Advance Tribal Notification of Category 1 Quantities of Radioactive Material Shipments
| Published date | 08 March 2024 |
| Record Number | 2024-04771 |
| Citation | 89 FR 16701 |
| Court | Nuclear Regulatory Commission |
| Section | Proposed rules |
Federal Register, Volume 89 Issue 47 (Friday, March 8, 2024)
[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
