[Federal Register Volume 69, Number 23 (Wednesday, February 4, 2004)]
[Notices]
[Pages 5375-5377]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E4-180]


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NUCLEAR REGULATORY COMMISSION

[Docket Nos: (Redacted), License Nos: (Redacted), EA-XX-XXXX 
(Redacted)]


In the Matter of all Licensees Authorized to Manufacture or 
Initially Transfer Items Containing Radioactive Material for Sale or 
Distribution and Possess Certain Radioactive Material of Concern and 
All Other Persons Who Obtain Safeguards Information Described Herein; 
Order Imposing Additional Security Measures (Effective Immediately)

I

    The Licensees identified in Attachment 1\1\ to this Order hold 
licenses issued in accordance with the Atomic Energy Act of 1954 by the 
U.S.

[[Page 5376]]

Nuclear Regulatory Commission (NRC or Commission) or an Agreement State 
authorizing them to manufacture or initially transfer items containing 
radioactive material for sale or distribution. Commission regulations 
at 10 CFR 20.1801 or equivalent Agreement State regulations require 
Licensees to secure, from unauthorized removal or access, licensed 
materials that are stored in controlled or unrestricted areas. 
Commission regulations at 10 CFR 20.1802 or equivalent Agreement States 
regulations require Licensees to control and maintain constant 
surveillance of licensed material that is in a controlled or 
unrestricted area and that is not in storage.
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    \1\ Attachment 1 contains official use only 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 its Licensees in order to 
strengthen Licensees' capabilities and readiness to respond to a 
potential attack on a nuclear facility. The Commission has also 
communicated with other Federal, State and local government agencies 
and industry representatives to discuss and evaluate the current threat 
environment in order to assess the adequacy of security measures at 
licensed facilities. In addition, the Commission has been conducting a 
review of its safeguards and security programs and requirements.
    As a result of its consideration of current safeguards and license 
requirements, as well as a review of information provided by the 
intelligence community, the Commission has determined that certain 
additional security measures are required to be implemented by 
Licensees as prudent measures to address the current threat 
environment. Therefore, the Commission is imposing the requirements set 
forth in Attachment 2 on certain manufacturing and distribution 
licensees identified in Attachment 1 of this Order \2\ who currently 
possess, or have near term plans to possess, high-risk radioactive 
material of concern. These requirements, which supplement existing 
regulatory requirements, will provide the Commission with reasonable 
assurance that the public health and safety and common defense and 
security continue to be adequately protected in the current threat 
environment. These requirements will remain in effect until the 
Commission determines otherwise.
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    \2\ Attachment 1 contains official use only sensitive 
information and Attachment 2 contains safeguards information and 
will not be released to the public.
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    The Commission recognizes that Licensees may have already initiated 
many measures set forth in Attachment 2 to this Order in response to 
previously issued advisories or on their own. It is also recognized 
that some measures may not be possible or necessary at some sites, 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 use and storage of the sealed sources. 
Although the additional security measures implemented by the Licensees 
in response to the Safeguards and Threat Advisories have been adequate 
to provide reasonable assurance of adequate protection of public health 
and safety, the Commission concludes that the security measures must be 
embodied in an Order consistent with the established regulatory 
framework. The Commission has determined that the security measures 
contained in Attachment 2 of this Order contain safeguards information 
and will not be released to the public as per ``Order Imposing 
Requirements for the Protection of Certain Safeguards Information 
(Effective Immediately),'' issued November 23, 2003, regarding the 
protection of safeguards information.''
    To provide assurance that the Licensees are implementing prudent 
measures to achieve a consistent level of protection to address the 
current threat environment, all Licensees who hold licenses issued by 
the U.S. Nuclear Regulatory Commission or an Agreement State 
authorizing possession of high-risk radioactive material of concern 
shall implement the requirements identified in Attachment 2 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, safety and interest 
require that this Order be effective immediately.

III

    Accordingly, pursuant to sections 81, 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, 10 CFR part 30, and 10 CFR part 32, it is 
hereby ordered, effective immediately, that all Licensees identified in 
Attachment 1 to this Order shall comply with the requirements of this 
Order as follows:
    A. The Licensee shall, notwithstanding the provisions of any 
Commission or Agreement State regulation or license to the contrary, 
comply with the requirements described in Attachment 2 to this Order. 
The Licensee shall immediately start implementation of the requirements 
in Attachment 2 to the Order and shall complete implementation by July 
12, 2004, or the first day that radionuclides of concern at or above 
threshold limits (i.e., high-risk radioactive material), also 
identified in Attachment 2, are possessed, which ever is later.
    B. 1. The Licensee shall, within twenty-five (25) days of the date 
of this Order, notify the Commission, (1) if it is unable to comply 
with any of the requirements described in Attachment 2, (2) if 
compliance with any of the requirements is unnecessary in its specific 
circumstances, or (3) if implementation of any of the requirements 
would cause the Licensee to be in violation of the provisions of any 
Commission or Agreement State regulation or its license. The 
notification shall provide the Licensee's justification for seeking 
relief from or variation of any specific requirement.
    2. If the Licensee considers that implementation of any of the 
requirements described in Attachment 2 to this Order would adversely 
impact safe operation of the facility, the Licensee must notify the 
Commission, within twenty-five (25) 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 Attachment 2 requirement in question, or a 
schedule for modifying the facility to address the adverse safety 
condition. If neither approach is appropriate, the Licensee must 
supplement its response to Condition B.1 of this Order to identify the 
condition as a requirement with which it cannot comply, with attendant 
justifications as required in Condition B.1.
    C. 1. The Licensee shall, within twenty-five (25) days of the date 
of this Order, submit to the Commission a schedule for completion of 
each requirement described in Attachment 2.
    2. The Licensee shall report to the Commission when they have 
achieved full compliance with the requirements described in Attachment 
2.
    D. Notwithstanding any provisions of the Commission's or an 
Agreement State's regulations to the contrary, all measures implemented 
or actions taken

[[Page 5377]]

in response to this order shall be maintained until the Commission 
determines otherwise.
    Licensee responses to Conditions B.1, B.2, C.1, and C.2 above shall 
be submitted to the Director, Office of Nuclear Material Safety and 
Safeguards, 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 Nuclear Material Safety and Safeguards, 
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, and may request a hearing on this Order, within twenty-five (25) 
days of the date of this Order. Where good cause is shown, 
consideration will be given to extending the time to request a hearing. 
A request for extension of time in which to submit an answer or request 
a hearing must be made in writing to the Director, Office of Nuclear 
Material Safety and Safeguards, 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. Unless the answer 
consents to this Order, the answer shall, in writing and under oath or 
affirmation, specifically set forth the matters of fact and law on 
which the Licensee or other person adversely affected relies and the 
reasons as to why the Order should not have been issued. Any answer or 
request for a hearing shall be submitted to the Secretary, Office of 
the Secretary of the Commission, U.S. Nuclear Regulatory Commission, 
ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies 
also shall be sent to the Director, Office of Nuclear Material Safety 
and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 
20555, to the Assistant General Counsel for Materials Litigation and 
Enforcement at the same address, and to the Licensee if the answer or 
hearing request is by a person other than the Licensee. Because of 
possible disruptions in delivery of mail to United States Government 
offices, it is requested that answers and requests for hearing be 
transmitted to the Secretary of the Commission either by means of 
facsimile transmission to 301-415-1101 or by e-mail to 
hearingdocket@nrc.gov and also to the Office of the General Counsel 
either by means of facsimile transmission to 301-415-3725 or by e-mail 
to OGCMailCenter@nrc.gov. 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 2.714(d).
    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 
demanding 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-five (25) 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 12th day of January, 2004.

    For the Nuclear Regulatory Commission.
Martin J. Virgilio,
Director, Office of Nuclear Material Safety and Safeguards.
 [FR Doc. E4-180 Filed 2-3-04; 8:45 am]
BILLING CODE 7590-01-P