[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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

0
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.


0
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.
* * * * *

0
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

0
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).


0
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.
* * * * *

0
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.
* * * * *

0
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.

0
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