[Federal Register Volume 77, Number 112 (Monday, June 11, 2012)]
[Rules and Regulations]
[Pages 34194-34206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14082]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 71 and 73
RIN 3150-AG41
[NRC-1999-0005]
Advance Notification to Native American Tribes of Transportation
of Certain Types of Nuclear Waste
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its
regulations that govern packaging and transportation of radioactive
material and physical protection of plants and materials. Specifically,
the amendments require licensees to provide advance notification to
participating 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 rule
extends to Tribal officials, his or her designee, and Tribal law
enforcement personnel relief from fingerprinting requirements required
for access to Safeguards Information (SGI). The participating Tribal
government is required to protect the shipment information as SGI.
DATES: Effective Date: This final rule is effective on August 10, 2012.
Compliance Date: Compliance with the Tribal advance notification
provisions of Title 10 of the Code of Federal Regulations (10 CFR)
71.97(c)(3) and 73.37(f) is required on June 11, 2013.
ADDRESSES: Please refer to Docket ID NRC-1999-0005 when contacting the
NRC about the availability of information for this final rule. You may
access information and comment submittals related to this final rule,
which the NRC possesses and are publicly available, by any of the
following methods:
Federal Rulemaking Web Site: Go to http://www.regulations.gov and search for Docket ID NRC-1999-0005.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may access publicly available documents online in the NRC
Library at http://www.nrc.gov/reading-rm/adams.html. To begin the
search, select ``ADAMS Public Documents'' and then select ``Begin Web-
based ADAMS Search.'' For problems with ADAMS, please contact the NRC's
Public Document Room (PDR) reference staff at
[[Page 34195]]
1-800-397-4209, 301-415-4737, or by email to [email protected].
NRC's PDR: You may examine and purchase copies of public
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland 20852.
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; email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion
A. What action is the NRC taking?
B. What is the purpose of the final 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
affect 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?
III. Summary and Analysis of Public Comments on the Proposed Rule
IV. Discussion of Final Amendments by Section
V. Criminal Penalties
VI. Agreement State Compatibility
VII. Voluntary Consensus Standards
VIII. Environmental Impact: Categorical Exclusion
IX. Paperwork Reduction Act Statement
X. Regulatory Analysis
XI. Regulatory Flexibility Certification
XII. Backfit Analysis
XIII. Congressional Review Act
I. Background
Current NRC regulations in 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, ``Requirements for
physical protection of irradiated reactor fuel in transit,'' 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, ``Advance notification of shipment of
irradiated reactor fuel and nuclear waste,'' requires licensees to
provide advance notice for (1) shipments of irradiated reactor fuel in
quantities less than that subject to Sec. 73.37; and (2) 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, ``Packaging and Transportation of
Radioactive Material,'' 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). Certain
information provided for shipments of irradiated reactor fuel is
considered to be SGI under the NRC regulations and must be protected
under the requirements in Sec. 73.21, ``Protection of Safeguards
Information: Performance requirements,'' and Sec. 73.22, ''Protection
of Safeguards Information: Specific requirements.''
The NRC first developed these advance notification regulations in
1982 to comply with the NRC Authorization Act for Fiscal Year 1980. The
NRC Authorization Act for Fiscal Year 1980 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 (64 FR 71331), 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. 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 rule.
On November 6, 2000, President Clinton issued Executive Order
(E.O.) 13175, ``Consultation and Coordination with Indian Tribal
Governments.'' The E.O. 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 E.O. 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 regarding the
implementation of E.O. 13175. While the Executive Memorandum does not
directly apply to independent agencies, 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 E.O. 13175. The NRC's practice
is to conduct its activities in a manner that respects the rights of
sovereign Tribal governments, and involves consultation and cooperation
[[Page 34196]]
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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II. Discussion
A. What action is the NRC taking?
The NRC is amending its regulations to require licensees to provide
to participating 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 the NRC and Agreement State
licensees. This action does not include shipments that are not subject
to NRC regulation, including many shipments made by the U.S. Department
of Energy (DOE) or the U.S. Department of Defense (DOD).
B. What is the purpose of the final rule?
The purpose of the final rule is to recognize Tribal sovereignty by
informing Tribes that choose to receive advance notification 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 final rule would apply to any NRC licensee that ships
irradiated reactor fuel. The final rule also affects 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) 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 TBq (27,000 curies).
Finally, the rule affects 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 that 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 is 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
notifications, the Tribe has 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?
The NRC staff will contact each Federally-recognized Tribe to
provide them information on the rule. As part of the information, the
Tribe will 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 the NRC as to whether it would like to receive the
advance notifications and certify that the SGI information will be
appropriately protected. Tribes will be able to change their decision
to receive or not receive the advance notifications by informing the
NRC at any time. Information will be available on the NRC Web site on
how a Tribe can change its decision. In addition, the NRC plans to
contact all Federally-recognized Tribes every 5 years 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 bear upon shipment routes, which are reviewed
and approved subject to different NRC requirements.
G. How would licensees determine who the Tribal contacts are?
The NRC will maintain a list of Tribal contacts as is done for
State governmental contacts. The NRC will work with the Tribes to
complete and maintain the list. The Tribal official will 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 the list on the Web site maintained by the NRC's Office of Federal
and State Materials and Environmental Management Programs. The NRC also
plans to have a map on the Web site that shows the location of the
Tribal reservations. The Web site associated with the map will also
provide the necessary contact information for the Tribe.
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 are made in writing. The written
notifications could be sent by mail or courier. The SGI may not be
transmitted by unprotected telecommunication circuits. Requirements for
the transmittal of SGI are contained in Sec. 73.22(f), ``External
transmission of documents and material.''
I. Would Tribes be required to protect the advance notifications?
Tribes are required to protect some of the 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 criminal
history records check and a background check for determination of
trustworthiness and reliability or have been relieved from these checks
under Sec. 73.57, ``Requirements for criminal history records checks
of individuals granted unescorted access to a nuclear power facility or
access to Safeguards Information,'' or Sec. 73.59, ``Relief from
fingerprinting, identification and criminal history records checks and
other elements of background checks for designated categories of
individuals,'' 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 to access SGI.
[[Page 34197]]
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 enforcement action, including civil
monetary penalties, and Federal criminal prosecution.
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,'' 42 U.S.C.
149(b). As allowed by Section 149 of the AEA, the NRC enacted Sec.
73.59 to relieve specific categories of individuals from fingerprinting
and criminal history records 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 whom 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
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 regulations permits
the Commission and licensees to more efficiently provide SGI relating
to advance notification of shipments to Tribes who determine this
information enables them to 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 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 which is subject to
direct oversight by Tribal Government authorities in their day-to-day
job functions. Under the final 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
who need-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. In addition, the NRC has extended the
relief to cover other types of SGI. Revising the regulations permits
the Commission to more efficiently provide SGI to Tribes when it is
determined that the Tribe has a need-to-know. The NRC believes that
exempting Tribal officials, Tribal official designees, or Tribal law
enforcement personnel from the fingerprinting requirement is analogous
to exempting the State governor, State governor designees, or State law
enforcement personnel from the fingerprinting and background check
requirements. Providing the relief also recognizes the right of Indian
tribes to self-government and supports Tribal sovereignty and self-
determination. Relief from the fingerprinting requirement cannot be
provided by Commission order, it can only be provided by rule. By
including the relief in this rulemaking for all types of SGI, a future
rulemaking will not need to be conducted, thus saving NRC resources.
Tribal officials will still need to have an established need-to-know
before they would be given access to any other types of SGI. This
rulemaking establishes need-to-know for the advance notifications for
irradiated reactor fuel and nuclear waste shipments that pass within or
across the boundary of a Tribal reservation.
The final rule adds Tribal official, his or her designee, and
Tribal law enforcement personnel 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. All individuals granted access to SGI are
required to abide by the requirements in Sec. Sec. 73.21 through 73.23
for proper management and protection of SGI.
K. When do these actions become effective?
The final rule will be effective 60 days after publication in the
Federal Register. However, licensees will not need to comply with the
Tribal advance notification provisions in 10 CFR 71.97 and 73.37(f) for
1 year after the rule is published in the Federal Register. This date
was inserted into the regulatory text. This provides time for the NRC
to work with the Tribes and develop the list of Tribal contacts,
develop a map showing the location of Tribal reservations, provide
training on protection of SGI to the Tribes, and provide time for
licensees to develop procedures and conduct training on the new
requirements.
III. Summary and Analysis of Public Comments on the Proposed Rule
The proposed rule was published on December 6, 2010 (75 FR 75641),
for a 75-day public comment period that ended on February 22, 2011. The
NRC received comments from 10 entities. The commenters on the proposed
rule included Tribes, a Tribal organization, individuals, companies,
and a Federal agency. Copies of the public comments are available in
the NRC's PDR, 11555 Rockville Pike, Rockville, Maryland 20852 or at
http://www.regulations.gov under Docket ID NRC-1999-0005.
In general, most of the commenters expressed support for the
rulemaking. There were no comments received in opposition to the rule.
Many of the comments received were related to implementation. The
Commission specifically requested input on two subjects: (1) The best
method for informing Tribes of the obligations of possessing SGI; and
(2) whether the relief from fingerprinting should be applied generally
to access other types of SGI. A discussion of the comments and the
NRC's responses follow.
Comment 1: In the proposed rule, the NRC specifically invited
comment on the best method for informing Tribes of the obligations of
possessing SGI. Two commenters addressed this topic
[[Page 34198]]
directly, and two other commenters addressed the training aspect. One
commenter noted that when working with Indian tribes, there is no ``one
size fits all'' approach. The commenter noted that once this rule is
final, it will be important first to identify Tribes that would likely
be impacted by shipments from NRC licensees to inform them of the rule
change and their ability to receive advance notifications. The
commenter stated that once the interested Tribes are identified, the
NRC should convene a meeting (or training course) for the interested
Tribes to inform them of their options for participating, the
obligations of possessing SGI should the Tribe choose to receive the
advance notifications, and to develop a range of options to inform the
Tribes. Another commenter indicated that the NRC should carefully
consider the methods used to inform the Tribal governments of their
responsibility in possessing SGI, as failure to comply with these
requirements could result in civil or criminal liability. The commenter
noted that the mechanisms should be reasonable, effective, and based on
further research. The commenter suggested that the NRC should first
determine whether this material is the type that would lend itself to
Webinars or short-term orientation training. The commenter suggested
that after selecting a mechanism by which to disseminate the material,
the NRC should attempt to gain insight into the Tribal governments'
perspectives on the material by conducting surveys to determine if the
material is comprehensible, or alternatively, whether it contains
complex legal provisions and unclear obligations. The commenter noted
that both parties should anticipate the appropriate costs and the time
commitments involved with such training. Another commenter noted that
training is likely to be the biggest expense. The commenter noted that
Tribes should be afforded opportunities for training regarding the
obligations for possessing SGI, and the NRC should consider developing
both distant learning opportunities and a training of trainers program
to share with Tribal leaders and Tribal law enforcement agencies. One
commenter noted that effective security training is as important as the
decision to share the information itself. The commenter suggested that
the NRC use Web-based mechanisms as well as more traditional methods of
communication, such as information packets and training courses. The
commenter pointed out that the NRC should customize its outreach to
each Tribal government based on the Tribal government's capacity and
level of engagement. The commenter pointed out that the NRC's outreach
effort could be incorporated into existing procedures where an NRC
staff member contacts individual Tribes. The commenter indicated that
the NRC should offer each participating Tribe training options.
Participating Tribes could choose from a range of training options,
including technologically advanced options, like Webinars, and more
traditional options such as training packets and training courses. The
commenter noted that Tribes are willing to make a good-faith effort to
carry out their obligations regarding SGI possession and that while
training courses may require more resources, the nature of the
responsibility involved justifies such attention to training.
Response: The NRC agrees that there is no one-size-fits-all
approach that will work. The NRC is considering several different
mechanisms to inform the Tribes of the Agency's SGI protection
requirements. Initially, the NRC plans to contact by letter all 565
Federally-recognized Tribes when the final rule is published in the
Federal Register. This initial contact will include a copy of the final
rule and information on the protection of SGI, as well as a request to
inform the NRC if the Tribe wants to receive the advance notifications.
For those Tribes that express interest, more detailed training will be
available by Webinar, meetings, training classes, compact disk, etc.
Decisions on the best mechanism to provide the training will depend on
such things as the number of Tribes that will need the training,
locations of the Tribes, and the Tribe's preference.
Comment 2: In the proposed rule, the NRC specifically invited
comment on whether the relief from fingerprinting should be applied
generally to access other types of SGI. Only one commenter addressed
this topic. The commenter felt that the relief from fingerprinting
should be expanded and should be applied generally to other types of
SGI based on the presumption that the established information
protection procedures employed are presumed to meet the general
performance requirement.
Response: The NRC has decided to expand the relief to all types of
SGI. The SGI includes security-related information such as security
plans, alarm information, lock combinations, information related to
response forces, adversary characteristics, and other types of
information listed in Sec. Sec. 73.22 and 73.23. 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 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 those of
States. Revising the regulation permits the Commission to more
efficiently provide SGI to Tribes when it is determined that the Tribe
has a need-to-know. Need-to-know is determined on a case-by-case basis.
Factors in the decision can include a determination that the
information enables the Tribe to be more effective in its day-to-day
efforts to ensure the protection of nuclear materials and respond to
emergencies within its territories. Therefore, the Commission has
determined that the rule helps the Commission fulfill its obligations
to promote the common defense and security and to protect the health
and safety of the public. Individuals would still need to have an
established need-to-know before they would be given access to any other
types of SGI. This rulemaking establishes need-to-know for the advance
notifications for irradiated reactor fuel and nuclear waste shipments
that pass within or across the boundary of a Tribal reservation.
Relief from the fingerprinting requirement cannot be provided by
Commission order; it can only be provided by rule. By including the
relief in this rulemaking, a future rulemaking will not need to be
conducted. As noted elsewhere in the Statement of Considerations, the
Tribal official would have to certify that the Tribe has the necessary
protection measures in place and that they will protect the SGI in
accordance with the requirements in 10 CFR Part 73 (Sec. Sec. 73.21
through 73.23).
Comment 3: Most of the commenters expressed support for the
rulemaking. One commenter noted that the transportation of nuclear
waste shipments has always been of concern to Tribal government
officials and community members as the potential long-term effects of a
transportation accident and possible contamination of Tribal ecosystems
poses a high risk to
[[Page 34199]]
cultural continuity. One commenter noted that the rule is meaningful
because it will increase the Tribal government's ability to perform its
responsibilities in protecting public health and safety, as well as
recognize Tribal sovereignty. Another commenter expressed support
because the NRC's approach acknowledges that sovereign Tribal nations
require the same information provided to the States in order to protect
health and the environment. The commenter noted that the Tribe's all-
hazard Fire Department can be more prepared for very unlikely incidents
involving nuclear waste if the Tribe is informed of the shipments. One
commenter commends the NRC for its understanding of the unique legal
relationship between the Federal government and Tribal governments as
the basis for amending the regulations, and for adhering to the
principles of consultation and cooperation articulated in E.O. 13175.
Commenters noted that Tribal governments exercise regulatory
jurisdiction over a broad range of activities on their lands and that
Tribal government officials, just like State officials, are charged
with protection of the public and have a need-to-know the type and
amount of hazardous materials that traverse through their
jurisdictions. Commenters noted that notification to Tribal authorities
will acknowledge the rights and sovereignty of Tribal governments as
well as the responsibility that tribes have for the welfare and safety
of natives and non-natives within their jurisdictional boundaries.
Commenters noted that notification to Tribal governments will allow
Tribal law enforcement and other officials to prepare for safety and
security of shipments as well as develop emergency preparedness plans
in the event of a transportation accident. One commenter noted that the
rule acknowledges a Tribe's sovereign right to be notified of these
risks in order to protect the health and safety of its citizens.
Several Tribes indicated that they wanted to receive the advance
notifications.
Response: The NRC acknowledges the support for the rule. No
additional response is necessary.
Comment 4: There were several questions related to the
notifications and how enforcement would occur. One commenter wanted to
know: (1) How licensees will know if their shipment will pass through
Tribal lands subject to the notification requirements; (2) whether the
licensee would be in violation if it notified a Tribe that had
originally requested notifications but had recently decided not to
receive the advance notifications; and (3) whether a licensee would be
in violation for failing to notify a Tribe that had recently decided to
receive the notifications.
Response: The NRC will maintain a list of those Tribes that want to
receive the notifications. The list will be published annually in the
Federal Register and posted on the NRC Web site. The NRC plans to place
a map on the Web site that will denote the location of the Tribal
reservations of those Tribes that decide to participate and receive the
advance notifications. A licensee will need to check the map to see if
the route traverses any of the reservations in order to determine
whether it will need to contact any Tribes. A licensee would be in
violation if it provided safeguards information to a Tribe that was not
participating in the advance notification program. A licensee would
also be in violation if it did not provide information to a Tribe that
should receive notifications. If the map had not been updated before
the notifications were or were not provided, the licensee would not be
in violation, as it would have had no method of knowing. The NRC will
update the list and map promptly upon receiving notification from a
Tribe of any change in the decision to receive advance notifications.
Comment 5: Several commenters expressed support for the provision
that allows flexibility for the Tribe to decide if it wants to receive
the advance notifications or not, particularly as there is a resource
requirement for safeguarding the information. One commenter noted that
this option should be explained clearly to the Tribal governments.
Another commenter noted that accommodations should be made to assist
the Tribes in implementing this rule. These accommodations would
include assistance with implementing personnel safeguard protocols. One
commenter noted that the provision presents implementation challenges.
The commenter suggested that the NRC should contact the Tribes at
preestablished times, perhaps once a year, to confirm whether the Tribe
would like to continue receiving notifications. The commenter noted
that if a Tribe decides to opt out that licensees should be notified
and the change reflected in the annual Federal Register notice. The
commenter also noted that if a Tribe decides to receive the advance
notifications, the NRC should establish a clear procedure for notifying
licensees and scheduling training on the protection of the information.
The commenter noted that Tribal boundaries should be clearly defined
and conveyed to both the licensee and the participating Tribe.
Response: The NRC plans to initially contact the Tribes when the
final rule is published in the Federal Register. This initial contact
will include a copy of the final rule and information on the protection
of SGI, as well as a request to inform the NRC if the Tribe wants to
receive the advance notifications (possibly by utilizing a prepaid,
self-addressed postcard). Once a year, the NRC will contact those
Tribes that choose to receive the notifications. The NRC outreach will
include a request to update any contact information and ask if the
Tribe wishes to continue to receive the advance notifications. Every 5
years, the NRC plans to contact all of the Federally-recognized Tribes
to inform them of the option to receive the advance notifications and
the associated responsibilities that accompany those notifications. The
NRC will also contact non-participating Tribes when a newly approved
route crosses the Tribal reservation. The NRC's Web site will also
contain detailed instruction on how a Tribe can choose to opt in or opt
out. The list of participating Tribes will be published in the Federal
Register once a year and will be posted on the NRC's Web site.
Additionally, a map will be posted on the NRC's Web site that shows the
location of the Tribal reservations and the routes that surround them.
The Web site will also have Tribal contact information. As soon as the
NRC receives information from a Tribe on the Tribe's decision to
participate and receive the advance notifications or the decision to
stop receiving the advance notifications, the NRC will promptly update
the information on the NRC's Web site. Information addressing training
concerns is detailed in the response to Comment 1.
Comment 6: The NRC received several questions related to route
approvals. One commenter wanted to know: (1) For future route approval
requests, whether the Tribes will be identified similar to counties and
be listed under individual states or treated similar to states; (2) for
future route surveys, how the jurisdictions will be determined as not
all counties and Tribes are marked along interstate and secondary
routes; (3) whether the Tribal emergency response contacts will be
listed; and (4) whether current approved routes will need to be
resurveyed and amended to show each Tribe. Another commenter noted that
the NRC must clearly outline procedures for route changes and
enforcement. G1
Response: The Tribes will be identified and listed separately as is
done for the States. The licensee should provide the 24-hour contact
information
[[Page 34200]]
that is available for the Tribe's local law enforcement agency in each
county along the route. The route plan must be segmented by counties
and Tribal reservations for each state. The NRC will have a map on its
Web site that denotes the locations of the Tribal reservations. The
Tribal emergency contacts will be listed. The currently approved routes
will not be resurveyed, but will be amended if a Tribe along the route
opts to be notified.
Comment 7: One commenter noted that a letter, post-marked 7 days
prior to the 7-day window of transport, is sufficient to constitute
notice. The commenter noted that it is unclear what constitutes
sufficient notice if the designated Tribal point of contact cannot be
reached for schedule changes as schedule changes are typically made via
telephone. The commenter indicated that the rule should be clearer
about what constitutes notice in these cases and the options for
recourse if notice is not provided. The commenter also noted that the
rule needs to be explicit on email notification as this is not
addressed in the proposed rule.
Response: If the Tribal contact cannot be reached for a schedule
change, the licensee can leave a non-SGI voice mail message. Email
notification of schedule changes is not prohibited under the rule. Note
that if the notification contains SGI, the email must meet the
requirements of Sec. 73.22(f).
Comment 8: One commenter noted that the Tribe's law enforcement
agency has in place measures to protect SGI and can conduct proper
planning, training, and coordination in support of State, local, and
railroad police departments once a notification system is in place. The
commenter also expressed support for the NRC's requirement to manage
this information as SGI on a ``need-to-know'' basis.
Response: No response is necessary.
Comment 9: One commenter noted that the best method for
notification is a phone call to a previously designated individual. The
commenter noted that this prevents the creation of an unnecessary paper
trail or computer access that may be compromised, and assures the
information is provided to the correct individual.
Response: The rule requires that the notification be conducted in
writing because it contains SGI, and SGI cannot be transmitted using
non-secure devices. Any Tribe deciding to receive the advance
notifications would not be required to retain the notification; the
Tribe could destroy the notice upon receipt, as long as the destruction
is conducted in accordance with Sec. 73.22(i). The notifications of
schedule changes may be made by phone, as they typically do not contain
SGI.
Comment 10: One commenter did not support additional background
investigations for the Tribal Chairman or Tribal Vice Chairman because
they are elected officials and have already undergone this procedure
prior to taking office. The commenter noted that the Tribe is a
sovereign nation and the Tribal leaders are analogous to a State
Governor who has been exempted from these additional requirements.
Response: The rule relieves the Tribal official or their designee
from the fingerprinting requirement as is done for a governor or the
governor's designee. The rule defines the Tribal official as the
highest ranking individual that represents Tribal leadership such as
the Chief, President, or Tribal Council leadership of an Indian tribe.
Comment 11: One commenter noted that the proposed rule did not
contain any discussion about how the rule would be enforced by the NRC
on its licensees. The commenter wanted to know: (1) How the NRC will be
informed that the licensees have, in fact, notified Tribes of the
shipments; and (2) whether there are penalties for non-compliance with
the advance notification requirements. The commenter noted that
enforcement needs to be addressed before moving forward and that the
NRC needs to inform licensees of their obligation to provide the
advance notification to the Tribes impacted by their shipments. Two
commenters urged the NRC to implement effective oversight mechanisms to
ensure compliance by licensees. One of the commenters noted that this
should include specific remedies for failure to provide adequate
notification.
Response: The licensee is not required to inform the NRC when they
have provided the advance notifications to the States and Tribes. The
licensee is subject to NRC inspection. As part of routine inspections,
the NRC would check records to see if the required notifications have
been made. If the required notifications have not been made, the
licensee would be subject to a notice of violation. Depending on the
severity, the violation could result in a civil penalty.
Comment 12: One commenter stated that the rule should establish a
consultation process that provides for timely input from Tribal
governments on route planning and disaster preparedness to ensure
greater communication and strategic cooperation. The commenter
indicated that it is vital that the NRC make every effort to respect
the sovereign jurisdiction of Tribal nations and coordinate with them
on matters that affect the health and safety of their citizenry.
Response: The NRC is not directly involved in developing the routes
and would therefore not engage in a consultation with the Tribes or
with the States through which a route crosses. The NRC does verify
contact information after a route is submitted to the NRC. The NRC does
not currently plan any consultation with the Tribes on disaster
preparedness related to this rulemaking, since the rule is limited to
notification requirements. However, the NRC periodically conducts
emergency exercises during which the agency coordinates with the Tribes
located within the emergency planning zones of NRC facilities. In the
unlikely case of an accident and release of radioactive material from a
waste shipment, the Federal response would include coordination with
the affected Tribes.
Comment 13: One commenter requested notification of traditional and
currently adjudicated homelands (which would include South Dakota,
North Dakota, Minnesota, Nebraska, Wyoming, Montana, Kansas, and
Wisconsin). Another commenter requested that Tribal boundaries should
be clearly defined and conveyed to both the licensee and the
participating Tribe.
Response: For implementation purposes for this rule, the NRC
decided to require licensees to give advance notification to
participating Federally-recognized Tribes when a shipment of irradiated
reactor fuel and other radioactive wastes crosses the external boundary
of the Tribal reservation. This definition provides a clearly defined
area that can be used by the licensee to evaluate their routes and
provide notification to the interested Tribal governments. The NRC
expects to provide information (e.g., a map) on the NRC's Web site to
delineate the locations of Tribal reservations and Tribal contact
information to aid the licensee compliance with the regulatory
requirements.
The licensee will not be required to provide advance notification
to participating Tribal governments for traditional and currently
adjudicated homelands outside the external boundary of a Tribal
reservation. These are not clearly defined areas, and some cases are
currently under dispute. For areas outside the external Tribal
reservation boundaries, the current regulations require that the
licensee provide notice to the applicable State government.
Comment 14: One commenter noted that DOE has for more than 27 years
[[Page 34201]]
recognized the need to include Tribes as necessary parties for
radioactive waste management and transportation activities including
emergency management planning components. The DOE indicated that it has
provided advance notice of DOE shipments to Tribal officials for a
number of years and has not experienced any resulting security problems
or concerns. The DOE noted that the NRC's proposed amendments are
consistent with DOE's current practice regarding advance notification
of DOE shipments. The DOE noted that it supports the NRC's proposal to
amend its regulations so that NRC licensees would be required to
provide notification to Tribes. The DOE noted that the proposed
amendments respect Tribal sovereignty, do not pose an increased threat
to security, and can enhance safety. The DOE further indicated that
advance notification helps ensure the preparedness of law enforcement
and emergency response personnel along a shipping route, and the DOE
believes that providing advance notification to States and Tribes
enhances the safety of its shipments.
Response: No response is necessary.
Comment 15: One commenter asked if the rule changes will impact
emergency response and first responder protocols for the licensee.
Response: The rule should not impact emergency response and the
first responder protocols.
Comment 16: One commenter suggested that the NRC should create a
system that continually seeks to update any outdated technology,
policies, or procedures and that performs an annual review of the
system's effect on both the Tribal governments, as well as licensees,
to determine whether the regulation is costing either party unexpected
financial loss.
Response: The NRC does not plan to conduct such reviews on the
rule's ongoing impact. However, a regulatory analysis of the rule that
provides an estimated cost to States and Tribes was completed as part
of the rulemaking process. Tribes have the option to opt out and not
participate in receiving the advance notifications. If a Tribe felt
that receiving the notifications would have too great of a financial
impact, the Tribe could decide not to receive the notifications.
Comment 17: One commenter stated that the NRC used plain language
effectively and that the rule is clear.
Response: No response is necessary.
Comment 18: One commenter noted that the regulatory analysis is
accurate and supports the rule. One commenter noted that the cost and
burden to the NRC or its licensees in implementation of a rule change
should not be a consideration in amending the regulation. The commenter
noted that as an agency of the Federal Government, the NRC has a
responsibility to protect Tribal lands and peoples. The commenter noted
that licensees must be cognizant of the risks that their activities
could pose to every segment of the population, and licensees have an
ongoing duty to ensure the safety and security of Tribal communities.
The commenter stated that because of the high-risk nature of the
licensees' products and activities, notification to appropriate Tribal
government officials should be part of the licensees' standard business
process.
Response: The NRC prepares a regulatory analysis to support most
rulemakings. The analysis lays out both the costs and benefits of the
rule so that the NRC can make an informed decision.
Comment 19: One commenter noted that it is not clear whether the
proposed rule change encompasses all current and potential Federal
spent nuclear fuel and high-level radioactive waste campaigns. The
commenter stated that the origin and destination of these materials is
relevant because the fiduciary duty to Tribes is borne by all Federal
entities responsible for these shipments, including the DOE and DOD.
The commenter stated that all similar spent nuclear fuel and high-level
radioactive materials shipments and potential impacts need to be
addressed by the NRC, and appropriate Federal agencies. Another
commenter requested that the rule include shipments from the DOE and
DOD. Another commenter noted that it is unclear whether nuclear waste
shipments going to a Federal repository or interim storage facility
would be subject to this rule. The commenter believed that once waste
leaves a commercial nuclear power plant for Federal disposal, the
shipments are considered to be DOE shipments. The Commenter noted that
the language must be clarified to ensure that any shipment originating
from an NRC-licensed facility (i.e., all commercial power plants) would
be covered by the rule provisions, even if the DOE takes possession of
the material and it becomes a DOE shipment.
Response: Under the AEA and the Energy Reorganization Act of 1974,
as amended, the NRC has authority over shipments of NRC-licensed
material. The DOE and DOD may transport DOE and DOD titled spent
nuclear fuel and high-level radioactive waste shipments outside of the
NRC's regulatory authority. These DOE and DOD spent nuclear fuel and
high-level radioactive waste shipments are not licensed by the NRC for
transportation. In some circumstances Congress mandated that the DOE
follow the NRC notifications of State and local governments prior to
transportation of spent nuclear fuel or high-level radioactive waste
for disposal at a repository or for monitored retrievable storage. The
mandate does not include Native Tribes; however, the DOE has a policy
in place to provide notification to Federally-recognized Tribes in
advance of any shipments of spent nuclear fuel or high-level
radioactive material.
Comment 20: One commenter noted that certain Tribes have designated
their lands as nuclear-free zones. In order to more fully achieve the
NRC's stated goal of respecting Tribal sovereignty, the commenter
encouraged the NRC and its licensees to establish alternative
transportation routes that do not involve these territories.
Response: Although the NRC does approve the routes proposed by the
licensee, the licensee is responsible for designating the routes for
nuclear waste shipments for which advance notification will be required
under this rule. With respect to these shipments, regulations of the
U.S. Department of Transportation in 49 CFR Part 397, Subpart D,
``Routing of Class 7 (Radioactive) Materials,'' and Subpart E,
``Preemption Procedures,'' govern a carrier's selection of the highway
route. These regulations also contain the procedures which must be
followed by a State or Indian tribe to designate a highway route over
which these shipments may or may not be transported. See also the
Federal hazardous material transportation law at 49 U.S.C. 5112 and
5125(c).
In particular, 49 CFR Part 397, Subpart D sets forth the standards
for the States and Indian tribes to follow when designating specific
highway routes for transportation of Class 7 (radioactive) materials.
In particular, 49 CFR 397.103, ``Requirements for State routing
designations,'' requires the routing agency to select routes to
minimize radiological risk and consult with affected local
jurisdictions and other affected States to ensure consideration of all
impacts and continuity of designated routes. A list of State-designated
preferred routes is available upon request to Federal Motor Carrier
Safety Administration, Office of Enforcement and Compliance (MC-EC),
1200 New Jersey Ave. SE., Washington, DC 20590-0001.
Comment 21: One commenter noted that the Tribes' resources and
experience vary with regard to
[[Page 34202]]
navigating government-to-government relations of this nature. The
commenter indicated that the NRC needs to make a good-faith effort in
these inaugural stages as some Tribes are able to assist the NRC with
advanced tools, such as digital mapping of their areas, while others
are struggling with funding for even older, more established projects.
Response: The NRC is aware that the Tribes' resources and
experience vary which is why all Tribes will be initially contacted by
letter. The NRC will offer different methods for conducting training on
protection of SGI so that Tribes can select the appropriate method to
fulfill their needs.
Comment 22: One commenter noted that there is no provision in the
rule concerning feedback or review and that feedback on training,
notification processes, and general implementation issues would be very
valuable to successful execution of the rule. The commenter noted that
feedback would also help facilitate dialogue with the Tribal
governments over other issues in nuclear transportation. The commenter
noted that the proposed rule may benefit from an institutionalized
review procedure, particularly in the initial years.
Response: Although the NRC does not have an institutionalized
review procedure, it does request feedback when it conducts training
and outreach efforts during public meetings.
Comment 23: One commenter encouraged the NRC to coordinate with
other government agencies that regularly work with sovereign Tribal
governments, and particularly with the DOE. The commenter encouraged
the NRC to make use of the methods and contacts that the DOE currently
employs in its regular communication with Tribal governments as such
coordination would likely reduce the labor required to maintain an
accurate list of Tribal government contacts. The commenter also noted
that out of respect for the sovereignty of Tribes and Tribal
governments, coordination with other government agencies and consistent
communication procedures would also reduce the administrative burden on
the Tribes themselves.
Response: The NRC does coordinate with other Federal agencies on a
case-by-case basis. For example, the NRC worked with the Bureau of
Indian Affairs (BIA) and the National Council of American Indians in
developing the list of Federally-recognized Tribes contacted about this
rule and for other activities, including the creation of an NRC
database encompassing all 565 Federally-recognized Tribes. The NRC
frequently coordinates with DOE in areas of mutual interest, including
DOE's Tribal outreach.
Comment 24: One commenter suggested that the NRC work with the DOE
and other agencies to develop a central database of Tribal information
that can be easily accessed by licensees. The commenter noted that
accurate information about the recognized geographical boundaries of
Tribes is of utmost importance to successful implementation of the
rule. The commenter stated that the NRC should work with the DOE and
BIA to create and regularly update a map of Tribal jurisdictions. The
commenter noted that the map could be made available to licensees on
the NRC's Web site. The commenter indicated that the NRC should also
coordinate with other agencies to acquire information on cultural
holidays or events that could result in a particular Tribal government
being closed and not receiving its necessary notification.
Response: The NRC is currently developing and will maintain a
United States map that shows the Tribal reservations, using a State-by-
State presentation, and the contacts for those Tribes that choose to
receive the notifications. The NRC will coordinate with DOE and BIA as
appropriate. Additionally, the NRC has already developed a calendar of
Tribal days of significance for internal use and will consider adding
the information to the NRC's Web site.
Comment 25: One commenter noted that a primary concern about this
rule is that the additional dissemination of nuclear waste
transportation information could threaten information security. The
commenter believes that the rule adequately safeguards against this
concern by making the advance notification voluntary, ensuring security
in a manner commensurate with State procedures, and providing clear
equipment and training requirements. The commenter stressed that Tribal
governments are just as invested in preventing harmful uses of nuclear
waste as State governments and that the rule not only recognizes Tribal
sovereignty, but also their stake in this decision-making process.
Response: The NRC agrees with the commenter that the rule provides
adequate protection of the information contained in the advance
notifications.
IV. Discussion of Final Amendments by Section
Section 71.4 Definitions
The definition for Indian tribe is based on the term as defined in
E.O. 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) is 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) is 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) is revised to require notifications to be made to the
office of each appropriate Tribal official or his or her designee.
Paragraph (c) is also revised to indicate how the list of Tribal
officials will be made available.
Paragraph (d) is revised to include arrival at Tribal reservation
boundaries.
Paragraph (e) is 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) is revised to require that cancellation notices be
provided to each Tribal official or his or her designee that had
previously been notified of an advance shipment.
Section 73.2 Definitions
The definition for Indian tribe is based on the terms as defined in
E.O. 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) is 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) is revised to require that advance notification of
irradiated fuel shipments be provided to participating Tribes if a
shipment crosses Tribal reservation boundaries.
Paragraph (g) is revised to add Tribal officials and Tribal
employees to the list of individuals that must protect schedule
information against
[[Page 34203]]
unauthorized disclosure as specified in Sec. Sec. 73.21 and 73.22.
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) is added to include Tribal official, Tribal
official's designee, and Tribal law enforcement personnel 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. Civil and Criminal Penalties
For the purposes of Sections 223 and 234 of the AEA, the Commission
is amending 10 CFR Parts 71 and 73 under one or more of Sections 161b,
161i, or 161o of the AEA. Violations of the rule could result in civil
enforcement action, including civil monetary penalties, and Federal
criminal prosecution.
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; September 3, 1997),
this final rule is 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 final 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/).
The NRC program elements (including regulations) are placed into
four compatibility categories (see the 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, 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 are being revised and their corresponding compatibility
categorization under the ``Policy Statement on Adequacy and
Compatibility of Agreement State Programs.''
Compatibility Table for Final Rule
----------------------------------------------------------------------------------------------------------------
Compatibility
Section Change Subject -------------------------------
Existing New
----------------------------------------------------------------------------------------------------------------
10 CFR Part 71
----------------------------------------------------------------------------------------------------------------
71.4............................. New................ Definition Indian tribe. .............. B
71.4............................. New................ Definition Tribal .............. B
official.
71.97............................ Amend.............. Advance notification of B............. B
shipment of irradiated
reactor fuel and
nuclear waste.
----------------------------------------------------------------------------------------------------------------
10 CFR Part 73
----------------------------------------------------------------------------------------------------------------
73.2............................. New................ Definition Indian tribe. .............. NRC
73.2............................. New................ Definition Tribal .............. NRC
official.
73.21............................ Amend.............. Protection of Safeguards NRC........... NRC
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.
----------------------------------------------------------------------------------------------------------------
VII. 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 final rule, the NRC is requiring that
advance notification be provided to participating Tribal governments
for shipments of irradiated reactor fuel and other nuclear wastes
listed in Sec. 71.97 that pass within or across Tribal reservations.
This action does not constitute the establishment of a standard that
establishes generally applicable requirements.
[[Page 34204]]
VIII. Environmental Impact: Categorical Exclusion
The NRC has determined that this final 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 final rule.
IX. Paperwork Reduction Act Statement
This final 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.). These requirements were approved by the
Office of Management and Budget (OMB), approval numbers 3150-0008 and
3150-0002.
The burden to the public for these information collections is
estimated to average 0.422 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
information collection. Send comments on any aspect of these
information collections, including suggestions for reducing the burden,
to the Information 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, (3150-0151), Office of
Management and Budget, Washington, DC 20503. You may also email
comments to [email protected] or comment by telephone at
202-395-4718.
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.
X. Regulatory Analysis
The Commission has prepared a regulatory analysis on this
regulation. The analysis examines the costs and benefits of the
alternatives considered by the Commission. The analysis is available
for inspection in the NRC's PDR, 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.
XI. 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 the NRC's size standards (10 CFR 2.810).
XII. 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 final 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.
XIII. Congressional Review Act
In accordance with the Congressional Review Act of 1996, the NRC
has determined that this action is not a major rule and has verified
this determination with the Office of Information and Regulatory
Affairs of OMB.
List of Subjects
10 CFR Part 71
Criminal penalties, Hazardous materials transportation, 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. 552 and 553; the NRC is adopting
the following amendments to 10 CFR parts 71 and 73.
PART 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL
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1. The authority citation for part 71 is revised to read as follows:
Authority: Atomic Energy Act secs. 53, 57, 62, 63, 81, 161,
182, 183, 223, 234, 1701 (42 U.S.C. 2073, 2077, 2092, 2093, 2111,
2201, 2232, 2233, 2273, 2282, 2297f); Energy Reorganization Act
secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); Nuclear
Waste Policy Act sec. 180 (42 U.S.C. 10175); Government Paperwork
Elimination Act sec. 1704 (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.
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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.
* * * * *
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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,
after June 11, 2013, 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
[[Page 34205]]
(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
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4. The authority citation for part 73 is revised to read as follows:
Authority: Atomic Energy Act secs. 53, 147, 161, 223, 234, 1701
(42 U.S.C. 2073, 2167, 2169, 2201, 2273, 2282, 2297(f), 2210(e));
Energy Reorganization Act sec. 201, 204 (42 U.S.C. 5841, 5844);
Government Paperwork Elimination Act 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 Nuclear Waste Policy Act secs.
135, 141 (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).
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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 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.
* * * * *
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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.
* * * * *
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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) A licensee subject to this section shall notify the governor or
the governor's designee prior to the transport of spent fuel within or
across a State. After June 11, 2013, a licensee subject to this section
shall notify the Tribal official or Tribal official's designee of each
participating Tribe referenced in Sec. 71.97(c)(3) of this chapter
prior to the transport of spent fuel within or across the Tribal
reservation. 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
20555-0001.
(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 the 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.
[[Page 34206]]
(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.
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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.
Dated at Rockville, Maryland, this 5th day of June 2012.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2012-14082 Filed 6-8-12; 8:45 am]
BILLING CODE 7590-01-P