Nuclear Safety and Radiation Protection

L.N. 187 of 2013

NATIONAL INTEREST (ENABLING POWERS) ACT

(CAP. 365)

Nuclear Safety and Radiation Protection

(Amendment) Regulations, 2013

IN exercise of the powers conferred by article 3 of the National

Interest (Enabling Powers) Act, the Prime Minister has made the

following regulations:-

(1)

The title of these regulations is the Nuclear Safety Citation and

and Radiation Protection (Amendment) Regulations, 2013, and these commencement.

regulations shall be read and construed as one with the Nuclear Safety S.L. 365.15

and Radiation Protection Regulations, hereinafter referred to as "the

principal regulations".

(2) These regulations shall come into force on such a date as

the Minister responsible for foreign affairs may establish following

the ratification of the Amendment to the Convention on the Physical

Protection of Nuclear Material by Malta.

Sub-regulation (1) of regulation 3 of the principal Amends

regulation 3 of

regulations shall be amended as follows

the principal

regulations.

(a)

immediately after the definition "notification",

there shall be added the following new definition

" "nuclear facility" means a facility (including

associated buildings and equipment) in which nuclear

material is produced, processed, used, handled, stored or

disposed of, if damage to or interference with such facility

could lead to the release of significant amounts of radiation

or radioactive material;"; and

(b)

immediately after the definition "regulatory

authority", there shall be added the following new definition

" "sabotage" means any deliberate act directed

against a nuclear facility or nuclear material in use, storage

or transport which could directly or indirectly endanger the

health and safety of personnel, the public or the

environment by exposure to radiation or release of

radioactive substances;".

Regulation 8 of the principal regulations shall be

substituted by the following new regulation

"8.

No person shall intentionally commit

(a) an act without lawful authority which

constitutes the receipt, possession, use, transfer, alteration,

disposal or dispersal of nuclear material and which causes

or is likely to cause death or serious injury to any person or

substantial damage to property or to the environment;

(b)

a theft or robbery of nuclear material;

(c) an embezzlement or fraudulent obtaining of

nuclear material;

(d) an act which constitutes the carrying,

sending, or moving of nuclear material into or out of a

State without lawful authority;

(e) an act directed against a nuclear facility, or an

act interfering with the operation of a nuclear facility,

where the offender intentionally causes, or where he

knows that the act is likely to cause, death or serious injury

to any person or substantial damage to property or to the

environment by exposure to radiation or release of

radioactive substances, unless the act is undertaken in

conformity with the national law of the State Party in the

territory of which the nuclear facility is situated;

(f) an act constituting a demand for nuclear

material by threat or use of force or by any other form of

intimidation;

(g)

a threat

(i) to use nuclear material to cause death

or serious injury to any person or substantial damage

to property or to the environment or to commit the

offence described in paragraph (e), or

(ii) to commit an offence described in

paragraphs (b) and (e) in order to compel a natural or

legal person, international organisation or State to do

or to refrain from doing any act;

(h) an attempt to commit any offence described

in paragraphs (a) to (e);

(i) an act which constitutes participation in any

offence described in paragraphs (a) to (h);

(j) an act if such person organizes or directs

others to commit an offence described in paragraphs (a) to

(h); and

(k) an act which contributes to the commission of

any offence described in paragraphs (a) to (h) by a group of

persons acting with a common purpose; such act shall be

intentional and shall either

(i) be made with the aim of furthering the

criminal activity or criminal purpose of the group,

where such activity or purpose involves the

commission of an offence described in sub-

paragraphs (a) to (g), or

(ii) be made in the knowledge of the

intention of the group to commit an offence

described in paragraphs (a) to (g).".

In the Sixth Schedule to the principal regulations Amends the

immediately before the words "CONVENTION ON PHYSICAL Sixth

to the principal

PROTECTION OF NUCLEAR MATERIAL" there shall be added the regulations.

words "PART A", and immediately at the end of the said part, as

renumbered, there shall be added the following new part

"PART B

Amendment to the Convention on the Physical Protection

of Nuclear Material

1. The Title of the Convention on the Physical Protection of

Nuclear Material adopted on 26 October 1979 (hereinafter referred to

as "the Convention") is replaced by the following title

"CONVENTION ON THE PHYSICAL PROTECTION

OF NUCLEAR MATERIAL AND NUCLEAR FACILITIES".

2. The Preamble of the Convention is replaced by the

following text

"THE STATES PARTIES TO THIS CONVENTION,

RECOGNIZING the right of all States to develop and

apply nuclear energy for peaceful purposes and their legitimate

interests in the potential benefits to be derived from the peaceful

application of nuclear energy,

CONVINCED of the need to facilitate international co-

operation and the transfer of nuclear technology for the peaceful

application of nuclear energy,

BEARING IN MIND that physical protection is of vital

importance for the protection of public health, safety, the

environment and national and international security,

HAVING IN MIND the purposes and principles of the

Charter of the United Nations concerning the maintenance of

international peace and security and the promotion of good-

neighbourliness and friendly relations and cooperation among

States,

CONSIDERING that under the terms of paragraph 4 of

Article 2 of the Charter of the United Nations, "All members

shall refrain in their international relations from the threat or use

of force against the territorial integrity or political independence

of any state, or in any other manner inconsistent with the

Purposes of the United Nations",

RECALLING the Declaration on Measures to Eliminate

International Terrorism, annexed to General Assembly

resolution 49/60 of 9 December 1994,

DESIRING to avert the potential dangers posed by illicit

trafficking, the unlawful taking and use of nuclear material and

the sabotage of nuclear material and nuclear facilities, and

noting that physical protection against such acts has become a

matter of increased national and international concern,

DEEPLY CONCERNED by the worldwide escalation of

acts of terrorism in all its forms and manifestations, and by the

threats posed by international terrorism and organized crime,

BELIEVING that physical protection plays an important

role in supporting nuclear non-proliferation and counter-

terrorism objectives,

DESIRING through this Convention to contribute to

strengthening worldwide the physical protection of nuclear

material and nuclear facilities used for peaceful purposes, to

prevent and combat offences relating to such material and

facilities worldwide; as well as to facilitate co-operation among

State Parties to those ends,

CONVINCED that offences relating to nuclear material

and nuclear facilities are a matter of grave concern and that

there is an urgent need to adopt appropriate and effective

measures, or to strengthen existing measures, to ensure the

prevention, detection and punishment of such offences,

DESIRING to strengthen further international co-operation

to establish, in conformity with the national law of each State

Party and with this Convention, effective measures for the

physical protection of nuclear material and nuclear facilities,

CONVINCED that this Convention should complement

the safe use, storage and transport of nuclear material and the

safe operation of nuclear facilities,

RECOGNIZING that there are internationally formulated

physical protection recommendations that are updated from

time to time which can provide guidance on contemporary

means of achieving effective levels of physical protection,

RECOGNIZING also that effective physical protection of

nuclear material and nuclear facilities used for military purposes

is a responsibility of the State possessing such nuclear material

and nuclear facilities, and understanding that such material and

facilities are and will continue to be accorded stringent physical

protection,

HAVE AGREED as follows:".

3. In Article 1 of the Convention, after paragraph (c), two

new paragraphs are added as follows

"(d) "nuclear facility" means a facility (including

associated buildings and equipment) in which nuclear material

is produced, processed, used, handled, stored or disposed of, if

damage to or interference with such facility could lead to the

release of significant amounts of radiation or radioactive

material;

(e)

"sabotage" means any deliberate act directed

against a nuclear facility or nuclear material in use, storage or

transport which could directly or indirectly endanger the health

and safety of personnel, the public or the environment by

exposure to radiation or release of radioactive substances.".

4. After Article 1 of the Convention, a new Article 1A is

added as follows

"Article 1A

The purposes of this Convention are to achieve and

maintain worldwide effective physical protection of nuclear

material used for peaceful purposes and of nuclear facilities

used for peaceful purposes; to prevent and combat offences

relating to such material and facilities worldwide; as well as to

facilitate cooperation among States Parties to those ends.".

Article 2 of the Convention is replaced by the following

text

"1.

This Convention shall apply to nuclear material

used for peaceful purposes in use, storage and transport and to

nuclear facilities used for peaceful purposes, provided,

however, that articles 3 and 4 and paragraph 4 of article 5 of this

Convention shall only apply to such nuclear material while in

international nuclear transport.

2. The responsibility for the establishment,

implementation and maintenance of a physical protection

regime within a State Party rests entirely with that State.

3. Apart from the commitments expressly undertaken

by States Parties under his Convention, nothing in this

Convention shall be interpreted as affecting the sovereign rights

of a State.

4. (a) Nothing in this Convention shall affect other

rights, obligations and responsibilities of States Parties under

international law, in particular the purposes and principles of the

Charter of the United Nations and international humanitarian

law.

(b) The activities of armed forces during an armed

conflict, as those terms are understood under international

humanitarian law, which are governed by that law, are not

governed by this Convention, and the activities undertaken by

the military forces of a State in the exercise of their official

duties, inasmuch as they are governed by other rules of

international law, are not governed by this Convention.

(c) Nothing in this Convention shall be construed

as a lawful authorization to use or threaten to use force against

nuclear material or nuclear facilities used for peaceful purposes.

(d)

Nothing in this Convention condones or makes

lawful otherwise unlawful acts, nor precludes prosecution under

5. This Convention shall not apply to nuclear material

used or retained for military purposes or to a nuclear facility

containing such material.".

After Article 2 of the Convention, a new Article 2A is

added as follows

"Article 2A

1. Each State Party shall establish, implement and

maintain an appropriate physical protection regime applicable

to nuclear material and nuclear facilities under its jurisdiction,

with the aim of

(a) protecting against theft and other unlawful

taking of nuclear material in use, storage and transport;

(b) ensuring the implementation of rapid and

comprehensive measures to locate and, where appropriate,

recover missing or stolen nuclear material; when the

material is located outside its territory, that State Party

shall act in accordance with article 5;

(c) protecting nuclear material and nuclear

facilities against sabotage; and

(d) mitigating or minimizing the radiological

consequences of sabotage.

2. In implementing paragraph 1, each State Party

(a) establish and maintain a legislative and

regulatory framework to govern physical protection;

(b) establish or designate a competent authority

or authorities responsible for the implementation of the

legislative and regulatory framework; and

(c) take other appropriate measures necessary for

the physical protection of nuclear material and nuclear

facilities.

3. In implementing the obligations under paragraphs

1 and 2, each State Party shall, without prejudice to any other

provisions of this Convention, apply insofar as is reasonable and

practicable the following Fundamental Principles of Physical

Protection of Nuclear Material and Nuclear Facilities.

FUNDAMENTAL PRINCIPLE A: Responsibility of the

State

The responsibility for the establishment, implementation

and maintenance of a physical protection regime within a State

rests entirely with that State.

FUNDAMENTAL PRINCIPLE B: Responsibilities During

International Transport

The responsibility of a State for ensuring that nuclear

material is adequately protected extends to the international

transport thereof, until that responsibility is properly transferred

to another State, as appropriate.

FUNDAMENTAL

PRINCIPLE

C

Legislative

and

Regulatory Framework

The State is responsible for establishing and maintaining a

legislative and regulatory framework to govern physical

protection. This framework should provide for the

establishment of applicable physical protection requirements

and include a system of evaluation and licensing or other

procedures to grant authorization. This framework should

include a system of inspection of nuclear facilities and transport

to verify compliance with applicable requirements and

conditions of the license or other authorizing document, and to

establish a means to enforce applicable requirements and

conditions, including effective sanctions.

FUNDAMENTAL PRINCIPLE D: Competent Authority

The State should establish or designate a competent

authority which is responsible for the implementation of the

legislative and regulator framework, and is provided with

adequate authority, competence and financial and human

resources to fulfil its assigned responsibilities. The State should

take steps to ensure an effective independence between the

functions of the State’s competent authority and those of any

other body in charge of the promotion or utilization of nuclear

energy.

FUNDAMENTAL PRINCIPLE E: Responsibility of the

License Holders

The responsibilities for implementing the various elements

of physical protection within a State should be clearly

identified. The State should ensure that the prime responsibility

for the implementation of physical protection of nuclear

material or of nuclear facilities rests with the holders of the

relevant licenses or of other authorizing documents (e.g.,

operators or shippers).

FUNDAMENTAL PRINCIPLE F: Security Culture

All organizations involved in implementing physical

protection should give due priority to the security culture, to its

development and maintenance necessary to ensure its effective

implementation in the entire organization.

FUNDAMENTAL PRINCIPLE G: Threat

The State’s physical protection should be based on the

State’s current evaluation of the threat.

FUNDAMENTAL PRINCIPLE H: Graded Approach

Physical protection requirements should be based on a

graded approach, taking into account the current evaluation of

the threat, the relative attractiveness, the nature of the material

and potential consequences associated with the unauthorized

removal of nuclear material and with the sabotage against

nuclear material or nuclear facilities.

FUNDAMENTAL PRINCIPLE I: Defence in Depth

The State’s requirements for physical protection should

reflect a concept of several layers and methods of protection

(structural or other technical, personnel and organisational) that

have to be overcome or circumvented by an adversary in order

to achieve his objectives.

FUNDAMENTAL PRINCIPLE J: Quality Assurance

A quality assurance policy and quality assurance

programmes should be established and implemented with a

view to providing confidence that specified requirements for all

activities important to physical protection are satisfied.

FUNDAMENTAL PRINCIPLE K: Contingency Plans

Contingency (emergency) plans to respond to unauthorized

removal of nuclear material or sabotage of nuclear facilities or

nuclear material, or attempts thereof, should be prepared and

appropriately exercised by all license holders and authorities

concerned.

FUNDAMENTAL PRINCIPLE L: Confidentiality

The State should establish requirements for protecting the

confidentiality of information, the unauthorized disclosure of

which could compromise the physical protection of nuclear

material and nuclear facilities.

4. (a) The provisions of this article shall not apply to

any nuclear material which the State Party reasonably decides

does not need to be subject to the physical protection regime

established pursuant to paragraph 1, taking into account the

nature of the material, its quantity and relative attractiveness

and the potential radiological and other consequences

associated with any unauthorized act directed against it and the

current evaluation of the threat against it.

(b) Nuclear material which is not subject to the

provisions of this article pursuant to sub-paragraph (a) should

be protected in accordance with prudent management practice.".

Article 5 of the Convention is replaced by the following

text

"1.

States Parties shall identify and make known to

each other directly or through the International Atomic Energy

Agency their point of contact in relation to matters within the

scope of this Convention.

2. In the case of theft, robbery or any other unlawful

taking of nuclear material or credible threat thereof, States

Parties shall, in accordance with their national law, provide co-

operation and assistance to the maximum feasible extent in the

recovery and protection of such material to any State that so

requests. In particular

(a) a State Party shall take appropriate steps to

inform as soon a possible other States, which appear to it to

be concerned, of any theft, robbery or other unlawful

taking of nuclear material or credible threat thereof, and to

inform, where appropriate, the International Atomic

Energy Agency and other relevant international

organizations;

(b) in doing so, as appropriate, the States Parties

concerned shall exchange information with each other, the

International Atomic Energy Agency and other relevant

international organizations with a view to protecting

threatened nuclear material, verifying the integrity of the

shipping container or recovering unlawfully taken nuclear

material and shall

(i) co-ordinate their efforts

through

diplomatic and other agreed channels;

(ii) render assistance, if requested;

(iii) ensure the return of recovered nuclear

material stolen or missing as a consequence of the

above-mentioned events.

The means of implementation of this co-operation shall be

determined by the States Parties concerned.

3. In the case of a credible threat of sabotage of

nuclear material or a nuclear facility or in the case of sabotage

thereof, States Parties shall, to the maximum feasible extent, in

accordance with their national law and consistent with their

relevant obligations under international law, co-operate as

follows

(a) if a State Party has knowledge of a credible

threat of sabotage of nuclear material or a nuclear facility

in another State, the former shall decide on appropriate

steps to be taken in order to inform that State as soon as

possible and, where appropriate, the International Atomic

Energy Agency and other relevant international

organizations of that threat, with a view to preventing the

sabotage;

(b) in the case of sabotage of nuclear material or

a nuclear facility in a State Party and if in its view other

States are likely to be radiologically affected, the former,

without prejudice to its other obligations under

international law, shall take appropriate steps to inform as

soon as possible the State or the States which are likely to

be radiologically affected and to inform, where

appropriate, the International Atomic Energy Agency and

other relevant international organizations, with a view to

minimizing or mitigating the radiological consequences

thereof;

(c) if in the context of sub-paragraphs (a) and (b),

a State Party requests assistance, each State Party to which

a request for assistance is directed shall promptly decide

and notify the requesting State Party, directly or through

the International Atomic Energy Agency, whether it is in a

position to render the assistance requested and the scope

and terms of the assistance that may be rendered;

(d) co-ordination of the co-operation under sub-

paragraphs (a) to (c) shall be through diplomatic or other

agreed channels. The means of implementation of this co-

operation shall be determined bilaterally or multilaterally

by the States Parties concerned.

4. States Parties shall co-operate and consult, as

appropriate, with each other directly or through the

International Atomic Energy Agency and other relevant

international organizations, with a view to obtaining guidance

on the design, maintenance and improvement of systems of

physical protection of nuclear material in international

transport.

5. A State Party may consult and co-operate, as

appropriate, with other States Parties directly or through the

International Atomic Energy Agency and other relevant

international organizations, with a view to obtaining their

guidance on the design, maintenance and improvement of its

national system of physical protection of nuclear material in

domestic use, storage and transport and of nuclear facilities.".

Article 6 of the Convention is replaced by the following

text

"1.

States Parties shall take appropriate measures

consistent with their national law to protect the confidentiality

of any information which they receive in confidence by virtue

of the provisions of this Convention from another State Party or

through participation in an activity carried out for the

implementation of this Convention. If States Parties provide

information to international organizations or to States that are

not parties to this Convention in confidence, steps shall be taken

to ensure that the confidentiality of such information is

protected. A State Party that has received information in

confidence from another State Party may provide this

information to third parties only with the consent of that other

State Party.

2. States Parties shall not be required by this

Convention to provide any information which they are not

permitted to communicate pursuant to national law or which

would jeopardize the security of the State concerned or the

physical protection of nuclear material or nuclear facilities.".

Paragraph 1 of Article 7 of the Convention is replaced by

the following text

"1.

The intentional commission of

(a) an act without lawful authority which

constitutes the receipt, possession, use, transfer, alteration,

disposal or dispersal of nuclear material and which causes

or is likely to cause death or serious injury to any person or

substantial damage to property or to the environment;

(b)

a theft or robbery of nuclear material;

(c) an embezzlement or fraudulent obtaining of

nuclear material;

(d) an act which constitutes the carrying,

sending, or moving of nuclear material into or out of a

State without lawful authority;

(e) an act directed against a nuclear facility, or an

act interfering with the operation of a nuclear facility,

where the offender intentionally causes, or where he

knows that the act is likely to cause, death or serious injury

to any person or substantial damage to property or to the

environment by exposure to radiation or release of

radioactive substances, unless the act is undertaken in

conformity with the national law of the State Party in the

territory of which the nuclear facility is situated;

(f) an act constituting a demand for nuclear

material by threat or use of force or by any other form of

intimidation;

(g)

a threat

(i) to use nuclear material to cause death

or serious injury to any person or substantial damage

to property or to the environment or to commit the

offence described in sub-paragraph (e), or

(ii) to commit an offence described in

sub-paragraphs (b) and (e) in order to compel a

natural or legal person, international organization or

State to do or to refrain from doing any act;

(h) an attempt to commit any offence described

in sub-paragraphs (a) to (e);

(i) an act which constitutes participation in any

offence described in subparagraphs (a) to (h);

(j) an act of any person who organizes or directs

others to commit an offence described in sub-paragraphs

(a) to (h); and

(k) an act which contributes to the commission of

any offence described in sub-paragraphs (a) to (h) by a

group of persons acting with a common purpose; such act

shall be intentional and shall either

(i) be made with the aim of furthering the

criminal activity or criminal purpose of the group,

where such activity or purpose involves the

commission of an offence described in sub-

paragraphs (a) to (g), or

(ii) be made in the knowledge of the

intention of the group to commit an offence

described in sub-paragraphs (a) to (g) shall be made

a punishable offence by each State Party under its

national law.".

After Article 11 of the Convention, two new articles,

Article 11A and Article 11B, are added as follows

"Article 11A

None of the offences set forth in article 7 shall be regarded

for the purposes of extradition or mutual legal assistance, as a

political offence or as an offence connected with a political

offence or as an offence inspired by political motives.

Accordingly, a request for extradition or for mutual legal

assistance based on such an offence may not be refused on the

sole ground that it concerns a political offence or an offence

connected with a political offence or an offence inspired by

political motives.

Article 11B

Nothing in this Convention shall be interpreted as

imposing an obligation to extradite or to afford mutual legal

assistance, if the requested State Party has substantial grounds

for believing that the request for extradition for offences set

forth in article 7 or for mutual legal assistance with respect to

such offences has been made for the purpose of prosecuting or

punishing a person on account of that person’s race, religion,

nationality, ethnic origin or political opinion or that compliance

with the request would cause prejudice to that person’s position

for any of these reasons.

After Article 13 of the Convention, a new Article 13A is

added as follows

"Article 13A

Nothing in this Convention shall affect the transfer of

nuclear technology for peaceful purposes that is undertaken to

strengthen the physical protection of nuclear material and

nuclear facilities.".

Paragraph 3 of Article 14 of the Convention is replaced by

the following text

"3.

Where an offence involves nuclear material in

domestic use, storage or transport, and both the alleged offender

and the nuclear material remain in the territory of the State Party

in which the offence was committed, or where an offence

involves a nuclear facility and the alleged offender remains in

the territory of the State Party in which the offence was

committed, nothing in this Convention shall be interpreted as

requiring that State Party to provide information concerning

criminal proceedings arising out of such an offence.".

Article 16 of the Convention is replaced by the following

text

"1.

A conference of States Parties shall be convened by

the depositary five years after the entry into force of the

Amendment adopted on 8 July 2005 to review the

implementation of this Convention and its adequacy as concerns

the preamble, the whole of the operative part and the annexes in

the light of the then prevailing situation.

2. At intervals of not less than five years thereafter,

the majority of States Parties may obtain, by submitting a

proposal to this effect to the depositary, the convening of further

conferences with the same objective.".

Footnote b/ of Annex II of the Convention is replaced by

the following text

" b/ Material not irradiated in a reactor or material irradiated

in a reactor but with a radiation level equal to or less than 1

gray/hour (100 rads/hour) at one metre unshielded.".

Footnote e/ of Annex II of the Convention is replaced by

the following text

" e/ Other fuel which by virtue of its original fissile material

content is classified as Category I and II before irradiation may

be reduced one category level while the radiation level from the

fuel exceeds 1 gray/hour (100 rads/hour) at one metre

unshielded.".

€1.44