[Federal Register Volume 73, Number 171 (Wednesday, September 3, 2008)]
[Proposed Rules]
[Pages 51378-51381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20365]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 73, No. 171 / Wednesday, September 3, 2008 / 
Proposed Rules  

[[Page 51378]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 73

RIN 3150-AI31
[NRC-2008-0458]


Criminal Penalties; Unauthorized Introduction of Weapons

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend 
its regulations to authorize the imposition of Federal criminal 
penalties on those who, without authorization, introduce weapons or 
explosives into specified classes of facilities and installations 
subject to the regulatory authority of the NRC. This action is 
necessary to implement section 229, ``Trespass on Commission 
Installations,'' of the Atomic Energy Act of 1954, as amended.

DATES: Submit comments on the proposed rule October 20, 2008. Comments 
received after this date will be considered if it is practical to do 
so, but the NRC is able to assure consideration only for comments 
received on or before this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include the number RIN3150-AI31 in the subject line of your 
comments. Comments on this rulemaking submitted in writing or in 
electronic form will be made available to the public in their entirety 
on the Federal Government's rulemaking Web site, http://www.regulations.gov. Personal information, such as name, address, 
telephone, e-mail address, etc., will not be removed from your 
submission.
    E-mail comments to: Comments may be submitted via the Federal 
eRulemaking Portal http://www.regulations.gov; search Docket ID NRC-
2008-0458.
    Mail Comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, Attention: Rulemakings and Adjudications 
Staff.
    Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 a.m. and 4:15 p.m. on Federal workdays. (Telephone 
301-415-1101)
    Publicly available documents related to this rulemaking, including 
all public comments received, may be viewed electronically on the 
public computers located at the NRC's Public Document Room (PDR), O1 
F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. 
For more information, contact the NRC PDR Reference staff at 1-800-397-
4209, 301-415-4737, or by e-mail to [email protected].
    Documents created or received at the NRC after November 1, 1999, 
are available electronically at the NRC's Public Electronic Reading 
Room on the Internet at http://www.nrc.gov/reading-rm.html. From this 
site, the public can gain entry into the NRC's Agencywide Documents 
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 any problems in accessing the documents located in ADAMS, 
contact the NRC PDR Reference staff at 1-800-415-4209, 301-415-4737, or 
by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: James E. Adler, Office of the General 
Counsel, telephone 301-415-1656, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 
I. Background
II. Discussion of the Proposed Rule
III. Plain Language
IV. Voluntary Consensus Standard
V. Finding of No Significant Environmental Impact: Environmental 
Assessment
VI. Paperwork Reduction Act Statement
VII. Regulatory Analysis
VIII. Regulatory Flexibility Certification
IX. Backfit Analysis
X. Agreement State Compatibility

I. Background

    Section 654 of the Energy Policy Act of 2005, Unauthorized 
Introduction of Dangerous Weapons, amended section 229 of the Atomic 
Energy Act to authorize the NRC to issue regulations that make it a 
Federal crime to bring, without authorization, weapons or explosives 
into facilities designated by the Commission. This proposed rule would 
implement that legislative provision.
    In 1956, Congress added section 229 to the Atomic Energy Act. That 
section made it a crime to bring weapons or explosives, without 
authorization, into facilities owned by the Atomic Energy Commission. 
With the enactment of the Energy Reorganization Act in 1974, this 
provision covered facilities now owned or occupied by the Department of 
Energy as well as the buildings occupied by the NRC. Section 229 did 
not extend to facilities regulated by the NRC. Over the years, there 
were incidents where individuals were successful in bringing weapons 
into NRC-regulated facilities without authorization. Fortunately, the 
individuals were not terrorists or others with malevolent intent and no 
damage was done. In such circumstances, the Commission had the ability 
to take action against its licensee for violation of security 
requirements, but could not refer the matter to the Department of 
Justice for criminal prosecution of the individual; any criminal 
sanctions had to be sought by the State under State law. Beginning in 
the late 1980s, the Commission submitted legislative proposals to 
Congress requesting that Congress enact legislation that would make it 
a Federal crime to bring weapons or explosives, without authorization, 
into NRC-designated facilities.
    Congress enacted the requested legislation in section 654 of the 
Energy Policy Act of 2005, amending section 229 of the Atomic Energy 
Act of 1954, as amended (42 U.S.C. 2278a.) (the Atomic Energy Act). 
This section authorizes the Commission to:

Issue regulations relating to the entry upon or carrying, 
transporting, or otherwise introducing or causing to be introduced 
any dangerous weapon, explosive, or other dangerous instrument or 
material likely to produce substantial injury or damage to person or 
property, into or upon any facility, installation, or real property 
subject to the jurisdiction, administration, in the custody of the 
Commission, or subject to the licensing authority of the Commission 
or certification by the Commission under this Act or any other Act.

Section 229 also requires that ``every such regulation of the 
Commission shall be posted conspicuously at the location involved.''

[[Page 51379]]

II. Discussion

    The NRC is proposing to amend 10 CFR 73.81, Criminal penalties and 
to add 10 CFR 73.75, Posting to implement section 654 of the Energy 
Policy Act of 2005. Under the proposed regulations, the unauthorized 
willful introduction of any dangerous weapon, explosive or any other 
dangerous instrument or material likely to produce substantial injury 
or damage to persons or property upon the facilities or installations 
subject to sections 236a.(1) or (4) of the Atomic Energy Act would be 
subject to the criminal penalties set forth in section 229 of the 
Atomic Energy Act. The Commission here is primarily concerned with 
dangers posed by the unauthorized introduction of weapons or explosives 
when nuclear material and radioactive material are present. By listing 
these facilities in section 236 of the Atomic Energy Act, Congress has 
recognized the potential danger that could result from sabotage to 
them; consequently, the NRC believes it prudent to also make the 
unauthorized introduction of weapons or explosives into or upon these 
facilities a Federal crime. The covered facilities include: (1) 
Production and utilization facilities; and (2) uranium enrichment, 
uranium conversion and fuel fabrication facilities. The proposed rule 
also covers some of the facilities listed in section 236a.(2). 
Specifically, this proposed rule would apply to high-level waste 
storage and disposal facilities and independent spent fuel storage 
installations. The remaining waste facilities and installations listed 
in section 236a.(2) that are subject to Agreement State jurisdiction 
may be covered in a future rulemaking. For other classes of licensees, 
the unauthorized introduction of weapons or explosives would continue 
to be governed, absent other Federal legislation, by State law.
    The NRC also chose the facilities listed in Sec.  73.81(c)(1) 
because the unauthorized introduction of a weapon or explosive into 
these facilities poses the greatest health and safety risk and because 
the NRC already pervasively regulates these facilities. Other 
facilities--such as hospitals--that contain radioactive materials are 
not as extensively regulated by the NRC. In order to apply Sec.  73.81 
to these other facilities, the NRC would need to interact with 
Agreement States and other State and federal regulators to further 
assess the need for application of Sec.  73.81 to such classes of 
facilities and to determine the proper placement of the required 
notices and the best way to implement this regulation. The NRC welcomes 
public comments on whether the NRC should expand this regulation to 
cover hospitals and other classes of facilities licensed to possess 
radioactive materials that are in the National Source Tracking System.
    Whoever willfully introduces, without authorization, weapons or 
explosives into or upon any installation or facility listed in Sec.  
73.81(c)(1) that is enclosed by a fence, wall, floor, roof, or other 
barrier would be guilty of a misdemeanor, and upon conviction, could be 
punished by a fine not to exceed $5,000, or imprisonment for not more 
than one year, or both, as set forth in section 229c. of the Atomic 
Energy Act. Whoever willfully introduces, without authorization, 
weapons or explosives into or upon any other installation or facility 
listed in Sec.  73.81(c)(1) would be, upon conviction, punishable by a 
fine of not more than $1,000, as set forth in section 229b. of the 
Atomic Energy Act. This proposed rule does not interfere with State 
prosecution of these crimes under State law, but it does allow the 
Federal Bureau of Investigation to investigate and the Department of 
Justice to prosecute in addition to, or instead of, the State 
Government.
    At this time, the NRC does not propose including the following 
facilities or materials even though they are listed in section 236 of 
the Atomic Energy Act:
     Subsection a.(3) covering any nuclear fuel for a 
utilization facility licensed under this Act, or any spent fuel from 
such a facility. Section 229 of the Atomic Energy Act specifically 
applies to ``facilities and installations,'' while this subsection 
applies to ``nuclear fuel'' and ``spent nuclear fuel.'' Fuel is neither 
a facility nor installation; therefore, section 229, by its terms, is 
not applicable to this subsection.
     Subsection a.(5) covering any ``production, utilization, 
waste storage, waste treatment, waste disposal, uranium enrichment, 
uranium conversion, or nuclear fuel fabrication facility'' during 
construction of the facility, if the destruction or damage caused or 
attempted to be caused could adversely affect public health and safety 
during operation of the facility. In this proposed rule, the Commission 
is primarily concerned with dangers posed by the unauthorized 
introduction of weapons or explosives into facilities when nuclear 
material is present. Therefore, the proposed Sec.  73.81(c) would apply 
only to those facilities designated in Sec.  73.81(c)(1) upon the 
receipt of nuclear material. However, if an unauthorized introduction 
of a weapon or explosive results in sabotage covered by section 236 
before the receipt of nuclear material, this would already constitute a 
Federal crime.
     Subsection a.(6) covering any ``primary or backup facility 
from which a radiological emergency preparedness alert or warning 
system is activated.'' These facilities do not contain nuclear material 
or contain the controls needed to operate a facility.
     Subsection a.(7) pertaining to other materials or property 
that the Commission designates by order or regulation. The Commission 
proposes excluding this section because the rulemaking implementing 
this subsection of section 236 has not commenced. The Commission may 
revisit this decision after the rulemaking implementing the Energy 
Policy Act of 2005 revisions to section 236 is complete.
    This proposed regulation would not impose any burden on States. The 
only burden the proposed regulation would impose on licensees is the 
statutorily-mandated requirement that signs containing the quoted text 
in proposed Sec.  73.75 be posted conspicuously at each of the listed 
facilities. The NRC proposes that these signs be posted at all points 
of entry to the protected area, or if the facility or installation does 
not have a protected area, at the personnel and vehicle entrances to 
each building that contains nuclear material or radioactive material. 
The signs may include other prohibitions already posted at the point of 
entry. The unauthorized introduction of weapons or explosives within 
the area marked by the signs would constitute a Federal crime. In other 
words, the introduction of weapons or explosives, without 
authorization, into or upon the protected area or if no protected area 
into or upon a building containing nuclear material would be a Federal 
crime. For purposes of this proposed section, ``without authorization'' 
means not authorized as part of one's official duties to carry weapons 
or explosives. Under this proposed definition, the introduction of 
weapons by security guards, peace officers or military personnel into 
the protected area or a building where the sign is posted as part of 
their official duties would be ``authorized'' and these individuals 
would not be subject to criminal sanctions.
    The terms ``dangerous weapons,'' ``dangerous instrument or 
material,'' and ``explosives'' are not defined in the statute that 
these proposed regulations would implement. There is no consensus 
definition in state or federal statutes or judicial decisions for these 
terms. The NRC is soliciting comments on whether the NRC should define 
these

[[Page 51380]]

terms in the final rule or in a regulatory guidance document, and if 
they are defined, what the definitions should be.
    The NRC recognizes that by placing the signs at the entrance to the 
protected area or if no protected area at the entrance to buildings 
containing nuclear material or radioactive material means that it would 
not be a Federal crime (under this proposed regulation) to merely stand 
beyond the area where the sign is posted with an unauthorized weapon or 
explosive. However, if anyone attacks the protected area or building 
where the sign is posted, he or she would be in violation of this 
proposed regulation because the firing of a bullet, explosive or other 
projectile into or upon the protected area or building where the sign 
is posted would constitute an unauthorized introduction of a dangerous 
instrument.
    The signs should be easily readable day and night by both 
pedestrian and vehicular traffic. The NRC proposes a 90-day 
implementation period for this requirement to allow licensees enough 
time to acquire the appropriate signs. The NRC welcomes any comments on 
the sufficiency of this implementation period, on the feasibility of 
adding this notice at each entrance to the protected area or if no 
protected area at every entrance to buildings containing nuclear 
material, and on whether there is a more effective place to post the 
signs.
    Further, the NRC is proposing that this be a performance-based 
regulation that states the signs should be ``easily readable day and 
night.'' The NRC is soliciting comments on whether the regulation 
should be written more specifically; for example, whether the 
regulation should specify a certain font size and color as well as 
lighting requirements or incorporate a consensus technical standard 
such as the Americans with Disabilities Act signage standard.
    This proposed rule should not require any changes to licensee 
security procedures. Under Sec.  73.71(b)(1) and paragraph I(d) of 
appendix G to part 73, licensees are required to report within one 
hour, followed by a written report within 60 days, ``the actual or 
attempted introduction of contraband into a protected area, material 
access area, vital area, or transport.'' For purposes of this proposed 
rule, weapons, explosives or other dangerous instruments that are 
introduced without authorization would be ``contraband.''

III. Plain Language

    The Presidential memorandum dated June 1, 1998, entitled ``Plain 
Language in Government Writing'' directed that the Government's writing 
be in plain language. This memorandum was published on June 10, 1998 
(63 FR 31883). The NRC requests comments on the proposed rule 
specifically with respect to the clarity and effectiveness of the 
language used. Comments should be sent to the address listed under the 
ADDRESSES caption of the preamble.

IV. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, 
Public Law 104-113, requires that Federal agencies use technical 
standards that are developed or adopted by voluntary consensus 
standards bodies unless using such a standard is inconsistent with 
applicable law or is otherwise impractical. In this proposed rule, the 
NRC is proposing criminal penalties for the unauthorized introduction 
of weapons or explosives into or upon certain facilities and 
installations subject to the regulatory authority of the NRC. This 
action does not constitute the establishment of a standard that 
contains generally applicable requirements.

V. Finding of No Significant Environmental Impact: Environmental 
Assessment

    The Commission has determined under the National Environmental 
Policy Act of 1969, as amended, and the Commission's regulations in 
subpart A of 10 CFR part 51, that this rule, if adopted, would not be a 
major Federal action significantly affecting the quality of the human 
environment and, therefore, an environmental impact statement is not 
required. The basis for this determination is as follows:

The Need for the Proposed Action

    This proposed action is needed to implement section 229 of the 
Atomic Energy Act. In section 654 of the Energy Policy Act of 2005, 
Congress amended section 229 of the Atomic Energy Act, authorizing the 
NRC to issue regulations making it a Federal crime to, without 
authorization, introduce weapons or explosives into specified classes 
of facilities and installations subject to the regulatory authority of 
the NRC. Section 229 was also amended to require that each such 
regulation be posted conspicuously at the location involved.

Environmental Impacts of the Proposed Action

    The NRC has completed its evaluation of the proposed rule and 
concludes that it will not cause any significant environmental impact. 
The only action required by the proposed rule is the requirement in 
Sec.  73.75 that licensees place a notice at each entrance to the 
protected area or if the facility or installation does not have a 
protected area at each entrance to a building that contains nuclear 
material or radioactive material. Licensees already post notices at the 
entrances to facilities, and this proposed rule allows licensees to 
combine the notice required in Sec.  73.75 with these other notices. 
Therefore, the NRC has concluded that there will be little to no 
environmental impact of creating and posting an additional notice. 
Accordingly, the NRC concludes that there will be no significant 
environmental impacts associated with this proposed action.

Alternatives to the Proposed Action

    As an alternative to the proposed action, the staff considered not 
promulgating this rule (the ``no-action'' alternative). This would 
result in leaving unfulfilled the Congressional authorization the NRC 
had sought. Moreover, because implementation of the proposed rule would 
not result in environmental impacts, the no-action alternative would 
not reduce the environmental impacts.
    Accordingly, the Commission determined in this environmental 
assessment that there will be no significant offsite impact to the 
public from this action. However, the Commission is soliciting public 
comments on any aspect of the environmental assessment. These comments 
may be submitted to the NRC as indicated under the ADDRESSES heading.

VI. Paperwork Reduction Act Statement

    This proposed rule does not contain information collection 
requirements and, therefore, is not subject to the requirements of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The posting 
requirements contained in this proposed rule are not included in the 
definition of information collection because the public disclosure 
information was originally supplied by the Federal Government to the 
recipient for the purpose of disclosure to the public.

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 
OMB control number.

VII. Regulatory Analysis

    A regulatory analysis has not been prepared for this regulation. 
Congress

[[Page 51381]]

authorized the NRC to implement by regulation section 654 of the Energy 
Policy Act of 2005, which establishes as a Federal crime the 
unauthorized introduction of weapons or explosives into NRC-designated 
facilities. The Atomic Energy Act requires that signs be conspicuously 
posted warning facility entrants of the criminal prohibition. The only 
costs associated with implementing the proposed rule are the costs to 
procure, post and maintain these signs. The Commission has considered 
the economic implications of this proposed rule, and has determined 
that there are limited costs associated with implementation.

VIII. Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the Commission certifies that this proposed rule, if 
promulgated, would not have a significant economic impact upon a 
substantial number of small entities.

IX. Backfit Analysis

    The NRC has determined that a backfit rule, 10 CFR 50.109, 70.76, 
72.62, 76.76, does not apply to this proposed rule and that a backfit 
analysis is not required. The backfit analysis is not required because 
the only actions required by the proposed rule would be the procuring 
and posting of signs. The posting of such signs is required by section 
229a.(2) of the AEA and does not involve the exercise of agency 
discretion and, in any event, does not require the modification of or 
additions to systems, structures, components, or design of a facility 
or the design approval or manufacturing license for a facility, or the 
procedures or organization required to design, construct, or operate a 
facility.

X. Agreement State Compatibility

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' approved by the Commission on June 30, 1997, 
and published in the Federal Register on September 3, 1997 (62 FR 
46517), this rule is classified as Compatibility Category ``NRC.'' 
Compatibility is not required for Category ``NRC'' regulations. The NRC 
program elements in this category are those that relate directly to 
areas of regulation reserved to the NRC by the Atomic Energy Act of 
1954, as amended (AEA), or the provisions of Title 10 of the Code of 
Federal Regulations. Although an Agreement State may not adopt program 
elements reserved to NRC, it may wish to inform its licensees of 
certain requirements via a mechanism that is consistent with the 
particular State's administrative procedure laws but does not confer 
regulatory authority on the State.

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.

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 552, the NRC is proposing to 
adopt the following amendments to 10 CFR part 73.

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

    1. The authority citation for part 73 continues to read as follows:

    Authority: Secs. 53, 161, 149, 68 Stat. 930, 948, as amended, 
sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2169, 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); Energy Policy Act of 2005, Public 
Law 109-58, 119 Stat. 594 (2005).
    Section 73.1 also issued under secs. 135, 141, Public Law 97-
425, 96 Stat. 2232, 2241 (42 U.S.C., 10155, 10161). Section 73.37(f) 
also issued under sec. 301, Public Law 96-295, 94 Stat. 789 (42 
U.S.C. 5841 note). Section 73.57 is issued under sec. 606, Public 
Law 99-399, 100 Stat. 876 (42 U.S.C. 2169).

    2. Section 73.75 is added to read as follows:


Sec.  73.75  Posting.

    Licensees or certificate holders operating facilities subject to 
the requirements of Sec.  73.81(c) shall conspicuously post notices at 
every vehicle and pedestrian entrance to the protected area or, if a 
facility or installation does not have a protected area, at the 
personnel and vehicle entrances to each building containing nuclear 
material or radioactive material. Such notices must state: ``The 
willful unauthorized introduction of any dangerous weapon, explosive, 
or other dangerous instrument or material likely to produce substantial 
injury or damage to persons or property into or upon these premises is 
a Federal crime. (42 U.S.C. 2278a.)'' Every such notice must be easily 
readable day and night by both pedestrian and vehicular traffic 
entering the facility or installation. These notices may be combined 
with other notices.
    3. In Sec.  73.81, paragraph (b) is revised, and paragraph (c) is 
added, to read as follows:


Sec.  73.81  Criminal penalties.

* * * * *
    (b) The regulations in part 73 that are not issued under sections 
161b, 161i, or 161o for the purposes of section 223 are as follows: 
Sec. Sec.  73.1, 73.2, 73.3, 73.4, 73.5, 73.6, 73.8, 73.25, 73.45, 
73.75, 73.80, and 73.81.
    (c)(1) Any individual who, without authorization, willfully 
carries, transports, or otherwise introduces or causes to be introduced 
any dangerous weapon, explosive, or other dangerous instrument or 
material likely to produce substantial injury or damage to persons or 
property into or upon any of the following facilities or installations 
licensed or certified by the NRC shall be subject to the criminal 
penalties set forth in section 229 of the Act:
    (i) Production or utilization facilities;
    (ii) High-level waste storage or disposal facilities and 
independent spent fuel storage installations; or
    (iii) Uranium enrichment, uranium conversion, or nuclear fuel 
fabrication facilities.
    (2) Licensees or certificate holders operating facilities described 
in paragraph (c)(1) of this section must follow the posting 
requirements in Sec.  73.75.
    (3) As used in this section:
    (i) ``Without authorization'' means not authorized as part of one's 
official duties to carry weapons or explosives;
    (ii) ``Introduce'' means to transport or discharge a weapon, 
explosive or other dangerous instrument past the notice posted pursuant 
to Sec.  73.75.
    (4) For all facilities or installations described in paragraph 
(c)(1) of this section that do not possess nuclear material or 
radioactive material as of [insert effective date of final rule], this 
provision shall take effect upon receipt of nuclear material at the 
applicable facility or installation.

    Dated at Rockville, Maryland, this 25th day of August 2008.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E8-20365 Filed 9-2-08; 8:45 am]
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