[Federal Register Volume 89, Number 47 (Friday, March 8, 2024)]
[Proposed Rules]
[Pages 16701-16709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04771]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 37

[NRC-2022-0191]
RIN 3150-AK90


Advance Tribal Notification of Category 1 Quantities of 
Radioactive Material Shipments

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to 
amend its regulations to require NRC and Agreement State licensees to 
provide advance notification to participating federally recognized 
Tribal governments regarding shipments of category 1 quantities of 
radioactive material that pass within or across their reservation 
boundaries. This proposed rule would resolve a petition for rulemaking 
(PRM-37-2) requesting changes to the regulations to include advance 
Tribal notification requirements similar to existing State notification 
requirements. The NRC will hold a public meeting during the public 
comment period to promote full understanding of this proposed rule and 
facilitate public comments.

DATES: Submit comments by May 22, 2024. Comments received after this 
date will be considered if it is practical to do so, but the NRC is 
able to ensure consideration only for comments received before this 
date.

ADDRESSES: You may submit comments by any of the following methods; 
however, the NRC encourages electronic comment submission through the 
Federal Rulemaking website:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2022-0191. Address 
questions about NRC dockets to Dawn Forder; telephone: 301-415-3407; 
email: [email protected]. For technical questions contact the 
individuals listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     Email comments to: [email protected]. If you do 
not receive an automatic email reply confirming receipt, then contact 
us at 301-415-1677.
     Fax comments to: Secretary, U.S. Nuclear Regulatory 
Commission at 301-415-1101.
     Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland 20852, between 7:30 a.m. and 4:15 p.m. eastern time, Federal 
workdays; telephone: 301-415-1677.
     Mail comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and 
Adjudications Staff.
    You can read a plain language description of this proposed rule at 
https://www.regulations.gov/docket/NRC-2022-0191. For additional 
direction on obtaining information and submitting comments, see 
``Obtaining Information and Submitting Comments'' in the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Caylee Kenny, Office of Nuclear 
Material Safety and Safeguards, telephone: 301-415-7150, email: 
[email protected] and Anita Gray, Office of Nuclear Material Safety 
and Safeguards, telephone: 301-415-7036, email: [email protected]. 
Both are staff of the U.S. Nuclear Regulatory Commission, Washington, 
DC 20555-0001.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Obtaining Information and Submitting Comments
    A. Obtaining Information
    B. Submitting Comments
II. Background
    A. Petition for Rulemaking (PRM-37-2)
    B. Advance Notification Rule
    C. Tribal Policy Statement
III. Discussion
    A. What action is the NRC taking?
    B. What persons would this action affect?
    C. Why do the requirements need to be revised?
    D. Would all tribes receive advance notifications?
    E. How and when would tribes be given the option to receive 
advance notifications?
    F. What notifications would tribes receive?

[[Page 16702]]

    G. Do tribes who currently receive notifications under parts 71 
and 73 need to take additional action?
    H. Does a tribe's decision to receive advance notification 
affect whether shipments pass within or across that tribe's 
reservation?
    I. How would licensees determine who the tribal contacts are?
    J. How would advance notifications be made to tribal officials?
    K. Would tribes be required to protect the advance 
notifications?
    L. Would tribal officials need to be fingerprinted and undergo a 
background investigation for unescorted access to shipments?
IV. Section-by-Section Analysis
V. Regulatory Flexibility Certification
VI. Regulatory Analysis
VII. Backfitting and Issue Finality
VIII. Cumulative Effects of Regulation
IX. Plain Writing
X. National Environmental Policy Act
XI. Paperwork Reduction Act Statement
XII. Coordination With NRC Agreement States
XIII. Compatibility of Agreement State Regulations
XIV. Availability of Guidance
XV. Public Meeting
XVI. Availability of Documents

I. Obtaining Information and Submitting Comments

A. Obtaining Information

    Please refer to Docket ID NRC-2022-0191 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-2022-0191.
     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: The PDR, where you may examine and order copies 
of publicly available documents, is open by appointment. 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 
a.m. and 4 p.m. eastern time, Monday through Friday, except Federal 
holidays.

B. Submitting Comments

    The NRC encourages electronic comment submission through the 
Federal rulemaking website (https://www.regulations.gov). Please 
include Docket ID NRC-2022-0191 in your comment submission.
    The NRC cautions you not to include identifying or contact 
information that you do not want to be publicly disclosed in your 
comment submission. The NRC will post all comment submissions at 
https://www.regulations.gov as well as enter the comment submissions 
into ADAMS. The NRC does not routinely edit comment submissions to 
remove identifying or contact information.
    If you are requesting or aggregating comments from other persons 
for submission to the NRC, then you should inform those persons not to 
include identifying or contact information that they do not want to be 
publicly disclosed in their comment submission. Your request should 
state that the NRC does not routinely edit comment submissions to 
remove such information before making the comment submissions available 
to the public or entering the comment into ADAMS.

II. Background

A. Petition for Rulemaking (PRM-37-2)

    On December 4, 2020, Richard Arnold and Ron Johnson, on behalf of 
the Tribal Radioactive Materials Transportation Committee, submitted a 
petition for rulemaking (PRM), PRM-37-2, that requested 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 ensure consistency regarding 
advance Tribal notification of certain radioactive material shipments 
with similar NRC regulations for State notification. Currently 10 CFR 
part 37 only requires advance notification of certain radioactive 
material shipments to be sent to States, unlike the advance 
notification provisions of Sec.  71.97, ``Advance notification of 
shipment of irradiated reactor fuel and nuclear waste,'' and Sec.  
73.37, ``Requirements for physical protection of irradiated reactor 
fuel in transit,'' which require advance notifications of specified 
shipments to be sent to States and participating federally recognized 
Tribes. The petitioner was concerned with ``the divergence that exists 
in 10 CFR part 37 in contrast to the content that is provided in 10 CFR 
parts 71 and 73.'' The petitioner requested that consistent 
notification standards be applied to States and Tribal governments as 
well as constituencies under their respective jurisdictions.
    The NRC published a notice of docketing of the petition and request 
for comment in the Federal Register on April 9, 2021 (86 FR 18477). The 
NRC received 10 public comment submissions during the 75-day public 
comment period. Nine comment submissions supported the petition, while 
one comment submission and two individual comments within other comment 
submissions were outside the scope of the issue raised in the petition. 
On October 17, 2022, in SRM-SECY-22-0074, Petition for Rulemaking and 
Rulemaking Plan on Advance Tribal Notification of Certain Radioactive 
Material Shipments (PRM-37-2; NRC-2021-0051), the Commission determined 
that the issue raised in the petition would be addressed in rulemaking. 
On November 8, 2022, the NRC published a document in the Federal 
Register (87 FR 67397) stating that the NRC would consider the issue 
about advance notification of certain radioactive material shipments in 
its rulemaking process. Comments received on the petition were 
considered in development of this proposed rule.

B. Advance Notification Rule

    The NRC published the final rule, ``Advance Notification to Native 
American Tribes of Transportation of Certain Types of Nuclear Waste'' 
(Advance Notification rule), in 2012.\1\ The Advance Notification rule 
established the regulations in 10 CFR part 71, ``Packaging and 
Transportation of Radioactive Material,'' and 10 CFR part 73, 
``Physical Protection of Plants and Materials,'' requiring NRC and 
Agreement State licensees to provide advance notification to federally 
recognized Tribal governments that choose to participate in the Tribal 
Advance Notification program before irradiated reactor fuel and certain 
nuclear waste shipments pass within or across the boundary of their 
Tribal reservations. The Advance Notification rule also provided relief 
from fingerprinting requirements to access safeguards information (SGI) 
for Tribal officials, designees, and law enforcement personnel.
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    \1\ See 77 FR 34194 (June 11, 2012).
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    The rulemaking resulted in advance notification requirements for 
shipments that pass within or across participating Tribal reservations 
that are similar to the 1982 requirements to notify States.\2\ The 
rule's preamble also stated that the purpose of the rule was to 
recognize Tribal sovereignty and the Tribal

[[Page 16703]]

governments' interest in being informed of activities occurring on 
Tribal reservations.\3\ Currently, seven federally recognized Tribes 
participate in the voluntary Tribal Advance Notification program.
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    \2\ Id.
    \3\ Id.
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    In March 2013, the NRC published the final rule, ``Physical 
Protection of Byproduct Material,'' to establish security requirements 
for the use and transport of category 1 and category 2 quantities of 
radioactive material.\4\ The regulations in Sec.  37.77, ``Advance 
notification of shipment of category 1 quantities of radioactive 
material,'' require NRC and Agreement State licensees to provide 
advance notification to States of shipments of licensed material in a 
category 1 quantity that pass through or across the boundary of a 
State. As stated in this final rule, during the public comment period 
on the proposed rule (75 FR 33902; June 15, 2010), the NRC received a 
comment stating that the rule should provide for advance notification 
to Tribes for shipments that cross their reservations. The NRC's 
response in the final rule stated that the NRC may consider providing 
advance notification of these materials to Tribes in the future.\5\ The 
final 10 CFR part 37 rule, however, did not include provisions for 
Tribal notifications. Subsequently, the NRC published a final rule in 
the Federal Register in June 2013 that discussed Agreement State 
licensees' implementation of the Advance Notification rule.\6\ The 
document only addressed implementation of 10 CFR parts 71 and 73 
advance Tribal notification requirements. The notice did not mention 
advance Tribal notifications under 10 CFR part 37.
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    \4\ See 78 FR 16922 (March 19, 2013).
    \5\ See id. at 16991.
    \6\ See ``Advance Notification to Native American Tribes of 
Transportation of Certain Shipments of Nuclear Waste'' (78 FR 35746; 
June 14, 2013).
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III. Discussion

A. What action is the NRC taking?

    The NRC is proposing to amend its regulations to require NRC and 
Agreement State licensees to provide to Tribal officials of 
participating federally recognized Tribes, or their designees, advance 
notice of shipments of category 1 quantities of radioactive material 
under Sec.  37.77 before shipments pass within or across the Tribe's 
reservation boundary. As part of this amendment, the NRC is proposing 
to revise the language in part 37 from ``through or across the 
boundary'' by adopting the phrase ``within or across the boundary'' to 
be consistent with parts 71 and 73. This action would only affect 
commercial shipments being made by NRC and Agreement State licensees. 
The NRC also is proposing to make changes to Sec.  37.5, 
``Definitions,'' by adding definitions for ``Indian Tribe'' and 
``Tribal official,'' and Sec.  37.29, ``Relief from fingerprinting, 
identification, and criminal history records check and other elements 
of background investigations for designated categories of individuals 
permitted unescorted access to certain radioactive materials,'' to 
exempt Tribal officials or the Tribal official's designee and Tribal 
law enforcement personnel from fingerprinting requirements. Minor 
conforming changes will also be made to Sec.  37.21, ``Personnel access 
authorization requirements for category 1 or category 2 quantities of 
radioactive material,'' and Sec.  37.43, ``General security program 
requirements.''

B. What persons would this action affect?

    This proposed rule, if adopted, would apply to NRC and Agreement 
State licensees that ship category 1 quantities of radioactive 
materials. This proposed rule also would affect any federally 
recognized Tribe that chooses to participate in the Tribal Advance 
Notification program to receive the advance notifications of category 1 
shipments that pass within or across its Tribal reservation.

C. Why do the requirements need to be revised?

    The Sec.  37.77 provisions require advance notification to State 
governments but not Tribal governments for shipments of category 1 
quantities of radioactive material. In comparison, 10 CFR parts 71 and 
73 provisions require advance notification to both State and 
participating federally recognized Tribal governments for shipments of 
certain types of radioactive material. Therefore, the current 
requirements in 10 CFR part 37 are inconsistent with requirements in 10 
CFR parts 71 and 73. The NRC recognizes Tribal sovereignty and Tribal 
governments' interest in being informed of category 1 radioactive 
material shipments that would pass within or across reservations of 
participating federally recognized Tribes. This action also would 
support the 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. 
Revising 10 CFR part 37 would provide consistency with 10 CFR parts 71 
and 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. Additionally, the importance of communication among the 
States, Tribes, and the public supports the NRC's amendments in this 
proposed rule.

D. Would all tribes receive advance notifications?

    No. Only federally recognized Tribes that participate in the 
voluntary Tribal Advance Notification program would receive 
notification of category 1 quantities of radioactive material under 10 
CFR part 37 and receive notification of irradiated reactor fuel and 
other nuclear waste shipments that pass within or across their 
reservation under 10 CFR parts 71 and 73. The advance notification 
program recognizes Tribal sovereignty and Tribal governments' interest 
in being cognizant of activities taking place on their reservations.

E. How and when would tribes be given the option to receive advance 
notifications?

    If this proposed rule is finalized, the NRC staff would inform each 
federally recognized Tribe of the rule amendment. As part of the 
information, the non-participating federally recognized Tribes would be 
asked if they would like to participate in the Tribal Advance 
Notification program to receive advance notifications of category 1 
quantities of radioactive material shipments, irradiated reactor fuel, 
and other nuclear waste shipments that pass within or across the 
boundary of the Tribal reservation. The Tribes can then notify the NRC 
whether they would like to participate in the Tribal Advance 
Notification program and certify that any information received 
regarding shipments of category 1 quantities of radioactive material 
would be protected against unauthorized disclosure according to Sec.  
37.43(d). The Tribes also would be able to change their decision to 
participate in the Tribal Advance Notification program by informing the 
NRC at any time. In addition, the NRC would contact all federally 
recognized Tribes to give them an opportunity to opt into the Tribal 
Advance Notification program: (1) every 5 years; (2) after a Tribe 
achieves Federal recognition; and (3) when a transportation route is 
approved that is within a reservation or crosses a reservation boundary 
of a federally recognized Tribe. Before participating in the advance 
notification program, a Tribe would submit the following information: 
(1) a certification

[[Page 16704]]

that the Tribal official or their designee(s) has (or have) taken 
training on the handling of Safeguards Information; (2) a certification 
that the Tribe has the necessary protection measures in place and will 
protect the SGI; (3) the contact information for the Tribal official or 
the Tribal official's designee(s) (when a Tribal official is 
designating another person to receive the advance notifications); (4) 
an affirmation of the boundaries of the Tribe's reservation or the 
necessary corrections to a map provided by the NRC; and (5) the name 
and contact information for the Indian Tribe's emergency response 
contact(s).

F. What notifications would tribes receive?

    By choosing to participate in the Tribal Advance Notification 
program, federally recognized Tribes would receive notification under 
10 CFR part 37 for shipments of category 1 quantities for radioactive 
material, and 10 CFR parts 71 and 73 for shipments of irradiated 
reactor fuel and nuclear waste that pass within or across the 
boundaries of their Tribal reservation.

G. Do tribes who currently receive notifications under parts 71 and 73 
need to take additional action?

    No. Tribes that have already elected to participate in the Tribal 
Advance Notification program would automatically receive notification 
of shipments of category 1 quantities of radioactive material that may 
pass within or across their reservation. If this rule goes final, the 
NRC staff intends to contact non-participating federally recognized 
Tribes after the effective date of the rule to see if they would like 
to join the advance Tribal notification program.

H. Does a tribe's decision to receive advance notification affect 
whether shipments pass within or across that tribe's reservation?

    No. This proposed rule would only give the Tribes a voluntary 
opportunity to receive advance notification of shipments that pass 
within or across their reservation. A Tribe's decision to receive or 
not receive advance notifications does not affect shipment routes.

I. How would licensees determine who the tribal contacts are?

    The NRC maintains a list of Tribal contacts as it does for State 
governmental contacts. The NRC works with the Tribes to maintain the 
list. The Tribal official designates who is intended to represent the 
Tribe. The NRC annually publishes a list of Tribal contacts in the 
Federal Register and posts it on a website maintained by the NRC's 
Office of Nuclear Material Safety and Safeguards at https://scp.nrc.gov.

J. How would advance notifications be made to tribal officials?

    The methods permitted for communication of advance notifications 
are detailed in Sec.  37.77(a), ``Procedures for submitting advance 
notification.''

K. Would tribes be required to protect the advance notifications?

    Tribes would be required to protect the schedule and itinerary 
information contained in the advance notification against unauthorized 
disclosure as specified in Sec.  37.43(d).

L. Would tribal officials need to be fingerprinted and undergo a 
background investigation for unescorted access to shipments?

    Under the proposed rule, if the Tribe decides to participate in the 
Tribal Advance Notification program, the Tribal official, Tribal 
official designee, or Tribal law enforcement personnel may have 
unescorted access to certain radioactive materials without undergoing 
fingerprinting or a criminal history check. The Tribal official, Tribal 
official designee, or Tribal law enforcement personnel who needs to 
know shipment information to perform their job function may also have 
access to shipment schedule and itinerary information regarding advance 
notification of shipments passing within or across their Tribal 
reservation.
    Section 149 of the Atomic Energy Act of 1954, as amended (AEA), 
requires fingerprinting and submission of fingerprints to the Attorney 
General of the United States for identification and criminal history 
records check for any individual permitted unescorted access to 
radioactive material or other property subject to regulation by the 
Commission that the Commission determines to be of such significance to 
the public health and safety or the common defense and security as to 
warrant fingerprinting and background checks, unless the Commission, by 
rule, has relieved that individual from the fingerprinting, 
identification, and criminal history records check requirements. The 
Commission may relieve individuals from these regulatory requirements 
``if the Commission finds that such action is consistent with its 
obligations to promote the common defense and security and protect the 
health and safety of the public.'' As allowed by Section 149 of the 
AEA, the NRC enacted Sec.  37.29 to relieve specific categories of 
individuals from fingerprinting and criminal history record checks 
prior to receiving unescorted access to certain radioactive materials.
    The United States has a unique legal relationship with Indian 
Tribal governments as set forth in the Constitution of the United 
States, treaties, statutes, Executive Orders, and court decisions. 
Indian Tribes exercise inherent sovereign powers over their members and 
territory. The United States recognizes the right of Indian Tribes to 
self-government and supports Tribal sovereignty and self-determination. 
As a result, the NRC has determined that exempting Tribal officials, 
Tribal official designees, or Tribal law enforcement personnel is 
analogous to exempting the State governor, State governor designees, or 
State law enforcement personnel from the fingerprinting and background 
check requirements. Furthermore, some Tribes have emergency response 
responsibilities similar to States. Revising the regulation would 
permit the Commission and licensees to more efficiently approve 
unescorted access to certain radioactive materials relating to advance 
notification of shipments to Tribes. This proposed rule would enable 
the Tribes to be more effective in their day-to-day efforts to ensure 
the protection of certain radioactive materials and respond to 
emergencies within their territories. Therefore, the Commission has 
determined that these proposed revisions would help the Commission 
fulfill its obligations to promote the common defense and security and 
to protect the health and safety of the public.
    This proposed rule would add Tribal official, their designee, and 
Tribal law enforcement personnel to the list of categories of 
individuals that are granted relief from the fingerprinting, 
identification and criminal history records checks, and other elements 
of background checks. Those individuals granted access to advance 
notifications are required to abide by the requirements in Sec.  
37.43(d) for proper management and protection of information.

IV. Section-by-Section Analysis

    The following paragraphs describe the specific changes proposed by 
this rulemaking.

Section 37.5 Definitions

    This proposed rule adds definitions for ``Indian Tribe'' and 
``Tribal official.''

[[Page 16705]]

Section 37.21 Personnel Access Authorization Requirements for Category 
1 or Category 2 Quantities of Radioactive Material

    This proposed rule would revise Sec.  37.21(c)(2) to make a 
conforming change to update the reference from Sec.  37.29(a)(13) to 
read Sec.  37.29(a)(14).

Section 37.29 Relief From Fingerprinting, Identification, and Criminal 
History Records Checks and Other Elements of Background Investigations 
for Designated Categories of Individuals Permitted Unescorted Access to 
Certain Radioactive Materials

    This proposed rule would revise Sec.  37.29 by removing the word 
``and'' after paragraph (a)(12) and adding it after paragraph (a)(13), 
and adding a new paragraph (a)(14) to exempt Tribal officials from the 
fingerprinting requirement.

Section 37.43 General Security Program Requirements

    This proposed rule would revise Sec.  37.43(d)(4)(i) to make a 
conforming change to update the reference from ``Sec.  37.29(a)(1) 
through (13)'' to read ``Sec.  37.29(a)(1) through (14)''.

Section 37.77 Advance Notification of Shipment of Category 1 Quantities 
of Radioactive Material

    This proposed rule would revise the introductory paragraph in Sec.  
37.77 to specify that NRC and Agreement State licensees shall provide 
advance notification to the Tribal official of participating federally 
recognized Tribes, or the official's designee, of the shipment of 
licensed material in category 1 quantities that passes within or across 
the Tribe's reservation. In addition, this section would be revised to 
make conforming changes.

V. Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the Commission certifies that this rule, if adopted, will not 
have a significant economic impact on a substantial number of small 
entities. This proposed rule would affect a number of ``small 
entities'' as defined by the Regulatory Flexibility Act or the size 
standards established by the NRC (10 CFR 2.810). However, as indicated 
in the draft regulatory analysis available under the ``Availability of 
Documents'' section, the proposed amendments, if promulgated, would not 
have a significant economic impact on the affected small entities.
    Any small entity subject to this regulation that determines, 
because of its size, it is likely to bear a disproportionate adverse 
economic impact should notify the Commission of this opinion in a 
comment that indicates--
    (a) The licensee's size and how the proposed regulation would 
impose a significant economic burden on the licensee as compared to the 
economic burden on a larger licensee;
    (b) How the proposed regulations could be modified to take into 
account the licensee's differing needs or capabilities;
    (c) The benefits that would accrue or the detriments that would be 
avoided if the proposed regulations were modified as suggested by the 
licensee;
    (d) How the proposed regulation, as modified, would more closely 
equalize the impact of NRC regulations or create more equal access to 
the benefits of Federal programs as opposed to providing special 
advantages to any individual or group; and
    (e) How the proposed regulation, as modified, would still 
adequately protect public health and safety.
    Comments should be submitted as indicated under the ADDRESSES 
caption.

VI. Regulatory Analysis

    The NRC has prepared a draft regulatory analysis on this proposed 
regulation. The analysis examines the costs and benefits of the 
alternatives considered by the NRC. The conclusion from the analysis is 
that this proposed rule would result in net costs to the industry, the 
NRC, Agreement States, and Tribal governments of $2.9 million using a 
7-percent discount rate and $3.4 million using a 3-percent discount 
rate. Although the proposed rule would not be quantitatively cost 
effective, the costs for Tribes would be marginal and the costs for the 
NRC, industry, and Agreement States would be small and incremental 
because of the existing regulatory regime that created the Advance 
Tribal Notification program. The proposed rule would provide 
qualitative benefits by increasing regulatory efficiency and 
effectiveness for both the NRC and industry, would provide Tribal 
governments with greater regulatory predictability, would enhance the 
transparency of the Tribal Advance Notification program, and would 
resolve an inconsistency among the NRC's advance notification 
regulations in 10 CFR part 37 and 10 CFR parts 71 and 73. The proposed 
rule is also consistent with the NRC's Principles of Good Regulation 
and specifically Principle 2 in the NRC's Tribal Policy Statement, 
which states that the NRC recognizes the right of each Indian Tribe to 
self-governance and Tribal sovereignty and the right to self-
governance. The NRC requests public comment on the draft regulatory 
analysis. The regulatory analysis is available as indicated in the 
``Availability of Documents'' section of this document. Comments on the 
draft analysis may be submitted to the NRC as indicated under the 
ADDRESSES caption of this document.

VII. Backfitting and Issue Finality

    The NRC has determined that the backfit rule, which is found in the 
regulations at 10 CFR 50.109, 70.76, 72.62, 76.76, and in 10 CFR part 
52, does not apply to this rulemaking because this amendment would not 
involve any provisions that would impose backfits as defined in 10 CFR 
chapter I. Therefore, a backfit analysis is not required.

VIII. Cumulative Effects of Regulation

    The staff's preliminary assessment of the cumulative effects of 
regulation concludes that no known activities or affected entities 
would be impacted significantly by implementing the proposed changes. 
To ensure adequate identification of potential effects not currently 
foreseen, the staff plans to solicit Agreement State input on this 
issue during the proposed and final rule phases of this rulemaking.

IX. 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. The NRC 
requests comment on this document with respect to the clarity and 
effectiveness of the language used.

X. National Environmental Policy Act

    The NRC has determined that this proposed rule is the type of 
action described in the categorical exclusion at 10 CFR 51.22(c)(3)(v). 
Therefore, neither an environmental impact statement nor environmental 
assessment has been prepared for this proposed rule.

XI. Paperwork Reduction Act

    This proposed rule contains amended collections of information 
contained in 10 CFR part 37 and ``Tribal Participation in the Advance 
Notification Program'' subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). This proposed rule has been submitted to the 
Office of Management and Budget (OMB) for review and approval of the 
information collections.

[[Page 16706]]

    Type of submission, new or revision: Revision.
    The title of the information collection: Advance Tribal 
Notification of Category 1 Quantities of Radioactive Material 
Shipments.
    The form number if applicable: Not Applicable.
    How often the collection is required or requested: On occasion for 
licensees making notifications of shipments of category 1 quantities of 
radioactive material that will pass within or across the reservations 
of federally recognized Tribes participating in the NRC's Tribal 
Advance Notification program. For participating Tribes, information 
would be requested: (1) every 5 years; (2) after an Indian Tribe 
achieves Federal recognition; (3) when a transportation route is 
approved that is within a reservation or crosses a reservation 
boundary; (4) when there is a change in Tribal leadership or the Tribal 
official's designation; and (5) once, after the final rule is approved 
by the Commission.
    Who will be required or asked to respond: NRC licensees and 
Agreement State licensees who ship category 1 quantities of radioactive 
material and federally recognized Tribal governments choosing to opt-in 
to the Tribal Advance Notification program for certain radioactive 
material shipments.
    An estimate of the number of annual responses: 20 (14 for part 37 
licensees and 6 for participating Tribes).
    The estimated number of annual respondents: 10 (6 part 37 licensees 
and 4 participating Tribes.)
    An estimate of the total number of hours needed annually to comply 
with the information collection requirement or request: 25 hours for 
part 37 licensees (25 third-party disclosure hours). 17 hours for 
participating Tribes (11 hours reporting + 6 recordkeeping hours).
    Abstract: The NRC recognizes Tribal sovereignty and Tribal 
governments' interest in being informed of category 1 radioactive 
material shipments that would pass within or across reservations of 
participating federally recognized Tribes. The information collections 
related to the proposed rule would include licensee third-party 
disclosures for advance written notification to the Tribes of category 
1 shipments, notification of revisions of shipments to the Tribes, 
cancellation notifications to Tribes, and recordkeeping including 
maintaining copies of the advance notifications, revisions, and 
cancellation notices.
    This proposed rule would enable federally recognized Tribes to opt 
into the NRC Tribal Advance Notification program under 10 CFR part 37 
to receive notifications of shipments of category 1 quantities of 
radioactive material that pass within or across their reservation under 
10 CFR part 37, along with notifications of certain shipments of 
nuclear waste and shipments of irradiated reactor fuel under 10 CFR 
parts 71 and 73. Federally recognized Indian Tribes would affirmatively 
opt-in to receive the notifications by providing certain information to 
the NRC. The NRC would use the collected information to implement the 
advance notification program, which includes the following purposes: 
first, information would be collected and made available to licensees 
to enable licensees to comply with NRC and Agreement State regulations. 
Second, information would be collected to facilitate correspondence to 
the Tribal official, Tribal official's designated representative, or 
the Tribe's emergency response contact on matters related to 
transportation of shipments of certain types of radioactive material or 
the implementation of the advance notification program.
    The NRC is seeking public comment on the potential impact of the 
information collection(s) contained in this proposed rule and on the 
following issues:
    1. Is the proposed information collection necessary for the proper 
performance of the functions of the NRC, including whether the 
information will have practical utility? Please explain your answer.
    2. Is the estimate of the burden of the proposed information 
collection accurate? Please explain your answer.
    3. Is there a way to enhance the quality, utility, and clarity of 
the information to be collected?
    4. How can the burden of the proposed information collection on 
respondents be minimized, including the use of automated collection 
techniques or other forms of information technology?
    There are two OMB supporting statements associated with this 
proposed rule; one related to 10 CFR part 37 and one relating to Tribal 
participation in the Advance Notification program. A copy of the OMB 
clearance packages and proposed rule are available in ADAMS under 
Accession No. ML23285A083 and Accession No. ML23285A084 and may be 
obtained free of charge by contacting the NRC's Public Document Room 
reference staff at 1-800-397-4209, at 301-415-4737, or by email to 
[email protected]. You may obtain information and comment 
submissions related to the OMB clearance package by searching on 
https://www.regulations.gov under Docket ID NRC-2022-0191.
    You may submit comments on any aspect of these proposed information 
collection(s), including suggestions for reducing the burden and on the 
above issues, by the following methods:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2022-0191.
     Mail comments to: FOIA, Library, and Information 
Collections Branch, Office of the Chief Information Officer, Mail Stop: 
T-6 A10M, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 
or to the OMB reviewer at OMB Office of Information and Regulatory 
Affairs (3150-0214 and 3150-0250), Attention: Desk Officer for the 
Nuclear Regulatory Commission, 725 17th Street NW, Washington, DC 
20503.
    Submit comments by April 8, 2024. Comments received after this date 
will be considered if it is practical to do so, but the NRC staff is 
able to ensure consideration only for comments received on or before 
this date.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless the document requesting 
or requiring the collection displays a currently valid OMB control 
number.

XII. Coordination With NRC Agreement States

    A Government-to-Government meeting was held on October 4, 2023, to 
share early drafts of and discuss this proposed rule with Agreement 
States. Comments from Agreement States will be taken into consideration 
during the development of the final rule.

XIII. Compatibility of Agreement State Regulations

    Under the ``Agreement State Program Policy Statement,'' approved by 
the Commission on October 2, 2017, and published in the Federal 
Register (82 FR 48535; October 18, 2017), NRC program elements 
(including regulations) required for adequacy and having a particular 
health and safety component are those that are designated as categories 
A, B, C, D, NRC, and H&S: and those required for compatibility include 
those regulations and other legally binding requirements designated as 
compatibility categories A, B, C, and D. Compatibility category A are 
those program elements that include basic radiation protection 
standards and scientific terms and definitions that are necessary to 
understand radiation protection concepts. An Agreement

[[Page 16707]]

State should adopt category A program elements in an essentially 
identical manner in order to provide uniformity in the regulation of 
agreement material on a nationwide basis. Compatibility category B are 
those program elements that apply to activities that have direct and 
significant effects in multiple jurisdictions. Compatibility category B 
pertains to a limited number of program elements that cross 
jurisdictional boundaries and should be addressed to ensure uniformity 
of regulation on a nationwide basis. The Agreement State program 
element should be essentially identical to that of NRC. Compatibility 
category C are those program elements that do not meet the criteria of 
category A or B, but the essential objectives of which an Agreement 
State should adopt to avoid conflict, duplication, gaps, or other 
conditions that would jeopardize an orderly pattern in the regulation 
of agreement material on a national basis. An Agreement State should 
adopt the essential objectives of the category C program elements. 
Compatibility category D are those program elements that do not meet 
any of the criteria of category A, B, or C, above, and, thus, do not 
need to be adopted by Agreement States for purposes of compatibility. 
Compatibility category NRC are those program elements that address 
areas of regulation that cannot be relinquished to the Agreement States 
under the Atomic Energy Act of 1954, as amended, or provisions of 10 
CFR. These program elements should not be adopted by the Agreement 
States. Category H&S program elements are not required for purposes of 
compatibility; however, they do have particular health and safety 
significance. The Agreement State should adopt the essential objectives 
of such program elements to maintain an adequate program.
    This proposed rule is a matter of compatibility between the NRC and 
the Agreement States, thereby providing consistency among Agreement 
State and NRC requirements. The Agreement States adopted portions of 
the Advance Tribal Notification Rule that required Agreement State 
licensees to provide advance notification to participating federally 
recognized Tribes for shipments of irradiated reactor fuel and specific 
types of nuclear waste. The regulations defining ``Indian Tribe,'' 
``Tribal Official'' and 10 CFR 71.97, ``Advance notification of the 
shipment of irradiated reactor fuel and nuclear waste'' were designated 
as compatibility category ``B'' in the rulemaking. (See 77 FR 34194, 
34203, June 11, 2012.) In comparison, the advance notification 
provisions in 10 CFR part 73 are compatibility category ``NRC'' and 
only apply to NRC licensees. The Agreement States cannot adopt these 
regulatory requirements. The NRC anticipates that the associated 
requirements in this proposed rulemaking will remain as compatibility 
category B, requiring the Agreement States to adopt essentially 
identical provisions. Agreement States would need to adopt compatible 
program elements for the revised subparts that would be affected by 
this proposed rulemaking.
    Advance notification for category 1 material shipments to the 
participating federally recognized Tribes would be provided by NRC and 
Agreement State licensees, similar to the advance notification already 
being provided to States for these shipments. Although they would need 
to adopt compatible program elements, Agreement States would not be 
providing advance notification to the participating Tribes. The NRC 
would be applying the principles of the Tribal Policy Statement and the 
NRC's Principles of Good Regulations to the NRC's regulatory 
activities, which include having consistency between the advance 
notification provisions between States and Tribes for 10 CFR part 37 
category 1 quantities of radioactive materials. The compatibility 
categories are designated in the following table:

                                               Compatibility Table
----------------------------------------------------------------------------------------------------------------
                                                                                               Compatibility
             Section                        Change                     Subject           -----------------------
                                                                                           Existing       New
----------------------------------------------------------------------------------------------------------------
37.5.............................  New....................  Definitions ``Indian Tribe''  ..........          B
37.5.............................  New....................  Definitions ``Tribal          ..........          B
                                                             Leader''.
37.21(c).........................  Amend..................  Personnel access                      B           B
                                                             authorization requirements
                                                             for category 1 or category
                                                             2 quantities of radioactive
                                                             material.
37.29(a).........................  Amend..................  Relief from fingerprinting,           B           B
                                                             identification, and
                                                             criminal history records
                                                             checks and other elements
                                                             of background
                                                             investigations for
                                                             designated categories of
                                                             individuals permitted
                                                             unescorted access to
                                                             certain radioactive
                                                             materials.
37.43(d).........................  Amend..................  General security program               C           C
                                                             requirements.
37.77(a)-(d).....................  Amend..................  Advance notification of               B           B
                                                             shipment of category 1
                                                             quantities of radioactive
                                                             material.
37.77(f).........................  Amend..................  Advance notification of                C           C
                                                             shipment of category 1
                                                             quantities of radioactive
                                                             material.
----------------------------------------------------------------------------------------------------------------

XIV. Availability of Guidance

    The NRC expects to update NUREG-2155, ``Implementation Guidance for 
10 CFR part 37, `Physical Protection of Category 1 and Category 2 
Quantities of Radioactive Material,' '' to conform with this rulemaking 
effort. To support the development schedule for this proposed rule, the 
updates will be made in a future revision of the guidance rather than 
concurrently with this rulemaking. Interim guidance, in the form of 
frequently asked questions (FAQs), will be added to the NRC's public 
website. The draft FAQs are available in ADAMS under Accession No. 
ML23277A107 and in the docket for the proposed rule (NRC-2022-0191). 
You may submit comments on the draft FAQs by the methods outlined in 
the ADDRESSES section of this document.

XV. Public Meeting

    The NRC will conduct a public meeting on the proposed rule during 
the public comment period for the purpose of describing the proposed 
rule to the public. The NRC will publish a notice of the location, 
time, and agenda of the meeting on Regulations.gov and on the NRC's 
public meeting website at least 10 calendar days before the meeting. 
Stakeholders should monitor the NRC's public meeting website for 
information about the public meeting at: https://www.nrc.gov/public-involve/public-meetings/index.cfm.

XVI. 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.

[[Page 16708]]



------------------------------------------------------------------------
                                               ADAMS accession No./web
                  Document                      link/Federal Register
                                                       citation
------------------------------------------------------------------------
SRM-SECY-22-0074, Petition for Rulemaking    ML22290A240 (Package).
 and Rulemaking Plan on Advance Tribal
 Notification of Certain Radioactive
 Material Shipments (PRM-37-2; NRC-2021-
 0051), October 17, 2022.
SECY-22-0074: Petition for Rulemaking and    ML22056A316 (Package).
 Rulemaking Plan on Advance Tribal
 Notification of Certain Radioactive
 Material Shipments (PRM-37-2; NRC-2021-
 0051), August 10, 2022.
Regulatory Analysis for the Proposed Rule:   ML23277A108.
 Advance Notification of Category 1
 Quantities of Radioactive Material
 Shipments, February 2024.
NUREG-2155, ``Implementation Guidance for    ML22083A141.
 10 CFR Part 37, `Physical Protection of
 Category 1 and Category 2 Quantities of
 Radioactive Material,' '' March 2022.
Advance Tribal Notification of Category 1    ML23277A107.
 Quantities of Radioactive Material
 Shipments Rule--Frequently Asked
 Questions, February 2024.
PRM-37-2, Consideration in the Rulemaking    87 FR 67397.
 Process, Advance Tribal Notification of
 Certain Radioactive Material Shipments,
 November 8, 2022.
PRM-37-2, Notice of Docketing and Request    86 FR 18477.
 for Comment, Advance Tribal Notification
 of Certain Radioactive Material Shipments,
 April 9, 2021.
PRM-37-2, R. Arnold & R. Johnson on Behalf   ML21042B011.
 of the Tribal Radioactive Materials
 Transportation on Advance Tribal
 Notification of Certain Radioactive
 Material Shipments, December 4, 2020.
Advance Notification to Native American      78 FR 35746.
 Tribes of Transportation of Certain
 Shipments of Nuclear Waste, June 14, 2013.
Executive Order 13175, ``Consultation and    65 FR 67249.
 Coordination with Indian Tribal
 Governments,'' November 6, 2000.
Tribal Policy Statement, January 9, 2017...  82 FR 2402.
Final Rule--Physical Protection of           78 FR 16922.
 Byproduct Material, March 19, 2013.
Proposed Rule--Physical Protection of        75 FR 33902.
 Byproduct Material, June 15, 2010.
Final Rule--Advance Notification to Native   77 FR 34194.
 American Tribes of Transportation of
 Certain Types of Nuclear Waste, June 11,
 2012.
Principles of Good Regulation..............  https://www.nrc.gov/about-nrc/values.html#principles.
The Plain Writing Act of 2010 (Pub. L. 111-  https://www.govinfo.gov/app/
 274).                                        details/PLAW-111publ274.
``Plain Language in Government Writing,''    63 FR 31885.
 June 10, 1998.
OMB Supporting Statement--10 CFR Part 37--   ML23285A083.
 Physical Protection of Category 1 and
 Category 2 Quantities of Radioactive
 Material (OMB Clearance No. 3150-0214).
OMB Supporting Statement for Tribal          ML23285A084.
 Participation in the Advance Notification
 Program (OMB Clearance No. 3150-0250).
------------------------------------------------------------------------

    The NRC may post materials related to this document, including 
public comments, on the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2022-0191. 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-2022-0191); (2) click 
the ``Subscribe'' link; and (3) enter an email address and click on the 
``Subscribe'' link.

List of Subjects in 10 CFR Part 37

    Byproduct material, Criminal penalties, Exports, Hazardous 
materials transportation, Imports, Licensed material, Nuclear 
materials, Penalties, Radioactive materials, 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 proposing 
to amend 10 CFR part 37.

PART 37--PHYSICAL PROTECTION OF CATEGORY 1 AND CATEGORY 2 
QUANTITIES OF RADIOACTIVE MATERIAL

0
1. The authority citation for part 37 continues to read as follows:

    Authority: Atomic Energy Act of 1954, secs. 11, 53, 81, 103, 
104, 147, 148, 149, 161, 182, 183, 223, 234, 274 (42 U.S.C. 2014, 
2073, 2111, 2133, 2134, 2167, 2168, 2169, 2201, 2232, 2233, 2273, 
2282, 2021); Energy Reorganization Act of 1974, secs. 201, 202 (42 
U.S.C. 5841, 5842); 44 U.S.C. 3504 note.

0
2. In Sec.  37.5, add, in alphabetical order, definitions for ``Indian 
Tribe'' and ``Tribal official'' to read as follows:


Sec.  37.5  Definitions.

* * * * *
    Indian Tribe means an Indian or Alaska Native Tribe, band, nation, 
pueblo, village, or community that the Secretary of the Interior 
acknowledges to exist as an Indian Tribe pursuant to the Federally 
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 5130.
* * * * *
    Tribal official means the highest-ranking individual that 
represents Tribal leadership, such as the Chief, President, or Tribal 
Council leadership.
* * * * *


Sec.  37.21  [Amended]

0
3. In Sec.  37.21(c)(2), remove the reference ``(13)'' and add, in its 
place, the reference ``(14)''.
0
4. In Sec.  37.29, remove the word ``and'' after paragraph (a)(12), 
revise paragraph (a)(13), and add (a)(14) to read as follows:


Sec.  37.29  Relief from fingerprinting, identification, and criminal 
history records checks and other elements of background investigations 
for designated categories of individuals permitted unescorted access to 
certain radioactive materials

    (a) * * *
    (13) Any individual employed by a service provider licensee for 
whom the service provider licensee has conducted the background 
investigation for the individual and approved the individual for 
unescorted access to category 1 or category 2 quantities of radioactive 
material. Written verification from the service provider must be 
provided to the licensee. The licensee shall retain the documentation 
for a period of 3 years from the date the individual no longer requires 
unescorted access to category 1

[[Page 16709]]

or category 2 quantities of radioactive material; and
    (14) The Tribal official or Tribal official's designee, and Tribal 
law enforcement personnel.
* * * * *


Sec.  37.43  [Amended]

0
5. In Sec.  37.43(d)(4)(i), remove the reference ``(13)'' and add, in 
its place, the reference ``(14)''.
0
6. In Sec.  37.77, revise the introductory paragraph and paragraphs 
(a)(1) and (3); in paragraph (b)(5), remove the word ``State'' and add 
in its place the phrase, ``State or Tribal reservation boundary''; and 
revise paragraphs (c), (d), and (f) to read as follows:


Sec.  37.77  Advance notification of shipment of category 1 quantities 
of radioactive material.

    As specified in paragraphs (a) and (b) of this section, each 
licensee shall provide advance notification to the NRC, the governor of 
a State, or the governor's designee, and the Tribal official or the 
Tribal official's designee of participating Tribes referenced in 
paragraph (a)(1) of this section, of the shipment of licensed material 
in a category 1 quantity, within or across the boundary of the State, 
or within or across the boundary of the Tribal reservation, before the 
transport, or delivery to a carrier for transport of the licensed 
material outside the confines of the licensee's facility or other place 
of use or storage.
    (a) * * *
    (1) The notification must be made to the NRC, to the office of each 
appropriate governor or governor's designee, and to the office of each 
participating Tribal official or Tribal official's designee. The 
contact information, including telephone and mailing addresses, of 
governors and governors' designees, and participating Tribes' officials 
and Tribal official's designees, is available on the NRC's website at 
https://scp.nrc.gov/special/designee.pdf. A list of the contact 
information also is available upon request from the Director, Division 
of Materials Safety, Security, State, and Tribal Programs, Office of 
Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001. Notifications to the NRC must be 
to the NRC's Director, Office of Nuclear Security and Incident 
Response, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001. The notification to the NRC may be made by email to 
[email protected] or by fax to 301-816-5151.
* * * * *
    (3) A notification delivered by any means other than mail must 
reach NRC at least 4 days before the transport of the shipment 
commences and must reach the office of the governor or the governor's 
designee or the Tribal official or Tribal official's designee at least 
4 days before transport of a shipment within or across the State or 
Tribal reservation boundary.
* * * * *
    (c) Revision notice. (1) The licensee shall provide any information 
not previously available at the time of the initial notification, as 
soon as the information becomes available but not later than 
commencement of the shipment, to the governor of the State or the 
governor's designee, the Tribal official or Tribal official's designee, 
and to the NRC's Director, Office of Nuclear Security and Incident 
Response, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001.
    (2) A licensee shall promptly notify the governor of the State or 
the governor's designee and the Tribal official or Tribal official's 
designee of any changes to the information provided in accordance with 
paragraphs (b) and (c)(1) of this section. The licensee shall also 
immediately notify the NRC's Director, Office of Nuclear Security and 
Incident Response, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001 of any such changes.
    (d) Cancellation notice. Each licensee who cancels a shipment for 
which advance notification has been sent shall send a cancellation 
notice to the governor of each State or to the governor's designee and 
Tribal official or Tribal official's designee previously notified and 
to the NRC's Director, Office of Nuclear Security and Incident 
Response, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001. The licensee shall send the cancellation notice before the 
shipment would have commenced or as soon thereafter as possible. The 
licensee shall state in the notice that it is a cancellation and 
identify the advance notification that is being cancelled.
* * * * *
    (f) Protection of information. State officials, State employees, 
Tribal officials, Tribal employees, and other individuals, whether or 
not licensees of the Commission or an Agreement State, who receive 
schedule information of the kind specified in Sec.  37.77(b) shall 
protect that information against unauthorized disclosure as specified 
in Sec.  37.43(d) of this part.

    Dated: February 20, 2024.

    For the Nuclear Regulatory Commission.
Raymond Furstenau,
Executive Director for Operations.
[FR Doc. 2024-04771 Filed 3-7-24; 8:45 am]
BILLING CODE 7590-01-P