[Federal Register Volume 75, Number 233 (Monday, December 6, 2010)]
[Proposed Rules]
[Pages 75641-75648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30478]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 /
Proposed Rules
[[Page 75641]]
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 71 and 73
[NRC-1999-0005]
RIN 3150-AG41
Advance Notification to Native American Tribes of Transportation
of Certain Types of Nuclear Waste
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to
amend its regulations that govern packaging and transportation of
radioactive material and physical protection of plants and materials.
Specifically, the proposed amendments would require licensees to
provide advance notification to Federally recognized Tribal governments
regarding shipments of irradiated reactor fuel and certain nuclear
wastes for any shipment that passes within or across their
reservations. The Tribal government would be required to protect the
shipment information as Safeguards Information (SGI).
DATES: Submit comments on the rule by February 22, 2011. Submit
comments specific to the information collections aspects of this
proposed rule by January 5, 2011. Comments received after the above
dates will be considered if it is practical to do so, but the NRC is
able to assure consideration only for comments received on or before
this date.
ADDRESSES: Please include Docket ID NRC-1999-0005 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 e-Rulemaking Portal: Go to http://www.regulations.gov and
search for documents filed under Docket ID NRC-1999-0005. Comments may
be submitted electronically through this Web site. Address questions
about NRC dockets to Carol Gallagher, telephone 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 301-415-1677.
Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland
20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone
301-415-1966)
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at
301-415-1101.
You may submit comments on the information collections by the
methods indicated in the Paperwork Reduction Act Statement.
FOR FURTHER INFORMATION CONTACT: Merri Horn, Office of Federal and
State Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, telephone 301-415-
8126, e-mail, [email protected].
SUPPLEMENTARY INFORMATION:
I. Submitting Comments and Accessing Information
II. Background
III. Discussion
A. What action is the NRC taking?
B. What is the purpose of the proposed rule?
C. Whom would this action affect?
D. Would all tribes receive advance notifications?
E. How and when would tribes be given the option to receive
advance notifications?
F. Does a tribe's decision to receive advance notification ffect
whether shipments pass through that tribe's reservation?
G. How would licensees determine who the tribal contacts are?
H. How would advance notifications be made to tribal officials?
I. Would tribes be required to protect the advance
notifications?
J. Would tribal officials need to be fingerprinted and undergo a
background investigation for access to SGI?
K. When do these actions become effective?
L. What should I consider as I prepare my comments to the NRC?
IV. Discussion of Proposed Rule by Section
V. Criminal penalties
VI. Agreement state compatibility
VII. Plain Language
VIII. Voluntary Consensus Standards
IX. Environmental Impact: Categorical Exclusion
X. Paperwork Reduction Act Statement
XI. Regulatory Analysis
XII. Regulatory Flexibility Certification
XIII. 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-
1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland.
NRC's Agencywide Documents Access and Management System (ADAMS):
Publicly available documents created or received at the NRC are
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain
entry into ADAMS, which provides text and image files of NRC's public
documents. If you do not have access to ADAMS or if there are problems
in accessing the documents located in ADAMS, contact the NRC's PDR
reference staff at 1-800-397-4209, or 301-415-4737, or by e-mail to
[email protected].
[[Page 75642]]
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-1999-0005.
II. Background
Current NRC regulations in Title 10 of the Code of Federal
Regulations (10 CFR) require licensees to inform State governors, or
the governor's designee, of certain shipments of irradiated reactor
fuel and certain nuclear waste passing through or across the boundary
of their States. Section 73.37 requires licensees to provide advance
notifications for shipments of irradiated reactor fuel in excess of 100
grams 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 100 rems per hour at a distance of 3 feet from
any accessible surface without intervening shielding. Section 71.97
requires licensees to provide advance notice for shipments of
irradiated reactor fuel in quantities less than that subject to Sec.
73.37 and certain licensed material that is required to be transported
in Type B packaging and is being transported to a disposal facility or
a collection point for transport to a disposal facility. The advance
notification provisions apply if the quantity of licensed material in a
single package exceeds the least of the following: (1) 3000 times the
A1 value of the radionuclides as specified in Appendix A,
Table A-1 of 10 CFR Part 71, for special form radioactive material; (2)
3000 times the A2 value of the radionuclides as specified in
Appendix A, Table A-1 of 10 CFR Part 71, for normal form radioactive
material; or (3) 1000 Terabequerel (TBq) (27,000 curies). Schedule and
itinerary information provided for shipments of more than 100 grams of
irradiated reactor fuel is considered to be SGI under NRC regulations
and must be protected under the requirements in Sec. Sec. 73.21 and
73.22.
The NRC developed these advance notification regulations in 1982 to
comply with the NRC Authorization Act for Fiscal Year 1980, which was
enacted to deal with concerns expressed by States about their abilities
to fulfill their responsibilities to protect public health and safety
while waste shipments pass through their jurisdictions. Neither the
Atomic Energy Act of 1954, as amended (AEA), nor the notification
regulations required licensees to notify Native American Tribes of this
type of shipment passing through their Tribal reservations. Tribal
officials requested similar notification in the 1990s.
On December 21, 1999, the NRC published an Advance Notice of
Proposed Rulemaking (ANPR) to solicit stakeholder input on a possible
rulemaking that would consider requiring advance notification to Native
American Tribes of transportation of certain types of nuclear waste (64
FR 71331; December 21, 1999). Information was sought on minimizing the
burden to licensees, identifying the location of Tribal reservations in
relationship to shipment routes, and the sharing and protecting of SGI.
A total of 44 comment letters were received. Thirty-six of the letters
received were from Tribes and Tribal organizations; four letters were
received from private citizens; and letters were received from a
licensee, an industry association, a State agency, and a Federal
agency. Virtually all the commenters favored providing advance
notification to Tribal governments with some disagreement on the
details of the implementation. Most commenters were in favor of
providing Tribal governments the same advance notification that State
governments receive regarding high-level radioactive waste shipments.
Commenters encouraged the NRC to provide advance notification through
more up-to-date means of communication, e.g., via the Internet. Tribal
representatives and others encouraged the NRC to communicate directly
with Tribal governments during the rulemaking process as well as when
implementing procedures for advance notification. The comments received
in response to the ANPR were taken into account during the development
of this proposed rule.
On November 6, 2000, President Clinton issued Executive Order (EO)
13175, ``Consultation and Coordination with Indian Tribal
Governments.'' EO 13175 emphasized the importance of respecting the
sovereignty of Tribal governments and working with them on a
government-to-government basis.\1\ On November 5, 2009, President Obama
expressed his commitment to EO 13175 at the White House Tribal Nations
Conference and Interactive Discussion with Tribal Leaders. During the
conference, the President signed an Executive Memorandum on Tribal
consultation for the heads of Executive Departments and Agencies,
directing Cabinet agencies to take steps to develop regular and
meaningful consultation with Tribal governments. The Memorandum
underscored a commitment to regular and meaningful collaboration and
consultation with Tribal officials, and sought complete and consistent
implementation of EO 13175. The NRC has adopted agency practices that
are consistent with the principles of consultation and cooperation with
Indian Tribal governments articulated in President Clinton's April 29,
1994, guidance and EO 13175. The NRC practice is to conduct its
activities in a manner that respects the rights of sovereign Tribal
governments, and involves consultation and cooperation with Federally
recognized Tribes on a government-to-government basis.
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\1\ These ideas were previously emphasized in a Presidential
Memorandum dated April 29, 1994, entitled ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22951;
May 4, 1994) and Executive Orders 12875 and 12866.
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III. Discussion
A. What action is the NRC taking?
The NRC is proposing to amend its regulations to require licensees
to provide to Tribal officials, or their designees, advance notice of
shipments of irradiated reactor fuel under Sec. 73.37 and other
nuclear wastes listed in Sec. 71.97 before crossing the border of
Tribal reservations. For the purposes of these regulatory provisions,
Tribal official is defined as the highest ranking individual that
represents Tribal leadership, such as the Chief, President, or Tribal
Council leadership of an Indian Tribe. This action would only affect
commercial shipments being made by NRC and Agreement State licensees.
This action would not include shipments made by the Department of
Energy or the Department of Defense.
B. What is the purpose of the proposed rule?
The purpose of the proposed rule is to recognize Tribal sovereignty
by informing Tribes of shipments of irradiated reactor fuel and other
nuclear wastes passing across their reservations and to recognize
Tribal governments' interest in being informed of activities occurring
on Tribal reservations.
C. Whom would this action affect?
The proposed rule would apply to any NRC licensee that ships
irradiated reactor fuel. The proposed rule would also affect any
licensee that ships other nuclear wastes listed in Sec. 71.97, namely,
certain licensed material that is: (a) Required to be transported in
Type B packaging; (b) being transported to or across a State boundary
enroute to a disposal facility or to a collection point for transport
to a disposal facility; and (c) the quantity of licensed material in a
single package exceeds the least of the following: (1) 3,000 times the
A1 value of the radionuclides as specified in Appendix A,
Table A-1 of 10 CFR Part
[[Page 75643]]
71, for special form radioactive material; (2) 3,000 times the
A2 value of the radionuclides as specified in Appendix A,
Table A-1 of 10 CFR Part 71, for normal form radioactive material; or
(3) 1,000 TBq (27,000 curies).
Finally, the proposed rule would affect any Tribe that chooses to
receive the advance notifications of shipments passing within or across
its Tribal reservation.
D. Would all Tribes receive advance notifications?
No. Given the information protection requirements involved, the NRC
believes Tribes should have the option to decide whether to receive
advance notifications of shipments that pass across their Tribal
reservations. If a Tribe opts to receive the advance notifications, the
Tribe would be obligated to protect the schedule and itineraries of the
shipments under the SGI requirements in Sec. Sec. 73.21 and 73.22. If
a Tribe opts not to receive the advance notification, the Tribe would
have no information protection obligations relating to the shipments.
For the purposes of the advance notifications, an Indian Tribe is
defined as an Indian or Alaska Native Tribe, band, nation, pueblo,
village, or community that the Secretary of the Interior acknowledges
to exist as an Indian Tribe pursuant to the Federally Recognized Indian
Tribe List Act of 1994. There are currently 565 federally recognized
Tribes.
E. How and when would Tribes be given the option to receive advance
notifications?
After the final rule has been approved by the Commission, the NRC
staff would contact each Federally recognized Tribe to provide them
information on the rule. As part of the information, the Tribe would be
asked if they would like to receive advance notifications of irradiated
reactor fuel and other nuclear wastes listed in Sec. 71.97 before
crossing the border of the Tribal reservation. The Tribe can then
notify NRC whether they would like to receive the advance notifications
and certify that the SGI information will be appropriately protected.
Tribes would be able to change their decision to receive or not receive
the advance notifications by informing the NRC. In addition, the NRC
would periodically contact all Federally recognized Tribes to give
Tribes an opportunity to change their status in regards to receiving
notifications.
F. Does a Tribe's decision to receive advance notification affect
whether shipments pass through that Tribe's reservation?
No. This rulemaking would only give the Tribe a voluntary
opportunity to receive advance notification of shipments that cross
their reservation. A Tribe's decision to receive or not receive advance
notifications does not affect shipment routes.
G. How would licensees determine who the Tribal contacts are?
The NRC would maintain a list of Tribal contacts as is done for
State governmental contacts. The NRC would work with the Tribes to
complete and maintain the list. The Tribal official would designate who
is intended to represent the Tribe. The NRC staff currently intends to
annually publish a list of Tribal contacts in the Federal Register and
post it on the Web site maintained by the NRC's Office of Federal and
State Materials and Environmental Management Programs.
H. How would advance notifications be made to Tribal officials?
The methods permitted for communication of advance notifications
are detailed in Sec. 71.97(c), ``Procedures for submitting advance
notification.'' Notifications would be made in writing. The
notifications could be sent by mail or courier. SGI may not be
transmitted over the phone, by e-mail, or by facsimile unless it is
transmitted and received by NRC-approved secure electronic devices.
I. Would Tribes be required to protect the advance notifications?
Tribes would be required to protect the schedule and itinerary
information contained in the advance notification as SGI as specified
by Sec. Sec. 73.21 and 73.22. Only individuals that have a ``need-to-
know'' the information and have undergone both a Federal Bureau of
Investigation (FBI) criminal history records check and a background
check for determination of trustworthiness and reliability or have been
relieved from these checks under Sec. Sec. 73.57 or 73.59 may be
provided access to the SGI. Basic protection requirements include
storing unattended SGI in a locked security storage container. Access
to the lock information, such as a combination, must be strictly
controlled to prevent disclosure to an individual not authorized access
to SGI. Documents containing SGI must be destroyed by burning,
shredding, or any other method that precludes reconstruction by means
available to the public at large. The specific requirements for the
protection of SGI are located in Sec. 73.22. Failure to comply with
these regulatory requirements could result in civil or criminal
penalties.
The NRC is specifically inviting comment as to the best method for
informing the Tribes of the obligations of possessing SGI. The
obligations would include how to handle and protect SGI and who could
be provided access to the information, as well as potential civil or
criminal penalties that could result in failure to comply with the
regulatory requirements. Possible mechanisms include an information
packet, a Webinar, or a training course.
J. Would Tribal officials need to be fingerprinted and undergo a
background investigation for access to SGI?
Section 149 of the AEA requires fingerprinting and submission of
fingerprints to the Attorney General for identification and criminal
history records check for any individual permitted access to SGI,
unless the Commission, by rule, has relieved that individual from the
fingerprinting, identification, and criminal history records check
requirements. The Commission may relieve individuals from these
regulatory requirements ``if the Commission finds that such action is
consistent with its obligations to promote the common defense and
security and protect the health and safety of the public.'' As allowed
by Section 149 of the AEA, NRC enacted Sec. 73.58 to relieve specific
categories of individuals from fingerprinting and criminal history
record checks prior to receiving SGI. The categories of individuals
covered by this regulation include the governor of a State or his or
her designated State employee representative; Federal, State, or local
law enforcement personnel; and representatives of foreign government
organizations that are involved in planning for, or responding to,
nuclear or radiological emergencies or security incidents who the
Commission approves for access to SGI.
The United States has a unique legal relationship with Indian
Tribal governments as set forth in the Constitution of the United
States, treaties, statutes, Executive Orders, and court decisions.
Indian Tribes exercise inherent sovereign powers over their members and
territory. The United States recognizes the right of Indian Tribes to
self-government and supports Tribal sovereignty and self-determination.
As a result, the NRC has determined that exempting Tribal officials,
Tribal official designees, or Tribal law enforcement personnel is
[[Page 75644]]
analogous to exempting the State governor, State governor designees, or
State law enforcement personnel from the fingerprinting and background
check requirements. Furthermore, some Tribes have emergency response
responsibilities similar to States. Revising the regulation would
permit the Commission and licensees to more efficiently provide SGI
relating to advance notification of shipments to Tribes who determine
this information would enable them be more effective in their day-to-
day efforts to ensure the protection of nuclear materials and respond
to emergencies within their territories. Therefore, the Commission has
determined that the proposed rule helps the Commission fulfill its
obligations to promote the common defense and security and to protect
the health and safety of the public.
The Tribal official, Tribal official designee, and Tribal law
enforcement personnel are considered trustworthy and reliable to
receive SGI by virtue of their occupational status and have either
already undergone a background or criminal history check as a condition
of their employment, or are subject to direct oversight by Government
authorities in their day-to-day job functions. Under the proposed rule,
if the Tribe decides to participate in the advance notification of
shipment program, the Tribal official, Tribal official designee, or
Tribal law enforcement personnel that needs to know this SGI
information to perform their job function, may have access to SGI
information regarding advance notification of shipments affecting their
territories without undergoing fingerprinting or a criminal history
check.
At this time, the NRC is not proposing to provide relief to Tribal
officials, Tribal official's designees, or Tribal law enforcement
officials for access to all types of SGI because the scope of this rule
is limited to advance notifications. Therefore, the relief being
proposed in this rulemaking is only for receipt of the SGI contained in
advance shipment notifications. The NRC invites comments on whether the
proposed relief should be applied generally to access other types of
SGI.
The proposed rule would add Tribal official, his or her designee,
and Tribal law enforcement personnel for the purpose of advance
notifications to the list of categories of individuals that are granted
relief from the fingerprinting, identification and criminal history
records checks, and other elements of background checks. Those
individuals granted access to SGI are required to abide by the
requirements in Sec. Sec. 73.21 and 73.22 for proper management and
protection of SGI.
K. When do these actions become effective?
The NRC is recommending that the final rule be effective one year
after publication in the Federal Register. This would provide time for
NRC to work with the Tribes and develop the list of Tribal contacts,
provide training on protection of SGI to the Tribes, and provide time
for licensees to develop procedures and conduct training on the new
requirements.
L. What should I consider as I prepare my comments to the NRC?
When submitting your comments, remember to:
i. Identify the rulemaking (RIN 3150-AG41; [NRC-1999-0005]).
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 identified comment
period deadline.
viii. The NRC is particularly interested in your comments
concerning (a) the best method for informing the Tribes of the
obligations of possessing SGI (Section III I.); (b) whether the
proposed relief should be applied generally to access other types of
SGI (Section III J.); (c) the compatibility designations for the
proposed rule (Section V); (d) the use of plain language (Section VI);
(e) the environmental assessment (Section VIII); (f) the information
collection requirements (Section IX); and (g) the draft regulatory
analysis (Section X).
IV. Discussion of Proposed Rule by Section
Section 71.4 Definitions
Definition for Indian Tribe is proposed based on the term as
defined in Executive Order 13175. The definition of Tribal official
describes the highest ranking individual that represents Tribal
leadership, such as the Chief, President, or Tribal Council leadership.
Section 71.97 Advance Notification of Shipment of Irradiated Reactor
Fuel and Nuclear Waste
Current paragraph (a) would be renumbered as paragraph (a)(1) and
revised to reflect shipments within or across the State boundary
instead of through or across. This change is made for consistency of
rule language. Paragraph (a)(2) would be added to require licensees to
provide advance notification to Tribal officials or their designee of
the shipment of licensed material within or across the boundary of the
Tribe's reservation.
Paragraph (c) would be revised to require notifications to be made
to the office of each appropriate Tribal official or his/her designee.
Paragraph (c) would also be revised to indicate how the list of Tribal
officials would be made available.
Paragraph (d) would be revised to include arrival at Tribal
reservation boundaries.
Paragraph (e) would be revised to require that revision notices be
provided to Tribal officials or their designee if schedule information
previously provided will not be met.
Paragraph (f) would be revised to require that cancellation notices
be provided to each Tribal official or his/her designee that had
previously been notified of an advance shipment.
Section 73.2 Definitions
Definition for Indian Tribe is proposed based on the terms as
defined in Executive Order 13175. The definition for Tribal official is
added to describe the highest ranking individual that represents Tribal
leadership, such as the Chief, President, or Tribal Council leadership.
Section 73.21 Protection of Safeguards Information: Performance
Requirements
Paragraph (a)(2) would be revised to include Tribal law enforcement
agencies in the list of agencies whose information protection
procedures are presumed to meet the general performance requirements
for the protection of SGI.
Section 73.37 Requirements for Physical Protection of Irradiated
Reactor Fuel in Transit
Paragraph (f) would be revised to require that advance notification
of irradiated fuel shipments be provided to participating Tribes if a
shipment crosses Tribal reservation boundaries.
[[Page 75645]]
Section 73.59 Relief From Fingerprinting, Identification and Criminal
History Records Checks and Other Elements of Background Checks for
Designated Categories of Individuals
New paragraph (l) would be added to include Tribal official, Tribal
official's designee, and Tribal law enforcement personnel that receive
the advance notifications to the categories of individuals that are
relieved from the requirement for fingerprinting, identification and
criminal records checks, and other elements of background checks.
V. Criminal Penalties
For the purpose of Section 223 of the AEA, the Commission is
proposing to amend 10 CFR parts 71 and 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 (62 FR 46517; Sept. 3, 1997),
this proposed rule would be a matter of compatibility between the NRC
and the Agreement States, thereby providing consistency among the
Agreement States and the NRC requirements. The NRC staff analyzed the
proposed rule in accordance with the procedure established within Part
III, ``Categorization Process for NRC Program Elements,'' of Handbook
5.9 to Management Directive 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/).
NRC program elements (including regulations) are placed into four
compatibility categories (see the Draft Compatibility Table in this
section). In addition, the NRC program elements can also be identified
as having particular health and safety significance or as being
reserved solely to the NRC. Compatibility Category A are those program
elements that are basic radiation protection standards and scientific
terms and definitions that are necessary to understand radiation
protection concepts. An Agreement State should adopt Category A program
elements in an essentially identical manner to provide uniformity in
the regulation of agreement material on a nationwide basis.
Compatibility Category B are those program elements that apply to
activities that have direct and significant effects in multiple
jurisdictions. An Agreement State should adopt Category B program
elements in an essentially identical manner. Compatibility Category C
are those program elements that do not meet the criteria of Category A
or B, but the essential objectives of which an Agreement State should
adopt to avoid conflict, duplication, gaps, or other conditions that
would jeopardize an orderly pattern in the regulation of agreement
material on a nationwide basis. An Agreement State should adopt the
essential objectives of the Category C program elements. Compatibility
Category D are those program elements that do not meet any of the
criteria of Category A, B, or C, above, and, thus, do not need to be
adopted by Agreement States for purposes of compatibility.
Health and Safety (H&S) are program elements that are not required
for compatibility but are identified as having a particular health and
safety role (i.e., adequacy) in the regulation of agreement material
within the State. Although not required for compatibility, the State
should adopt program elements in the H&S category based on those of the
NRC that embody the essential objectives of the NRC program elements
because of particular health and safety considerations.
Compatibility Category NRC are those program elements that address
areas of regulation that cannot be relinquished to Agreement States
under the AEA, or provisions of 10 CFR. These program elements are not
adopted by Agreement States. The following table lists the parts and
sections that would be revised and their corresponding compatibility
categorization under the ``Policy Statement on Adequacy and
Compatibility of Agreement State Programs.''
The NRC invites comment on the compatibility category designations
in the proposed rule and suggests that commenters refer to Handbook 5.9
of Management Directive 5.9 for more information (a copy of which may
be viewed at http://www.nrc.gov/reading-rm/doc-collections/management-directives/). The NRC notes that, like the rule text, the compatibility
category designations can change between the proposed rule and final
rule, based on comments received and Commission decisions regarding the
final rule. The NRC encourages anyone interested in commenting on the
compatibility category designations to do so during the comment period.
Draft Compatibility Table for Proposed Rule
----------------------------------------------------------------------------------------------------------------
Compatibility
Section Change Subject -------------------------------------
Existing New
----------------------------------------------------------------------------------------------------------------
Part 71
----------------------------------------------------------------------------------------------------------------
71.4........................... New.............. Definition Indian --............... B
Tribe.
71.4........................... New.............. Definition Tribal --............... B
official.
71.97.......................... Amend............ Advance notification B................ B
of shipment of
irradiated reactor
fuel and nuclear
waste.
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Part 73
----------------------------------------------------------------------------------------------------------------
73.2........................... New.............. Definition Indian --............... NRC
Tribe.
73.2........................... New.............. Definition Tribal --............... NRC
official.
73.21.......................... Amend............ Protection of NRC.............. NRC
Safeguards
Information:
Performance
Requirements.
73.37.......................... Amend............ Requirements for NRC.............. NRC
physical protection
of irradiated reactor
fuel in transit.
73.59.......................... Amend............ Relief from NRC.............. NRC
fingerprinting,
identification and
criminal history
records checks and
other elements of
background checks for
designated categories
of individuals.
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[[Page 75646]]
VII. Plain Language
The Presidential Memorandum ``Plain Language in Government
Writing'' published June 10, 1998 (63 FR 31883), directed that the
Government's documents be 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 as indicated 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. In this proposed rule, the NRC would require
that advance notification be provided to Tribal governments for
shipments of irradiated reactor fuel and other nuclear wastes listed in
Sec. 71.97 that pass within or across Tribal reservations. The NRC is
not aware of any voluntary consensus standards that address the subject
matter of this proposed rule. The NRC will consider using a voluntary
consensus standard if an appropriate standard is identified. If a
voluntary consensus standard is identified for consideration, the
submittal should explain why the standard should be used.
IX. Environmental Impact: Categorical Exclusion
The NRC has determined that this proposed rule is the type of
action described in categorical exclusion 10 CFR 51.22(c)(3). Therefore
neither an environmental impact statement nor an environmental
assessment has been prepared for this proposed rule.
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 (OMB) for review and approval of the information
collection requirements.
Type of submission, new or revision: Revised.
The title of the information collection: 10 CFR Parts 71 and 73,
``Advance Notification to Native American Tribes of Transportation of
Certain Types of Nuclear Waste.''
The form number if applicable: NA.
How often the collection is required: On occasion; each time a
shipment of irradiated reactor fuel or certain other nuclear wastes
listed in Sec. 71.97 is made that crosses Tribal reservation borders.
Who will be required or asked to report: Licensees that are
shipping irradiated reactor fuel or certain other nuclear wastes listed
in Sec. 71.97.
An estimate of the number of annual responses: 386 (380 responses
plus 6 record keepers).
The estimated number of annual respondents: 18.
An estimate of the total number of hours needed annually to
complete the requirement or request: 163 (6.4 recordkeeping hours plus
156.4 third party hours) all of which is associated with Part 73.
Abstract: The NRC is proposing to amend its regulations to put in
place a new requirement for licensees to provide advance notification
to participating Tribes of any shipments of irradiated reactor fuel or
certain other nuclear wastes listed in Sec. 71.97 that pass within or
across Tribal reservations.
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 the 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-1F21, Rockville, MD 20852. The OMB clearance package and
rule are available at the NRC worldwide Web site http://www.nrc.gov/public-involve/doc-comment/omb/index.html for 60 days after the
signature date of this notice.
Send comments on any aspect of these proposed information
collections, including suggestions for reducing the burden and on the
above issues, by January 5, 2011 to the Information Services Branch (T-
5F53), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
or by Internet electronic mail to [email protected] and to
the Desk Officer Christine J. Kymn, Office of Information and
Regulatory Affairs, NEOB-10202, (3150-0008, 0002), Office of Management
and Budget, Washington, DC 20503. Comments on the proposed information
collections may also be submitted via the Federal eRulemaking Portal at
http://www.regulations.gov, Docket Number NRC-1999-0005. 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. You may also e-mail comments to Christine J. Kymn at
[email protected] or comment by telephone at 202-395-4638.
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.
XI. Regulatory Analysis
The Commission has prepared a draft regulatory analysis on this
proposed regulation. The analysis examines the costs and benefits of
the alternatives considered by the Commission.
The Commission requests public comment on the draft regulatory
analysis. Comments on the draft analysis may be submitted to the NRC as
indicated under the ADDRESSES heading of this document. The analysis is
available for inspection in the NRC Public Document Room, One White
Flint North, 11555 Rockville Pike, Room O-1F21, Rockville, MD 20852 and
can be found at http://www.regulations.gov by searching on Docket ID
NRC-1999-0005.
XII. 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 amendments will apply to reactor licensees and a few licensees who
possess large sources of byproduct materials. The majority, if not all,
of these licensees are not ``small entities'' under either the
Regulatory Flexibility Act or NRC's size standards (10 CFR 2.810).
XIII. Backfit Analysis
The NRC has determined that the backfit rule, which is found in the
regulations at 10 CFR 50.109, 70.76, 72.62, 76.76, and in 10 CFR Part
52, does not apply to this proposed rule
[[Page 75647]]
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
10 CFR Part 71
Criminal penalties, Hazardous materials transportation, Import,
Nuclear materials, Packaging and containers, Reporting and
recordkeeping requirements.
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 is proposing to
adopt the following amendments to 10 CFR parts 71 and 73.
PART 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL
1. The authority citation for part 71 continues to read as follows:
Authority: Secs. 53, 57, 62, 63, 81, 161, 182, 183, 68 Stat.
930, 932, 933, 935, 948, 953, 954, as amended, sec. 1701, 106 Stat.
2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2201,
2232, 2233, 2297f); secs. 201, as amended, 202, 206, 88 Stat. 1242,
as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112
Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L.
No. 109-58, 119 Stat. 594 (2005). Section 71.97 also issued under
sec. 301, Pub. L. 96-295, 94 Stat. 789-790.
2. In Sec. 71.4, new definitions for Indian Tribe and Tribal
official are added in alphabetical order to read as follows:
Sec. 71.4 Definitions.
* * * * *
Indian Tribe means an Indian or Alaska Native Tribe, band, nation,
pueblo, village, or community that the Secretary of the Interior
acknowledges to exist as an Indian Tribe pursuant to the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
* * * * *
Tribal official means the highest ranking individual that
represents Tribal leadership, such as the Chief, President, or Tribal
Council leadership.
* * * * *
3. In Sec. 71.97, paragraphs (a), (c)(1), (c)(3), (d)(4), (e), and
(f)(1) are revised to read as follows:
Sec. 71.97 Advance notification of shipment of irradiated reactor
fuel and nuclear waste.
(a)(1) As specified in paragraphs (b), (c), and (d) of this
section, each licensee shall provide advance notification to the
governor of a State, or the governor's designee, of the shipment of
licensed material, within or across the boundary of the State, before
the transport, or delivery to a carrier, for transport, of licensed
material outside the confines of the licensee's plant or other place of
use or storage.
(2) As specified in paragraphs (b), (c), and (d) of this section,
each licensee shall provide advance notification to the Tribal official
of participating Tribes referenced in paragraph (c)(3)(iii) of this
section, or the official's designee, of the shipment of licensed
material, within or across the boundary of the Tribe's reservation,
before the transport, or delivery to a carrier, for transport, of
licensed material outside the confines of the licensee's plant or other
place of use or storage.
* * * * *
(c) Procedures for submitting advance notification. (1) The
notification must be made in writing to:
(i) The office of each appropriate governor or governor's designee;
(ii) The office of each appropriate Tribal official or Tribal
official's designee; and
(iii) The Director, Division of Security Policy, Office of Nuclear
Security and Incident Response.
* * * * *
(3) A notification delivered by any other means than mail must
reach the office of the governor or of the governor's designee or the
Tribal official or Tribal official's designee at least 4 days before
the beginning of the 7-day period during which departure of the
shipment is estimated to occur.
(i) A list of the names and mailing addresses of the governors'
designees receiving advance notification of transportation of nuclear
waste was published in the Federal Register on June 30, 1995 (60 FR
34306).
(ii) The list of governor's designees and Tribal official's
designees of participating Tribes will be published annually in the
Federal Register on or about June 30th to reflect any changes in
information.
(iii) A list of the names and mailing addresses of the governors'
designees and Tribal officials' designees of participating Tribes is
available on request from the Director, Division of Intergovernmental
Liaison and Rulemaking, Office of Federal and State Materials and
Environmental Management Programs, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001.
* * * * *
(d) * * *
(4) The 7-day period during which arrival of the shipment at State
boundaries or Tribal reservation boundaries is estimated to occur;
* * * * *
(e) Revision notice. A licensee who finds that schedule information
previously furnished to a governor or governor's designee or a Tribal
official or Tribal official's designee, in accordance with this
section, will not be met, shall telephone a responsible individual in
the office of the governor of the State or of the governor's designee
or the Tribal official or the Tribal official's designee and inform
that individual of the extent of the delay beyond the schedule
originally reported. The licensee shall maintain a record of the name
of the individual contacted for 3 years.
(f) Cancellation notice. (1) Each licensee who cancels an
irradiated reactor fuel or nuclear waste shipment for which advance
notification has been sent shall send a cancellation notice to the
governor of each State or to the governor's designee previously
notified, each Tribal official or to the Tribal official's designee
previously notified, and to the Director, Division of Security Policy,
Office of Nuclear Security and Incident Response.
* * * * *
PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS
4. The authority citation for part 73 continues to read as follows:
Authority: Secs. 53, 161, 149, 68 Stat. 930, 948, as amended,
sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2169, 2201); sec. 201,
as amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106
Stat. 2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112
Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L.
109-58, 119 Stat. 594 (2005).
Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241 (42.U.S.C. 10155, 10161). Section 73.37(f) also
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100
Stat. 876 (42 U.S.C. 2169).
5. In Sec. 73.2, new definitions for Indian Tribe and Tribal
official are added in alphabetical order to read as follows:
Sec. 73.2 Definitions.
* * * * *
Indian Tribe means an Indian or Alaska Native Tribe, band, nation,
pueblo, village, or community that the
[[Page 75648]]
Secretary of the Interior acknowledges to exist as an Indian Tribe
pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25
U.S.C. 479a.
* * * * *
Tribal official means the highest ranking individual that
represents Tribal leadership, such as the Chief, President, or Tribal
Council leadership.
* * * * *
6. In Sec. 73.21, paragraph (a)(2) is revised to read as follows:
Sec. 73.21 Protection of Safeguards Information: Performance
Requirements.
(a) * * *
(2) Information protection procedures employed by Federal, State,
Tribal, and local law enforcement agencies are presumed to meet the
general performance requirement in paragraph (a)(1) of this section.
* * * * *
7. In Sec. 73.37, paragraphs (f) and (g) are revised to read as
follows:
Sec. 73.37 Requirements for physical protection of irradiated reactor
fuel in transit.
* * * * *
(f) Prior to the transport of spent fuel within or across a State
or Tribal reservation, a licensee subject to this section shall notify
the governor or the governor's designee and the Tribal official of each
participating Tribe referenced in Sec. 71.97(c)(3) of this chapter or
the Tribal official's designee. The licensee shall comply with the
following criteria in regard to a notification:
(1) The notification must be in writing and sent to the office of
each appropriate governor or the governor's designee and each
appropriate Tribal official or the Tribal official's designee. A
notification delivered by mail must be postmarked at least 7 days
before transport of a shipment within or across the State or Tribal
reservation. A notification delivered by messenger must reach the
office of the governor or the governor's designee and any Tribal
official or Tribal official's designee at least 4 days before transport
of a shipment within or across the State or Tribal reservation. A list
of the mailing addresses of governors and governors' designees and
Tribal officials and Tribal officials' designees is available upon
request from the Director, Division of Intergovernmental Liaison and
Rulemaking, Office of Federal and State Materials and Environmental
Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC
20555.
(2) The notification must include the following information:
(i) The name, address, and telephone number of the shipper, carrier
and receiver.
(ii) A description of the shipment as specified by the Department
of Transportation in 49 CFR 172.202 and 172.203(d).
(iii) A listing of the routes to be used within the State or Tribal
reservation.
(iv) A statement that the information described in paragraph (f)(3)
of this section is required by NRC regulations to be protected in
accordance with the requirements of Sec. Sec. 73.21 and 73.22.
(3) The licensee shall provide the following information on a
separate enclosure to the written notification:
(i) The estimated date and time of departure from the point of
origin of the shipment.
(ii) The estimated date and time of entry into the governor's State
or Tribal reservation.
(iii) 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 in accordance with 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 or Tribal
reservation.
(iv) For the case of a shipment in a series of shipments whose
schedules are related, a statement that schedule information must be
protected in accordance with the provisions of Sec. Sec. 73.21 and
73.22 until 10 days after the last shipment in the series has entered
or originated within the State or Tribal reservation and an estimate of
the date on which the last shipment in the series will enter or
originate within the State or Tribal reservation.
(4) A licensee shall notify by telephone or other means a
responsible individual in the office of the governor or in the office
of the governor's designee and the office of the Tribal official or in
the office of the Tribal official's designee of any schedule change
that differs by more than 6 hours from the schedule information
previously furnished in accordance with paragraph (f)(3) of this
section, and shall inform that individual of the number of hours of
advance or delay relative to the written schedule information
previously furnished.
(g) State officials, State employees, Tribal officials, Tribal
employees, and other individuals, whether or not licensees of the
Commission, who receive schedule information of the kind specified in
paragraph (f)(3) of this section shall protect that information against
unauthorized disclosure as specified in Sec. Sec. 73.21 and 73.22.
8. In Sec. 73.59, new paragraph (l) is added to read as follows:
Sec. 73.59 Relief from fingerprinting, identification and criminal
history records checks and other elements of background checks for
designated categories of individuals.
* * * * *
(l) Tribal official or the Tribal official's designated
representative, and Tribal law enforcement personnel to whom access has
been granted for the purpose of advance notification of shipments under
provisions of Sec. 73.37(f).
Dated at Rockville, Maryland this 1st day of December 2010.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2010-30478 Filed 12-3-10; 8:45 am]
BILLING CODE 7590-01-P