 2 Category 2 Radioactive material (TBq) (Ci) (TBq) (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

Note: Calculations Concerning Multiple Calculations must be performed in metric 2233, 2236, 2273, 2282); Energy Sources or Multiple Radionuclides values (i.e., TBq) and the numerator and Reorganization Act secs. 201, 202, 206 (42 The ’’sum of fractions’’ methodology for denominator values must be in the same U.S.C. 5841, 5842, 5846); Government evaluating combinations of multiple sources units. Paperwork Elimination Act sec. 1704 (44 or multiple radionuclides is to be used in U.S.C. 3504 note). R1 = total activity for radionuclide 1 determining whether a location meets or R2 = total activity for radionuclide 2 exceeds the threshold and is thus subject to ■ 19. In § 39.1, paragraph (a) is revised RN = total activity for radionuclide n the requirements of this part. to read as follows: AR1 = activity threshold for I. If multiple sources of the same radionuclide 1 § 39.1 Purpose and scope. radionuclide and/or multiple radionuclides AR = activity threshold for are aggregated at a location, the sum of the 2 (a) This part prescribes requirements radionuclide 2 ratios of the total activity of each of the for the issuance of a license authorizing radionuclides must be determined to verify ARN = activity threshold for radionuclide n the use of licensed materials including whether the activity at the location is less sealed sources, radioactive tracers, than the category 1 or category 2 thresholds radioactive markers, and uranium sinker of Table 1, as appropriate. If the calculated sum of the ratios, using the equation below, bars in well logging in a single well. is greater than or equal to 1.0, then the This part also prescribes radiation safety applicable requirements of this part apply. requirements for persons using licensed II. First determine the total activity for each PART 39—LICENSES AND RADIATION materials in these operations. The radionuclide from Table 1. This is done by SAFETY REQUIREMENTS FOR WELL provisions and requirements of this part adding the activity of each individual source, LOGGING are in addition to, and not in material in any device, and any loose or bulk substitution for, other requirements of material that contains the radionuclide. Then ■ this chapter. In particular, the use the equation below to calculate the sum 18. The authority citation for part 39 continues to read as follows: provisions of parts 19, 20, 21, 30, 37, 40, of the ratios by inserting the total activity of 70, 71, and 150 of this chapter apply to the applicable radionuclides from Table 1 in Authority: Atomic Energy Act secs. 53, 57, applicants and licensees subject to this the numerator of the equation and the 62, 63, 65, 69, 81, 82, 161, 181, 182, 183, 186, corresponding threshold activity from Table 223, 234 (42 U.S.C. 2073, 2077, 2092, 2093, part. 1 in the denominator of the equation. 2095, 2099, 2111, 2112, 2201, 2231, 2232, * * * * *

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PART 51—ENVIRONMENTAL than irradiated fuel, meeting the The U.S. Nuclear Regulatory Commission PROTECTION REGULATIONS FOR following three conditions: (NRC) has established standards for determining which NRC licensees qualify as DOMESTIC LICENSING AND RELATED * * * * * REGULATORY FUNCTIONS small entities (10 CFR 2.810). These size PART 73—PHYSICAL PROTECTION OF standards were based on the Small Business ■ 20. The authority citation for part 51 Administration’s most common receipts- PLANTS AND MATERIALS based size standards and include a size continues to read as follows: standard for business concerns that are ■ 24. The authority citation for part 73 Authority: Atomic Energy Act sec. 161, manufacturing entities. 1701 (42 U.S.C. 2201, 2297f); Energy continues to read as follows: Description of the Reasons That Action by Reorganization Act secs. 201, 202, 211 (42 Authority: Atomic Energy Act secs. 53, the Agency Is Being Considered U.S.C. 5841, 5842, 5851); Government 147, 161, 223, 234, 1701 (42 U.S.C. 2073, Paperwork Elimination Act sec. 1704 (44 2167, 2169, 2201, 2273, 2282, 2297(f), The NRC has long participated in efforts to U.S.C. 3504 note). Subpart A also issued 2210(e)); Energy Reorganization Act sec. 201, address radioactive source protection and under National Environmental Policy Act 204 (42 U.S.C. 5841, 5844); Government security. The terrorist attacks of September secs. 102, 104, 105 (42 U.S.C. 4332, 4334, Paperwork Elimination Act sec. 1704, 112 11, 2001, heightened concerns about the use 4335); Pub. L. 95–604, Title II, 92 Stat. 3033 Stat. 2750 (44 U.S.C. 3504 note); Energy of risk-significant radioactive materials in a 3041; Atomic Energy Act sec. 193 (42 U.S.C. Policy Act of 2005, Pub. L. 109–58, 119 Stat. malevolent act. Such an attack is of particular 2243). Sections 51.20, 51.30, 51.60, 51.80. 594 (2005). concern because of the widespread use of and 51.97 also issued under Nuclear Waste Section 73.1 also issued under Nuclear radioactive materials in the United States by Policy Act secs. 135, 141, 148 (42 U.S.C. Waste Policy Act secs. 135, 141 (42 U.S.C, industrial, medical, and academic 10155, 10161, 10168). Section 51.22 also 10155, 10161). Section 73.37(f) also issued institutions. The theft or diversion of risk- issued under Atomic Energy Act sec. 274 (42 under sec. 301, Pub. L. 96–295, 94 Stat. 789 significant radioactive materials could lead to U.S.C. 2021) and under Nuclear Waste Policy (42 U.S.C. 5841 note). their unauthorized use in a radiological Act sec. 121 (42 U.S.C. 10141). Sections dispersal device or a radiological exposure 51.43, 51.67, and 51.109 also issued under ■ 25. A new § 73.35 is added to read as device. Nuclear Waste Policy Act sec. 114(f) (42 follows: Commission regulations provide U.S.C. 10134(f)). requirements for the safe use, transport, and ■ 21. In § 51.22, the introductory text of § 73.35 Requirements for physical control of licensed material. A licensee’s loss protection of irradiated reactor fuel (100 paragraph (c)(3) is revised to read as of control of risk-significant radioactive grams or less) in transit. material, whether it is inadvertent or through follows: Each licensee who transports, or a deliberate act, could result in significant § 51.22 Criterion for categorical exclusion; delivers to a carrier for transport, in a adverse impacts that could reasonably identification of licensing and regulatory single shipment, a quantity of irradiated constitute a threat to the public health and actions eligible for categorical exclusion or reactor fuel weighing 100 grams (0.22 safety or the common defense and security of the United States. After the attacks of otherwise not requiring environmental pounds) or less in net weight of review. September 11, 2001, the Commission irradiated fuel, exclusive of cladding or determined that certain licensed material * * * * * other structural or packaging material, should be subject to enhanced security (c) * * * which has a total external radiation dose provisions and safeguarded during transport, (3) Amendments to parts 20, 30, 31, rate in excess of 1 Gray (100 rad) per and that individuals with unescorted access 32, 33, 34, 35, 37, 39, 40, 50, 51, 52, 54, hour at a distance of 1 meter (3.3 feet) to risk-significant radioactive material should 60, 61, 63, 70, 71, 72, 73, 74, 81, and 100 from any accessible surface without be subject to background investigations. For of this chapter which relate to— intervening shielding, shall follow the additional information see the Discussion * * * * * physical protection requirements for portion of the Statements of Consideration (SOC). category 1 quantities of radioactive PART 71—PACKAGING AND material in subpart D of part 37 of this Succinct Statement of the Objectives of, and TRANSPORTATION OF RADIOACTIVE chapter. Legal Basis for, the Final Rule MATERIAL Dated at Rockville, Maryland, this 8th day The objective of this rule is to establish generically applicable security requirements ■ of March, 2013. 22. The authority citation for part 71 for the protection of category 1 and category For the Nuclear Regulatory Commission. continues to read as follows: 2 quantities of radioactive materials Annette Vietti-Cook, Authority: Atomic Energy Act secs. 53, 57, possessed by certain NRC and Agreement 62, 63, 81, 161, 182, 183, 223, 234, 1701 (42 Secretary of the Commission. State licensees. These security requirements U.S.C. 2073, 2077, 2092, 2093, 2111, 2201, are similar to the requirements imposed on Note: This Appendix Will Not Appear in these licensees through the NRC’s applicable 2232, 2233, 2273, 2282, 2297f); Energy the Code of Federal Regulations. Reorganization Act secs. 201, 202, 206, 211 previously-issued security orders. The NRC has determined that it is preferable to (42 U.S.C. 5841, 5842, 5846, 5851); Nuclear APPENDIX A TO THIS FINAL RULE— Waste Policy Act sec. 180 (42 U.S.C. 10175); regulate through rulemaking rather than Government Paperwork Elimination Act sec. REGULATORY FLEXIBILITY order because notice and comment 1704 (44 U.S.C. 3504 note); Energy Policy Act ANALYSIS FOR THE AMENDMENTS rulemaking is an open and transparent of 2005, Pub. L. No. 109–58, 119 Stat. 594 TO 10 CFR PARTS 20, 30, 32, 33, 34, process that facilitates public participation. (2005). Section 71.97 also issued under sec. 35, 36, 37, 39, 51, 71, AND 73 In developing the final rule, the NRC 301, Pub. L. 96–295, 94 Stat. 789 790. (PHYSICAL PROTECTION OF considered, among other things, the various ■ 23. In § 71.97, the introductory text of BYPRODUCT MATERIAL) orders, lessons-learned during implementation, the recommendations from paragraph (b) is revised to read as I. Background the Independent Review Panel and the follows: The Regulatory Flexibility Act (RFA), as Materials Working Group, and stakeholder § 71.97 Advance notification of shipment amended 5 U.S.C. 601 et seq., requires that comments. The rule also considered a of irradiated reactor fuel and nuclear waste. agencies consider the impact of their petition for rulemaking submitted by the rulemakings on small entities and, consistent State of Washington. For additional * * * * * with applicable statutes, consider information see the Discussion portion of the (b) Advance notification is also alternatives to minimize these impacts on the SOC. The authority citation sections of the required under this section for the businesses, organizations, and government final rule contain the statutory authority for shipment of licensed material, other jurisdictions to which they apply. the rule.

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Description of and, Where Feasible, an investigation records, training records, and would be relieved from the fingerprinting Estimate of the Number of Small Entities to documentation that certain activities have and FBI criminal history records check Which the Final Rule Will Apply occurred. For additional information on the element of the final rule as long as the The final rule would affect about 300 NRC requirements, see the SOC or the final rule licensee has appropriate documentation. Any licensees and about 1,100 Agreement State text. No special skills are necessary for the individual who has an active Federal security licensees. This includes a wide range of preparation of reports or records. clearance would also be relieved assuming licensees, including pool-type irradiator On average, a licensee would have a one- appropriate documentation is provided. licensees; manufacturer and distributor time cost of approximately $23,375 and an The Department of Transportation requires annual cost of approximately $21,736 to fully licensees; medical facilities with gamma security plans for the transport of highway implement the final rule. Much of this cost knife devices; self-shielded irradiator route control quantities of radioactive would result from the requirements to have licensees (including blood irradiators); procedures, conduct training, and to develop material in accordance with 49 CFR 172.800. teletherapy unit licensees; radiographers; a security plan. Although not required by the This provision covers only a small portion of well loggers; broad scope users; radioisotope various orders, many licensees may have the category 1 and category 2 quantities of thermoelectric generator licensees; and developed procedures and conducted radioactive material covered by the rule. licensees that ship or prepare for shipment training that may require only minor The NRC is not aware of any other relevant category 1 or category 2 quantities of revisions; if so, the actual cost may be lower. Federal rules that may duplicate, overlap, or radioactive material. Some of these licensees Additional large costs are the annual program conflict with the final rule. would be considered small entities. In fiscal review and the maintenance and testing of Description of any significant alternatives year 2008, about 26 percent of materials the security-related equipment. The program to the final rule that accomplish the stated licensees qualified as small entities. Using review is important for licensees to review objectives of applicable statutes and that the same percentage, approximately 364 of the effectiveness of the program and to minimize any significant economic impact of the licensees that will be affected by the rule ensure that requirements are being would be considered small entities. the final rule on small entities, including implemented. Maintenance and testing is alternatives considered, such as: (1) Description of the Projected Reporting, essential to ensure that the equipment is Establishment of differing compliance or Recordkeeping, and Other Compliance operational and available when needed. More reporting requirements or timetables that Requirements of the Final Rule, Including an information on the cost of the rule is take into account the resources available to contained in the Regulatory Analysis. Estimate of the Classes of Small Entities That small entities; (2) clarification, consolidation, Will Be Subject to the Requirements, and the Identification, to the Extent Practicable, of or simplification of compliance and reporting Type of Professional Skills Necessary for All Relevant Federal Rules That May requirements under the rule for small Preparation of Reports and Records Duplicate, Overlap, or Conflict With the Final entities; (3) use of performance rather than Licensees will be required to: (1) Develop Rule design standards; and (4) any exemption procedures for implementation of the Several U.S. Government programs involve from coverage of the rule, or any part thereof, security provisions; (2) develop a security fingerprinting and an FBI identification and for such small entities. plan that describes how security is being criminal history records check. These As noted earlier, some of the licensees that implemented; (3) conduct training on the include the National Agency Check; would be impacted by the final rule are small procedures and security plan; (4) conduct Transportation Worker Identification businesses. The rule would impose the background investigations for those Credentials in accordance with 49 CFR 1572; minimum requirements that the NRC individuals permitted access to category 1 or Bureau of Alcohol, Tobacco, Firearms, and believes are necessary to adequately protect category 2 quantities of radioactive material; Explosives background check and clearances the public health and safety and the common (5) coordinate with local law enforcement in accordance with 27 CFR 555; Health and defense and security. Therefore, the NRC agencies (LLEAs) so the LLEAs would be Human Services security risk assessments for could not generically grant relief to small better prepared to respond in an emergency; possession and use of select agents and entities to allow them to implement less (6) conduct preplanning and coordination toxins in accordance with 42 CFR 73; effective measures. The final rule provides activities before shipping radioactive Hazardous Material security threat some flexibility in the particular measures material; and (7) implement security assessment for hazardous material that a licensee can choose to employ. measures for the protection of the radioactive endorsement to commercial drivers license in Licensees affected by the rule have already material. Licensees will be required to accordance with 49 CFR 1572; and Customs implemented the bulk of the rule’s promptly report any attempted or actual theft and Border Protection’s Free and Secure requirements in response to various orders. or diversion of the radioactive material. Trade Program. Any individual that has Licensees will be required to keep copies of favorably undergone the background [FR Doc. 2013–05895 Filed 3–18–13; 8:45 am] the security plan, procedures, background investigation required by these programs BILLING CODE 7590–01–P

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