[Federal Register Volume 73, Number 169 (Friday, August 29, 2008)]
[Notices]
[Pages 51016-51023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20119]
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NUCLEAR REGULATORY COMMISSION
[EA-08-225]
In the Matter of Certain Licensees Authorized To Possess and
Transfer Items Containing Radioactive Material Quantities of Concern;
Order Imposing Additional Security Measures (Effective Immediately)
I
The Licensees identified in Attachment A \1\ to this Order, hold
licenses issued by the U.S. Nuclear Regulatory Commission (NRC or
Commission) or an Agreement State, in accordance with the Atomic Energy
Act of 1954, as amended, and 10 CFR Parts 30, 32, 70 and 71, or
equivalent Agreement State regulations. The licenses authorize them to
possess and transfer items containing radioactive material quantities
of concern. This Order is being issued to all such Licensees who may
transport radioactive material quantities of concern under the NRC's
authority to protect the common defense and security, which has not
been relinquished to the Agreement States. The Orders require
compliance with specific additional security measures to enhance the
security for transport of certain radioactive material quantities of
concern.
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\1\ Attachment A contains sensitive information and will not be
released to the public.
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II
On September 11, 2001, terrorists simultaneously attacked targets
in New York, NY, and Washington, DC, utilizing large commercial
aircraft as weapons. In response to the attacks and intelligence
information subsequently obtained, the Commission issued a number of
Safeguards and Threat Advisories to Licensees in order to strengthen
Licensees' capabilities and readiness to respond to a potential attack
on this regulated activity. The Commission has also communicated with
other Federal, State and local government agencies and industry
representatives to discuss and evaluate the current threat environment
in order to assess the adequacy of the current security measures. In
addition, the Commission commenced a comprehensive review of its
safeguards and security programs and requirements.
As a result of its initial consideration of current safeguards and
security requirements, as well as a review of information provided by
the intelligence community, the Commission has
[[Page 51017]]
determined that certain security measures are required to be
implemented by Licensees as prudent, interim measures to address the
current threat environment in a consistent manner. Therefore, the
Commission is imposing requirements, as set forth in Attachment B \2\
of this Order, on all Licensees identified in Attachment A of this
Order. These additional security measures, which supplement existing
regulatory requirements, will provide the Commission with reasonable
assurance that the common defense and security continue to be
adequately protected in the current threat environment. Attachment C of
this Order contains the requirements for fingerprinting and criminal
history record checks for individuals when licensee's reviewing
official is determining access to Safeguards Information or unescorted
access to the radioactive materials. These requirements will remain in
effect until the Commission determines otherwise.
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\2\ Attachment B contains some requirements that are SAFEGUARDS
INFORMATION, and cannot be released to the public. The remainder of
the requirements contained in Attachment B that are not SAFEGUARDS
INFORMATION will be released to the public.
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It is also recognized that some measures may not be possible or
necessary for all shipments of radioactive material quantities of
concern, or may need to be tailored to accommodate the Licensees'
specific circumstances to achieve the intended objectives and avoid any
unforeseen effect on the safe transport of radioactive material
quantities of concern.
In light of the continuing threat environment, the Commission
concludes that the security measures must be embodied in an Order,
consistent with the established regulatory framework. The Commission
has determined that some of the security measures contained in
Attachment B of this Order contain Safeguards Information and will not
be released to the public as per NRC's ``Order Imposing Requirements
for the Protection of Certain Safeguards Information'' (EA-08-161),
issued specifically to the Licensees identified in Attachment A to this
Order. Access to Safeguards Information is limited to those persons who
have established a need-to-know the information, are considered to be
trustworthy and reliable, have been fingerprinted and undergone a
Federal Bureau of Investigation (FBI) identification and criminal
history records check in accordance with the NRC's ``Order Imposing
Fingerprinting and Criminal History Records Check Requirements for
Access to Safeguards Information'' (EA-08-162). A need-to-know means a
determination by a person having responsibility for protecting
Safeguards Information that a proposed recipient's access to Safeguards
Information is necessary in the performance of official, contractual,
or licensee duties of employment. Individuals who have been
fingerprinted and granted access to Safeguards Information by the
reviewing official under the NRC's ``Order Imposing Fingerprinting and
Criminal History Records Check Requirements for Access to Safeguards
Information'' (EA-08-162) do not need to be fingerprinted again for
purposes of being considered for unescorted access.
This Order also requires that a reviewing official must consider
the results of the Federal Bureau of Investigations criminal history
records check in conjunction with other applicable requirements to
determine whether an individual may be granted or allowed continued
unescorted access. The reviewing official may be one that has
previously been approved by NRC in accordance with the ``Order Imposing
Fingerprinting and Criminal History Records Check Requirements for
Access to Safeguards Information'' (EA-08-162). Licensees may nominate
additional reviewing officials for making unescorted access
determinations in accordance with NRC Orders EA-08-162. The nominated
reviewing officials must have access to Safeguards Information or
require unescorted access to the radioactive material as part of their
job duties.
To provide assurance that Licensees are implementing prudent
measures to achieve a consistent level of protection to address the
current threat environment, all Licensees identified in Attachment A to
this Order shall implement the requirements identified in Attachments B
and C to this Order. In addition, pursuant to 10 CFR 2.202, I find that
in light of the common defense and security matters identified above,
which warrant the issuance of this Order, the public health and safety
require that this Order be immediately effective.
III
Accordingly, pursuant to Sections 53, 63, 81, 147, 149, 161b, 161i,
161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the
Commission's regulations in 10 CFR 2.202 and 10 CFR Parts 30, 32, 70
and 71, It is hereby ordered, effective immediately, that all licensees
identified in attachment a to this order shall comply with the
following:
A. All Licensees shall, notwithstanding the provisions of any
Commission or Agreement State regulation or license to the contrary,
comply with the requirements described in Attachments B and C to this
Order. The Licensees shall immediately start implementation of the
requirements in Attachments B and C to the Order and shall complete
implementation by February 17, 2009, or before the first shipment of
radioactive material quantities of concern, whichever is sooner.
B. 1. All Licensees shall, within twenty (20) days of the date of
this Order, notify the Commission, (1) if they are unable to comply
with any of the requirements described in Attachments B or C, (2) if
compliance with any of the requirements is unnecessary in their
specific circumstances, or (3) if implementation of any of the
requirements would cause the Licensee to be in violation of the
provisions of any Commission or Agreement State regulation or its
license. The notification shall provide the Licensees' justification
for seeking relief from or variation of any specific requirement.
2. Any Licensee that considers that implementation of any of the
requirements described in Attachments B or C to this Order would
adversely impact the safe transport of radioactive material quantities
of concern must notify the Commission, within twenty (20) days of this
Order, of the adverse safety impact, the basis for its determination
that the requirement has an adverse safety impact, and either a
proposal for achieving the same objectives specified in the Attachments
B or requirement in question, or a schedule for modifying the activity
to address the adverse safety condition. If neither approach is
appropriate, the Licensee must supplement its response to Condition B.1
of this Order to identify the condition as a requirement with which it
cannot comply, with attendant justifications as required in Condition
B.1.
C. 1. In accordance with the NRC's ``Order Imposing Fingerprinting
and Criminal History Records Check Requirements for Access to
Safeguards Information'' (EA-08-162) only the NRC-approved reviewing
official shall review results from an FBI criminal history records
check. The licensee may use a reviewing official previously approved by
the NRC as its reviewing official for determining access to Safeguards
Information or the licensee may nominate another individual
specifically for making unescorted access to radioactive material
determinations, using the process
[[Page 51018]]
described in EA-08-162. The reviewing official must have access to
Safeguards Information or require unescorted access to the radioactive
material as part of their job duties. The reviewing official shall
determine whether an individual may have, or continue to have,
unescorted access to radioactive materials that equal or exceed the
quantities in Attachment B to this Order. Fingerprinting and the FBI
identification and criminal history records check are not required for
individuals exempted from fingerprinting requirements under 10 CFR
73.61 [72 FR 4945 (February 2, 2007)]. In addition, individuals who
have a favorably decided U.S. Government criminal history records check
within the last five (5) years, or have an active federal security
clearance (provided in each case that the appropriate documentation is
made available to the Licensee's reviewing official), have satisfied
the Atomic Energy Act of 1954, as amended, fingerprinting requirement
and need not be fingerprinted again for purposes of being considered
for unescorted access.
2. No person may have access to Safeguards Information or
unescorted access to radioactive materials if the NRC has determined,
in accordance with its administrative review process based on
fingerprinting and an FBI identification and criminal history records
check, either that the person may not have access to Safeguards
Information or that the person may not have unescorted access to a
utilization facility, or radioactive material or other property subject
to regulation by the NRC.
D. Fingerprints shall be submitted and reviewed in accordance with
the procedures described in Attachment C to this Order. Individuals who
have been fingerprinted and granted access to Safeguards Information by
the reviewing official under Order EA-08-162, do not need to be
fingerprinted again for purposes of being considered for unescorted
access.
E. The Licensee may allow any individual who currently has
unescorted access to radioactive materials, in accordance with this
Order, to continue to have unescorted access without being
fingerprinted, pending a decision by the reviewing official (based on
fingerprinting, an FBI criminal history records check and a trustworthy
and reliability determination) that the individual may continue to have
unescorted access to radioactive materials that equal or exceed the
quantities listed in Attachment B to this Order. The licensee shall
complete implementation of the requirements of Attachments B and C to
this Order by February 17, 2009.
F. 1. The Licensee shall, within twenty (20) days of the date of
this Order, submit to the Commission a schedule for completion of each
requirement described in Attachments B and C.
2. The Licensee shall report to the Commission when they have
achieved full compliance with the requirements described in Attachments
B and C.
G. Notwithstanding any provisions of the Commission's or an
Agreement State's regulations to the contrary, all measures implemented
or actions taken in response to this Order shall be maintained until
the Commission determines otherwise.
Licensee responses to Conditions B.1, B.2, F.1, and F.2 above shall
be submitted to the Director, Office of Federal and State Materials and
Environmental Management Programs, U.S. Nuclear Regulatory Commission,
Washington, DC 20555. In addition, Licensee submittals that contain
specific physical protection or security information considered to be
Safeguards Information shall be put in a separate enclosure or
attachment and, marked as ``SAFEGUARDS INFORMATION--MODIFIED HANDLING''
and mailed (no electronic transmittals i.e., no e-mail or FAX) to the
NRC.
The Director, Office of Federal and State Materials and
Environmental Management Programs, may, in writing, relax or rescind
any of the above conditions upon demonstration by the Licensee of good
cause.
IV
In accordance with 10 CFR 2.202, the Licensee must, and any other
person adversely affected by this Order may, submit an answer to this
Order within twenty (20) days of the date of this Order. In addition,
the Licensee and any other person adversely affected by this Order may
request a hearing of this Order within twenty (20) days of the date of
the Order. Where good cause is shown, consideration will be given to
extending the time to request a hearing. A request for extension of
time must be made, in writing, to the Director, Office of Federal and
State Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, and include a statement of
good cause for the extension.
The answer may consent to this Order. If the answer includes a
request for a hearing, it shall, under oath or affirmation,
specifically set forth the matters of fact and law on which the
Licensee relies and the reasons as to why the Order should not have
been issued. If a person other than the Licensee requests a hearing,
that person shall set forth with particularity the manner in which his
interest is adversely affected by this Order and shall address the
criteria set forth in 10 CFR 2.309(d).
All documents filed in NRC adjudicatory proceedings, including a
request for hearing, a petition for leave to intervene, any motion or
other document filed in the proceeding prior to the submission of a
request for hearing or petition to intervene, and documents filed by
interested governmental entities participating under 10 CFR 2.315(c),
must be filed in accordance with the NRC E-Filing rule, which the NRC
promulgated in August 2007, 72 FR 49139 (Aug. 28, 2007) and codified in
pertinent part at 10 CFR Part 2, Subpart B. The E-Filing process
requires participants to submit and serve all adjudicatory documents
over the Internet, or in some cases to mail copies on electronic
storage media. Participants may not submit paper copies of their
filings unless they seek a waiver in accordance with the procedures
described below.
To comply with the procedural requirements associated with E-
Filing, at least ten (10) days prior to the filing deadline the
requestor must contact the Office of the Secretary by e-mail at
[email protected], or by calling (301) 415-1677, to request (1) a
digital ID certificate, which allows the participant (or its counsel or
representative) to digitally sign documents and access the E-Submittal
server for any NRC proceeding in which it is participating; and/or (2)
creation of an electronic docket for the proceeding (even in instances
when the requestor (or its counsel or representative) already holds an
NRC-issued digital ID certificate). Each requestor will need to
download the Workplace Forms ViewerTM to access the
Electronic Information Exchange (EIE), a component of the E-Filing
system. The Workplace Forms ViewerTM is free and is
available at http://www.nrc.gov/site-help/e-submittals/install-viewer.html. Information about applying for a digital ID certificate
also is available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
Once a requestor has obtained a digital ID certificate, had a
docket created, and downloaded the EIE viewer, it can then submit a
request for a hearing through EIE. Submissions should be in Portable
Document Format (PDF) in accordance with NRC guidance
[[Page 51019]]
available on the NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the time the filer
submits its document through EIE. To be timely, electronic filings must
be submitted to the EIE system no later than 11:59 p.m. Eastern Time on
the due date. Upon receipt of a transmission, the E-Filing system time-
stamps the document and sends the submitter an e-mail notice confirming
receipt of the document. The EIE system also distributes an e-mail
notice that provides access to the document to the NRC Office of the
General Counsel and any others who have advised the Office of the
Secretary that they wish to participate in the proceeding, so that the
filer need not serve the document on those participants separately.
Therefore, any others who wish to participate in the proceeding (or
their counsel or representative) must apply for and receive a digital
ID certificate before a hearing request is filed so that they may
obtain access to the document via the E-Filing system.
A person filing electronically may seek assistance through the
``Contact Us'' link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical help line,
which is available between 8:30 a.m. and 4:15 p.m., Eastern Time,
Monday through Friday. The help line number is (800) 397-4209 or
locally, (301) 415-4737.
Participants who believe that they have good cause for not
submitting documents electronically must file a motion, in accordance
with 10 CFR 2.302(g), with their initial paper filing requesting
authorization to continue to submit documents in paper format. Such
filings must be submitted by (1) first class mail addressed to the
Office of the Secretary of the Commission, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Rulemaking and
Adjudications Staff; or (2) courier, express mail, or expedited
delivery service to the Office of the Secretary, Sixteenth Floor, One
White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852,
Attention: Rulemaking and Adjudications Staff. Participants filing a
document in this manner are responsible for serving the document on all
other participants. Filing is considered complete by first-class mail
as of the time of deposit in the mail, or by courier, express mail, or
expedited delivery service upon depositing the document with the
provider of the service.
Documents submitted in adjudicatory proceedings will appear in
NRC's electronic hearing docket which is available to the public at
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant
to an order of the Commission, an Atomic Safety and Licensing Board, or
a Presiding Officer. Participants are requested not to include personal
privacy information, such as Social Security numbers, home addresses,
or home phone numbers in their filings. With respect to copyrighted
works, except for limited excerpts that serve the purpose of the
adjudicatory filings and would constitute a Fair Use application,
Participants are requested not to include copyrighted materials in
their works.
If a hearing is requested by the Licensee or a person whose
interest is adversely affected, the Commission will issue an Order
designating the time and place of any hearing. If a hearing is held the
issue to be considered at such hearing shall be whether this Order
should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee may, in addition to
requesting a hearing, at the time the answer is filed or sooner, move
the presiding officer to set aside the immediate effectiveness of the
Order on the ground that the Order, including the need for immediate
effectiveness, is not based on adequate evidence but on mere suspicion,
unfounded allegations, or error.
In the absence of any request for hearing, or written approval of
an extension of time in which to request a hearing, the provisions
specified in Section III above shall be final twenty (20) days from the
date of this Order without further order or proceedings. If an
extension of time for requesting a hearing has been approved, the
provisions specified in Section III shall be final when the extension
expires if a hearing request has not been received. An answer or a
request for hearing shall not stay the immediate effectiveness of this
Order.
Dated this 21st day of August 2008.
For the Nuclear Regulatory Commission.
George Pangburn,
Acting Director, Office of Federal and State Materials and
Environmental Management Programs.
Attachment A: List of Licensees--Redacted
Attachment B: Additional Security Measures for Transportation of
Radioactive Material Quantities of Concern--Revision 2
A. General Basis Criteria
These Additional Security Measures (ASMs) are established to
delineate licensee responsibility in response to the current threat
environment. The following security measures apply to Nuclear
Regulatory Commission (NRC) and Agreement States licensees, who ship
Radioactive Material Quantities of Concern (RAMQC) as defined in
Section A.1. Shipments of RAMQC that do not fall within the NRC's
jurisdiction under the Atomic Energy Act of 1954, as amended, are
not subject to the provisions of these ASMs.
1. Licensees who are subject to this Order shall ensure that the
requirements listed in Section B below are in effect when they ship
radioactive materials that meet the following criterion:
a. Radionuclides listed in Table A, greater than or equal to the
quantities specified,
b. For mixtures of radionuclides listed in Table A, the sum of
the fractions of those radionuclides if greater than or equal to 1,
or
c. For shipments of spent nuclear fuel containing greater than
or equal to 1000 Terabecquerels (TBq) (27,000 Curies) but less than
or equal to 100 grams of spent nuclear fuel.
For shipments containing greater than 100 grams of spent nuclear
fuel, licensees shall follow the ASMs for ``Transportation of Spent
Nuclear Fuel Greater than 100 Grams,'' dated October 3, 2002.
These ASMs supersede Safeguards Advisories SA-01-01, Rev. 1, and
SA-03-02. For radioactive materials shipments containing
radionuclides not addressed by this ASM guidance will be provided by
Safeguards Advisory.
2. The requirements of these ASMs apply to a conveyance (i.e.,
the requirements apply irrespective of whether the RAMQC is shipped
in a single package or in multiple packages in a single conveyance).
3. Licensees are not responsible for complying with the
requirements of these ASMs if a carrier aggregates, during transport
or storage incident to transport, radioactive material from two or
more conveyances from separate licensees which individually do not
exceed the limits of Paragraph A.1. but which together meet or
exceed any of the criteria in Paragraph A.1.
4. The requirements of these ASMs only apply to RAMQC shipments
using highway or rail modes of transportation. For multi-mode
shipments, the requirements of these ASMs apply only to the portion
of shipments that are made using highway or rail modes of
transportation, as appropriate.
5. For domestic highway and rail shipments of materials in
quantities greater than or equal to the quantities in Paragraph A.1,
per conveyance, the licensee shall ensure that:
a. Only carriers are used which:
a. Use established package tracking systems,
b. Implement methods to assure trustworthiness and reliability
of personnel associated with the transportation of RAMQC,
c. Maintain constant control and/or surveillance during transit,
and
d. Have the capability for immediate communication to summon
appropriate response or assistance.
b. The licensee shall verify and document that the carrier
employs the measures listed above.
6. The preplanning, coordination, and tracking requirements of
these ASMs are intended to reduce unnecessary delays and shipment
duration and to facilitate the
[[Page 51020]]
transfer of the RAMQC shipment and any escorts at State borders.
7. Unless specifically noted otherwise, the requirements of
these ASMs do not apply to local law enforcement agencies (LLEA)
personnel performing escort duties.
8. The requirements of these ASMs apply to RAMQC domestic
shipments within the United States (U.S.), imports into the U.S., or
exports from the U.S. The requirements of these ASMs do not apply to
transshipments through the U.S. Licensees are responsible for
complying with the requirements of Section B for the highway and
rail shipment portion of an import or export which occurs inside of
the U.S.
For import and export RAMQC shipments, while located at the port
or shipments on U.S. navigable waterways, the U.S. Coast Guard
Maritime Transportation security regulations will be in effect and
these ASMs are not applicable. For RAMQC shipments while located at
the air freight terminal, security requirements will be performed in
accordance with the Transportation Security Administration security
regulations.
For import and export RAMQC shipments, the licensee shall ensure
that the requirements of these ASMs are implemented after the
transportation package has been loaded onto the highway or rail
vehicle (except for the advance notification requirements in section
B.4) and the package begins the domestic portion of the shipment to
or from the U.S. port of entry [i.e., the package(s) departs for or
from the port of entry facility or the airfreight terminal].
B. Specific Requirements
Licensees who ship RAMQC in quantities that meet the criteria of
Paragraph A.1. shall ensure that carriers used have developed and
implemented transportation security plans that embody the additional
security measures imposed by this Order.
1. Licensee Verification
Before transfer of radioactive materials in quantities which
meet the criterion of Paragraph A.1, per conveyance, the licensee
shall:
a. For new recipient(s), verify that the intended recipient's
license authorizes receipt of the regulated material by direct
contact with the regulatory authority that issued the license (NRC
Region or Agreement State) prior to transferring the material,
b. Verify the validity of unusual orders or changes (if
applicable) that depart from historical patterns of ordering by
existing recipients,
c. Verify the material is shipped to an address authorized in
the license and that the address is valid,
d. Verify the address for a delivery to a temporary job site is
valid,
e. Document the verification and validation process, and
f. Coordinate departure and arrival times with the recipient.
2. Background Investigations
a. Background investigations are intended to provide high
assurance that individuals performing assigned duties associated
with the transport of RAMQC, are trustworthy and reliable, and do
not constitute an unreasonable risk to the common defense and
security, including the potential to commit radiological sabotage.
b. For highway shipments only, the licensee shall ensure
background investigations for all drivers, accompanying individuals,
communications center managers, and other appropriate communications
center personnel have been performed. The NRC only has the authority
to impose a Federal Bureau of Investigation (FBI) criminal history
check, which includes fingerprinting, on those individuals who seek
access to Safeguards Information (SGI) or unescorted access to
licensed material.
c. For rail shipments, the licensee shall ensure background
investigations for employees filling the positions of communications
center managers and other appropriate communications center
personnel have been performed. The NRC only has the authority to
impose a Federal Bureau of Investigation (FBI) criminal history
check, which includes fingerprinting, on those individuals who seek
access to SGI or unescorted access to licensed material.
d. Licensees shall document the basis for concluding that there
is high assurance that individuals granted access to safeguards
information or unescorted access to licensed material are
trustworthy and reliable, and do not constitute an unreasonable risk
for malevolent use of the regulated material. ``Access'' means that
an individual could exercise some physical control over the material
or device containing radioactive material.
(1) The trustworthiness, reliability, and verification of an
individual's true identity shall be determined based on a background
investigation. The background investigation shall address at least
the past three (3) years, and as a minimum, include fingerprinting
and an FBI criminal history check, verification of employment
history, education, employment eligibility, and personal references.
If an individual's employment has been less than the required three
(3) years period, educational references may be used in lieu of
employment history.
(2) Fingerprints shall be submitted and reviewed in accordance
with the procedures described in Attachment C to this Order.
(3) A reviewing official that the licensee nominated and has
been approved by the NRC, in accordance with NRC ``Order Imposing
Fingerprinting and Criminal History Records Check Requirements for
Access to Safeguards Information,'' may continue to make
trustworthiness and reliability determinations. The licensee may
also nominate another individual specifically for making unescorted
access determinations using the process identified in the NRC
``Order Imposing Fingerprinting and Criminal History Records Check
Requirements for Access to Safeguards Information.''
e. Licensees background investigation requirements may also be
satisfied for an individual that has:
(1) Current access authorization permitting unescorted access to
a power reactor facility or access to Safeguards Information,
(2) Current U.S. government-issued security clearance (based
upon a national agency check, at a minimum), or
(3) Satisfactorily completed a background investigation under an
NRC-approved access authorization program.
f. Individuals shall not perform assigned duties associated with
the transport of RAMQC until the licensee has confirmed that a
determination of trustworthiness and reliability, based on the
appropriate background investigation requirements in B.2.d. and
B.2.e., has been performed and documented.
3. Preplanning and Coordination
a. As part of the shipment planning process, the licensee shall
ensure that appropriate security information is provided to and is
coordinated with affected States through which the shipment will
pass to ensure minimal delays. These discussions shall include
whether a State intends to provide escorts for a shipment.
b. The licensee shall ensure States are provided with position
information on a shipment (see Paragraph B.5.a), if requested and
practical.
c. For shipments by highway, the licensees's coordination
required in Paragraph B.3.a. shall include identification of Highway
Route Controlled Quantity (HRCQ) shipments of material and safe
havens.\1\
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\1\ In general, a safe haven is a readily recognizable and
readily accessible site at which security is present or from which,
in the event of an emergency, the transport crew can notify and wait
for the local law enforcement authorities (LLEA). The following
criteria are used by the NRC to determine the safe haven sites and
licensees should use these criteria in identifying safe havens for
shipments subject to this Order:
--Close proximity to the route, i.e., readily available to the
transport vehicle.
--Security from local, State, or Federal assets is present or is
accessible for timely response.
--Site is well lit, has adequate parking, and can be used for
emergency repair or wait for LLEA response on a 24-hours-a-day
basis.
--Have additional telephone facilities should the communications
system of the transport vehicle not function properly.
Possible safe haven sites include: Military installations and
other Federal sites having significant security assets; secure
company terminals; State weigh stations; truck stops with secure
areas; and LLEA sites, including State police barracks.
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4. Notifications
a. The licensee shall ensure an advance notification of a
shipment is provided, or of a series of shipments, of RAMQC to the
NRC. The licensee shall ensure the notification is submitted
sufficiently in advance to ensure it is received by NRC at least
seven (7) days, where practicable, before the shipment commences
physically within the U.S.
For written notifications, the notice should be addressed to:
(10 CFR 2.390)
U.S. Nuclear Regulatory Commission, ATTN: Director, Division of
Nuclear Security, M/S: T-4-D-8, Office of Nuclear Security and
Incident Response, 11555 Rockville Pike, Rockville, MD 20852-2738.
Notifications may also be submitted electronically via e-mail to
[email protected] or via fax to (301) 816-5151. (10 CFR
2.390)
[[Page 51021]]
b. The advance notification shall contain the following
information:
(1) [This paragraph contains SAFEGUARDS INFORMATION and will not
be publicly disclosed.]
(2) [This paragraph contains SAFEGUARDS INFORMATION and will not
be publicly disclosed.]
(3) [This paragraph contains SAFEGUARDS INFORMATION and will not
be publicly disclosed.]
(4) [This paragraph contains SAFEGUARDS INFORMATION and will not
be publicly disclosed.]
(5) [This paragraph contains SAFEGUARDS INFORMATION and will not
be publicly disclosed.]
(6) [This paragraph contains SAFEGUARDS INFORMATION and will not
be publicly disclosed.]
(7) [This paragraph contains SAFEGUARDS INFORMATION and will not
be publicly disclosed.]
Refer to Paragraph B.7.c. for determination of information
designation of advance notifications during preplanning,
coordinating, and reporting information activities.
c. The licensee shall ensure the information required by
Paragraph B.4.b. is provided to each State through which the
shipment will pass. The licensee shall ensure that the notification
is received at least seven (7) days, where practicable, before the
U.S. highway or railroad portion of a shipment commences.
d. [This paragraph contains SAFEGUARDS INFORMATION and will not
be publicly disclosed.]
5. Communications
a. (1) For highway shipments, monitor each RAMQC shipment with a
telemetric position monitoring system that communicates with a
communication center or is equipped with an alternative tracking
system that communicates position information to a communications
center.
(2) For rail shipments, monitor each RAMQC shipment with either:
(i) A telemetric position monitoring system that communicates with a
licensee or third-party communication center, (ii) a railroad track-
side car location monitoring systems tracking system that relays a
car's position to a railroad communications center (which can
provide position information to any separate licensee communications
center per Paragraph B.5.b), or (iii) alternate licensee monitoring
system. Additionally, licensees may use a railroad communications
center to monitor the rail portion of a shipment, in lieu of using a
separate communications center.
b. (1) For highway shipments, provide for a communication center
that has the capability to continuously and actively monitor in-
progress shipments to ensure positive confirmation of the location,
status, and control over the shipment and implement pre-planned
procedures in response to deviations from the authorized route or
notification of actual, attempted, or suspicious activities related
to theft, loss, diversion, or radiological sabotage of a shipment.
These procedures shall include identification of the designated LLEA
contact(s) along the shipment route.
(2) For rail shipments, provide for a communication center that
has the capability to periodically monitor in-progress shipments to
ensure positive confirmation of the location of the shipment and
implement pre-planned procedures in response to notification of
actual, attempted, or suspicious activities related to theft, loss,
diversion, or radiological sabotage of a shipment. These procedures
shall include identification of the designated LLEA contact(s) along
the shipment route. Licensees may use a railroad communications
center in lieu of establishing a separate communications center.
c. (1) For highway shipments, ensure that a two-way
telecommunication capability is available for the transport and any
escort vehicles allowing them to communicate with each other with
the communications center, and with designated LLEAs along the
route. The communications center must be capable of contacting the
designated authorities along the shipment route.
(2) For rail shipments, ensure that a two-way telecommunication
capability is available between the train and the communications
center and between any escort vehicles and the communications
center. The communications center must be capable of contacting the
designated authorities along the shipment route.
d. A licensee may utilize a carrier or third-party
communications center in lieu of establishing such a facility
itself. A commercial communications center must have the
capabilities, necessary procedures, training, and personnel
background investigations to meet the applicable requirements of
these ASMs.
e. (1) For highway shipments, provide a backup means for the
transport and any escort vehicle to communicate with the
communications center, using a diverse method not subject to the
same interference factors as the primary capability selected for
compliance with Paragraph B.5.c. (e.g., two-way radio or portable
telephone).
(2) For rail shipments, provide a backup means for the train to
talk with the communications center, using a diverse method not
subject to the same interference factors as the primary capability
selected for compliance with Paragraph B.5.c. (e.g., two-way radio
or portable telephone).
f. [This paragraph contains SAFEGUARDS INFORMATION and will not
be publicly disclosed.]
(1) Not later than one hour after the time when, through the
course of the investigation, it is determined the shipment is lost
or stolen, the licensee shall ensure the appropriate local law
enforcement agency, the NRC Operations Center at (301) 816-5100, and
the appropriate Agreement State regulatory agency, if any, are
notified.
(2) If after 24 hours of initiating the investigation, the
radioactive material cannot be located, licensee shall ensure the
NRC Operations Center and, for Agreement State licensees, the
appropriate Agreement State regulatory agency are immediately
notified.
g. [This paragraph contains SAFEGUARDS INFORMATION and will not
be publicly disclosed.]
6. Drivers and Accompanying Individuals
a. [This paragraph contains SAFEGUARDS INFORMATION and will not
be publicly disclosed.]
b. [This paragraph contains SAFEGUARDS INFORMATION and will not
be publicly disclosed.]
c. [This paragraph contains SAFEGUARDS INFORMATION and will not
be publicly disclosed.]
d. [This paragraph contains SAFEGUARDS INFORMATION and will not
be publicly disclosed.]
7. Procedures, Training, and Control of Information
a. (1) For highway shipments the licensee shall ensure that
normal and contingency procedures have been developed, including,
for example: Notifications, communications protocols, loss of
communications, and response to actual, attempted, or suspicious
activities related to theft, loss, diversion, or radiological
sabotage of a shipment. Communication protocols must include a
strategy for use of authentication and duress codes, provision for
refueling or other stops, detours, and locations where communication
is expected to be temporarily lost.
(2) For rail shipments, the licensee shall ensure that normal
and contingency procedures have been developed, including, for
example: notifications, communications protocols, loss of
communications, and response to actual, attempted, or suspicious
activities related to theft, loss, diversion, or radiological
sabotage of a shipment. Communication protocols must include a
strategy for use of authentication and duress codes, provision for
stops, and locations where communication is expected to be
temporarily lost.
b. (1) For highway shipments, the licensee shall ensure that
personnel, including drivers, accompanying individuals, responsible
communication center managers, and other appropriate communication
center personnel are trained in and understand the normal and
contingency procedures.
(2) For rail shipments, the licensee shall ensure that
personnel, including the appropriate train crew members and
responsible railroad communication center managers, and other
appropriate railroad communication center personnel are trained in
and understand the normal and contingency procedures.
c. Information to be protected as Safeguards Information--
Modified Handling, shall include, but is not limited to:
(1) Integrated transportation physical security plans.
(2) Schedules and itineraries for shipments. For shipments that
are not inherently self disclosing, schedule and itineraries
information may be decontrolled 2 days after a shipment is
completed. For shipments that are inherently self disclosing,
schedule may be released as necessary after departure.
(3) Details of alarm and communications systems, communication
protocols and duress codes, and security contingency response
procedures.
(4) Arrangements with designated LLEA (i.e., Federal, State
Police, and/or local police
[[Page 51022]]
departments) and information on whether a State intends to provide
armed escorts for a shipment.
For preplanning; coordinating, for example with States'
organizations and carriers; reporting information as described in
B.1., B.4., and B.5. related to shipments of radioactive material,
and the radionuclides identified in Paragraph A.1, the licensee
shall ensure the information is protected at least as sensitive
information (for example, proprietary or business financial
information). Licensees shall ensure access is restricted to this
information to those licensee and contractor personnel with a need
to know. Licensees shall ensure all parties receiving this
information protect it similarly. Information may be transmitted
either in writing or electronically and shall be marked as
``Sensitive Information--Not for Public Disclosure.''
C. Implementation Schedule
1. Licensees shall implement the requirements of this ASM within
180 days of the date of issuance of the Order or before the first
shipment of RAMQC, whichever is sooner.
Table A--Radionuclides of Concern
------------------------------------------------------------------------
Quantity of
Quantity of concern (Ci)
Radionuclide concern (TBq) information only--
threshold limit rounded after
conversion
------------------------------------------------------------------------
Am-241............................ 60 1,600
Am-241/Be......................... 60 1,600
Cf-252............................ 20 540
Cm-244............................ 50 1,400
Co-60............................. 30 810
Cs-137............................ 100 2,700
Gd-153............................ 1,000 27,000
Ir-192............................ 80 2,200
Pm-147............................ 40,000 1,100,000
Pu-238............................ 60 1,600
Pu-239/Be......................... 60 1,600
Ra-226 \1\........................ 40 1,100
Se-75............................. 200 5,400
Sr-90 (Y-90)...................... 1,000 27,000
Tm-170............................ 20,000 540,000
Yb-169............................ 300 8,100
------------------------------------------------------------------------
\1\ The Atomic Energy Act, as amended by the Energy Policy Act of 2005,
authorizes NRC to regulate Ra-226 and NRC is in the process of
amending its regulations for discrete sources of Ra-226.
Notes:
1. The regulatory standard values to be used are given in
Terabecquerels (TBq). Curie (Ci) values are provided for practical
usefulness only and are rounded after conversion.
2. If several radionuclides are present, the sum of the
fractions of the activity of each radionuclide must be determined.
Using the equation below calculate the ratio by inserting the actual
activity of each radionuclide as the numerator and the corresponding
activity limit in Table A as the denominator. Ensure the numerator
and the denominator are in Terabecquerels.
R1 = activity for radionuclide number 1
R2 = activity for radionuclide number 2
R3, R4, R5......etc.
AR1 = activity limit for radionuclide number 1
AR2 = activity limit for radionuclide number 2
AR3, AR4, AR5......etc.
[GRAPHIC] [TIFF OMITTED] TN29AU08.000
Attachment C: Requirements for Fingerprinting and Criminal History
Checks of Individuals When Licensee's Reviewing Official Is Determining
Access to Safeguards Information or Unescorted Access to Radioactive
Materials
General Requirements
Licensees shall comply with the following requirements of this
attachment.
1. Each Licensee subject to the provisions of this attachment
shall fingerprint each individual who is seeking or permitted access
to safeguards information (SGI) or unescorted access to RAMQC. The
Licensee shall review and use the information received from the
Federal Bureau of Investigation (FBI) and ensure that the provisions
contained in this Order and this attachment are satisfied.
2. The Licensee shall notify each affected individual that the
fingerprints will be used to secure a review of his/her criminal
history record and inform the individual of the procedures for
revising the record or including an explanation in the record, as
specified in the ``Right to Correct and Complete Information''
section of this attachment.
3. Fingerprints for access to SGI or unescorted access need not
be taken if an employed individual (e.g., a Licensee employee,
contractor, manufacturer, or supplier) is relieved from the
fingerprinting requirement by 10 CFR 73.59 for access to SGI or 10
CFR 73.61 for unescorted access, has a favorably-decided U.S.
Government criminal history check within the last five (5) years, or
has an active federal security clearance. Written confirmation from
the Agency/employer which granted the federal security clearance or
reviewed the criminal history check must be provided for either of
the latter two cases. The Licensee must retain this documentation
for a period of three (3) years from the date the individual no
longer requires access to SGI or unescorted access to radioactive
materials associated with the Licensee's activities.
4. All fingerprints obtained by the Licensee pursuant to this
Order must be submitted to the Commission for transmission to the
FBI.
5. The Licensee shall review the information received from the
FBI and consider it, in conjunction with the trustworthy and
reliability requirements of this Order, in making a determination
whether to grant, or continue to allow, access to SGI or unescorted
access to radioactive materials.
6. The Licensee shall use any information obtained as part of a
criminal history records check solely for the purpose of determining
an individual's suitability for access to SGI or unescorted access
to RAMQC.
7. The Licensee shall document the basis for its determination
whether to grant, or continue to allow, access to SGI or unescorted
access to RAMQC.
Prohibitions
A Licensee shall not base a final determination to deny an
individual access to radioactive materials solely on the basis of
[[Page 51023]]
information received from the FBI involving: an arrest more than one
(1) year old for which there is no information of the disposition of
the case, or an arrest that resulted in dismissal of the charge or
an acquittal.
A Licensee shall not use information received from a criminal
history check obtained pursuant to this Order in a manner that would
infringe upon the rights of any individual under the First Amendment
to the Constitution of the United States, nor shall the Licensee use
the information in any way which would discriminate among
individuals on the basis of race, religion, national origin, sex, or
age.
Procedures for Processing Fingerprint Checks
For the purpose of complying with this Order, Licensees shall,
using an appropriate method listed in 10 CFR 73.4, submit to the
NRC's Division of Facilities and Security, Mail Stop T-6E46, one
completed, legible standard fingerprint card (Form FD-258,
ORIMDNRCOOOZ) or, where practicable, other fingerprint records for
each individual seeking access to SGI or unescorted access to RAMQC,
to the Director of the Division of Facilities and Security, marked
for the attention of the Division's Criminal History Check Section.
Copies of these forms may be obtained by writing the Office of
Information Services, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, by calling (301) 415-7232, or by e-mail
to [email protected]. Practicable alternative formats are set
forth in 10 CFR 73.4. The Licensee shall establish procedures to
ensure that the quality of the fingerprints taken results in
minimizing the rejection rate of fingerprint cards due to illegible
or incomplete cards.
The NRC will review submitted fingerprint cards for
completeness. Any Form FD-258 fingerprint record containing
omissions or evident errors will be returned to the Licensee for
corrections. The fee for processing fingerprint checks includes one
re-submission if the initial submission is returned by the FBI
because the fingerprint impressions cannot be classified. The one
free re-submission must have the FBI Transaction Control Number
reflected on the re-submission. If additional submissions are
necessary, they will be treated as initial submittals and will
require a second payment of the processing fee.
Fees for processing fingerprint checks are due upon application
(Note: Other fees may apply to obtain fingerprints from your local
law enforcement agency). Licensees should submit payments
electronically via http://www.pay.gov. Payments through Pay.gov can
be made directly from the Licensee's credit/debit card. Licensees
will need to establish a password and user ID before they can access
Pay.gov. To establish an account, Licensee requests must be sent to
[email protected]. The request must include the Licensee's name,
address, point of contact, e-mail address, and phone number. The NRC
will forward each request to Pay.gov and someone from Pay.gov will
contact the Licensee with all of the necessary account information.
Licensees shall make payments for processing before submitting
applications to the NRC. Combined payment for multiple applications
is acceptable. Licensees shall include the Pay.gov payment
receipt(s) along with the application(s). For additional guidance on
making electronic payments, contact the Facilities Security Branch,
Division of Facilities and Security, at (301) 415-7404.
Alternatively, licensees may also submit payment with the
application for processing fingerprints by corporate check,
certified check, cashier's check, or money order, made payable to
``U.S. NRC.'' Combined payment for multiple applications is
acceptable.
The application fee (currently $36) is the sum of the user fee
charged by the FBI for each fingerprint card or other fingerprint
record submitted by the NRC on behalf of a Licensee, and an NRC
processing fee, which covers administrative costs associated with
NRC handling of Licensee fingerprint submissions. The Commission
will directly notify Licensees subject to this regulation of any fee
changes.
The Commission will forward to the submitting Licensee all data
received from the FBI as a result of the Licensee's application(s)
for criminal history checks, including the FBI fingerprint record.
Right to Correct and Complete Information
Prior to any final adverse determination, the Licensee shall
make available to the individual the contents of any criminal
records obtained from the FBI for the purpose of assuring correct
and complete information. Written confirmation by the individual of
receipt of this notification must be maintained by the Licensee for
a period of one (1) year from the date of the notification.
If, after reviewing the record, an individual believes that it
is incorrect or incomplete in any respect and wishes to change,
correct, or update the alleged deficiency, or to explain any matter
in the record, the individual may initiate challenge procedures.
These procedures include either direct application by the individual
challenging the record to the agency (i.e., law enforcement agency)
that contributed the questioned information, or direct challenge as
to the accuracy or completeness of any entry on the criminal history
record to the Assistant Director, Federal Bureau of Investigation
Identification Division, Washington, DC 20537-9700 (as set forth in
28 CFR 16.30 through 16.34). In the latter case, the FBI forwards
the challenge to the agency that submitted the data and requests
that agency to verify or correct the challenged entry. Upon receipt
of an official communication directly from the agency that
contributed the original information, the FBI Identification
Division makes any changes necessary in accordance with the
information supplied by that agency. The Licensee must provide at
least ten (10) days for an individual to initiate an action
challenging the results of an FBI criminal history records check
after the record is made available for his/her review. The Licensee
may make a final determination on access to SGI or unescorted access
RAMQC based upon the criminal history record only upon receipt of
the FBI's ultimate confirmation or correction of the record. Upon a
final adverse determination on access to SGI or unescorted access to
RAMQC, the Licensee shall provide the individual its documented
basis for denial. Access to SGI or unescorted access to RAMQC shall
not be granted to an individual during the review process.
Protection of Information
1. Each Licensee who obtains a criminal history record on an
individual pursuant to this Order shall establish and maintain a
system of files and procedures for protecting the record and the
personal information from unauthorized disclosure.
2. The Licensee may not disclose the record or personal
information collected and maintained to persons other than the
subject individual, his/her representative, or to those who have a
need to access the information in performing assigned duties in the
process of determining access to SGI or unescorted access to RAMQC.
No individual authorized to have access to the information may re-
disseminate the information to any other individual who does not
have a need-to-know.
3. The personal information obtained on an individual from a
criminal history record check may be transferred to another Licensee
if the Licensee holding the criminal history record receives the
individual's written request to re-disseminate the information
contained in his/her file, and the gaining Licensee verifies
information such as the individual's name, date of birth, social
security number, sex, and other applicable physical characteristics
for identification purposes.
4. The Licensee shall make criminal history records, obtained
under this section, available for examination by an authorized
representative of the NRC to determine compliance with the
regulations and laws.
5. The Licensee shall retain all fingerprint and criminal
history records received from the FBI, or a copy if the individual's
file has been transferred, for three (3) years after termination of
employment or denial to access SGI or unescorted access to RAMQC.
After the required three (3) year period, these documents shall be
destroyed by a method that will prevent reconstruction of the
information in whole or in part.
[FR Doc. E8-20119 Filed 8-28-08; 8:45 am]
BILLING CODE 7590-01-P