Physical Protection of Irradiated Reactor Fuel in Transit, 62695-62716 [2010-25392]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 75, Number 197 (Wednesday, October 13, 2010)]
[Proposed Rules]
[Pages 62695-62716]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-25392]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 73

RIN 3150-AI64
[NRC-2009-0163]


Physical Protection of Irradiated Reactor Fuel in Transit

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to 
amend its security regulations pertaining to the transport of 
irradiated reactor fuel (for purposes of this rulemaking, the terms 
``irradiated reactor fuel'' and ``spent nuclear fuel'' (SNF) are used 
interchangeably). This proposed rule would establish generically 
applicable security requirements similar to those previously imposed by 
Commission orders issued after the terrorist attacks of September 11, 
2001. The proposed rule would establish the acceptable performance 
standards and objectives for the protection of spent nuclear fuel 
shipments from theft, diversion, or radiological sabotage. The proposed 
amendments would apply to those licensees authorized to possess or 
transport spent nuclear fuel. The proposed security requirements would 
also address, in part, a petition for rulemaking from the State of 
Nevada (PRM-73-10) that requests that NRC strengthen the regulations 
governing the security of spent nuclear fuel shipments against 
malevolent acts.

DATES: The comment period expires January 11, 2011. Submit comments 
specific to the information collection aspects of this rule by November 
12, 2010. Comments received after this date will be considered if 
practical to do so, but the NRC is able to assure consideration only 
for comments received on or before this date.

ADDRESSES: Please include Docket ID: NRC-2009-0163 in the subject line 
of your comments. For instructions on submitting comments and accessing 
documents related to this action, see Section I, ``Submitting Comments 
and Accessing Information'' in the SUPPLEMENTARY INFORMATION section of 
this document. You may submit comments by any one of the following 
methods.
    Federal Rulemaking Web site: Go to https://www.regulations.gov and 
search for documents filed under Docket ID: NRC-2009-0163. Address 
questions about the NRC dockets to Carol Gallagher 301-492-3668; e-mail 
Carol.Gallager@nrc.gov.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
    E-mail comments to: Rulemaking.Comments@nrc.gov. If you do not 
receive a reply e-mail confirming that we have received your comments, 
contact us directly at (301) 415-1966.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 a.m. and 4:15 p.m. during Federal workdays. 
(Telephone 301-415-1966)
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
301-415-1101.

FOR FURTHER INFORMATION CONTACT: Cardelia Maupin, Office of Federal and 
State Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, Telephone 301-415-
2312, e-mail: Cardelia.Maupin@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Submitting Comments and Accessing Information
II. Background
III. Discussion
    A. What action is the NRC taking in this rule?
    B. Why revise the requirements?
    C. What is requested by the State of Nevada in its petition for 
rulemaking (PRM-73-10)?
    D. What are the DOT routing requirements for spent nuclear fuel 
shipments?
    E. What are the NRC routing requirements for spent nuclear fuel 
shipments?

[[Page 62696]]

    F. Why do the NRC and DOT routing requirements differ for spent 
nuclear fuel shipments?
    G. Why require procedures and training for the security of spent 
nuclear fuel in transit?
    H. Why require a telemetric position monitoring system or an 
alternative tracking system for continuous monitoring of spent 
nuclear fuel shipments?
    I. Why pre-plan and coordinate spent nuclear fuel shipments?
    J. Why require constant visual surveillance by armed escort?
    K. Why require two-way redundant communication capabilities?
    L. Why require background investigations?
    M. Why enhance shipment notifications to NRC?
    N. Which type of spent nuclear fuel does DOE ship?
    O. What is a non-classified shipment of spent nuclear fuel and 
what are the DOE requirements for this type of shipment?
    P. How are the NRC and DOE requirements similar and how are they 
different?
    Q. Who would this action affect?
    R. Does NRC plan to issue guidance on these proposed 
requirements?
    S. What should I consider as I prepare my comments to NRC?
IV. Discussion of the Proposed Amendments by Section
V. Criminal Penalties
VI. Agreement State Compatibility
VII. Plain Language
VIII. Voluntary Consensus Standards
IX. Finding of No Significant Environmental Impact: Availability
X. Paperwork Reduction Act Statement
XI. Public Protection Notification
XII. Regulatory Analysis
XIII. Regulatory Flexibility Certification
XIV. Backfit Analysis

I. Submitting Comments and Accessing Information

    Comments submitted in writing or in electronic form will be posted 
on the NRC Web site and on the Federal rulemaking Web site https://www.regulations.gov. Because your comments will not be edited to remove 
any identifying or contact information, the NRC cautions you against 
including any information in your submission that you do not want to be 
publicly disclosed. The NRC requests that any party soliciting or 
aggregating comments received from other persons for submission to the 
NRC inform those persons that the NRC will not edit their comments to 
remove any identifying or contact information, and therefore, they 
should not include any information in their comments that they do not 
want publicly disclosed.
    You can access publicly available documents related to this 
document using the following methods:
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Room O-
1 F21, One White Flint North, 11555 Rockville Pike, Rockville, 
Maryland.
    NRC's Agencywide Document Access and Management System (ADAMS): 
Publicly available documents created or received at NRC are available 
electronically at the NRC's Electronic Reading Room at https://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of the NRC's 
public documents. If you do not have access to ADAMS or if there are 
problems in accessing the documents located in ADAMS, contact the NRC's 
PDR reference staff at 1-800-397-4209, or 301-415-4737, or by e-mail to 
PDR Resource.
    Federal Rulemaking Web site: Public comments and supporting 
materials related to this proposed rule can be found at https://www.regulations.gov by searching on Docket ID: NRC-2009-0163.

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                   Document                         PDR                       ADAMS                      Web
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Environmental Assessment......................           X   ML092710448...........................           X
Regulatory Analysis...........................           X   ML102710278...........................           X
PRM-73-10.....................................           X   ML092540603...........................           X
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II. Background

A. Pre-September 11, 2001

    On June 15, 1979 (44 FR 34466), NRC published an interim final rule 
in the Federal Register that established its first requirements for the 
physical protection of spent nuclear fuel in transit. The interim final 
rule added 10 CFR 73.37, ``Requirements for Physical Protection of 
Irradiated Reactor Fuel in Transit'' to 10 CFR part 73. After 
considering public comments, the Commission affirmed the interim final 
rule on June 3, 1980 (45 FR 37399).
    The current Sec.  73.37 has changed little since its promulgation 
in 1980. These regulations require licensees to establish a physical 
protection system for spent nuclear fuel shipments that meets the 
following objectives: (1) Minimize the possibilities for radiological 
sabotage of spent nuclear fuel shipments, especially within heavily 
populated areas, and (2) facilitate the location and recovery of spent 
nuclear fuel shipments that may have come under the control of 
unauthorized persons. The regulation also provides for: (1) The early 
detection and assessment of attempts to gain unauthorized access to or 
control over spent nuclear fuel shipments, (2) the notification to the 
appropriate response forces of any sabotage events, and (3) the 
impeding of attempts at radiological sabotage of spent nuclear fuel 
shipments in heavily populated areas or attempts to illicitly move such 
shipments into heavily populated areas.
    Other NRC regulations support the protection of spent nuclear fuel 
in transit. The regulations in Sec.  73.72, ``Requirement for Advance 
Notice of Shipment of Formula Quantities of Strategic Special Nuclear 
Material, Special Nuclear Material of Moderate Strategic Significance, 
or Irradiated Reactor Fuel'' require licensees to notify NRC in advance 
about shipments of spent nuclear fuel. The regulations in 10 CFR part 
71, ``Packaging and Transportation of Radioactive Material,'' establish 
requirements for packages used to transport spent nuclear fuel.
    This proposed rule would consider and address, in part, a petition 
for rulemaking submitted by the State of Nevada. By a letter dated June 
22, 1999, the State of Nevada submitted a petition for rulemaking 
requesting that NRC strengthen its regulations governing the security 
of spent nuclear fuel shipments against malevolent acts. The NRC 
docketed the petition on July 13, 1999, as Docket No. PRM-73-10 (PRM-
73-10). The NRC published a notice of receipt of petition and a request 
for public comment on September 13, 1999 (64 FR 49410). The Commission 
review of this petition was tabled following the terrorist attacks of 
September 11, 2001. The petition was denied, in part, by the NRC on 
December 7, 2009 (74 FR 64012). This proposed rulemaking would consider 
and address the remaining requests for the NRC rulemaking made in PRM-
73-10.

B. Post-September 11, 2001

    Although the current Sec.  73.37 has changed little since its 
promulgation in 1980, there have been significant changes in the threat 
environment. The terrorist attacks of September 11, 2001, heightened 
concerns about the use of risk-significant radioactive materials in a 
malevolent act. After the terrorist

[[Page 62697]]

attacks of September 11, 2001, the NRC issued a series of security-
related orders to specific licensees. In the area of spent nuclear fuel 
transit security, the orders were issued to licensees who shipped or 
received, or were planning to ship or receive, spent nuclear fuel. The 
orders were issued as immediately effective under the NRC's authority 
to protect the common defense and security under the Atomic Energy Act 
of 1954, as amended (AEA). The requirements established by the orders 
supplement the existing regulatory requirements. These additional 
security requirements are primarily intended to ensure that spent 
nuclear fuel is shipped in a manner that protects the common defense 
and security, and the public health and safety.

C. Current Regulatory Framework

    About two thousand NRC regulated shipments of spent nuclear fuel 
have been made throughout the United States since the 1970s. The 
primary objective of these shipments has been to move spent nuclear 
fuel to interim storage. These spent fuel shipments are generally 
divided into two categories: commercial shipments or DOE managed spent 
nuclear fuel shipments. Commercial spent nuclear fuel shipments are 
from the NRC-licensed facilities such as commercial nuclear power 
reactors, research and test reactors, and facilities for non-
destructive testing and analysis of spent nuclear fuel. The DOE-managed 
shipments involve shipments to DOE owned interim spent nuclear fuel 
storage facilities.
    The safe and secure shipment of spent nuclear fuel requires 
coordination and collaboration between various Federal, State, Tribal 
and local government agencies. These organizations work together to 
create an orderly pattern for shipments of spent nuclear fuel.
    1. What is the role of NRC in spent nuclear fuel transit? 
Generally, the NRC regulates the design and construction of spent 
nuclear fuel shipping containers for domestic and foreign packages used 
to transport spent nuclear fuel solely within the United States. 
Although DOT is the lead government agency responsible for the approval 
of export and import packages, it relies on the NRC's evaluation as the 
basis for approval of these packages. In addition, NRC regulates the 
physical protection of commercial spent nuclear fuel in transit against 
sabotage or other malicious acts, which is recognized in the DOT 
routing regulations in 49 CFR 397.101. The NRC requirements in 10 CFR 
Part 73 are applied to shipments of spent nuclear fuel from the NRC 
licensees.
    2. What is the role of DOT in spent nuclear fuel transit? The DOT 
regulates the transportation of hazardous materials, including spent 
nuclear fuel in interstate and intrastate commerce. Generally, DOT 
regulates in consultation with NRC the carriers of spent nuclear fuel 
and the conditions of transport, such as routing, handling and storage 
incident to transport, and vehicle and driver requirements. The DOT 
also regulates the labeling, classification, and marking of all spent 
nuclear fuel packages and transport vehicles.
    3. What is the role of DOE? For over 50 years, DOE has transported 
spent nuclear fuel to interim storage facilities. These spent nuclear 
fuel shipments have originated from the following: (1) Foreign research 
reactors; (2) DOE-owned research and defense reactors, and (3) nuclear 
powered U.S. Navy ships. In addition, on a few rare occasions, the DOE 
has accepted some spent nuclear fuel from commercial nuclear power 
plants, e.g., Three Mile Island Unit 2, for storage at its facilities.
    The DOE managed shipments of spent nuclear fuel, unless designated 
as a national security shipment, are conducted under requirements 
equivalent to those of DOT and NRC. The DOE complies with the DOT 
highway section criteria and carrier safety provisions. The DOE spent 
nuclear fuel packages are required to meet the NRC design and 
performance criteria in 10 CFR part 71, which is also stated in the DOT 
regulations in 49 CFR 173.7(d). Spent nuclear fuel shipments made by 
DOE or the DOE contractors are not subject to the NRC physical 
protection requirements because DOE is not a NRC licensee. DOE's 
policy, however, is that DOE managed spent nuclear fuel shipments meet 
or exceed NRC physical protection requirements.
    4. What is the role of State, local, and Tribal governments? State, 
local and Tribal governments play an important role in the safe and 
secure transport of spent nuclear fuel. They assist in route planning 
and, for many shipments, provide armed escorts. They enforce the DOT 
highway safety regulations, including the performance of shipment 
inspections. State, local, and Tribal governments are also responsible 
for providing the first line of government response to accidents and 
incidents within their jurisdiction.

III. Discussion

A. What action is NRC taking in this rule?

    The NRC is proposing amendments to its regulations to enhance the 
security requirements that apply to the transportation of spent nuclear 
fuel. This proposed rulemaking would establish generically applicable 
security requirements similar to those previously imposed by Commission 
orders issued after the terrorist attacks of September 11, 2001. The 
proposed rulemaking would also add several new requirements not derived 
directly from the security order requirements, but developed as a 
result of insights gained by performing security assessments of 
potential security vulnerabilities associated with spent nuclear fuel 
in transit. Also, the proposed rulemaking would address, in part, the 
requests for the NRC rulemaking raised by PRM-73-10.
    The proposed requirements would establish acceptable performance 
objectives for the protection of spent nuclear fuel in transit from 
sabotage, theft, or diversion for malevolent use. These requirements 
would ensure that spent nuclear fuel is shipped in a manner that 
protects the common defense and security, and public health and safety.

B. Why revise the requirements?

    After the attacks of September 11, 2001, NRC re-evaluated its 
security requirements for spent nuclear fuel in transit. From this 
effort, additional measures were identified that would improve 
security. The additional security measures deemed immediately necessary 
were issued as orders and supplemented existing regulations. The orders 
are not publically available, because they contain detailed security 
requirements that are designated as Safeguards Information (SGI). The 
proposed revisions are based on the NRC efforts undertaken since the 
events of September 11, 2001, including issuance of additional security 
requirements by orders, insights gained from implementation of the 
orders, and insights gained by performing security assessments of 
potential security vulnerabilities associated with spent nuclear fuel 
transportation. The proposed revisions also reflect portions of the 
State of Nevada's Petition for Rulemaking (PRM-73-10). The NRC intends 
to rescind the security orders provided the final rule adequately 
addresses the security requirements set forth in those orders. 
Rescission will be addressed in the notice of final rulemaking.

C. What is requested by the State of Nevada in its petition for 
rulemaking (PRM-73-10)?

    By a letter dated June 22, 1999, the State of Nevada submitted a 
rulemaking

[[Page 62698]]

petition (docketed as PRM-73-10) requesting that NRC initiates 
rulemaking to strengthen its regulations for the physical protection of 
spent nuclear fuel shipments against radiological sabotage and 
terrorist acts. The NRC published a notice of receipt of petition and a 
request for public comment on September 13, 1999 (64 FR 49410). The 
Commission review of this petition was tabled following the terrorist 
attacks of September 11, 2001.
    In PRM-73-10, Nevada requested that NRC: (1) Clarify the meaning of 
the term ``hand-carried equipment'' in 10 CFR 73.1(a)(1)(i)(D); (2) 
clarify the definition of the term ``radiological sabotage'' in 10 CFR 
73.2 to include actions against spent nuclear fuel shipments which are 
intended to cause a loss of shielding, release of radioactive materials 
or cause economic damage or social disruption, regardless of the 
success or failure of the action; (3) amend the advance route approval 
requirements in 10 CFR 73.37(b)(1)(vi) to require shippers and carriers 
of spent nuclear fuel to identify primary and alternative routes which 
avoid heavily populated areas; (4) require armed escorts along the 
entire road shipment route by eliminating the differential based on 
population in 10 CFR 73.37(c); (5) require armed escorts along the 
entire rail shipment route by eliminating the differential based on 
population in 10 CFR 73.37(d); (6) amend 10 CFR 73.37(b) by adopting 
additional planning and scheduling requirements for spent nuclear fuel 
shipments that are the same as those required for formula quantities of 
special nuclear material by 10 CFR 73.26(b); (7) amend 10 CFR 73.37(d) 
to require that rail shipments of spent nuclear fuel be made in 
dedicated trains; and (8) conduct a comprehensive assessment of the 
consequences of terrorist attacks that have the capability of 
radiological sabotage.
    In this proposed rulemaking, the NRC will consider the above items 
raised in PRM-73-10, except for the first and eighth items, namely, 
clarification of the meaning of the term ``hand-carried equipment'' and 
the conducting of a comprehensive assessment of the consequences of 
terrorist attacks that have the capability of radiological sabotage. 
Rulemaking on the first and eighth items of PRM-73-10 was denied by the 
NRC on December 7, 2009 (74 FR 64012). The remaining items are 
addressed below:
    PRM-73-10, Item 2: Clarify the definition of the term 
``radiological sabotage'' in Sec.  73.2, ``Definitions,'' and amend it 
to expressly include ``deliberate actions which cause, or are intended 
to cause economic damage or social disruption regardless of the extent 
to which public health and safety are actually endangered by exposure 
to radiation.''
    The NRC considers that the existing definition already encompasses 
actions of the type described by the Petitioner. However, NRC agrees 
that clarification may be useful. The NRC is addressing this petition 
item by clarifying the definition of radiological sabotage in the 
supporting guidance document associated with the proposed rule.
    PRM-73-10, Item 3: Amend the advance route approval requirements in 
10 CFR 73.37(b)(7) to ``specifically require shippers and carriers to 
identify primary and alternative routes which minimize highway and rail 
shipments through heavily populated areas.'' Also, as part of this 
request, PRM-73-10 stated that NRC should consider adopting the route 
selection criteria in NUREG-0561, Physical Protection of Shipments of 
Irradiated Reactor Fuel in Transit, as part of the regulations, and 
specifically require shippers and carriers to minimize use of routes 
which fail to comply with the route selection criteria.
    The NRC considered incorporating the route selection criteria of 
NUREG-0561 into the proposed rule, but determined that implementing 
such criteria may cause conflicts with the DOT requirements. Sections D 
through F below provide additional information about the differences 
between DOT and NRC routing criteria. The PRM-73-10 request for the 
adoption of routing criteria from NUREG-0561 was considered by the NRC 
and determined to be not appropriate.
    The PRM-73-10 also requested that NRC amend its regulations to 
minimize highway and rail shipments through heavily populated areas. 
The NRC is addressing the goal of minimizing spent nuclear fuel 
shipments through heavily populated areas in the proposed rulemaking. 
The proposed revisions to 10 CFR 73.37 would require licensees to 
preplan and coordinate their shipments with the affected States. This 
issue is discussed below under ``Why Require Shipment Preplanning and 
Coordination with States?'' Combining the NRC proposed requirements, 
which include State involvement in licensees' planning activities, with 
the requirements of DOT is expected to minimize movement of spent 
nuclear fuel through heavily populated areas.
    PRM-73-10, Items 4 and 5: The current regulations, Sec.  73.37(c) 
and (d), for road and rail shipments, respectively, require armed 
escorts in heavily populated areas, but not in other areas along the 
route. PRM-73-10 requested that NRC eliminate these differential armed 
escort requirements based upon population for both road and rail spent 
nuclear fuel shipments.
    Proposed Sec. Sec.  73.37(c) and (d) include these PRM-73-10 
requests. The differentiation of security requirements based upon 
population causes potential areas of vulnerability along the shipment 
route for theft, diversion, or radiological sabotage. The proposed rule 
would require that the same security requirements for heavily populated 
areas apply along the entire route for road and rail shipments, and at 
any U.S. ports where vessels carrying spent fuel shipments are 
scheduled to stop.
    PRM-73-10, Item 6: Amend Sec.  73.37(b) by adopting additional 
planning and scheduling requirements for spent nuclear fuel shipments 
that are the same as those required for formula quantities of special 
nuclear material by Sec.  73.26(b). The regulations in Sec.  73.26(b) 
require that shipments be scheduled to avoid delays and stops, and to 
ensure timely delivery of the shipment.
    The NRC agrees that improvements are needed in the planning and 
coordination of shipments and has addressed this concern in the 
proposed amendment. This issue is discussed below under ``Why Require 
Shipment Preplanning and Coordination with States?''
    PRM-73-10, Item 7: Amend Sec.  73.37(d) to require that all spent 
nuclear fuel rail shipments be made in dedicated trains.
    The same NRC security requirements would apply to a spent nuclear 
fuel rail shipment, regardless of whether the shipment was made using a 
dedicated train or a mixed-use train. In either case, the licensee 
making the shipment would be required to ensure that the security 
protection measures (both hardware and personnel) required by the NRC's 
regulations would be present to provide the requisite high assurance of 
protection of public health and safety and the common defense and 
security during the entire duration of the shipment. The NRC considers 
the same level of security will be obtained regardless of whether the 
shipment is made in a dedicated train or mixed-use train. Thus, this 
item is not addressed as a part of the proposed rule.
    The NRC invites comments on its proposed disposition of items 2 
through 7 of PRM-73-10 as part of its consideration of this proposed 
rule. Comments should be sent to the address listed under the ADDRESSES 
heading of this document. The PRM-73-10 is available at ADAMS Accession 
Number: ML092540603 and the NRC's September 13, 1999, notice of receipt 
of petition and request for public comments (64 FR

[[Page 62699]]

49410) is available on the Federal Register's Web site, https://www.gpoaccess.gov/fr/.

D. What are the DOT routing requirements for spent nuclear fuel 
shipments?

    The DOT has various terms to define and categorize radioactive 
material within the Title 49 of the Code of Federal Regulations. Within 
their definitions, DOT includes a category for highway route controlled 
quantity (HRCQ) which is defined as a quantity of radioactive material 
within a single package that exceeds: (a) 3,000 times the A1 
value of the radionuclides for special form material or 3,000 times the 
A2 values of the radionuclides for normal form material; or 
(b) 1,000 TBq (27,000 curies), whichever is less. The HRCQ shipments 
can be made by all modes of transport. Spent nuclear fuel shipments 
fall under the DOT's definition of HRCQ.
    For shipments by road, the DOT requirements for routing radioactive 
material are found in 49 CFR Parts 172 (Subpart I--Safety and Security 
Plans) and 397 (Subpart D--Routing of Class 7 (Radioactive) Materials). 
The DOT highway routing requires carriers to (1) Ensure routes are 
chosen based on minimizing radiological risk; (2) consider available 
information on accident rates, transit time, population density and 
activities, and the time of the day and the day of the week during 
which transportation will occur to determine the level of radiological 
risk; and (3) instruct the driver about the route and the hazards of 
the shipment. Furthermore, under the DOT requirements, HRCQ are 
transported only over preferred routes (i.e., the Interstate Highway 
System, an alternative route designated by a State routing agency, or 
both), or an Interstate Highway System bypass or beltway around a city 
when available, unless a State routing agency has designated an 
alternative route. Routes can only be designated after substantive 
consultation with affected local jurisdictions and with any other 
affected States to ensure consideration of all impacts and continuity 
of affected routes. A written route plan is to be prepared by the 
carrier and provided to drivers and shippers.
    The DOT allows motor carriers and drivers some deviation from the 
preferred route when picking up or delivering material, making 
necessary rest, fuel or motor vehicle repair stops, or because 
emergency conditions make continued use of the preferred route unsafe 
or impossible. In addition, a person may transport irradiated reactor 
fuel only in compliance with a plan that will ensure the physical 
security of the material. The DOT permits variation for security 
purposes from the routing requirements of 49 CFR 397.101 only so far as 
necessary to meet the requirements imposed under such a plan, or 
otherwise imposed by NRC in 10 CFR Part 73.
    For shipments by rail, the DOT requirements for routing radioactive 
material are found within 49 CFR parts 172, 174 and 209. The DOT 
requires rail carriers to compile annual data on certain shipments of 
hazardous materials, including HRCQ. The data is used to analyze safety 
and security risks along rail routes where those materials are 
transported; assess alternative routing options; and make routing 
decisions based on those assessments. Rail carriers must assess the 
available routes ensuring, at a minimum, that 27 specific factors are 
considered. These 27 factors include, but are not limited to, 
consideration of rail traffic density, transit times, number and types 
of grade crossings, proximity to iconic targets, population densities 
and venues along the route.
    Rail carriers must also seek relevant information from State, 
local, and Tribal officials, as appropriate, regarding security risks 
to high-consequence targets along or in proximity to a route used by a 
rail carrier to transport security-sensitive materials. Oversight is 
provided by the DOT Federal Railroad Administration (FRA), which 
includes review and inspection of rail carrier's risk analyses and 
route selection, but FRA does not pre-approve rail routes. If FRA 
determines that a carrier's route selection documentation and 
underlying analyses are deficient, the carrier may be required to 
revise the analyses or make changes in the route selection. In 
addition, if it is determined by DOT that a particular route chosen by 
the railroad is not the safest and most secure practicable route 
available, FRA can require the use of an alternative route until such 
time as the identified deficiencies for the originally chosen route are 
corrected by the railroad.

E. What are the NRC routing requirements for spent nuclear fuel 
shipments?

    For spent fuel in quantities greater than 100 grams and exceeding 1 
Sv (100 rems) per hour at a distance of 0.91 meters (3 feet) from any 
accessible surface without intervening shielding, licensees are 
required to transport such spent nuclear fuel along routes that have 
been pre-approved by NRC. Furthermore, the proposed rule text of Sec.  
73.37(b)(1) requires licensees to preplan and coordinate their routes 
with the States, including identification of safe havens.
    The proposed rule does not include specific routing criteria for 
licensees to use when developing routes. However, the objective of 
Sec.  73.37 is to minimize the potential for theft, diversion, or 
radiological sabotage for shipments of spent nuclear fuel. Licenses are 
expected to develop routes by considering criteria including, but not 
limited to: the DOT routing criteria, minimizing transit time, 
likelihood of swift response by local law enforcement, availability of 
safe havens (for road shipments), avoidance of tactically 
disadvantageous positions, availability of appropriate rest and 
refueling stops (for road shipments), and availability of good 
transportation safety features. When selecting a route by road, 
licensees are also expected to conduct surveys of the proposed route. 
The objective of these surveys is to locate safe havens, evaluate 
communications capability along the route, develop local law 
enforcement contacts, identify food and fuel stops for the carrier, and 
identify potential driving problems along the route.
    Once a spent nuclear fuel shipment route request is received, the 
NRC reviews it closely. The NRC conducts a detailed review, considering 
route length and minimizing transit time, local law enforcement and 
emergency response contact information, adequacy of safe haven 
locations, and communications capability along the route. NUREG-0561, 
``Physical Protection of Shipments of Irradiated Reactor Fuel'' 
provides guidance to licensees seeking the NRC-approval of a spent 
nuclear fuel shipping route.

F. Why do the NRC and DOT routing requirements differ for spent nuclear 
fuel shipments?

    The objective of Sec.  73.37 is to minimize the potential for 
theft, diversion or radiological sabotage of spent nuclear fuel 
shipments; facilitate the location and recovery of spent fuel shipments 
that may have come under the control of unauthorized persons; and delay 
and impede attempts at theft, diversion or radiological sabotage of 
spent nuclear fuel shipments until response forces arrive. With this in 
mind, NRC expects licensees to route shipments according to the DOT 
requirements, and to consider the adequacy of the route to meet the 
objectives of Sec.  73.37. This includes considering the availability 
and adequacy of safe havens along the route and the communications 
capabilities among the transport vehicle, escort

[[Page 62700]]

vehicle, communications center, and local law enforcement agencies 
(LLEAs) for the entire route.
    The DOT HRCQ routing regulations for road shipments are based on 
minimizing radiological risk to the public (49 CFR 397). The HRCQ are 
to be transported over preferred routes which are described in more 
detail in question D above. Carriers are permitted to deviate from 
preferred routes for certain conditions including, but not limited to: 
security reasons (e.g., as imposed by NRC in 10 CFR Part 73) and 
emergencies. The DOT rail routing requirements for HRCQ require 
carriers to consider both safety and security of the public when 
selecting a route (49 CFR 172 and 209). The DOT requires rail carriers 
to select routes based on the criteria described above in question D. 
Rail carriers must assess the available routes using, at a minimum, 27 
factors that address both safety and security of the transport.
    As long as there is coordination among the licensee, the commercial 
carrier and the States of passage, NRC determined that spent nuclear 
fuel shipment primary and alternate routes for highway and rail can be 
developed that satisfy both the DOT and NRC requirements and 
guidelines. The NRC invites comments on the challenges of selecting 
routes for spent nuclear fuel that meets both the DOT and NRC 
requirements and guidance.

G. Why require procedures and training for the security of spent 
nuclear fuel in transit?

    The proposed Sec. Sec.  73.37(b)(3)(v) and (b)(4) would expressly 
require that licensees shipping spent nuclear fuel develop normal and 
contingency procedures. These procedures would cover notifications; 
communication protocols; loss of communication; and responses to 
actual, attempted, or suspicious activities. The proposed revisions 
would also require drivers, accompanying personnel, railroad personnel, 
and other movement control personnel to be adequately trained in normal 
and contingency procedures. These proposed requirements would ensure 
that all personnel associated with the shipment are prepared to prevent 
the theft, diversion, or radiological sabotage of spent nuclear fuel 
shipments. The proposed revisions would address, in part, PRM-73-10 
items (3) and (6).

H. Why require a telemetric position monitoring system or an 
alternative tracking system for continuous monitoring of spent nuclear 
fuel shipments?

    The current rule, at Sec.  73.37(b)(4), requires that the 
licensee's physical protection plan include a communications center, 
which will be staffed continuously by at least one individual who will 
monitor the progress of the spent fuel shipment. The proposed rule 
would reflect the availability of new technology and as such, the 
ability to have more active control over the shipment by the licensee. 
The proposed Sec.  73.37(b)(3)(i) would replace the term 
``communications center'' with the term ``movement control center.'' 
The proposed Sec.  73.37(b)(3)(ii) would also require that the movement 
control center be staffed continuously by at least one individual, who 
will actively monitor the progress of the spent nuclear fuel shipment 
and who has the authority to direct the physical protection activities. 
The proposed Sec.  73.37(b)(3)(iii) would specify that the movement 
control center must monitor the shipment continuously, i.e., from the 
time of delivery of the shipment to the carrier for transport until 
safe delivery of the shipment at its final destination, and must 
immediately notify the appropriate agencies in the event of a 
safeguards event under the provisions of Sec.  10 CFR 73.71.
    In addition, the proposed Sec. Sec.  73.37(c)(5) and 73.37(d)(4), 
for road and rail shipments respectively, would require movement 
control centers to use a telemetric position monitoring system or an 
alternative tracking system to monitor the location and status of 
shipments at all times, which would provide a real time indication of 
any potential threats. A telemetric position monitoring system is a 
data transfer system that captures information by instrumentation and/
or measuring devices about the location and status of a transport 
vehicle or package between the departure and destination locations. The 
gathering of this information permits remote monitoring and reporting 
of the location of a transport vehicle or package. Global positioning 
systems (GPS) and radiofrequency identification (RFID) are examples of 
telemetric position monitoring systems. Since the movement control 
center is required to respond to any actual, attempted, or suspicious 
activities, the proposed requirements would mitigate the likelihood of 
theft, diversion, or radiological sabotage of spent nuclear fuel 
shipments.

I. Why pre-plan and coordinate spent nuclear fuel shipments?

    The current regulations require limited shipment preplanning and 
coordination with NRC, States, and LLEAs. For example, the current 
Sec.  73.37(f) regulation requires an advance notification to the 
Governor (or designee) by mail to be postmarked at least 7 days before 
transport of a shipment within or through the State; and require a 
messenger-delivered notification to reach the Office of the Governor 
(or designee) at least 4 days before transport of a shipment within or 
through the State. Some States have indicated that the current 
notification requirements are insufficient to adequately plan for a 
spent nuclear fuel shipment. In addition, the current Sec.  73.37(b)(7) 
regulation requires licensees to obtain the advance NRC approval of the 
routes used for road and rail shipments of spent nuclear fuel, but does 
not require prior State coordination of the route. The proposed 
amendments would ensure that the affected States have early and 
substantial involvement in the management of spent nuclear fuel 
shipments by participating in the initial stages of the planning, 
coordination, and implementation of the shipment.
    Proposed Sec.  73.37(b)(1)(iv) would require licensees to preplan 
and coordinate spent nuclear fuel shipment information with the 
Governors of the States which the shipment will transit across in order 
to: (1) Ensure minimal shipment delays; (2) arrange for State law 
enforcement escorts; (3) coordinate movement control information, as 
needed; (4) coordinate safe haven locations; and (5) coordinate the 
shipping route. The proposed requirements would ensure that no unusual 
event associated with the shipment goes unnoticed or unreported. These 
proposed revisions mitigate the risk of theft, diversion, or 
radiological sabotage of a spent nuclear fuel shipment. These proposed 
revisions would address, in part, PRM-73-10 items 3 and 6.

J. Why require constant visual surveillance by armed escort?

    Existing Sec.  73.37(b)(9) requires constant visual surveillance by 
an escort when a shipment is stopped. It does not specify whether the 
escort should be armed. Proposed Sec.  73.37(b)(3)(vii)(C) would ensure 
that when a shipment is stopped, at least one armed escort maintains 
constant visual surveillance. The constant surveillance by an armed 
escort while a shipment is stopped provides assurance that attempts by 
an

[[Page 62701]]

adversary to either perform radiological sabotage in place, or to gain 
control of the transport to move it to another location are impeded or 
stopped. The requirements of proposed Sec.  73.37(b)(3)(vii)(C) would 
address parked or stopped road shipments, rail shipment stops in 
marshaling areas, and docked sea shipments. It would also require 
periodic reports of shipment status to the movement control center by 
the armed escort. The proposed Sec.  73.37(b)(3)(vii)(C) would provide 
adequate assurance that spent nuclear fuel shipments are protected from 
theft, diversion, or radiological sabotage when stopped.

K. Why require two-way redundant communication capabilities?

    The regulations in the current Sec. Sec.  73.37(c), 73.37(d), and 
73.37(e) provide for redundant communication capabilities; however, the 
requirements are specific, i.e., use of citizens band radio and 
radiotelephone. In view of the continued advancements in technology, 
these methods of communication could become obsolete in the near 
future. Instead of specifying an acceptable communications technology, 
the proposed revisions describe the performance characteristics of the 
communications capabilities.
    Proposed Sec. Sec.  73.37(c)(3), 73.37(d)(3) and 73.37(e)(4) would 
require the establishment of two-way communication capabilities for the 
transport vehicle and escorts to ensure contact between the movement 
control center and LLEAs at all times. The revisions would also require 
the establishment of alternate capabilities for the transport vehicle 
and escorts to contact the movement control center. The alternate 
communications cannot be subject to the same interference factors. The 
same interference factors are defined as any two systems that rely on 
the same hardware or software to transmit their signal (e.g., cell 
tower, proprietary network). These requirements would provide the 
capability for continued communication between movement control 
personnel, which would ensure the prompt reporting of any incident that 
could lead to theft, diversion, or radiological sabotage.

L. Why require background investigations?

1. What is the objective of the background investigations requirements 
for those with unescorted access and access authorization relative to 
spent nuclear fuel in transit?
    The proposed rule would add a new Sec.  73.38 that would require 
licensees to conduct background investigations of those individuals 
being considered for unescorted access or access authorization relative 
to spent nuclear fuel in transit. The main objective of the background 
investigations is to ensure that those individuals who have unescorted 
access to spent nuclear fuel in transit and those individuals who have 
access to safeguards information relative to the spent nuclear fuel 
shipment, including but not limited to armed escorts, drivers, and 
movement control personnel are trustworthy and reliable and do not 
constitute an unreasonable risk to the public health and safety or 
common defense and security. These background investigations are 
similar to those already in place for unescorted access to a commercial 
nuclear power reactor in Sec.  73.56(d), Background Investigation.
2. What is the basis for the fingerprinting requirements in the 
proposed rule?
    Section 149 of AEA requires that any person who is permitted 
unescorted access to radioactive materials subject to regulation by the 
Commission be fingerprinted for FBI identification and criminal history 
records check. However, Section 149 also requires that the Commission 
make a determination that such radioactive material is of such 
significance to the public health and safety or the common defense and 
security as to warrant fingerprinting and background checks before the 
Commission can exercise the authority provided by Section 149.
    Pursuant to Section 149, the Commission has determined that the 
transportation of irradiated fuel (spent nuclear fuel) is of such 
significance to the public health and safety or the common defense and 
security as to warrant fingerprinting and background checks for those 
individuals who have such access to the materials in transit. Persons 
who have ``unescorted access'' to this material for purposes of Section 
149, are persons accompanying the shipment of spent nuclear fuel during 
transit who have direct access and maintain control over the spent 
nuclear fuel. These persons may include, but are not limited to, the 
driver armed escorts and movement control center personnel.
    Therefore, under the authority granted by Section 149, this rule 
would impose a requirement for fingerprinting as a prerequisite to 
granting unescorted access to spent nuclear fuel in transit. The 
criminal history records check obtained as a result of that 
fingerprinting would be used by licensees as part of the overall 
background investigation to determine the trustworthiness and 
reliability of these individuals prior to permitting unescorted access.
3. What are the components of a background investigation?
    Proposed Sec.  73.38(d) lists the requirements for a background 
investigation, including: informed consent, fingerprinting for an FBI 
identification and criminal history records check; verification of true 
identity; employment history evaluation; verification of education and 
military history; credit history evaluation; local criminal history 
review; and character and reputation determination.
    Under proposed Sec.  73.38(e), it is the licensee's responsibility 
to make a trustworthiness and reliability determination of an 
individual who has unescorted access or access authorization relative 
to a spent nuclear fuel shipment. It is expected that licensees will 
use their best efforts to obtain the information required to conduct a 
background investigation to determine the individuals' trustworthiness 
and reliability.
    The full credit history evaluation requirement, in proposed Sec.  
73.38(d)(6), reflects the NRC's intent that all financial information 
available through credit reporting agencies is to be obtained and 
evaluated because it has the potential to provide highly pertinent 
information. The NRC recognizes that some countries may not have 
routinely accepted credit reporting mechanisms, and therefore, the NRC 
allows multiple sources of credit history that could potentially 
provide information about a foreign national's financial record and 
responsibility.
    Fingerprinting an individual for an FBI criminal history records 
check, as would be required by the proposed Sec.  73.38(d)(3), is an 
important element of the background investigation for determining the 
trustworthiness and reliability of an individual. It can provide 
comprehensive information regarding an individual's recorded criminal 
activities within the U.S. and its territories and the individual's 
known affiliations with violent gangs or terrorist organizations. In 
addition, the local criminal history review, which

[[Page 62702]]

would be required by the proposed Sec.  73.38(d)(7) provides the 
licensee with a record of local criminal activity that may adversely 
impact an individual's trustworthiness and reliability.
    It is noted that the proposed Sec.  73.38(d)(5)(iv) would require 
licensees to document any refusals by outside entities to provide 
information on an individual. If local law enforcement, a previous 
employer, an educational institution, or any other entity with which 
the individual claims to have been engaged fails to provide information 
or indicates an inability or unwillingness to provide information in a 
timely manner, the licensee would be required to document the refusal, 
unwillingness, or inability to respond in the record of investigation. 
The licensee would then need to obtain confirmation from at least one 
alternate source that has not been previously used. An alternate source 
could be another person associated with the entity or institution. For 
example, if the human resources department of a company will not verify 
the employment history of the individual, an alternate source could be 
the individual's supervisor during the claimed period. The proposed 
Sec.  73.38(d)(10) is patterned after the requirements of Sec.  
73.56(d)(4)(iv).
4. What information should the licensee use to determine that an 
individual is trustworthy and reliable?
    The licensee would use all of the information gathered during the 
background investigation, including the information received from the 
FBI, in making a determination that an individual is trustworthy and 
reliable. The licensee may not determine that an individual is 
trustworthy and reliable and grant them unescorted access to spent 
nuclear fuel in transit until all of the information for the background 
investigation has been obtained and evaluated. The licensee may deny an 
individual unescorted access based on any information obtained at any 
time during the background investigation. The proposed Sec.  73.38(e) 
includes a provision for licensees to document their determinations of 
trustworthiness and reliability.
5. How frequently would a reinvestigation be required?
    The proposed rule would include a provision, Sec.  73.38(h), that 
would require a reinvestigation every 10 years to help maintain the 
integrity of the program. This reinvestigation requirement is necessary 
because an individual's financial situation or criminal history may 
change over time in a manner that can adversely affect his or her 
trustworthiness and reliability. The reinvestigation would include 
fingerprinting, FBI identification and criminal history records check, 
local criminal history review and credit history check. The 
reinvestigation would not include employment verification, education 
verification, military history verification, or the character and 
reputation determination for the reinvestigation.
6. Are licensees required to protect information obtained during a 
background investigation?
    Yes. The proposed Sec. Sec.  73.38(f)(1)-(2) would require 
licensees to protect the information obtained during a background 
investigation. Licensees would only be permitted to disclose the 
information to the subject individual, the individual's representative, 
those who have a need-to-know to perform their assigned duties to grant 
or deny unescorted access, or an authorized representative of NRC. This 
proposed revision is consistent with the requirements of Sec.  
73.57(f).
7. Could a licensee transfer personal information obtained during an 
investigation to another licensee?
    Yes. The proposed Sec.  73.38(f)(3) includes a provision that a 
licensee would be able to transfer background information on an 
individual to another licensee if the individual makes a written 
request to the licensee to transfer the information contained in his or 
her file.
8. Which records are required to be maintained?
    The proposed Sec.  73.38(f)(5) would require licensees to retain 
all fingerprint and criminal history records received from the FBI, or 
a copy if the individual's file has been transferred, for 5 years after 
the individual no longer requires unescorted access to spent nuclear 
fuel in transit.

M. Why enhance shipment notifications to NRC?

    The current regulations in Sec.  73.72(a)(4) require an NRC 
notification, by phone, at least 2 days before the shipment commences. 
The proposed rule would revise Sec.  73.72(a)(4) to require 2 
additional notifications of NRC, one to be made 2 hours before the 
shipment commences, and the other to be made when the shipment reaches 
its final destination. These additional notifications allow NRC to 
monitor spent nuclear fuel shipments, and to maximize its readiness in 
case of a safeguards event. The notification of shipment completion 
allows NRC to resume normal operations.
    To further enhance notification of NRC, the proposed revision would 
remove the Sec.  73.72(b) exemption for shipments of spent nuclear fuel 
that are transported on public roads. Currently, the requirements of 
Sec.  73.72(b) exempt licensees who make a road shipment or transfer 
with one-way transit times of one hour or less between installations of 
the licensee from providing advance notification of the shipment to 
NRC. The proposed revision would require that NRC be informed of any 
spent nuclear fuel shipment on a public road so that NRC is able to 
monitor spent nuclear fuel shipments and to maximize its readiness in 
case of a safeguards event. These proposed revisions mitigate the risk 
of theft, diversion, or radiological sabotage of a shipment.

N. Which type of spent nuclear fuel does DOE ship?

    The DOE spent nuclear fuel shipments generally fall into two 
categories: Classified and non-classified shipments of spent nuclear 
fuel. Classified shipments are those shipments which involve national 
security. Classified shipments of spent nuclear fuel typically consist 
of spent fuel from the U.S. Navy. The DOE has broad authority under the 
Atomic Energy Act of 1954, as amended (AEA), to regulate all aspects of 
activities involving radioactive materials that are undertaken by DOE 
or on its behalf, including the transportation of radioactive 
materials. The DOE conducts classified shipments of spent nuclear fuel 
using their Office of Secure Transport (OST). The OST shipments are 
escorted full-time by armed, specially trained (trained in 
communications, firearms, tactics, observation, and use of deadly 
force) active duty Navy personnel who maintain 24-hour surveillance. 
The OST Transportation Emergency Communications Center monitors, 
tracks, and provides communication with every shipment. The NRC does 
not regulate classified shipments of spent nuclear fuel.

O. What is a non-classified shipment of spent nuclear fuel and what are 
the DOE requirements for this type of shipment?

    Non-classified shipments of spent nuclear fuel typically consist of 
spent fuel from commercial nuclear power reactors and research and test 
reactors. The DOE policy for non-classified spent nuclear fuel 
shipments are found under the DOE Orders 460.1C, Packaging and 
Transportation Safety and 460.2A,

[[Page 62703]]

Departmental Materials Transportation and Packaging Management. As a 
matter of policy, the DOE non-classified spent nuclear fuel shipments 
are conducted under the requirements and standards applicable to 
comparable commercial shipments, i.e., the NRC requirements, except if 
there is a determination that national security or another critical 
interest requires different action.
    The DOE requirements are set forth in the DOE Manual 460.2-1A, 
Radioactive Material Transportation Practices Manual. In this manual, 
it states that ``Security will be provided in compliance with the NRC 
requirements in 10 CFR Part 73 for shipments subject to a NRC license. 
Other DOE shipments will be undertaken in a manner that meets or 
exceeds the NRC security requirements.'' The DOE organizations and 
contractors ensure that in-transit requirements are addressed, 
including developing security plans, implementing information and 
physical security access controls, training, escorts, inspections, 
tracking, communications, and employee background checks.

P. How are the NRC and DOE requirements similar and how are they 
different?

    As stated in O above, given the DOE policy to ``meet or exceed'' 
the NRC security requirements, the NRC and DOE requirements are 
similar. Similar to the NRC requirements, the DOE program organizations 
are expected to liaison with Federal, State, local and Tribal law 
enforcement/security officials regarding such shipments. This liaison 
should include a determination as to whether the State, Tribal or local 
jurisdictions are planning to provide escorts for the shipment. The DOE 
also expects drivers and escorts to maintain constant surveillance of 
the shipment.
    One major difference between the NRC and DOE requirements deals 
with the tracking and monitoring of spent nuclear fuel shipments. The 
DOE requires the use of their Transportation Tracking and 
Communications System (TRANSCOM). In the proposed rule, NRC requires 
continuous and active monitoring of spent nuclear fuel shipments, but, 
a particular tracking method is not specified. The NRC determined that 
providing the performance objectives for continuous and active 
monitoring, rather than specifying a particular system gives a licensee 
flexibility to choose a system that works with their shipping 
situation.
    Another difference between the NRC and DOE requirements is the 
protection of information. For NRC, information associated with a spent 
fuel shipment (i.e., shipment schedules and security plans) are 
protected as safeguards information (SGI) as specified by the 
requirements of Sec. Sec.  73.21 and 73.22. The DOE does not have a 
system of information protection comparable to SGI. Shipment 
information for the DOE non-classified spent nuclear fuel shipment is 
official use only, unless there is a reason to designate it as 
classified.

Q. Who would this action affect?

    The proposed amendments affect all the NRC licensees that are 
authorized to possess and transport spent nuclear fuel. This includes, 
but is not limited to, licensees of commercial power reactors, research 
and test reactors, and independent spent fuel storage installations, 
who transport, or deliver to a carrier for transport, in a single 
shipment, a quantity of irradiated reactor fuel in excess of 100 grams 
(0.22 lbs) in net weight of irradiated fuel, exclusive of cladding or 
other structural or packaging material, which has a total external 
radiation dose rate in excess of 1 Sv (100 rems) per hour at a distance 
of .91 meters (3 feet) from any accessible surface without intervening 
shielding.

R. Does NRC plan to issue guidance on these proposed requirements?

    In conjunction with this the proposed rulemaking, NRC is revising 
NUREG-0561, ``Physical Protection of Shipments of Irradiated Reactor 
Fuel in Transit,'' which was published in June 1980, to address the new 
requirements in the proposed rule. NUREG-0561 provides general guidance 
to licensees concerning the establishment of an acceptable security 
program for spent nuclear fuel shipments.

S. What should I consider as I prepare my comments to NRC?

    Tips for preparing your comments: When submitting your comments, 
remember to:
    i. Identify the rulemaking (Docket ID: NRC-2009-0163).
    ii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iii. Describe any assumptions and provide any technical information 
and/or data that you used.
    iv. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    v. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    vi. Explain your views as clearly as possible.
    vii. Make sure to submit your comments by the comment period 
deadline.
    viii. See Section VII of the preamble for the request for comments 
on the use of plain language and Section XII for the request for 
comments on the draft regulatory analysis.

IV. Discussion of the Proposed Amendments by Section

A. Proposed Sec.  73.37(a)(1)

    The proposed rule would revise Sec.  73.37(a)(1) to include the 
International System of Measurement (SI) accompanied by the equivalent 
English units in parentheses for the weight and dose rate measurements. 
This is under the NRC's metrication policy (57 FR 46202, October 7, 
1992), and the Metric Conversion Act of 1975, 15 U.S.C. 205a et seq. 
The proposed rule would also add a footnote to clarify that the term 
``irradiated reactor fuel,'' as used in 10 CFR 73.37 fn.1, means 
``spent nuclear fuel.''

B. Proposed Sec.  73.37(a)(1)(i)

    The language in the current regulation solely addresses potential 
radiological sabotage of spent nuclear fuel shipments. The proposed 
rule would revise Sec.  73.37(a)(1)(i) to clarify that any attempted 
theft or diversion of spent nuclear fuel shipments is also covered by 
this regulation.
    The proposed rule would also revise Sec. Sec.  73.37(a)(1)(i) and 
(a)(2)(iii) to remove the distinction between heavily populated areas 
and other areas through or across which a spent nuclear fuel shipment 
may pass. The differentiation of security requirements based upon 
population densities creates potential vulnerabilities in the physical 
security of the shipment. The proposed requirement of armed escorts 
throughout the shipment route minimizes the risk of theft, diversion, 
or radiological sabotage. The proposed revisions would also address 
items 4 and 5 of the PRM-73-10.

C. Proposed Sec.  73.37(a)(2)

    The proposed rule would revise Sec.  73.37(a)(2) to insert 
``system'' after the word phrase ``physical protection'' to read as 
``physical protection system.'' This change provides consistency in the 
terminology used throughout 10 CFR Part 73.
    The proposed revision would renumber the paragraphs in Sec.  
73.37(a)(2). The current Sec.  73.37(a)(2)(ii) would become the 
proposed Sec.  73.37(a)(2)(iii), and the current Sec.  73.37(a)(2)(iii) 
would become the proposed Sec.  73.37(a)(2)(ii). The

[[Page 62704]]

proposed rule would revise the current Sec.  73.37(a)(2)(iii) to 
clarify that the licensee should delay, as well as impede, any 
attempted theft, diversion, or radiological sabotage of spent nuclear 
fuel shipments.

D. Proposed Sec.  73.37(b)

    This overall section is revised to provide a logical, step-by-step 
approach to the development of a physical protection system for spent 
nuclear fuel shipments that is more user-friendly.

E. Proposed Sec.  73.37(b)(1)

    The proposed rule would add a new section entitled, ``Preplan and 
Coordinate Spent Nuclear Fuel Shipments,'' which is explained in 
further detail below. The proposed rule would move and incorporate the 
current Sec.  73.37(b)(1) into a new Sec.  73.37(b)(2).
    The proposed rule would add a new Sec.  73.37(b)(1)(i) which 
requires that licensees instruct armed escorts on the use of deadly 
force. The existing provisions of Sec.  73.37 provide performance 
objectives to be achieved by the physical protection system for spent 
nuclear fuel shipments. These performance objectives are not specific 
about the degree of force an armed escort may use in protecting 
shipments.
    Specifically, the licensee is to ensure that each non-LLEA armed 
escort delay or impede attempted acts of theft, diversion, or 
radiological sabotage by using force sufficient to counter the force 
directed at that person, including the use of deadly force when there 
is a reasonable belief that the use of deadly force is necessary in 
self-defense or in the defense of others, or any other circumstances as 
authorized by applicable Federal or State law. The requirements for use 
of deadly force are established under applicable Federal and State laws 
(i.e., the States through which the shipment is passing). It should be 
noted that the proposed revision is not authorizing the use of deadly 
force, but instead is ensuring that the armed guards are knowledgeable 
of the Federal and State statutes that apply regarding the use of 
deadly force. The statutes regarding the use of deadly force may vary 
depending on the jurisdiction in which the shipment is located. Armed 
escorts are expected to carry out their assigned duties, including 
implementation of contingency procedures in case of attack, in a manner 
consistent with the legal requirements applicable to other private 
armed guards in a particular jurisdiction. The LLEA personnel escorts 
are exempt from this requirement since they are subject to, and should