[Federal Register Volume 64, Number 244 (Tuesday, December 21, 1999)]
[Proposed Rules]
[Pages 71331-71333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32929]


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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 71 and 73

RIN 3150-AG41


Advance Notification to Native American Tribes of Transportation 
of Certain Types of Nuclear Waste

AGENCY: Nuclear Regulatory Commission.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is considering an 
amendment to its regulations that would require NRC licensees to notify 
Native American Tribes of shipments of certain types of high-level 
radioactive waste, including spent nuclear fuel, prior to transport to 
or across the boundary of Tribal lands. Current NRC regulations require 
advance notification of these shipments to States. In recognition of 
Tribal sovereignty and the need for Tribes to be informed about 
activities that occur on Tribal lands, the NRC seeks to extend these 
regulations to include advance notification of these shipments to 
Federally recognized Native American Tribes. This advance notice of 
proposed rulemaking is issued to invite early input from affected 
parties and the public on the issue of advance notification.

DATES: The comment period expires March 22, 2000. Comments received 
after this date will be considered if it is practical to do so, but the 
Commission is able to assure consideration only for comments received 
on or before this date.

ADDRESSES: Mail comments to: The Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemakings and 
Adjudications Staff.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland, between 7:30 am and 4:15 pm on Federal workdays.
    You may also provide comments via the NRC's interactive rulemaking 
website (http://ruleforum.llnl). This site provides the availability to 
upload comments as files (any format), if your web browser supports 
that function. For information about the interactive rulemaking site, 
contact Ms. Carol Gallagher, (301) 415-5905; e-mail [email protected].
    Certain documents related to this rulemaking, including comments 
received, may be examined at the NRC Public Document Room, 2120 L 
Street NW. (Lower Level), Washington, DC. These same documents also may 
be viewed and downloaded electronically via the rulemaking website.

FOR FURTHER INFORMATION CONTACT: Tony DiPalo, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, telephone (301) 415-6191, e-mail [email protected] 
or Stephanie R. Martz, Office of the General Counsel, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-
1520, e-mail SRM[email protected].

SUPPLEMENTARY INFORMATION:

Background

    Current NRC regulations require that licensees inform State 
governors of certain radioactive waste shipments passing through or 
across the boundary of the State.
    In particular, 10 CFR 71.97 requires advance notification to States 
of shipments of certain types of radioactive waste and small quantities 
of irradiated reactor fuel. The types of shipments covered by the Part 
71 notification requirements are specified in 10 CFR 71.97(b).
    In 10 CFR 73.37, advance notification to States of shipments of 
certain quantities of irradiated reactor fuel is required. The 
notification requirements in Part 73 apply to most shipments of 
irradiated reactor fuel. The types of shipments covered by the Part 73 
notification requirements are detailed in 10 CFR 73.37(a). NRC 
regulations (10 CFR 73.37(g)) require State officials and other 
individuals to protect schedule information related to these fuel 
shipments from unauthorized disclosure as specified in 10 CFR 73.21. 
The NRC was directed to promulgate these regulations by the NRC 
Authorization Act for Fiscal Year 1980 (Sec. 301(a), Pub. L. 96-295).
    In accordance with the notification procedures in Part 71, a 
licensee must notify the governor of a State, or the governor's 
designee, in writing, prior to a shipment of radioactive waste or 
nuclear fuel. If the notification is delivered by mail, it must be 
postmarked at least 7 days before the beginning of the 7-day period 
during which it is estimated that the shipment will depart from its 
point of origin. If the notification is hand-delivered, it must be 
delivered at least 4 days before the beginning of the 7-day period 
during which it is estimated that the shipment will depart from its 
point of origin.
    In accordance with 10 CFR 71.97, a list of the names and mailing 
addresses of the governor's designees receiving advance notification is 
published in the Federal Register and is updated on a

[[Page 71332]]

yearly basis (see, e.g., 64 FR 35197 (June 30, 1999)).
    The notification for shipments under Part 71 must contain the 
following information:
    (1) The name, address, and telephone number of the shipper, 
carrier, and receiver of the irradiated reactor fuel or nuclear waste 
shipment;
    (2) A description of the irradiated reactor fuel or nuclear waste 
contained in the shipment;
    (3) The point of origin of the shipment and the 7-day period during 
which the shipment is estimated to depart;
    (4) The 7-day period during which the shipment is estimated to 
arrive at the State boundary;
    (5) The shipment's destination and the 7-day period during which 
the shipment is estimated to arrive at its destination; and
    (6) A point of contact, with a telephone number, for current 
shipment information.
    If the schedule of the shipment changes by more than 6 hours from 
the information furnished, the licensee must notify the governor or the 
governor's designee (``the responsible party'') of the schedule change 
by telephone (or other means), and must inform the responsible party of 
the number of hours that the schedule has changed (i.e., advanced or 
delayed) relative to the previously furnished information.
    The notification for shipments under 10 CFR 73.37(f)(2) must 
contain the following information:
    (1) The name, address, and telephone number of the shipper, 
carrier, and receiver;
    (2) A description of the shipment;
    (3) A listing of the routes to be used within the State; and
    (4) A statement that certain information, which is provided as a 
separate enclosure to the written notification, is required by NRC 
regulations in 10 CFR 73.21 to be protected as Safeguards Information.
    The information to be provided as a separate enclosure to the 
notification under Part 73 is as follows:
    (1) The estimated date and time of departure from the point of 
origin of the shipment;
    (2) The estimated date and time of entry into the State;
    (3) For a single shipment whose schedule is not related to the 
schedule of any subsequent shipment, a statement that schedule 
information must be protected in accordance with the provisions of 10 
CFR 73.21, as Safeguards Information, until at least 10 days after the 
shipment has entered or originated within the State; and
    (4) For a shipment in a series of shipments whose schedules are 
related, a statement that schedule information must be protected in 
accordance with the provisions of 10 CFR 73.21, as Safeguards 
Information, until at least 10 days after the last shipment in the 
series has entered or originated within the State, and an estimate of 
the date on which the last shipment in the series will enter or 
originate within the State.
    To help minimize the possibility for radiological sabotage, 
schedules and itineraries for shipments of irradiated reactor fuel 
under Part 73 are required to be protected as Safeguards Information. 
State officials, State employees, and other responsible parties who 
receive schedule information are required to protect that information 
from unauthorized disclosure under 10 CFR 73.21 and 73.37(g). Title 10 
of the Code of Federal Regulations, 10 CFR 73.21(a), stipulates that 
information protection procedures employed by State and local police 
forces are deemed to meet the information protection measures specified 
in 10 CFR 73.21(b) through (i). Title 10 of the Code of Federal 
Regulations, 10 CFR 73.21(c), specifically limits information 
disclosure except to persons with an established ``need to know.'' For 
State and local governments, these persons are either the governor, the 
governor's designated representative, or a member of a State or local 
law enforcement authority that is responsible for responding to 
requests for assistance during safeguards emergencies. Title 10 of the 
Code of Federal Regulations, 10 CFR 73.21(d), prescribes protection 
required while the information is being used or stored, and 10 CFR 
73.21(g) specifies the protection required when the information is 
transmitted outside an authorized place of use or storage. With respect 
to the provision of 10 CFR 73.37(f)(4) that the governor's 
representative be notified in the event of a change in the schedule, 
NRC policy is that the licensee need notify only a single designated 
individual within each State (47 FR 600; January 6, 1982).
    Further information regarding NRC's transportation requirements can 
be found in NUREG-0725, ``Public Information Circular for Shipments of 
Irradiated Reactor Fuel,'' Revision 13, October 1998. Single copies are 
available for purchase from the National Technical Information Service, 
5285 Port Royal Road, Springfield, Virginia 22161.

Specific Proposal

    The Commission is considering amending Parts 71 and 73 to require 
that licensees provide timely advance notification to Native American 
Tribes prior to transport of certain types of nuclear waste, including 
spent fuel, to or across the boundary of Tribal lands. This amendment 
would require licensees to provide to the Native American Tribes 
notification similar to that now required to be provided to the States.
    In 1994, the U.S. Department of Energy (DOE) notified the NRC of 
its intent to implement its Tribal notification policy for DOE's 
shipments of spent nuclear fuel and high-level radioactive waste. DOE 
presently accomplishes these shipments under DOE regulations. An 
amendment to NRC regulations would clarify how DOE, when making 
shipments under NRC regulations, and NRC licensees would provide 
notification to Native American Tribes of spent nuclear fuel and high-
level radioactive waste shipments that pass to or across the boundary 
of Tribal lands. Such an amendment would advance NRC's efforts to 
recognize the sovereignty of Federally recognized Native American 
Tribes in accordance with President Clinton's 1994 memorandum entitled, 
``Government-to-Government Relations with Native American Tribal 
Governments.'' [59 FR 22951; May 4, 1994] This memorandum states, in 
part,

    The United States Government has a unique legal relationship 
with Native American tribal governments as set forth in the 
Constitution of the United States, treaties, statutes, and court 
decisions. As executive departments and agencies undertake 
activities affecting Native American tribal rights or trust 
resources, such activities should be implemented in a knowledgeable, 
sensitive manner respectful of tribal sovereignty.

    The President's memorandum does not impose any new obligations on 
NRC, as an independent regulatory agency, or on other Executive 
departments and agencies. However, this memorandum encourages Federal 
agencies, among other things, to consult with Tribal governments, 
before engaging in activities that may affect Tribes, and to remove any 
procedural impediments to agencies being able to work directly with 
Tribal governments.
    To accomplish this, the memorandum encourages each Executive 
department and agency to ``apply the requirements of Executive Order 
Nos. 12875 (``Enhancing the Intergovernmental Partnership'') and 12866 
(``Regulatory Planning and Review'') to design solutions and tailor 
Federal programs, in appropriate circumstances, to address specific or 
unique needs of tribal communities.''

[[Page 71333]]

    The primary purpose of the rule contemplated by the Commission 
would be to inform Native American Tribes of shipments passing to or 
across the boundary of Tribal lands as a recognition of Tribal 
sovereignty as well as the need for Tribes to be aware of activities 
that occur on Tribal lands. While emergency preparedness would not be 
the main reason for developing such a rule, Tribes that do have 
emergency preparedness capabilities would benefit from notification.

Specific Considerations

    Before the NRC prepares a proposed rule on the subject, the NRC is 
seeking advice and recommendations on this matter from all interested 
persons. Comments accompanied by supporting reasons are particularly 
requested on the following questions arranged by topic:

A. Developing a List of Native American Tribe Contacts

    A.1. In preparing the list of Tribal contacts, the NRC would most 
likely look to the list of Federally recognized Native American Tribes 
maintained by the Bureau of Indian Affairs (BIA), U.S. Department of 
the Interior. Is this an appropriate approach? Are there any other 
sources that the NRC should consider? (See the BIA website at http://
www.doi.gov/bureau-indian-affairs.html).
    A.2. How can the NRC ensure that contact information is kept 
current, particularly for smaller Tribes? In maintaining State 
contacts, the NRC provides each State with the opportunity to update 
its information annually. Should NRC follow the same approach for 
Tribal contacts?
    A.3. How can licensees effectively and efficiently provide 
notification to Native American Tribes, particularly smaller Tribes, of 
a schedule change that would require updated notification by telephone 
at any time of day?

B. Minimizing the Licensees' Administrative Burden

    B.1. In what ways can licensees comply with this advance 
notification requirement, while keeping their administrative burden at 
a minimum?
    B.2. If a shipper is unable to make contact with a Tribe prior to 
or during a shipment, should the shipment proceed?

C. Identifying the Location of Tribes Along Shipment Routes

    C.1. How can licensees effectively and comprehensively identify the 
location of Native American Tribes along a particular vehicle, rail, or 
vessel shipment route?
    C.2. Should DOE and NRC licensees develop and maintain a central 
data base regarding the location of Tribal lands? Should NRC look to 
Geographic Information System (GIS) resources to provide licensees with 
information regarding the location of Tribal lands?
    C.3. What types of Tribal lands should the rule apply to (e.g., 
Trust Lands, Fee Lands (i.e., lands owned by Native Americans but not 
held in trust by the Federal government), etc.)?

D. Safeguards Information

    D.1. Should advance notification of spent fuel shipments be 
provided to any federally recognized Native American Tribe when spent 
fuel shipments are transported to or across tribal boundaries?
    D.2 The NRC's ``need-to-know'' requirement for advance notification 
of spent fuel shipment information is found in 10 CFR 73.21. Should 
this requirement be broadened to include other entities, such as 
Federally recognized Native American Tribes?
    D.3. Does wider dissemination of shipment information increase the 
risk to safeguarding spent fuel shipments (i.e., protecting public 
health and safety)? How should the NRC address any increase in risk 
compared with the benefits to be gained from Tribal notification?
    D.4. How should the rule address the point of contact for 
Safeguards Information in the context of Tribal notification?
    D.5. A recipient of Safeguards Information must expend resources to 
ensure the information is handled properly. Are there Tribes who may 
not wish to be recipients of Safeguards Information?
    D.6. If a Tribal government receives Safeguards Information, should 
the NRC review the Tribe's actions to control and protect Safeguards 
Information?
    D.7. 10 CFR 73.21(a) states that ``information protection 
procedures employed by State and local police forces are deemed to meet 
the information protection requirements of Sec. 73.21(b) through (i).'' 
Should the NRC determine the ability of Tribal governments to protect 
Safeguards Information and, if so, how?
    D.8. Should the contemplated rule include an exemption to the 
notification requirement if there is reason to believe that a Tribe 
will not be able to protect the Safeguards Information from disclosure? 
What basis would the NRC need for granting such an exemption?
    D.9. Should 10 CFR 73.37(f) be changed to a permissive form? That 
is, should the licensee be permitted rather than required to release 
Safeguards Information to responsible Tribal government officials?
    The preliminary views expressed in this notice may change in light 
of comments received. If the proposed rule is developed by the 
Commission, there will be another opportunity for additional public 
comment in connection with that proposed rule.

List of Subjects

10 CFR Part 71

    Criminal penalties, Hazardous materials transportation, Nuclear 
materials, Packaging and containers, Reporting and recordkeeping 
requirements.

10 CFR Part 73

    Criminal penalties, Hazardous materials transportation, Exports, 
Imports, Nuclear materials, Nuclear power plants and reactors, 
Reporting and recordkeeping requirements, and Security measures.
    The authority citation for this document is: 42 U.S.C. 2201; 42 
U.S.C. 5841.

    Dated at Rockville, Maryland, this 14th day of December, 1999.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 99-32929 Filed 12-20-99; 8:45 am]
BILLING CODE 7590-01-P