[Federal Register Volume 74, Number 197 (Wednesday, October 14, 2009)]
[Rules and Regulations]
[Pages 52667-52675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24566]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 73

[NRC-2008-0458]
RIN 3150-AI31


Criminal Penalties; Unauthorized Introduction of Weapons

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending 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 (AEA).

DATES: This rule is effective on April 12, 2010.

ADDRESSES: You can access publicly available documents related to this 
document using the following methods:
    Federal e-Rulemaking Portal: Go to http://www.regulations.gov and 
search for documents filed under Docket ID [NRC-2008-0458]. Address 
questions about NRC dockets to Carol Gallagher at 301-415-5905, e-mail 
Carol.Gallagher@nrc.gov.
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Public 
File Area O1 F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC's PDR 
reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to 
pdr.resource@nrc.gov.

FOR FURTHER INFORMATION CONTACT: James E. Adler, Office of the General 
Counsel, telephone 301-415-1656, e-mail: james.adler@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Background
II. Public Comments
III. Discussion of the Final Rule
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. Congressional Review Act
XI. Agreement State Compatibility

I. Background

    Section 654 of the Energy Policy Act of 2005, ``Unauthorized 
Introduction of Dangerous Weapons,'' amended Sec.  229 of the AEA (42 
U.S.C. 2278a) 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 NRC.

[[Page 52668]]

This rule implements that legislative provision.
    In 1956, Congress added Sec.  229 to the AEA. That section made it 
a Federal 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 U.S. Department of 
Energy (DOE) as well as the buildings occupied by the NRC. Section 229 
of the AEA 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 
NRC had the ability to take action against its licensee for violation 
of security requirements, but could not refer the matter to the U.S. 
Department of Justice (DOJ) 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 NRC 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 Sec.  654 of the 
Energy Policy Act of 2005, amending Sec.  229 of the AEA (42 U.S.C. 
2278a). This section authorizes the NRC 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.''

II. Public Comments

    The NRC published a proposed rule on September 3, 2008 (73 FR 
51378) and provided the opportunity for public comment. The Federal 
Register notice for the proposed rule identified certain issues about 
which the NRC was particularly interested in receiving comments. These 
issues included:
    (1) Whether the rule's scope should be extended beyond the 
facilities listed in the proposed rule to additionally cover hospitals 
and other classes of facilities licensed to possess nationally tracked 
sources that are in the National Source Tracking System;
    (2) Whether terms used in the proposed rule such as ``dangerous 
weapon,'' ``dangerous instrument or material,'' and ``explosive'' 
should be further defined, and what such definitions should be;
    (3) Whether such definitions, if provided at all, should be set 
forth in the rule itself or in a guidance document;
    (4) Whether the proposed 90-day implementation period provides 
licensees sufficient time to acquire and install the signs that the 
rule would require licensees to post;
    (5) Whether the proposed rule's language regarding sign location is 
sufficient; and
    (6) Whether the proposed rule's performance-based standard (i.e., 
``easily readable day and night'') should be replaced with more 
detailed requirements or with a reference to a preexisting signage 
standard, such as the standards promulgated under the Americans with 
Disabilities Act.
    Seventeen comments were received. A few commenters addressed the 
issue of which facilities should be covered by the rule. Some of these 
commenters favored extending coverage to hospitals and other facilities 
possessing nuclear or radioactive material. Reasons given by such 
commenters included:
    (1) Anyone who introduces a dangerous weapon, explosive, or other 
dangerous material into such a facility most likely intends to do harm;
    (2) Anyone bringing such an item into a hospital or other facility 
that stores nuclear or radioactive material should expect to be 
penalized for doing so;
    (3) Signs will ensure that the rule is not violated by accident, 
although anyone who intends to cause harm in a covered facility would 
likely not be deterred by the rule anyway; and
    (4) Those seeking to access nuclear or radioactive materials in 
such facilities for illicit purposes would likely be able to locate 
those materials even if there are no signs posted pursuant to this 
rule. Thus, it is not valid to view such signs as rendering sensitive 
materials easier to find and therefore less secure.
    Another commenter, however, recommended against extending the sign-
posting requirement to these facilities. This commenter (a major 
medical institution) reasoned that:
    (1) Signs would attract attention to the location of nationally 
tracked sources, thereby potentially rendering them less secure, given 
that many licensees currently try to avoid drawing attention to the 
locations of such materials;
    (2) The strong language in the posting could be frightening to 
patients in hospitals, who may already be in a vulnerable state due to 
their medical situations; and
    (3) Persons with unescorted access to facility areas of concern can 
simply be trained both to understand the rule themselves and to warn 
persons they escort about the rule's existence.
    This commenter also noted that if the National Source Tracking 
System is expanded to include Category 3 and 1/10th Category 3 sources, 
an expansion of the rule to cover hospitals or other facilities would 
reach substantially more facilities than it otherwise would.
    Several of the comments recommended that the NRC provide 
definitions of terms such as ``dangerous weapon,'' ``explosive,'' and 
``dangerous instrument or material.'' Commenters' justifications for 
recommending definitions of these terms included promoting consistency 
in licensee reporting of violations of this rule and minimizing 
ambiguity in a rule whose violation may result in criminal prosecution. 
One commenter suggested that the content of these definitions should 
relate to the security capabilities of licensees to avoid prohibiting 
introduction of items that could not realistically be used to overpower 
plant security teams. Another commenter recommended that definitions be 
included in the rule itself, with further information and illustrations 
provided in a guidance document. Another commenter recommended that the 
posted notices identify any items that ordinary persons would not 
expect to be considered dangerous, but which nonetheless pose special 
hazards in light of the nature of the facility or the material located 
at the facility. Lastly, one commenter recommended that another term 
used in the proposed rule, ``introduce,'' be defined more clearly to 
ensure that the rule will apply to a person who introduces a dangerous 
instrument (e.g., a bullet) into the protected area by some means that 
does not require the person to pass beyond a sign (e.g., by firing a 
gun from outside the protected area).
    As to the proposed 90-day implementation period, two industry 
commenters recommended that the period be extended to 180 days to allow 
sufficient time for sign procurement and installation. No other 
commenters expressed views on this issue.
    A few comments addressed the issue of sign location. One of these 
comments

[[Page 52669]]

recommended installing signs not only at entrances, but also within 
protected areas to serve as additional reminders. Another comment 
sought clarification regarding areas outside the protected area but 
which nonetheless contain nuclear or radioactive material, such as 
licensee effluent treatment facilities, low-enriched uranium storage 
facilities, and radioactive waste storage facilities. The comment 
recommended that the posting requirement not apply to such areas, in 
light of the fact that entrants to such areas are not required to be 
searched prior to entry. Lastly, one commenter suggested allowing 
licensees the option of posting notices on roadways leading to facility 
checkpoints or parking areas, in addition to the notices required to be 
posted at vehicle and pedestrian entrances, in order to provide advance 
warning and thus facilitate the avoidance of protected areas by people 
carrying weapons.
    Several commenters addressed the issue of sign characteristics. 
Some commenters recommended inclusion of specific rules regarding text 
size and color. One commenter suggested requiring lighting to ensure 
readability at night, while other commenters preferred the more 
flexible performance-based standard (i.e., ``easily readable day and 
night'') utilized in the proposed rule. No commenters objected to the 
requirement that the notices be readable at night.
    A number of comments also addressed topics beyond those 
specifically identified in the statement of considerations for the 
proposed rule. One commenter recommended that the rule require 
establishment of temporary weapons storage sites at pedestrian and 
vehicle entrances, so that persons lawfully carrying firearms can store 
any weapons before entering and pick them up when they leave. Another 
commenter recommended that the rule be harmonized with existing DOE 
signage regulations to avoid confusion or redundancy for those 
facilities that would be required to comply with both regulatory 
schemes. One commenter recommended that the rule define the term 
``willful'' as ``an intentional act which may include evidence of 
subterfuge, masking, or malevolent intent.'' Finally, the DOJ 
recommended that the statement of considerations for the final rule 
clarify that the Federal Bureau of Investigation is not the only 
Federal entity other than the NRC that could potentially conduct 
investigations of suspected violations of this rule.
    All of these comments are discussed and addressed in Section III 
below.

III. Discussion of the Final Rule

    The NRC is amending 10 CFR 73.81, ``Criminal Penalties,'' and 
adding Sec.  73.75, ``Posting,'' to implement Sec.  654 of the Energy 
Policy Act of 2005. Under the 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 
Sec. Sec.  236a.(1) or (4) of the AEA will be subject to the criminal 
penalties set forth in Sec.  229 of the AEA. Consistent with the Energy 
Policy Act Sec.  654 requirement that the regulation be posted 
conspicuously at each location involved, Sec.  73.75 will require 
licensees to post notices at such facilities or installations.

Facilities Covered

    The NRC is primarily concerned with dangers posed by the 
unauthorized introduction of weapons or explosives or other dangerous 
items when nuclear material and radioactive material are present. By 
listing these facilities in section 236 of the AEA, Congress has 
recognized the potential danger that could result from sabotage of such 
facilities; consequently, the NRC believes it prudent to also make the 
willful unauthorized introduction of weapons or explosives into or upon 
these facilities a Federal crime. The covered facilities include 
production and utilization facilities and uranium enrichment, uranium 
conversion and fuel fabrication facilities. The rule also covers some 
of the facilities listed in AEA Sec.  236a.(2). Specifically, this 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 Sec.  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 will continue to be governed, absent other 
Federal legislation, by State law.
    The final rule accounts for the fact that not all portions of the 
listed classes of facilities will necessarily pose sufficient security 
concerns to justify imposition of criminal penalties. Therefore, the 
rule's application is limited to areas within a facility or 
installation's protected area, as well as portions of facilities or 
installations that are not within a protected area per se but for which 
security plans under 10 CFR part 73 must nonetheless be in place. The 
term ``protected facility or installation'' has also been added to the 
final rule to refer solely to those portions of facilities that the 
criminal penalties are intended to protect. The rule's reference to 
security plan requirements under Part 73, which was not included in the 
proposed rule, should resolve the ambiguity identified by a commenter 
regarding certain portions of facilities that are outside the protected 
area but which nonetheless contain nuclear or radioactive materials.
    The NRC has limited the rule's applicability to the facilities 
listed in Sec. Sec.  73.75(a) and 73.81(c)(2)(i) 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 have needed to interact with 
Agreement States and other State and Federal regulators to further 
assess the need for application of Sec.  73.81 to these classes of 
facilities and to determine the proper placement of the required 
notices and the best way to implement this regulation. As suggested by 
a public comment, adding posted notices--which, under the statute, is a 
required complement to the imposition of criminal penalties--to 
facilities such as hospitals could raise substantial policy and 
implementation issues. While the NRC acknowledges the recommendations 
of some commenters that hospitals and other facilities be addressed via 
this rule, the NRC believes that such extension would raise additional 
complexities that would be best addressed in a separate rulemaking, 
should the NRC determine at a future date that expansion of the scope 
of this rule is warranted.
    The NRC is not including the following facilities or materials even 
though they are listed in Sec.  236 of the AEA:
     Subsection 236a.(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 AEA 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, Sec.  229, by its terms, is not applicable 
to this subsection.
     Subsection 236a.(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

[[Page 52670]]

caused or attempted to be caused could adversely affect public health 
and safety. The NRC is primarily concerned with dangers posed by the 
unauthorized introduction of weapons or explosives into facilities when 
special nuclear material, byproduct material, or source material is 
present. Therefore, Sec.  73.81(c) will apply only to those facilities 
designated in Sec.  73.81(c)(2)(i) upon the receipt of such material. 
An unauthorized introduction of a weapon or explosive resulting in 
sabotage covered by AEA Sec.  236 before the receipt of special nuclear 
material, byproduct material, or source material already constitutes a 
Federal crime. Although the proposed rule utilized the terms ``nuclear 
material'' and ``radioactive material'' instead of ``special nuclear 
material, byproduct material, or source material,'' the former terms 
are potentially vague and imprecise. Therefore, the final rule is using 
the latter terminology in order to avoid potential misinterpretation. 
This change, which appears in Sec. Sec.  73.75(b)(2) and 73.81(c)(4), 
is intended to be clarifying rather than substantive.
     Subsection 236a.(6) covering any ``primary or backup 
facility from which a radiological emergency preparedness alert or 
warning system is activated.'' These facilities do not contain special 
nuclear material, byproduct material, source material, or the controls 
needed to operate a facility.
     Subsection 236a.(7) pertaining to other materials or 
property that the NRC designates by order or regulation. The NRC is 
excluding this section because the rulemaking implementing this 
subsection of Sec.  236 has not commenced. The NRC may revisit this 
exclusion as part of the rulemaking implementing the Energy Policy Act 
of 2005 revisions to Sec.  236, or in a separate rulemaking.
    In response to a public comment, one class of facilities and 
installations that is exempted under the final rule includes those 
facilities and installations that already must comply with similar 
signage requirements under DOE regulations. DOE regulations already 
criminalize the unauthorized introduction of dangerous weapons, 
explosives, or other dangerous instruments or materials into or upon 
various facilities and installations within DOE's jurisdiction and 
require that such facilities and installations post notices to that 
effect. The DOE regulations, however, establish criminal penalties 
that, while not substantially different, are nonetheless not identical 
to those being established by this rule. Exempting these facilities 
from this rule avoids establishing what would in effect be identical 
crimes punishable by different penalties with respect to those 
facilities.

Criminal Penalties, Investigation, and Prosecution

    Under the final rule's terms, whoever willfully introduces, without 
authorization, weapons or explosives into or upon any protected 
facility or installation (as defined in Sec.  73.81(c)(2)) 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 AEA. Whoever willfully 
introduces, without authorization, weapons or explosives into or upon 
any other protected facility or installation would be, upon conviction, 
punishable by a fine of not more than $1,000, as set forth in section 
229b of the AEA. The maximum penalties would vary based upon whether 
the facility in question is enclosed by a fence, wall, floor, roof, or 
other barrier. The proposed rule's version of 73.81(c)(1) was worded in 
a manner that, when read in conjunction with AEA sections 229b and 
229c, was circular and potentially confusing. The final rule therefore 
contains a reworded section 73.81(c)(1). This modification is not, 
however, intended to change the substance of the rule in any way.
    This final rule does not interfere with State prosecution of these 
crimes under State law, but it does allow the Federal Bureau of 
Investigation, the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives, or other Federal law enforcement agencies to investigate 
and DOJ to prosecute in addition to, or instead of, the State 
government.
    The NRC is also not making violations of Sec.  73.75 criminally 
punishable under AEA sections 229b and 229c. The Commission's objective 
in this rulemaking, which the Commission believes is consistent with 
the Congressional intent, is to ensure that the criminal penalties in 
sections 229b and 229c apply to persons who introduce weapons into 
facilities without authorization. Furthermore, the NRC has sufficient 
administrative sanctions at its disposal to enforce the posting 
requirements.

Regulatory Burden--Posting of Signs

    This regulation would not impose any burden on States. The only 
burden the regulation would impose on licensees is the statutorily 
mandated requirement that signs containing the quoted text in Sec.  
73.75 be posted conspicuously at each of the listed facilities. The 
rule requires that these signs be posted at all entrances to the 
protected area, as well as all entrances to buildings not within a 
protected area that nonetheless contain special nuclear material, 
byproduct material, or source material (except with respect to 
buildings for which security plans are not required under 10 CFR part 
73). The link between the posting requirements and the NRC's security 
plan requirements under part 73 has been added to the final rule in 
response to a public comment to ensure consistency between the NRC's 
security regulations and the criminal penalties (and licensee posting 
obligations) being established. The signs may also include other 
prohibitions already posted at the point of entry.
    Although one commenter recommended that additional signs be posted 
within each facility or installation to serve as further reminders of 
the regulation's criminal penalties, any person who willfully brings a 
prohibited item into the facility or installation will have already 
committed the crime by the time such reminder signs are encountered. 
The posting of such signs, therefore, will not be required, but 
licensees are not precluded from posting additional signs.
    As the rule states, the signs must be easily readable day and night 
by both pedestrian and vehicular traffic. The NRC, in response to 
comments, is providing a 180-day implementation period for this 
requirement to allow licensees sufficient time to acquire and install 
the appropriate signs.
    The posting requirement is primarily performance-based, stating 
that signs should be ``easily readable day and night.'' Accordingly, 
any design and placement that renders the notice ``easily readable day 
and night'' will satisfy this standard. Although one commenter 
suggested requiring lighting in order to ensure readability at night, 
the NRC believes it is sufficient to rely upon the performance-based 
standard for night readability, because different facilities, as well 
as different sign locations at each facility, may have different 
lighting needs.
    Although the ``easily readable day and night'' standard is 
primarily performance-based, it is the NRC's view that compliance with 
an up-to-date version of the Americans with Disabilities Act (ADA) 
signage standards (currently set forth at 28 CFR part 36, appendix A, 
section 4.30) will satisfy the ``easily readable day and night'' 
standard with respect to those aspects of sign design and placement 
that the ADA standards address. In their present version, for instance, 
the ADA standards address topics such as character proportion, 
character height, finish and

[[Page 52671]]

contrast, and mounting location and height. Providing licensees the 
option of relying upon the ADA standards to help ensure compliance with 
the ``easily readable day and night'' standard should promote an 
appropriate balance of flexibility and predictability. The ADA 
standards may not, however, address all aspects of the ``easily 
readable day and night'' standard. For example, the current ADA 
standards do not address readability at night. Therefore, the ADA 
standards may, in practice, serve only as partial guidance with respect 
to sign design and placement.
    One commenter recommended that the rule require licensees to 
provide a means for workers and visitors who lawfully possess weapons 
to temporarily store them at facility entrances prior to entering, such 
that the weapons could be retrieved later upon exiting. In the NRC's 
view, the presence or absence of temporary weapons storage for this 
purpose is primarily a convenience and logistical issue of potential 
concern to licensees, their employees, and other plant visitors; it is 
not an issue of significant regulatory concern that the NRC must 
address. Therefore, the final rule will neither prohibit nor mandate 
the presence of such temporary weapons storage at the entrances to 
affected facilities or installations.
    Similarly, the posting of additional notices on roadways leading to 
checkpoints or parking areas is neither required nor prohibited by the 
rule and is, therefore, left to the licensee's discretion. It is 
important to note, however, that the location of a posted notice will 
define the point at which introduction into the facility occurs for 
purposes of this final rule, at least where introduction occurs at a 
traditional vehicle or pedestrian entrance to the facility. 
Accordingly, licensees wishing to post notices in addition to those 
required by Sec.  73.75, such as to provide advance notice about the 
Sec.  73.81 criminal penalties to workers or visitors who are 
approaching a facility entrance or a courtesy storage site for 
prohibited items, would be advised to ensure that such notices will not 
be mistaken for the notices required to be posted at facility entrances 
under Sec.  73.75. This could be accomplished, for instance, by not 
using the precise language on the ``advance warning'' notices that is 
required to be used on the notices posted pursuant to Sec.  73.75. Such 
additional ``advance warning'' notices, of course, would not take the 
place of the notices that Sec.  73.75 requires to be posted at all 
vehicle and pedestrian entrances to each protected facility or 
installation.
    Although the text of the final rule does not specifically address 
such situations, there may, as a practical matter, be cases in which a 
covered facility does not require its own posted notices. This would 
seem most likely to occur when one covered facility is embedded 
completely within the protected area of another covered facility (for 
example, an independent spent fuel storage facility located entirely 
within a nuclear power plant's protected area). Because Sec.  
73.75(b)(1) requires the posting of notices for protected areas only at 
the protected area's entrances, the embedded facility would not require 
its own notices if none of the embedded facility's entrances serve as 
entrances to the larger protected area.
    One non-substantive change to the Sec.  73.75 posting provision is 
that a new subsection 73.75(a) has been added to identify the 
categories of facilities to which Sec.  73.75 applies. This eliminates 
an unnecessary cross reference to Sec.  73.81(c). Another non-
substantive change involves Sec.  73.81(c)(2) of the proposed rule. The 
requirement found in that provision was redundant, serving merely to 
remind readers that there are associated posting requirements in Sec.  
73.75. Because some of the definitions in Sec.  73.81(c) of the final 
rule perform a similar reminder function by referencing the Sec.  73.75 
posting requirements, Sec.  73.81(c)(2) is unnecessary and has been 
removed.

Definitions of Key Terms

    The unauthorized introduction--whether by carrying, transporting, 
discharging of a firearm, or otherwise--of weapons, explosives, or 
other dangerous instruments or materials into or upon the area marked 
by the posted notices will constitute a Federal crime under this final 
rule. For purposes of this final rule, ``without authorization'' means 
lacking authorization, as part of one's official duties, to carry the 
item in question. Accordingly, the introduction of weapons by security 
guards, peace officers, or military personnel as part of their official 
duties would be ``authorized'' and these individuals would not be 
subject to criminal sanctions under this rule. Additionally, the 
introduction of potentially dangerous industrial tools, machinery, or 
other materials into a facility as part of one's job duties would 
likewise not be subject to criminal sanctions under this rule.
    As noted above, a new term, ``protected facility or installation,'' 
has been added to the final rule. This term, which encompasses solely 
those portions of facilities that the criminal penalties are meant to 
protect, is included to ensure that the posting requirements under 
Sec.  73.75 and the criminal penalty provisions under Sec.  73.81 will 
be consistent with one another (a task previously performed by the 
proposed rule's definition of ``introduce'') and to create a simple 
means of referring, in Sec.  73.81(c)(1), to the facility areas that 
provision is meant to cover.
    The terms ``dangerous weapons,'' ``dangerous instrument or 
material,'' and ``explosives'' are not defined in the statute that 
these regulations would implement. In addition, the DOE regulations 
referred to above utilize these same terms to define comparable 
criminal conduct but do not define them. The NRC has determined, 
however, that enforcement could be enhanced by providing definitions 
for at least some of these terms. Furthermore, a number of public 
comments recommended providing definitions to promote clarity and 
consistency in the rule's implementation.
    Accordingly, the NRC, after consultation with DOJ, has adopted a 
set of definitions from existing Federal criminal statutes. A newly 
inserted definition for the rule's term ``dangerous weapon'' references 
existing definitions found at 18 U.S.C. 921(a)(3) and 26 U.S.C. 5845(a) 
for the term ``firearm'' and the 18 U.S.C. 930(g)(2) definition of the 
term ``dangerous weapon.'' \1\ Although these relatively broad 
incorporated definitions may overlap with one another in many respects, 
the rule references each of them in order to ensure that no 
legitimately dangerous items will be inadvertently left uncovered by 
this rule. In addition, a new definition for ``explosive'' incorporates 
the definition of ``explosive'' found at 18 U.S.C. 844(j). The 
referenced ``firearm'' definitions do provide exceptions for antique 
weapons, certain recreational and sporting guns, and army surplus 
ordnance. Those exceptions, however, will have no effect for purposes 
of this final rule, because antique weapons, recreational and sporting 
guns, and army surplus ordnance still fall within the terms of the 18 
U.S.C. 930(g)(2) definition of ``dangerous weapon,'' which broadly 
covers any ``weapon, device, instrument, material, or substance, 
animate or inanimate, that is used for, or is readily capable of, 
causing death or

[[Page 52672]]

serious bodily injury.'' This is appropriate because even the types of 
weapons excepted under the ``firearm'' definitions are not appropriate 
for introduction, without authorization, into highly secure nuclear 
facilities.
---------------------------------------------------------------------------

    \1\ Because the term ``dangerous weapon'' as used in 18 U.S.C. 
930(g)(2) does not expressly cover firearms, the NRC believes it is 
appropriate to incorporate definitions of ``firearm'' as well.
---------------------------------------------------------------------------

    The NRC does not plan to issue guidance for licensees beyond what 
is contained in this statement of considerations to further define 
these terms. The NRC considers extensive guidance to licensees 
regarding the reporting requirements associated with this final rule to 
be unnecessary. The purpose of the rule is to criminalize the 
unauthorized introduction of items that licensee security plans should 
already be prohibiting as part of their existing security efforts. Such 
items include guns, explosives, and any other items that would pose a 
legitimate security threat if brought into a protected facility without 
authorization. Unremarkable personal items such as pocket knives 
attached to key chains, butter knives in lunch boxes, and so on are not 
intended to be covered by this rule, and so would not trigger any 
licensee reporting requirements absent some further facts (such as, for 
example, evidence of intent to commit sabotage) which would implicate 
some other criminal provision or other basis for reporting the 
incident. Indeed, the 18 U.S.C. 930(g)(2) definition of ``dangerous 
weapon,'' which the final rule's definition of ``dangerous weapon'' 
incorporates, expressly excludes pocket knives with blades less than 
2\1/2\ inches long. With these principles in mind, as well as the 
additional clarity provided by the definitions of ``dangerous weapon,'' 
``firearm,'' and ``explosive'' that are being incorporated from 
existing Federal criminal statutes, the NRC expects that licensees will 
be able to comply with the reporting requirements associated with this 
rule without additional formal guidance. As explained in the next 
section of this statement of considerations, however, the NRC, after 
consulting with DOJ, will consider whether to adopt any additional 
guidance that is submitted by the regulated community to the NRC for 
review.
    As to the term ``willful,'' the NRC is also declining a commenter's 
recommendation that the term be defined. The NRC expects that 
prosecutors and courts will define the term as it is usually defined 
when used in Federal criminal statutes. The U.S. Supreme Court has 
stated that, ``[a]s a general matter, when used in the criminal 
context, a `willful' act is one undertaken with a `bad purpose.' '' 
Bryan v. United States, 524 U.S. 184, 191 (1998). One common way to 
prove the existence of a ``bad purpose'' is to show that the defendant 
``acted with knowledge that his conduct was unlawful.'' Id. at 192. 
This is consistent with one commenter's suggestion that the definition 
of willful should refer to ``evidence of subterfuge, masking, or 
malevolent intent,'' because such evidence would tend to indicate that 
the defendant knew the conduct in question was unlawful. Further, the 
easily readable notices posted at all vehicle and pedestrian entrances 
will help to ensure that all visitors are aware of the prohibition.
    The definition of the term ``introduce,'' which was included in the 
proposed rule, is replaced in the final rule for clarification purposes 
with a new Sec.  73.81(c)(3), which serves to define the entire phrase 
that is used in Sec.  73.81(c)(1) (i.e., ``carrying, transporting, or 
otherwise introducing or causing to be introduced''). The new Sec.  
73.81(c)(3) removes any possible suggestion that the terms 
``carrying,'' ``transporting,'' and ``otherwise introducing'' should be 
analyzed separately, rather than as a single concept meant to cover any 
conceivable method of introduction. The new provision also more 
expressly accounts for the fact that entrance to a protected facility 
or installation might occur at a location that is not a traditional 
vehicle or pedestrian entrance, and which therefore might not be in the 
vicinity of a notice posted pursuant to Sec.  73.75. For instance, a 
perpetrator carrying a prohibited item might try to enter the facility 
by breaching a fence, wall, or other barrier, or by some other means 
that occurs away from the vehicle and pedestrian entrances and any 
Sec.  73.75 notices. Under the proposed rule's formulation, it could 
have been unclear in these circumstances whether or when an 
introduction has actually occurred, because the proposed rule relied 
entirely upon the location of the notice to define when an 
``introduction'' occurs. The new Sec.  73.81(c)(3), therefore, relies 
upon a common sense concept of entering a facility for those instances 
where entry does not occur at a traditional ``entrance.'' When entrance 
to the facility does occur at a traditional vehicle or pedestrian 
entrance, however, the Sec.  73.75 notice will remain the boundary 
marker for purposes of this rule.

Relationship of Rule to Licensee Security Procedures

    As explained in the statements of consideration for the proposed 
rule, this 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 the final rule, weapons, explosives, or 
other dangerous instruments or materials that are introduced without 
authorization would be ``contraband.'' Licensees should note that the 
purpose of this rule is to broaden Federal prosecutorial authority, not 
to change licensee security practices.
    With that said, licensees who suspect they have uncovered actual or 
attempted violations of this rule are encouraged to promptly notify 
local or Federal law enforcement authorities, who may provide 
additional guidance as circumstances warrant. Licensees may also, of 
course, contact the NRC for further guidance. The NRC does not 
currently plan to issue any additional guidance regarding the 
procedures that licensees should employ upon discovering actual or 
suspected violations or attempted violations of this rule. If licensees 
desire additional guidance regarding the procedural steps to follow 
after discovery of suspected or actual violations or attempted 
violations of this rule, the NRC is willing to review and consider 
whether to adopt any guidance that the regulated community sees fit to 
propose. The NRC anticipates that it would consult with DOJ before 
endorsing any proposed guidance.
    Finally, the NRC notes that the preexisting responsibilities of 
licensees to maintain the security of their facilities are not altered 
by the fact that this rule is now making one particular class of 
security threat--the unauthorized introduction into protected 
facilities of dangerous weapons, explosives, or other dangerous 
instruments or materials--a Federal crime.

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 final rule, the NRC 
is establishing 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

[[Page 52673]]

contains generally applicable requirements.

V. Finding of No Significant Environmental Impact: Environmental 
Assessment

    The NRC has determined under the National Environmental Policy Act 
of 1969, as amended, and the NRC's regulations in Subpart A of 10 CFR 
part 51, that this rule is not a major Federal action significantly 
affecting the quality of the human environment and that, therefore, an 
environmental impact statement is not required. The basis for this 
determination is as follows:
    The Need for the Rule:
    This final rule is needed to implement Sec.  229 of the AEA. In 
Sec.  654 of the Energy Policy Act of 2005, Congress amended Sec.  229 
of the AEA, 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 Rule:
    The NRC has completed its evaluation of the rule and concludes that 
it will not cause any significant environmental impact. The only action 
required by the rule is the requirement in Sec.  73.75 that licensees 
place a notice at each entrance to the protected area and to any 
buildings not within a protected area that contain special nuclear 
material, byproduct material, or source material and which are required 
to have security plans under 10 CFR part 73. Licensees already post 
notices at the entrances to facilities, and this rule allows licensees 
to combine the notice required in Sec.  73.75 with these other notices. 
The NRC requested public comments on the environmental assessment 
included with the proposed rule, which likewise predicted that there 
would be no significant environmental impacts, but no comments on the 
topic were received. The final rule includes essentially the same 
posting requirements that were found in the proposed rule, with only 
minor clarifications as to which buildings and areas are, and are not, 
covered by the posting requirements, as well as additional information 
regarding permissible sign formats. Therefore, the NRC has concluded 
that there will be little to no environmental impact of creating and 
posting the notices required by this final rule. Accordingly, the NRC 
concludes that there will be no significant environmental impacts 
associated with this action.
    Alternatives to the Proposed Action:
    As an alternative to the proposed action, the NRC 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 rule would not 
result in any significant environmental impacts, the no-action 
alternative would not significantly reduce environmental impacts.
    Accordingly, the NRC has determined in this environmental 
assessment that there will be no significant offsite impact to the 
public from this action.

VI. Paperwork Reduction Act Statement

    This 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.). This rule does not 
establish any reporting requirements. In addition, the posting 
requirements contained in this rule are not included in the definition 
of information collection. This is because the text to be printed on 
the required notices is being completely supplied by NRC regulation (10 
CFR 73.75(b)(3)), and a requirement to publicly disclose information 
that was originally provided by the Federal Government does not 
constitute an ``information collection.'' 5 CFR 1320.3(c)(2).

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 authorized the NRC to implement by regulation Sec.  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 AEA requires that signs be conspicuously posted to warn 
facility entrants of the criminal prohibition. The only costs 
associated with implementing the rule are the costs to procure, post, 
and maintain these signs since procedures and organization required to 
protect against the unauthorized introduction of weapons are already 
required. The NRC estimates these costs to be $50 per sign, with an 
estimated average of six signs per affected facility, for an average 
total cost of $300 per facility. Based upon the number of facilities 
that would be covered by this rule if it were effective today, the NRC 
views $50,000 as a conservative industry-wide cost estimate. The NRC 
considers this cost to be reasonable because of the express 
congressional requirement that any facilities covered by regulations 
promulgated under AEA Sec.  229a.(1) post such regulations 
``conspicuously,'' and because the signs are required to be posted only 
at locations where entry into covered facilities would ordinarily 
occur.

VIII. Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), the NRC certifies that this rule does not have a significant 
economic impact on a substantial number of small entities. The 
companies that own the facilities affected by this rule do not fall 
within the scope of the definition of ``small entities'' set forth in 
the Regulatory Flexibility Act or the size standards established by the 
NRC (10 CFR 2.810).

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 rule and that a backfit analysis 
is not required. A backfit analysis is not required because the only 
actions required by the rule are the procuring and posting of signs. 
The conspicuous posting of notices is expressly required by Sec.  
229a.(2) of the AEA for any facility covered by regulations promulgated 
under Sec.  229a.(1), and so the requirement to post notices does not 
result from an exercise of NRC discretion. In any event, the posting of 
notices pursuant to this rule 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.
    Likewise, the criminal penalties established by this rule merely 
authorize Federal prosecution of certain crimes, and therefore do 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. Congressional Review Act

    In accordance with the Congressional Review Act (5 U.S.C. 801-808), 
the NRC

[[Page 52674]]

has determined that this action is not a major rule and has verified 
this determination with the Office of Information and Regulatory 
Affairs of the Office of Management and Budget.

XI. Agreement State Compatibility

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' approved by the NRC 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 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.

0
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 and 553, the NRC is adopting the 
following amendments to 10 CFR part 73.

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

0
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, Pub. L. 
109-58, 119 Stat. 594 (2005). Section 73.1 also issued under secs. 
135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C, 10155, 
10161). Section 73.37(f) also issued under sec. 301, Pub. L. 96-295, 
94 Stat. 789 (42 U.S.C. 5841 note). Section 73.57 is issued under 
sec. 606, Pub. L. 99-399, 100 Stat. 876 (42 U.S.C. 2169).


0
2. Section 73.75 is added to read as follows:


Sec.  73.75  Posting.

    (a) This section applies to:
    (1) Production or utilization facilities;
    (2) High-level waste storage or disposal facilities and independent 
spent fuel storage installations;
    (3) Uranium enrichment, uranium conversion, or nuclear fuel 
fabrication facilities.
    (b)(1) Licensees or certificate holders operating facilities 
described in paragraph (a) of this section that have a protected area 
shall conspicuously post notices at every vehicle and pedestrian 
entrance to the protected area.
    (2) Licensees or certificate holders operating facilities described 
in paragraph (a) of this section that include buildings not within a 
protected area that nonetheless contain special nuclear material, 
byproduct material, or source material shall conspicuously post notices 
at the personnel and vehicle entrances to each such building, except 
with respect to buildings for which no security plan is required under 
this part.
    (3) The required 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.)''
    (4) Every notice posted under this section must be easily readable 
day and night by both pedestrian and vehicular traffic entering the 
facility or installation.
    (5) These notices may be combined with other notices.
    (c) This section does not apply to facilities that, in addition to 
being regulated by the NRC under a license or certificate of compliance 
issued by the Commission, are also covered by U.S. Department of Energy 
regulations imposing criminal penalties, and associated posting 
requirements, under section 229 of the Atomic Energy Act with respect 
to unauthorized introduction of dangerous weapons, explosives, or other 
dangerous instruments or materials likely to produce substantial injury 
or damage to persons or property.

0
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) No person without authorization may carry, transport, or 
otherwise introduce or cause 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 a 
protected facility or installation. Willful violations of this 
provision are punishable by the criminal penalties set forth in 
sections 229b and 229c of the Atomic Energy Act of 1954, as amended.
    (2) As used in this section:
    (i) ``Protected facility or installation'' means any production or 
utilization facility, high-level waste storage or disposal facility, 
independent spent fuel storage installation, uranium enrichment, 
uranium conversion, or nuclear fuel fabrication facility, but does not 
include those portions of such facilities that are not required under 
Sec.  73.75(b) of this part to be identified by notices posted at their 
pedestrian and vehicle entrances, and does not include facilities 
described in Sec.  73.75(c) of this part.
    (ii) ``Without authorization'' means not authorized as part of 
one's official duties to carry the weapon, explosive, or other 
instrument or material;
    (iii) ``Dangerous weapon'' includes any firearm, as defined in 
either 18 U.S.C. 921 or 26 U.S.C. 5845, or dangerous weapon, as defined 
in 18 U.S.C. 930;
    (iv) ``Explosive'' means any explosive as defined in 18 U.S.C. 
844(j).
    (3) An item, such as a dangerous weapon, explosive, or other 
dangerous instrument or material, is considered to have been carried, 
transported, or otherwise introduced or caused to be introduced into or 
upon a protected facility or installation for purposes of paragraph 
(c)(1) of this section once the item has traveled past a notice posted 
pursuant to Sec.  73.75 of this part at a vehicle or pedestrian 
entrance to the protected facility, or once the item has entered the 
protected facility or installation at a location that is not a vehicle 
or pedestrian entrance to the facility, whether such entry is 
accomplished through, over, under, or around a fence, wall, floor, 
roof, or other structural barrier enclosing the protected facility or 
installation or by any other means.
    (4) For all protected facilities or installations that do not 
possess special nuclear material, byproduct material, or source 
material as of the effective date of this rule, this provision shall 
take effect upon receipt of such material at the applicable facility or 
installation.

    Dated at Rockville, Maryland, this 5th day of October 2009.


[[Page 52675]]


    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E9-24566 Filed 10-13-09; 8:45 am]
BILLING CODE 7590-01-P