[Federal Register Volume 75, Number 197 (Wednesday, October 13, 2010)]
[Proposed Rules]
[Pages 62695-62716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25392]
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
10 CFR Part 73
RIN 3150-AI64
[NRC-2009-0163]
Physical Protection of Irradiated Reactor Fuel in Transit
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to
amend its security regulations pertaining to the transport of
irradiated reactor fuel (for purposes of this rulemaking, the terms
``irradiated reactor fuel'' and ``spent nuclear fuel'' (SNF) are used
interchangeably). This proposed rule would establish generically
applicable security requirements similar to those previously imposed by
Commission orders issued after the terrorist attacks of September 11,
2001. The proposed rule would establish the acceptable performance
standards and objectives for the protection of spent nuclear fuel
shipments from theft, diversion, or radiological sabotage. The proposed
amendments would apply to those licensees authorized to possess or
transport spent nuclear fuel. The proposed security requirements would
also address, in part, a petition for rulemaking from the State of
Nevada (PRM-73-10) that requests that NRC strengthen the regulations
governing the security of spent nuclear fuel shipments against
malevolent acts.
DATES: The comment period expires January 11, 2011. Submit comments
specific to the information collection aspects of this rule by November
12, 2010. Comments received after this date will be considered if
practical to do so, but the NRC is able to assure consideration only
for comments received on or before this date.
ADDRESSES: Please include Docket ID: NRC-2009-0163 in the subject line
of your comments. For instructions on submitting comments and accessing
documents related to this action, see Section I, ``Submitting Comments
and Accessing Information'' in the SUPPLEMENTARY INFORMATION section of
this document. You may submit comments by any one of the following
methods.
Federal Rulemaking Web site: Go to http://www.regulations.gov and
search for documents filed under Docket ID: NRC-2009-0163. Address
questions about the NRC dockets to Carol Gallagher 301-492-3668; e-mail
[email protected].
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
E-mail comments to: [email protected]. If you do not
receive a reply e-mail confirming that we have received your comments,
contact us directly at (301) 415-1966.
Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland
20852, between 7:30 a.m. and 4:15 p.m. during Federal workdays.
(Telephone 301-415-1966)
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at
301-415-1101.
FOR FURTHER INFORMATION CONTACT: Cardelia Maupin, Office of Federal and
State Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, Telephone 301-415-
2312, e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Submitting Comments and Accessing Information
II. Background
III. Discussion
A. What action is the NRC taking in this rule?
B. Why revise the requirements?
C. What is requested by the State of Nevada in its petition for
rulemaking (PRM-73-10)?
D. What are the DOT routing requirements for spent nuclear fuel
shipments?
E. What are the NRC routing requirements for spent nuclear fuel
shipments?
[[Page 62696]]
F. Why do the NRC and DOT routing requirements differ for spent
nuclear fuel shipments?
G. Why require procedures and training for the security of spent
nuclear fuel in transit?
H. Why require a telemetric position monitoring system or an
alternative tracking system for continuous monitoring of spent
nuclear fuel shipments?
I. Why pre-plan and coordinate spent nuclear fuel shipments?
J. Why require constant visual surveillance by armed escort?
K. Why require two-way redundant communication capabilities?
L. Why require background investigations?
M. Why enhance shipment notifications to NRC?
N. Which type of spent nuclear fuel does DOE ship?
O. What is a non-classified shipment of spent nuclear fuel and
what are the DOE requirements for this type of shipment?
P. How are the NRC and DOE requirements similar and how are they
different?
Q. Who would this action affect?
R. Does NRC plan to issue guidance on these proposed
requirements?
S. What should I consider as I prepare my comments to NRC?
IV. Discussion of the Proposed Amendments by Section
V. Criminal Penalties
VI. Agreement State Compatibility
VII. Plain Language
VIII. Voluntary Consensus Standards
IX. Finding of No Significant Environmental Impact: Availability
X. Paperwork Reduction Act Statement
XI. Public Protection Notification
XII. Regulatory Analysis
XIII. Regulatory Flexibility Certification
XIV. Backfit Analysis
I. Submitting Comments and Accessing Information
Comments submitted in writing or in electronic form will be posted
on the NRC Web site and on the Federal rulemaking Web site http://www.regulations.gov. Because your comments will not be edited to remove
any identifying or contact information, the NRC cautions you against
including any information in your submission that you do not want to be
publicly disclosed. The NRC requests that any party soliciting or
aggregating comments received from other persons for submission to the
NRC inform those persons that the NRC will not edit their comments to
remove any identifying or contact information, and therefore, they
should not include any information in their comments that they do not
want publicly disclosed.
You can access publicly available documents related to this
document using the following methods:
NRC's Public Document Room (PDR): The public may examine and have
copied for a fee publicly available documents at the NRC's PDR, Room O-
1 F21, One White Flint North, 11555 Rockville Pike, Rockville,
Maryland.
NRC's Agencywide Document Access and Management System (ADAMS):
Publicly available documents created or received at 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 the 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, or 301-415-4737, or by e-mail to
PDR Resource.
Federal Rulemaking Web site: Public comments and supporting
materials related to this proposed rule can be found at http://www.regulations.gov by searching on Docket ID: NRC-2009-0163.
----------------------------------------------------------------------------------------------------------------
Document PDR ADAMS Web
----------------------------------------------------------------------------------------------------------------
Environmental Assessment...................... X ML092710448........................... X
Regulatory Analysis........................... X ML102710278........................... X
PRM-73-10..................................... X ML092540603........................... X
----------------------------------------------------------------------------------------------------------------
II. Background
A. Pre-September 11, 2001
On June 15, 1979 (44 FR 34466), NRC published an interim final rule
in the Federal Register that established its first requirements for the
physical protection of spent nuclear fuel in transit. The interim final
rule added 10 CFR 73.37, ``Requirements for Physical Protection of
Irradiated Reactor Fuel in Transit'' to 10 CFR part 73. After
considering public comments, the Commission affirmed the interim final
rule on June 3, 1980 (45 FR 37399).
The current Sec. 73.37 has changed little since its promulgation
in 1980. These regulations require licensees to establish a physical
protection system for spent nuclear fuel shipments that meets the
following objectives: (1) Minimize the possibilities for radiological
sabotage of spent nuclear fuel shipments, especially within heavily
populated areas, and (2) facilitate the location and recovery of spent
nuclear fuel shipments that may have come under the control of
unauthorized persons. The regulation also provides for: (1) The early
detection and assessment of attempts to gain unauthorized access to or
control over spent nuclear fuel shipments, (2) the notification to the
appropriate response forces of any sabotage events, and (3) the
impeding of attempts at radiological sabotage of spent nuclear fuel
shipments in heavily populated areas or attempts to illicitly move such
shipments into heavily populated areas.
Other NRC regulations support the protection of spent nuclear fuel
in transit. The regulations in Sec. 73.72, ``Requirement for Advance
Notice of Shipment of Formula Quantities of Strategic Special Nuclear
Material, Special Nuclear Material of Moderate Strategic Significance,
or Irradiated Reactor Fuel'' require licensees to notify NRC in advance
about shipments of spent nuclear fuel. The regulations in 10 CFR part
71, ``Packaging and Transportation of Radioactive Material,'' establish
requirements for packages used to transport spent nuclear fuel.
This proposed rule would consider and address, in part, a petition
for rulemaking submitted by the State of Nevada. By a letter dated June
22, 1999, the State of Nevada submitted a petition for rulemaking
requesting that NRC strengthen its regulations governing the security
of spent nuclear fuel shipments against malevolent acts. The NRC
docketed the petition on July 13, 1999, as Docket No. PRM-73-10 (PRM-
73-10). The NRC published a notice of receipt of petition and a request
for public comment on September 13, 1999 (64 FR 49410). The Commission
review of this petition was tabled following the terrorist attacks of
September 11, 2001. The petition was denied, in part, by the NRC on
December 7, 2009 (74 FR 64012). This proposed rulemaking would consider
and address the remaining requests for the NRC rulemaking made in PRM-
73-10.
B. Post-September 11, 2001
Although the current Sec. 73.37 has changed little since its
promulgation in 1980, there have been significant changes in the threat
environment. The terrorist attacks of September 11, 2001, heightened
concerns about the use of risk-significant radioactive materials in a
malevolent act. After the terrorist
[[Page 62697]]
attacks of September 11, 2001, the NRC issued a series of security-
related orders to specific licensees. In the area of spent nuclear fuel
transit security, the orders were issued to licensees who shipped or
received, or were planning to ship or receive, spent nuclear fuel. The
orders were issued as immediately effective under the NRC's authority
to protect the common defense and security under the Atomic Energy Act
of 1954, as amended (AEA). The requirements established by the orders
supplement the existing regulatory requirements. These additional
security requirements are primarily intended to ensure that spent
nuclear fuel is shipped in a manner that protects the common defense
and security, and the public health and safety.
C. Current Regulatory Framework
About two thousand NRC regulated shipments of spent nuclear fuel
have been made throughout the United States since the 1970s. The
primary objective of these shipments has been to move spent nuclear
fuel to interim storage. These spent fuel shipments are generally
divided into two categories: commercial shipments or DOE managed spent
nuclear fuel shipments. Commercial spent nuclear fuel shipments are
from the NRC-licensed facilities such as commercial nuclear power
reactors, research and test reactors, and facilities for non-
destructive testing and analysis of spent nuclear fuel. The DOE-managed
shipments involve shipments to DOE owned interim spent nuclear fuel
storage facilities.
The safe and secure shipment of spent nuclear fuel requires
coordination and collaboration between various Federal, State, Tribal
and local government agencies. These organizations work together to
create an orderly pattern for shipments of spent nuclear fuel.
1. What is the role of NRC in spent nuclear fuel transit?
Generally, the NRC regulates the design and construction of spent
nuclear fuel shipping containers for domestic and foreign packages used
to transport spent nuclear fuel solely within the United States.
Although DOT is the lead government agency responsible for the approval
of export and import packages, it relies on the NRC's evaluation as the
basis for approval of these packages. In addition, NRC regulates the
physical protection of commercial spent nuclear fuel in transit against
sabotage or other malicious acts, which is recognized in the DOT
routing regulations in 49 CFR 397.101. The NRC requirements in 10 CFR
Part 73 are applied to shipments of spent nuclear fuel from the NRC
licensees.
2. What is the role of DOT in spent nuclear fuel transit? The DOT
regulates the transportation of hazardous materials, including spent
nuclear fuel in interstate and intrastate commerce. Generally, DOT
regulates in consultation with NRC the carriers of spent nuclear fuel
and the conditions of transport, such as routing, handling and storage
incident to transport, and vehicle and driver requirements. The DOT
also regulates the labeling, classification, and marking of all spent
nuclear fuel packages and transport vehicles.
3. What is the role of DOE? For over 50 years, DOE has transported
spent nuclear fuel to interim storage facilities. These spent nuclear
fuel shipments have originated from the following: (1) Foreign research
reactors; (2) DOE-owned research and defense reactors, and (3) nuclear
powered U.S. Navy ships. In addition, on a few rare occasions, the DOE
has accepted some spent nuclear fuel from commercial nuclear power
plants, e.g., Three Mile Island Unit 2, for storage at its facilities.
The DOE managed shipments of spent nuclear fuel, unless designated
as a national security shipment, are conducted under requirements
equivalent to those of DOT and NRC. The DOE complies with the DOT
highway section criteria and carrier safety provisions. The DOE spent
nuclear fuel packages are required to meet the NRC design and
performance criteria in 10 CFR part 71, which is also stated in the DOT
regulations in 49 CFR 173.7(d). Spent nuclear fuel shipments made by
DOE or the DOE contractors are not subject to the NRC physical
protection requirements because DOE is not a NRC licensee. DOE's
policy, however, is that DOE managed spent nuclear fuel shipments meet
or exceed NRC physical protection requirements.
4. What is the role of State, local, and Tribal governments? State,
local and Tribal governments play an important role in the safe and
secure transport of spent nuclear fuel. They assist in route planning
and, for many shipments, provide armed escorts. They enforce the DOT
highway safety regulations, including the performance of shipment
inspections. State, local, and Tribal governments are also responsible
for providing the first line of government response to accidents and
incidents within their jurisdiction.
III. Discussion
A. What action is NRC taking in this rule?
The NRC is proposing amendments to its regulations to enhance the
security requirements that apply to the transportation of spent nuclear
fuel. This proposed rulemaking would establish generically applicable
security requirements similar to those previously imposed by Commission
orders issued after the terrorist attacks of September 11, 2001. The
proposed rulemaking would also add several new requirements not derived
directly from the security order requirements, but developed as a
result of insights gained by performing security assessments of
potential security vulnerabilities associated with spent nuclear fuel
in transit. Also, the proposed rulemaking would address, in part, the
requests for the NRC rulemaking raised by PRM-73-10.
The proposed requirements would establish acceptable performance
objectives for the protection of spent nuclear fuel in transit from
sabotage, theft, or diversion for malevolent use. These requirements
would ensure that spent nuclear fuel is shipped in a manner that
protects the common defense and security, and public health and safety.
B. Why revise the requirements?
After the attacks of September 11, 2001, NRC re-evaluated its
security requirements for spent nuclear fuel in transit. From this
effort, additional measures were identified that would improve
security. The additional security measures deemed immediately necessary
were issued as orders and supplemented existing regulations. The orders
are not publically available, because they contain detailed security
requirements that are designated as Safeguards Information (SGI). The
proposed revisions are based on the NRC efforts undertaken since the
events of September 11, 2001, including issuance of additional security
requirements by orders, insights gained from implementation of the
orders, and insights gained by performing security assessments of
potential security vulnerabilities associated with spent nuclear fuel
transportation. The proposed revisions also reflect portions of the
State of Nevada's Petition for Rulemaking (PRM-73-10). The NRC intends
to rescind the security orders provided the final rule adequately
addresses the security requirements set forth in those orders.
Rescission will be addressed in the notice of final rulemaking.
C. What is requested by the State of Nevada in its petition for
rulemaking (PRM-73-10)?
By a letter dated June 22, 1999, the State of Nevada submitted a
rulemaking
[[Page 62698]]
petition (docketed as PRM-73-10) requesting that NRC initiates
rulemaking to strengthen its regulations for the physical protection of
spent nuclear fuel shipments against radiological sabotage and
terrorist acts. The NRC published a notice of receipt of petition and a
request for public comment on September 13, 1999 (64 FR 49410). The
Commission review of this petition was tabled following the terrorist
attacks of September 11, 2001.
In PRM-73-10, Nevada requested that NRC: (1) Clarify the meaning of
the term ``hand-carried equipment'' in 10 CFR 73.1(a)(1)(i)(D); (2)
clarify the definition of the term ``radiological sabotage'' in 10 CFR
73.2 to include actions against spent nuclear fuel shipments which are
intended to cause a loss of shielding, release of radioactive materials
or cause economic damage or social disruption, regardless of the
success or failure of the action; (3) amend the advance route approval
requirements in 10 CFR 73.37(b)(1)(vi) to require shippers and carriers
of spent nuclear fuel to identify primary and alternative routes which
avoid heavily populated areas; (4) require armed escorts along the
entire road shipment route by eliminating the differential based on
population in 10 CFR 73.37(c); (5) require armed escorts along the
entire rail shipment route by eliminating the differential based on
population in 10 CFR 73.37(d); (6) amend 10 CFR 73.37(b) by adopting
additional planning and scheduling requirements for spent nuclear fuel
shipments that are the same as those required for formula quantities of
special nuclear material by 10 CFR 73.26(b); (7) amend 10 CFR 73.37(d)
to require that rail shipments of spent nuclear fuel be made in
dedicated trains; and (8) conduct a comprehensive assessment of the
consequences of terrorist attacks that have the capability of
radiological sabotage.
In this proposed rulemaking, the NRC will consider the above items
raised in PRM-73-10, except for the first and eighth items, namely,
clarification of the meaning of the term ``hand-carried equipment'' and
the conducting of a comprehensive assessment of the consequences of
terrorist attacks that have the capability of radiological sabotage.
Rulemaking on the first and eighth items of PRM-73-10 was denied by the
NRC on December 7, 2009 (74 FR 64012). The remaining items are
addressed below:
PRM-73-10, Item 2: Clarify the definition of the term
``radiological sabotage'' in Sec. 73.2, ``Definitions,'' and amend it
to expressly include ``deliberate actions which cause, or are intended
to cause economic damage or social disruption regardless of the extent
to which public health and safety are actually endangered by exposure
to radiation.''
The NRC considers that the existing definition already encompasses
actions of the type described by the Petitioner. However, NRC agrees
that clarification may be useful. The NRC is addressing this petition
item by clarifying the definition of radiological sabotage in the
supporting guidance document associated with the proposed rule.
PRM-73-10, Item 3: Amend the advance route approval requirements in
10 CFR 73.37(b)(7) to ``specifically require shippers and carriers to
identify primary and alternative routes which minimize highway and rail
shipments through heavily populated areas.'' Also, as part of this
request, PRM-73-10 stated that NRC should consider adopting the route
selection criteria in NUREG-0561, Physical Protection of Shipments of
Irradiated Reactor Fuel in Transit, as part of the regulations, and
specifically require shippers and carriers to minimize use of routes
which fail to comply with the route selection criteria.
The NRC considered incorporating the route selection criteria of
NUREG-0561 into the proposed rule, but determined that implementing
such criteria may cause conflicts with the DOT requirements. Sections D
through F below provide additional information about the differences
between DOT and NRC routing criteria. The PRM-73-10 request for the
adoption of routing criteria from NUREG-0561 was considered by the NRC
and determined to be not appropriate.
The PRM-73-10 also requested that NRC amend its regulations to
minimize highway and rail shipments through heavily populated areas.
The NRC is addressing the goal of minimizing spent nuclear fuel
shipments through heavily populated areas in the proposed rulemaking.
The proposed revisions to 10 CFR 73.37 would require licensees to
preplan and coordinate their shipments with the affected States. This
issue is discussed below under ``Why Require Shipment Preplanning and
Coordination with States?'' Combining the NRC proposed requirements,
which include State involvement in licensees' planning activities, with
the requirements of DOT is expected to minimize movement of spent
nuclear fuel through heavily populated areas.
PRM-73-10, Items 4 and 5: The current regulations, Sec. 73.37(c)
and (d), for road and rail shipments, respectively, require armed
escorts in heavily populated areas, but not in other areas along the
route. PRM-73-10 requested that NRC eliminate these differential armed
escort requirements based upon population for both road and rail spent
nuclear fuel shipments.
Proposed Sec. Sec. 73.37(c) and (d) include these PRM-73-10
requests. The differentiation of security requirements based upon
population causes potential areas of vulnerability along the shipment
route for theft, diversion, or radiological sabotage. The proposed rule
would require that the same security requirements for heavily populated
areas apply along the entire route for road and rail shipments, and at
any U.S. ports where vessels carrying spent fuel shipments are
scheduled to stop.
PRM-73-10, Item 6: Amend Sec. 73.37(b) by adopting additional
planning and scheduling requirements for spent nuclear fuel shipments
that are the same as those required for formula quantities of special
nuclear material by Sec. 73.26(b). The regulations in Sec. 73.26(b)
require that shipments be scheduled to avoid delays and stops, and to
ensure timely delivery of the shipment.
The NRC agrees that improvements are needed in the planning and
coordination of shipments and has addressed this concern in the
proposed amendment. This issue is discussed below under ``Why Require
Shipment Preplanning and Coordination with States?''
PRM-73-10, Item 7: Amend Sec. 73.37(d) to require that all spent
nuclear fuel rail shipments be made in dedicated trains.
The same NRC security requirements would apply to a spent nuclear
fuel rail shipment, regardless of whether the shipment was made using a
dedicated train or a mixed-use train. In either case, the licensee
making the shipment would be required to ensure that the security
protection measures (both hardware and personnel) required by the NRC's
regulations would be present to provide the requisite high assurance of
protection of public health and safety and the common defense and
security during the entire duration of the shipment. The NRC considers
the same level of security will be obtained regardless of whether the
shipment is made in a dedicated train or mixed-use train. Thus, this
item is not addressed as a part of the proposed rule.
The NRC invites comments on its proposed disposition of items 2
through 7 of PRM-73-10 as part of its consideration of this proposed
rule. Comments should be sent to the address listed under the ADDRESSES
heading of this document. The PRM-73-10 is available at ADAMS Accession
Number: ML092540603 and the NRC's September 13, 1999, notice of receipt
of petition and request for public comments (64 FR
[[Page 62699]]
49410) is available on the Federal Register's Web site, http://www.gpoaccess.gov/fr/index.html.
D. What are the DOT routing requirements for spent nuclear fuel
shipments?
The DOT has various terms to define and categorize radioactive
material within the Title 49 of the Code of Federal Regulations. Within
their definitions, DOT includes a category for highway route controlled
quantity (HRCQ) which is defined as a quantity of radioactive material
within a single package that exceeds: (a) 3,000 times the A1
value of the radionuclides for special form material or 3,000 times the
A2 values of the radionuclides for normal form material; or
(b) 1,000 TBq (27,000 curies), whichever is less. The HRCQ shipments
can be made by all modes of transport. Spent nuclear fuel shipments
fall under the DOT's definition of HRCQ.
For shipments by road, the DOT requirements for routing radioactive
material are found in 49 CFR Parts 172 (Subpart I--Safety and Security
Plans) and 397 (Subpart D--Routing of Class 7 (Radioactive) Materials).
The DOT highway routing requires carriers to (1) Ensure routes are
chosen based on minimizing radiological risk; (2) consider available
information on accident rates, transit time, population density and
activities, and the time of the day and the day of the week during
which transportation will occur to determine the level of radiological
risk; and (3) instruct the driver about the route and the hazards of
the shipment. Furthermore, under the DOT requirements, HRCQ are
transported only over preferred routes (i.e., the Interstate Highway
System, an alternative route designated by a State routing agency, or
both), or an Interstate Highway System bypass or beltway around a city
when available, unless a State routing agency has designated an
alternative route. Routes can only be designated after substantive
consultation with affected local jurisdictions and with any other
affected States to ensure consideration of all impacts and continuity
of affected routes. A written route plan is to be prepared by the
carrier and provided to drivers and shippers.
The DOT allows motor carriers and drivers some deviation from the
preferred route when picking up or delivering material, making
necessary rest, fuel or motor vehicle repair stops, or because
emergency conditions make continued use of the preferred route unsafe
or impossible. In addition, a person may transport irradiated reactor
fuel only in compliance with a plan that will ensure the physical
security of the material. The DOT permits variation for security
purposes from the routing requirements of 49 CFR 397.101 only so far as
necessary to meet the requirements imposed under such a plan, or
otherwise imposed by NRC in 10 CFR Part 73.
For shipments by rail, the DOT requirements for routing radioactive
material are found within 49 CFR parts 172, 174 and 209. The DOT
requires rail carriers to compile annual data on certain shipments of
hazardous materials, including HRCQ. The data is used to analyze safety
and security risks along rail routes where those materials are
transported; assess alternative routing options; and make routing
decisions based on those assessments. Rail carriers must assess the
available routes ensuring, at a minimum, that 27 specific factors are
considered. These 27 factors include, but are not limited to,
consideration of rail traffic density, transit times, number and types
of grade crossings, proximity to iconic targets, population densities
and venues along the route.
Rail carriers must also seek relevant information from State,
local, and Tribal officials, as appropriate, regarding security risks
to high-consequence targets along or in proximity to a route used by a
rail carrier to transport security-sensitive materials. Oversight is
provided by the DOT Federal Railroad Administration (FRA), which
includes review and inspection of rail carrier's risk analyses and
route selection, but FRA does not pre-approve rail routes. If FRA
determines that a carrier's route selection documentation and
underlying analyses are deficient, the carrier may be required to
revise the analyses or make changes in the route selection. In
addition, if it is determined by DOT that a particular route chosen by
the railroad is not the safest and most secure practicable route
available, FRA can require the use of an alternative route until such
time as the identified deficiencies for the originally chosen route are
corrected by the railroad.
E. What are the NRC routing requirements for spent nuclear fuel
shipments?
For spent fuel in quantities greater than 100 grams and exceeding 1
Sv (100 rems) per hour at a distance of 0.91 meters (3 feet) from any
accessible surface without intervening shielding, licensees are
required to transport such spent nuclear fuel along routes that have
been pre-approved by NRC. Furthermore, the proposed rule text of Sec.
73.37(b)(1) requires licensees to preplan and coordinate their routes
with the States, including identification of safe havens.
The proposed rule does not include specific routing criteria for
licensees to use when developing routes. However, the objective of
Sec. 73.37 is to minimize the potential for theft, diversion, or
radiological sabotage for shipments of spent nuclear fuel. Licenses are
expected to develop routes by considering criteria including, but not
limited to: the DOT routing criteria, minimizing transit time,
likelihood of swift response by local law enforcement, availability of
safe havens (for road shipments), avoidance of tactically
disadvantageous positions, availability of appropriate rest and
refueling stops (for road shipments), and availability of good
transportation safety features. When selecting a route by road,
licensees are also expected to conduct surveys of the proposed route.
The objective of these surveys is to locate safe havens, evaluate
communications capability along the route, develop local law
enforcement contacts, identify food and fuel stops for the carrier, and
identify potential driving problems along the route.
Once a spent nuclear fuel shipment route request is received, the
NRC reviews it closely. The NRC conducts a detailed review, considering
route length and minimizing transit time, local law enforcement and
emergency response contact information, adequacy of safe haven
locations, and communications capability along the route. NUREG-0561,
``Physical Protection of Shipments of Irradiated Reactor Fuel''
provides guidance to licensees seeking the NRC-approval of a spent
nuclear fuel shipping route.
F. Why do the NRC and DOT routing requirements differ for spent nuclear
fuel shipments?
The objective of Sec. 73.37 is to minimize the potential for
theft, diversion or radiological sabotage of spent nuclear fuel
shipments; facilitate the location and recovery of spent fuel shipments
that may have come under the control of unauthorized persons; and delay
and impede attempts at theft, diversion or radiological sabotage of
spent nuclear fuel shipments until response forces arrive. With this in
mind, NRC expects licensees to route shipments according to the DOT
requirements, and to consider the adequacy of the route to meet the
objectives of Sec. 73.37. This includes considering the availability
and adequacy of safe havens along the route and the communications
capabilities among the transport vehicle, escort
[[Page 62700]]
vehicle, communications center, and local law enforcement agencies
(LLEAs) for the entire route.
The DOT HRCQ routing regulations for road shipments are based on
minimizing radiological risk to the public (49 CFR 397). The HRCQ are
to be transported over preferred routes which are described in more
detail in question D above. Carriers are permitted to deviate from
preferred routes for certain conditions including, but not limited to:
security reasons (e.g., as imposed by NRC in 10 CFR Part 73) and
emergencies. The DOT rail routing requirements for HRCQ require
carriers to consider both safety and security of the public when
selecting a route (49 CFR 172 and 209). The DOT requires rail carriers
to select routes based on the criteria described above in question D.
Rail carriers must assess the available routes using, at a minimum, 27
factors that address both safety and security of the transport.
As long as there is coordination among the licensee, the commercial
carrier and the States of passage, NRC determined that spent nuclear
fuel shipment primary and alternate routes for highway and rail can be
developed that satisfy both the DOT and NRC requirements and
guidelines. The NRC invites comments on the challenges of selecting
routes for spent nuclear fuel that meets both the DOT and NRC
requirements and guidance.
G. Why require procedures and training for the security of spent
nuclear fuel in transit?
The proposed Sec. Sec. 73.37(b)(3)(v) and (b)(4) would expressly
require that licensees shipping spent nuclear fuel develop normal and
contingency procedures. These procedures would cover notifications;
communication protocols; loss of communication; and responses to
actual, attempted, or suspicious activities. The proposed revisions
would also require drivers, accompanying personnel, railroad personnel,
and other movement control personnel to be adequately trained in normal
and contingency procedures. These proposed requirements would ensure
that all personnel associated with the shipment are prepared to prevent
the theft, diversion, or radiological sabotage of spent nuclear fuel
shipments. The proposed revisions would address, in part, PRM-73-10
items (3) and (6).
H. Why require a telemetric position monitoring system or an
alternative tracking system for continuous monitoring of spent nuclear
fuel shipments?
The current rule, at Sec. 73.37(b)(4), requires that the
licensee's physical protection plan include a communications center,
which will be staffed continuously by at least one individual who will
monitor the progress of the spent fuel shipment. The proposed rule
would reflect the availability of new technology and as such, the
ability to have more active control over the shipment by the licensee.
The proposed Sec. 73.37(b)(3)(i) would replace the term
``communications center'' with the term ``movement control center.''
The proposed Sec. 73.37(b)(3)(ii) would also require that the movement
control center be staffed continuously by at least one individual, who
will actively monitor the progress of the spent nuclear fuel shipment
and who has the authority to direct the physical protection activities.
The proposed Sec. 73.37(b)(3)(iii) would specify that the movement
control center must monitor the shipment continuously, i.e., from the
time of delivery of the shipment to the carrier for transport until
safe delivery of the shipment at its final destination, and must
immediately notify the appropriate agencies in the event of a
safeguards event under the provisions of Sec. 10 CFR 73.71.
In addition, the proposed Sec. Sec. 73.37(c)(5) and 73.37(d)(4),
for road and rail shipments respectively, would require movement
control centers to use a telemetric position monitoring system or an
alternative tracking system to monitor the location and status of
shipments at all times, which would provide a real time indication of
any potential threats. A telemetric position monitoring system is a
data transfer system that captures information by instrumentation and/
or measuring devices about the location and status of a transport
vehicle or package between the departure and destination locations. The
gathering of this information permits remote monitoring and reporting
of the location of a transport vehicle or package. Global positioning
systems (GPS) and radiofrequency identification (RFID) are examples of
telemetric position monitoring systems. Since the movement control
center is required to respond to any actual, attempted, or suspicious
activities, the proposed requirements would mitigate the likelihood of
theft, diversion, or radiological sabotage of spent nuclear fuel
shipments.
I. Why pre-plan and coordinate spent nuclear fuel shipments?
The current regulations require limited shipment preplanning and
coordination with NRC, States, and LLEAs. For example, the current
Sec. 73.37(f) regulation requires an advance notification to the
Governor (or designee) by mail to be postmarked at least 7 days before
transport of a shipment within or through the State; and require a
messenger-delivered notification to reach the Office of the Governor
(or designee) at least 4 days before transport of a shipment within or
through the State. Some States have indicated that the current
notification requirements are insufficient to adequately plan for a
spent nuclear fuel shipment. In addition, the current Sec. 73.37(b)(7)
regulation requires licensees to obtain the advance NRC approval of the
routes used for road and rail shipments of spent nuclear fuel, but does
not require prior State coordination of the route. The proposed
amendments would ensure that the affected States have early and
substantial involvement in the management of spent nuclear fuel
shipments by participating in the initial stages of the planning,
coordination, and implementation of the shipment.
Proposed Sec. 73.37(b)(1)(iv) would require licensees to preplan
and coordinate spent nuclear fuel shipment information with the
Governors of the States which the shipment will transit across in order
to: (1) Ensure minimal shipment delays; (2) arrange for State law
enforcement escorts; (3) coordinate movement control information, as
needed; (4) coordinate safe haven locations; and (5) coordinate the
shipping route. The proposed requirements would ensure that no unusual
event associated with the shipment goes unnoticed or unreported. These
proposed revisions mitigate the risk of theft, diversion, or
radiological sabotage of a spent nuclear fuel shipment. These proposed
revisions would address, in part, PRM-73-10 items 3 and 6.
J. Why require constant visual surveillance by armed escort?
Existing Sec. 73.37(b)(9) requires constant visual surveillance by
an escort when a shipment is stopped. It does not specify whether the
escort should be armed. Proposed Sec. 73.37(b)(3)(vii)(C) would ensure
that when a shipment is stopped, at least one armed escort maintains
constant visual surveillance. The constant surveillance by an armed
escort while a shipment is stopped provides assurance that attempts by
an
[[Page 62701]]
adversary to either perform radiological sabotage in place, or to gain
control of the transport to move it to another location are impeded or
stopped. The requirements of proposed Sec. 73.37(b)(3)(vii)(C) would
address parked or stopped road shipments, rail shipment stops in
marshaling areas, and docked sea shipments. It would also require
periodic reports of shipment status to the movement control center by
the armed escort. The proposed Sec. 73.37(b)(3)(vii)(C) would provide
adequate assurance that spent nuclear fuel shipments are protected from
theft, diversion, or radiological sabotage when stopped.
K. Why require two-way redundant communication capabilities?
The regulations in the current Sec. Sec. 73.37(c), 73.37(d), and
73.37(e) provide for redundant communication capabilities; however, the
requirements are specific, i.e., use of citizens band radio and
radiotelephone. In view of the continued advancements in technology,
these methods of communication could become obsolete in the near
future. Instead of specifying an acceptable communications technology,
the proposed revisions describe the performance characteristics of the
communications capabilities.
Proposed Sec. Sec. 73.37(c)(3), 73.37(d)(3) and 73.37(e)(4) would
require the establishment of two-way communication capabilities for the
transport vehicle and escorts to ensure contact between the movement
control center and LLEAs at all times. The revisions would also require
the establishment of alternate capabilities for the transport vehicle
and escorts to contact the movement control center. The alternate
communications cannot be subject to the same interference factors. The
same interference factors are defined as any two systems that rely on
the same hardware or software to transmit their signal (e.g., cell
tower, proprietary network). These requirements would provide the
capability for continued communication between movement control
personnel, which would ensure the prompt reporting of any incident that
could lead to theft, diversion, or radiological sabotage.
L. Why require background investigations?
1. What is the objective of the background investigations requirements
for those with unescorted access and access authorization relative to
spent nuclear fuel in transit?
The proposed rule would add a new Sec. 73.38 that would require
licensees to conduct background investigations of those individuals
being considered for unescorted access or access authorization relative
to spent nuclear fuel in transit. The main objective of the background
investigations is to ensure that those individuals who have unescorted
access to spent nuclear fuel in transit and those individuals who have
access to safeguards information relative to the spent nuclear fuel
shipment, including but not limited to armed escorts, drivers, and
movement control personnel are trustworthy and reliable and do not
constitute an unreasonable risk to the public health and safety or
common defense and security. These background investigations are
similar to those already in place for unescorted access to a commercial
nuclear power reactor in Sec. 73.56(d), Background Investigation.
2. What is the basis for the fingerprinting requirements in the
proposed rule?
Section 149 of AEA requires that any person who is permitted
unescorted access to radioactive materials subject to regulation by the
Commission be fingerprinted for FBI identification and criminal history
records check. However, Section 149 also requires that the Commission
make a determination that such radioactive material is of such
significance to the public health and safety or the common defense and
security as to warrant fingerprinting and background checks before the
Commission can exercise the authority provided by Section 149.
Pursuant to Section 149, the Commission has determined that the
transportation of irradiated fuel (spent nuclear fuel) is of such
significance to the public health and safety or the common defense and
security as to warrant fingerprinting and background checks for those
individuals who have such access to the materials in transit. Persons
who have ``unescorted access'' to this material for purposes of Section
149, are persons accompanying the shipment of spent nuclear fuel during
transit who have direct access and maintain control over the spent
nuclear fuel. These persons may include, but are not limited to, the
driver armed escorts and movement control center personnel.
Therefore, under the authority granted by Section 149, this rule
would impose a requirement for fingerprinting as a prerequisite to
granting unescorted access to spent nuclear fuel in transit. The
criminal history records check obtained as a result of that
fingerprinting would be used by licensees as part of the overall
background investigation to determine the trustworthiness and
reliability of these individuals prior to permitting unescorted access.
3. What are the components of a background investigation?
Proposed Sec. 73.38(d) lists the requirements for a background
investigation, including: informed consent, fingerprinting for an FBI
identification and criminal history records check; verification of true
identity; employment history evaluation; verification of education and
military history; credit history evaluation; local criminal history
review; and character and reputation determination.
Under proposed Sec. 73.38(e), it is the licensee's responsibility
to make a trustworthiness and reliability determination of an
individual who has unescorted access or access authorization relative
to a spent nuclear fuel shipment. It is expected that licensees will
use their best efforts to obtain the information required to conduct a
background investigation to determine the individuals' trustworthiness
and reliability.
The full credit history evaluation requirement, in proposed Sec.
73.38(d)(6), reflects the NRC's intent that all financial information
available through credit reporting agencies is to be obtained and
evaluated because it has the potential to provide highly pertinent
information. The NRC recognizes that some countries may not have
routinely accepted credit reporting mechanisms, and therefore, the NRC
allows multiple sources of credit history that could potentially
provide information about a foreign national's financial record and
responsibility.
Fingerprinting an individual for an FBI criminal history records
check, as would be required by the proposed Sec. 73.38(d)(3), is an
important element of the background investigation for determining the
trustworthiness and reliability of an individual. It can provide
comprehensive information regarding an individual's recorded criminal
activities within the U.S. and its territories and the individual's
known affiliations with violent gangs or terrorist organizations. In
addition, the local criminal history review, which
[[Page 62702]]
would be required by the proposed Sec. 73.38(d)(7) provides the
licensee with a record of local criminal activity that may adversely
impact an individual's trustworthiness and reliability.
It is noted that the proposed Sec. 73.38(d)(5)(iv) would require
licensees to document any refusals by outside entities to provide
information on an individual. If local law enforcement, a previous
employer, an educational institution, or any other entity with which
the individual claims to have been engaged fails to provide information
or indicates an inability or unwillingness to provide information in a
timely manner, the licensee would be required to document the refusal,
unwillingness, or inability to respond in the record of investigation.
The licensee would then need to obtain confirmation from at least one
alternate source that has not been previously used. An alternate source
could be another person associated with the entity or institution. For
example, if the human resources department of a company will not verify
the employment history of the individual, an alternate source could be
the individual's supervisor during the claimed period. The proposed
Sec. 73.38(d)(10) is patterned after the requirements of Sec.
73.56(d)(4)(iv).
4. What information should the licensee use to determine that an
individual is trustworthy and reliable?
The licensee would use all of the information gathered during the
background investigation, including the information received from the
FBI, in making a determination that an individual is trustworthy and
reliable. The licensee may not determine that an individual is
trustworthy and reliable and grant them unescorted access to spent
nuclear fuel in transit until all of the information for the background
investigation has been obtained and evaluated. The licensee may deny an
individual unescorted access based on any information obtained at any
time during the background investigation. The proposed Sec. 73.38(e)
includes a provision for licensees to document their determinations of
trustworthiness and reliability.
5. How frequently would a reinvestigation be required?
The proposed rule would include a provision, Sec. 73.38(h), that
would require a reinvestigation every 10 years to help maintain the
integrity of the program. This reinvestigation requirement is necessary
because an individual's financial situation or criminal history may
change over time in a manner that can adversely affect his or her
trustworthiness and reliability. The reinvestigation would include
fingerprinting, FBI identification and criminal history records check,
local criminal history review and credit history check. The
reinvestigation would not include employment verification, education
verification, military history verification, or the character and
reputation determination for the reinvestigation.
6. Are licensees required to protect information obtained during a
background investigation?
Yes. The proposed Sec. Sec. 73.38(f)(1)-(2) would require
licensees to protect the information obtained during a background
investigation. Licensees would only be permitted to disclose the
information to the subject individual, the individual's representative,
those who have a need-to-know to perform their assigned duties to grant
or deny unescorted access, or an authorized representative of NRC. This
proposed revision is consistent with the requirements of Sec.
73.57(f).
7. Could a licensee transfer personal information obtained during an
investigation to another licensee?
Yes. The proposed Sec. 73.38(f)(3) includes a provision that a
licensee would be able to transfer background information on an
individual to another licensee if the individual makes a written
request to the licensee to transfer the information contained in his or
her file.
8. Which records are required to be maintained?
The proposed Sec. 73.38(f)(5) would require licensees to retain
all fingerprint and criminal history records received from the FBI, or
a copy if the individual's file has been transferred, for 5 years after
the individual no longer requires unescorted access to spent nuclear
fuel in transit.
M. Why enhance shipment notifications to NRC?
The current regulations in Sec. 73.72(a)(4) require an NRC
notification, by phone, at least 2 days before the shipment commences.
The proposed rule would revise Sec. 73.72(a)(4) to require 2
additional notifications of NRC, one to be made 2 hours before the
shipment commences, and the other to be made when the shipment reaches
its final destination. These additional notifications allow NRC to
monitor spent nuclear fuel shipments, and to maximize its readiness in
case of a safeguards event. The notification of shipment completion
allows NRC to resume normal operations.
To further enhance notification of NRC, the proposed revision would
remove the Sec. 73.72(b) exemption for shipments of spent nuclear fuel
that are transported on public roads. Currently, the requirements of
Sec. 73.72(b) exempt licensees who make a road shipment or transfer
with one-way transit times of one hour or less between installations of
the licensee from providing advance notification of the shipment to
NRC. The proposed revision would require that NRC be informed of any
spent nuclear fuel shipment on a public road so that NRC is able to
monitor spent nuclear fuel shipments and to maximize its readiness in
case of a safeguards event. These proposed revisions mitigate the risk
of theft, diversion, or radiological sabotage of a shipment.
N. Which type of spent nuclear fuel does DOE ship?
The DOE spent nuclear fuel shipments generally fall into two
categories: Classified and non-classified shipments of spent nuclear
fuel. Classified shipments are those shipments which involve national
security. Classified shipments of spent nuclear fuel typically consist
of spent fuel from the U.S. Navy. The DOE has broad authority under the
Atomic Energy Act of 1954, as amended (AEA), to regulate all aspects of
activities involving radioactive materials that are undertaken by DOE
or on its behalf, including the transportation of radioactive
materials. The DOE conducts classified shipments of spent nuclear fuel
using their Office of Secure Transport (OST). The OST shipments are
escorted full-time by armed, specially trained (trained in
communications, firearms, tactics, observation, and use of deadly
force) active duty Navy personnel who maintain 24-hour surveillance.
The OST Transportation Emergency Communications Center monitors,
tracks, and provides communication with every shipment. The NRC does
not regulate classified shipments of spent nuclear fuel.
O. What is a non-classified shipment of spent nuclear fuel and what are
the DOE requirements for this type of shipment?
Non-classified shipments of spent nuclear fuel typically consist of
spent fuel from commercial nuclear power reactors and research and test
reactors. The DOE policy for non-classified spent nuclear fuel
shipments are found under the DOE Orders 460.1C, Packaging and
Transportation Safety and 460.2A,
[[Page 62703]]
Departmental Materials Transportation and Packaging Management. As a
matter of policy, the DOE non-classified spent nuclear fuel shipments
are conducted under the requirements and standards applicable to
comparable commercial shipments, i.e., the NRC requirements, except if
there is a determination that national security or another critical
interest requires different action.
The DOE requirements are set forth in the DOE Manual 460.2-1A,
Radioactive Material Transportation Practices Manual. In this manual,
it states that ``Security will be provided in compliance with the NRC
requirements in 10 CFR Part 73 for shipments subject to a NRC license.
Other DOE shipments will be undertaken in a manner that meets or
exceeds the NRC security requirements.'' The DOE organizations and
contractors ensure that in-transit requirements are addressed,
including developing security plans, implementing information and
physical security access controls, training, escorts, inspections,
tracking, communications, and employee background checks.
P. How are the NRC and DOE requirements similar and how are they
different?
As stated in O above, given the DOE policy to ``meet or exceed''
the NRC security requirements, the NRC and DOE requirements are
similar. Similar to the NRC requirements, the DOE program organizations
are expected to liaison with Federal, State, local and Tribal law
enforcement/security officials regarding such shipments. This liaison
should include a determination as to whether the State, Tribal or local
jurisdictions are planning to provide escorts for the shipment. The DOE
also expects drivers and escorts to maintain constant surveillance of
the shipment.
One major difference between the NRC and DOE requirements deals
with the tracking and monitoring of spent nuclear fuel shipments. The
DOE requires the use of their Transportation Tracking and
Communications System (TRANSCOM). In the proposed rule, NRC requires
continuous and active monitoring of spent nuclear fuel shipments, but,
a particular tracking method is not specified. The NRC determined that
providing the performance objectives for continuous and active
monitoring, rather than specifying a particular system gives a licensee
flexibility to choose a system that works with their shipping
situation.
Another difference between the NRC and DOE requirements is the
protection of information. For NRC, information associated with a spent
fuel shipment (i.e., shipment schedules and security plans) are
protected as safeguards information (SGI) as specified by the
requirements of Sec. Sec. 73.21 and 73.22. The DOE does not have a
system of information protection comparable to SGI. Shipment
information for the DOE non-classified spent nuclear fuel shipment is
official use only, unless there is a reason to designate it as
classified.
Q. Who would this action affect?
The proposed amendments affect all the NRC licensees that are
authorized to possess and transport spent nuclear fuel. This includes,
but is not limited to, licensees of commercial power reactors, research
and test reactors, and independent spent fuel storage installations,
who transport, or deliver to a carrier for transport, in a single
shipment, a quantity of irradiated reactor fuel in excess of 100 grams
(0.22 lbs) in net weight of irradiated fuel, exclusive of cladding or
other structural or packaging material, which has a total external
radiation dose rate in excess of 1 Sv (100 rems) per hour at a distance
of .91 meters (3 feet) from any accessible surface without intervening
shielding.
R. Does NRC plan to issue guidance on these proposed requirements?
In conjunction with this the proposed rulemaking, NRC is revising
NUREG-0561, ``Physical Protection of Shipments of Irradiated Reactor
Fuel in Transit,'' which was published in June 1980, to address the new
requirements in the proposed rule. NUREG-0561 provides general guidance
to licensees concerning the establishment of an acceptable security
program for spent nuclear fuel shipments.
S. What should I consider as I prepare my comments to NRC?
Tips for preparing your comments: When submitting your comments,
remember to:
i. Identify the rulemaking (Docket ID: NRC-2009-0163).
ii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iii. Describe any assumptions and provide any technical information
and/or data that you used.
iv. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
v. Provide specific examples to illustrate your concerns, and
suggest alternatives.
vi. Explain your views as clearly as possible.
vii. Make sure to submit your comments by the comment period
deadline.
viii. See Section VII of the preamble for the request for comments
on the use of plain language and Section XII for the request for
comments on the draft regulatory analysis.
IV. Discussion of the Proposed Amendments by Section
A. Proposed Sec. 73.37(a)(1)
The proposed rule would revise Sec. 73.37(a)(1) to include the
International System of Measurement (SI) accompanied by the equivalent
English units in parentheses for the weight and dose rate measurements.
This is under the NRC's metrication policy (57 FR 46202, October 7,
1992), and the Metric Conversion Act of 1975, 15 U.S.C. 205a et seq.
The proposed rule would also add a footnote to clarify that the term
``irradiated reactor fuel,'' as used in 10 CFR 73.37 fn.1, means
``spent nuclear fuel.''
B. Proposed Sec. 73.37(a)(1)(i)
The language in the current regulation solely addresses potential
radiological sabotage of spent nuclear fuel shipments. The proposed
rule would revise Sec. 73.37(a)(1)(i) to clarify that any attempted
theft or diversion of spent nuclear fuel shipments is also covered by
this regulation.
The proposed rule would also revise Sec. Sec. 73.37(a)(1)(i) and
(a)(2)(iii) to remove the distinction between heavily populated areas
and other areas through or across which a spent nuclear fuel shipment
may pass. The differentiation of security requirements based upon
population densities creates potential vulnerabilities in the physical
security of the shipment. The proposed requirement of armed escorts
throughout the shipment route minimizes the risk of theft, diversion,
or radiological sabotage. The proposed revisions would also address
items 4 and 5 of the PRM-73-10.
C. Proposed Sec. 73.37(a)(2)
The proposed rule would revise Sec. 73.37(a)(2) to insert
``system'' after the word phrase ``physical protection'' to read as
``physical protection system.'' This change provides consistency in the
terminology used throughout 10 CFR Part 73.
The proposed revision would renumber the paragraphs in Sec.
73.37(a)(2). The current Sec. 73.37(a)(2)(ii) would become the
proposed Sec. 73.37(a)(2)(iii), and the current Sec. 73.37(a)(2)(iii)
would become the proposed Sec. 73.37(a)(2)(ii). The
[[Page 62704]]
proposed rule would revise the current Sec. 73.37(a)(2)(iii) to
clarify that the licensee should delay, as well as impede, any
attempted theft, diversion, or radiological sabotage of spent nuclear
fuel shipments.
D. Proposed Sec. 73.37(b)
This overall section is revised to provide a logical, step-by-step
approach to the development of a physical protection system for spent
nuclear fuel shipments that is more user-friendly.
E. Proposed Sec. 73.37(b)(1)
The proposed rule would add a new section entitled, ``Preplan and
Coordinate Spent Nuclear Fuel Shipments,'' which is explained in
further detail below. The proposed rule would move and incorporate the
current Sec. 73.37(b)(1) into a new Sec. 73.37(b)(2).
The proposed rule would add a new Sec. 73.37(b)(1)(i) which
requires that licensees instruct armed escorts on the use of deadly
force. The existing provisions of Sec. 73.37 provide performance
objectives to be achieved by the physical protection system for spent
nuclear fuel shipments. These performance objectives are not specific
about the degree of force an armed escort may use in protecting
shipments.
Specifically, the licensee is to ensure that each non-LLEA armed
escort delay or impede attempted acts of theft, diversion, or
radiological sabotage by using force sufficient to counter the force
directed at that person, including the use of deadly force when there
is a reasonable belief that the use of deadly force is necessary in
self-defense or in the defense of others, or any other circumstances as
authorized by applicable Federal or State law. The requirements for use
of deadly force are established under applicable Federal and State laws
(i.e., the States through which the shipment is passing). It should be
noted that the proposed revision is not authorizing the use of deadly
force, but instead is ensuring that the armed guards are knowledgeable
of the Federal and State statutes that apply regarding the use of
deadly force. The statutes regarding the use of deadly force may vary
depending on the jurisdiction in which the shipment is located. Armed
escorts are expected to carry out their assigned duties, including
implementation of contingency procedures in case of attack, in a manner
consistent with the legal requirements applicable to other private
armed guards in a particular jurisdiction. The LLEA personnel escorts
are exempt from this requirement since they are subject to, and should
have received training on, State and Federal restrictions regarding the
use of deadly force.
The proposed rule would add new Sec. Sec. 73.37(b)(1)(ii) and
73.37(b)(1)(iii), which are accounting and control measures that ensure
that only authorized individuals receive the shipment. The proposed
requirements would reduce the risk of theft, diversion, or radiological
sabotage of the spent nuclear fuel.
The proposed rule would re-designate Sec. 73.37(b)(8) as Sec.
73.37(b)(1)(iv) and revise it to include requirements for licensees to
preplan and coordinate spent nuclear fuel shipments with States. The
preplanning and coordination would include efforts to minimize
intermediate stops and delays, arranging for State law enforcement
escorts, the sharing of positional information and the development of
route information, including the location of safe havens. The proposed
amendments would ensure that States have early and substantial
involvement in the management of spent nuclear fuel shipments by
participating in the initial stages of the planning, coordination, and
implementation of the shipment.
The proposed rule would re-designate Sec. 73.37(b)(6) as Sec.
73.37(b)(1)(v) and revise it to make minor editorial changes.
The proposed rule would re-designate Sec. 73.37(b)(7) as Sec.
73.37(b)(1)(vi) and revise it to expand the requirements for
preplanning and coordination with NRC. The proposed Sec.
73.37(b)(1)(vi) would require licensees to identify the locations of
safe havens along road shipment routes, obtain the NRC route approval
prior to the 10-day advance notice required by Sec. 73.72(a)(2), and
provide specific information to NRC, such as identification of the
shipper, consignee, carriers, transfer points, modes of shipment, and a
description of shipment security arrangements. In addition the proposed
Sec. 73.37(b)(1)(vi) reminds licensees that they must also comply with
the applicable DOT routing requirements.
The proposed rule would add a new Sec. 73.37(b)(1)(vii), which
requires the documentation of preplanning and coordination activities.
F. Proposed Sec. 73.37(b)(2)
The proposed rule would re-designate Sec. 73.37(f), the advance
notifications provision, as Sec. 73.37(b)(2) and would revise it to
include: (1) A reference to Sec. 73.22 SGI protection requirements,
(2) a reference to the NRC Web site listing contact information for
State governors and governors' designees, (3) a requirement to include
within the notification the license number of the shipper and receiver,
and (4) a requirement to provide the estimated date and time of arrival
of the shipment at the destination. The proposed Sec. 73.37(b)(2)
would also include new recordkeeping and shipment cancellation
notification requirements.
G. Proposed Sec. 73.37(b)(3)
The proposed rule would add a new Sec. 73.37(b)(3) entitled,
``Transportation Physical Protection Program.'' The proposed Sec.
73.37(b)(3) would both streamline and combine existing requirements in
Sec. Sec. 73.37(b)(3)-(5) and 73.37(b)(9)-(11).
Proposed Sec. 73.37(b)(3)(i) would introduce the term ``movement
control center,'' which replaces the term ``communication center'' used
in the current regulation. The term ``movement control center'' is used
for consistency with physical protection terminology and to better
define the role and responsibilities of the facility. The movement
control center is defined as an operations center which is remote from
transport activity and which maintains periodic position information on
the movement of the shipment, receives reports of attempted theft,
diversion, or radiological sabotage, provides a means for reporting
these and other problems to appropriate agencies, and can request and
coordinate appropriate aid.
The proposed rule would re-designate Sec. 73.37(b)(4) as Sec.
73.37(b)(3)(ii) and revise it to reflect that the movement control
center personnel will have the authority to direct physical protection
activities. The proposed rule would also add a new Sec.
73.37(b)(3)(iii), which will clarify the duties of the movement control
center personnel.
The proposed rule would re-designate Sec. 73.37(b)(5) as Sec.
73.37(b)(3)(iv) and revise it to make minor editorial changes.
The proposed rule would add a new Sec. 73.37(b)(3)(v), which
requires licensees to develop, maintain, and implement written physical
protection procedures to address access controls, duties of the
movement control center personnel, drivers, armed escorts and other
individuals responsible for the security of the shipment, reporting of
safeguards events, communications protocols, and normal conditions
operating procedures.
The proposed rule would add a new Sec. 73.37(b)(3)(vi), which
incorporates the recordkeeping requirements of the current Sec. Sec.
73.37(b)(2) and (3).
The proposed rule would re-designate Sec. 73.37(b)(10) as Sec.
73.37(b)(3)(vii)(A) and revise it to include additional training
requirements described in
[[Page 62705]]
sections III and IV of Part 73, Appendix B. This revision is a
clarification of the existing requirements in Sec. 73.37. The current
Sec. 73.37(b)(10) refers to training requirements in 10 CFR part 73,
Appendix D. Appendix D, in turn, refers to requirements in 10 CFR part
73, Appendix B, III and IV. For clarity, the proposed revision would
add a direct reference to Appendix B.
The proposed rule would re-designate Sec. 73.37(b)(11) as Sec.
73.37(b)(3)(vii)(B) and revise it by changing the escort's requirement
to contact the movement control center from ``at least every 2 hours''
to contacts at ``random intervals, not to exceed 2 hours.'' The
proposed provision would also change ``communications center'' to
``movement control center.''
The proposed rule would re-designate the current Sec. 73.37(b)(9)
as Sec. 73.37(b)(3)(vii)(C) and would revise it by further clarifying
the escort's responsibilities when the shipment vehicle is stopped, or
the shipment vessel is docked. The proposed revisions would ensure that
when a shipment is stationary at least one armed escort maintains
constant visual surveillance. The proposed rule also would provide for
periodic reports of shipment status to the movement control center by
the armed escort.
H. Proposed Sec. 73.37(b)(4)
The proposed rule would re-designate Sec. 73.37(b)(2) as Sec.
73.37(b)(4)(i)-(iii), ``Contingency and Response Procedures,'' and
would add additional requirements. The proposed rule would add new
Sec. Sec. 73.37(b)(4)(i) and 73.37(b)(4)(ii), which would require
licensees to develop and implement contingency and response procedures,
and would require licensees to train personnel in these procedures. The
current requirements in Sec. 73.37(b) do not specifically require
personnel training, but only require escorts to receive instructions.
The proposed rule would expressly require that written procedures are
developed and that all personnel associated with the transport and
security of the shipment are adequately trained to carry out their
responsibilities. The proposed revisions provide reasonable assurance
of a more timely and effective response to any attempted theft,
diversion, or radiological sabotage. A response to an event must be
initiated without delay in order to have a high probability of success.
The response is more likely to be timely and effective if roles,
responsibilities, and actions are clearly delineated and understood in
advance.
The proposed rule would also add a new Sec. 73.37(b)(4)(iii),
which would incorporate the current Sec. 73.37(b)(2) recordkeeping
requirements.
The proposed rule would re-designate Sec. 73.37(b)(3) as Sec.
73.37(b)(4)(iv) and revise it to include the requirement that the
contingency and response procedures direct the escort to take the
necessary steps to delay or impede theft, diversion, or radiological
sabotage of spent nuclear fuel in transit.
I. Proposed Sec. 73.37(c)
The proposed rule would revise Sec. 73.37(c)(1) and delete Sec.
73.37(c)(2) to eliminate the distinction between heavily populated
areas and other areas through which a road shipment of spent nuclear
fuel shipment may pass. Proposed Sec. 73.37(c)(1) would require armed
escorts for the entire shipment route. In addition, a new Sec.
73.37(c)(1)(iii) would require non-LLEA armed escorts to have a minimum
of two weapons. The NRC has determined that it is prudent to require a
minimum of two weapons for each armed escort.
The proposed deletion of the current Sec. 73.37(c)(2) would result
in a renumbering of the section. The proposed rule would re-designate
current Sec. 73.37(c)(3) as Sec. 73.37(c)(2) and revise it as
described below. The requirements in the current Sec. 73.37(c)(3)
describe specific acceptable types of communication devices, i.e., use
of citizens band radio, radiotelephone, which may become obsolete in
the near future. Instead of specifying an acceptable communications
technology, the proposed Sec. 73.37(c)(2) revisions describe the
performance characteristics of the communications capabilities.
The proposed rule would re-designate Sec. 73.37(c)(4) as Sec.
73.37(c)(3) and Sec. 73.37(c)(5) as Sec. 73.37(c)(4). The proposed
rule would add a new Sec. 73.37(c)(5), which would require continuous
and active monitoring of the shipment by a telemetric position
monitoring system or an alternative tracking system. The proposed
revisions would ensure that shipments are continuously and actively
monitored by a tracking system that communicates continuous position
information to a movement control center. This requirement would allow
the movement control center to receive positive confirmation of the
location, status, and control of the shipment. These requirements would
ensure immediate detection of any deviations from the authorized route,
which will provide a prompt notification of any emergency or safeguards
event. The proposed revisions would facilitate a more timely and
effective response.
J. Proposed Sec. 73.37(d)
The proposed rule would revise Sec. 73.37(d)(1) and delete Sec.
73.37(d)(2) to eliminate the distinction between heavily populated
areas and other areas through which a rail shipment of spent nuclear
fuel may pass. The proposed Sec. 73.37(d)(1) would require armed
escorts for the entire shipment route. The proposed rule would add a
new Sec. 73.37(d)(2) to require a minimum of 2 weapons for non-LLEA
armed escorts. The proposed rule would revise Sec. 73.37(d)(3), which
describes acceptable types of communication devices. The NRC recognizes
that these devices may become obsolete in the near future. Instead of
specifying acceptable communications technology, the proposed Sec.
73.37(d)(3) describes the performance characteristics of the
communication capabilities. The proposed rule would also add a new
Sec. 73.37(d)(4) which would address continuous and active monitoring
of the shipment by a telemetric position monitoring system or an
alternative tracking system.
K. Proposed Sec. 73.37(e)
The proposed rule would revise Sec. Sec. 73.37(e)(1) and (e)(2) to
eliminate the distinction between heavily populated areas and other
areas for sea shipments of spent nuclear fuel. The proposed Sec.
73.37(e)(1)(i) would require armed escorts at any U.S. port where
vessels carrying spent nuclear fuel shipments are docked. Proposed
Sec. 73.37(e)(1)(i) would also require a minimum of two weapons for
each non-LLEA escort. The proposed rule would revise Sec. 73.37(e)(3)
to eliminate the listing of communication devices. Instead of
specifying acceptable communication technology, proposed Sec.
73.37(e)(3) would describe the performance characteristics of the
communication capabilities.
L. Proposed Sec. 73.37(f)
The proposed rule would re-designate the current Sec. 73.37(f) as
Sec. 73.37(b)(2). A newly proposed Sec. 73.37(f) would require an
immediate investigation if a shipment is lost or unaccounted for after
the designated no-later-than arrival time. This proposed requirement
would facilitate the location and recovery of shipments that may have
come under control of unauthorized persons.
M. Proposed Sec. 73.37(g)
The proposed rule would delete the reference to Sec. 73.37(f)(3)
and insert the reference to Sec. 73.37(b)(2)(iii) to reflect the
reorganization of Sec. 73.37. It would also ensure that the final rule
for the ``Protection of Safeguards Information''
[[Page 62706]]
(October 24, 2008, 73 FR 63546) is reflected in the proposed
rulemaking. Under Sec. 73.22(a), information to be protected as
safeguards information in the proposed Sec. 73.37 would include: (1)
Schedules, itineraries, arrangements with LLEA, and locations of safe
havens, which is the information described in Sec. 73.37(b)(1), and
Sec. Sec. 73.37(b)(2)(iii)-(b)(2)(v); (2) the physical security plan,
which is the information described in Sec. 73.37(b)(3); (3) the
procedures for response to security contingency events, and the tactics
and capabilities required to defend against attempted theft, diversion,
or sabotage, which is the information described in Sec. 73.37(b)(4);
and portions of inspection reports, evaluations, audits, or
investigations that contain details of a licensee's or applicant's
physical security system, which is the information described in Sec.
73.37(f). In addition, according to Sec. 73.22(a), vehicle
immobilization features, intrusion alarm devices, and communications
systems, including communication limitations, are also considered
safeguards information.
N. Proposed Sec. 73.38
Proposed Sec. 73.38 would establish the personnel access
authorization requirements for granting an individual unescorted access
or access authorization relative to spent nuclear fuel in transit.
Proposed Sec. 73.38(a)(1) would specify the licensees subject to the
requirements in the proposed section. Proposed Sec. 73.38(a)(2) would
provide that licensees are required to establish, implement, and
maintain the overall effectiveness of the access authorization program.
Proposed Sec. 73.38(b) would establish the general performance
objective to ensure that the individuals subject to the access
authorization program are trustworthy and reliable. Proposed Sec.
73.38(c)(1) would specify the individuals that would be subject to the
access authorization program. Proposed Sec. 73.38(c)(2) would indicate
that individuals listed in Sec. 73.59 are not subject to the
investigative elements of the access authorization program.
Proposed Sec. 73.38(d) would establish the background
investigation requirements for individuals seeking unescorted access or
access authorization relative to spent nuclear fuel in transit. For an
individual seeking unescorted access or access authorization relative
to spent nuclear fuel in transit, proposed Sec. Sec. 73.38(d)(1)-(9)
would require licensees to conduct fingerprinting and an FBI
identification and criminal history records check; verification of true
identity; employment history evaluation, verification of education;
military history verification; credit history evaluation; criminal
history review; character reputation and determination; and obtain
independent information, respectively. Proposed Sec. 73.38(d)(10)
would allow a licensee to rely upon an alternate source that has not
been previously used, if the licensee cannot obtain information on an
individual from their previous employer, educational institution, or
any other entity with which the individual claims to have been engaged.
Proposed Sec. 73.38(d)(10) is patterned after Sec.
73.56(d)(4)(iv)(B).
Proposed Sec. 73.38(e) would require licensees to make and
document trustworthiness and reliability determinations after obtaining
and evaluating the information required by Sec. Sec. 73.38(d)(1)-(9).
Licensees would be required to maintain records of trustworthiness and
reliability for 5 years from the date the individual no longer requires
unescorted access or access authorization relative to spent nuclear
fuel shipments.
Proposed Sec. 73.38(f) would require licenses to protect the
information obtained from background investigations, while allowing
licensees to transfer background information on an individual to
another licensee if the individual makes a written request for such
transfer. Proposed Sec. 73.38(f) would allow a licensee to rely on the
background information transferred from another licensee, provided that
the receiving licensee verifies the name, date of birth, social
security number, sex, and other applicable physical characteristics to
ensure that the individual is the person whose file has been
transferred.
A number of individuals who would be subject to the background
investigation portion of this proposed rule may have recently satisfied
similar requirements under the prior NRC orders. For such individuals,
it would be an unnecessary use of resources to re-fingerprint them.
Thus, proposed Sec. 73.38(g) would permit persons to essentially re-
use the results of a fingerprint check that has been created within 5
years of the effective date of the rule. This would not be
``relieving'' such individuals from the rule, but rather permitting
them to satisfy the fingerprinting requirements by other means. It is
important to emphasize, however, that a licensee's ability to use
previous fingerprinting results is not a substitute for the licensee
independently concluding that the person is suitable for unescorted
access to spent nuclear fuel in transit, including subjecting the
person to all other applicable requirements of the background
investigation that would be required by Sec. 73.38(d).
Proposed Sec. 73.38(h) would establish the requirements for
reinvestigation of individuals with unescorted access to spent nuclear
fuel in transit. Proposed Sec. 73.38(h) would establish completion of
reinvestigations within 10 years of the last investigation. The scope
of the investigation would be the past 10 years and would consist of
fingerprinting and a FBI identification and criminal history records
check; criminal history review; and credit history re-evaluation.
Proposed Sec. 73.38(i) would establish the requirements for
individuals to self-report legal actions taken by a law enforcement
authority or court of law to which the individual has been subject that
could result in incarceration or a court order or that requires a court
appearance. This paragraph requires the recipient of the report, if the
recipient is not the reviewing official, to promptly convey the report
to the reviewing official who will then evaluate the implications of
those actions with respect to the individual's trustworthiness and
reliability.
Proposed Sec. 73.38(j) would establish the requirements that
licensees would be required to develop, implement, and maintain written
procedures for conducting the background investigations for persons
applying for unescorted access or access authorization relative to
spent nuclear fuel in transit. The procedures should address
notification of individuals denied unescorted access or access
authorization, including the basis for the denial or termination. The
procedures should also provide for the review of the information by the
affected individuals. It should also ensure that individuals who have
been denied unescorted access or access authorization are not allowed
unescorted access to spent nuclear fuel. These individuals could be
escorted by an approved individual. These individuals should not
receive access to safeguards information relative to spent nuclear fuel
in transit.
Proposed Sec. 73.38(k) would establish the requirements that an
individual has the right to correct his or her criminal history records
before any final adverse determination is made. If the individual
believes that his or her criminal history records are incorrect or
incomplete in any respect, he or she can initiate challenge procedures.
These procedures would include direct application by the individual
challenging the criminal history records to the law enforcement agency
that contributed the questioned
[[Page 62707]]
information. Proposed Sec. 73.38(l) would establish the requirements
that licensees retain documentation relative to the trustworthiness and
reliability determination for 5 years after the individual no longer
requires unescorted access or access authorization. The proposed rule
would also require that corrected or new information be actively
communicated by the recipient to other licensees.
O. Proposed Sec. 73.72(a)(4)
The proposed rule would revise Sec. 73.72(a)(4) to require 2
additional notifications of NRC, 1 to be made 2 hours before the
commencement of the shipment and the other to be made when the shipment
arrives at its final destination. The current requirements of Sec.
73.72 require notification 2 days before the shipment commences, but
not 2 hours before the shipment begins or when it ends.
P. Proposed Sec. 73.72(a)(5)
The proposed rule would revise Sec. 73.72(a)(5) to clarify the
meaning of the language ``greater than 6 hours'' that
appears in the section. The proposed revision deletes ``greater'' and
inserts ``more,'' and deletes the symbol ``.''
Q. Proposed Sec. 73.72(b)
The current requirements in Sec. 73.72(b) exempt licensees who
make a road shipment or transfer with one-way transit times of one hour
or less between installations of the licensee from providing advance
notification of the shipment to NRC. The proposed amendment would
remove this exemption from the regulations. This proposed revision
would ensure that NRC is informed of any spent nuclear fuel shipment on
a public road, even those of short duration, and NRC is prepared to
respond to an emergency or safeguards event. It would mitigate the risk
of theft, diversion, or radiological sabotage of a shipment.
Table 1--Cross Reference of Proposed Regulations With Existing
Regulations
------------------------------------------------------------------------
The proposed regulation Existing regulation
------------------------------------------------------------------------
73.37(a)(1)............................ 73.37(a)(1).
73.37(a)(2)............................ 73.37(a)(2).
73.37(b)(1)(i)-(iii)................... New (no existing equivalent).
73.37(b)(1)(iv)(A)..................... 73.37(b)(8).
73.37(b)(1)(iv)(B)..................... New (no existing equivalent).
73.37(b)(1)(iv)(C)..................... New (no existing equivalent).
73.37(b)(1)(iv)(D)..................... New (no existing equivalent).
73.37(b)(1)(v)......................... 73.37(b)(6).
73.37(b)(1)(vi)........................ 73.37(b)(7).
73.37(b)(1)(vi)(A)..................... New (no existing equivalent).
73.37(b)(1)(vi)(B)..................... 73.37(b)(7).
73.37(b)(1)(vi)(C)..................... 73.37(b)(7).
73.37(b)(1)(vii)....................... New (no existing equivalent).
73.37(b)(2)............................ 73.37 (b)(1) & 73.37(f).
73.37(b)(2)(i)......................... 73.37(f)(1).
73.37(b)(2)(ii)........................ 73.37(f)(2).
73.37(b)(2)(iii)....................... 73.37(f)(3).
73.37(b)(2)(iv)........................ 73.37(f)(4).
73.37(b)(2)(v)......................... 73.37(f)(4).
73.37(b)(2)(vi)........................ 73.70.
73.37(b)(3)(i)......................... New (no existing equivalent).
73.37(b)(3)(ii)........................ 73.37(b)(4).
73.37(b)(3)(iii)....................... 73.37(b)(4).
73.37(b)(3)(iv)........................ 73.37(b)(5).
73.37(b)(3)(v)......................... New (no existing equivalent).
73.37(b)(3)(vi)........................ 73.37(b)(3).
73.37(b)(3)(vii)(A).................... 73.37(b)(10).
73.37(b)(3)(vii)(B).................... 73.37(b)(11).
73.37(b)(3)(vii)(C).................... 73.37(b)(9).
73.37(b)(4)(i)......................... 73.37(b)(2).
73.37(b)(4)(ii)........................ 73.37(b)(2).
73.37(b)(4)(iii)....................... 73.37(b)(2).
73.37(b)(4)(iv)........................ 73.37(b)(3).
73.37(c)............................... 73.37(c).
73.37(c)(1)............................ 73.37(c)(1).
(none--paragraph deleted).............. 73.37(c)(2).
73.37(c)(2)............................ New (no existing equivalent).
73.37(c)(3)............................ 73.37(c)(3).
73.37(c)(4)............................ 73.37(c)(4).
73.37(c)(5)............................ 73.37(c)(5).
73.37(c)(6)............................ New (no existing equivalent).
73.37(d)............................... 73.37(d).
73.37(d)(1)............................ 73.37(d)(1).
(none--paragraph deleted).............. 73.37(d)(2).
73.37(d)............................... 73.37(d).
73.37(d)(2)............................ New (no existing equivalent).
73.37(d)(3)............................ 73.37(d)(3).
73.37(d)(4)............................ New (no existing equivalent).
73.37(e)............................... 73.37(4).
73.37(e)(1)............................ 73.37(e)(1).
73.37(e)(2)............................ New (no existing equivalent).
73.37(e)(3)............................ 73.37(e)(2).
[[Page 62708]]
73.37(e)(4)............................ 73.37(e)(3).
73.37(f)............................... New--incorporates 73.71
reporting provisions.
73.37(g)............................... 73.37(g).
73.38.................................. New--incorporates background
investigations.
73.72(a)(1)............................ 73.72(a)(1).
73.72(a)(4)(i)-(iii)................... 73.72(a)(4).
73.72(a)(5)............................ 73.72(a)(5).
(none--exemption deleted from existing) 73.72(b).
73.72(b)............................... New (no existing equivalent--
new exemption).
------------------------------------------------------------------------
V. Criminal Penalties
For the purpose of Section 223 of the AEA, the NRC is proposing to
amend 10 CFR Part 73 under one or more of Sections 161b, 161i, or 161o
of the AEA. Willful violations of the rule would be subject to criminal
enforcement.
VI. 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 a Compatibility Category NRC. The
NRC analyzed the proposed rule under the procedure established within
Part III, ``Categorization Process for the NRC Program Elements,'' of
Directive Handbook 5.9, ``Adequacy and Compatibility of Agreement State
Programs'' (a copy of which may be viewed at http://www.nrc.gov/reading-rm/doc-collections/management-directives/).
The NRC program elements in this category are those that relate
directly to areas of regulation reserved to NRC by the AEA, or the
provisions of 10 CFR. 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. The regulation of spent nuclear fuel
is reserved to NRC and cannot be relinquished to an Agreement State.
Thus, this rulemaking will have no impact on Agreement States'
regulatory programs. Therefore, Agreement States will not need to make
conforming changes to their regulations.
VII. Plain Language
The Presidential Memorandum ``Plain Language in Government
Writing,'' published June 10, 1998 (63 FR 31885), directed that the
Government's documents be written in clear and accessible language. The
NRC requests comments on this 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 heading of this
document.
VIII. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995 (Pub.
L. 104-113) requires that Federal agencies use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
the use of such a standard is inconsistent with applicable law or
otherwise impractical. The NRC is proposing to (1) Amend Sec. 73.37,
which contains the requirements for the physical protection of spent
nuclear fuel in transit; (2) add a new Sec. 73.38, which establishes
the requirements for a background investigation of individuals applying
for unescorted access to spent nuclear fuel shipments; and (3) amend
Sec. 73.72, which contains the requirements for the advance
notification of NRC of spent nuclear fuel along with other special
nuclear material. This action does not constitute the establishment of
a standard that establishes generally applicable requirements.
IX. Finding of No Significant Environmental Impact: Availability
Under the National Environmental Policy Act of 1969, as amended,
and the NRC regulations in subpart A of 10 CFR part 51, NRC has
determined that this proposed 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 for this rulemaking. The NRC has prepared an environmental
assessment and, on the basis of this environmental assessment, has made
a finding of no significant impact.
The implementation of the proposed rule's security requirements
would not result in significant changes to the licensees' facilities,
nor would such implementation result in any significant increase in
effluents released to the environment. Similarly, the implementation of
the proposed rule's security requirements would not affect occupational
exposure requirements. No major construction or other earth disturbing
activities, on the part of affected licensees, is anticipated in
connection with licensees' implementation of the proposed rule's
requirements. The NRC has determined that the implementation of this
proposed rule would be procedural and administrative in nature.
The determination of this environmental assessment is that there
will be no significant impact to the public from this action. However,
the general public should note that NRC welcomes public participation.
Comments on any aspect of the environmental assessment may be submitted
to NRC as indicated under the ADDRESSES heading in this document.
The NRC will send a copy of the environmental assessment and this
proposed rule to every State Liaison Officer, and will request their
comments on the environmental assessment. The environmental assessment
may be examined at the NRC Public Document Room, O-1 F21, 11555
Rockville Pike, Rockville, MD 20852.
X. Paperwork Reduction Act Statement
This proposed rule contains new or amended information collection
requirements that are subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). This rule has been submitted to the Office of
Management and Budget for review and approval of the information
collection requirements.
Type of submission, new or revision: Revision.
The title of the information collection: 10 CFR part 73, ``Physical
Protection of Plants and Materials,'' The Proposed Rule.
The form number if applicable: NA.
How often the collection is required: On occasion.
Who will be required or asked to report: NRC licensees that are
[[Page 62709]]
authorized to possess and transport spent nuclear fuel in excess of 100
grams (0.22 lbs) in net weight exclusive of cladding or other material,
which has a total radiation level in excess of 1 Sv (100 rems) per hour
at a distance of .91 meters (3 feet) from any accessible surface
without regard to any intervening shielding.
An estimate of the number of annual responses: 360 (342 responses +
18 recordkeepers).
The estimated number of annual respondents: 18.
An estimate of the total number of hours needed annually to
complete the requirement or request: 1,058 (59 hrs per respondent).
Abstract: The NRC is proposing to amend its regulations to enhance
the requirements for the safety and security of spent nuclear fuel
during transit and to make these applicable to all licensees by placing
them in the 10 CFR. The proposed rulemaking would establish the minimum
performance standards and objectives for the protection of spent
nuclear fuel shipments from theft, diversion or radiological sabotage.
The proposed amendments would affect licensees authorized to possess or
transport spent nuclear fuel.
The NRC is seeking public comment on the potential impact of the
information collections contained in this proposed rule and on the
following issues:
1. Is the proposed information collection necessary for the proper
performance of the functions of NRC, including whether the information
will have practical utility?
2. Is the estimate of burden accurate?
3. Is there a way to enhance the quality, utility, and clarity of
the information to be collected?
4. How can the burden of the information collection be minimized,
including the use of automated collection techniques?
A copy of the OMB clearance package may be viewed free of charge at
the NRC Public Document Room, One White Flint North, 11555 Rockville
Pike, Room O-1 F21, Rockville, MD 20852. The OMB clearance package and
the proposed rule are available for 60 days after the signature date of
this notice at the NRC worldwide Web site: http://www.nrc.gov/public-involve/doc-comment/omb/index.html.
Send comments on any aspect of these proposed regulations related
to information collections, including suggestions for reducing the
burden and on the above issues, by November 12, 2010 to the Records and
FOIA/Privacy Services Branch (T-5 F52), U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, or by Internet electronic mail
to [email protected] and to the Desk Officer, Office of
Information and Regulatory Affairs, NEOB-10202 (RIN-3150-AI64), Office
of Management and Budget, Washington, DC 20503. Comments on the
proposed information collections may also be submitted via the Federal
eRulemaking Portal http://www.regulations.gov, Document ID: NRC-2009-
0163. Comments received after this date will be considered if it is
practical to do so, but assurance of consideration cannot be given to
comments received after this date.
XI. 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.
XII. Regulatory Analysis
The NRC has prepared a draft regulatory analysis on this proposed
regulation. The analysis examines the costs and benefits of the
alternatives considered by the NRC.
The NRC requests public comment on the draft regulatory analysis.
Comments on the draft analysis may be submitted to NRC as indicated
under the ADDRESSES heading. The analysis is available for inspection
in the NRC Public Document Room, 11555 Rockville Pike, Room 0-1 F21,
Rockville, MD 20852.
XIII. Regulatory Flexibility Certification
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the
Commission certifies that this rule would not, if promulgated, have a
significant economic impact on a substantial number of small entities.
The companies that possess or transport spent nuclear fuel 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 NRC
(10 CFR 2.810).
XIV. Backfit Analysis
The NRC has determined that the backfit rule (Sec. Sec. 50.109,
70.76, 72.62, or 76.76) does not apply to this proposed rule because
this amendment would not involve any provisions that would impose
backfits as defined in 10 CFR Chapter I. Therefore, a backfit analysis
is not required.
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. 553; the NRC proposes 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. Sec. Sec. 5841, 5844, 2297f);
sec. 1704, 112 Stat. 2750 (44 U.S.C. Sec. 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).
2. Section 73.37 is revised to read as follows:
Sec. 73.37 Requirements for physical protection of irradiated reactor
fuel in transit.
(a) Performance objectives. (1) Each licensee who transports, or
delivers to a carrier for transport, in a single shipment, a quantity
of irradiated reactor fuel \1\ in excess of 100 grams (0.22 lbs) in net
weight of irradiated fuel, exclusive of cladding or other structural or
packaging material, which has a total external radiation dose rate in
excess of 1 Sv (100 rems) per hour at a distance of .91 meters (3 feet)
from any accessible surface without intervening shielding, shall
establish and maintain, or make arrangements for, and assure the proper
implementation of, a physical protection system for shipments of such
material that will achieve the following objectives:
---------------------------------------------------------------------------
\1\ For purposes of 10 CFR 73.37, the terms ``irradiated reactor
fuel'' and ``spent nuclear fuel'' are used interchangeably.
---------------------------------------------------------------------------
(i) Minimize the potential for theft, diversion, or radiological
sabotage of spent nuclear fuel shipments; and
(ii) Facilitate the location and recovery of spent fuel shipments
that may have come under the control of unauthorized persons.
[[Page 62710]]
(2) To achieve these objectives, the physical protection system
shall:
(i) Provide for early detection and assessment of attempts to gain
unauthorized access to, or control over, spent fuel shipments;
(ii) Delay and impede attempts at theft, diversion, or radiological
sabotage of spent nuclear fuel shipments until response forces arrive;
and
(iii) Provide for notification to the appropriate response forces
of any attempts at theft, diversion, or radiological sabotage of a
spent nuclear fuel shipment.
(b) General requirements. To achieve the performance objectives of
paragraph (a) of this section, a physical protection system established
and maintained, or arranged for, by the licensee shall include the
following elements:
(1) Preplan and Coordinate Spent Nuclear Fuel Shipments. Each
licensee shall:
(i) Ensure that each armed escort is instructed on the use of force
sufficient to counter the force directed at the person, including the
use of deadly force when the armed escort has a reasonable belief that
the use of deadly force is necessary in self-defense or in the defense
of others, or any other circumstances, as authorized by applicable
Federal and State laws. This requirement does not apply to members of
local law enforcement agencies performing escort duties.
(ii) Preplan and coordinate shipment itineraries to ensure that the
receiver at the final delivery point is present to accept the shipment.
(iii) Ensure written certification of any transfer of custody.
(iv) Preplan and coordinate shipment information with the governor
of a State, or the governor's designee, of a shipment of spent nuclear
material through or across the boundary of the State, in order to:
(A) Minimize intermediate stops and delays;
(B) Arrange for State law enforcement escorts;
(C) Arrange for positional information sharing when requested; and
(D) Develop route information, including the identification of safe
havens.
(v) Arrange with local law enforcement authorities along the
shipment route, including U.S. ports where vessels carrying spent
nuclear fuel shipments are docked, for their response to an emergency
or a call for assistance.
(vi) Preplan and coordinate with NRC to obtain advance approval of
the routes used for road and rail shipments of spent nuclear fuel, and
of any U.S. ports where vessels carrying spent nuclear fuel shipments
are scheduled to stop. In addition to the requirements of this section,
routes used for shipping spent nuclear fuel shall comply with the
applicable requirements of the DOT regulations in 49 CFR in particular
those identified in Sec. 71.5. The advance approval application shall
provide:
(A) For road shipments, the route should include locations of safe
havens that have been coordinated with the appropriate State(s).
(B) The NRC approval shall be obtained prior to the 10-day advance
notification requirement in Sec. 73.72 of this part.
(C) Information to be supplied to NRC shall include, but is not
limited to, the following:
(1) Shipper, consignee, carriers, transfer points, modes of
shipment; and
(2) A statement of shipment security arrangements, including, if
applicable, points where armed escorts transfer responsibility for the
shipment.
(vii) Document the preplanning and coordination activities.
(2) Advance Notifications. Prior to the shipment of spent nuclear
fuel outside the confines of the licensee's facility or other place of
use or storage, a licensee subject to this section shall provide
notification to NRC, under Sec. 73.72 of this part, and the governor
of the State, or the governor's designee, of the spent nuclear fuel
shipment. Contact information for each State, including telephone and
mailing addresses of governors and governors' designees, is available
on the NRC Web site at: http://nrc-stp.ornl.gov/special/designee.pdf. A
list of the contact information is also available upon request from the
Director, Division of Intergovernmental Liaison and Rulemaking, U.S.
Nuclear Regulatory Commission, Washington, DC 20555. The licensee shall
comply with the following criteria in regard to each notification:
(i) Procedures for submitting advance notification. (A) The
notification must be in writing and sent to the office of each
appropriate governor or the governor's designee.
(B) A notification delivered by mail must be postmarked at least 7
days before transport of a shipment within or through the State.
(C) A notification delivered by any other method must reach the
office of the governor or the governor's designee at least 4 days
before transport of a shipment within or through the State.
(ii) Information to be furnished in advance notification of
shipment. The notification must include the following information:
(A) The name, address, and telephone number of the shipper, carrier
and receiver of the shipment and the license number of the shipper and
receiver;
(B) A description of the shipment as specified by DOT in 49 CFR
172.202 and 172.203(d); and
(C) A listing of the routes to be used within the State.
(iii) Separate Enclosure. The licensee shall provide the following
information, under Sec. 73.22(f)(1), in a separate enclosure to the
written notification:
(A) The estimated date and time of departure from the point of
origin of the shipment;
(B) The estimated date and time of entry into the State;
(C) The estimated date and time of arrival of the shipment at the
destination;
(D) For the case of a single shipment whose schedule is not related
to the schedule of any subsequent shipment, a statement that schedule
information must be protected under the provisions of Sec. Sec. 73.21
and 73.22 until at least 10 days after the shipment has entered or
originated within the State; and
(E) For the case of a shipment in a series of shipments whose
schedules are related, a statement that schedule information must be
protected under the provisions of Sec. Sec. 73.21 and 73.22 until 10
days after the last shipment in the series has entered or originated
within the State, and an estimate of the date on which the last
shipment in the series will enter or originate within the State.
(iv) Revision notice. A licensee shall notify by telephone a
responsible individual in the office of the governor or in the office
of the governor's designee of any schedule change that differs by more
than 6 hours from the schedule information previously furnished under
Sec. 73.37(b)(2)(iii), and shall inform that individual of the number
of hours of advance or delay relative to the written schedule
information previously furnished.
(v) Cancellation notice. Each licensee who cancels a shipment for
which advance notification has been sent shall send a cancellation
notice to the governor or to the governor's designee of each State
previously notified and to the NRC's Director, Division of Security
Policy, Office of Nuclear Security and Incident Response. The licensee
shall state in the notice that it is a cancellation and identify the
advance notification that is being canceled.
(vi) Records. The licensee shall retain a copy of the preplanning
and coordination activities, advance notification, and any revision or
cancellation notice as a record for 3 years under Sec. 73.70.
[[Page 62711]]
(3) Transportation Physical Protection System. (i) The physical
protection system established under Sec. 73.37(a)(1) shall include
armed escorts to protect spent nuclear fuel shipments and a movement
control center staffed and equipped to monitor and control spent
nuclear fuel shipments, to communicate with local law enforcement
authorities, and to respond to safeguards contingencies.
(ii) The movement control center must be staffed continuously by at
least one individual who will actively monitor the progress of the
spent nuclear fuel shipment and who has the authority to direct the
physical protection activities.
(iii) The movement control center personnel must monitor the
shipment continuously, i.e., 24-hours per day, from the time the
shipment commences, or if delivered to a carrier for transport, from
the time of delivery of the shipment to the carrier, until safe
delivery of the shipment at its final destination, and must immediately
notify the appropriate agencies in the event of a safeguards event
under the provisions of Sec. 73.71.
(iv) The movement control center personnel and the armed escorts
must maintain a written log for each spent nuclear fuel shipment, which
will include information describing the shipment and significant events
that occur during the shipment. The log must be available for review by
authorized NRC personnel for a period of at least 3 years following
completion of the shipment.
(v) The licensee shall develop, maintain, revise and implement
written transportation physical protection procedures which address the
following:
(A) Access controls to ensure no unauthorized persons have access
to the shipment and safeguards information;
(B) Duties of the movement control center personnel, drivers, armed
escorts and other individuals responsible for the security of the
shipment;
(C) Reporting of safeguards events under Sec. 73.71;
(D) Communications protocols that include a strategy for the use of
authentication and duress codes, the management of refueling or other
stops, detours, and the loss of communications, temporarily or
otherwise; and
(E) Normal conditions operating procedures.
(vi) The licensee shall retain as a record the transportation
physical protection procedures for 3 years after the close of period
for which the licensee possesses the spent nuclear fuel.
(vii) The transportation physical protection system shall:
(A) Provide that escorts (other than members of local law
enforcement agencies, or ship's officers serving as unarmed escorts)
have successfully completed the training required by Appendix D of this
part, including the equivalent of the weapons training and
qualifications program required of guards, as described in sections III
and IV of Appendix B of this part, to assure that each such individual
is fully qualified to use the assigned weapons;
(B) Provide that shipment escorts make calls to the movement
control center at random intervals, not to exceed 2 hours, to advise of
the status of the shipment for road and rail shipments, and for sea
shipments while shipment vessels are docked at U.S. ports; and
(C) Provide that at least one armed escort remains alert at all
times, maintains constant visual surveillance of the shipment, and
periodically reports to the movement control center at regular
intervals not to exceed 30 minutes during periods when the shipment
vehicle is stopped, or the shipment vessel is docked.
(4) Contingency and Response Procedures. (i) In addition to the
procedures established under paragraph (b)(3)(v) of this section, the
licensee shall establish, maintain, and follow written contingency and
response procedures to address threats, thefts, and radiological
sabotage related to spent nuclear fuel in transit.
(ii) The licensee shall ensure that personnel associated with the
shipment shall be appropriately trained regarding contingency and
response procedures.
(iii) The licensee shall retain the contingency and response
procedures as a record for 3 years after the close of period for which
the licensee possesses the spent nuclear fuel.
(iv) The contingency and response procedures must direct that, upon
detection of the abnormal presence of unauthorized persons, vehicles,
or vessels in the vicinity of a spent nuclear fuel shipment or upon
detection of a deliberately induced situation that has the potential
for damaging a spent nuclear fuel shipment, the armed escort will:
(A) Determine whether or not a threat exists;
(B) Assess the extent of the threat, if any;
(C) Implement the procedures developed under paragraph (b)(4)(i) of
this section;
(D) Take the necessary steps to delay or impede threats, thefts, or
radiological sabotage of spent nuclear fuel, and
(E) Inform local law enforcement agencies of the threat and request
assistance without delay, but not to exceed 15 minutes after discovery.
(c) Shipments by road. In addition to the provisions of paragraph
(b) of this section, the physical protection system for any portion of
a spent nuclear fuel shipment by road shall provide that:
(1) The transport vehicle is:
(i) Occupied by at least 2 individuals, 1 of whom serves as an
armed escort, and escorted by an armed member of the local law
enforcement agency in a mobile unit of such agency; or
(ii) Led by a separate vehicle occupied by at least 1 armed escort,
and trailed by a third vehicle occupied by at least 1 armed escort.
(2) As permitted by law, all armed escorts are equipped with a
minimum of 2 weapons. This requirement does not apply to local law
enforcement agency personnel who are performing escort duties.
(3) The transport vehicle and each escort vehicle are equipped with
redundant communication abilities that provide for 2-way communications
between the transport vehicle, the escort vehicle(s), the movement
control center, local law enforcement agencies, and one another at all
times. Alternate communications should not be subject to the same
failure modes as the primary communication.
(4) The transport vehicle is equipped with the NRC-approved
features that permit immobilization of the cab or cargo-carrying
portion of the vehicle.
(5) The transport vehicle driver has been familiarized with, and is
capable of implementing, transport vehicle immobilization,
communications, and other security procedures.
(6) Shipments are continuously and actively monitored by a
telemetric position monitoring system or an alternative tracking system
reporting to a movement control center. A movement control center shall
provide positive confirmation of the location, status, and control over
the shipment. The movement control center shall implement preplanned
procedures in response to deviations from the authorized route or a
notification of actual, attempted, or suspicious activities related to
the theft, loss, diversion, or radiological sabotage of a shipment.
These procedures will include, but not be limited to, the
identification of and contact information for the appropriate local law
enforcement agency along the shipment route.
[[Page 62712]]
(d) Shipments by rail. In addition to the provisions of paragraph
(b) of this section, the physical protection system for any portion of
a spent nuclear fuel shipment by rail shall provide that:
(1) A shipment car is accompanied by 2 armed escorts (who may be
members of a local law enforcement agency), at least 1 of whom is
stationed at a location on the train that will permit observation of
the shipment car while in motion.
(2) As permitted by law, all armed escorts are equipped with a
minimum of 2 weapons. This requirement does not apply to local law
enforcement agency personnel who are performing escort duties.
(3) The train operator(s) and each escort are equipped with
redundant communication abilities that provide for 2-way communications
between the transport, the escort vehicle(s), the movement control
center, local law enforcement agencies, and one another at all times.
Alternate communications should not be subject to the same failure
modes as the primary communication.
(4) Rail shipments are monitored by a telemetric position
monitoring system or an alternative tracking system reporting to the
licensee, third-party, or railroad movement control center. The
movement control center shall provide positive confirmation of the
location of the shipment and its status. The movement control center
shall implement preplanned procedures in response to deviations from
the authorized route or to a notification of actual, attempted, or
suspicious activities related to the theft, diversion, or radiological
sabotage of a shipment. These procedures will include, but not be
limited to, the identification of and contact information for the
appropriate local law enforcement agency along the shipment route.
(e) Shipments by sea. In addition to the provisions of paragraph
(b) of this section, the physical protection system for any portion of
a spent nuclear fuel shipment that is by sea shall provide that:
(1) A shipment vessel, while docked at a U.S. port is protected by:
(i) Two armed escorts stationed on board the shipment vessel, or
stationed on the dock at a location that will permit observation of the
shipment vessel; or
(ii) A member of a local law enforcement agency, equipped with
normal local law enforcement agency radio communications, who is
stationed on board the shipment vessel, or on the dock at a location
that will permit observation of the shipment vessel.
(2) As permitted by law, all armed escorts are equipped with a
minimum of 2 weapons. This requirement does not apply to local law
enforcement agency personnel who are performing escort duties.
(3) A shipment vessel while within U.S. territorial waters shall be
accompanied by an individual, who may be an officer of the shipment
vessel's crew, who will assure that the shipment is unloaded only as
authorized by the licensee.
(4) Each armed escort is equipped with redundant communication
abilities that provide for 2-way communications between the vessel, the
movement control center, local law enforcement agencies, and one
another at all times. Alternate communications should not be subject to
the same failure modes as the primary communication.
(f) Investigations. Each licensee who makes arrangements for the
shipment of spent nuclear fuel shall immediately conduct an
investigation, in coordination with the receiving licensee, of any
shipment that is lost or unaccounted for after the designated no-later-
than arrival time in the advance notification.
(g) State officials, State employees, and other individuals,
whether or not licensees of the Commission, who receive information of
the kind specified in paragraph (b)(2)(iii) of this section and any
other safeguards information as defined in Sec. 73.22(a) shall protect
that information against unauthorized disclosure as specified in
Sec. Sec. 73.21 and 73.22 of this part.
3. Add Sec. 73.38 to read as follows:
Sec. 73.38 Personnel access authorization requirements for irradiated
reactor fuel in transit.
(a) General. (1) Each licensee who transports, or delivers to a
carrier for transport, in a single shipment, a quantity of spent
nuclear fuel as described in Sec. 73.37 (a)(1) shall comply with the
requirements of this section, as appropriate, before any spent nuclear
fuel is transported or delivered to a carrier for transport.
(2) Each licensee shall establish, implement, and maintain its
access authorization program under the requirements of this section.
(i) Each licensee shall be responsible for the continuing
effectiveness of the access authorization program.
(ii) Each licensee shall ensure that the access authorization
program is reviewed at an appropriate frequency to confirm compliance
with the requirements of this section and that comprehensive actions
are taken to correct any noncompliance that is identified.
(iii) The review shall evaluate all program performance objectives
and requirements.
(iv) Each review report must document conditions that are adverse
to the proper performance of the access authorization program, the
cause of the condition(s), and when appropriate, recommended corrective
actions, and corrective actions taken. The licensee shall review the
audit findings and take any additional corrective actions necessary to
preclude repetition of the condition, including reassessment of the
deficient areas where indicated.
(3) By (30 days after date the final rule is published in the
Federal Register), each licensee that is subject to this provision on
(effective date of final rule) shall implement the requirements of this
section through revisions to its physical security plan.
(b) General performance objective. The licensee's access
authorization program must ensure that the individuals specified in
paragraph (c) of this section are trustworthy and reliable such that
they do not constitute an unreasonable risk to public health and safety
or the common defense and security.
(c) Applicability. (1) Licensees shall subject the following
individuals to an access authorization program:
(i) Any individual to whom a licensee intends to grant unescorted
access to spent nuclear fuel in transit, including employees of a
contractor or vendor;
(ii) Any individual whose duties and responsibilities permit the
individual to take actions by physical or electronic means that could
adversely impact the safety, security, or emergency response to spent
nuclear fuel in transit (i.e., movement control personnel, vehicle
drivers, or other individuals accompanying spent nuclear fuel
shipments)
(iii) Any individual whose duties and responsibilities include
implementing a licensee's physical protection program under Sec.
73.37, including but not limited to, non-LLEA armed escorts;
(iv) Any individual whose assigned duties and responsibilities
provide access to spent nuclear fuel shipment information that is
considered to be Safeguards Information under Sec. 73.22(a)(2); and
(v) The licensee access authorization program reviewing official.
(2) Persons identified in Sec. 73.59 are not subject to the
investigative elements of the access authorization program.
(d) Background Investigation. Before allowing an individual to have
unescorted access or access
[[Page 62713]]
authorization relative to spent nuclear fuel \2\ in transit the
licensees shall complete a background investigation as defined in Sec.
73.2 of the individual seeking to have unescorted access or access
authorization. The scope of the investigation must encompass at least
the past 10 years, or if 10 years of information is not available then
as many years in the past that information is available. The background
investigation does not apply to Federal, State or local law enforcement
personnel who are performing escort duties. The background
investigation must include, but is not limited to, the following
elements:
---------------------------------------------------------------------------
\2\ For purposes of 10 CFR 73.38, the terms ``irradiated reactor
fuel'' as described in 10 CFR 73.37 and ``spent nuclear fuel'' are
used interchangeably.
---------------------------------------------------------------------------
(1) Informed consent. Licensees shall not initiate any element of a
background investigation without the informed and signed consent of the
subject individual. This consent shall include authorization to share
personal information with appropriate entities. The licensee to whom
the individual is applying for access authorization shall inform the
individual of his or her right to review information collected to
assure its accuracy, and provide the individual with an opportunity to
correct any inaccurate or incomplete information that is developed by
the licensee.
(i) The subject individual may withdraw his or her consent at any
time. Licensees shall inform the individual that:
(A) Withdrawal of his or her consent will remove the individual's
application for access authorization under the licensee's access
authorization program; and
(B) Other licensees shall have access to information documenting
the withdrawal.
(ii) If an individual withdraws his or her consent, licensees may
not initiate any elements of the background investigation that were not
in progress at the time the individual withdrew his or her consent, but
shall complete any background investigation elements that are in
progress at the time consent is withdrawn. The licensee shall record
the status of the individual's application for access authorization.
Additionally, licensees shall collect and maintain the individual's
application for access authorization; his or her withdrawal of consent
for the background investigation; the reason given by the individual
for the withdrawal; and any pertinent information collected from the
background investigation elements that were completed. This information
must be shared with other licensees under paragraph (l)(4) of this
section.
(iii) Licensees shall inform, in writing, any individual who is
applying for access authorization that the following actions are
sufficient cause for denial or unfavorable termination of access
authorization status:
(A) Refusal to provide a signed consent for the background
investigation;
(B) Refusal to provide, or the falsification of, any personal
history information required under this section, including the failure
to report any previous denial or unfavorable termination of access
authorization;
(C) Refusal to provide signed consent for the sharing of personal
information with other licensees under paragraph (d)(5)(v) of this
section; or
(D) Failure to report any arrests or legal actions specified in
paragraph (f) of this section.
(2) Personal history disclosure. Any individual who is required to
have a background investigation under this section shall disclose the
personal history information that is required by the licensee's access
authorization program for the reviewing official to make a
determination of the individual's trustworthiness and reliability.
Refusal to provide, or the falsification of, any personal history
information required by this section is sufficient cause for denial or
termination of access authorization.
(3) Fingerprinting. Fingerprinting and an FBI identification and
criminal history records check under Sec. 73.57.
(4) Verification of true identity. Licensees shall verify the true
identity of an individual who is applying to have access authorization
to ensure that the applicant is who they claim to be. A licensee shall
review official identification documents (e.g., driver's license,
passport, government identification, State, province, or country of
birth issued certificate of birth) and compare the documents to
personal information data provided by the individual to identify any
discrepancy in the information. Licensees shall document the type,
expiration, and identification number of the identification, or
maintain a photocopy of identifying documents on file under Sec.
73.38(c). Licensees shall certify and affirm in writing that the
identification was properly reviewed and maintain the certification and
all related documents for review upon inspection.
(5) Employment history evaluation. Licensees shall ensure that an
employment history evaluation has been completed on a best effort
basis, by questioning the individual's present and former employers,
and by determining the activities of the individual while unemployed.
(i) For the claimed employment period, the individual must provide
the reason for any termination, eligibility for rehire, and other
information that could reflect on the individual's trustworthiness and
reliability.
(ii) If the claimed employment was military service the individual
shall provide a characterization of service, reason for separation, and
any disciplinary actions that could affect a trustworthiness and
reliability determination.
(iii) If education is claimed in lieu of employment, the individual
shall provide any information related to the claimed education that
could reflect on the individual's trustworthiness and reliability and,
at a minimum, verify that the individual was registered for the classes
and received grades that indicate that the individual participated in
the educational process during the claimed period.
(iv) If a previous employer, educational institution, or any other
entity with which the individual claims to have been engaged fails to
provide information or indicates an inability or unwillingness to
provide information within 3 business days of the request, the licensee
shall:
(A) Document this refusal or unwillingness in the licensee's record
of the investigation; and
(B) Obtain a confirmation of employment, educational enrollment and
attendance, or other form of engagement claimed by the individual from
at least one alternate source that has not been previously used.
(v) When any licensee is seeking the information required for an
access authorization decision under this section and has obtained a
signed release from the subject individual authorizing the disclosure
of such information, other licensees shall make available the personal
or access authorization information requested regarding the denial or
unfavorable termination of an access authorization.
(vi) In conducting an employment history evaluation, the licensee
may obtain information and documents by electronic means, including,
but not limited to, telephone, facsimile, or e-mail. Licensees shall
make a record of the contents of the telephone call and shall retain
that record, and any documents or electronic files obtained
electronically, under paragraph (l) of this section.
(6) Credit history evaluation. Licensees shall ensure the
evaluation of
[[Page 62714]]
the full credit history of any individual who is applying for access
authorization relative to spent nuclear fuel in transit. A full credit
history evaluation must include, but is not limited to, an inquiry to
detect potential fraud or misuse of social security numbers or other
financial identifiers, and a review and evaluation of all of the
information that is provided by a national credit-reporting agency
about the individual's credit history. For foreign nationals and United
States citizens who have resided outside the United States and do not
have established credit history that covers at least the most recent 7
years in the United States, the licensee must document all attempts to
obtain information regarding the individual's credit history and
financial responsibility from some relevant entity located in that
other country or countries.
(7) Criminal history review. The licensee shall evaluate the entire
criminal history record of an individual who is applying for access
authorization to determine whether the individual has a record of
criminal activity that may adversely impact his or her trustworthiness
and reliability. The scope of the applicant's criminal history review
must cover all residences of record for the 10 year period preceding
the date of application for access authorization.
(8) Character and reputation determination. Licensees shall
ascertain the character and reputation of an individual who has applied
for access authorization relative to spent nuclear fuel in transit by
conducting reference checks. Reference checks may not be conducted with
any person who is known to be a close member of the individual's
family, including but not limited to, the individual's spouse, parents,
siblings, or children, or any individual who resides in the
individual's permanent household. The reference checks must focus on
the individual's reputation for trustworthiness and reliability.
(9) Obtain independent Information. The licensee shall also, to the
extent possible, obtain independent information to corroborate that
provided by the individual (e.g., seek references not supplied by the
individual).
(e) Determination of Trustworthiness and Reliability;
Documentation. (1) The licensee shall determine whether to grant, deny,
unfavorably terminate, maintain, or administratively withdraw an
individual's access authorization based on an evaluation of all of the
information required by this section. The licensee may terminate or
administratively withdraw an individual's access authorization based on
information obtained after the background investigation has been
completed and the individual granted access authorization.
(2) The licensee may not permit any individual to have unescorted
access or access authorization until all of the information required by
this section has been evaluated by the reviewing official and the
reviewing official has determined that the individual is trustworthy
and reliable. The licensee may deny unescorted access or access
authorization to any individual based on disqualifying information
obtained at any time during the background investigation.
(f) Protection of Information. (1) Licensees shall protect
background investigation information from unauthorized disclosure.
(2) Licensees may not disclose the background investigation
information collected and maintained to persons other than the subject
individual, his/her representative, or to those who have a need to know
in performing assigned duties related to the process of granting or
denying unescorted access to spent nuclear fuel in transit. No
individual authorized to have access to the information may re-
disseminate the information to any other individual who does not have a
need to know.
(3) The personal information obtained on an individual from a
background investigation may be transferred to another licensee:
(i) Upon the individual's written request to the licensee holding
the data to re-disseminate the information contained in his/her file;
and
(ii) The acquiring licensee verifies information such as name, date
of birth, social security number, sex, and other applicable physical
characteristics for identification.
(4) The licensee shall make background investigation records
obtained under this section available for examination by an authorized
representative of NRC to determine compliance with applicable laws and
regulations.
(5) The licensee shall retain all fingerprint and criminal history
records received from the FBI, or a copy if the file has been
transferred, on an individual (including data indicating no record) for
5 years from the date the individual no longer requires unescorted
access or access authorization relative to spent nuclear fuel in
transit.
(g) Grandfathering. For purposes of this section, licensees are not
required to obtain the fingerprints of any person who has been
fingerprinted, pursuant to an NRC order or regulation, for an FBI
identification and criminal history records check within the 5 years of
the effective date of this rule.
(h) Reinvestigations. Licensees shall conduct fingerprinting and
FBI identification and criminal history records check, a criminal
history review, and credit history re-evaluation every 10 years for any
individual who has unescorted access authorization to spent nuclear
fuel in transit. The reinvestigations must be completed within 10 years
of the date on which these elements were last completed and should
address the 10 years following the previous investigation.
(i) Self-reporting of legal actions. (1) Any individual who has
applied for an access authorization or is maintaining an access
authorization under this section shall promptly report to the reviewing
official, his or her supervisor, or other management personnel
designated in licensee procedures any legal action(s) taken by a law
enforcement authority or court of law to which the individual has been
subject that could result in incarceration or a court order or that
requires a court appearance, including but not limited to an arrest, an
indictment, the filing of charges, or a conviction, but excluding minor
civil actions or misdemeanors such as parking violations or speeding
tickets. The recipient of the report shall, if other than the reviewing
official, promptly convey the report to the reviewing official. On the
day that the report is received, the reviewing official shall evaluate
the circumstances related to the reported legal action(s) and re-
determine the reported individual's access authorization status.
(2) The licensee shall inform the individual of this obligation, in
writing, prior to granting unescorted access or certifying access
authorization.
(j) Access Authorization Procedures. (1) Licensees shall develop,
implement, and maintain written procedures for conducting background
investigations for persons who are applying for unescorted access or
access authorization for spent nuclear fuel in transit.
(2) Licensees shall develop, implement, and maintain written
procedures for updating background investigations for persons who are
applying for reinstatement of unescorted access or access
authorization.
(3) Licensees shall develop, implement, and maintain written
procedures to ensure that persons who have been denied unescorted
access or access authorization are not allowed access to spent nuclear
fuel in transit or
[[Page 62715]]
information relative to spent nuclear material in transit.
(4) Licensees shall develop, implement, and maintain written
procedures for the notification of individuals who are denied
unescorted access or access authorization for spent nuclear fuel in
transit. The procedures must include provisions for the review, at the
request of the affected individual, of a denial or termination of
unescorted access or access authorization. The procedure must contain a
provision to ensure that the individual is informed of the grounds for
the denial or termination of unescorted access or access authorization
and allow the individual an opportunity to provide additional relevant
information.
(k) Right to correct and complete information. (1) Prior to any
final adverse determination, licensees shall provide each individual
subject to this section with the right to complete, correct, and
explain information obtained as a result of the licensee's background
investigation. Confirmation of receipt by the individual of this
notification must be maintained by the licensee for a period of 1 year
from the date of the notification.
(2) If after reviewing their criminal history record an individual
believes that it is incorrect or incomplete in any respect and wishes
to change, correct, update, or explain anything in the record, the
individual may initiate challenge procedures.
(l) Records. (1) The licensee shall retain documentation regarding
the trustworthiness and reliability of individual employees for 5 years
from the date the individual no longer requires unescorted access or
access authorization relative to spent nuclear fuel in transit.
(2) The licensee shall retain a copy of the current access
authorization program procedures as a record for 5 years after the
procedure is no longer needed or until the Commission terminates the
license, if the license is terminated before the end of the retention
period. If any portion of the procedure is superseded, the licensee
shall retain the superseded material for 5 years after the record is
superseded.
(3) The licensee shall retain the list of persons approved for
unescorted access or access authorization and the list of those
individuals that have been denied unescorted access or access
authorization for 5 years after the list is superseded or replaced.
(4) Licensees who have been authorized to add or manipulate data
that is shared with licensees subject to this section shall ensure that
data linked to the information about individuals who have applied for
unescorted access or access authorization, which is specified in the
licensee's access authorization program documents, is retained.
(i) If the shared information used for determining individual's
trustworthiness and reliability changes or new or additional
information is developed about the individual, the licensees that
acquire this information shall correct or augment the data and ensure
it is shared with licensees subject to this section. If the changed,
additional or developed information has implications for adversely
affecting an individual's trustworthiness and reliability, licensees
who discovered or obtained the new, additional or changed information,
shall, on the day of discovery, inform the reviewing official of any
licensee access authorization program under which the individual is
maintaining his or her unescorted access or access authorization status
of the updated information.
(ii) The reviewing official shall evaluate the shared information
and take appropriate actions, which may include denial or unfavorable
termination of the individual's unescorted access or access
authorization. If the notification of change or updated information
cannot be made through usual methods, licensees shall take manual
actions to ensure that the information is shared as soon as reasonably
possible. Records maintained in any database(s) must be available for
the NRC review.
(5) If a licensee administratively withdraws an individual's
unescorted access or access authorization status caused by a delay in
completing any portion of the background investigation or for a
licensee initiated evaluation, or re-evaluation that is not under the
individual's control, the licensee shall record this administrative
action to withdraw the individual's unescorted access or unescorted
access authorization with other licensees subject to this section.
However, licensees shall not document this administrative withdrawal as
denial or unfavorable termination and shall not respond to a suitable
inquiry conducted under the provisions of 10 CFR part 26, a background
investigation conducted under the provisions of this section, or any
other inquiry or investigation as denial nor unfavorable termination.
Upon favorable completion of the background investigation element that
caused the administrative withdrawal, the licensee shall immediately
ensure that any matter that could link the individual to the
administrative action is eliminated from the subject individual's
access authorization or personnel record and other records, except if a
review of the information obtained or developed causes the reviewing
official to unfavorably terminate or deny the individual's unescorted
access.
4. In Sec. 73.71, paragraphs (a) introductory text, (a)(1),
(a)(4), (a)(5) and (b) are revised to read as follows:
Sec. 73.71 Requirement for advance notice of shipment of formula
quantities of strategic special nuclear material, special nuclear
material of moderate strategic significance, or irradiated reactor
fuel.
(a) A licensee, other than one specified in paragraph (b) of this
section, who, in a single shipment, plans to deliver to a carrier for
transport, to take delivery at the point where a shipment is delivered
to a carrier for transport, to import, to export, or to transport a
formula quantity of strategic special nuclear material, special nuclear
material of moderate strategic significance, or irradiated reactor fuel
\3\ required to be protected in accordance with Sec. 73.37, shall:
---------------------------------------------------------------------------
\3\ For purposes of 10 CFR 73.72, the terms ``irradiated reactor
fuel'' as described in 10 CFR 73.37 and ``spent nuclear fuel'' are
used interchangeably.
---------------------------------------------------------------------------
(1) Notify in writing the Director, Division of Security Policy,
Office of Nuclear Security and Incident Response, using any appropriate
method listed in Sec. 73.4. Classified notifications shall be sent to
the NRC headquarters classified mailing address listed in appendix A to
this part.
* * * * *
(4) The NRC Headquarters Operations Center shall be notified about
the shipment status by telephone at the phone numbers listed in
appendix A to this part. Classified notifications shall be made by
secure telephone. The notifications shall take place at the following
intervals:
(i) At least 2 days before commencement of the shipment;
(ii) Two hours before commencement of the shipment; and
(iii) Once the shipment is received at its destination.
(5) The NRC Headquarters Operations Center shall be notified by
telephone of schedule changes of more than 6 hours at the phone numbers
listed in Appendix A to this part. Classified notifications shall be
made by secure telephone.
(b) A licensee who conducts an on-site transfer of spent nuclear
fuel that does not travel upon or cross a public highway is exempt from
the requirements of this section for that transfer.
[[Page 62716]]
Dated at Rockville, Maryland, this 1st day of October 2010.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2010-25392 Filed 10-12-10; 8:45 am]
BILLING CODE 7590-01-P