[Federal Register Volume 78, Number 97 (Monday, May 20, 2013)]
[Rules and Regulations]
[Pages 29519-29557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11717]
[[Page 29519]]
Vol. 78
Monday,
No. 97
May 20, 2013
Part IV
Nuclear Regulatory Commission
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10 CFR Part 73
Physical Protection of Irradiated Reactor Fuel in Transit; Final Rule
Federal Register / Vol. 78 , No. 97 / Monday, May 20, 2013 / Rules
and Regulations
[[Page 29520]]
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Nuclear Regulatory Commission
10 CFR Part 73
RIN 3150-AI64
[NRC-2009-0163]
Physical Protection of Irradiated Reactor Fuel in Transit
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its
security regulations for the transport of irradiated reactor fuel (the
terms ``irradiated reactor fuel'' and ``spent nuclear fuel'' are used
interchangeably in this rule). This rulemaking establishes generically
applicable security requirements similar to the requirements currently
imposed by NRC Order EA-02-109, ``Issuance of Order for Interim
Safeguards and Security Compensatory Measures for the Transportation of
Spent Nuclear Fuel Greater than 100 Grams.'' This rulemaking also
establishes performance standards and objectives for the protection of
spent nuclear fuel (SNF) shipments from theft, diversion, or
radiological sabotage. Additionally, this rulemaking addresses, in
part, a 1999 petition for rulemaking from the State of Nevada (PRM-73-
10) that requests the NRC to strengthen the regulations governing the
security of SNF shipments against malevolent acts. This rule will apply
to each NRC licensee who transports, or delivers to a carrier for
transport SNF.
DATES: The rule is effective on August 19, 2013.
ADDRESSES: Please refer to Docket ID NRC 2009-0163 when contacting the
NRC about the availability of information for this final rule. You can
access information and comment submittals to this final rule, which the
NRC possesses and is publicly available, by any of the following
methods:
Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID: NRC-2009-0163.
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 1-800-397-4209, 301-415-
4737, or by email to [email protected]. The ADAMS accession number
for each document referenced in this document (if that document is
available in ADAMS) is provided the first time that a document is
referenced.
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: Cardelia Maupin, Office of Federal and
State Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-
2312, email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion
A. What action is the NRC taking?
B. Who will this action affect?
C. Why revise the requirements?
D. When will the rule become effective?
E. Why rescind the orders for SNF in transit?
F. When will the NRC issue guidance on these requirements?
G. What is requested by the State of Nevada in its petition for
rulemaking (PRM-73-10)?
H. Why require procedures and training for the security of SNF
in transit?
I. Why require a telemetric position monitoring system or an
alternative tracking system for continuous monitoring of SNF
shipments?
J. Why preplan and coordinate SNF shipments?
K. Why require constant visual surveillance by armed escort?
L. Why require two-way redundant communication capabilities?
M. Why require background investigations?
N. Why enhance SNF shipment notifications to the NRC?
III. Summary and Analysis of Public Comments on the Proposed Rule
IV. Discussion of the Amendments by Section
V. Criminal Penalties
VI. Agreement State Compatibility
VII. Voluntary Consensus Standards
VIII. Environmental Assessment and Finding of No Significant
Environmental Impact: Availability
IX. Paperwork Reduction Act Statement
X. Regulatory Analysis
XI. Regulatory Flexibility Certification
XII. Backfitting
XIII. Congressional Review Act
XIV. Plain Writing
I. Background
A. Pre-September 11, 2001
The NRC has long participated in efforts to address radioactive
source protection and security. On June 15, 1979, the NRC published in
the Federal Register (44 FR 34466) an interim final rule that
established requirements for the physical protection of irradiated
reactor fuel in transit. The interim final rule added a new Sec. 73.37
to Title 10 of the Code of Federal Regulations (10 CFR), ``Requirements
for physical protection of irradiated reactor fuel in transit.'' The
interim rule and related guidance, NUREG-0561, ``Physical Protection of
Shipments of Irradiated Reactor Fuel,'' were issued in effective form
without the benefit of public comment. At the time of publication,
public comments were solicited on the interim regulation and the
guidance document. After considering public comments, amendments to the
interim final rule and the guidance document were issued on June 3,
1980 (45 FR 37399).
Section 73.37 has changed little since its promulgation in 1980.
The current regulation requires that licensees establish a physical
protection system for SNF shipments that meets the following
objectives: (1) Minimize the possibilities for radiological sabotage of
SNF shipments, especially within heavily populated areas; and (2)
facilitate the location and recovery of SNF shipments that may have
come under the control of unauthorized persons. The regulation also
requires that the physical protection system: (1) Provide for the early
detection and assessment of attempts to gain unauthorized access to or
control over SNF shipments, (2) provide notification to the appropriate
response forces of any sabotage events, and (3) impede attempts at
radiological sabotage of SNF shipments in heavily populated areas or
attempts to illicitly move such shipments into heavily populated areas.
Other NRC regulations also support the protection of SNF in
transit. For example, the regulations in Sec. 73.72, ``Requirement for
Advance Notice of Shipment of Formula Quantities of Strategic Special
Nuclear Material, Special Nuclear Material of Moderate Strategic
Significance, or Irradiated Reactor Fuel,'' require licensees to notify
the NRC in advance about shipments of SNF. The regulations in 10 CFR
Part 71, ``Packaging and Transportation of Radioactive Material,''
establish requirements for packages used to transport SNF.
In addition, by a letter dated June 22, 1999, the State of Nevada
submitted a petition for rulemaking requesting that NRC strengthen its
regulations governing the security of SNF shipments against malevolent
acts. The NRC docketed the petition on July 13, 1999, as Docket No.
PRM-73-10. The NRC published for public comment a notice of receipt of
PRM-73-10 on September 13, 1999 (64 FR 49410). The NRC discontinued its
review of this
[[Page 29521]]
petition following the terrorist attacks of September 11, 2001. The
petition review was resumed in 2008. The NRC addressed the petition, in
part, in the ``State of Nevada: Denial of Portions of Petition for
Rulemaking, Consideration of the Remaining Portions in the Rulemaking
Process,'' December 7, 2009 (74 FR 64012). The aspects of PRM-73-10 not
addressed as a part of the December 2009 decision are considered as a
part of this rulemaking.
B. Post-September 11, 2001
The terrorist attacks of September 11, 2001, heightened concerns
about the use of risk-significant radioactive materials in a malevolent
act. In response to the attacks, the NRC determined that additional
security measures were needed to enhance the protection of SNF
shipments from theft, diversion, or radiological sabotage. Accordingly,
the NRC issued EA-02-109, ``Issuance of Order for Interim Safeguards
and Security Compensatory Measures for the Transportation of Spent
Nuclear Fuel Greater than 100 Grams,'' (67 FR 63167; October 10, 2002),
to ensure that SNF is shipped in a manner that protects the common
defense and security and the public health and safety. This order was
issued to NRC power reactor licensees; non-power reactor licensees;
independent spent fuel storage installation (ISFSI) licensees; and
special nuclear material licensees, who shipped, received, or planned
to ship or receive SNF under the provisions of 10 CFR Part 71.
Subsequently, the Commission issued similar security orders during the
period October 2003 through December 8, 2010. These orders are
collectively referred to as the ``Orders for SNF in Transit'' or ``the
Orders.'' All of the Orders were issued as immediately effective under
the NRC's authority to protect the common defense and security pursuant
to Sections 53, 103, 104, 161b, 161i, 161o, 182, and 186 of the Atomic
Energy Act of 1954, as amended (AEA), and the Commission's regulations
in Sec. 2.202 and 10 CFR parts 50, 70, 71, and 72.
On July 21, 2010, the Commission authorized the NRC staff to
publish a proposed rule to establish security requirements for SNF in
transit. The proposed rule, 10 CFR 73.37, ``Physical Protection of
Irradiated Fuel in Transit,'' (RIN 3150-AI64, Docket ID: NRC-2009-
0163), was published in the Federal Register on October 13, 2010 (75 FR
62695). The proposed rule incorporated the security requirements in the
Orders as well as lessons learned from implementation of the Orders.
The proposed rule provided a 90-day public comment period that was to
end on January 11, 2011. After receiving several requests to extend the
comment period, the NRC published on January 10, 2011 (76 FR 1376), a
notice extending the public comment period until April 11, 2011.
C. Regulatory Framework
For several decades, SNF has been shipped by the Federal government
and by the private sector (commercial). The primary objective of these
shipments has been to move SNF to interim storage facilities. The
Federal agency responsible for government transport of SNF is the U.S.
Department of Energy (DOE). The SNF shipments are generally divided
into two categories, commercial shipments and DOE-managed shipments.
Commercial SNF shipments are from NRC-licensed nuclear power reactors
and non-power reactors to another reactor site, which is usually done
to consolidate storage. The DOE-managed shipments are from foreign
research reactors, DOE-owned research and defense reactors, and nuclear
powered U.S. Navy ships, and from NRC-licensed non-power reactors. In
addition, on a few rare occasions, DOE has accepted SNF from commercial
nuclear power plants; e.g., Three Mile Island Unit 2, for storage at
its facilities.
The safe and secure shipment of SNF requires coordination and
collaboration between various Federal, State, and local government
agencies. These agencies work together to ensure an orderly regulatory
pattern for SNF shipments. The following questions and answers provide
additional information regarding the roles and responsibilities for SNF
shipments.
1. What is the role of the NRC in SNF shipments?
The NRC regulates commercial SNF shipments in terms of both safety
and security. Safety involves the protection of public health and
safety during transport, while security relates to the protection of
shipments against deliberate, malevolent acts. The NRC and the U.S.
Department of Transportation (DOT) share Federal regulatory
responsibility for SNF transportation safety. The NRC and DOT have
signed a memorandum of understanding (MOU) (44 FR 38690; July 2, 1979)
that delineates their respective responsibilities for regulating the
transport of radioactive materials, which includes SNF shipments.
Generally, the NRC regulates the design and construction of SNF
shipping containers for domestic and foreign packages used to transport
SNF solely within the U.S. Although DOT is the lead government agency
responsible for the approval of export and import packages, it relies
on the NRC's evaluation as the basis for approval of these packages. In
addition, the NRC regulates the physical protection of commercial SNF
in transit against sabotage or other malicious acts, which are
recognized in the MOU and DOT routing regulations in Title 49 of the
CFR (49 CFR) 397.101. The NRC requirements in 10 CFR Part 73 are
applied to these shipments of SNF. The NRC fact sheet on transportation
of radioactive materials can be found at: http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/transport-spenfuel-radiomats-bg.html.
2. What is the role of DOT in commercial SNF shipments?
The DOT has the primary responsibilities, in consultation with the
NRC, for issuing the safety requirements for the carriers of SNF and
for establishing the conditions of transport, such as routing, handling
and storage incidental to transport, and vehicle and driver
requirements, which are reflected in the MOU. The DOT also regulates
the labeling, classification, and marking of all SNF packages and
transport vehicles, and carrier-generated transport security plans. A
link to the DOT's Web site is provided on the NRC's public Web site at
http://www.nrc.gov/materials/transportation.html.
3. What are the roles of DOT and NRC in the route selection and
approval process for commercial SNF shipments?
The route selection and approval process is also a reflection of a
coordinated and orderly regulatory pattern between DOT and NRC
requirements. The route for a commercial SNF shipment by highway is
selected by the shipper or carrier using the routing criteria specified
in the DOT regulations found in 49 CFR Parts 172 (Subpart I, Safety and
Security Plans) and 397 (Subpart D, Routing of Class 7 (Radioactive)
Materials). The DOT highway routing criteria requires carriers to (1)
ensure routes are chosen based on minimizing radiological risk; (2)
consider available information on accident rates, transit time,
population density and activities, and the times of day and the day of
the week during which transportation will occur to determine the level
of radiological risk; and (3) instruct the driver about the route and
the hazards of the shipment. No written approval is required by DOT.
However, a written route plan must be prepared by the carrier and
provided to drivers and shippers.
After the route has been selected by a carrier, the shipper (NRC
licensee)
[[Page 29522]]
submits the proposed written route plan to the NRC for a security
review or vulnerability assessment. The NRC review takes into
consideration mileage, transit time, and local law enforcement agency
(LLEA) and emergency response contact information, adequacy of safe
haven locations, and communications capability along the route. If the
proposed route meets NRC security criteria, the route is issued a
written route approval. If the NRC requires that the proposed route be
changed to comply with its security regulations in 10 CFR part 73, a
carrier must modify the proposed route in accordance with specific
provisions in the DOT routing criteria (49 CFR 397.101).
For shipments by rail, the DOT requirements for routing radioactive
material are found within 49 CFR Parts 172, 174, and 209. The DOT
requires rail carriers to compile annual data on certain shipments of
hazardous materials, including Highway Route Controlled Quantities
(HRCQ). The data is used to analyze safety and security risks along
rail routes where those materials are transported, to assess
alternative routing options, and to make routing decisions based on
those assessments. Rail carriers must assess the available routes
ensuring, at a minimum, that 27 factors are considered. These 27
factors include, but are not limited to, consideration of rail traffic
density, transit times, number and types of grade crossings, proximity
to iconic targets, population densities, and venues along the route.
Rail carriers must also seek relevant information from State and
local officials, as appropriate, regarding security risks to high-
consequence targets along or in proximity to a route used by a rail
carrier to transport security-sensitive materials. Oversight is
provided by DOT's Federal Railroad Administration (FRA), including the
review and inspection of rail carriers' risk analyses and route
selections. The FRA does not pre-approve rail routes. If the FRA
determines that a carrier's route selection documentation and
underlying analyses are deficient, the carrier may be required to
revise the analyses or make changes in the route selection. In
addition, if it is determined by DOT that a particular route chosen by
the railroad is not the safest and most secure practicable route
available, the FRA can require the use of an alternative route until
such time as the identified deficiencies for the originally chosen
route are corrected by the railroad.
4. What is the role of DOE?
The DOE has broad authority under the AEA to regulate all aspects
of activities involving radioactive materials that are undertaken by
DOE or on its behalf, including the transportation of SNF. The DOE uses
this authority to manage certain SNF shipments which usually involve
special circumstances, such as SNF from foreign research reactors, DOE-
owned research and defense reactors, nuclear powered U.S. Navy ships,
and Three Mile Island Unit 2 to DOE storage facilities. In addition,
DOE-manages the shipment of SNF from NRC-licensed non-power reactors to
DOE facilities for interim storage because of the lack of a permanent
disposal facility for SNF.
The DOE-managed SNF shipments generally fall into two categories:
classified and non-classified shipments. The classified national
security shipments include rail shipments of naval SNF under the Naval
Nuclear Propulsion Program and highway shipment of classified
materials. The DOE requirements for classified national security
shipments are different from those of the NRC. The DOE conducts
classified shipments of SNF using their Office of Secure Transportation
(OST). The OST shipments are escorted by armed, specially trained
(trained in communications, firearms, tactics, observation, and use of
deadly force) active duty U.S. Navy personnel who maintain 24-hour
surveillance of the SNF shipment. The OST Transportation Emergency
Communications Center monitors, tracks, and provides communication with
every shipment.
The majority of the DOE-managed SNF shipments are non-classified.
These shipments are subject to regulation by DOT, NRC, and State and
local governments, as appropriate. The DOE utilizes commercial carriers
that undertake the DOE-managed shipments under the same terms and
conditions as shipments between commercial nuclear power plants. These
DOE contracted commercial carriers are subject to the same DOT and NRC
requirements that are applied to any comparable commercial shipment of
SNF. The DOE policy for non-classified SNF shipments is found under the
DOE Orders 460.1C, ``Packaging and Transportation Safety,'' and 460.2A,
``Departmental Materials Transportation and Packaging Management.'' The
DOE Manual 460.2-1A (DOE Manual), ``Radioactive Material Transportation
Practices Manual,'' dated June 4, 2008, provides that SNF shipments
from NRC-licensed non-power reactors must comply with the NRC physical
protection requirements in 10 CFR part 73. In addition, it is DOE's
policy to seek NRC approval of the physical protection measures used
for its foreign research reactor SNF shipments.
For shipments from foreign research reactors, and DOE-owned
research and defense reactors, DOE is responsible for stakeholder
interactions, final route approval, and other applicable safeguards and
security requirements. The DOE Manual provides that these shipments
will meet or exceed the requirements prescribed by DOT and NRC for
comparable commercial transportation.
The DOE also has authority to certify packages for domestic
transport of DOE-generated SNF under DOT regulations in 49 CFR
173.7(d). However, this regulation requires DOE-approved packages to
meet the NRC's performance criteria in 10 CFR part 71. As a result, DOE
established a cost-reimbursable agreement with the NRC for the review
of transportation packages for foreign research reactor and naval SNF
shipments.
5. How are the NRC and DOE requirements similar and how are they
different?
As stated in the answer to question 4, given the DOE policy to
``meet or exceed'' the NRC security requirements, the NRC and DOE
requirements are similar for non-classified shipments of DOE SNF.
Similar to the NRC, the DOE organizations are expected to coordinate
with Federal, State, and LLEA regarding SNF shipments, including the
determination of whether these agencies are planning to provide escorts
for shipments. The DOE also expects drivers and escorts to maintain
constant surveillance of the shipment.
One difference between the NRC and DOE requirements deals with the
tracking and monitoring of SNF shipments. The DOE requires the use of
DOE's Transportation Tracking and Communications System (TRANSCOM). In
the final rule, the NRC requires continuous and active monitoring of
SNF shipments, but a particular tracking method is not specified.
Another difference between the NRC and DOE requirements is the
protection of SNF shipment information. For the NRC, information
associated with an SNF shipment (i.e., shipment schedules and security
plans) is protected as Safeguards Information (SGI) as specified by the
requirements of Sec. Sec. 73.21 and 73.22. Although DOE does not have
the designation SGI, the DOE Manual in Section 6.0, Security provides,
``This information may require protection as Safeguards Information
under NRC regulations or as Unclassified Controlled Nuclear Information
or Official Use Only under
[[Page 29523]]
DOE regulations. Unauthorized disclosure of any of the above levels of
information is a violation of the AEA and other legal authorities.'' As
such, DOE directs movement control personnel to use NRC's SGI
protection or comparable DOE security measures for the protection of
SNF shipment information.
6. What are the roles of State and local governments?
State and local officials play an important role in SNF
transportation. States have an important responsibility for enforcing
the DOT highway safety regulations concerning Federal motor carrier
safety and hazardous materials transportation. Highway shipments of SNF
are subject to State inspections. State enforcement officials can stop
and inspect vehicles for compliance with Federal and State
transportation requirements regarding equipment, documentation, and
driver fitness. States can also require carriers to obtain special
permits to operate these vehicles.\1\ State and local governments
assist in route planning and provide LLEA personnel as armed escorts.
The State and local governments are also responsible for providing the
first line of government response to accidents and incidents within
their jurisdiction.
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\1\ National Research Council of the National Academies,
Committee on Transportation of Radioactive Waste, Going the
Distance? The Safe Transport of Spent Nuclear Fuel and High-Level
Radioactive Waste in the United States, 2006, pp. 53-54.
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II. Discussion
A. What action is the NRC taking in this rule?
The NRC is amending its security regulations for the transport of
irradiated reactor fuel. This rulemaking establishes generically
applicable security requirements and performance standards and
objectives for the protection of SNF shipments from theft, diversion,
or radiological sabotage. These new security requirements are similar
to those requirements currently imposed by NRC Order EA-02-109.
Additionally, this rulemaking addresses, in part, a 1999 petition for
rulemaking from the State of Nevada (PRM-73-10) that requests NRC to
strengthen the regulations governing the security of SNF shipments
against malevolent acts.
B. Who will this action affect?
This rule affects NRC licensees that are authorized to transport or
deliver to a carrier to transport SNF. This includes, but is not
limited to, nuclear power plant licensees, non-power reactor licensees,
special nuclear material licensees and ISFSI licensees who transport,
or deliver to a carrier for transport, in a single shipment, a quantity
of irradiated reactor fuel in excess of 100 grams (0.22 lbs) in net
weight of irradiated fuel, exclusive of cladding or other structural or
packaging material, which has a total external radiation dose rate in
excess of 1 Gray (100 rad) per hour at a distance of 1 meter (3.3 feet)
from any accessible surface without intervening shielding.
C. Why revise the requirements?
After the attacks of September 11, 2001, the NRC reevaluated its
security requirements for SNF in transit. From this effort, additional
measures were identified that the NRC determined would enhance the
security of SNF in transit. The NRC issued a series of security orders
requiring affected licensees to implement the security enhancements.
This rulemaking is revising the NRC's regulations in 10 CFR Part 73 to
incorporate and make generically applicable to all licensees shipping
SNF the security requirements in the NRC Orders for SNF in Transit.
These revisions also incorporate additional security requirements
developed as a result of lessons learned from implementing the Order.
The NRC has determined that including these security requirements in
the regulations will enhance regulatory efficiency and effectiveness.
In addition, the rulemaking process provided an opportunity for all
stakeholders to participate in the development of the proposed security
requirements.
D. When will the rule become effective?
The final rule will become effective 90 days after publication in
the Federal Register. The 90 days will provide licensees time to
develop programs and procedures, and conduct training on the new
requirements. Most of the final rule provisions are similar to those
contained in the Orders for SNF in Transit, and existing NRC security
regulations; e.g,. provisions in Sec. Sec. 73.21, 73.22, 73.56, 73.59,
and 73.61. As such, most licensees affected by this rulemaking, (e.g.,
nuclear power plant licensees, non-power reactor licensees, special
nuclear material licensees and ISFSI licensees) have already
incorporated similar requirements into their security programs.
E. Why rescind the orders for SNF in transit?
Imposing long-term requirements through orders has not
traditionally been the Commission's preferred method of regulation.
Orders, unlike rules, do not apply prospectively to applicants for new
licenses. The NRC would have to periodically issue new orders to cover
new and amended licenses, and perhaps reissue orders periodically to
existing licensees if requirements or administrative practices change.
In order to make the requirements generically applicable to all present
and future licensees, the NRC has determined that the security
requirements should be incorporated in the regulations.
The security requirements in the Orders will remain in effect until
licensees are notified in writing that the Orders are rescinded. The
rule incorporates all the requirements which were contained in the
Orders, as well as lessons learned from implementation of the Orders.
Once the rule is effective, the NRC will take steps to rescind the
Orders for SNF in Transit and will provide notice of the rescission to
all NRC licensees subject to the Orders. In addition, the NRC will
publish a notice in the Federal Register, informing the public of the
effective date of the rescission of the Orders. The NRC will also issue
letters to all affected categories of licensees, e.g., nuclear power
plant licensees, non-power reactor licensees, special nuclear material
licensees and ISFSI licensees. The Federal Register notice and licensee
letters will be made publicly available via the NRC's public Web site
and ADAMS.
F. When will the NRC issue guidance on these requirements?
In conjunction with this rulemaking, the NRC is revising NUREG-
0561, which provides general guidance to licensees concerning the
establishment of an acceptable security program for SNF shipments. On
November 3, 2010 (75 FR 67636), the NRC published for public comment a
revision to NUREG-0561. In order to allow the public sufficient time to
review and comment on the draft revision, the NRC extended the comment
period for the draft guidance document from February 11, 2011, until
May 11, 2011. The NRC will publish in the Federal Register a notice of
issuance of the revised NUREG-0561 shortly after the publication of the
final rule.
G. What is requested by the State of Nevada in its petition for
rulemaking (PRM-73-10)?
By a letter dated June 22, 1999, the State of Nevada (the
petitioner) submitted a rulemaking petition (docketed as PRM-73-10)
requesting that the NRC strengthen its regulations for the physical
protection of SNF shipments against radiological sabotage
[[Page 29524]]
and terrorist acts. The NRC published for public comment a notice of
receipt of PRM-73-10 on September 13, 1999 (64 FR 49410). The
Commission review of this petition was tabled following the terrorist
attacks of September 11, 2001.
In PRM-73-10, the State of Nevada requested that the NRC: (1)
Clarify the meaning of the term ``hand-carried equipment'' in Sec.
73.1(a)(1)(i)(D); (2) clarify the definition of the term ``radiological
sabotage'' in Sec. 73.2 to include actions against SNF shipments that
are intended to cause a loss of shielding, release of radioactive
materials or cause economic damage or social disruption, regardless of
the success or failure of the action; (3) amend the advance route
approval requirements in Sec. 73.37(b)(1)(vi) to require shippers and
carriers of SNF to identify primary and alternative routes which avoid
heavily populated areas; (4) require armed escorts along the entire
road shipment route by eliminating the differential based on population
in Sec. 73.37(c); (5) require armed escorts along the entire rail
shipment route by eliminating the differential based on population in
Sec. 73.37(d); (6) amend Sec. 73.37(b) by adopting additional
planning and scheduling requirements for SNF shipments that are similar
to those in Sec. 73.26(b); (7) amend Sec. 73.37(d) to require SNF
rail shipments in dedicated trains; and (8) conduct a comprehensive
assessment of the consequences of terrorist attacks that have the
capability of radiological sabotage.
The NRC addressed PRM-73-10, in part, in ``State of Nevada: Denial
of Portions of Petition for Rulemaking, Consideration of the Remaining
Portions in the Rulemaking Process,'' (74 FR 64012; December 7, 2009),
which denied two requests, 1 and 8, namely, clarification of the
meaning of the term ``hand-carried equipment'' and the conducting of a
comprehensive assessment of the consequences of terrorist attacks that
have the capability of radiological sabotage. The remaining aspects of
the PRM-73-10 are considered and addressed as a part of this
rulemaking. The NRC invited the public to comment on how the NRC
addressed the remaining requests in PRM-73-10. The NRC's handling of
the remaining petition requests, as a part of this rulemaking, and the
public comments associated with these NRC actions are addressed in the
following paragraphs.
General Comments on the NRC's Handling of PRM-73-10 in the Rule:
The comments received generally supported the NRC's handling of
PRM-73-10. In particular, the State of Nevada endorsed how the NRC
addressed its petition in the proposed rule. The State of Nevada
indicated that the provisions of the proposed rule, coupled with other
NRC regulatory changes since 2001, would incorporate all of the
regulatory changes requested in PRM-73-10.
NRC's Response to the General Comments:
The comments expressed overall support of the NRC's handling of
PRM-73-10. The NRC appreciates the general support for its handling of
PRM-73-10. These comments did not require any change in the rule
language.
Request 2 of PRM-73-10: Clarify the definition of the term
``radiological sabotage'' in Sec. 73.2, ``Definitions,'' and amend it
to expressly include ``deliberate actions which cause, or are intended
to cause economic damage or social disruption regardless of the extent
to which public health and safety are actually endangered by exposure
to radiation.'' In the proposed rule, the NRC determined that the
existing definition does not need to be revised. However, the NRC
agrees that clarification may be useful. The NRC proposed addressing
this petition request by clarifying the definition of radiological
sabotage in NUREG-0561, which is the associated regulatory guidance.
Comments on the NRC's Handling of Request 2 of PRM-73-10 in the
Rule:
Two comments were received relative to Request 2 of PRM-73-10.
Nevada indicated that the NRC's clarification of the definition of
radiological sabotage in NUREG/CR-0561 addressed its concerns. A
commenter from the transportation industry (Radioactive Material
Transportation and Storage Consulting (RAMTASC)) indicated that the
State of Nevada's request to redefine radiological sabotage to include
acts intended to cause economic or social disruption would be
problematic. The RAMTASC indicated that the determination of economic
or social disruption is very subjective. The commenter also indicated
that the State of Nevada's ``subject matter experts'' placed
extraordinarily high estimates on economic impacts that have not
received peer review. The RAMTASC also indicated that the Nevada
analysis was not supported by the analyses generated through
Environmental Impact Statements prepared by DOE for the Yucca Mountain
Program, or by studies performed by DOE's National Laboratories. The
commenter concluded by indicating satisfaction with NRC's handling of
Request 2 of PRM-73-10.
NRC's Response to the Request 2 Comments:
The comments expressed satisfaction with the NRC's handling of
Request 2 of PRM-73-10. The comments do not require any change to the
rule language, which is discussed further in Section III, Summary and
Analysis of Public Comments on the Proposed Rule,'' Issue 2 of this
document. However, after further review, the NRC has determined that
the information that was provided in the draft guidance document
relative to the definition needs further clarification for the
following reasons: (1) To emphasize that the definition of
``radiological sabotage'' in 10 CFR 73.2 is not being changed relative
to 10 CFR 73.37 or any other 10 CFR part 73 provisions; and (2) to
ensure that the clarifying language is consistent with the intent of
the rule, which is to establish performance standards and objectives
for the protection of SNF shipments from theft, diversion, or
radiological sabotage.
The previous amendments to 10 CFR 73.37 did not include
requirements for armed escorts throughout the shipment route and did
not specifically address protection of SNF shipments from acts of theft
and diversion which were the deliberate acts that the petitioner
indicated could cause economic or social disruption. The petitioner
indicated that the definition of ``radiological sabotage'' should be
clarified to address ``theft or diversion.'' The PRM-73-10 indicated
that acts of ``theft or diversion'' could lead to economic or social
disruption without the release of radiation if a SNF shipment is moved
from a low populated area to an urban area since armed escorts were not
required in low populated areas.
The deliberate actions which cause, or are intended to cause
economic damage or social disruption'' that were described by the
petitioner have been addressed in this rulemaking. These deliberate
acts are addressed by the inclusion of requirements for the protection
of SNF shipments against theft or diversion including the requirements
for armed escorts throughout the shipment route. Therefore, the
clarifying language in NUREG-0561 does not revise the level of security
required for the protection of SNF in transit. Rather, it recognizes
that, if the current definition of radiological sabotage and the
requirements for the protection of SNF in transit are followed,
economic consequences and social disruptions will likely be minimized.
Request 3 of PRM-73-10: Amend the advance route approval
requirements in Sec. 73.37(b)(7) to ``specifically require shippers
and carriers to identify primary
[[Page 29525]]
and alternative routes which minimize highway and rail shipments
through heavily populated areas.'' The State of Nevada also requested
that the NRC should consider adopting the route selection criteria in
NUREG-0561, as part of its regulations, and specifically require
shippers and carriers to minimize use of routes which fail to comply
with the route selection criteria.
The NRC is addressing the goal of minimizing SNF shipments through
heavily populated areas in this rulemaking. The revisions to Sec.
73.37 require licensees to preplan and coordinate their shipments with
affected States, which is expected to minimize movement of SNF
shipments through heavily populated areas. This issue is discussed in
the following paragraph entitled, ``Why Preplan and Coordinate SNF
Shipments?''
The PRM-73-10 request for the adoption of routing criteria into
NUREG-0561 was considered by the NRC and determined to be not
appropriate. The adoption of the routing criteria into the regulations
could cause potential misunderstandings relative to the roles of the
NRC and DOT. In addition, this action could potentially conflict with
the MOU between DOT and NRC, which is discussed in Section I,
``Background,'' of this document.
Comments on the NRC's Handling of Request 3 of PRM-73-10 in the
Rule:
The NRC received three comments on request 3 of PRM-73-10. The
State of Nevada indicated that the NRC's proposed rule adopted an
approach to routing different from their request. However, the State
believes that the NRC's approach will achieve the primary objective,
``to minimize movement of SNF through heavily populated areas.'' In
addition, the State of Nevada indicated that their concerns about the
security of rail shipments through urban areas were addressed by
regulations enacted in 2008 by the U.S. Department of Homeland
Security's Transportation Security Administration (TSA) (49 CFR Parts
1520 and 1580; 73 FR 72130) and by DOT's Pipeline and Hazardous
Materials Safety Administration (PHMSA) (49 CFR parts 172, 179, and
209; 73 FR 72182). The State of Nevada further elaborated that the new
State preplanning involvement requirements in the NRC's proposed rule,
combined with the requirements for State involvement under the new TSA
and PHMSA rail security regulations, would allow affected States to
address unique local conditions important for physical protection of
shipments along rural routes.
A commenter from RAMTASC indicated that request 3 of PRM-73-10
would be problematic. The commenter indicated that the Nevada request
could conflict with the railroad's responsibilities under the Rail
Safety Improvement Act of 2008, which requires railroads to use
objective data as the basis for selecting rail routes that provide for
the best overall combination of safety and security. The RAMTASC
indicated that specific routing requirements that minimize shipments
through populated areas could lead to shipments being transported on
lower quality rail tracks that would increase the accident risk. The
commenter further elaborated that the trade-off between increasing
security from speculative acts of terrorism by decreasing safety is not
wise. The RAMTASC agreed with the NRC's decision to not incorporate
specific routing requirements into the rule.
A commenter from a State organization (Western Interstate Energy
Board (WIEB)) indicated, relative to Request 3 of PRM-73-10, that they
agreed that the routing criteria in the proposed rule would generally
reduce risk, including the risk of radiological sabotage. However, WIEB
indicated that the criteria may cause conflicts in certain situations.
For example, WIEB indicated, similar to the RAMTASC's comments, that it
may be necessary for SNF rail shipments to go through heavily populated
areas in order to reduce travel time and overall risk to the shipment
because better quality rail track may go through urban areas.
NRC's Response to the Request 3 Comments:
The comments indicated support for the NRC's approach to request 3
of PRM-73-10, minimize movement of SNF through heavily populated areas.
The comments do not require any change to the rule language, which is
further discussed in Section III, ``Summary and Analysis of Public
Comments on the Proposed Rule,'' Issues 17 and 40 of this document.
Requests 4 and 5 of PRM-73-10: The existing regulations in Sec.
73.37(c) and (d) for road and rail shipments, respectively, require
armed escorts in heavily populated areas, but not in other areas along
the route. The PRM-73-10 requested that the NRC eliminate these
differential armed escort requirements based upon population for both
road and rail SNF shipments.
Sections 73.37(c) and (d) were revised to reflect these PRM-73-10
requests. The differentiation of security requirements based upon
population causes potential areas of vulnerability along the shipment
route for theft, diversion, or radiological sabotage. The rule ensures
that the same security requirements apply along the entire route for
road and rail shipments, and at any U.S. ports where vessels carrying
SNF shipments are scheduled to stop.
Comments on the NRC's Handling of Requests 4 and 5 of PRM-73-10 in
the Rule:
Three comments addressed requests 4 and 5 of PRM-73-10. The State
of Nevada agreed that the proposed rule fully addressed their concerns.
A commenter from the RAMTASC indicated that the armed escort
requirement for SNF shipments is already part of most transportation
security plans, and incorporating this change into the proposed rule
``makes sense.'' Another State organization, the Council of State
Governments Midwestern Office (CSG Midwestern), indicated that the
Midwestern States agreed with the decision to require the same security
measures along the entire route rather than have different requirements
for highly populated areas. The commenter further elaborated that the
change will eliminate the likelihood of ``potential areas of
vulnerability along the shipment route for theft, diversion, or
radiological sabotage.''
NRC's Response to the Requests 4 and 5 Comments:
In general, there was overall support from the States and industry
for requiring armed escorts for the entire road and rail route. The
comments do not require any change to the rule language. Specific
comments relative to the inclusion of these new requirements in the
proposed rule are discussed further in Section III, Summary and
Analysis of Public Comments on the Proposed Rule,'' Issue 40 of this
document.
Request 6 of PRM-73-10: Amend Sec. 73.37(b) by adopting additional
planning and scheduling requirements for SNF shipments that are similar
to those for formula quantities of special nuclear material in Sec.
73.26(b). The regulations in Sec. 73.26(b) require that shipments be
scheduled to avoid delays and stops, and to ensure timely delivery of
the shipment. The NRC agrees that improvements are needed in the
planning and coordination of shipments and has addressed this concern
in the rulemaking. This issue is discussed in the following paragraph
titled ``Why Preplan and Coordinate SNF Shipments?''
Comments on the NRC's Handling of Request 6 of PRM-73-10 in the
Rule:
One comment specifically addressed request 6 of PRM-73-10 in the
context of a petition item. The State of Nevada indicated that the
NRC's proposed rule has incorporated the substance of its request by
requiring additional planning
[[Page 29526]]
and scheduling requirements for SNF shipments. The State of Nevada
elaborated that the proposed rule requires licensee preplanning and
coordination with corridor States to ensure minimal shipment delays,
arrange State law enforcement escort arrangements, and coordinate safe
haven locations, requires development of normal operation and
contingency procedures (including responses to actual, attempted, or
suspicious activities), and the training of all shipment personnel so
that they could properly respond to a safety or safeguards event. The
State of Nevada concluded by indicating that the proposed rule fully
addressed their concerns.
NRC's Response to the Request 6 Comments:
Based upon the comment from the State of Nevada, no changes to the
rule language were made. In general, there was strong support from the
States and industry on the inclusion of the preplanning and
coordination requirements in the rule. Specific comments relative to
the preplanning and coordination requirements in the rule are discussed
further in Section III, ``Summary and Analysis of Public Comments on
the Proposed Rule,'' Issues 7 through 21 of this document.
Request 7 of PRM-73-10: Amend Sec. 73.37(d) to require that all
SNF rail shipments be made in dedicated trains. The same NRC security
requirements apply to a SNF rail shipment, regardless of whether the
shipment was made using a dedicated train or a mixed-use train. In
either case, the licensee making the shipment is required to implement
the security measures (both hardware and personnel) contained in the
NRC's regulations during the entire duration of the shipment. The NRC
considers the same level of security will be obtained regardless of
whether the shipment is made in a dedicated train or mixed-use train.
Thus, this item is not addressed as a part of the rule.
Comments on the NRC's Handling of Request 7 of PRM-73-10 in the
Rule:
Five commenters specifically addressed Request 7 of PRM-73-10. The
State of Nevada indicated that developments since 1999 have eliminated
the need for an NRC requirement for mandatory use of dedicated trains.
Nevada indicated that in 2004, the Nuclear Energy Institute (NEI)
issued a statement supporting use of dedicated trains for rail
shipments of SNF, and in 2005, DOE adopted a policy of using dedicated
trains for SNF shipments. The commenter indicated that DOE's 2008
Supplemental Environmental Impact Statement provides that it is DOE's
policy ``to use dedicated trains for most shipments'' to a repository,
and the TSA and PHMSA rail security regulations adopted in 2008
virtually require use of dedicated trains for SNF shipments. The State
of Nevada further elaborated that as of 2010, all rail shipments of
SNF, except DOE shipments of naval reactor SNF, are expected to use
dedicated trains exclusively, and rail carriers may decide to use
dedicated trains for naval SNF shipments. The State of Nevada also
indicated that the new security requirements included in the proposed
rule will make general freight rail shipments of SNF impractical.
A commenter from WIEB indicated that while the NRC does not require
the use of dedicated trains for all rail SNF shipments, it does require
SNF shipments have armed escorts along the entire route, and that
shipments be scheduled to avoid delays and stops (e.g. in
classification yards). The WIEB indicated that the net effect of the
new Sec. 73.37 requirements, in combination with other safety and cost
considerations, is that dedicated trains are required for cross-country
SNF transport. According to the commenter, dedicated trains should be
required in cross-country SNF rail transport. The WIEB elaborated that
a 2006 study of SNF transport published by the National Academies Press
found that ``there are clear operational, safety, security,
communications, planning, programmatic, and public preference
advantages that favor dedicated trains.'' The commenter also indicated
that the committee strongly endorses DOE's decision to transport SNF
and high-level waste to a Federal repository using dedicated trains.
The CSG Midwestern indicated that although the Midwestern States
understand the NRC's rationale for not requiring dedicated trains for
SNF shipments, such a requirement would enhance shipment security. A
commenter from RAMTASC indicated that since the NRC determined that the
same security provisions would be in place regardless of the type of
train service, and both mixed use and dedicated train service would
have the same security requirements, that it was a ``good call'' by the
NRC not to require dedicated trains.
A commenter from the public also agreed that dedicated trains for
SNF rail shipments should not be required. The commenter indicated that
as the NRC reasoned, as long as the same security measures exist for
the single and multi-use trains, then requiring dedicated trains would
simply enhance the logistic and economic cost of transport.
NRC's Response to the Request 7 Comments:
Four out of five of the commenters supported the NRC's approach to
dedicated trains for SNF shipments. The comments do not require any
change to the rule language, which is further discussed in Section III,
``Summary and Analysis of Public Comments on the Proposed Rule,'' Issue
40 of this document.
H. Why require procedures and training for the security of SNF in
transit?
Sections 73.37(b)(3)(v) and (b)(4) require that licensees shipping
SNF develop normal operating and contingency procedures. These
procedures are to cover notifications, communication protocols, loss of
communication and responses to actual, attempted, or suspicious
activities. The revisions also require drivers, accompanying personnel,
railroad personnel and other movement control personnel to be
adequately trained in normal operating and contingency procedures.
These requirements will ensure that all personnel associated with the
shipment are properly trained and prepared to perform their roles and
responsibilities relative to the physical protection of SNF in transit.
These revisions address, in part, Requests 3 and 6 of PRM-73-10.
I. Why require a telemetric position monitoring system or an
alternative tracking system for continuous monitoring of SNF shipments?
The current rule, Sec. 73.37(b)(4), requires that the licensee's
physical protection system include a communications center, which is
staffed continuously by at least one individual who monitors the
progress of the SNF shipment. The revisions reflect the availability of
new technology that can provide licensees more active control over the
shipment. The revisions in Sec. 73.37(b)(3)(i) replace the term
``communications center'' with the term ``movement control center.''
The term ``movement control center'' is used for consistency with
physical protection terminology in other parts of the regulations and
to better define the role and responsibilities of the facility. The
movement control center is defined in Sec. 73.2. Section
73.37(b)(3)(iii) specifies that the movement control center must
monitor the shipment continuously; i.e., from the time of delivery of
the shipment to the carrier for transport until safe delivery of the
shipment at its final destination, and must immediately notify the
appropriate agencies in the event of a safeguards event under the
provisions of Sec. 73.71.
[[Page 29527]]
In addition, Sec. 73.37(c)(5) and 73.37(d)(4), for road and rail
shipments respectively, require movement control centers to use a
telemetric position monitoring system or an alternative tracking system
to monitor the location and status of shipments at all times, which
provides a real time indication of any potential threats. A telemetric
position monitoring system is a data transfer system that captures
information by instrumentation and/or measuring devices about the
location and status of a transport vehicle or package between the
departure and destination locations. The gathering of this information
permits remote monitoring and reporting of the location of a transport
vehicle or package. Radiofrequency identification (RFID) and global
positioning systems (GPS) are examples of telemetric position
monitoring systems. Since the movement control center is required to
respond to any actual, attempted, or suspicious activities, the new
requirements will mitigate the likelihood of theft, diversion, or
radiological sabotage of SNF shipments.
J. Why preplan and coordinate SNF shipments?
The regulations require limited shipment preplanning and
coordination with the NRC, States, and LLEAs. For example Sec.
73.37(f) regulation requires an advance notification to the Governor(s)
or the Governor's designee(s) by mail to be postmarked at least 7 days
before transport of a shipment within or through the State; and
requires a messenger-delivered notification to reach the Office of the
Governor or Governor's designee at least 4 days before transport of a
shipment within or through the State. Some States indicated that the
notification requirements were insufficient to adequately plan for a
SNF shipment. In addition, Sec. 73.37(b)(7) requires licensees to
obtain advance approval from the NRC of the planned road and rail SNF
shipment routes, but did not require prior State coordination of the
route. The revisions will ensure that the affected States have early
and substantial involvement in the management of SNF shipments by
participating in the initial stages of the planning, coordination and
implementation of the shipment.
Section 73.37(b)(1)(iv) requires licensees prior to transport of
SNF within or through a State to preplan and coordinate SNF shipment
information with the Governor(s) or Governor's designee(s) of the
States through which the shipment will transit in order to: (1) Ensure
minimal shipment delays; (2) arrange for State law enforcement escorts;
(3) coordinate movement control information, as needed; (4) coordinate
safe haven locations; and 5) coordinate the shipping route. These
requirements will ensure that no unusual event associated with the
shipment goes unnoticed or unreported. These revisions mitigate the
risk of theft, diversion, or radiological sabotage of a SNF shipment.
These revisions address, in part, Requests 3 and 6 of PRM-73-10.
K. Why require constant visual surveillance by armed escort?
Section 73.37(b)(9) requires constant visual surveillance by an
escort when a shipment is stopped. It does not specify whether the
escort should be armed. The revised Sec. 73.37(b)(3)(vii)(C) will
ensure that when a shipment is stopped, at least one armed escort
maintains constant visual surveillance. The constant surveillance by an
armed escort while a shipment is stopped provides assurance that
attempts by an adversary either to perform radiological sabotage in
place, or to gain control of the transport to move it to another
location are impeded or stopped. Section 73.37(b)(3)(vii)(C) addresses
parked or stopped road shipments, rail shipment stops in marshland, and
docked U.S. waters shipments. It also requires periodic reports of
shipment status to the movement control center by the armed escort.
Section 73.37(b)(3)(vii)(C) provides adequate assurance that SNF
shipments are protected from theft, diversion, or radiological sabotage
when stopped.
L. Why require two-way redundant communication capabilities?
Sections 73.37(c), 73.37(d), and 73.37(e) provide for redundant
communication capabilities; however, the requirements were too
specific, in that the use of citizens band (CB) radios and
radiotelephones were required. In view of the continued advancements in
technology, any specific method of two-way communication cited could
become obsolete in the near future. Instead of specifying an acceptable
communications technology, the revisions describe the performance
characteristics of the communications capabilities. This change gives
licensees the flexibility to determine the best means of meeting the
performance requirement.
Sections 73.37(c)(3), 73.37(d)(3) and 73.37(e)(4) require the
establishment of two-way communication capabilities for the transport
vehicle and escorts to ensure contact between the movement control
center and LLEAs at all times. The revisions also require the
establishment of alternate capabilities for the transport vehicle and
escorts to contact the movement control center. The alternate
communications cannot be subject to the same interference factors as
the primary means. The same interference factors are defined as any two
systems that rely on the same hardware or software to transmit their
signal (e.g., cell tower, proprietary network). These requirements
provide for continued communication between movement control personnel,
which will ensure the prompt reporting of any incident that could lead
to theft, diversion, or radiological sabotage.
M. Why require background investigations?
1. What is the objective of the background investigations requirements
for those with unescorted access and access authorization relative to
SNF in transit?
Section 73.38 is a new section added to the rule that requires
licensees to conduct background investigations of those individuals
being considered for unescorted access or access authorization relative
to SNF in transit. The main objective of the background investigations
is to ensure that those individuals who have unescorted access to SNF
in transit and those individuals who have access to Safeguards
Information relative to the SNF shipment, including, but not limited to
armed escorts, drivers, and movement control personnel, are trustworthy
and reliable and do not constitute an unreasonable risk to the public
health and safety or common defense and security. These background
investigations are similar to those already in place for unescorted
access to a commercial nuclear power reactor in Sec. 73.56(d),
``Background Investigation.''
2. What is the basis for the fingerprinting requirements in the rule?
Section 149 of the AEA requires that any person who is permitted
unescorted access to radioactive materials subject to regulation by the
Commission be fingerprinted for Federal Bureau of Investigation (FBI)
identification and criminal history records check. However, Section 149
also requires that the Commission make a determination that such
radioactive material is of such significance to the public health and
safety or the common defense and security as to warrant fingerprinting
and background checks before the Commission can exercise the authority
provided by Section 149.
[[Page 29528]]
Pursuant to Section 149 of the AEA, the Commission has determined
that the transportation of irradiated fuel (SNF) is of such
significance to the public health and safety or the common defense and
security as to warrant fingerprinting and background checks for those
individuals who have such access to the materials in transit. Persons
who have ``unescorted access'' to this material for purposes of Section
149 are persons accompanying the shipment of SNF during transit who
have direct access and maintain control over the SNF. These persons may
include, but are not limited to, the driver, armed escorts, and
movement control center personnel.
Therefore, under the authority granted by Section 149 of the AEA,
this rule imposes a requirement for fingerprinting as a prerequisite to
granting unescorted access to SNF in transit. The criminal history
records check obtained as a result of that fingerprinting will be used
by licensees as part of the overall background investigation to
determine the trustworthiness and reliability of these individuals
prior to permitting unescorted access.
3. What are the components of a background investigation?
Section 73.38(d) lists the requirements for a background
investigation, including: informed consent, fingerprinting for an FBI
identification and criminal history records check, verification of true
identity, employment history evaluation, verification of education and
military history, credit history evaluation, local criminal history
review, and character and reputation determination.
Under Sec. 73.38(e), it is the licensee's responsibility to make a
trustworthiness and reliability determination of an individual who has
unescorted access or access authorization relative to a SNF shipment.
It is expected that licensees will use their best efforts to obtain the
information required to conduct a background investigation to determine
the individuals' trustworthiness and reliability.
The full credit history evaluation requirement, in Sec.
73.38(d)(6), reflects the NRC's intent that all financial information
available through credit reporting agencies is to be obtained and
evaluated because it has the potential to provide highly pertinent
information. The NRC recognizes that some countries may not have
routinely accepted credit reporting mechanisms, and therefore, the NRC
allows multiple sources of credit history that could potentially
provide information about a foreign national's financial record and
responsibility.
Fingerprinting an individual for an FBI criminal history records
check, as required by Sec. 73.38(d)(3), is an important element of the
background investigation for determining the trustworthiness and
reliability of an individual. It can provide comprehensive information
regarding an individual's recorded criminal activities within the U.S.
and its territories and the individual's known affiliations with
violent gangs or terrorist organizations. In addition, the local
criminal history review, which is required by Sec. 73.38(d)(7),
provides the licensee with a record of local criminal activity that may
adversely impact an individual's trustworthiness and reliability.
It is noted that Sec. 73.38(d)(5)(iv) requires licensees to
document any refusals by outside entities to provide information on an
individual. If local law enforcement, a previous employer, an
educational institution, or any other entity with which the individual
claims to have been engaged fails to provide information or indicates
an inability or unwillingness to provide information in a timely
manner, the licensee is required to document the refusal,
unwillingness, or inability to respond in the record of investigation.
The licensee must also obtain confirmation from at least one alternate
source that has not been previously used. An alternate source could be
another person associated with the entity or institution. For example,
if the human resources department of a company will not verify the
employment history of the individual, an alternate source could be the
individual's supervisor during the claimed period. Section 73.38(d)(10)
is patterned after the requirements of Sec. 73.56(d)(4)(iv).
4. What information should the licensee use to determine that an
individual is trustworthy and reliable?
The licensee will use all of the information gathered during the
background investigation, including the information received from the
FBI, in making a determination that an individual is trustworthy and
reliable. The licensee may not determine that an individual is
trustworthy and reliable and grant them unescorted access to SNF in
transit until all of the information for the background investigation
has been obtained and evaluated. The licensee may deny an individual
unescorted access based on any information obtained at any time during
the background investigation. Section 73.38(e) includes a provision for
licensees to document their determinations of trustworthiness and
reliability. However, as required by section 149c(2)(c) of the AEA, the
licensee may not base a final determination to deny an individual
unescorted access solely on the basis of information received from the
FBI involving: (1) An arrest more than 1 year old for which there is no
information of the disposition of the case; or (2) an arrest that
resulted in dismissal of the charge or an acquittal. If there is no
record on the disposition of the case, it may be that information on a
dismissal or acquittal was not recorded.
5. How frequently would a reinvestigation be required?
The rule includes a provision, Sec. 73.38(h), that requires a
reinvestigation every 10 years to help maintain the integrity of the
program. This reinvestigation requirement is necessary, because an
individual's financial situation or criminal history may change over
time in a manner that can adversely affect his or her trustworthiness
and reliability. The reinvestigation process includes fingerprinting,
FBI identification and criminal history records check, local criminal
history review and credit history check. The reinvestigation does not
include employment verification, education verification, military
history verification, or the character and reputation determination.
6. Are licensees required to protect information obtained during a
background investigation?
Yes. Sections 73.38(f)(1) and (f)(2) will require licensees to
protect the information obtained during a background investigation.
Licensees will only be permitted to disclose the information to the
subject individual, the individual's representative, those who have a
need-to-know to perform their assigned duties to grant or deny
unescorted access, or an authorized representative of the NRC. These
revisions are consistent with the requirements of Sec. 73.57(f).
7. Could a licensee transfer personal information obtained during an
investigation to another licensee?
Yes. Section 73.38(f)(3) includes a provision that a licensee will
be able to transfer background information on an individual to another
licensee if the individual makes a written request to the licensee to
transfer the information contained in his or her file.
[[Page 29529]]
8. Which records are required to be maintained?
Section 73.38(f)(5) requires licensees to retain all fingerprint
and criminal history records received from the FBI, or a copy if the
individual's file has been transferred, for 5 years after the
individual no longer requires unescorted access to SNF in transit.
N. Why enhance shipment notifications to the NRC?
The current regulations in Sec. 73.72(a)(4) require a licensee to
notify the NRC by phone at least 2 days before the shipment commences.
The rule revises Sec. 73.72(a)(4) to require 2 additional
notifications of the NRC, one to be made 2 hours before the shipment
commences, and the other to be made when the shipment reaches its final
destination. These additional notifications allow the NRC to monitor
SNF shipments, and to maximize its readiness in case of a safeguards
event. The notification of shipment completion allows the NRC to resume
normal operations.
To further enhance notification of the NRC, the revision removes
the Sec. 73.72(b) notification exemption for short-duration shipments
of SNF that are transported on public roads. Currently, the
requirements of Sec. 73.72(b) exempt licensees who make a road
shipment or transfer with one-way transit times of one hour or less
between installations of the licensee from providing advance
notification of the shipment to the NRC. The amendment requires that
the NRC be informed of any SNF shipment on a public road so that the
NRC is able to monitor SNF shipments and to maximize its readiness in
case of a safeguards event. These revisions mitigate the risk of theft,
diversion, or radiological sabotage of a shipment.
III. Summary and Analysis of Public Comments on the Proposed Rule
The proposed rule was published on October 13, 2010 (75 FR 62695),
for a 90-day public comment period that was to end on January 11, 2011.
After receiving several requests to extend the comment period, the NRC
published on January 10, 2011 (76 FR 1376), a notice extending the
public comment period until April 11, 2011. The NRC received 17 comment
letters. The commenters included State organizations, licensees,
industry organizations, individuals, and a Federal agency. The
following paragraphs include a summary of the comments received and the
NRC's response to the comments.
Issue 1: General Comments
Ten commenters provided general comments relative to the proposed
rule. In general, there was strong stakeholder support for the rule to
enhance the security of SNF in transit. However, some commenters
supported the rule and offered comments on areas that could be
clarified or improved.
Comment 1: The State of Nevada strongly endorsed the proposed rule.
The commenter indicated that the proposed rule was necessary, because
there have been significant changes in the threat environment, which
affect both current and future SNF shipments. The State of Nevada
stated that the proposed rule reflected realistic assessments of
changes in the threat environment since the terrorist attacks of
September 11, 2001. The State of Nevada elaborated that the proposed
rule was necessary because of the greater understanding, achieved since
1999, of the potentially disastrous consequences of successful acts of
terrorism or sabotage against SNF shipments. The State of Nevada also
indicated that the provisions of the proposed rule, coupled with other
NRC actions since 2001, would incorporate all of the regulatory changes
requested by the State of Nevada in its 1999 petition for rulemaking
(PRM-73-10). The State of Nevada further indicated that their three
requests which were denied--changes to the design basis threat, a
comprehensive assessment of attack consequences, and the mandatory use
of dedicated trains--have been largely satisfied by other developments
subsequent to the events of September 11, 2001.
Comment 2: The Minnesota Homeland Security and Emergency Management
agency (MNHSEM) generally supported the overall rulemaking.
Comment 3: The Michigan State Police Emergency Management &
Homeland Security Division and the Traffic Safety Division (MISP)
supported the general intention of the proposed rule.
Comment 4: The Missouri Department of Natural Resources (MODNR)
commended the NRC for its decision to establish by rule ``acceptable
performance standards and objectives for the protection of SNF
shipments from theft, diversion, or radiological sabotage,'' as the
current regulation solely addresses potential radiological sabotage of
SNF shipments. The commenter indicated that this was an appropriate
post-September 11, 2011, change.
Responses to Comments 1-4: The NRC appreciates the support for the
rulemaking. These comments do not require any change in the rule
language.
Comment 5: The NEI commended the NRC for proactively addressing the
security of SNF transportation and indicated that there were several
positive attributes to the rule. The commenter indicated that through
this rulemaking, the NRC was ensuring a sound and predictable
regulatory framework for the anticipated significant number of future
SNF shipments. However, the commenter indicated that considerable
additional work was needed on the proposed rule, and that the NRC
should take measures to re-propose the rule, including the holding of a
series of public meetings to obtain stakeholder views. The NEI
identified three general areas in which improvements were recommended.
These areas were: (1) To clarify that the design basis threat for
protecting the SNF shipment against malevolent groups is a shared
responsibility between licensees and law enforcement authorities,
especially relative to armed escorts; (2) to clearly delineate the
roles of DOT and NRC in the protection of SNF in transit; and (3) to
clarify that route selection is based upon the performance of a
vulnerability assessment by the NRC. The NEI also recommended that the
NRC convene a series of stakeholder workshops in view of the events at
the Fukushima Daiichi nuclear power plant in Japan. The commenter
further indicated that events at the Japan Fukushima Daiichi nuclear
power plant would increase stakeholder interest relative to the
proposed rule. Nevertheless, the commenter's final general comment was
that the rule's reliance on preplanning and coordination between
entities involved in shipments provides desirable flexibility within
which reactor licensees, common carriers, along with Federal, State and
local authorities, can work together to develop effective plans and
protocols to assure the security of irradiated reactor fuel in transit.
The commenter further indicated that this flexibility should be
preserved in the rule.
Response to Comment 5: The NRC appreciates the comments of support
for this rulemaking. With regards to re-proposing the rule, the NRC
agrees that clarifications and improvements could be made to the
proposed rule. The areas NEI identified as needing clarification have
been incorporated into the final rule, as appropriate, and are
specifically discussed under Issues 7, 8, 10, 13, 20, 27, 29, 32, and
47. The NRC disagrees that these changes are significant
[[Page 29530]]
enough to warrant the re-proposing of the rule as suggested by NEI.
The NRC has taken significant measures to obtain stakeholder views
on this rulemaking and does not believe that a series of stakeholder
workshops is necessary. The NRC has participated in 10 public meetings
and Webinars to ensure stakeholder participation. Two of these meetings
were hosted by NEI. The NRC normally has a 75-day public comment period
for proposed rules, whereas, the comment period for the SNF in transit
proposed rule was 180 days.
In addition, with regard to the assumption that the Japan Fukushima
Daiichi nuclear power plant events would create more interest in the
proposed rulemaking, this assertion is not supported. The tragic events
in Japan began in early March 2011 and the comment period ended on
April 11, 2011. There were not a significant number of comments
received subsequent to the Japan events. In fact, NEI was the only
commenter that mentioned Japan Fukushima Daiichi nuclear power plant
events.
Comment 6: The California Highway Patrol (CHP) supported enhancing
the security requirements that apply to the transportation of SNF and
appreciated the opportunity to comment on the proposed rulemaking
before final implementation. The CHP indicated that updating and
improving the existing regulations is a step in the right direction
since the consequences of this type of shipment falling into the wrong
hands could be devastating to not only California, but to the country
as a whole. The commenter also indicated that the protection of the
public is of the utmost concern to them, and that the safe and secure
shipment of SNF requires coordination and cooperative collaboration
between various Federal, State, and local government agencies. The CHP
further elaborated that it is important for our organizations to work
together to create a safe and secure environment for transportation of
SNF shipments. The commenter also indicated that there are some points
within the proposed rule that it believed warranted further
clarification.
Comment 7: The WIEB indicated that they strongly supported the
purposes of the proposed rule, but had concerns regarding several of
its elements.
Comment 8: The Private Citizen-Hardin supported the proposed rule
updating SNF transportation security requirements and recommended
publication of a final rule subject to comments.
Responses to Comments 6-8: The NRC is responding to the general
statements made by the commenters. The NRC agrees that clarifications
and improvements should be made to the proposed rule and has
incorporated changes into the final rule, as needed. These comments
have been divided into various issues. The CHP's comments are discussed
and addressed under Issues 4, 8, 11, 38 and 53. The WIEB's comments are
discussed and addressed under Issues 19, 20, 32, and 40. The Private
Citizen-Hardin's comments are discussed under Issues 3, 8, 34, 39, 42,
43, 44, 49, and 50.
Comment 9: The RAMTASC stated that they were hopeful that the final
rule would ensure objective security and safety criteria for SNF
shipments, and that it would ensure that political influence on route
selection would be minimized.
Comment 10: Nuclear Infrastructure Council indicated that they were
hopeful that the final revised rule will support increased security
without negative effects on safety, or unnecessary constraints on
industry operations. They were also hopeful that the final rule will
ensure that objective security and safety criteria are used for routing
decisions and that political influence on route selection is minimized.
Responses to Comments 9-10: The NRC agrees that the final rule
would support increased security of SNF in transit. The NRC also agrees
that the rule's provisions, especially those relative to preplanning
and coordination, provides a framework within which licensees, common
carriers, along with Federal, State and local authorities can work
together to develop effective plans and protocols to assure the
security of SNF in transit.
Issue 2: Radiological Sabotage Definition Sec. 73.2
Comment: One commenter from RAMTASC stated that the NRC did not
specifically address economic or social disruption, but did expand the
definition of radiological sabotage to include theft and diversion in
the guidance document for the rule. The commenter indicated that
caution would be needed in the way protection against theft or
diversion of shipments is pursued; that the security role should remain
the province of specially trained security escorts required for all
shipments; and that security response training of other shipment
personnel should be limited to ensuring they understand the authority
and responsibility of the armed escorts and support them as required.
Response: The NRC agrees with this comment and has added clarifying
language to the rule to address these comments. The following
clarifying changes were made: (1) In Sec. 73.37(a)(1)(i), a reference
to the definition of ``armed escort'' in Sec. 73.2 was added; (2) in
Sec. 73.37(b)(3)(i), a reference to the definition of ``movement
control center'' in Sec. 73.2 was added; and (3) in Sec.
73.37(b)(3)(v), the language was revised to clearly indicate that the
transportation security procedures should address the roles and
responsibilities of all personnel involved in the planning, monitoring
and execution of the physical protection of SNF in transit. In
addition, the accompanying guidance document clearly delineates the
roles and responsibilities of all these personnel, especially armed
escorts.
Issue 3: Metric System Sec. 73.37(a)(1)
Comment 1: The State of Nevada supported the revisions of the
section to include both the metric and English units, and the
clarification that the term ``irradiated reactor fuel'' means ``SNF.''
Response to Comment 1: The comment expressed agreement with the
proposed revisions. As such, no change to the rule language is
required.
Comment 2: One commenter (Private Citizen--Hardin) recommended that
the proposed language ``. . . total external radiation dose rate in
excess of 1 Sv (100 rems) per hour at a distance of 0.91 meters (3
feet) from any accessible surface without intervening shielding'' be
changed to ``total external radiation level greater than 1 Gray (100
rad) per hour at a distance of 1 meter (3.28 feet) from any accessible
surface, without regard to any intervening shielding.''
Response to Comment 2: The NRC agrees with this comment and notes
that the International Atomic Energy Agency (IAEA) standard for
physical protection of nuclear material, INFCIRC 225/rev. 5, specifies
a ``radiation level'' in units of Gray/hr (rad/hr) in applying the
self-protecting standard. In order to maintain consistency with the
IAEA, all references to the self-protecting standard will use Gray
(rad) as the units. Additionally, the phrase ``0.91 meters (3 feet)''
has been changed to ``1 meter (3.3 feet).''
Issue 4: Removal of Distinction Between Heavily Populated and Other
Areas Sec. 73.37(a)(1)
Comment: Four comments were received on this issue, three from
State organizations (State of Nevada, CHP, and the CSG Midwestern) and
one from the transportation industry (RAMTASC). There was overall
support from the States and industry for requiring armed escorts for
the entire
[[Page 29531]]
road and rail route. The State of Nevada supported the proposed rule
revisions, which removed the distinction for armed guard requirements
between heavily populated areas and other areas through or across which
a SNF shipment may pass. The State of Nevada agreed that these
revisions would address Requests 4 and 5 of PRM-73-10.
One State commenter (CHP) indicated that the removal of the
distinction between heavily populated areas and other areas would
provide consistency in the level of protection of the shipment for the
entire route. The CSG Midwestern agreed with the decision to require
the same security measures along the entire route rather than have
different requirements for highly populated areas. The State commenter
indicated that the change will eliminate the likelihood of potential
areas of vulnerability along the shipment route for theft, diversion,
or radiological sabotage. A commenter from industry (RAMTASC) indicated
that an armed escort for the entire route was already incorporated in
most SNF shipments plans, and incorporating that change into the rule
was sensible.
Response: The comments expressed agreement with the proposed
revisions. As such, no change to the rule language is required.
Issue 5: Performance Objectives Sec. 73.37(a)(2)
Comment: The State of Nevada supported all aspects of the revisions
to Sec. 73.37(a)(2), ``Performance Objectives.''
Response: The comments expressed agreement with the proposed
revisions. As such, no change to the rule language is required.
Issue 6: Performance Objectives: Recommended Language Sec.
73.37(a)(2)(ii)
Comment: The DOE Naval Reactors Program (DOE NRP) recommended that
the language in proposed Sec. 73.37(a)(2)(ii) be changed to include
the highlighted text and would read as follows: ``Delay and impede
attempts at theft, diversion, or radiological sabotage of SNF shipments
as appropriate considering threat characteristics, shipment
characteristics, and the primary requirement for personnel to provide
for their own safety until adequate response forces arrive.''
Response: To provide clarity, the NRC will strike ``until response
forces arrive'' from Sec. 73.37(a)(2)(ii) and will add language to the
guidance document stating that armed escorts are neither required nor
expected to take offensive action against aggressors (e.g., actively
pursuing and/or apprehending suspected aggressors), but rather are
expected to assume a defensive posture in order to delay and impede
attempts at theft and diversion in addition to attempts at radiological
sabotage of SNF shipments as appropriate, considering threat
characteristics, shipment characteristics, and the primary requirement
for personnel to provide for their own safety. The NRC will also add
language to the guidance document stressing that it is imperative for
armed escorts, drivers or other accompanying personnel to contact
response personnel without delay as soon as they detect a threat to the
shipment or themselves, but not to exceed 15 minutes after discovery.
In addition, in Sec. 73.37(a)(1)(i), a reference to the definition of
``armed escort'' in Sec. 73.2 was added for clarity.
Issue 7: Preplan and Coordinate Sec. Sec. 73.37(b) and (b)(1)
The Commission specifically requested input from the States on the
rule language regarding preplanning and coordination with States on SNF
shipments. Five comments were received on this issue: four from State
organizations and one from the nuclear industry. There was strong
support for inclusion of the preplan and coordinate section in the
rule.
Comment 1: The Illinois Emergency Management Agency (IEMA) thanked
the NRC for its efforts to recognize States as co-regulators in the
transportation of SNF and other high activity shipments. The commenter
indicated that States like Illinois who are active in the regulation of
radioactive material shipments offer practical experience and
background knowledge that will help the NRC with its goal of ensuring
the safe and secure transport of SNF. The commenter applauded the NRC
for their efforts to bring shipment planning to the forefront and for
recognizing that early coordination with States on issues like routing,
identification of safe havens and other important aspects of shipping
is paramount to the success of any SNF campaign.
Comment 2: The CSG Midwestern indicated that States particularly
supported the inclusion of a new section 73.37(b)(1)(iv), requiring
licensees to ``preplan and coordinate shipment information with the
Governor of a State, or the Governor's designee.''
Comment 3: The MODNR stated that it supported inclusion of a new
section 73.37(b)(1)(iv), which requires licensees to ``preplan and
coordinate shipment information with the Governor of a State, or the
Governor's designee.'' The commenter indicated that this requirement
provides the mandate needed for licensees to discuss sensitive
information with State and local officials, planners, and emergency
responders who play a role in the safe and secure shipment of SNF
through their jurisdictions.
Comment 4: The State of Nevada specifically endorsed the
requirements for licensees to preplan and coordinate SNF shipments with
States. The commenter supported the intended goal of the proposed
amendments, which is to ensure that States have early and substantial
involvement in the management of SNF shipments by participating in the
initial stages of the planning, coordination, and implementation of the
shipments.
Comment 5: One commenter from the nuclear industry, NEI, indicated
that the rule's reliance on preplanning and coordination between
entities involved in shipments, provides desirable flexibility within
which reactor licensees, common carriers, along with Federal, State and
local authorities, can work together to develop effective plans and
protocols to assure the security of irradiated reactor fuel in transit.
The commenter further indicated that this flexibility should be
preserved in the rule.
Response to Comments 1-5: The comments expressed agreement with the
proposed revisions. As such, no change to the rule language is
required.
Issue 8: Deadly Force Training Sec. 73.37(b)(1)(i)
Comment 1: The NEI indicated that a Federal use-of-force law needs
to be implemented, as State statutes vary greatly. The commenter also
indicated that it is not reasonable to train armed escorts to legal
requirements in each jurisdiction through which a shipment passes when
those requirements may vary.
Response to Comment 1: The NRC recognizes that State laws on the
use of force are not uniform and that there is no Federal statute that
explicitly governs the use of force by NRC licensees. However, the
diverse laws provide adequate authority for armed escorts to act
effectively, including the use of necessary force. In order to comply
with these diverse Federal and State laws, licensees are responsible
for training their armed escorts on the legal requirements regarding
the use of necessary force.
The NRC disagrees that it is unreasonable for armed escorts to be
trained in the use of deadly force laws in each applicable
jurisdiction. The new
[[Page 29532]]
requirements enable licensees to preplan and coordinate shipments, and
properly train non-LLEA escorts. The NEI commented that the rule's
reliance on preplanning and coordination between entities involved in
shipments, provides desirable flexibility within which reactor
licensees, common carriers, along with Federal, State and local
authorities, can work together to develop effective plans and protocols
to assure the security of irradiated reactor fuel in transit. The NRC
is confident that early preplanning and coordination with States will
enable licenses to know well in advance which State(s) are not
providing LLEA escorts, and to ensure non-LLEA armed escorts are
available and properly trained in the deadly force laws of those
jurisdictions. Non-LLEA armed escorts will only have to be trained on
particular State laws when a State is not providing LLEA personnel as
armed escorts of the shipment crossing its boundary, and the licensee
will be made fully aware of this during preplanning and coordination
with State and/or local authorities.
Comment 2: The NEI indicated that it was unclear whether the armed
escorts provided by the licensee or LLEA are considered Hazmat
Employees (49 CFR 171.8) and require DOT training (49 CFR Part 172,
Subpart H) including Sec. 172.704(a)(5), ``In-depth security
training.'' The commenter further indicated that this issue can only be
addressed if there is a clear understanding of the roles and
responsibilities of all involved in the shipment which, in turn,
requires careful coordination between licensees, shippers, Federal, and
State authorities.
Response to Comment 2: The NRC is not responsible for interpreting
DOT regulations. The commenter may wish to consult with the DOT for
further clarification on whether an armed escort is considered a hazmat
employee.
The NRC agrees with the comments concerning the need for a clear
understanding of the roles and responsibilities of all involved in the
shipment. As such, as discussed under Issue 2, the following clarifying
changes were made: (1) In Sec. 73.37(a)(1)(i), a reference to the
definition of ``armed escort'' in Sec. 73.2 was added; (2) in Sec.
73.37(b)(3)(i), a reference to the definition of ``movement control
center'' in Sec. 73.2 was added; and (3) in Sec. 73.37(b)(3)(v), the
language was revised to clearly indicate that the transportation
security procedures should address the roles and responsibilities of
all personnel involved in the planning, monitoring and execution of the
physical protection of SNF in transit. In addition, the accompanying
guidance document clearly delineates the roles and responsibilities of
all of these personnel, especially armed escorts.
Comment 3: A commenter (Private Citizen-No name) raised concerns
about the Sec. 73.37(b)(1) provisions that will require non-LLEA armed
escorts to be instructed on the use of deadly force compatible with
State and local laws and to complete a training program. The commenter
suggested that implementation of this provision would be enhanced if
the NRC would compile a digest of State laws concerning the use of
force and the transportation of SNF, and require guards to pass a
written test based on that information.
Response to Comment 3: As a part of preplanning and coordination
with States, licensees will be apprised of whether the State will be
providing LLEA personnel as escorts of the shipment. In the event the
State(s) will not be providing LLEA personnel to escort the shipment,
the licensee will have sufficient time to plan for obtaining private
armed escorts and to ensure they are properly trained. This is
especially important because States routinely revise and update their
laws. Therefore, it would not be appropriate for the NRC to compile a
digest of State laws concerning the use of deadly force and the
transportation of SNF, and require armed escorts to pass a written test
based on that information. The burden is on the licensee to ensure that
the training requirements in Sec. 73.37(b)(1)(i) are satisfied. The
licensee is responsible for developing a training program to ensure
that armed escorts are knowledgeable about the applicable laws that
apply regarding the use of deadly force when providing physical
protection of SNF in transit.
Comment 4: One commenter from a State organization (CHP) indicated
that non-LLEA armed escorts are required to be knowledgeable of the
statutes on deadly force for the States the shipment will pass through,
which is consistent with the legal requirements of other private armed
guards in State and local jurisdictions. The commenter further
indicated that the training requirements for these non-LLEA armed
guards covered in Appendix D to 10 CFR Part 73, are generic in nature,
and do not address the State and local deadly force requirements for
each jurisdiction the SNF shipment will potentially pass through.
One commenter from a State organization (CSG Midwestern) suggested
that Sec. 73.37(b)(1)(iv) be expanded to include a new part E:
``Confirm information on State statutes applicable to private armed
guards, including the use of deadly force.'' The commenter indicated
that this section was needed to require licensees to ensure that armed
guards are knowledgeable of the Federal and State deadly force
statutes.
Response to Comment 4: An additional provision relative to State
and local deadly force requirements is unnecessary, since there is
already a requirement for licensees to ensure that their armed escorts
are trained in the proper use of force. Section 73.37(b)(1)(i) requires
licensees to ensure that each armed escort (with the exception of LLEA
personnel) is instructed on the use of force sufficient to counter the
force directed at that person, including the use of deadly force. As
such, licensees are responsible for assuring accurate information is
provided on all applicable laws, including those laws dealing with the
use of deadly force. Licensees are required to comply with the training
requirements in Appendix D of 10 CFR Part 73. Appendix D specifically
states that licensees are required to assure that armed individuals
serving as shipment escorts, other than members of LLEAs, have
completed a weapons training and qualifications program equivalent to
that required of guards, as described in sections III and IV of
Appendix B of 10 CFR Part 73. These training requirements ensure that
each such individual is fully qualified to use weapons assigned to him
or her.
Issue 9: Coordination Between Non-LLEA and LLEA Armed Escorts Sec.
73.37(b)(1)(i)
Comment: One commenter (Private Citizen-No Name) expressed concern
that there is a possibility that a mixed set of armed escorts (some
LLEA personnel and some non-LLEA) could be tasked with protecting the
SNF shipments at the same time, which could result in different members
of the escort group operating under different understandings about what
the State law on use of deadly force allows. The commenter stated that
this may create confusion if the transport is attacked. The commenter
suggested that information should be added to the rule to facilitate
coordination between LLEA and non-LLEA armed escorts. The commenter
recommended that, along with the advance notice provided to the State
of an impending shipment, the licensee could include a memo summarizing
the applicable laws of which they are aware, describing how they
interpret these laws, and certifying that they have instructed non-LLEA
armed escorts according to the guidelines in the document.
[[Page 29533]]
Response: The licensee is responsible for ensuring that shipments
of SNF are properly escorted. Operating history indicates that there
has never been a mix of LLEA personnel and non-LLEA armed escorts
accompanying an SNF shipment at the same time. In the event that such a
circumstance were to occur, the licensee is already responsible for
ensuring that the armed escorts properly carry out their
responsibilities. The licensee is free to choose the manner that it
feels best achieves coordination between LLEA personnel and non-LLEA
armed escorts to ensure that shipments of SNF are properly escorted.
The NRC anticipates that planning and coordination with LLEAs will
provide the opportunity to clarify roles and responsibilities and
address any concerns or issues that either the licensee or the LLEAs
might have.
Issue 10: No Technical Basis for Deadly Force/Design Basis Threat Sec.
73.37(b)(1)(i)
Comment: One commenter (DOE NRP) expressed concern that the NRC
requirement for escorts to delay or impede attempted acts of theft,
diversion, or radiological sabotage could be interpreted as requiring
escorts to assume an offensive combatant role and aggressively defend
the shipment, regardless of the characteristics of the threat or the
shipment and regardless of the threat to the escorts' safety. The
commenter went on to say that they believe this interpretation would be
inappropriate in consideration of the minimal risk to public health and
safety from attempted acts of theft, diversion, or radiological
sabotage of robust Type B SNF shipping containers in comparison to the
risk to escort personnel whose standing orders require proactive
engagement of any suspected security threats; and that the risk to the
escorts and response forces could quickly become much greater than the
risk to public health and safety, owing to the safety inherent to Type
B SNF containers. The commenter also stated that they had evaluated the
risks associated with transportation of naval SNF in two Environmental
Impact Statements; that the statements used well established
transportation impact analysis methodology, and they included specific
evaluations of the potential impacts of terrorist attacks using shaped
charge weapons. The statements concluded that the impacts associated
with terrorist attacks are bounded, with significant margin, by the
impacts of transportation accidents. Another commenter (NEI) stated
that the Design Basis Threat (DBT) needs to be clearly defined to
ensure that armed escorts are adequately able to counter the force
directed at them; that what is proposed currently does not address this
need; and that the definition of the DBT should recognize that the
protection against malevolent groups is a shared responsibility between
licensees and law enforcement authorities.
Response: The requirements placed on armed escorts are consistent
with the definitions for ``armed escort'' and ``armed response
personnel'' found in Sec. 73.2 and are similar to language found
elsewhere in 10 CFR part 73. Armed escorts are neither required nor
expected to take offensive action against aggressors (e.g., actively
pursuing and/or apprehending suspected aggressors). Rather, armed
escorts are expected to assume a defensive posture in order to delay
and impede attempts at theft and diversion in addition to attempts at
radiological sabotage of SNF shipments. The NRC does not disagree with
the commenter's conclusions with respect to the impact of terrorist
attacks on shipments of naval SNF. However, due to the differences in
design and radionuclide composition between naval SNF and commercial
SNF (the latter of which is the subject of this rule), it is not
relevant to use the results of studies on naval SNF to justify physical
protection placed on transportation of commercial SNF. Due to national
security considerations, these differences cannot be discussed further
in this public forum.
The NRC does not agree that the protection of shipments of SNF is a
shared responsibility between licensees and law enforcement
authorities. Licensees are responsible for ensuring the safety of
shipments of SNF. In carrying out this responsibility, licensees must
preplan and coordinate shipments of SNF, which may include arrangements
with local law enforcement agencies for their response to an emergency
or a call for assistance along the route or escorting the shipment.
Both the current rule and the proposed rule provide for the armed
escort role to be filled either by private security personnel procured
by the licensee or local law enforcement personnel. The escort
responsibility is not ``shared'' as suggested by the commenter.
Issue 11: Definition of ``LLEA'' Sec. 73.37(b)(1)(i)
Comment 1: The commenter from a State organization (CHP) indicated
that the section exempts LLEA personnel from the armed escort training
requirements because they should have received sufficient training on
the Federal and State restrictions regarding the use of deadly force.
However, the term ``LLEA'' is not defined to clarify the inclusion of
county and State agencies, such as the CHP, in the exemption.
Response to Comment 1: The NRC has defined ``LLEA'', in NUREG-0561,
``Physical Protection of Shipments of Irradiated Reactor Fuel.''
Consistent with that definition, ``LLEA'' shall mean any State, county
or municipal agency that has law enforcement authority within the
locality or jurisdiction through which the shipment of SNF may pass.
The term is usually limited to the particular law enforcement agencies
that have responsibility for responding to calls for assistance by
escorts, such as county or municipal police forces, port authority
police, or highway patrol. An escort is a person with similar duties to
that of an ``armed escort,'' as defined in Sec. 73.2, but who may or
may not be armed. If unarmed, the escort is not expected to actively
prevent or impede acts of radiological sabotage when met by armed
adversaries. As such, the CHP and similar organizations are included in
the definition of ``LLEA''.
Comment 2: One commenter from a State organization (CHP) indicated
that the proposed rule should clarify the training requirements for any
accredited law enforcement agency at the Federal, State, or local
level.
Response to Comment 2: The NRC disagrees that clarification is
needed to address the training requirements for LLEA personnel. The NRC
understands that all accredited law enforcement training programs
provide instructions on the appropriate use of force, including deadly
force. It is NRC's position that members of LLEAs are exempt from the
training requirements set forth in Appendix D to 10 CFR Part 73. The
NRC anticipates that planning and coordination with LLEAs will provide
the opportunity to clarify roles and responsibilities and address any
concerns or issues that either the licensee or the LLEAs might have.
Issue 13: Certification of Transfer Sec. 73.37(b)(1)(iii)
Comment: A commenter from the nuclear industry (NEI) indicated that
the regulation as proposed leaves it up to the preplanning activities
to define the type of written certification required. The commenter
indicated that this was another positive example of the flexibility of
the proposed rulemaking.
Response: The comments expressed agreement with the proposed
revisions. As such, no changes to the rule language is required.
[[Page 29534]]
Issue 14: Preplanning With States Sec. 73.37(b)(1)(iv)
Comment 1: Two commenters from State organizations (CSG Midwestern
and MODNR) recommended that adding a minimum timeframe for preplanning
and coordinating shipments with States would be helpful to ensure that
States have early and substantial involvement in the management of SNF
shipments.
Response to Comment 1: The NRC agrees that a minimum timeframe for
preplanning and coordinating shipments with States would be helpful.
The rule text and the guidance document were changed to recommend that
States be contacted for preplanning purposes no later than 2 weeks
prior to a shipment or prior to the first shipment in a series of
shipments.
Comment 2: Two commenters from State organizations (CSG Midwestern
and MODNR) recommended that preplanning and coordination include
offsite response teams (e.g., hazmat teams).
Response to Comment 2: The NRC does not agree with the
recommendation to add hazmat teams in the preplanning and coordination
activities. The NRC and DOT have strict requirements that licensees and
carriers must follow to ensure the safe transport of SNF. The NRC does
not have regulatory authority to require the DOT to include hazmat
teams in licensee security preplanning and coordination efforts.
Issue 15: Delays and Stops Sec. 73.37(b)(1)(iv)(A)
Comment: Three comments from State organizations (IEMA, CSG
Midwestern and MODNR) expressed concern that the emphasis in the
proposed rule on minimizing stops and delays will lead shippers and
carriers to believe they can use this requirement to avoid State
mandated inspections and that it may also impact negotiations for
stopping points during the planning phase. Two commenters (IEMA and CSG
Midwestern) requested that the NRC encourage State participation in the
Commercial Vehicle Safety Alliance (CVSA) North American inspection
standard and process for highway shipments of SNF as a way to reduce
the time necessary for stops at State borders, and that the NRC should,
therefore, engage with the States and other Federal agencies to
establish a reciprocal inspection program for rail shipments. One
commenter (MODNR) suggested the addition of language that clarifies
that the purpose of minimizing stops and delays is not to eliminate
inspections by the various States. The commenter further requested that
the proposed rule and guidance document clarify that the language
``minimize intermediate stops and delays'' should allow for inspections
by the States at the first secure location upon entry into the State by
road, or at an appropriate predetermined location for rail shipments.
Response: Licensees that ship SNF by highway or rail must abide by
all applicable Federal and State requirements, including requirements
imposed by DOT. Neither the rule nor the guidance document grants
licensees the authority to bypass mandatory State or Federal
inspections. The request that the NRC encourage State participation in
the CVSA inspection standard and process is outside the scope of this
rulemaking.
Issue 16: Arrange for Positional Information Sharing When Requested
Sec. 73.37(b)(1)(iv)(C)
Comment: One commenter (CSG Midwestern) asked if the NRC intended
for licensees to use a telemetric position monitoring system that is
accessible to the States and the NRC.
Response: The NRC does not require licensees to use a telemetric
position monitoring system that is accessible to the States and the
NRC. During the preplanning and coordination phase of a shipment,
licensees are required to discuss with the Governor, or the Governor's
designee, of each State through which the shipment will pass, an
arrangement for sharing positional information about a shipment when
requested by a State. If positional information is requested by a State
along the route, the licensee should coordinate with the State as to
the frequency and method for providing such information as a part of
the preplanning and coordination activities.
Issue 17: Safe Havens Sec. Sec. 73.37(b)(1)(iv)(D) and
73.37(b)(1)(vi)(A)
Comment: Two comments (CSG Midwestern and IEMA) were related to
safe havens. One comment (IEMA) requested clarification with respect to
who has the final determination regarding the location of safe havens,
indicating that States should have the final determination on the
location of safe havens within its borders, as the State has the best
working knowledge of its infrastructure, emergency response
coordination and local law enforcement capabilities. Another comment
(CSG Midwestern) expressed concern that the requirement for licensees
to ``develop route information, including the identification of safe
havens'' does not sufficiently capture the intent of ``minimizing
movement . . . through heavily populated areas'' and recommended that
the guidance document be revised so that licensees understand that
preplanning and coordinating with States on route selection is intended
to keep shipments out of heavily populated areas.
Response: The NRC agrees that each State has the best working
knowledge of its infrastructure, emergency response coordination and
local law enforcement capabilities within its borders. However, the
identification of acceptable safe havens along a proposed shipment
route is the responsibility of the licensee, who should preplan and
coordinate the safe havens in conjunction with the States during the
route planning phase. In addition, depending on the departure and
arrival destinations of a shipment, highway construction along the
preplanned route, detours, etc., it is not always possible for shipment
routes to completely avoid heavily populated areas. However, the
guidance document was amended to include the concept of minimizing
movement through heavily populated areas as much as practicable.
Issue 18: Shortest Route Sec. 73.37(b)(1)(v)
Comment: One comment (MNHSEM) recommended that the rule language be
strengthened to ensure licensees are required to preplan and coordinate
with State, local, and Tribal agencies well in advance of any
shipments, to ensure that the shortest most direct route is used for
all shipments and to prohibit the avoidance of States that impose fees
for transportation of radioactive materials.
Response: The NRC agrees that licensees should preplan and
coordinate with State Governors or the Governor's designee in advance
of any shipments and that the shortest most direct route should be used
for all shipments when feasible. However, depending on the departure
and arrival destinations of a shipment, highway construction along the
preplanned route, detours, etc., it is not always possible for shipment
routes to travel the shortest and most direct route. The preplan and
coordinate requirements are sufficiently flexible to address these
issues.
The NRC also agrees with the statement that the rule could be
strengthened to ensure that licensees preplan and coordinate. The rule
text and guidance document were changed to recommend that States be
contacted for preplanning purposes no later than 2 weeks prior to a
shipment or prior to the first shipment in a series of shipments.
[[Page 29535]]
In terms of the notification of Tribal agencies, this issue was
addressed as a part of a separate rulemaking entitled, ``Advance
Notification to Native American Tribes of Transport of Certain Types of
Nuclear Waste,'' which was approved by the Commission on January 30,
2012, and was published as a final rule on June 11, 2012 (77 FR 34194).
Therefore, this portion of the comment is outside the scope of this
rulemaking.
Issue 19: Arrangements With LLEA Sec. 73.37(b)(1)(v)
Comment 1: One comment (University of Missouri Research Reactor
(MURR)) indicated that advance arrangements for response by LLEA to an
emergency or a call for assistance during the shipment are typically
made through the State Governor's Designees and not individually with
local entities, and recommended adding State Governor's Designees as an
option for arranging emergency response.
Response to Comment 1: The NRC agrees with these comments. The
guidance document was changed by adding the State Governor's Designee
as an option for arranging emergency response.
Comment 2: Another comment (CSG Midwestern) recommended adding
``security-related emergency,'' to Sec. 73.37(b)(1)(v) to avoid
confusion with other emergencies that would require the assistance of
emergency response authorities in the States.
Response to Comment 2: The NRC agrees with these comments. Section
73.37(b)(1)(v) was revised to insert ``security-related'' before
``emergency.''
Issue 20: NRC Route Approval Sec. 73.37(b)(1)(vi)
Comment 1: A commenter from NEI indicated that the proposed rule
needs to clearly delineate the relationship between the roles of NRC
and DOT in the protection of SNF in transit; that it is important that
the NRC not make new requirements that could potentially conflict with
DOT responsibilities concerning approval of routes; and that the
proposed rule's ability to appropriately address the selection of
shipping routes would be significantly enhanced by specifying route
selection based on a vulnerability assessment.
Response to Comment 1: The NRC agrees with this comment. The
discussion in the final rule on the NRC's and DOT's responsibilities
was revised to provide clarification.
Comment 2: A commenter from WIEB agreed that the NRC routing
criteria in the proposed rule would generally reduce risk, including
the risk of radiological sabotage. However, WIEB indicated that the
criteria may cause conflicts in certain situations. For example, WIEB
indicated that it may be necessary for SNF rail shipments to go through
heavily populated areas in order to reduce travel time and overall risk
to the shipment because better quality rail track may go through urban
areas. The commenter further elaborated that given the conflicts of
criteria and the lack of relevant information, the NRC may not be able
to pre-approve rail routes. The WIEB indicated that the NRC would not
have all the relevant information and the tools needed to apply the
criteria and resolve the conflicts. The commenter suggested that a
better approach may be to specify the criteria that generally improve
safety and reduce the risk of theft, diversion and radiological
sabotage, but then to empower licensees or DOE, in consultation with
States, to apply the criteria to particular shipments or shipment
campaigns, using state-of-the-art assessment tools and information
resources.
The WIEB also expressed concern that the implementation of DOT
rules on rail route selection would not allow the NRC to pre-approve
rail routes and does not support shipment preplanning in coordination
with the NRC, States and LLEAs. The commenter stated that DOT rules
must be revised as they apply to rail transport of SNF; that the
current DOT's FRA process should be made available for review and
critique by the NRC and States; and that if suitable revisions are not
forthcoming, DOT's FRA process, as it applies to SNF/high level waste
transport, should be revised. The WIEB commenter also expressed concern
that since 10 CFR Part 73 would not apply to DOE shipments under the
Nuclear Waste Policy Act of 1982 (NWPA), a significant gap in security
regulation exists for what potentially would be by far the largest
number of prospective shipments in the future.
Response to Comment 2: The NRC does not agree with these comments.
The NRC conducted significant outreach and coordination with DOT in the
development of this rule. As long as there is coordination among the
licensee, the commercial carrier and the States of passage, the NRC has
determined that SNF shipment primary and alternate routes for highway
and rail can be developed that satisfy both DOT and the NRC
requirements and guidelines. Ultimately, it is the responsibility of
the licensee to ensure that both DOT and the NRC route selection
criteria requirements are met, as is explicitly stated in the guidance
document and as required by Sec. 71.5. In addition, licensees should
weigh the criteria for route selection contained in the rule and the
guidance document against actual route conditions both during the
development of the route and prior to using the route, especially if
there is a long delay between approval and usage. Any perceived
conflicts in the criteria will be discussed with the licensee and
resolved during the NRC's route approval process. The NRC recognizes
that licensees will have to work closely with rail carriers in the
development of proposed rail routes for SNF shipments. In fact,
licensees will rely heavily on rail carriers' knowledge and expertise
during this process. Licensees will still be expected to apply the
selection criteria as it applies to rail routes. Discussions on the
suitability of and possible revisions to DOT rules for rail route
selection criteria and discussions on the security of DOE shipments and
NWPA are beyond the scope of this rulemaking.
Issue 21: Documenting Preplanning and Coordination Sec.
73.37(b)(1)(vii)
Comment: One commenter (CSG Midwestern) expressed concern about the
requirement for licensees to ``document the preplanning and
coordination activities'' (Sec. 73.37(b)(1)(vii)), stating that the
proposed rule does not adequately convey the type of documentation
expected, nor does the guidance document provide sufficient information
to help a licensee understand what type of actions are expected and
when. The commenter suggested adding examples of what constitutes
``acceptable documentation,'' including but not limited to timelines
for outreach to States (e.g., meetings, teleconferences), summaries of
planning meeting discussions, and lists of people contacted.
Response: The NRC agrees with this comment. Examples of acceptable
documentation were added to the guidance document.
Issue 22: Advance Notification Receipt by Governor Sec. 73.37(b)(2)
Comment 1: The State of Nevada supported the proposed rule
revisions in Sec. 73.37(b)(2) regarding advance notification
information for State Governors and Governors' designees.
Response to Comment 1: The comments expressed agreement with the
proposed revisions. As such, no change to the rule language is
required.
Comment 2: The CSG Midwestern indicated that it was understandable
why the NRC changed the wording to specify that licensees are required
to
[[Page 29536]]
provide advance notification ``prior to the shipment of SNF outside the
confines of the licensee's facility or other place of use or storage.''
The commenter indicated that the revised wording, however, leaves out
an important reference to ``the transport of SNF within or through a
State,'' which should be reinserted in the rule text and in the
guidance document. The commenter further elaborated that absent this
language in the rule text and guidance document, licensees could
interpret this section as requiring notification only to the Governor
or Governor's Designee of the State in which ``the licensee's facility
or other place of use or storage'' is located.
Response to Comment 2: The NRC agrees with this comment. The rule
text and guidance document were revised to include the wording that was
inadvertently omitted.
Comment 3: One commenter (IEMA) requested that the NRC reconsider
the existing time line for advance notification to the States. The
commenter recommended that the advanced notification to the States
should be postmarked at least 10 days prior to the commencement of a
shipment and arrive on the Governor's or his/her designees' desk a
minimum of 7 days before a shipment is scheduled to depart. Another
commenter (MODNR) requested a change to the advance notification
provision so that notifications to the States and NRC, regardless of
the delivery mode, should be received 10 days prior to the shipment.
Both commenters indicated that the additional time would reduce the
coordination and staffing burden on States and provide an additional
``cushion'' for State agencies tasked with providing safeguards
communications to other State agencies with a need-to-know or who may
be participating in inspection or security operations.
Response to Comment 3: The NRC agrees with the comments suggesting
that a minimum 10-day notification to the Governor or his/her designee
for notifications by mail. The rule text and guidance document were
changed to provide that the advance notification by mail to the
Governor or Governor's designee should be postmarked at least 10 days
prior to the commencement of a shipment. With regard to the comment
that all other delivery methods also are given 10 days for receipt by
the State, the NRC does not agree with this comment fully. However, in
the rule text and guidance document, the minimum timeframe for all
other modes of delivery of the notification was increased from 4 days
to 7 days for arrival to the Governor or the Governor's designee.
Comment 4: One commenter (CSG Midwestern) noted that Sec. 73.37(f)
would require licensees to immediately conduct an investigation of a
shipment that is lost or unaccounted for after the designated no-later-
than arrival time in the advance notification. The commenter also noted
that the section on advance notification (Sec. 73.37(b)(2)), however,
does not refer to a ``designated no-later-than arrival time,'' and that
if the ``estimated date and time of arrival of the shipment at the
destination'' in Sec. 73.37(b)(2)(iii)(C) is intended to be the
``designated no-later-than arrival time,'' it should be so stated.
Response to Comment 4: The NRC does not agree with this statement.
The only arrival time mentioned in Sec. 73.37(b)(2) is the estimated
time of arrival; we consider this to be synonymous with the no-later-
than-arrival time referred to in Sec. 73.37(f).
Issue 23: Advance Notification Postponement and Cancellation Sec.
73.37(b)(2)(iv)
Comment: Two comments (IEMA and CSG Midwestern) were received on
the requirements for revisions and cancellation notices for SNF. The
commenters noted that allowing licensees open ended delays or an
unlimited number of revisions prior to cancelling a shipment impacts a
State's ability to adequately manage its resources to complete the
inspections required by DOT and provide escorts on a timely basis.
Response: Section 73.37(b)(1)(iv) of the rule requires NRC
licensees to preplan and coordinate shipments with States. The purpose
of preplanning and coordinating shipments is to allow States to
allocate their resources in an efficient manner. Preplanning and
coordination could be used to eliminate or make States aware of
potential shipment delays on a schedule that would allow States time to
efficiently deploy or redeploy its resources. It is anticipated that
States would share ``best practices'' acquired during the preplanning
and coordination of shipments among States and with NRC licensees to
encourage shipment practices that might minimize delays and unnecessary
stops as shipments transit multiple States. Section 73.37(b)(1)(iv)
allows flexibility for both States and licensees to plan shipments to
occur within a specific shipment window, with the mutual understanding
that shipments delayed beyond that window would need additional
coordination or planning. The NRC believes that the issue of the
multiple delays should be addressed through the preplanning and
coordination process.
Issue 24: Advance Notification Cancellation Notice Sec. 73.37(b)(2)(v)
Comment: Two comments (MISP and CSG Midwestern) were received on
the requirement to send shipment cancellation notices to the Governor
or the Governor's designee. One comment (MISP) requested that the
notification process and detail be specified (i.e., how the
notification is to be delivered, time line (pre-event or post-event),
information to be conveyed (reasons for cancellation), rescheduling (if
known), etc.). The CSG Midwestern also requested that the cancellation
notice requirement include the words ``as soon as possible'' or similar
language so that licensees will understand the sense of urgency that
cancellation notices must be timely in order to avoid situations in
which State resources are committed unnecessarily.
Response: The NRC agrees with these comments. The guidance document
will be changed to provide specific information relative to
implementing this requirement.
Issue 25: Transportation Physical Protection System General Sec.
73.37(b)(3)
Comment 1: The State of Nevada fully supported the new requirements
in the proposed transportation physical protection in Sec.
73.37(b)(3).
Response to Comment 1: The comments expressed agreement with the
proposed revisions. As such, no change to the rule language is
required.
Comment 2: The DOE NRP supported the following rule requirements
relative to armed escorts: (1) They should be properly vetted for
access authorization; (2) they should maintain continuous surveillance
of the shipment; (3) they should be independent of the carrier's
organization; and (4) they should have multiple communications
capabilities to call for help in response to suspicious activity by
anyone, including carrier personnel. The commenter indicated that
escorts for naval reactor SNF shipments currently meet all these new
requirements, and considered these requirements appropriate for armed
escorts.
Response to Comment 2: The comments expressed agreement with the
proposed revisions. As such, no change to the rule language is
required.
Issue 26: Armed Escort Function Recommended Language Sec.
73.37(b)(3)(i)
Comment: The DOE NRP recommended that Sec. 73.37(b)(3)(i) be
revised to indicate that armed escorts
[[Page 29537]]
will ``guard'' as opposed to ``protect'' the SNF shipment.
Response: The requirements placed on armed escorts are consistent
with the definitions for ``armed escort'' and ``armed response
personnel'' found in Sec. 73.2, and are similar to language found
elsewhere in 10 CFR Part 73. Section 73.2 provides the following
definition, ``Armed escort means an armed person, not necessarily
uniformed, whose primary duty is to accompany shipments of special
nuclear material for the protection of such shipments against theft or
radiological sabotage.'' The NRC declined to make this change.
Issue 27: LLEA and Movement Control Center Sec. 73.37(b)(3)(ii)
Comment: Three comments, one from NEI and two from the
transportation industry (Secured Transport Services, LLC (STS) and
RAMTASC), were received that related to the duties of the movement
control center. All three expressed concern that communications
personnel located in a remote facility are not in the position to
effectively ``direct physical protection activities,'' that this
function is best served by the commander of the private escort force/
LLEA escorts with direct knowledge of the events as they unfold on the
scene of the incident.
Response: The NRC agrees with the comments that the movement
control center should coordinate and not direct the physical protection
activities. The wording of Sec. 73.37(b)(3)(ii) was revised to reflect
this change. The language in Sec. 73.37(b)(3)(ii) was changed to read:
``The movement control center must be staffed continuously by at least
one individual who has the authority to coordinate the physical
protection activities.''
Issue 28: Training for Movement Control Personnel Sec. 73.37(b)(3)(ii)
Comment 1: One commenter (CHP) expressed concern that the proposed
rule did not address the training requirements of the movement control
personnel. The commenter further elaborated that the addition of
Sec. Sec. 73.37(b)(3)(v), and (b)(3)(vii), will require the licensees
to develop, maintain, and implement written procedures for the duties
of the different personnel, but does not outline the training
requirements of those personnel specific to their duties and
responsibilities.
Response to Comment 1: The NRC does not agree with these comments.
The licensee is required to ensure that all personnel involved in the
SNF shipment are trained, including movement control center personnel,
and are to ensure that this training is consistent with their assigned
duties.
Comment 2: Another commenter (RAMTASC) stated that the proposed
rule is intended to ensure that all personnel associated with the
shipment are prepared to prevent the theft, diversion, or radiological
sabotage of SNF shipments; that this is a significant expansion of
current responsibilities for carriers, especially considering the
presence of armed escorts with each shipment. The commenter stated that
with the significant turnover in rail personnel during the conduct of a
shipment across the country, it is not practicable to effectively train
all of these people to prevent theft, diversion, or sabotage of these
shipments; that the security role should remain the province of
specially trained security escorts; and that the training for shipment
personnel should be limited to ensuring they understand the authority
and responsibilities of the armed escorts and support them as required.
Response to Comment 2: The NRC does not fully agree with this
comment. While all personnel mentioned in Sec. 73.37(b)(3)(v)(C) are
involved one way or another in the physical protection system, not all
personnel will have the same level of involvement in ensuring the
security of the shipment. Thus, personnel with unescorted access to SNF
rail shipments are neither required nor expected to prevent the theft,
diversion, or radiological sabotage of SNF shipments. Only the armed
escorts accompanying a rail shipment of SNF are expected to delay and
impede threats, theft or radiological sabotage of SNF and to inform
LLEA of the threat and request assistance.
As such, the NRC agrees that the rule should be clarified relative
to armed escorts and other movement control personnel roles and
responsibilities, and added clarifying language to the rule to address
these comments. The following clarifying changes were made: (1) In
Sec. 73.37(a)(1)(i), a reference to the definition of ``armed escort''
in Sec. 73.2 was added; (2) in Sec. 73.37(b)(3)(i), a reference to
the definition of ``movement control center'' in Sec. 73.2 was added;
and 3) in Sec. 73.37(b)(3)(v), the language was revised to clearly
indicate that the transportation security procedures should address the
roles and responsibilities of all personnel involved in the planning,
monitoring and execution of the physical protection of SNF in transit.
In addition, the accompanying guidance document clearly delineates the
roles and responsibilities of all these personnel, especially armed
escorts.
Issue 29: Shipment Commencement Sec. Sec. 73.37(b)(3)(iii) and
73.72(a)(4)
Comment: One comment (NEI) expressed concern that the term
``shipment commences'' is too vague and recommend that within Sec.
73.72(a)(4) ``start of shipment'' and ``shipment delivery/arrival'' be
specifically defined.
Response: The NRC does not agree with this comment. The plain
meaning of the terms used in Sec. Sec. 73.37(b)(3)(iii) and
73.72(a)(4) adequately conveys when monitoring of the shipment and
providing notification of the shipment are required.
Issue 30: Maintaining Written Logs Sec. 73.37(b)(3)(iv)
Comment: One comment (MURR) related to the requirement for movement
control center personnel and armed escorts to maintain a written log
for each SNF shipment. The MURR indicated that LLEA escorts reported
that keeping a log of the shipment is a major distraction that takes
away from their primary function of driving and observing the shipment.
Response: The NRC does not agree with this comment. This is not a
new requirement. It has been a requirement since the June 1980
amendments to 10 CFR Part 73. The intent of this requirement is that a
single written log be maintained and that the entries in the log be
coordinated between the armed escorts and the movement control
personnel monitoring the shipment. It is the responsibility of the
licensee to determine the means and methods used to maintain this log.
Issue 31: Calls to Movement Control Center Sec. 73.37(b)(3)(vii)(B)
Comment: Two comments (STS and MURR) related to the following
language in Sec. 73.37 (b)(3)(vii)(B): ``Provide that the shipment
escorts make calls to the movement control center at random intervals,
not to exceed 2 hours, to advise of the status of the shipment . . .''
One commenter (STS) requested that the NRC consider changing the
language to allow contact with the movement control center by persons
other than the escort and by means other than calls. An example
provided by the commenter was where team drivers are used, the resting
driver may be able to make contact with the movement control center
rather than the escort. Additionally, the commenter stated that the
``call'' can be a satellite message rather than voice communications;
and that a ``macro'' message sent via satellite is safer and more
secure than voice exchanges, as it
[[Page 29538]]
gives exact locations without being overheard, and it's a single push
of a button versus dialing a phone.
Another commenter (MURR) stated that all communications between the
movement control center and LLEA personnel acting as armed escorts are
currently handled through the respective State Emergency Management
Agency or the Governor's Designee. However, non-LLEA escorts, i.e.
private armed escorts, should be required to make calls to the movement
control center as stated.
Response: The NRC has revised the proposed rule to address these
comments. It was not the intent of the proposed Sec.
73.37(b)(3)(vii)(B) to prevent or require a specific method of
communication between the escorts and movement control center, or
prevent an intermediary (i.e., a State's emergency management agency, a
State Governor's designee or other personnel accompanying the shipment)
from handling and forwarding communications to and from the escorts and
movement control center. It is important that the duties and
responsibilities of personnel involved with SNF shipments be clear and
unambiguous. It is imperative that these types of details be discussed
and agreed upon in advance during the preplanning and coordination
phase, and that they be documented and understood by all personnel
responsible for the security of the SNF shipment. As such, although the
NRC viewed ``call'' as a generic term that can include any number of
communication methods, a change was made to the proposed rule. For
clarity, Sec. 73.37(b)(3)(vii)(B) was revised, replacing the words
``make calls to'' with ``communicates with.''
Issue 32: Technology Security Sec. Sec. 73.37(c)(3), 73.37(d)(3), and
73.37(e)(4)
Comment 1: One commenter from NEI indicated that elimination of a
mandatory CB radio requirement is an improvement given the present
vastly improved state of communication capabilities in the U.S. In
general, the commenter indicated that they agreed with the use of
general performance requirements in lieu of prescribing the use of
specific equipment which may be obsolete in the relatively near future,
and that this is an example of the type of flexibility that should be
broadly preserved in this rulemaking.
A commenter from WIEB indicated that the NRC was correct in noting
the rapid obsolescence in the field of telemetric monitoring and
tracking, and the need for performance criteria rather than specific
systems specification.
Response to Comment 1: The comments expressed agreement with the
proposed revisions. As such no change to the rule language is required.
Comment 2: One comment (IEMA) suggested that the rule include a
requirement that licensees acting as shippers perform an Operational
Security (OPSEC) assessment with regards to smart and cyber technology,
which includes identifying those actions that can be observed by
adversary intelligence systems, determining indicators that hostile
intelligence systems could use to derive critical intelligence, and
implementing measures that eliminate or reduce the vulnerabilities of
friendly actions to adversary exploitation. The commenter expressed
concern that the use of smart phones, smart media, and social
networking to communicate creates vulnerabilities. The commenter
further elaborated that it would be prudent for the NRC to require
licensees and their contractors involved in the transport of SNF to
evaluate these technologies and reduce the release of critical
geographical information associated with SNF shipments.
Another commenter (WIEB) noted that the distinctions in systems
needed for preplanning and route assessment and the systems needed for
tracking and monitoring in operations are rapidly converging and
recommended that the NRC, in coordination with DOE should consider a
set of performance requirements that will spur development and
deployment of advanced tracking and monitoring of SNF transport
equipment, cargo, route conditions and route environs, selecting and
communicating relevant information to relevant officials in highly
accessible formats, and encouraging continual adoption and updating by
planners and operators.
Response to Comment 2: The NRC does not agree with these comments.
Requiring OPSEC assessments and encouraging the development of advanced
tracking and monitoring systems are activities beyond the scope of this
rulemaking. NRC regulations do not require licensees to protect SNF
shipments in this fashion. In addition, Sec. 73.37(g) requires that
Safeguards Information, including information related to the shipment
schedule and shipment location, be protected against unauthorized
disclosure. This requirement applies to the licensee, State officials,
State employees and any other individuals with access to such
information. It is the responsibility of the holder of such information
to develop the means and methods required to protect this information.
Comment 3: A commenter (CSG Midwestern) wanted to know how the NRC
will ``track and actively monitor'' shipments that are in transit, and
whether the NRC will have direct access to the same ``telemetric
position monitoring system'' that the licensee uses. The commenter
recommended that the rule should require licensees to use a telemetric
position monitoring system for shipments by sea as well as those by
road or rail; that shipments of SNF might travel by barge on the Great
Lakes or rivers in the Midwest, and it is important, therefore, for
Midwestern State agencies to be able to get accurate information on the
location and status of such shipments.
Response to Comment 3: The NRC does not routinely track or monitor
SNF shipments. This is the responsibility of the licensee, via the
movement control center. With regards to the requirements for
continuous monitoring of sea shipments within U.S. territorial waters;
i.e., travel by barge on the Great Lakes or rivers, this requirement is
included under Sec. 73.37(b)(3). Nevertheless, this comment points out
that further clarification is needed relative to Sec. 73.37(e). The
title of this section is changed from ``Shipments by sea'' to
``Shipments by U.S. waters.'' In addition, in the first paragraph, the
phrase ``is by sea'' is being replaced with ``traveling on U.S.
waters.'' This will ensure that licensees understand that the security
of all waterborne SNF shipments must meet the general provisions of
Sec. 73.37(b) as well as the specific requirements in Sec. 73.37(e).
Appropriate changes will also be made to the guidance document.
This change is consistent with language used by the U.S. Coast
Guard to describe U.S. oceanic and coastal waters (33 CFR 329.12).
Security of sea shipments between 3 and 12 nautical miles out is the
responsibility of the Coast Guard, which also publishes detailed
security requirements pertaining to U.S. ports (33 CFR Subpart H,
Maritime Security). Replacing ``sea'' with ``U.S. waters'' in Sec.
73.37(e) clarifies that it is the NRC's intent to ensure it has
visibility of, and that licensees provide a level of protection for SNF
waterborne domestic shipments, and for exports and imports, from the
time the import enters the 3-mile zone until it arrives at a U.S. port,
and from the time the export departs a U.S. port until it leaves the 3-
mile zone.
Comment 4: A commenter (NEI) indicated that the requirement
specified in Sec. 73.37(c)(3) that requires redundant communication
capability ``at all times'' is overly prescriptive. The commenter
indicated that it has the potential to
[[Page 29539]]
overly complicate plans to mitigate a loss of communications equipment
and it should be changed to require ``reasonable assurance'' of
redundancy.
Response to Comment 4: The NRC has determined that clarification of
this rule language is needed to address the comment. It was not the
intent of Sec. 73.37(c)(3) to require redundant communication
capability ``at all times'' as suggested by the commenter. Section
73.37(c)(3) requires that two-way communication between the movement
control center, the transport vehicle, the escort vehicle and LLEA is
provided or available at all times. Given the current advancements in
communications technology, requiring redundant communication ability
not subject to the same failure modes as the primary communication such
that two-way communication is possible at all times is not overly
prescriptive. However, a review of the relevant sections reveals that
the clarification is needed. Therefore, Sec. Sec. 73.37(c)(3), (d)(3)
and e(4) were revised to improve understanding of the intent by adding
the following phrase to the rule text. ``To ensure that 2-way
communication is possible at all times, alternate communications should
not be subject to the same failure modes as the primary
communication.''
Issue 33: Contingency and Response Procedures Sec. 73.37(b)(4)
Comment: The State of Nevada fully supported the provisions on
contingency and response procedures in Sec. 73.37(b)(4).
Response: The comments expressed agreement with the proposed
revisions. As such, no change to the rule language is required.
Issue 34: Contingency Response Sec. 73.37(b)(4)(iv)
Comment: One comment (Private Citizen-Hardin) recommended that a
new paragraph (F) be added after Sec. 73.37(b)(iv)(E) to require
licensees (or their monitoring center) to notify the NRC of
transportation safeguards events in accordance with Sec. 73.71.
Response: The NRC does not agree with this comment. The revisions
suggested are already included in the rule. Sections 73.37(b)(3)(iii)
and 73.37(b)(3)(v)(C) require reporting of safeguards events under the
provisions of Sec. 73.71.
Issue 35: Deadly Force: Recommended Language Sec. 73.37(b)(4)(iv)(D)
Comment: One comment (DOE NRP) suggested revising the language of
Sec. 73.37(b)(4)(iv)(D) to read: ``Take necessary steps to delay and/
or impede threats, thefts, or radiological sabotage of SNF as
appropriate considering threat characteristics, shipment
characteristics, and the primary requirement for personnel to provide
for their own safety until response forces arrive, and . . .''
Response: The NRC agrees with this comment in part. The
requirements placed on armed escorts are consistent with the
definitions for ``armed escort'' and ``armed response personnel'' found
in Sec. 73.2, and are similar to language found elsewhere in 10 CFR
Part 73. However, to provide clarity, the NRC will strike ``until
response forces arrive'' from Sec. 73.37(a)(2)(ii), and will add
language to the guidance document stating that armed escorts are
neither required nor expected to take offensive action against
aggressors (e.g., actively pursuing and/or apprehending suspected
aggressors), but rather are expected to assume a defensive posture in
order to delay and impede attempts at theft and diversion in addition
to attempts at radiological sabotage of SNF shipments as appropriate,
considering threat characteristics, shipment characteristics, and the
primary requirement for personnel to provide for their own safety. The
NRC will also add language to the guidance document stressing that it
is imperative for armed escorts, drivers or other accompanying
personnel to contact response personnel without delay as soon as they
detect a threat to the shipment or themselves, but not to exceed 15
minutes after discovery.
Issue 36: General: Shipments by Road Sec. 73.37(c)
Comment: The State of Nevada endorsed all aspects of Sec.
73.37(c).
Response: The comments expressed agreement with the proposed
revisions. As such, no change to the rule language is required.
Issue 37: Shipments by Road: Transport Vehicle Armed Escorts Sec.
73.37(c)
Comment: One commenter (MURR) stated that the requirements of Sec.
73.37(c)(1)(i) and (ii) could not be met because the second driver of
the transport vehicle cannot be armed. The commenter indicated that
research reactors use commercial carriers which do not use armed
drivers. In addition, the commenter indicated that States cannot
provide two armed escorts (one in front and one in the back) for the
shipment as an option.
Response: The NRC does not agree with this comment. The rule does
not require that the driver be armed. It only requires that an escort
in the cab be armed.
Issue 38: Two Weapons Sec. 73.37(c)(2), 73.37(d)(2), and 73.37(e)(2)
Comment: Two commenters (CHP and STS) requested that clarification
of the types of weapons that armed escorts are required to carry be
added to Sec. 73.37(c)(2), 73.37(d)(2), and 73.37(e)(2).
Response: The NRC included the requested clarification in the rule
guidance document. In the guidance document (NUREG-0561, Revision 2),
the NRC provides recommendations relative to each weapon's separate and
distinct response capabilities (e.g., a handgun and a rifle and/or a
shotgun).
Issue 39: Movement Center Sec. 73.37(c)(6) and (d)(4)
Comment: One comment (Private Citizen-Hardin) recommended that new
subparagraphs (c)(7) and (d)(5) be added to require licensees (or their
monitoring center) to notify the NRC of transportation safeguards
events in accordance with Sec. 73.71.
Response: The NRC does not agree with this comment. Sections
73.37(b)(3)(iii) and 73.37(b)(3)(v)(C) already require reporting of
safeguards events under the provisions of Sec. 73.71.
Issue 40: Shipments by Rail: Sec. 73.37(d) and 73.37(d)(1)
Comment 1: The State of Nevada supported the revisions in Sec.
73.37(d) regarding rail shipment of SNF. The commenter specifically
identified support for elimination of the distinction between heavily
populated areas and other areas along rail shipment routes regarding
the armed escort requirements; weapons requirements for armed escorts;
eliminating specific types of communications technology, and supported
the use of a telemetric position monitoring system or an alternative
tracking system. One industry commenter supported the NRC's decision
not to require dedicated trains for the shipment of SNF and thought it
was a good decision.
Response to Comment 1: The comments expressed agreement with the
proposed revisions. As such, no change to the rule language is
required.
Comment 2: One commenter (RAMTASC) expressed concern that avoiding
populated areas could require shipments on lower quality rail tracks
which would increase the accident risk. While the commenter agrees with
the NRC's decision to not incorporate specific routing requirements
into the rulemaking, they questioned whether the required planning with
States would not have the same result. The
[[Page 29540]]
commenter stated that the specific roles of States versus the railroads
versus the shipper of record were not well defined, and if consensus
were required on shipment routes, that would potentially allow States
to block shipments along the safest routes by refusing to approve
routes recommended by the railroads, which would serve to undo the
carefully crafted responsibilities in the Rail Safety Improvement Act
of 2008. The commenter indicated that this Act requires railroads to
use objective data as the basis for selecting rail routes that provide
the best overall combination of safety and security. The commenter
further indicated that the role of States needed to be limited to an
advisory role to preclude politicizing the route selection process. The
commenter concluded by recommending that the NRC rule should simply
defer to the DOT final rulemaking for balanced consideration of safety
and security data in consultation with States.
Response to Comment 2: The NRC does not agree with this comment. It
is the licensee's responsibility to preplan and coordinate SNF rail
shipments with the Governor of each State through which the shipment
will pass and with the rail carrier(s). As mentioned elsewhere in the
response to comments, licensees are also required to comply with all
DOT safety and security requirements pertaining to SNF shipments, which
would include any requirements imposed on rail shipments of SNF. None
of the proposed requirements in this rulemaking would supersede or
vacate the provisions in the Rail Safety Improvement Act of 2008.
Comment 3: Two commenters (WIEB and CSG Midwestern) stated that
dedicated trains should be required in cross-country rail transport of
SNF shipments. One commenter (WIEB) cited a 2006 National Academies'
study of SNF transport which the commenter said found that ``there are
clear operational, safety, security, communications, planning,
programmatic, and public preference advantages that favor dedicated
trains. The committee strongly endorsed DOE's decision to transport SNF
and high-level waste to a Federal repository using dedicated trains.''
Another commenter (RAMTASC) indicated that since both mixed use, and
dedicated train service would have the same security requirements, the
NRC declining to require dedicated trains was a good call.
Response to Comment 3: The comments expressed agreement with the
proposed revisions. As such, no change to the rule language is
required.
Comment 4: One commenter (MODNR) recommended the following
revision: ``A shipment car is accompanied by two armed escorts or two
special agents/police officers of the host railroad if the railroad
agrees to provide them.'' The commenter stated that local law
enforcement may not be the most practical escorts to have on a train
that will traverse multiple States and that this change would allow,
but not require, the railroad to provide their own armed escorts if
they desire. The commenter concluded by stating that some railroads
would prefer to utilize their own employees, who would be familiar with
rail policies and procedures. The same commenter stated that
inspections of rail shipments by States have been a contentious issue
in the past, as railroads do not plan stops near State borders. The
commenter recommended that Sec. 73.37(d) be clarified to address this
issue by adding a statement similar to the following: ``Physical
inspections of rail shipments by representatives of individual States,
if they are requested by State representatives, may occur at places
other than at the State line if agreed to by the representatives of the
various States and the railroad.'' The commenter stated that a State
line is usually an inconvenient place to inspect a train, as there
might be no highway access or crossings and a State line could be
located where the only way to reach the border is to walk miles down
the railroad track. The commenter expressed concern that an inspection
at a State border may also affect the railroad's operations, because
there may not be a siding available at the State's border, resulting in
blocking trains in both directions. The commenter recommended that
licensees coordinate with the States and the railroads to confirm a
safe location for inspections; the result may be that several States in
a region will inspect a shipment in one location, rather than in each
individual State.
Response to Comment 4: No changes to the rule were made in response
to these comments. It is the licensee's responsibility to preplan and
coordinate SNF rail shipments with State Governors through which the
shipment will pass and with the rail carrier(s). Nothing in the rule
would require or prohibit the use of armed escorts provided by the rail
carrier if they met NRC requirements for filling such a position.
Discussion of State inspections of rail shipments is beyond the scope
of this rulemaking.
Issue 41: Shipments by Sea: General Sec. 73.37(e)
Comment: The State of Nevada supported the rule revisions in Sec.
73.37(e) regarding advance notification information for State Governors
and Governors' designees.
Response: The comments expressed agreement with the proposed
revisions. As such, no change to the rule language is required.
Issue 42: Shipments by Sea: Movement Control Center Sec. 73.37(e)
Comment: One commenter (Private Citizen-Hardin) recommended that
Sec. 73.37(e) be changed to require telemetric position monitoring for
sea mode SNF shipments within U.S. territorial waters but permit import
and export SNF shipments to be tracked by vessel monitoring systems or
by U.S. Coast Guard monitoring and response capabilities. The commenter
also recommended that requirements for a movement monitoring center
similar to the language in Sec. 73.37(c) and (d) be specified for sea
shipments and that language to require licensees (or their monitoring
center) to notify the NRC of transportation safeguards events in
accordance with Sec. 73.71 be added.
Response: Continuous monitoring of SNF shipments, including sea
shipments while within U.S. territorial waters is already addressed in
Sec. 73.37(b)(3). For sea shipments, licensees may utilize a
telemetric position monitoring system or some other system to achieve
compliance with this performance objective. Nevertheless, this comment
points out that further clarification is needed relative to Sec.
73.37(e). The title of this section is changed from ``Shipments by
sea'' to ``Shipments by U.S. waters.'' In addition, in the first
paragraph, the phrase ``is by sea'' is being replaced with ``traveling
on U.S. waters.'' Replacing ``sea'' with ``U.S. waters'' in Sec.
73.37(e) clarifies that it is the NRC's intent to ensure that NRC has
visibility of, and that licensees provide a level of protection for SNF
waterborne domestic shipments, and for exports and imports, from the
time the import enters the 3-mile zone until it arrives at a U.S. port,
and from the time the export departs a U.S. port until it leaves the 3-
mile zone.
In addition, the guidance document was revised to clarify
requirements for sea shipments within U.S. waters. With regard to the
reporting of transportation safeguards events, this request is already
addressed in Sec. 73.37(b)(3)(iii) and 73.37(b)(3)(v)(C), which
require reporting of safeguards events under the provisions of Sec.
73.71.
[[Page 29541]]
Issue 43: Investigations Sec. 73.37(f)
Comment 1: The State of Nevada supported the new requirement for an
immediate investigation if a shipment is lost or unaccounted for after
the designated no-later-than arrival time.
Response to Comment 1: The comments expressed agreement with the
proposed revisions. As such, no change to the rule language is
required.
Comment 2: One commenter (MISP) requested that more detail be added
to this section with respect to the specifics of an investigation.
Response to Comment 2: The NRC does not agree with this comment.
The specifics of an investigation are developed by the licensee. Under
Sec. 73.37(b)(4), licensees must establish, maintain and follow
written contingency and response procedures, which would include
procedures for responding to lost or unaccounted for SNF shipments.
These written procedures must be made available for inspection by the
NRC upon request.
Comment 3: One commenter (Private Citizen-Hardin) recommended the
deletion of Sec. 73.37(f), and that any investigation of lost or
unaccounted SNF is completed in accordance with the NRC's proposed
revisions to Sec. 73.71.
Response to Comment 3: The NRC does not agree with this comment.
The NRC has determined that the protection of SNF from theft, sabotage,
or diversion is vital to public health and safety and the common
defense and security. As such, the NRC has instituted coordinated and
correlated protective measures systems to ensure prompt notification of
any safeguards event relative to SNF in transit. The NRC has determined
that the investigative requirements in Sec. 73.37(f) to be an
important part of the protective measures system for SNF in transit. In
addition to the requirements of Sec. 73.37(f), Sec. 73.37(b)(3)(iii)
and 73.37(b)(3)(v)(C) require licensees to notify the NRC of lost or
unaccounted SNF shipments under Sec. 73.71.
Issue 44: Safeguards Information Sec. Sec. 73.37(g) and 73.38(c)(iv)
Comment 1: The State of Nevada expressed support for the proposed
requirements for the protection of Safeguards Information in Sec.
73.37(g).
Response to Comment 1: The comments expressed agreement with the
proposed revisions. As such, no change to the rule language is
required.
Comment 2: Two comments (IEMA and Private Citizen--No name) were
related to protection of shipment information. The IEMA recommended
that the NRC further examine those plans, documents and communications
that should be classified as Safeguards Information to ensure that
information security is maintained at the highest level necessary and
those individuals responsible for maintaining the appropriate controls
on Safeguards Information are properly trained.
Another commenter (Private Citizen-No name) expressed concern that
there seemed to be very little in the rule regarding the protection of
sensitive information relative to SNF in transit. The commenter
indicated that controlling the available information about the
shipments could go a long way to preventing attacks. The commenter also
recommended that a section be added that requires that information only
be given to certain individuals. In addition, the commenter suggested
that it be required that individuals who are only accompanying a
shipment for a certain part of the shipment only be given information
about the segment, and not for the entire trip.
Response to Comment 2: The NRC agrees that additional clarifying
information could be added to the rule to address these comments. A new
section Sec. 73.37(b)(1)(vii) was added to reflect the requirements of
Sec. 73.22, which address Safeguards Information relative to SNF
shipments. The requirement in Sec. 73.22 addresses the restricting of
Safeguards Information to those with a ``need to know.''
Issue 45: Implementation of Rule Sec. 73.38(a)(3)
Comment: One commenter (MURR) indicated that an implementation date
of 30 days after the final rule is published in the Federal Register is
too restrictive on licensees. The commenter suggested that licensees
should have the flexibility to implement the new requirements through
either their physical security plan or their transportation security
plan. In addition, the commenter suggests that in light of the burden
to implement the new requirements with limited resources, that a 90-day
period for implementation should be used instead of a 30-day period.
Response: The NRC agrees with the comment and has revised the rule
text to indicate that the requirements can be implemented either by the
licensee's physical security plan or transportation security plan. With
regards to the implementation date for licensees, the rule was revised
to provide an effective date of 90 days after publication in the
Federal Register as suggested by the commenter.
Issue 46: General: Background Investigation Requirements Sec. 73.38
Comment 1: The State of Nevada supported the new requirements
regarding personnel access authorization, and licensee responsibilities
for establishing and maintaining an effective access authorization
program. The commenter endorsed the background investigation
requirements.
Comment 2: The DOE NRP commenter supported the background
investigation requirements for private armed escorts, and indicated
that escorts for naval reactors shipments currently meet all these new
requirements, and considered the requirements appropriate for these
escorts.
Response to Comments 1 and 2: The comments expressed agreement with
the proposed revisions. As such, no change to the rule language is
required.
Issue 47: Persons Subject to Background Investigation Requirements:
Sec. 73.38(a)
Several comments were raised relative to whom the background
investigation requirements should apply.
Comment 1: The DOE NRP indicated that the proposed access
authorization program with requisite background checks could lead to
significant operational and cost impacts from commercial carriers
handling shipments. The commenter indicated that carriers are already
subject to basic personnel security measures in their hazardous
materials security plans in accordance with DOT regulations (49 CFR
172.802(a)(1)). The commenter indicated that the proposed NRC
requirements go far beyond the current DOT requirements. The DOE NRP
questioned whether the railroads' personnel policies would support such
extensive security requirements, and if not, the impact on shipment
operations and the cost to institute such extensive personnel security
requirements just for SNF shipments could be difficult to overcome. The
commenter also indicated that it is not clear that the security benefit
gained from imposing such personnel security requirements on carriers
is worth the cost. The commenter suggested that the NRC review the
proposed requirements relative to rail and highway carriers. The
commenter also indicated if these access authorization requirements are
added to the regulations, railroads may decide to only perform the
requisite background checks on a minimal number of their personnel.
These circumstances could result in delaying SNF shipments.
[[Page 29542]]
Comment 2: A commenter from a State organization (MODNR) indicated
that the rule should clarify whether requirements for background
investigations apply to State railroad inspectors, as they may need to
be in proximity to the shipment in order to conduct an inspection, but
will not need unescorted access to the shipment. The rule states, ``The
background investigation does not apply to Federal, State or local law
enforcement personnel who are performing escort duties.'' The commenter
recommended that State railroad inspectors be added to this exemption
for State personnel, or that language similar to the following be added
to address this issue: ``All background checks shall be waived for
State rail inspectors seeking to inspect shipments by rail who are
currently in good standing and certified by the Federal Railroad
Administration as an inspector in any discipline for which the Federal
Railroad Administration has current responsibility in enforcing.''
Comment 3: An industry commenter (NEI) indicated that the proposed
regulations make the NRC licensee responsible for background
investigation. The commenter indicated that it may not be possible for
licensees to ensure investigations are conducted for common carrier's
and LLEA's employees or for Federal/State inspectors. The commenter
indicated that the regulation should provide flexibility for this to be
worked out cooperatively between the carrier and the customer. For
example, carriers could conduct investigations with licensees verifying
that the background investigations were properly done.
The NEI also asked whether an inspection of an SNF shipment by a
State or Federal DOT inspector is considered unescorted access. The
commenter indicated that clearly they must have direct access to the
shipment, but they will not have control of the shipment nor would
armed escorts be expected to leave their post during an inspection. The
commenter further indicated that some inspectors may view an armed
escort overseeing their inspections as a form of intimidation. The NEI
indicated that the subject of those who might have access to a shipment
other than armed escorts should be specifically addressed and
background check requirements set accordingly.
Comment 4: An NRC licensee (MURR) indicated that licensees have no
control over background checks performed for State employees (e.g.,
non-LLEA personnel) who have access to the shipment during transit, and
hence, the regulations must state that licensees are not responsible
for these background checks. This responsibility should be deferred to
the State Governor's Designees.
Comment 5: One commenter from an industry organization wondered
whether LLEA personnel were subject to the new requirements.
Comment 6: The IEMA agrees with the NRC's proposal regarding
background checks for licensees as set forth in Sec. 73.38,
``Personnel access authorization requirements for irradiated reactor
fuel in transit.'' However, the IEMA believes that the requirement for
background checks should include all entities that are involved with
SNF shipments including Governor's designee and any State or Tribal
entity that is entrusted with Safeguards Information, aids in the
planning and coordination of an SNF shipment or has unescorted access
to an SNF shipment. The LLEA personnel would continue to be exempted
since they require a pre-employment background check. Under the
proposed rule, all other entities involved with the totality of an SNF
shipment should be required to comply with the background investigation
requirement. The IEMA believes by requiring State and Tribal personnel
to be held to the same access authorization requirements as licensees,
an increased level of shipment security will be achieved.
Response to Comments 1-6: The NRC agrees that further clarification
is needed relative to the persons subject to background investigations.
Common carriers have no direct responsibilities under Sec. 73.38. The
licensee is responsible for assuring that all individuals who have
access to Safeguards Information pertaining to a SNF shipment or
unescorted access to the SNF shipment have undergone a background
investigation (or fall under one of the categories for relief in
Sec. Sec. 73.59 or 73.61), have been determined to be trustworthy and
reliable, and have a need to know. With regard to the receipt of
Safeguards Information by Native American Tribes, this issue was
addressed as a part of a separate rulemaking entitled, ``Advance
Notification to Native American Tribes of Transport of Certain Types of
Nuclear Waste,'' which was approved by the Commission on January 30,
2012, and published as a final rule on June 11, 2012 (77 FR 34194).
The NRC acknowledges that the licensee does not directly control a
common carrier used to ship SNF or control whom the carrier employs.
However, as noted in the comments, carriers are subject to DOT
regulations that require fingerprinting and an FBI criminal history
check for drivers transporting hazardous material. Spent nuclear fuel
is considered to be a hazardous material under DOT regulations. The
vehicle driver and accompanying personnel were included in part because
they have access to SGI information pertaining to the SNF shipment.
Whether these individuals come under the Sec. 73.38 access
authorization program or not, they would still need to be fingerprinted
and determined to be trustworthy and reliable under the requirements of
Sec. 73.22(b). However, the NRC has revised Sec. 73.38 to reflect
that those individuals who have already completed an equivalent
separate Federal background investigation program, and can provide
documentation indicating that they are in good standing, could meet the
requirements of Sec. 73.38.
The NRC also agrees that further clarification is needed relative
to the application of the provision to Federal and State inspectors and
has added clarifying language. In response to the comments concerning
background investigations for Governor's designees and LLEA personnel,
Sec. 73.59 relieves these persons from the background investigation
requirements for access to Safeguards Information and Sec. 73.61
relieves these persons from background investigation for unescorted
access to SNF in transit. This section was revised to include a
reference to Sec. 73.61.
With regards to persons who receive Safeguards Information, all
persons are required to obtain a background investigation unless they
fall under one of the categories for relief in Sec. 73.59. The rule
has been revised to reflect the provisions in Sec. 73.59(k) which
relieves from a background investigation, ``Any agent, contractor, or
consultant of the aforementioned persons who has undergone equivalent
criminal history records and background checks to those required by
Sec. 73.22(b) or Sec. 73.23(b).'' Based upon the aforementioned
discussion, Sec. 73.38 (2)(a) was revised.
Issue 48: Reinvestigations: Sec. 73.38(h)
Comment: The MURR indicated that it feels that research reactors
should have relief from this requirement since it will cause a
financial burden to the facility with minimal gain. The MURR indicated
that credit history evaluations should only be performed if the results
obtained during the fingerprinting and FBI identification and criminal
history records check and criminal history review are inconsistent, and
should not be routinely required.
Response: The NRC does not agree with this comment. The
reinvestigation
[[Page 29543]]
requirement in the rule is consistent with similar requirements
contained elsewhere in 10 CFR part 73.
Issue 49: Advance Notification Editorial Correction: Sec. 73.72
Comment 1: Two editorial comments were received (CSG Midwestern and
Private Citizen-Hardin). The comments indicated that the section
``Requirements for advance notice of shipment of formula quantities of
strategic special nuclear material . . .'' was incorrectly labeled as
``Sec. 73.71'' and it should be referenced as ``Sec. 73.72.''
Response to Comment 1: The NRC agrees with this editorial comment.
The section was changed from ``Sec. 73.71'' to ``Sec. 73.72.''
Comment 2: The CSG Midwestern also indicated that Sec. Sec.
73.72(a)(4) and 73.72(a)(5) include the statement, ``Classified
notifications shall be made by secure telephone,'' and that the draft
guidance document, however, refers to ``SGI notifications'' (pg. 16).
In addition, the commenter indicated that the proposed rulemaking
stated that ``The NRC does not regulate classified shipments of spent
nuclear fuel.'' To avoid confusion, the commenter recommended that the
rule should refer to ``SGI notifications,'' not ``classified
notifications.''
Response: The NRC agrees with this comment. Sections 73.72(a)(1),
(a)(4), and (a)(5) were changed to read: ``Classified and SGI
notifications.''
Issue 50: Mode of Notification: Sec. 73.72(a)(1)
Comment: One comment (Private Citizen-Hardin) was related to the
mode required for advance notifications of shipments and recommended
that--the NRC revise Sec. 73.72(a)(1) to require secure electronic
transmission of advance notifications made under this section; that
secure notifications should be sent to the email addresses specified in
10 CFR part 73, Appendix A, for the NRC Headquarters Operations Center;
that NRC should provide an exception to this new requirement permitting
the use of written notifications (sent by U.S. mail or private courier
service) only if secure electronic communications methodologies are
inoperable or unavailable; and should specify acceptable encryption
methods (both networks and internet emails) in regulatory guidance to
achieve greater consistency and ease of use across the range of
recipients.
The commenter stated that the NRC should specify in the supporting
guidance documents the specific methodology licensees should use to
meet the Federal Information Processing Standards (FIPS) in publication
140-2 of the National Security Agency (NSA) standards to communicate
Safeguards Information or classified information, respectively. The
commenter stated that the NRC should also specify the email addresses
to send these notifications (both intranet and secure networks), and
that this should include use of secure electronic networks or the use
of encrypted emails transmitted over the internet.
The commenter also stated that with the widespread use of 20th
[sic] century technology, the NRC should take advantage of the
encryption, authentication, and non-repudiation features found in
secure electronic communications to provide greater timeliness and
security over SNF shipment notifications made to the NRC under this
section. The commenter went on to say that both the NRC and NRC
licensees possessing SNF send secure electronic communications
containing Safeguards Information to and from each other on a routine
basis, and that these capabilities should also be used for SNF shipment
notifications, with written communications reserved for a backup role
(i.e., secure electronic communications are inoperable).
Response: The NRC does not agree with this comment. The purpose of
this rulemaking is to enhance the security of SNF shipments by
incorporating the security requirements in applicable NRC orders as
well as new requirements developed as a result of lessons learned by
implementing the security orders. The actions requested by the
commenters are beyond the scope of this rulemaking.
Issue 51: Notifications: Sec. 73.72(a)(4)(ii) and (iii)
Comment 1: The State of Nevada supports the new requirements in
Sec. 73.72(a)(4), which requires licensees to notify the NRC 2 hours
before the commencement of the shipment, and notify the NRC when the
shipment arrives at its final destination
Comment 2: The MODNR indicated that the addition of notifications
to the States 2 hours before commencement of the shipment and again
once the shipment has reached its destination is very helpful. The
commenter indicated that the 2-hour notification provides time for
staff to reach their staging position, without unnecessary time spent
in waiting for shipment arrival. The commenter further elaborated that
the final notification that the shipment has reached its destination
would alert the States that communications regarding the shipment can
be sent without compromising the shipment's safety.
Response to Comments 1 and 2: The comments expressed agreement with
the proposed revisions. As such, no change to the rule language is
required.
Issue 52: Clarification in Sec. 73.72(a)(5)
Comment: The State of Nevada supported the provision clarifying
notification for schedule changes of more than 6 hours in Sec.
73.72(a)(5).
Response: The comments expressed agreement with the proposed
revisions. As such, no change to the rule language is required.
Issue 53: Removal of Exemption: Sec. 73.72(b)
Comment 1: The State of Nevada supported the Sec. 73.72(b)
requirements that licensees inform the NRC of any SNF shipment on a
public road, even those of short duration, to ensure that the NRC is
prepared to respond to any emergency or safeguards event. The commenter
indicated that this provision is important at reactor sites that might
ship SNF casks to off-site storage facilities, or utilize trucks for
intermodal transfer of shipping casks to off-site rail or barge
facilities.
Comment 2: The CSG Midwestern indicated that the Midwestern States
agree with the change to Sec. 73.72 that exempts a licensee from
providing advance notice for an onsite SNF shipment that ``does not
travel upon or cross a public highway.''
Response to Comments 1 and 2: The comments expressed agreement with
the proposed revisions. As such, no change to the rule language is
required.
Comment 3: The CHP agreed with the removal of the Sec. 73.72(b)
exemption that indicated that advance notification does not have to
occur for shipments or transfers of SNF as long as the one-way transit
time is 1 hour or less. The commenter indicated that Sec. 73.72
notifications only apply to the NRC.
Response to Comment 3: The NRC does not fully agree with this
comment. Section 73.37(b)(2) states that the licensee must provide
advance notice of shipments to both the NRC and to the Governor or the
Governor's designee. Under Sec. 73.72(b), licensees would also now be
required to provide advance notice for short-duration (1 hour or less)
shipments to the NRC and the State(s).
Issue 54: Regulatory Consistency and Certainty
Comment 1: One commenter (CSG Midwestern) expressed concerns about
the lack of consistency between terminology used by the NRC and other
agencies, i.e., DOE. The commenter
[[Page 29544]]
suggested that the rule would benefit from Federal agencies adopting
uniform terminology in connection with safeguards and security, which
would be consistent with President Obama's Executive Order 13556 on
Controlled Unclassified Information.
Response to Comment 1: The NRC does not have the authority to
determine what terminology other Federal agencies use when discussing
safeguards and security events. This issue is outside of the scope of
this rulemaking.
Comment 2: The commenter (CSG Midwestern) stated that the Blue
Ribbon Commission on America's Nuclear Future has called attention to
the distinction between NRC-regulated shipments of SNF and those
conducted by DOE, and that the commenter is interested in learning
whether the NRC requirements would apply to shipments of SNF to
regional storage facilities, should the Blue Ribbon Commission
recommend the siting of such facilities.
Private Citizen-Hardin recommended that the NRC clarify in the
preamble to the final rule that the NRC regulates SNF shipments from
NRC-regulated facilities to DOE facilities. The commenter also
recommended the revision of Sec. 73.6(d) to remove the exemption for
shipments made using DOE's OST (to or from NRC licensed facilities)
from NRC's recordkeeping and advance notification requirements. The
commenter stated that while DOE has independent authority to establish
transportation security requirements under the AEA, this is not true in
all circumstances, citing the example that the NRC regulates a small
number of DOE-operated facilities (two independent SNF storage
installations (ISFSIs) in Idaho and one in Colorado; and a mixed-oxide
fabrication facility in South Carolina). The commenter stated that
shipments of SNF to or from these ISFSIs are fully subject to NRC's
oversight, especially regarding advance shipment notifications and
safeguards event notifications of actual or imminent hostile actions.
The commenter indicated that the current language in Sec. 73.6(d)
exempts shipments made using DOE's OST (to or from NRC licensed
facilities) from NRC's recordkeeping and advance notification
requirements, but that this is inappropriate. The commenter elaborated
that DOE's voluntary compliance with NRC's regulations for shipments
made under DOE's auspices, is not the same as NRC's independent
regulatory oversight of the DOE shipments that fall under the NRC's
regulatory purview. The commenter further indicated that the DOE
shipments that fall under the NRC's regulatory authority should be
subject to the NRC's regulatory oversight, including the NRC's
inspection program, and recordkeeping and advance notification
requirements.
Response to Comment 2: The NRC cannot speculate on any actions that
might be taken by the Blue Ribbon Commission. Therefore, it would be
premature to comment on any recommendations resulting from the Blue
Ribbon Commission.
The NRC agrees with the comments that licensees shipping SNF from
NRC licensed facilities to DOE facilities for storage are required to
comply with NRC's regulations. This is discussed in Section I,
Background, subsection C, of this notice. The NRC does not agree with
the commenters' suggestion that Sec. 73.6(d) be revised to remove an
exemption from certain NRC regulations for special nuclear material
shipped using the DOE transportation system. This rulemaking deals with
security enhancements for the shipping of SNF not special nuclear
material. The Sec. 73.6 exemptions do not apply to SNF shipments. They
apply only to certain shipments of special nuclear material. Therefore,
the commenter's suggestion that Sec. 73.6 be revised is beyond the
scope of this rulemaking.
Issue 55: Editorial Comment: Footnote 1
Comment: A commenter from CSG Midwestern indicated that the
footnote explains that `irradiated reactor fuel'' and ``spent nuclear
fuel'' are used interchangeably, which is appropriate. The commenter
further elaborated that the proposed rule also uses the term ``spent
nuclear material'' in two instances, Sec. Sec. 73.37(b)(1)(iv) and
73.38(j)(3)). The commenter indicated that these references should be
changed to ``spent nuclear fuel'' or the rule should explain how the
term is distinct from the other two terms.
Response: The NRC agrees with this comment. The terms ``spent
nuclear material'' were replaced in the rule with ``spent nuclear
fuel.''
IV. Discussion of the Amendments by Section
A. Sec. 73.8(b)
The rule amends Sec. 73.8 (b) to include the new information
collection requirements resulting from the addition of the new Sec.
73.38.
B. Sec. 73.37(a)(1)
The rule amends Sec. 73.37(a)(1) to include the International
System of Measurement (SI) accompanied by the equivalent English units
in parentheses for the weight and dose rate measurements. This is under
the NRC's metrication policy (57 FR 46202; October 7, 1992), and the
Metric Conversion Act of 1975, 15 U.S.C. 205a et seq. The rule also
adds a footnote to clarify that the term ``irradiated reactor fuel,''
as used in Sec. 73.37 means ``spent nuclear fuel.''
C. Sec. 73.37(a)(1)(i)
The language in the current regulation solely addresses potential
radiological sabotage of SNF shipments. The rule revises Sec.
73.37(a)(1)(i) to clarify that any attempted theft or diversion of SNF
shipments is also covered by this regulation. The rule also revises
Sec. 73.37(a)(1)(i) and (a)(2)(iii) to remove the distinction between
heavily populated areas and other areas through or across which an SNF
shipment may pass. The differentiation of security requirements based
upon population densities creates potential vulnerabilities in the
physical security of the shipment. The requirement of armed escorts
throughout the shipment route minimizes the risk of theft, diversion,
or radiological sabotage. These revisions also address Requests 4 and 5
of PRM-73-10.
D. Sec. 73.37(a)(2)
The rule revises Sec. 73.37(a)(2) to insert the word ``system''
after the phrase ``protection'' in ``physical protection'' to read as
``physical protection system.'' This change provides consistency in the
terminology used throughout 10 CFR Part 73.
The amendment renumbers the paragraphs in Sec. 73.37(a)(2). The
current Sec. 73.37(a)(2)(ii) becomes Sec. 73.37(a)(2)(iii), and the
current Sec. 73.37(a)(2)(iii) becomes Sec. 73.37(a)(2)(ii). The rule
revises the current Sec. 73.37(a)(2)(iii) to clarify that the licensee
should delay, as well as impede, any attempted theft, diversion, or
radiological sabotage of SNF shipments. In addition, Sec.
73.37(a)(2)(ii) was revised to remove the phrase ``until response
forces arrive.''
E. Sec. 73.37(b)
This overall section is revised to provide a logical, step-by-step
approach to the development of a physical protection system for SNF
shipments that is more user-friendly.
F. Sec. 73.37(b)(1)
The rule adds a new section entitled, ``Preplan and Coordinate
Spent Nuclear Fuel Shipments,'' which is explained further in the
following paragraphs. The amendment moves and incorporates the current
Sec. 73.37(b)(1) into a new Sec. 73.37(b)(2).
[[Page 29545]]
The rule adds a new Sec. 73.37(b)(1)(i) which requires that
licensees instruct armed escorts on the use of deadly force. In
addition, in response to comments on the proposed rule, this section
includes a reference to the definition of ``armed escort'' in Sec.
73.2, which ensures a clear understanding of their security role. The
existing provisions of Sec. 73.37 provide performance objectives to be
achieved by the physical protection system for SNF shipments. These
performance objectives are not specific about the degree of force an
armed escort may use in protecting shipments.
Specifically, the licensee is to ensure that each non-LLEA armed
escort delay or impede attempted acts of theft, diversion, or
radiological sabotage by using force sufficient to counter the force
directed at that person, including the use of deadly force when there
is a reasonable belief that the use of deadly force is necessary in
self-defense or in the defense of others, or any other circumstances as
authorized by applicable Federal or State law. The requirements for use
of deadly force are established under applicable Federal and State laws
(i.e., the States through which the shipment is passing). The revision
is not authorizing the use of deadly force, but instead is ensuring
that the armed escorts are knowledgeable of the Federal and State
statutes that apply regarding the use of deadly force. The statutes
regarding the use of deadly force may vary depending on the
jurisdiction in which the shipment is located. Armed escorts are
expected to carry out their assigned duties, including implementation
of contingency procedures in case of attack, in a manner consistent
with the legal requirements applicable to other private armed guards in
a particular jurisdiction. The LLEA personnel acting as escorts are
exempt from this requirement since they are subject to, and should have
received training on, State and Federal restrictions regarding the use
of deadly force.
The rule adds new Sec. 73.37(b)(1)(ii) and 73.37(b)(1)(iii), which
are accounting and control measures that ensure that only authorized
individuals receive the shipment. The requirements will reduce the risk
of theft, diversion, or radiological sabotage of the SNF.
The rule re-designates Sec. 73.37(b)(8) as Sec. 73.37(b)(1)(iv)
and revises it to include requirements for licensees to preplan and
coordinate SNF shipments with States. The preplanning and coordination
include efforts to minimize intermediate stops and delays, arranging
for State law enforcement escorts, the sharing of positional
information and the development of route information, including the
location of safe havens. In addition, in response to comments on the
proposed rule, a minimum timeframe for preplanning and coordinating was
inserted into the rule. The rule requires licensees to contact States
for preplanning and coordination no later than 2 weeks prior to a
shipment or prior to the first shipment in a series of shipments. These
amendments ensure that States have early and substantial involvement in
the management of SNF shipments by participating in the initial stages
of the planning, coordination, and implementation of the shipment.
The rule re-designates Sec. 73.37(b)(6) as Sec. 73.37(b)(1)(v)
and revises it to make minor editorial changes. In addition, in
response to comments on the proposed rule, the term ``security-
related'' was inserted in front of the word ``emergency'' to read as
``security-related emergency''. This was done to avoid confusion with
other emergencies that would require the assistance of emergency
response personnel in the State.
The rule re-designates Sec. 73.37(b)(7) as Sec. 73.37(b)(1)(vi)
and revises it to expand the requirements for preplanning and
coordination with the NRC. Section 73.37(b)(1)(vi) requires the
following: (1) The identification of safe havens along road shipment
routes, (2) NRC route approval prior to the 10-day advance notice
required by Sec. 73.72(a)(2), and (3) the providing of specific
information to the NRC regarding the shipment (e.g., shipper,
consignee, carriers, transfer points, modes of shipment, and shipment
security arrangements). In addition, Sec. 73.37(b)(1)(vi) provides
that licensees must also comply with applicable DOT routing
requirements. In addition, the Sec. 73.37(b)(1)(vi)(A) proposed rule
language, ``. . . the route should include locations of safe havens . .
.'' was changed to ``. . . the route shall include locations of safe
havens . . .'' This change was made to incorporate language consistent
with NRC's Enforcement Policy.
The rule adds a new Sec. 73.37(b)(1)(vii), which requires the
documentation of preplanning and coordination activities. In addition,
the rule adds a new Sec. 73.37(b)(1)(viii). This section was added in
response to comments on the proposed rule that indicated that the NRC
should clearly identify what SNF shipment information is considered
Safeguards Information, and should be protected. Under Sec. 73.22(a),
information to be protected as Safeguards Information in Sec. 73.37
includes: (1) Schedules, itineraries, arrangements with LLEA, and
locations of safe havens, which is the information described in Sec.
73.37(b)(1), and Sec. 73.37(b)(2)(iii) through (b)(2)(v); (2) the
physical security plan, which is the information described in Sec.
73.37(b)(3); (3) the procedures for response to security contingency
events, and the tactics and capabilities required to defend against
attempted theft, diversion, or sabotage, which is the information
described in Sec. 73.37(b)(4); and (4) portions of inspection reports,
evaluations, audits, or investigations that contain details of a
licensee's or applicant's physical security system, which is the
information described in Sec. 73.37(f). In addition, according to
Sec. 73.22(a), vehicle immobilization features, intrusion alarm
devices, and communications systems, including communication
limitations, are also considered Safeguards Information.
G. Sec. 73.37(b)(2)
The rule re-designates Sec. 73.37(f), the advance notifications
provision, as Sec. 73.37(b)(2). This section was revised to reflect
the final rule ``Advance Notification to Native American Tribes of
Transport of Certain Types of Nuclear Waste,'' which was approved by
the Commission on January 30, 2012, published as a final rule on June
11, 2012 (77 FR 34195), with an effective date of August 10, 2012, and
a compliance date of June 11, 2013. In addition, the rule revisions
include: (1) A reference to the NRC Web site listing contact
information for State Governors and Governors' designees and Tribal
official or Tribal official's designee, which will be available after
the June 11, 2013 compliance date; (2) a requirement to include within
the notification the license number of the shipper and receiver; and
(3) a requirement to provide the estimated date and time of arrival of
the shipment at the destination. Section 73.37(b)(2) also includes new
recordkeeping and shipment cancellation notification requirements. In
addition, in response to comments on the proposed rule, the phrase
``moving through or across the boundary of any State,'' was inserted on
the first line after ``spent nuclear fuel.'' This phrase was
inadvertently omitted in the proposed rule text. In addition, in
response to comments on the proposed rule, Sec. 73.37(b)(2)(i)(B) and
73.37(b)(2)(i)(C) were revised. In response to comments on the proposed
rule, the Sec. 73.37(b)(2)(i)(B) requirement that the advanced
notification by mail be postmarked at least 7 days prior to the
commencement of a shipment was changed to 10 days. In response to
comments on the proposed rule, the Sec. 73.37(b)(2)(i)(C) requirement
that the
[[Page 29546]]
advanced notification by any other method must reach the office of the
Governor or the Governor's designee at least 4 days before commencement
of a shipment was changed to 7 days.
H. Sec. 73.37(b)(3)
The rule adds a new Sec. 73.37(b)(3) entitled, ``Transportation
Physical Protection Program.'' Section 73.37(b)(3) streamlines and
combines existing requirements in Sec. 73.37(b)(3) through (5) and
73.37(b)(9) through (11).
Section 73.37(b)(3)(i) introduces the term ``movement control
center,'' which replaces the term ``communication center'' used in the
current regulation. The term ``movement control center'' is used for
consistency with physical protection terminology and to better define
the role and responsibilities of the facility. The movement control
center is defined in Sec. 73.2 as an operations center which--is
remote from transport activity and which maintains periodic position
information on the movement of the shipment, receives reports of
attempted theft, diversion, or radiological sabotage, provides a means
for reporting these and other problems to appropriate agencies, and can
request and coordinate appropriate aid. In addition, in response to
comments on the proposed rule, this section includes a reference to the
definition of ``movement control center'' in Sec. 73.2, which ensures
a clear understanding of their security role.
The rule re-designates Sec. 73.37(b)(4) as Sec. 73.37(b)(3)(ii)
and revises it to reflect that the movement control center personnel
will have the authority to coordinate physical protection activities.
The rule also adds a new Sec. 73.37(b)(3)(iii), which clarifies the
duties of the movement control center personnel. The rule re-designates
Sec. 73.37(b)(5) as Sec. 73.37(b)(3)(iv) with minor editorial
changes. The rule adds a new Sec. 73.37(b)(3)(v), which requires
licensees to develop, maintain, and implement written physical
protection procedures. These procedures must address the following: (1)
The shipment access controls, (2) the roles and responsibilities of the
individuals responsible for the shipment, (3) the reporting of
safeguards events, (4) communications protocols, and (5) normal
conditions operating procedures.
The rule adds a new Sec. 73.37(b)(3)(vi), which incorporates the
recordkeeping requirements of the current Sec. 73.37(b)(2) and (3).
The rule re-designates Sec. 73.37(b)(10) as Sec. 73.37(b)(3)(vii)(A).
It also includes the additional training requirements described in
Sections III and IV of Part 73, Appendix B. This revision is a
clarification of the existing requirements in Sec. 73.37. The current
provisions in Sec. 73.37(b)(10) referred to the training requirements
in 10 CFR Part 73, Appendix D, and Appendix D, in turn, referred to
requirements in 10 CFR Part 73, Appendix B, Sections III and IV. For
clarity, the amendment adds a direct reference to Appendix B.
The rule re-designates Sec. 73.37(b)(11) as Sec.
73.37(b)(3)(vii)(B). This section changes the escort's time
requirements for contacting the movement control center. It is changed
from ``at least every 2 hours'' to ``random intervals, not to exceed 2
hours.'' This provision also replaces the term ``communications
center'' with ``movement control center.'' In addition, in response to
comments on the proposed rule, Sec. 73.37(b)(3)(vii)(B) was revised,
replacing the words ''make calls to'' with ``communicates with.''
The rule re-designates the current Sec. 73.37(b)(9) as Sec.
73.37(b)(3)(vii)(C). It also clarifies the armed escort's
responsibilities when the shipment vehicle is stopped, or the shipment
vessel is docked. These revisions ensure that when a shipment is
stationary at least one armed escort maintains constant visual
surveillance. The rule also provides for periodic reports of shipment
status to the movement control center by the armed escort.
I. Sec. 73.37(b)(4)
The rule re-designates Sec. 73.37(b)(2) as Sec. 73.37(b)(4)(i)-
(iii), ``Contingency and Response Procedures,'' and adds additional
requirements. The rule adds new Sec. 73.37(b)(4)(i) and
73.37(b)(4)(ii). These sections require licensees to develop and
implement contingency and response procedures, and require licensees to
train personnel in these procedures. The current requirements in Sec.
73.37(b) did not specifically require personnel training. They only
required escorts to receive instructions. The rule expressly requires
that written procedures are developed and that all personnel associated
with the transport and security of the shipment are adequately trained
to carry out their responsibilities. A response to a safeguards event
must be initiated without delay in order to have a high probability of
success in protecting the shipment. The response is more likely to be
effective if individuals are adequately trained in their roles and
responsibilities.
The rule also adds a new Sec. 73.37(b)(4)(iii), which incorporates
the current Sec. 73.37(b)(2) recordkeeping requirements. The rule re-
designates Sec. 73.37(b)(3) as Sec. 73.37(b)(4)(iv). The revisions
include the requirement that armed escorts take the necessary steps to
delay or impede theft, diversion, or radiological sabotage of SNF in
transit.
J. Sec. 73.37(c)
The rule revises Sec. 73.37(c)(1) by removing the phrase ``within
a heavily populated area,'' after ``transportation vehicle,'' and
deletes the current Sec. 73.37(c)(2) to eliminate the distinction
between heavily populated areas and other areas through which a
shipment of SNF shipment may pass. A new Sec. 73.37(c)(2) requires
non-LLEA armed escorts to have a minimum of two weapons. The NRC has
determined that it is prudent to require a minimum of two weapons for
each armed escort.
The requirements in the current Sec. 73.37(c)(3) describe specific
acceptable types of communication devices, i.e., use of citizens band
radio, radiotelephone, which may become obsolete in the near future.
Instead of specifying an acceptable communications technology, Sec.
73.37(c)(3) describes the performance characteristics of the
communications capabilities.
The rule adds a new Sec. 73.37(c)(6), which requires continuous
and active monitoring of the shipment by a telemetric position
monitoring system or an alternative tracking system. The revisions
ensure that shipments are continuously and actively monitored by a
tracking system that communicates continuous position information to a
movement control center. This requirement allows the movement control
center to receive positive confirmation of the location, status, and
control of the shipment. These requirements ensure immediate detection
of any deviations from the authorized route, which will provide a
prompt notification of any emergency or safeguards event. These
revisions will facilitate a more timely and effective response. In
addition, the Sec. 73.37(c)(6) proposed rule language, ``. . . These
procedures will include . . .'' was changed to ``. . . These procedures
shall include . . .'' This change was made to incorporate language
consistent with NRC's Enforcement Policy.
K. Sec. 73.37(d)
The rule revises Sec. 73.37(d)(1) by removing the phrase ``within
a heavily populated area,'' after ``shipment car,'' and deletes the
current Sec. 73.37(d)(2) to eliminate the distinction between heavily
populated areas and other areas through which a shipment of SNF may
pass. The rule adds a new Sec. 73.37(d)(2) to require a minimum of two
weapons for non-LLEA armed escorts. The rule
[[Page 29547]]
revises Sec. 73.37(d)(3), which describes acceptable types of
communication devices. The NRC recognizes that these devices may become
obsolete in the near future. Instead of specifying acceptable
communications technology, Sec. 73.37(d)(3) describes the performance
characteristics of the communication capabilities. The rule also adds a
new Sec. 73.37(d)(4), which addresses continuous and active monitoring
of the shipment by a telemetric position monitoring system or an
alternative tracking system. In addition, Sec. 73.37(d)(4) proposed
rule language, ``. . . These procedures will include . . .'' was
changed to ``. . . These procedures shall include . . .'' This change
was made to incorporate language consistent with NRC's Enforcement
Policy.
L. Sec. 73.37(e)
The title of this section is changed from ``Shipments by sea'' to
``Shipments by U.S. waters.'' In the first paragraph, the phrase ``is
by sea'' is replaced with ``traveling on U.S. waters.'' The rule
revises Sec. 73.37(e)(1) by removing the phrase ``within a heavily
populated area,'' after ``while docked at a U.S. port,'' and deletes
the current Sec. 73.37(e)(2) to eliminate the distinction between
heavily populated areas and other areas for shipments of SNF traveling
on U.S. waters. The rule adds a new Sec. 73.37(e)(2) to require a
minimum of two weapons for non-LLEA armed escorts. The rule revises
Sec. 73.37(e)(3) to eliminate the listing of communication devices.
Instead of specifying acceptable communication technology, Sec.
73.37(e)(3) describes the performance characteristics of the
communication capabilities.
M. Sec. 73.37(f)
The rule re-designates the current Sec. 73.37(f) as Sec.
73.37(b)(2). The new Sec. 73.37(b)(2) requires an immediate
investigation if a shipment is lost or unaccounted for after the
designated no-later-than arrival time. This requirement will facilitate
the location and recovery of shipments that may have come under control
of unauthorized persons.
N. Sec. 73.37(g)
The rule deletes the reference to Sec. 73.37(f)(3) and inserts the
reference to Sec. 73.37(b)(2)(iii) to reflect the reorganization of
Sec. 73.37.
O. Sec. 73.38
This rule adds a new Sec. 73.38, ``Personnel access authorization
requirements for irradiated reactor fuel in transit.'' Section 73.38
establishes the personnel access authorization requirements for
granting an individual unescorted access or access authorization
relative to SNF in transit. Section 73.38(a)(1) specifies the licensees
subject to the requirements in the section. Section 73.38(a)(2)
provides that licensees are required to establish, implement, and
maintain the overall effectiveness of the access authorization program.
Section 73.38(a)(3) provides that licensees should establish an access
authorization program for SNF in transit in their physical security
plan or transportation security plan. Section 73.38(b) establishes the
general performance objective to ensure that the individuals subject to
the access authorization program are trustworthy and reliable. Section
73.38(c)(1) specifies the individuals subject to the access
authorization program. Section 73.38(c)(2) clarifies that individuals
listed in Sec. Sec. 73.59 and 73.63 that are relieved of the
investigative elements of the SNF access authorization program.
Section 73.38(d) establishes the background investigation
requirements for individuals seeking unescorted access or access
authorization relative to SNF in transit. For an individual seeking
unescorted access or access authorization relative to SNF in transit,
Sec. 73.38(d)(1) through (9) require licensees to conduct
fingerprinting and an FBI identification and criminal history records
check; verification of true identity; employment history evaluation;
verification of education; military history verification; credit
history evaluation; criminal history review; character reputation and
determination; and obtain independent information, respectively.
Section 73.38(d)(10) allows a licensee to rely upon an alternate source
that has not been previously used, if the licensee cannot obtain
information on an individual from their previous employer, educational
institution, or any other entity with which the individual claims to
have been engaged. Section 73.38(d)(10) is patterned after Sec.
73.56(d)(4)(iv)(B).
Section 73.38(e) requires licensees to make and document
trustworthiness and reliability determinations after obtaining and
evaluating the information required by Sec. 73.38(d)(1) through (9).
Licensees will be required to maintain records of trustworthiness and
reliability for 5 years from the date the individual no longer requires
unescorted access or access authorization relative to SNF shipments.
Section 73.38(f) requires licensees to protect the information
obtained during background investigations, while allowing licensees to
transfer background information on an individual to another licensee if
the individual makes a written request for such transfer. Section
73.38(f) allows a licensee to rely on the background information
transferred from another licensee, provided that the receiving licensee
verifies the name, date of birth, social security number, sex, and
other applicable physical characteristics to ensure that the individual
is the person whose file has been transferred.
Many individuals who will be subject to the background
investigation portion of this rule may have recently satisfied similar
requirements under the prior NRC orders. For such individuals, it would
be unnecessary to re-fingerprint them. Thus, Sec. 73.38(g) permits
licensees to essentially re-use the results of a fingerprint check that
has been created within 5 years of the effective date of the rule. This
will not be ``relieving'' such individuals from the rule, but rather
permitting them to satisfy the fingerprinting requirements by other
means. It is important to emphasize, however, that a licensee's ability
to use previous fingerprinting results is not a substitute for the
licensee independently concluding that the person is suitable for
access authorization pertaining to SNF in transit, including subjecting
the person to all other applicable requirements of the background
investigation that are required by Sec. 73.38(d).
Section 73.38(h) establishes the requirements for reinvestigation
of individuals with unescorted access to SNF in transit. Section
73.38(h) establishes completion of reinvestigations within 10 years of
the last investigation. The scope of the investigation will be the past
10 years. It will consist of fingerprinting; an FBI identification and
criminal history records check; criminal history review; and credit
history re-evaluation. Section 73.38(i) establishes the requirements
for individuals to self-report legal actions taken by a law enforcement
authority or court of law to which the individual has been subject that
could result in incarceration or a court order or that requires a court
appearance. This provision requires the recipient of the report, if the
recipient is not the reviewing official, to promptly convey the report
to the reviewing official who will then evaluate the implications of
those actions with respect to the individual's trustworthiness and
reliability.
Section 73.38(j) establishes the requirements that licensees are
required to develop, implement, and maintain written procedures for
conducting the background investigations for persons applying for
unescorted access or access
[[Page 29548]]
authorization relative to SNF in transit. The procedures should address
notification of individuals denied unescorted access or access
authorization, including the basis for the denial or termination. The
procedures also provide for the review of the information by the
affected individuals. It ensures that individuals who have been denied
unescorted access or access authorization are not allowed unescorted
access to SNF or access to Safeguards Information pertaining to the
shipment. These individuals could be escorted by an approved
individual.
Section 73.38(k) establishes the requirements that an individual
has the right to correct his or her criminal history records before any
final adverse determination is made. If the individual believes that
his or her criminal history records are incorrect or incomplete in any
respect, he or she can initiate challenge procedures. These procedures
include direct application by the individual challenging the criminal
history records to the law enforcement agency that contributed the
questioned information. Section 73.38(l) establishes the requirements
that licensees retain documentation relative to the trustworthiness and
reliability determination for 5 years after the individual no longer
requires unescorted access or access authorization. The rule also
requires that corrected or new information be actively communicated by
the recipient to other licensees.
P. Sec. 73.72(a)
The rule revises Sec. 73.72(a) to insert a footnote that provides,
``For purposes of Sec. 73.72, the terms `irradiated reactor fuel' as
described in Sec. 73.37 and `spent nuclear fuel' are used
interchangeably.
Q. Sec. 73.72(a)(1)
The rule revises Sec. 73.72(a)(1) to insert ``and safeguards
notifications'' after ``Classified.''
R. Sec. 73.72(a)(4)
The rule revises Sec. 73.72(a)(4) to insert ``and safeguards
notifications'' after ``Classified.'' The rule revises Sec. Sec.
73.72(a)(4)(ii) and 73.72(a)(4)(iii) to require two additional
notifications of the NRC. Section 73.72(a)(4)(ii) provides that a
notification is made 2 hours before the commencement of the shipment
and Sec. 73.72(a)(4)(iii) provides that a notification is made when
the shipment reaches its final destination. The current requirements
only provided for notification of the NRC 2 days before the shipment
commenced.
S. Sec. 73.72(a)(5)
The rule revises Sec. 73.72(a)(5) to insert ``and safeguards
notifications'' after ``Classified.'' The rule revises Sec.
73.72(a)(5) to clarify the meaning of the language ``greater than
6 hours.'' The revision deletes ``greater'' and inserts
``more,'' and deletes the symbol ``.''
T. Sec. 73.72(b)
The current provisions in Sec. 73.72(b) exempted from NRC advance
notification requirements road shipments or transfers that were one-way
and had transit times of 1 hour or less. This amendment removes this
exemption from the regulations. The exemption has been changed to apply
only to an on-site transfer by the licensee that does not travel upon
public roads. This revision ensures that the NRC is informed of any SNF
shipment on a public road, even those of short duration, and the NRC is
prepared to respond to an emergency or safeguards event. It will
mitigate the risk of theft, diversion, or radiological sabotage of a
shipment.
Table 1--Cross Reference Between Amendments and Existing Regulations
------------------------------------------------------------------------
The amendments Existing regulation
------------------------------------------------------------------------
73.8(b).......................... 73.8(b).
73.37(a)(1)...................... 73.37(a)(1).
73.37(a)(2)...................... 73.37(a)(2).
73.37(b)(1)(i) through (iv)...... New (no existing equivalent).
73.37(b)(1)(iv)(A)............... 73.37(b)(8).
73.37(b)(1)(iv)(B)............... New (no existing equivalent).
73.37(b)(1)(iv)(C)............... New (no existing equivalent).
73.37(b)(1)(iv)(D)............... New (no existing equivalent).
73.37(b)(1)(v)................... 73.37(b)(6).
73.37(b)(1)(vi).................. 73.37(b)(7).
73.37(b)(1)(vi)(A)............... New (no existing equivalent).
73.37(b)(1)(vi)(B)............... 73.37(b)(1).
73.37(b)(1)(vi)(C)............... 73.37(b)(1).
73.37(b)(1)(vii)................. New (no existing equivalent).
73.37(b)(1)(viii)................ New (no existing equivalent).
73.37(b)(2)...................... 73.37(b)(1) and 73.37(f).
73.37(b)(2)(i)................... 73.37(f)(1).
73.37(b)(2)(ii).................. 73.37(f)(2).
73.37(b)(2)(iii)................. 73.37(f)(3).
73.37(b)(2)(iv).................. 73.37(f)(4).
73.37(b)(2)(v.................... 73.37(f)(4).
73.37(b)(2)(vi).................. 73.70.
73.37(b)(3)(i)................... New (no existing equivalent).
73.37(b)(3)(ii).................. 73.37(b)(4).
73.37(b)(3)(iii)................. 73.37(b)(4).
73.37(b)(3)(iv).................. 73.37(b)(5).
73.37(b)(3)(v)................... 73.37(b)(2).
73.37(b)(3)(vi).................. 73.37(b)(3).
73.37(b)(3)(vii)(A).............. 73.37(b)(10).
73.37(b)(3)(vii)(B).............. 73.37(b)(11).
73.37(b)(3)(vii)(C).............. 73.37(b)(9).
73.37(b)(4)(i) through (iii)..... 73.37(b)(2).
73.37(b)(4)(iv).................. 73.37(b)(3).
73.37(c)......................... 73.37(c).
73.37(c)(1)...................... 73.37(c)(1).
[[Page 29549]]
--(none-paragraph deleted)--..... 73.37(c)(2).
73.37(c)(2)...................... New (no existing equivalent).
73.37(c)(3)...................... 73.37(c)(3).
73.37(c)(4)...................... 73.37(c)(4).
73.37(c)(5)...................... 73.37(c)(5).
73.37(c)(6)...................... New (no existing equivalent).
73.37(d)......................... 73.37(d).
73.37(d)(1)...................... 73.37(d)(1).
--(none-paragraph deleted)--..... 73.37(d)(2).
73.37(d)(2)...................... New (no existing equivalent).
73.37(d)(3)...................... 73.37(d)(3).
73.37(d)(4)...................... New (no existing equivalent).
73.37(e)......................... Title changed to Shipments by U.S.
waters.
73.37(e)......................... 73.37(4).
73.37(e)(1)...................... 73.37(e)(1).
(none--for first half of 73.37(e)(2).
provision--second part of
provision retained in
73.37(e)(3)).
73.37(e)(2)...................... New (no existing equivalent).
73.37(e)(3)...................... Second part of 73.37(e)(2)--``. . .
an officer of the shipment vessel's
crew, who will assure that the
shipment is unloaded only as
authorized by the licensee.''
73.37(e)(4)...................... 73.37(e)(3).
73.37(f)......................... 73.71 reporting provisions.
73.37(g)......................... 73.37(g).
73.38............................ New--incorporates background
investigations.
73.72(a)(1)...................... 73.72(a)(1).
73.72(a)(4)(i) through (iii)..... 73.72(a)(4).
73.72(a)(5)...................... 73.72(a)(5).
--(none-exemption deleted from 73.72(b).
existing).
73.72(b)......................... New (no existing equivalent--new
exemption).
------------------------------------------------------------------------
V. Criminal Penalties
For the purpose of Section 223 of the AEA, the NRC is amending 10
CFR Part 73 under one or more of Sections 161b, 161i, or 161o of the
AEA. Willful violations of the rule would be subject to criminal
enforcement.
VI. Agreement State Compatibility
Under the ``Policy Statement on Adequacy and Compatibility of
Agreement States Programs,'' approved by the Commission on June 20,
1997, and published in the Federal Register (62 FR 46517; September 3,
1997), this rule is classified as compatibility Category ``NRC''; and
10 CFR part 73 in its entirety is designated as Category ``NRC.''
Agreement State Compatibility is not required for Category ``NRC''
regulations. The NRC program elements in this category are those that
relate directly to areas of regulation reserved to the NRC by the AEA,
or the provisions of 10 CFR. Thus, States should not adopt these
program elements.
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 amends Sec. 73.37,
which is the requirements for the physical protection of SNF in
transit; adds a new Sec. 73.38, which establishes the requirements for
a background investigation of individuals applying for access
authorization to SNF shipments or SGI information pertaining to SNF
shipments; and will amend Sec. 73.72, which contains the requirements
for the advance notification to the NRC of SNF along with other special
nuclear material. This action does not constitute the establishment of
a standard that establishes generally applicable requirements.
VIII. Environmental Assessment and Finding of No Significant
Environmental Impact: Availability
Under the National Environmental Policy Act of 1969, as amended,
and the NRC regulations in Subpart A of 10 CFR part 51, the NRC has
determined that this rule is not a major Federal action significantly
affecting the quality of the human environment and, therefore, an
environmental impact statement is not required for this rulemaking.
However, the NRC has prepared an environmental assessment and, on the
basis of this environmental assessment, has made a finding of no
significant impact. The implementation of the security rule
requirements will not result in significant changes to the licensees'
facilities, nor will such implementation result in any significant
increase in effluents released to the environment.
Similarly, the implementation of the security rule requirements
will not affect occupational exposure. No construction of new
structures or other earth disturbing activities, on the part of
affected licensees, is anticipated in connection with licensees'
implementation of the rule's requirements. The NRC has determined that
the implementation of this rule will be procedural.
The determination of this environmental assessment is that there
will be no significant impact to the public from this action. This
conclusion was published in the environmental assessment that was
posted to the Federal Rulemaking Web site, http://www.regulations.gov,
for 180 days after publication of the proposed rule. The NRC invited
comments on the environmental assessment. No comments were received on
the content of the environmental assessment.
[[Page 29550]]
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 number 3150-0002.
The burden to the public for these information collections is
estimated to average 2.7 hours per response. This includes 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, Chad
Whiteman, Office of Information and Regulatory Affairs, NEOB-10202,
(3150-0002), Office of Management and Budget, Washington, DC 20503.
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 NRC has prepared a regulatory analysis on this regulation. The
analysis examines the costs and benefits of the alternatives considered
by the NRC. The analysis is available for inspection in the NRC's
Public Document Room, 11555 Rockville Pike, Rockville, MD 20852. The
analysis may also be viewed and downloaded electronically at http://www.regulations.gov by searching on Docket ID NRC-2009-0163.
XI. Regulatory Flexibility Certification
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the
Commission certifies that this rule will not, if promulgated, have a
significant economic impact on a substantial number of small entities.
The companies that possess or transport SNF do not fall within the
scope of the definition of ``small entities'' set forth in the
Regulatory Flexibility Act or the size standards established by the NRC
(Sec. 2.810).
XII. Backfitting
The NRC has determined that the Backfit Rule does not apply to this
rule, because this amendment does not add or modify any regulations to
impose backfits as defined in Sec. 50.109 or Sec. 72.62. The
regulations in Part 50.109(a)(1) defines backfitting as the
modification of or addition to systems, structures, components, or
design of a facility; or the design approval or manufacturing license
for a facility; or the procedures or organization required to design,
construct or operate a facility. The definition in Sec. 72.62 is
similar in relevant part to the definition in 10 CFR part 50. This
rulemaking will impose new requirements to enhance the security of SNF
in transit. It will not make any modification or addition to any
systems, structures or components or the design of a facility, affect
the design approval or manufacturing license of a facility, or affect
the procedures or organization required to design, construct or operate
a facility. Therefore, it is the NRC's determination that 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.
XIV. Plain Writing
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal
agencies to write documents in a clear, concise, and well-organized
manner. The NRC has written this document to be consistent with the
Plain Writing Act as well as the Presidential Memorandum, ``Plain
Language in Government Writing,'' published June 10, 1998 (63 FR
31883).
List of Subjects in 10 CFR Part 73
Criminal penalties, Export, Hazardous materials transportation,
Import, Nuclear materials, Nuclear power plants and reactors, Reporting
and recordkeeping requirements, Security measures.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting
the following amendments to 10 CFR part 73.
PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS
0
1. The authority citation for part 73 continues to read as follows:
Authority: 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
2. Section 73.8(b) is revised to read as follows:
Sec. 73.8 Information collection requirements: OMB approval.
* * * * *
(b) The approved information collection requirements contained in
this part appear in Sec. Sec. 73.5, 73.20, 73.21, 73.24, 73.25, 73.26,
73.27, 73.37, 73.38, 73.40, 73.45, 73.46, 73.50, 73.54, 73.55, 73.56,
73.57, 73.58, 73.60, 73.67, 73.70, 73.71, 73.72, 73.73, 73.74, and
appendices B, C, and G to this part.
* * * * *
0
3. Section 73.37 is revised to read as follows:
Sec. 73.37 Requirements for physical protection of irradiated reactor
fuel in transit.
(a) Performance objectives. (1) Each licensee who transports, or
delivers to a carrier for transport, in a single shipment, a quantity
of irradiated reactor fuel \1\ in excess of 100 grams (0.22 lbs) in net
weight of irradiated fuel, exclusive of cladding or other structural or
packaging material, which has a total external radiation dose rate in
excess of 1 Gy (100 rad) per hour at a distance of 1 meter (3.3 feet)
from any accessible surface without intervening shielding, shall
establish and maintain, or make arrangements for, and assure the proper
implementation of, a physical protection system for shipments of such
material that will achieve the following objectives:
---------------------------------------------------------------------------
\1\ For purposes of 10 CFR 73.37, the terms ``irradiated reactor
fuel'' and ``spent nuclear fuel'' are used interchangeably.
---------------------------------------------------------------------------
(i) Minimize the potential for theft, diversion, or radiological
sabotage of spent nuclear fuel shipments; and
(ii) Facilitate the location and recovery of spent nuclear fuel
shipments that may have come under the control of unauthorized persons.
(2) To achieve these objectives, the physical protection system
shall:
(i) Provide for early detection and assessment of attempts to gain
unauthorized access to, or control over, spent nuclear fuel shipments;
[[Page 29551]]
(ii) Delay and impede attempts at theft, diversion, or radiological
sabotage of spent nuclear fuel shipments; and
(iii) Provide for notification to the appropriate response forces
of any attempts at theft, diversion, or radiological sabotage of a
spent nuclear fuel shipment.
(b) General requirements. To achieve the performance objectives of
paragraph (a) of this section, a physical protection system established
and maintained, or arranged for, by the licensee shall include the
following elements:
(1) Preplan and coordinate spent nuclear fuel shipments. Each
licensee shall:
(i) Ensure that each armed escort, as defined in Sec. 73.2, is
instructed on the use of force sufficient to counter the force directed
at the person, including the use of deadly force when the armed escort
has a reasonable belief that the use of deadly force is necessary in
self-defense or in the defense of others, or any other circumstances,
as authorized by applicable Federal and State laws. This deadly force
training requirement does not apply to members of local law enforcement
agencies (LLEAs) performing escort duties for spent nuclear fuel
shipments.
(ii) Preplan and coordinate shipment itineraries to ensure that the
receiver at the final delivery point is present to accept the shipment.
(iii) Ensure written certification of any transfer of custody.
(iv) Preplan and coordinate shipment information no later than 2
weeks prior to the shipment or prior to the first shipment of a series
of shipments with the governor of a State, or the governor's designee,
of a shipment of spent nuclear fuel through or across the boundary of
the State, in order to:
(A) Minimize intermediate stops and delays;
(B) Arrange for State law enforcement escorts;
(C) Arrange for positional information sharing when requested; and
(D) Develop route information, including the identification of safe
havens.
(v) Arrange with local law enforcement authorities along the
shipment route, including U.S. ports where vessels carrying spent
nuclear fuel shipments are docked, for their response to a security-
related emergency or a call for assistance.
(vi) Preplan and coordinate with the NRC to obtain advance approval
of the routes used for road and rail shipments of spent nuclear fuel,
and of any U.S. ports where vessels carrying spent nuclear fuel
shipments are scheduled to stop. In addition to the requirements of
this section, routes used for shipping spent nuclear fuel shall comply
with the applicable requirements of the DOT regulations in Title 49 of
the Code of Federal Regulations (49 CFR), in particular those
identified in Sec. 71.5 of this chapter. The advance approval
application shall provide:
(A) For road shipments, the route shall include locations of safe
havens that have been coordinated with the appropriate State(s).
(B) The NRC approval shall be obtained prior to the 10-day advance
notification requirement in Sec. 73.72 of this part.
(C) Information to be supplied to the NRC shall include, but is not
limited to, the following:
(1) Shipper, consignee, carriers, transfer points, modes of
shipment; and
(2) A statement of shipment security arrangements, including, if
applicable, points where armed escorts transfer responsibility for the
shipment.
(vii) Document the preplanning and coordination activities.
(viii) Ensure the protection of Safeguards Information relative to
spent nuclear fuel in transit in accordance with Sec. Sec. 73.21 and
73.22 of this part, especially the information described in Sec.
73.22(a)(2), which would include, at a minimum, the protection of the
following information:
(A) The preplanning and coordination activities;
(B) Transportation physical security plan;
(C) Schedules and itineraries for specific spent nuclear fuel
shipments until the information is no longer controlled as Safeguards
Information, that is until at least 10 days after the shipment has
entered or originated within the state; or for the case of a shipment
in a series of shipments whose schedules are related, a statement that
schedule information must be protected until 10 days after the last
shipment in the series has entered or originated within the state and
an estimate of the date on which the last shipment in the series will
enter or originate within the state;
(D) Vehicle immobilization features, intrusion alarm devices, and
communications;
(E) Arrangements with and capabilities of local police response
forces, and locations of safe havens identified along the
transportation route;
(F) Limitations of communications during transport;
(G) Procedures for response to security contingency events;
(H) Information concerning the tactics and capabilities required to
defend against attempted sabotage, or theft and diversion of irradiated
reactor fuel, or related information; and
(I) Engineering or safety analyses, security-related procedures or
scenarios and other information related to the protection of the
transported material if the unauthorized disclosure of such analyses,
procedures, scenarios, or other information could reasonably be
expected to have a significant adverse effect on the health and safety
of the public or the common defense and security by significantly
increasing the likelihood of theft, diversion, or sabotage of spent
nuclear fuel in transit.
(2) Advance notifications. Prior to the shipment of spent nuclear
fuel moving through or across the boundary of any State, outside the
confines of the licensee's facility or other place of use or storage, a
licensee subject to this section shall provide notification to the NRC,
under Sec. 73.72 of this part, and the governor of the State(s), or
the governor's designee(s), of the spent nuclear fuel shipment. After
June 11, 2013, the compliance date of the Tribal notification final
rule, 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. Contact
information for each State, including telephone and mailing addresses
of governors and governors' designees, and participating Tribes,
including telephone and mailing addresses of Tribal officials and
Tribal official's designees, is available on the NRC Web site at:
http://nrc-stp.ornl.gov/special/designee.pdf. A list of the contact
information is also available upon request from the Director, Division
of Intergovernmental Liaison and Rulemaking, U.S. Nuclear Regulatory
Commission, Washington, DC 20555. The licensee shall comply with the
following criteria in regard to each notification:
(i) Procedures for submitting advance notification. (A) The
notification must be in writing and sent to the office of each
appropriate governor or the governor's designee and each appropriate
Tribal official or the Tribal official's designee.
(B) A notification delivered by mail must be postmarked at least 10
days before transport of a shipment within or through the State or
Tribal reservation.
(C) A notification delivered by any other method must reach the
office of the governor or the governor's designee and any Tribal
official or Tribal official's designee at least 7 days before
[[Page 29552]]
transport of a shipment within or through the State.
(ii) Information to be furnished in advance notification of
shipment. The notification must include the following information:
(A) The name, address, and telephone number of the shipper, carrier
and receiver of the shipment and the license number of the shipper and
receiver;
(B) A description of the shipment as specified by DOT in 49 CFR
172.202 and 172.203(d); and
(C) A listing of the routes to be used within the State or Tribal
reservation.
(iii) Separate enclosure. The licensee shall provide the following
information, under Sec. 73.22(f)(1), in a separate enclosure to the
written notification:
(A) The estimated date and time of departure from the point of
origin of the shipment;
(B) The estimated date and time of entry into the State or Tribal
reservation;
(C) The estimated date and time of arrival of the shipment at the
destination;
(D) For the case of a single shipment whose schedule is not related
to the schedule of any subsequent shipment, a statement that schedule
information must be protected under the provisions of Sec. Sec. 73.21
and 73.22 until at least 10 days after the shipment has entered or
originated within the State or Tribal reservation; and
(E) For the case of a shipment in a series of shipments whose
schedules are related, a statement that schedule information must be
protected under the provisions of Sec. Sec. 73.21 and 73.22 of this
part 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.
(iv) Revision notice. A licensee shall notify by telephone a
responsible individual in the office of the governor or in the office
of the governor's designee 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 under paragraph (b)(2)(iii) 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.
(v) Cancellation notice. Each licensee who cancels a shipment for
which advance notification has been sent shall send a cancellation
notice to the governor or to the governor's designee of each State
previously notified, each Tribal official or the Tribal official's
designee previously notified, and to the NRC's Director, Division of
Security Policy, Office of Nuclear Security and Incident Response, U.S.
Nuclear Regulatory Commission, Washington, DC 20555. The licensee shall
state in the notice that it is a cancellation and identify the advance
notification that is being canceled.
(vi) Records. The licensee shall retain a copy of the preplanning
and coordination activities, advance notification, and any revision or
cancellation notice as a record for 3 years under Sec. 73.70 of this
part.
(3) Transportation physical protection program. (i) The
transportation physical protection program established under paragraph
(a)(1) of this section shall include armed escorts to protect spent
nuclear fuel shipments and a movement control center, as defined in
Sec. 73.2 of this part, staffed and equipped to monitor and control
spent nuclear fuel shipments, to communicate with local law enforcement
authorities, and to respond to safeguards contingencies.
(ii) The movement control center must be staffed continuously by at
least one individual who will actively monitor the progress of the
spent nuclear fuel shipment and who has the authority to coordinate the
physical protection activities.
(iii) The movement control center personnel must monitor the
shipment continuously, i.e., 24-hours per day, from the time the
shipment commences, or if delivered to a carrier for transport, from
the time of delivery of the shipment to the carrier, until safe
delivery of the shipment at its final destination, and must immediately
notify the appropriate agencies in the event of a safeguards event
under the provisions of Sec. 73.71 of this part.
(iv) The movement control center personnel and the armed escorts
must maintain a written log for each spent nuclear fuel shipment, which
will include information describing the shipment and significant events
that occur during the shipment. The log must be available for review by
authorized NRC personnel for a period of at least 3 years following
completion of the shipment.
(v) The licensee shall develop, maintain, revise and implement
written transportation physical protection procedures which address the
following:
(A) Access controls to ensure no unauthorized persons have access
to the shipment and Safeguards Information;
(B) Roles and responsibilities of the movement control center
personnel, drivers, armed escorts and other individuals relative to the
security of the shipment;
(C) Reporting of safeguards events under Sec. 73.71 of this part;
(D) Communications protocols that include a strategy for the use of
authentication and duress codes, the management of refueling or other
stops, detours, and the loss of communications, temporarily or
otherwise; and
(E) Normal conditions operating procedures.
(vi) The licensee shall retain as a record the transportation
physical protection procedures for 3 years after the close of period
for which the licensee possesses the spent nuclear fuel.
(vii) The transportation physical protection program shall:
(A) Provide that escorts (other than members of local law
enforcement agencies serving as armed escorts, or ship's officers
serving as unarmed escorts) have successfully completed the training
required by appendix D of this part, including the equivalent of the
weapons training and qualifications program required of guards, as
described in sections III and IV of appendix B of this part, to assure
that each such individual is fully qualified to use the assigned
weapons;
(B) Provide that shipment escorts communicate with the movement
control center at random intervals, not to exceed 2 hours, to advise of
the status of the shipment for road and rail shipments, and for sea
shipments while shipment vessels are docked at U.S. ports; and
(C) Provide that at least one armed escort remains alert at all
times, maintains constant visual surveillance of the shipment, and
periodically reports to the movement control center at regular
intervals not to exceed 30 minutes during periods when the shipment
vehicle is stopped, or the shipment vessel is docked.
(4) Contingency and response procedures. (i) In addition to the
procedures established under paragraph (b)(3)(v) of this section, the
licensee shall establish, maintain, and follow written contingency and
response procedures to address threats, thefts, and radiological
sabotage related to spent nuclear fuel in transit.
(ii) The licensee shall ensure that personnel associated with the
shipment shall be appropriately trained regarding contingency and
response procedures.
(iii) The licensee shall retain the contingency and response
procedures as a record for 3 years after the close of
[[Page 29553]]
period for which the licensee possesses the spent nuclear fuel.
(iv) The contingency and response procedures must direct that, upon
detection of the abnormal presence of unauthorized persons, vehicles,
or vessels in the vicinity of a spent nuclear fuel shipment or upon
detection of a deliberately induced situation that has the potential
for damaging a spent nuclear fuel shipment, the armed escort will:
(A) Determine whether or not a threat exists;
(B) Assess the extent of the threat, if any;
(C) Implement the procedures developed under paragraph (b)(4)(i) of
this section;
(D) Take the necessary steps to delay or impede threats, thefts, or
radiological sabotage of spent nuclear fuel; and
(E) Inform local law enforcement agencies of the threat and request
assistance without delay, but not to exceed 15 minutes after discovery.
(c) Shipments by road. In addition to the provisions of paragraph
(b) of this section, the physical protection system for any portion of
a spent nuclear fuel shipment by road shall provide that:
(1) The transport vehicle is:
(i) Occupied by at least two individuals, one of whom serves as an
armed escort, and escorted by an armed member of the local law
enforcement agency in a mobile unit of such agency; or
(ii) Led by a separate vehicle occupied by at least one armed
escort, and trailed by a third vehicle occupied by at least one armed
escort.
(2) As permitted by law, all armed escorts are equipped with a
minimum of two weapons. This requirement does not apply to local law
enforcement agency personnel who are performing escort duties.
(3) The transport vehicle and each escort vehicle are equipped with
redundant communication abilities that provide 2-way communications
between the transport vehicle, the escort vehicle(s), the movement
control center, local law enforcement agencies, and one another. To
ensure that 2-way communication is possible at all times, alternate
communications should not be subject to the same failure modes as the
primary communication.
(4) The transport vehicle is equipped with NRC-approved features
that permit immobilization of the cab or cargo-carrying portion of the
vehicle.
(5) The transport vehicle driver has been familiarized with, and is
capable of implementing, transport vehicle immobilization,
communications, and other security procedures.
(6) Shipments are continuously and actively monitored by a
telemetric position monitoring system or an alternative tracking system
reporting to a movement control center. A movement control center shall
provide positive confirmation of the location, status, and control over
the shipment. The movement control center shall implement preplanned
procedures in response to deviations from the authorized route or a
notification of actual, attempted, or suspicious activities related to
the theft, loss, diversion, or radiological sabotage of a shipment.
These procedures shall include, but not be limited to, the
identification of and contact information for the appropriate local law
enforcement agency along the shipment route.
(d) Shipments by rail. In addition to the provisions of paragraph
(b) of this section, the physical protection system for any portion of
a spent nuclear fuel shipment by rail shall provide that:
(1) A shipment car is accompanied by two armed escorts (who may be
members of a local law enforcement agency), at least one of whom is
stationed at a location on the train that will permit observation of
the shipment car while in motion.
(2) As permitted by law, all armed escorts are equipped with a
minimum of two weapons. This requirement does not apply to local law
enforcement agency personnel who are performing escort duties.
(3) The train operator(s) and each escort are equipped with
redundant communication abilities that provide 2-way communications
between the transport, the escort vehicle(s), the movement control
center, local law enforcement agencies, and one another. To ensure that
2-way communication is possible at all times, alternate communications
should not be subject to the same failure modes as the primary
communication.
(4) Rail shipments are monitored by a telemetric position
monitoring system or an alternative tracking system reporting to the
licensee, third-party, or railroad movement control center. The
movement control center shall provide positive confirmation of the
location of the shipment and its status. The movement control center
shall implement preplanned procedures in response to deviations from
the authorized route or to a notification of actual, attempted, or
suspicious activities related to the theft, diversion, or radiological
sabotage of a shipment. These procedures shall include, but not be
limited to, the identification of and contact information for the
appropriate local law enforcement agency along the shipment route.
(e) Shipments by U.S. waters. In addition to the provisions of
paragraph (b) of this section, the physical protection system for any
portion of a spent nuclear fuel shipment traveling on U.S. waters shall
provide that:
(1) A shipment vessel while docked at a U.S. port is protected by:
(i) Two armed escorts stationed on board the shipment vessel, or
stationed on the dock at a location that will permit observation of the
shipment vessel; or
(ii) A member of a local law enforcement agency, equipped with
normal local law enforcement agency radio communications, who is
stationed on board the shipment vessel, or on the dock at a location
that will permit observation of the shipment vessel.
(2) As permitted by law, all armed escorts are equipped with a
minimum of two weapons. This requirement does not apply to local law
enforcement agency personnel who are performing escort duties.
(3) A shipment vessel while within U.S. territorial waters shall be
accompanied by an individual, who may be an officer of the shipment
vessel's crew, who will assure that the shipment is unloaded only as
authorized by the licensee.
(4) Each armed escort is equipped with redundant communication
abilities that provide 2-way communications between the vessel, the
movement control center, local law enforcement agencies, and one
another. To ensure that 2-way communication is possible at all times,
alternate communications should not be subject to the same failure
modes as the primary communication.
(f) Investigations. Each licensee who makes arrangements for the
shipment of spent nuclear fuel shall immediately conduct an
investigation, in coordination with the receiving licensee, of any
shipment that is lost or unaccounted for after the designated no-later-
than arrival time in the advance notification.
(g) State officials, State employees, Tribal officials, Tribal
employees, and other individuals, whether or not licensees of the NRC,
who receive information of the kind specified in paragraph (b)(2)(iii)
of this section and any other Safeguards Information as defined in
Sec. 73.22(a) of this part shall protect that information against
unauthorized disclosure as specified in Sec. Sec. 73.21 and 73.22 of
this part.
0
4. Section 73.38 is added to read as follows:
[[Page 29554]]
Sec. 73.38 Personnel access authorization requirements for irradiated
reactor fuel in transit.
(a) General. (1) Each licensee who transports, or delivers to a
carrier for transport, in a single shipment, a quantity of spent
nuclear fuel as described in Sec. 73.37(a)(1) of this part shall
comply with the requirements of this section, as appropriate, before
any spent nuclear fuel is transported or delivered to a carrier for
transport.
(2) Each licensee shall establish, implement, and maintain its
access authorization program under the requirements of this section.
(i) Each licensee shall be responsible for the continuing
effectiveness of the access authorization program.
(ii) Each licensee shall ensure that the access authorization
program is reviewed at an appropriate frequency to confirm compliance
with the requirements of this section and that prompt comprehensive
actions are taken to correct any noncompliance that is identified.
(iii) The review shall evaluate all program performance objectives
and requirements.
(iv) Each review report must document conditions that are adverse
to the proper performance of the access authorization program, the
cause of the condition(s), and when appropriate, recommended corrective
actions, and corrective actions taken. The licensee shall review the
audit findings and take any additional corrective actions necessary to
preclude repetition of the condition, including reassessment of the
deficient areas where indicated.
(3) By August 19, 2013, each licensee that is subject to this
provision shall implement the requirements of this section through
revisions to its physical security plan or transportation security
plan.
(b) General performance objective. The licensee's access
authorization program must ensure that the individuals specified in
paragraph (c) of this section are trustworthy and reliable such that
they do not constitute an unreasonable risk to public health and safety
or the common defense and security.
(c) Applicability. (1) Licensees shall subject the following
individuals to an access authorization program:
(i) Any individual to whom a licensee intends to grant unescorted
access to spent nuclear fuel in transit, including employees of a
contractor or vendor;
(ii) Any individual whose duties and responsibilities permit the
individual to take actions by physical or electronic means that could
adversely impact the safety, security, or emergency response to spent
nuclear fuel in transit (i.e., movement control personnel, vehicle
drivers, or other individuals accompanying spent nuclear fuel
shipments);
(iii) Any individual whose duties and responsibilities include
implementing a licensee's physical protection program under Sec.
73.37, including but not limited to, non-LLEA armed escorts;
(iv) Any individual whose assigned duties and responsibilities
provide access to spent nuclear fuel shipment information that is
considered to be Safeguards Information under Sec. 73.22(a)(2); and
(v) The licensee access authorization program reviewing official.
(2) Fingerprinting, and the identification and criminal history
records checks required by Section 149 of the Atomic Energy Act of
1954, as amended, and other elements of the background investigation
are not required for the following individuals prior to granting access
authorization relative to spent nuclear fuel in transit:
(i) Persons identified in Sec. Sec. 73.59 and 73.61 of this part;
(ii) Federal, State, and local officials, including inspectors,
whose occupational status are consistent with the promotion of common
defense and security and the protection of public health and safety
relative to spent nuclear fuel in transit;
(iii) Emergency response personnel who are responding to an
emergency;
(iv) An individual who has had a favorably adjudicated U.S.
Government criminal history records check within the last 5 years,
under a comparable U.S. Government program involving fingerprinting and
an FBI identification and criminal history records check (e.g. National
Agency Check, Transportation Worker Identification Credentials (TWIC)
under 49 CFR part 1572, Bureau of Alcohol Tobacco Firearms and
Explosives background check and clearances under 27 CFR part 555,
Health and Human Services security risk assessments for possession and
use of select agents and toxins under 42 CFR part 73, Hazardous
Material security threat assessment for hazardous material endorsement
to commercial drivers license under 49 CFR part 1572, Customs and
Border Patrol's Free and Secure Trade (FAST) Program) provided that he
or she makes available the appropriate documentation. Written
confirmation from the agency/employer that granted the Federal security
clearance or reviewed the criminal history records check must be
provided to the licensee. The licensee shall retain this documentation
for a period of 3 years from the date the individual no longer requires
access authorization relative to spent nuclear fuel in transit; and
(v) Any individual who has an active Federal security clearance,
provided that he or she makes available the appropriate documentation.
Written confirmation from the agency/employer that granted the Federal
security clearance or reviewed the criminal history records check must
be provided to the licensee. The licensee shall retain this
documentation for a period of 3 years from the date the individual no
longer requires access authorization relative to spent nuclear fuel in
transit.
(d) Background investigation. Before allowing an individual to have
unescorted access or access authorization relative to spent nuclear
fuel \2\ in transit the licensees shall complete a background
investigation as defined in Sec. 73.2 of this part of the individual
seeking to have unescorted access or access authorization. The scope of
the investigation must encompass at least the past 10 years, or if 10
years of information is not available then as many years in the past
that information is available. The background investigation does not
apply to Federal, State or local law enforcement personnel who are
performing escort duties. The background investigation must include,
but is not limited to, the following elements:
---------------------------------------------------------------------------
\2\ For purposes of 10 CFR 73.38, the terms ``irradiated reactor
fuel'' as described in 10 CFR 73.37 and ``spent nuclear fuel'' are
used interchangeably.
---------------------------------------------------------------------------
(1) Informed consent. Licensees shall not initiate any element of a
background investigation without the informed and signed consent of the
subject individual. This consent shall include authorization to share
personal information with appropriate entities. The licensee to whom
the individual is applying for access authorization shall inform the
individual of his or her right to review information collected to
assure its accuracy, and provide the individual with an opportunity to
correct any inaccurate or incomplete information that is developed by
the licensee.
(i) The subject individual may withdraw his or her consent at any
time. Licensees shall inform the individual that:
(A) Withdrawal of his or her consent will remove the individual's
application for access authorization under the licensee's access
authorization program; and
(B) Other licensees shall have access to information documenting
the withdrawal.
[[Page 29555]]
(ii) If an individual withdraws his or her consent, licensees may
not initiate any elements of the background investigation that were not
in progress at the time the individual withdrew his or her consent, but
shall complete any background investigation elements that are in
progress at the time consent is withdrawn. The licensee shall record
the status of the individual's application for access authorization.
Additionally, licensees shall collect and maintain the individual's
application for access authorization; his or her withdrawal of consent
for the background investigation; the reason given by the individual
for the withdrawal; and any pertinent information collected from the
background investigation elements that were completed. This information
must be shared with other licensees under paragraph (l)(4) of this
section.
(iii) Licensees shall inform, in writing, any individual who is
applying for access authorization that the following actions are
sufficient cause for denial or unfavorable termination of access
authorization status:
(A) Refusal to provide a signed consent for the background
investigation;
(B) Refusal to provide, or the falsification of, any personal
history information required under this section, including the failure
to report any previous denial or unfavorable termination of access
authorization;
(C) Refusal to provide signed consent for the sharing of personal
information with other licensees under paragraph (d)(5)(v) of this
section; or
(D) Failure to report any arrests or legal actions specified in
paragraph (f) of this section.
(2) Personal history disclosure. Any individual who is required to
have a background investigation under this section shall disclose the
personal history information that is required by the licensee's access
authorization program for the reviewing official to make a
determination of the individual's trustworthiness and reliability.
Refusal to provide, or the falsification of, any personal history
information required by this section is sufficient cause for denial or
termination of access authorization.
(3) Criminal history. Fingerprinting and an FBI identification and
criminal history records check under Sec. 73.57 of this part.
(4) Verification of true identity. Licensees shall verify the true
identity of an individual who is applying to have access authorization
to ensure that the applicant is who they claim to be. A licensee shall
review official identification documents (e.g., driver's license,
passport, government identification, State, province, or country of
birth issued certificate of birth) and compare the documents to
personal information data provided by the individual to identify any
discrepancy in the information. Licensees shall document the type,
expiration, and identification number of the identification, or
maintain a photocopy of identifying documents on file under Sec.
73.38(c). Licensees shall certify and affirm in writing that the
identification was properly reviewed and maintain the certification and
all related documents for review upon inspection.
(5) Employment history evaluation. Licensees shall ensure that an
employment history evaluation has been completed on a best effort
basis, by questioning the individual's present and former employers,
and by determining the activities of the individual while unemployed.
(i) For the claimed employment period, the individual must provide
the reason for any termination, eligibility for rehire, and other
information that could reflect on the individual's trustworthiness and
reliability.
(ii) If the claimed employment was military service the individual
shall provide a characterization of service, reason for separation, and
any disciplinary actions that could affect a trustworthiness and
reliability determination.
(iii) If education is claimed in lieu of employment, the individual
shall provide any information related to the claimed education that
could reflect on the individual's trustworthiness and reliability and,
at a minimum, verify that the individual was registered for the classes
and received grades that indicate that the individual participated in
the educational process during the claimed period.
(iv) If a previous employer, educational institution, or any other
entity with which the individual claims to have been engaged fails to
provide information or indicates an inability or unwillingness to
provide information within 3 business days of the request, the licensee
shall:
(A) Document this refusal or unwillingness in the licensee's record
of the investigation; and
(B) Obtain a confirmation of employment, educational enrollment and
attendance, or other form of engagement claimed by the individual from
at least one alternate source that has not been previously used.
(v) When any licensee is seeking the information required for an
access authorization decision under this section and has obtained a
signed release from the subject individual authorizing the disclosure
of such information, other licensees shall make available the personal
or access authorization information requested regarding the denial or
unfavorable termination of an access authorization.
(vi) In conducting an employment history evaluation, the licensee
may obtain information and documents by electronic means, including,
but not limited to, telephone, facsimile, or email. Licensees shall
make a record of the contents of the telephone call and shall retain
that record, and any documents or electronic files obtained
electronically, under paragraph (l) of this section.
(6) Credit history evaluation. Licensees shall ensure the
evaluation of the full credit history of any individual who is applying
for access authorization relative to spent nuclear fuel in transit. A
full credit history evaluation must include, but is not limited to, an
inquiry to detect potential fraud or misuse of social security numbers
or other financial identifiers, and a review and evaluation of all of
the information that is provided by a national credit-reporting agency
about the individual's credit history. For foreign nationals and U.S.
citizens who have resided outside the U.S. and do not have established
credit history that covers at least the most recent 7 years in the
U.S., the licensee must document all attempts to obtain information
regarding the individual's credit history and financial responsibility
from some relevant entity located in that other country or countries.
(7) Criminal history review. The licensee shall evaluate the entire
criminal history record of an individual who is applying for access
authorization to determine whether the individual has a record of
criminal activity that may adversely impact his or her trustworthiness
and reliability. The scope of the applicant's criminal history review
must cover all residences of record for the 10-year period preceding
the date of application for access authorization.
(8) Character and reputation determination. Licensees shall
ascertain the character and reputation of an individual who has applied
for access authorization relative to spent nuclear fuel in transit by
conducting reference checks. Reference checks may not be conducted with
any person who is known to be a close member of the individual's
family, including but not limited to, the individual's spouse, parents,
siblings, or children, or any individual who resides in the
[[Page 29556]]
individual's permanent household. The reference checks must focus on
the individual's reputation for trustworthiness and reliability.
(9) Corroboration. The licensee shall also, to the extent possible,
obtain independent information to corroborate that provided by the
individual (e.g., seek references not supplied by the individual).
(e) Determination of trustworthiness and reliability;
Documentation. (1) The licensee shall determine whether to grant, deny,
unfavorably terminate, maintain, or administratively withdraw an
individual's access authorization based on an evaluation of all of the
information required by this section. The licensee may terminate or
administratively withdraw an individual's access authorization based on
information obtained after the background investigation has been
completed and the individual granted access authorization.
(2) The licensee may not permit any individual to have unescorted
access or access authorization until all of the information required by
this section has been evaluated by the reviewing official and the
reviewing official has determined that the individual is trustworthy
and reliable. The licensee may deny unescorted access or access
authorization to any individual based on disqualifying information
obtained at any time during the background investigation.
(f) Protection of information. (1) Licensees shall protect
background investigation information from unauthorized disclosure.
(2) Licensees may not disclose the background investigation
information collected and maintained to persons other than the subject
individual, his/her representative, or to those who have a need to know
in performing assigned duties related to the process of granting or
denying unescorted access to spent nuclear fuel in transit. No
individual authorized to have access to the information may re-
disseminate the information to any other individual who does not have a
need to know.
(3) The personal information obtained on an individual from a
background investigation may be transferred to another licensee:
(i) Upon the individual's written request to the licensee holding
the data to re-disseminate the information contained in his/her file;
and
(ii) The acquiring licensee verifies information such as name, date
of birth, social security number, sex, and other applicable physical
characteristics for identification.
(4) The licensee shall make background investigation records
obtained under this section available for examination by an authorized
representative of the NRC to determine compliance with applicable laws
and regulations.
(5) The licensee shall retain all fingerprint and criminal history
records received from the FBI, or a copy if the file has been
transferred, on an individual (including data indicating no record) for
5 years from the date the individual no longer requires unescorted
access or access authorization relative to spent nuclear fuel in
transit.
(g) Grandfathering. For purposes of this section, licensees are not
required to obtain the fingerprints of any person who has been
fingerprinted, pursuant to an NRC order or regulation, for an FBI
identification and criminal history records check within the 5 years of
the effective date of this rule.
(h) Reinvestigations. Licensees shall conduct fingerprinting and
FBI identification and criminal history records check, a criminal
history review, and credit history re-evaluation every 10 years for any
individual who has unescorted access authorization to spent nuclear
fuel in transit. The reinvestigations must be completed within 10 years
of the date on which these elements were last completed and should
address the 10 years following the previous investigation.
(i) Self-reporting of legal actions. (1) Any individual who has
applied for an access authorization or is maintaining an access
authorization under this section shall promptly report to the reviewing
official, his or her supervisor, or other management personnel
designated in licensee procedures any legal action(s) taken by a law
enforcement authority or court of law to which the individual has been
subject that could result in incarceration or a court order or that
requires a court appearance, including but not limited to an arrest, an
indictment, the filing of charges, or a conviction, but excluding minor
civil actions or misdemeanors such as parking violations or speeding
tickets. The recipient of the report shall, if other than the reviewing
official, promptly convey the report to the reviewing official. On the
day that the report is received, the reviewing official shall evaluate
the circumstances related to the reported legal action(s) and re-
determine the reported individual's access authorization status.
(2) The licensee shall inform the individual of this obligation, in
writing, prior to granting unescorted access or certifying access
authorization.
(j) Access authorization procedures. (1) Licensees shall develop,
implement, and maintain written procedures for conducting background
investigations for persons who are applying for unescorted access or
access authorization for spent nuclear fuel in transit.
(2) Licensees shall develop, implement, and maintain written
procedures for updating background investigations for persons who are
applying for reinstatement of unescorted access or access
authorization.
(3) Licensees shall develop, implement, and maintain written
procedures to ensure that persons who have been denied unescorted
access or access authorization are not allowed access to spent nuclear
fuel in transit or information relative to spent nuclear fuel in
transit.
(4) Licensees shall develop, implement, and maintain written
procedures for the notification of individuals who are denied
unescorted access or access authorization for spent nuclear fuel in
transit. The procedures shall include provisions for the review, at the
request of the affected individual, of a denial or termination of
unescorted access or access authorization. The procedure must contain a
provision to ensure that the individual is informed of the grounds for
the denial or termination of unescorted access or access authorization
and allow the individual an opportunity to provide additional relevant
information.
(k) Right to correct and complete information. (1) Prior to any
final adverse determination, licensees shall provide each individual
subject to this section with the right to complete, correct, and
explain information obtained as a result of the licensee's background
investigation. Confirmation of receipt by the individual of this
notification must be maintained by the licensee for a period of 1 year
from the date of the notification.
(2) If after reviewing their criminal history record an individual
believes that it is incorrect or incomplete in any respect and wishes
to change, correct, update, or explain anything in the record, the
individual may initiate challenge procedures.
(l) Records. (1) The licensee shall retain documentation regarding
the trustworthiness and reliability of individual employees for 5 years
from the date the individual no longer requires unescorted access or
access authorization relative to spent nuclear fuel in transit.
(2) The licensee shall retain a copy of the current access
authorization program procedures as a record for 5
[[Page 29557]]
years after the procedure is no longer needed or until the Commission
terminates the license, if the license is terminated before the end of
the retention period. If any portion of the procedure is superseded,
the licensee shall retain the superseded material for 5 years after the
record is superseded.
(3) The licensee shall retain the list of persons approved for
unescorted access or access authorization and the list of those
individuals that have been denied unescorted access or access
authorization for 5 years after the list is superseded or replaced.
(4) Licensees who have been authorized to add or manipulate data
that is shared with licensees subject to this section shall ensure that
data linked to the information about individuals who have applied for
unescorted access or access authorization, which is specified in the
licensee's access authorization program documents, is retained.
(i) If the shared information used for determining individual's
trustworthiness and reliability changes or new or additional
information is developed about the individual, the licensees that
acquire this information shall correct or augment the data and ensure
it is shared with licensees subject to this section. If the changed,
additional or developed information has implications for adversely
affecting an individual's trustworthiness and reliability, licensees
who discovered or obtained the new, additional or changed information,
shall, on the day of discovery, inform the reviewing official of any
licensee access authorization program under which the individual is
maintaining his or her unescorted access or access authorization status
of the updated information.
(ii) The reviewing official shall evaluate the shared information
and take appropriate actions, which may include denial or unfavorable
termination of the individual's unescorted access or access
authorization. If the notification of change or updated information
cannot be made through usual methods, licensees shall take manual
actions to ensure that the information is shared as soon as reasonably
possible. Records maintained in any database(s) must be available for
the NRC review.
(5) If a licensee administratively withdraws an individual's
unescorted access or access authorization status caused by a delay in
completing any portion of the background investigation or for a
licensee initiated evaluation, or re-evaluation that is not under the
individual's control, the licensee shall record this administrative
action to withdraw the individual's unescorted access or unescorted
access authorization and shall share this information with other
licensees subject to this section. However, licensees shall not
document this administrative withdrawal as denial or unfavorable
termination and shall not respond to a suitable inquiry conducted under
the provisions of 10 CFR part 26, a background investigation conducted
under the provisions of this section, or any other inquiry or
investigation as denial nor unfavorable termination. Upon favorable
completion of the background investigation element that caused the
administrative withdrawal, the licensee shall immediately ensure that
any matter that could link the individual to the administrative action
is eliminated from the subject individual's access authorization or
personnel record and other records, except if a review of the
information obtained or developed causes the reviewing official to
unfavorably terminate or deny the individual's unescorted access.
Sec. 73.71 [Amended]
0
5. In Sec. 73.71, paragraph (a)(1), redesignate footnote 1 as footnote
3.
0
6. In Sec. 73.72, paragraphs (a) introductory text, (a)(1), (a)(4),
(a)(5), and (b) are revised to read as follows:
Sec. 73.72 Requirement for advance notice of shipment of formula
quantities of strategic special nuclear material, special nuclear
material of moderate strategic significance, or irradiated reactor
fuel.
(a) A licensee, other than one specified in paragraph (b) of this
section, who, in a single shipment, plans to deliver to a carrier for
transport, to take delivery at the point where a shipment is delivered
to a carrier for transport, to import, to export, or to transport a
formula quantity of strategic special nuclear material, special nuclear
material of moderate strategic significance, or irradiated reactor fuel
\4\ required to be protected in accordance with Sec. 73.37, shall:
---------------------------------------------------------------------------
\4\ For purposes of 10 CFR 73.72, the terms ``irradiated reactor
fuel'' as described in 10 CFR 73.37 and ``spent nuclear fuel'' are
used interchangeably.
---------------------------------------------------------------------------
(1) Notify in writing the Director, Division of Security Policy,
Office of Nuclear Security and Incident Response, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, using any appropriate
method listed in Sec. 73.4 of this part. Classified and safeguards
notifications shall be sent to the NRC headquarters classified mailing
address listed in appendix A to this part.
* * * * *
(4) The NRC Headquarters Operations Center shall be notified about
the shipment status by telephone at the phone numbers listed in
appendix A to this part. Classified and safeguards notifications shall
be made by secure telephone. The notifications shall take place at the
following intervals:
(i) At least 2 days before commencement of the shipment;
(ii) Two hours before commencement of the shipment; and
(iii) Once the shipment is received at its destination.
(5) The NRC Headquarters Operations Center shall be notified by
telephone of schedule changes of more than 6 hours at the phone numbers
listed in appendix A to this part. Classified and safeguards
notifications shall be made by secure telephone.
(b) A licensee who conducts an on-site transfer of spent nuclear
fuel that does not travel upon or cross a public highway is exempt from
the requirements of this section for that transfer.
Dated at Rockville, Maryland, this 10th day of May, 2013.
For the Nuclear Regulatory Commission.
Andrew L. Bates,
Acting Secretary of the Commission.
[FR Doc. 2013-11717 Filed 5-17-13; 8:45 am]
BILLING CODE 7590-01-P