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25 January 2007
[Federal Register: January 24, 2007 (Volume 72, Number 15)]
[Rules and Regulations]
[Page 3025-3027]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ja07-1]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
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[[Page 3025]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 73
RIN: 3150-AH90
Secure Transfer of Nuclear Materials
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations to implement requirements for secure transfer of nuclear
materials as required by Section 656 of the Energy Policy Act of 2005
(EPAct), signed into law on August 8, 2005. The final rule implements
Section 656 by specifically excepting certain licensees from provisions
of Section 170I of the Atomic Energy Act (AEA) of 1954, as amended.
DATES: Effective Date: The final rule is effective on February 23,
2007.
ADDRESSES: Publicly available documents related to this rulemaking may
be viewed electronically on the public computers located at the NRC's
Public Document Room (PDR), Room O1F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland. The PDR reproduction contractor
will copy documents for a fee. Selected documents can be viewed and
downloaded electronically via the NRC's rulemaking Web site at http://ruleforum.llnl.gov
.
Publicly available documents created or received at the NRC are
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/NRC/reading-rm/adams.html.
From this site, the public can
gain entry into the NRC's Agencywide Document Access and Management
System (ADAMS), which provides text and image files of NRC's public
documents. If you do not have access to ADAMS or if there are problems
in accessing the documents located in ADAMS, contact the NRC Public
Document Room (PDR) Reference staff at (800) 397-4209, (301) 415-4737,
or by e-mail to pdr@nrc.gov.
FOR FURTHER INFORMATION CONTACT: Frank Cardile, Office of Federal and
State Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-
6185, e-mail: fpc@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Energy Policy Act of 2005
On August 8, 2005, the President signed into law the EPAct of 2005
Pub. L. No. 109-58,119 Stat. 594 (2005). Section 656 of the EPAct added
Section 170I to the AEA, as amended, 42 U.S.C. 2210i, and requires
that: (a) A system be established by the Commission to ensure that
materials transferred or received in the United States, by any party,
pursuant to an import or export license issued by NRC, are accompanied
by a manifest describing the type and amount of materials; (b) each
individual receiving or accompanying the transfer of materials shall be
subject to a security background check conducted by appropriate Federal
entities; and (c) the Commission issue regulations, within one year
after enactment of the EPAct, identifying radioactive materials or
classes of individuals that, consistent with the protection of the
public health and safety and the common defense and security, are
appropriate exceptions to the requirements in Section 170I of the AEA.
Rulemaking Considerations Related to Proposed Rule To Implement Section
656 of the EPAct
In preparing the proposed rule to implement Section 656 (71 FR
51534; August 30, 2006), the NRC determined that, based on existing
requirements for shipping papers for radioactive materials already in
place in Department of Transportation regulations and incorporated by
reference in NRC regulations in 10 CFR part 71, an appropriate system
is already established to ensure that shipments of radioactive
materials, that would be affected by Section 656, are accompanied by
papers (i.e., a manifest) appropriately describing the materials being
shipped. Thus, NRC did not include any additional requirements for
manifesting of radioactive material shipments in the proposed rule.
In addition, the NRC determined that the most appropriate and
comprehensive approach for establishing requirements for security
background checks is as part of the broader considerations of NRC's
rulemaking to implement Section 652 of the EPAct. Section 652 mandates
the Commission to require fingerprinting and criminal history record
checks for any individual who is permitted unescorted access to risk-
significant radioactive material. The individuals referred to under
Section 656 are a subgroup (i.e., those transferring radioactive
material pursuant to an export or import license) of the larger group
of individuals at a licensed facility, with unescorted access to
radioactive material, and will be covered by the comprehensive Section
652 rulemaking. The Section 652 proposed rule is currently in
preparation and its schedule calls for issuance of a proposed rule in
the Fall of 2007 and a final rule in the Fall of 2008.
While the Section 652 rulemaking is being conducted, NRC has a
regulatory framework for security background checks through an
extensive system of Orders issued during 2002-2006 that includes
requirements for background checks, including fingerprinting for
criminal history checks, for unescorted access to radioactive material
for certain facilities which it licenses. NRC has also issued Orders to
licensees for shipment of radioactive material in quantities of concern
(RAMQC). The purpose of these Orders has been to impose certain
security measures to supplement existing regulations at 10 CFR part 20,
and equivalent Agreement State regulations, for securing licensed
materials from unauthorized access, with the intent of providing the
NRC with reasonable assurance that the common defense and security is
protected. The Orders note that conditions for unescorted access to
risk-significant sources of radioactive material are governed by an
appropriate need-to-know and by background checks as input to a
determination concerning the trustworthiness and reliability of
individuals who have access to the material. Most recently, in October
2006, NRC issued Orders to pool-type irradiator licensees,
[[Page 3026]]
manufacturing and distribution (M&D) licensees, and licensees making
shipments of RAMQC, to specifically require fingerprinting and criminal
history checks for unescorted access to the risk-significant sources of
radioactive material at their facilities.
Issuance of Proposed Rule
Consistent with Section 656(b) of the EPAct, the Commission
proposed to amend NRC's regulations to except from the security
background check requirements of Section 170I of the AEA, as amended,
licensees who have not received NRC Orders containing requirements for
background checks for trustworthiness and reliability, that include
fingerprinting and criminal history record checks, as a prerequisite
for unescorted access to risk-significant radioactive materials. As
noted above, Orders restricting access based on fingerprinting and
criminal history record checks have been issued for pool-type
irradiator licensees, M&D licensees, and licensees who make shipments
of RAMQC. These licensees can use the provisions of their existing
Orders (or new or amended Orders) to comply with Section 170I. Also, if
additional Orders for fingerprinting and criminal history checks for
unescorted access to radioactive material are issued to licensees other
than those noted here, licensees who receive any such new Orders would
no longer be excepted from the security background check requirements
of Section 170I.
The rationale for the exceptions is that it is consistent with the
system of Orders, issued to certain licensees, that the NRC has
instituted for protection of the common defense and security. The
materials possessed and transferred by the licensees who have received
Orders have been deemed, during the process of issuance of the Orders,
to be appropriate for immediately requiring certain security measures
for unescorted access based on potential higher risk resulting from
malevolent use of those materials.
The proposed rule was published in the Federal Register on August
30, 2006 (71 FR 51534) as a proposed new Sec. 73.28 in 10 CFR part 73.
II. Discussion
Summary of Public Comments on the Proposed Rule
The public comment period closed on September 29, 2006. In response
to the request for comments, NRC received two comment responses, one
from the Organization of Agreement States (OAS) and one from the
Nuclear Energy Institute (NEI).
The comment response from the OAS summarized the content of the
NRC's proposed rulemaking and its effect on Agreement States, including
that the proposed Agreement State Compatibility Category of the
proposed rule would be ``NRC.'' The comment response from the OAS
concluded by stating that the NRC approach in the rulemaking seemed
reasonable to the OAS Executive Board.
The comment response letter from NEI stated that NEI supports the
proposed rule as drafted. However, NEI also stated that there were two
areas of confusion regarding the applicability of the rulemaking. In
particular, NEI noted that there are a number of power reactor
licensees that were not issued additional orders, but that have
personnel who come in contact with radioactive materials in transit and
who are not covered by existing rules in 10 CFR 73.57. Particularly
noted were personnel in shipping and receiving operations located
outside of the protected area who are considered outside of the nuclear
power facility and do not require access to Safeguards Information. The
second area of confusion related to a NEI concern as to where this
Section 656 rulemaking will end and where the referenced Section 652
rulemaking, due for issuance in late 2007, will start.
With regard to the first point raised by NEI, the Supplementary
Information in the Federal Register Notice, issuing the proposed rule,
stated that this Section 656 rulemaking is relying upon the framework
of the existing system of NRC Orders, either in place or to be put into
place, as the basis for codifying exceptions. This allows for a
consistent approach for radioactive materials which NRC considers
appropriate, at this time, for exception from the requirements of
Section 170I of the AEA as amended by the EPAct. The materials
possessed and transferred by licensees who have received Orders have
been deemed, during the process of issuance of the Orders, to be
appropriate for immediately requiring certain security measures for
unescorted access based on potential higher risk resulting from
malevolent use of those materials. Orders for fingerprinting and
criminal history checks for persons at licensed facilities shipping
RAMQC were issued in October 2006. As noted previously, the Section 652
rulemaking will take a more comprehensive approach in establishing
requirements for security background checks for licensees, and for
licensee employees, for unescorted access to radioactive material. To
the extent that personnel at a nuclear power plant handle risk-
significant material and are not currently covered by regulation and/or
order with regard to background checks and fingerprinting,
consideration can be given to including such licensee personnel in
NRC's framework of orders. If such additional Orders are issued, those
licensees who have not previously received any such Orders would no
longer be excepted from the security background check requirements of
Section 170I, under the provisions of this final rule.
With regard to the second point raised by NEI, the Supplementary
Information in the proposed rule notes that the NRC intends to address
background checks and fingerprinting for criminal history record checks
for licensees in a more comprehensive manner under the rulemaking to
implement Section 652 of the EPAct. One of the elements of that
rulemaking, as mandated by Section 652(B)(i)(ll), will be determining
requirements for access to quantities of radioactive material, subject
to regulation by the Commission, that the Commission determines to be
of such significance to the public health and safety or to the common
defense and security as to warrant fingerprinting and background
checks. The requirements for exceptions in this Section 656 rulemaking
were issued as part of a mandate of Section 656 of the EPAct for a
limited subset of licensee employees. If necessary, the requirements
now codified at 10 CFR 73.28 will be revisited, and may be amended and/
or superseded by the more comprehensive Section 652 rulemaking.
Summary of Revisions to Proposed Rule
After review of the public comments, the NRC has decided to make
final the approach in the August 30, 2006, proposed rule (i.e., to
amend NRC's regulations to except from the security background check
requirements of Section 170I those licensees that have not received NRC
Orders restricting unescorted access to radioactive materials to
individuals who have undergone background checks, for trustworthiness
and reliability, that include fingerprinting and criminal history
record checks). As of October 2006, Orders for fingerprinting and
criminal history checks for unescorted access to radioactive materials
have been issued to pool-type irradiator licensees, M&D licensees, and
licensees who make shipments of RAMQC. Under the provisions of the
final rule, if additional Orders for fingerprinting and criminal
history checks for unescorted access to radioactive material are issued
to licensees other than those noted above, licensees who receive any
such new Orders would no longer be
[[Page 3027]]
excepted from the security background check requirements of Section
170I of the AEA.
III. Section by Section Analysis of Final Rule
New Sec. 73.28 has not been revised from the wording in the
proposed rule and continues to except licensees from the security
background check provisions of Section 170I of the AEA if they have not
received Orders from the NRC containing requirements for background
checks for trustworthiness and reliability that include fingerprinting
and criminal history checks as a prerequisite for unescorted access to
radioactive materials. Licensees subject to Orders are not excepted
from the security background check provisions, and would use the
requirements in their existing Orders to comply with Section 170I of
the AEA.
IV. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995 (Pub.
L. 104-113) requires that Federal agencies use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
the use of such a standard is inconsistent with applicable law or
otherwise impractical. In this final rule, NRC is indicating specific
exceptions to the requirements of Section 656 of the EPAct. This action
does not constitute the establishment of a standard that establishes
generally applicable requirements.
V. Agreement State Compatibility
Under the ``Policy Statement on Adequacy and Compatibility of
Agreement State Programs,'' which became effective on September 3, 1997
(62 FR 46517), NRC program elements (including regulations) are placed
into four compatibility categories (Compatibility Category A through
D). In addition, NRC program elements also can be identified as having
particular health and safety significance or as being reserved solely
to NRC.
The amendment to 10 CFR part 73 is a program element designated
``NRC'' based on implementation of the procedure in NRC's Management
Directive 5.9, ``Adequacy and Compatibility of Agreement States.'' The
requirements in this amendment are limited to providing exceptions to
requirements in Section 170I of the AEA and are based on a system of
Orders that were developed under NRC's authority to protect the common
defense and security which are areas of exclusive NRC regulatory
authority and cannot be relinquished to the Agreement States.
Therefore, the requirements of this amendment should not be adopted by
the Agreement States.
VI. Environmental Impact: Categorical Exclusion
NRC has determined that this final rule is the type of action
described in 10 CFR 51.22(c)(3)(ii) as a categorical exclusion.
Therefore, neither an environmental impact statement nor an
environmental assessment has been prepared for this final rule.
VII. Paperwork Reduction Act Statement
This final rule does not contain new or amended information
collection requirements subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
Existing requirements were approved by the Office of Management and
Budget, approval number 3150-0002.
VIII. Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
Office of Management and Budget control number.
IX. Regulatory Analysis
A regulatory analysis has not been prepared for this regulation
because it relieves restrictions and does not impose any additional
burdens on licensees.
X. Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
The amendment does not impose any additional burdens on licensees.
XI. Backfit Analysis
NRC has determined that the backfit rule (Sec. Sec. 50.109, 70.76,
72.62, or 76.76) does not apply to this final rule because this
amendment does not involve any provisions that would impose backfits as
defined in the backfit rule. Therefore, a backfit analysis is not
required.
XII. Congressional Review Act
In accordance with the Congressional Review Act of 1996, the NRC
has determined that this action is not a major rule and has verified
this determination with the Office of Information and Regulatory
Affairs of OMB.
List of Subjects in 10 CFR Part 73
Criminal penalties, Export, Hazardous materials transportation,
Import, Nuclear materials, Nuclear power plants and reactors, Reporting
and recordkeeping requirements, Security measures.
0
For the reasons set out in the preamble and under the authority of the
AEA, as amended; the Energy Reorganization Act of 1974, as amended; and
5 U.S.C. 552 and 553; NRC is adopting the following amendment to 10 CFR
part 73.
PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS
0
1. The authority citation for part 73 continues to read as follows:
Authority: Secs. 53, 161, 68 Stat. 930, 948, as amended, sec.
147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as
amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 Stat.
2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 Stat.
2750 (44 U.S.C. 3504 note).
Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241 (42 U.S.C, 10155, 10161). Section 73.37(f) also
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100
Stat. 876 (42 U.S.C. 2169).
0
2. Section 73.28 is added to read as follows:
Sec. 73.28 Security background checks for secure transfer of nuclear
materials.
Licensees are excepted from the security background check
provisions in Section 170I of the AEA if they have not received Orders
from the Nuclear Regulatory Commission containing requirements for
background checks for trustworthiness and reliability that include
fingerprinting and criminal history record checks as a prerequisite for
unescorted access to radioactive materials.
Dated at Rockville, Maryland, this 18th day of January 2007.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E7-971 Filed 1-23-07; 8:45 am]
BILLING CODE 7590-01-P