[Federal Register Volume 87, Number 215 (Tuesday, November 8, 2022)]
[Proposed Rules]
[Pages 67397-67399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24351]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 87, No. 215 / Tuesday, November 8, 2022 / 
Proposed Rules  

[[Page 67397]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 37

[Docket No. PRM-37-2; NRC-2021-0051]


Advance Tribal Notification of Certain Radioactive Material 
Shipments

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; consideration in the rulemaking 
process.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) will consider in 
its rulemaking process the issue raised in a petition for rulemaking 
(PRM), PRM-37-2, submitted by Richard Arnold and Ron Johnson, on behalf 
of the Tribal Radioactive Materials Transportation Committee, dated 
December 4, 2020. The petitioner requests that the NRC amend its 
regulations to include advance Tribal notification of certain 
radioactive material shipments.

DATES: The docket for the petition for rulemaking, PRM-37-2, is closed 
on November 8, 2022.

ADDRESSES: Please refer to Docket ID NRC-2021-0051 when contacting the 
NRC about the availability of information for this action. You may 
obtain publicly available information related to this action by any of 
the following methods:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2021-0051. Address 
questions about NRC dockets to Dawn Forder; telephone: 301-415-3407; 
email: [email protected]. For technical questions, contact the 
individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly available documents online in the 
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, 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, at 301-415-4737, 
or by email to [email protected]. For the convenience of the reader, 
instructions about obtaining materials referenced in this document are 
provided in the ``Availability of Documents'' section.
     NRC's PDR: You may examine and purchase copies of public 
documents, by appointment, at the NRC's PDR, Room P1 B35, One White 
Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make 
an appointment to visit the PDR, please send an email to 
[email protected] or call 1-800-397-4209 or 301-415-4737, between 
8:00 a.m. and 4:00 p.m. Eastern Time (ET), Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Vanessa Cox, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001; telephone: 301-415-8342, email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. The Petition
II. Public Comments on the Petition
    A. Comments Supporting the Petition
    B. Comments Out of the Scope of the Petition
III. Reasons for Consideration
IV. Availability of Documents
V. Conclusion

I. The Petition

    The NRC received and docketed a petition for rulemaking (ADAMS 
Accession No. ML21042B011) dated December 4, 2020, filed by Richard 
Arnold and Ron Johnson, on behalf of the Tribal Radioactive Materials 
Transportation Committee (TRMTC). On April 9, 2021, the NRC published a 
notice of docketing and request for comment in the Federal Register (86 
FR 18477). The petitioner requests that the NRC amend its regulations 
in part 37 of title 10 of the Code of Federal Regulations (10 CFR), 
``Physical Protection of Category 1 and Category 2 Quantities of 
Radioactive Material,'' to include advance Tribal notification 
requirements similar to existing State notification requirements.
    The NRC identified one issue in the petition, as follows: \1\
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    \1\ The petitioner also stated that NRC's amendment to Part 37 
may encourage the U.S. Department of Energy (DOE) to revise DOE 
Order 460.2A, Department Materials Transportation and Packaging 
Management, to have tribes eligible to receive the same advanced 
notifications for applicable DOE shipments. Potential changes to DOE 
orders are outside the NRC's legal authority.
---------------------------------------------------------------------------

    Issue: In 10 CFR part 37, the requirement for licensees to provide 
advance notification of certain radioactive material shipments only 
involves State government notifications and does not include Tribal 
government notifications. In contrast, the advance notification 
provisions of 10 CFR part 71, ``Packaging and Transportation of 
Radioactive Material,'' and 10 CFR part 73, ``Physical Protection of 
Plants and Materials,'' require licensees to provide advance 
notification to both State and Tribal governments for certain 
shipments. TRMTC states it is ``concerned with the divergence that 
exists in Part 37 in contrast to the content that is provided in Parts 
71 and 73.'' The petitioner also states that ``consistent notification 
standards must be applied to states and tribal governments as well as 
constituencies under their respective jurisdictions.''

II. Public Comments on the Petition

    The notice of receipt and docketing for the PRM invited interested 
persons to submit comments. The comment period closed on June 23, 2021. 
The NRC received 10 comment submissions comprising 63 comments from 
interested stakeholders, including the Nuclear Energy Institute, 
Midwestern Radioactive Materials Transportation Committee, Western 
Interstate Energy Board, High-Level Radioactive Waste Committee, Tribal 
Radioactive Materials Transportation Committee, Oneida Nation, The 
Navajo Nation, Pueblo of Sandia, and two private citizens.
    The NRC binned the comments related to the petition into two 
categories. The following discussion provides a summary of each comment 
and the NRC's response to the comment. Within each bin, the NRC further 
grouped the comments by topic. The following discussion also provides a 
summary of each group of comments and the NRC's response to that group 
of comments.

[[Page 67398]]

A. Comments Supporting the Petition

    Comment: The NRC received several comments that supported the 
assertion made by the petitioner that consistent notification standards 
must be applied to States and Tribal governments. The commenters urged 
the NRC to examine these discrepancies and to take appropriate action 
to modify the language in 10 CFR part 37 to be consistent with 10 CFR 
part 71 and 10 CFR part 73 advance Tribal notification provisions.
    NRC Response: The NRC agrees with this comment. As stated above, 
the NRC is planning to conduct rulemaking to revise 10 CFR part 37 to 
be consistent with advance Tribal notification standards provided in 10 
CFR part 71 and 10 CFR part 73. This action is also supported by NRC's 
Tribal Policy Statement, which established the NRC's principles to 
promote effective Government-to-Government interactions with Federally 
recognized Tribes, and to encourage and facilitate Tribal involvement 
in the areas over which the Commission has jurisdiction.
    Comment: Several commenters described the importance of consistency 
between regulations applicable to States and Tribes and stated that 
this concept reinforces NRC's Principles of Good Regulation.
    Response: The NRC agrees with this comment. As stated above, the 
NRC is planning to conduct rulemaking to revise 10 CFR part 37 to be 
consistent with advance Tribal notification standards provided in 10 
CFR part 71 and 10 CFR part 73.
    Comment: Two commenters stated they believed the proposed 
rulemaking would benefit all stakeholders. Another commenter stated 
that the proposed amendment would benefit licensees by creating 
predictability in planning for conducting radioactive material 
transportation.
    Response: The NRC agrees with these comments. Consistency and 
predictability of regulations is a goal stated in the NRC's Principles 
of Good Regulations, which is beneficial to the regulated community and 
the public.
    Comment: One commenter supported the petition, stating that they 
believed the current petition is based on an apparent oversight of 
ensuring complete and rigorous efforts in the notification process.
    Response: The NRC disagrees with the comment. The NRC specifically 
said that it may consider providing advance Tribal notification for 10 
CFR part 37 radioactive material in the future when responding to a 
public comment concerning the ``Physical Protection of Byproduct 
Material'' rule. See 78 FR 16922, 16991 (March 19, 2013).
    Comment: One commenter stated that a shipment of radioactive 
material that was subject to the 10 CFR part 37 notification 
requirements to the States went through Tribal land in 2020 without 
notification to Federally recognized Tribes. The lack of notice caused 
significant concerns for the Tribe and its residents.
    Response: The NRC understands this concern. The proposed rulemaking 
would address notification of participating Tribes.
    Comment: One commenter discussed implementation of the rule, such 
as requiring Tribes to submit a letter to the NRC to ``opt in'' to 
receive advance notification or requiring Tribes to comply with 
safeguards information training requirements that are currently in 
place for participation in the 10 CFR part 71 and 10 CFR part 73 
advance Tribal notification program.
    Response: The NRC will consider the issues raised in this comment 
during the rulemaking process.
    Comment: Several commenters stated that Tribes govern themselves 
and the NRC needs to recognize them as sovereign governments.
    Response: The NRC agrees with this comment. The NRC recognizes the 
right of each Indian Tribe to self-governance and supports Tribal 
sovereignty and self-determination. In the Tribal Policy Statement, 
Principle 2 states that the NRC recognizes Tribal governments as 
independent from State governments, with separate and distinct 
authorities with inherent sovereign powers over their members and 
territory, consistent with applicable statutes and authorities.
    Comment: Two commenters stated that Tribal governments need to be 
recognized and acknowledged with the same treatment and respect as 
States, and that they have the right to be notified if radioactive 
materials are being shipped through their lands.
    Response: The NRC agrees with this comment. The NRC recognizes the 
need for States and Tribes to have consistent treatment for advance 
notification for Category 1 radioactive material shipments and plans to 
conduct rulemaking to address this issue.
    Comment: The NRC received several comments underlining the 
importance of advance Tribal notification of radioactive shipments in 
order to allow the Tribes adequate time to prepare to respond in the 
event of an incident or accident. Several commenters also stated the 
importance of the Tribes' emergency support function, participation in 
emergency training, and commitment to protecting their Tribal lands as 
reasons for receiving advance notification of shipments across Tribal 
lands.
    NRC Response: The NRC agrees with these comments and plans to 
conduct rulemaking to amend its regulations to improve consistency for 
advance Tribal notifications for Category 1 radioactive material. In 
accordance with Tribal Policy Statement, Principle 2, the NRC 
recognizes Tribal sovereignty, independent from State governments and 
Tribal governments' interest in being informed of activities occurring 
on Tribal lands.
    Comment: Several commenters identified the importance for States 
and Tribes to coordinate and communicate for successful planning of 
shipments. Other commenters indicated effective communication is 
paramount in the instance of hazardous, radioactive material transport. 
Another comment stated that the public's perception of these shipments 
is not materially altered by the different regulatory categories, and 
thus the Tribes' public information responsibilities would be much the 
same as for irradiated reactor fuel and special nuclear material, 
regardless of the different types of materials being moved.
    Response: The NRC agrees with the comments. The NRC's view is that 
the importance of communication between the States, Tribes, and the 
public supports the NRC's plan to conduct this rulemaking.

B. Comments Outside the Scope of the Petition

    Three comments within the comment submissions were beyond the scope 
of the petitioner's request. They are summarized below.
    Comment: One comment submission discussed irradiated fuel rods and 
how they can be rendered harmless using liquid nitrogen.
    Response: This comment is outside the scope of the petitioner's 
request for the NRC to revise 10 CFR part 37 to require advance Tribal 
notification of shipments for Category 1 radioactive materials.
    Comment: One commenter discussed the lack of consultation regarding 
the determination of transport routes and availability of resources, 
training, and infrastructure for Tribal emergency preparedness, 
response, and risk management in potential incidences of accidental 
radiological release during shipment.
    Response: This comment is outside the scope of the petitioner's 
request that the NRC revise 10 CFR part 37 to require advance Tribal 
notification of shipments for Category 1 radioactive materials.

[[Page 67399]]

Specifically, the commenters' topics regarding consultation for 
transportation routes, the availability of resources, training and 
infrastructure for Tribal emergency preparedness, response, and risk 
management are outside the scope of the petitioner's request.
    Comment: One commenter discussed the importance of advanced 
notification to States and Tribes for shipments of Category 1 and 
Category 2 quantities of radioactive material.
    Response: This comment is outside the scope of the petitioner's 
request that the NRC revise 10 CFR part 37 to require advance Tribal 
notification for shipments of Category 1 radioactive materials. The 
requirements in 10 CFR part 37 are only for advance notification of 
Category 1 radioactive materials and do not mention advance 
notification requirements for Category 2 quantities of radioactive 
materials. Advance Tribal notification for shipments of Category 2 
quantities of radioactive material is outside the scope of the 
petitioner's request.

III. Reasons for Consideration

    The NRC will consider the issue raised in the PRM in its rulemaking 
process because the NRC recognizes Tribal sovereignty and Tribal 
governments' interest in being informed of Category 1 radioactive 
material shipments that would pass through Federally recognized Tribal 
reservations. Revising 10 CFR part 37 would provide consistency with 10 
CFR part 71 and 10 CFR part 73 regarding advance Tribal notification of 
certain radioactive material shipments, implement the principles in the 
Tribal Policy Statement, and further the NRC's commitment to its 
Principles of Good Regulation.

IV. Availability of Documents

    The documents identified in the following table are available to 
interested persons through one or more of the following methods, as 
indicated.

----------------------------------------------------------------------------------------------------------------
                         Document                              ADAMS accession No./ Federal Register citation
----------------------------------------------------------------------------------------------------------------
PRM-37-2-R. Arnold & R. Johnson on Behalf of the Tribal     ML21042B011.
 Radioactive Materials Transportation on Advance Tribal
 Notification of Certain Radioactive Material Shipments,
 December 4, 2020.
PRM-37-2, Notice of Docketing and Request for Comment,      86 FR 18477.
 April 9, 2021.
Comment Submission (001) from Brendan VanAntwerp, April     ML21109A268.
 10, 2021.
Comment Submission (002) from the Nuclear Energy            ML21168A095.
 Institute, June 15, 2021.
Comment Submission (003) from Valery Andrus, June 16, 2021  ML21168A096.
Comment Submission (004) from the Midwestern Radioactive    ML21175A162.
 Materials Transportation Committee, June 17, 2021.
Comment Submission (005) from the Western Interstate        ML21175A160.
 Energy Board High-Level Radioactive Waste Committee, June
 22, 2021.
Comment Submission (006) from the Tribal Radioactive        ML21175A158.
 Materials Transportation Committee, June 22, 2021.
Comment Submission (007) from the Oneida Nation, June 23,   ML21175A157.
 2021.
Comment Submission (008) from the Navajo Nation             ML21175A156.
 Environmental Protection Agency, June 23, 2021.
Comment Submission (009) from Governor Stuart Paisano on    ML21175A357.
 Behalf of Pueblo of Sandia, New Mexico, June 7, 2021.
Comment Submission (010) from the Tribal Radioactive        ML21182A122.
 Materials Transportation Committee, June 23, 2021.
Tribal Policy Statement, January 9, 2017..................  82 FR 2402.
Principles of Good Regulation.............................  https://www.nrc.gov/about-nrc/values.html#principles.
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V. Conclusion

    For the reasons cited in this document, the NRC will consider the 
issue raised in the petition in its rulemaking process. The public can 
monitor further NRC action on the rulemaking titled, ``Advance Tribal 
Notification of Certain Radioactive Material Shipments,'' that will 
address the issue in this petition by searching for Docket ID NRC-2021-
0051 on the Federal rulemaking website, https://www.regulations.gov. In 
addition, the Federal rulemaking website allows members of the public 
to receive alerts when changes or additions occur in a docket folder. 
To subscribe: (1) navigate to the docket folder (NRC-2021-0051); (2) 
click the ``Subscribe'' link; and (3) enter an email address and click 
on the ``Subscribe'' link. Publication of this document in the Federal 
Register closes Docket ID NRC-2021-0051 for PRM-37-2.

    Dated: November 3, 2022.

    For the Nuclear Regulatory Commission.
Brooke P. Clark,
Secretary of the Commission.
[FR Doc. 2022-24351 Filed 11-7-22; 8:45 am]
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