[Federal Register Volume 78, Number 97 (Monday, May 20, 2013)]
[Rules and Regulations]
[Pages 29520-29557]
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