[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
________________________________________________________________________
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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