Advance Notification to Native American Tribes of Transportation of Certain Types of Nuclear Waste, 75641-75648 [2010-30478]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 75, Number 233 (Monday, December 6, 2010)]
[Proposed Rules]
[Pages 75641-75648]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30478]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 75, No. 233 / Monday, December 6, 2010 / 
Proposed Rules

[[Page 75641]]



NUCLEAR REGULATORY COMMISSION

10 CFR Parts 71 and 73

[NRC-1999-0005]
RIN 3150-AG41


Advance Notification to Native American Tribes of Transportation 
of Certain Types of Nuclear Waste

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 that govern packaging and transportation of 
radioactive material and physical protection of plants and materials. 
Specifically, the proposed amendments would require licensees to 
provide advance notification to Federally recognized Tribal governments 
regarding shipments of irradiated reactor fuel and certain nuclear 
wastes for any shipment that passes within or across their 
reservations. The Tribal government would be required to protect the 
shipment information as Safeguards Information (SGI).

DATES: Submit comments on the rule by February 22, 2011. Submit 
comments specific to the information collections aspects of this 
proposed rule by January 5, 2011. Comments received after the above 
dates will be considered if it is 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-1999-0005 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 e-Rulemaking Portal: Go to https://www.regulations.gov and 
search for documents filed under Docket ID NRC-1999-0005. Comments may 
be submitted electronically through this Web site. Address questions 
about NRC dockets to Carol Gallagher, telephone 301-492-3668; e-mail 
Carol.Gallagher@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 301-415-1677.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone 
301-415-1966)
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
301-415-1101.
    You may submit comments on the information collections by the 
methods indicated in the Paperwork Reduction Act Statement.

FOR FURTHER INFORMATION CONTACT: Merri Horn, Office of Federal and 
State Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, telephone 301-415-
8126, e-mail, Merri.Horn@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Submitting Comments and Accessing Information
II. Background
III. Discussion
    A. What action is the NRC taking?
    B. What is the purpose of the proposed rule?
    C. Whom would this action affect?
    D. Would all tribes receive advance notifications?
    E. How and when would tribes be given the option to receive 
advance notifications?
    F. Does a tribe's decision to receive advance notification ffect 
whether shipments pass through that tribe's reservation?
    G. How would licensees determine who the tribal contacts are?
    H. How would advance notifications be made to tribal officials?
    I. Would tribes be required to protect the advance 
notifications?
    J. Would tribal officials need to be fingerprinted and undergo a 
background investigation for access to SGI?
    K. When do these actions become effective?
    L. What should I consider as I prepare my comments to the NRC?
IV. Discussion of Proposed Rule by Section
V. Criminal penalties
VI. Agreement state compatibility
VII. Plain Language
VIII. Voluntary Consensus Standards
IX. Environmental Impact: Categorical Exclusion
X. Paperwork Reduction Act Statement
XI. Regulatory Analysis
XII. Regulatory Flexibility Certification
XIII. 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-
1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the 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 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@nrc.gov.

[[Page 75642]]

    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-1999-0005.

II. Background

    Current NRC regulations in Title 10 of the Code of Federal 
Regulations (10 CFR) require licensees to inform State governors, or 
the governor's designee, of certain shipments of irradiated reactor 
fuel and certain nuclear waste passing through or across the boundary 
of their States. Section 73.37 requires licensees to provide advance 
notifications for shipments of irradiated reactor fuel in excess of 100 
grams 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 100 rems per hour at a distance of 3 feet from 
any accessible surface without intervening shielding. Section 71.97 
requires licensees to provide advance notice for shipments of 
irradiated reactor fuel in quantities less than that subject to Sec.  
73.37 and certain licensed material that is required to be transported 
in Type B packaging and is being transported to a disposal facility or 
a collection point for transport to a disposal facility. The advance 
notification provisions apply if the quantity of licensed material in a 
single package exceeds the least of the following: (1) 3000 times the 
A1 value of the radionuclides as specified in Appendix A, 
Table A-1 of 10 CFR Part 71, for special form radioactive material; (2) 
3000 times the A2 value of the radionuclides as specified in 
Appendix A, Table A-1 of 10 CFR Part 71, for normal form radioactive 
material; or (3) 1000 Terabequerel (TBq) (27,000 curies). Schedule and 
itinerary information provided for shipments of more than 100 grams of 
irradiated reactor fuel is considered to be SGI under NRC regulations 
and must be protected under the requirements in Sec. Sec.  73.21 and 
73.22.
    The NRC developed these advance notification regulations in 1982 to 
comply with the NRC Authorization Act for Fiscal Year 1980, which was 
enacted to deal with concerns expressed by States about their abilities 
to fulfill their responsibilities to protect public health and safety 
while waste shipments pass through their jurisdictions. Neither the 
Atomic Energy Act of 1954, as amended (AEA), nor the notification 
regulations required licensees to notify Native American Tribes of this 
type of shipment passing through their Tribal reservations. Tribal 
officials requested similar notification in the 1990s.
    On December 21, 1999, the NRC published an Advance Notice of 
Proposed Rulemaking (ANPR) to solicit stakeholder input on a possible 
rulemaking that would consider requiring advance notification to Native 
American Tribes of transportation of certain types of nuclear waste (64 
FR 71331; December 21, 1999). Information was sought on minimizing the 
burden to licensees, identifying the location of Tribal reservations in 
relationship to shipment routes, and the sharing and protecting of SGI. 
A total of 44 comment letters were received. Thirty-six of the letters 
received were from Tribes and Tribal organizations; four letters were 
received from private citizens; and letters were received from a 
licensee, an industry association, a State agency, and a Federal 
agency. Virtually all the commenters favored providing advance 
notification to Tribal governments with some disagreement on the 
details of the implementation. Most commenters were in favor of 
providing Tribal governments the same advance notification that State 
governments receive regarding high-level radioactive waste shipments. 
Commenters encouraged the NRC to provide advance notification through 
more up-to-date means of communication, e.g., via the Internet. Tribal 
representatives and others encouraged the NRC to communicate directly 
with Tribal governments during the rulemaking process as well as when 
implementing procedures for advance notification. The comments received 
in response to the ANPR were taken into account during the development 
of this proposed rule.
    On November 6, 2000, President Clinton issued Executive Order (EO) 
13175, ``Consultation and Coordination with Indian Tribal 
Governments.'' EO 13175 emphasized the importance of respecting the 
sovereignty of Tribal governments and working with them on a 
government-to-government basis.\1\ On November 5, 2009, President Obama 
expressed his commitment to EO 13175 at the White House Tribal Nations 
Conference and Interactive Discussion with Tribal Leaders. During the 
conference, the President signed an Executive Memorandum on Tribal 
consultation for the heads of Executive Departments and Agencies, 
directing Cabinet agencies to take steps to develop regular and 
meaningful consultation with Tribal governments. The Memorandum 
underscored a commitment to regular and meaningful collaboration and 
consultation with Tribal officials, and sought complete and consistent 
implementation of EO 13175. The NRC has adopted agency practices that 
are consistent with the principles of consultation and cooperation with 
Indian Tribal governments articulated in President Clinton's April 29, 
1994, guidance and EO 13175. The NRC practice is to conduct its 
activities in a manner that respects the rights of sovereign Tribal 
governments, and involves consultation and cooperation with Federally 
recognized Tribes on a government-to-government basis.
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    \1\ These ideas were previously emphasized in a Presidential 
Memorandum dated April 29, 1994, entitled ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951; 
May 4, 1994) and Executive Orders 12875 and 12866.
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III. Discussion

A. What action is the NRC taking?

    The NRC is proposing to amend its regulations to require licensees 
to provide to Tribal officials, or their designees, advance notice of 
shipments of irradiated reactor fuel under Sec.  73.37 and other 
nuclear wastes listed in Sec.  71.97 before crossing the border of 
Tribal reservations. For the purposes of these regulatory provisions, 
Tribal official is defined as the highest ranking individual that 
represents Tribal leadership, such as the Chief, President, or Tribal 
Council leadership of an Indian Tribe. This action would only affect 
commercial shipments being made by NRC and Agreement State licensees. 
This action would not include shipments made by the Department of 
Energy or the Department of Defense.

B. What is the purpose of the proposed rule?

    The purpose of the proposed rule is to recognize Tribal sovereignty 
by informing Tribes of shipments of irradiated reactor fuel and other 
nuclear wastes passing across their reservations and to recognize 
Tribal governments' interest in being informed of activities occurring 
on Tribal reservations.

C. Whom would this action affect?

    The proposed rule would apply to any NRC licensee that ships 
irradiated reactor fuel. The proposed rule would also affect any 
licensee that ships other nuclear wastes listed in Sec.  71.97, namely, 
certain licensed material that is: (a) Required to be transported in 
Type B packaging; (b) being transported to or across a State boundary 
enroute to a disposal facility or to a collection point for transport 
to a disposal facility; and (c) the quantity of licensed material in a 
single package exceeds the least of the following: (1) 3,000 times the 
A1 value of the radionuclides as specified in Appendix A, 
Table A-1 of 10 CFR Part

[[Page 75643]]

71, for special form radioactive material; (2) 3,000 times the 
A2 value of the radionuclides as specified in Appendix A, 
Table A-1 of 10 CFR Part 71, for normal form radioactive material; or 
(3) 1,000 TBq (27,000 curies).
    Finally, the proposed rule would affect any Tribe that chooses to 
receive the advance notifications of shipments passing within or across 
its Tribal reservation.

D. Would all Tribes receive advance notifications?

    No. Given the information protection requirements involved, the NRC 
believes Tribes should have the option to decide whether to receive 
advance notifications of shipments that pass across their Tribal 
reservations. If a Tribe opts to receive the advance notifications, the 
Tribe would be obligated to protect the schedule and itineraries of the 
shipments under the SGI requirements in Sec. Sec.  73.21 and 73.22. If 
a Tribe opts not to receive the advance notification, the Tribe would 
have no information protection obligations relating to the shipments. 
For the purposes of the advance notifications, an Indian Tribe is 
defined as 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. There are currently 565 federally recognized 
Tribes.

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

    After the final rule has been approved by the Commission, the NRC 
staff would contact each Federally recognized Tribe to provide them 
information on the rule. As part of the information, the Tribe would be 
asked if they would like to receive advance notifications of irradiated 
reactor fuel and other nuclear wastes listed in Sec.  71.97 before 
crossing the border of the Tribal reservation. The Tribe can then 
notify NRC whether they would like to receive the advance notifications 
and certify that the SGI information will be appropriately protected. 
Tribes would be able to change their decision to receive or not receive 
the advance notifications by informing the NRC. In addition, the NRC 
would periodically contact all Federally recognized Tribes to give 
Tribes an opportunity to change their status in regards to receiving 
notifications.

F. Does a Tribe's decision to receive advance notification affect 
whether shipments pass through that Tribe's reservation?

    No. This rulemaking would only give the Tribe a voluntary 
opportunity to receive advance notification of shipments that cross 
their reservation. A Tribe's decision to receive or not receive advance 
notifications does not affect shipment routes.

G. How would licensees determine who the Tribal contacts are?

    The NRC would maintain a list of Tribal contacts as is done for 
State governmental contacts. The NRC would work with the Tribes to 
complete and maintain the list. The Tribal official would designate who 
is intended to represent the Tribe. The NRC staff currently intends to 
annually publish a list of Tribal contacts in the Federal Register and 
post it on the Web site maintained by the NRC's Office of Federal and 
State Materials and Environmental Management Programs.

H. How would advance notifications be made to Tribal officials?

    The methods permitted for communication of advance notifications 
are detailed in Sec.  71.97(c), ``Procedures for submitting advance 
notification.'' Notifications would be made in writing. The 
notifications could be sent by mail or courier. SGI may not be 
transmitted over the phone, by e-mail, or by facsimile unless it is 
transmitted and received by NRC-approved secure electronic devices.

I. 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 as SGI as specified 
by Sec. Sec.  73.21 and 73.22. Only individuals that have a ``need-to-
know'' the information and have undergone both a Federal Bureau of 
Investigation (FBI) criminal history records check and a background 
check for determination of trustworthiness and reliability or have been 
relieved from these checks under Sec. Sec.  73.57 or 73.59 may be 
provided access to the SGI. Basic protection requirements include 
storing unattended SGI in a locked security storage container. Access 
to the lock information, such as a combination, must be strictly 
controlled to prevent disclosure to an individual not authorized access 
to SGI. Documents containing SGI must be destroyed by burning, 
shredding, or any other method that precludes reconstruction by means 
available to the public at large. The specific requirements for the 
protection of SGI are located in Sec.  73.22. Failure to comply with 
these regulatory requirements could result in civil or criminal 
penalties.
    The NRC is specifically inviting comment as to the best method for 
informing the Tribes of the obligations of possessing SGI. The 
obligations would include how to handle and protect SGI and who could 
be provided access to the information, as well as potential civil or 
criminal penalties that could result in failure to comply with the 
regulatory requirements. Possible mechanisms include an information 
packet, a Webinar, or a training course.

J. Would Tribal officials need to be fingerprinted and undergo a 
background investigation for access to SGI?

    Section 149 of the AEA requires fingerprinting and submission of 
fingerprints to the Attorney General for identification and criminal 
history records check for any individual permitted access to SGI, 
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, NRC enacted Sec.  73.58 to relieve specific 
categories of individuals from fingerprinting and criminal history 
record checks prior to receiving SGI. The categories of individuals 
covered by this regulation include the governor of a State or his or 
her designated State employee representative; Federal, State, or local 
law enforcement personnel; and representatives of foreign government 
organizations that are involved in planning for, or responding to, 
nuclear or radiological emergencies or security incidents who the 
Commission approves for access to SGI.
    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

[[Page 75644]]

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 provide SGI 
relating to advance notification of shipments to Tribes who determine 
this information would enable them be more effective in their day-to-
day efforts to ensure the protection of nuclear materials and respond 
to emergencies within their territories. Therefore, the Commission has 
determined that the proposed rule helps the Commission fulfill its 
obligations to promote the common defense and security and to protect 
the health and safety of the public.
    The Tribal official, Tribal official designee, and Tribal law 
enforcement personnel are considered trustworthy and reliable to 
receive SGI by virtue of their occupational status and have either 
already undergone a background or criminal history check as a condition 
of their employment, or are subject to direct oversight by Government 
authorities in their day-to-day job functions. Under the proposed rule, 
if the Tribe decides to participate in the advance notification of 
shipment program, the Tribal official, Tribal official designee, or 
Tribal law enforcement personnel that needs to know this SGI 
information to perform their job function, may have access to SGI 
information regarding advance notification of shipments affecting their 
territories without undergoing fingerprinting or a criminal history 
check.
    At this time, the NRC is not proposing to provide relief to Tribal 
officials, Tribal official's designees, or Tribal law enforcement 
officials for access to all types of SGI because the scope of this rule 
is limited to advance notifications. Therefore, the relief being 
proposed in this rulemaking is only for receipt of the SGI contained in 
advance shipment notifications. The NRC invites comments on whether the 
proposed relief should be applied generally to access other types of 
SGI.
    The proposed rule would add Tribal official, his or her designee, 
and Tribal law enforcement personnel for the purpose of advance 
notifications 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 SGI are required to abide by the 
requirements in Sec. Sec.  73.21 and 73.22 for proper management and 
protection of SGI.

K. When do these actions become effective?

    The NRC is recommending that the final rule be effective one year 
after publication in the Federal Register. This would provide time for 
NRC to work with the Tribes and develop the list of Tribal contacts, 
provide training on protection of SGI to the Tribes, and provide time 
for licensees to develop procedures and conduct training on the new 
requirements.

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

    When submitting your comments, remember to:
    i. Identify the rulemaking (RIN 3150-AG41; [NRC-1999-0005]).
    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 identified comment 
period deadline.
    viii. The NRC is particularly interested in your comments 
concerning (a) the best method for informing the Tribes of the 
obligations of possessing SGI (Section III I.); (b) whether the 
proposed relief should be applied generally to access other types of 
SGI (Section III J.); (c) the compatibility designations for the 
proposed rule (Section V); (d) the use of plain language (Section VI); 
(e) the environmental assessment (Section VIII); (f) the information 
collection requirements (Section IX); and (g) the draft regulatory 
analysis (Section X).

IV. Discussion of Proposed Rule by Section

Section 71.4 Definitions

    Definition for Indian Tribe is proposed based on the term as 
defined in Executive Order 13175. The definition of Tribal official 
describes the highest ranking individual that represents Tribal 
leadership, such as the Chief, President, or Tribal Council leadership.

Section 71.97 Advance Notification of Shipment of Irradiated Reactor 
Fuel and Nuclear Waste

    Current paragraph (a) would be renumbered as paragraph (a)(1) and 
revised to reflect shipments within or across the State boundary 
instead of through or across. This change is made for consistency of 
rule language. Paragraph (a)(2) would be added to require licensees to 
provide advance notification to Tribal officials or their designee of 
the shipment of licensed material within or across the boundary of the 
Tribe's reservation.
    Paragraph (c) would be revised to require notifications to be made 
to the office of each appropriate Tribal official or his/her designee. 
Paragraph (c) would also be revised to indicate how the list of Tribal 
officials would be made available.
    Paragraph (d) would be revised to include arrival at Tribal 
reservation boundaries.
    Paragraph (e) would be revised to require that revision notices be 
provided to Tribal officials or their designee if schedule information 
previously provided will not be met.
    Paragraph (f) would be revised to require that cancellation notices 
be provided to each Tribal official or his/her designee that had 
previously been notified of an advance shipment.

Section 73.2 Definitions

    Definition for Indian Tribe is proposed based on the terms as 
defined in Executive Order 13175. The definition for Tribal official is 
added to describe the highest ranking individual that represents Tribal 
leadership, such as the Chief, President, or Tribal Council leadership.

Section 73.21 Protection of Safeguards Information: Performance 
Requirements

    Paragraph (a)(2) would be revised to include Tribal law enforcement 
agencies in the list of agencies whose information protection 
procedures are presumed to meet the general performance requirements 
for the protection of SGI.

Section 73.37 Requirements for Physical Protection of Irradiated 
Reactor Fuel in Transit

    Paragraph (f) would be revised to require that advance notification 
of irradiated fuel shipments be provided to participating Tribes if a 
shipment crosses Tribal reservation boundaries.

[[Page 75645]]

Section 73.59 Relief From Fingerprinting, Identification and Criminal 
History Records Checks and Other Elements of Background Checks for 
Designated Categories of Individuals

    New paragraph (l) would be added to include Tribal official, Tribal 
official's designee, and Tribal law enforcement personnel that receive 
the advance notifications to the categories of individuals that are 
relieved from the requirement for fingerprinting, identification and 
criminal records checks, and other elements of background checks.

V. Criminal Penalties

    For the purpose of Section 223 of the AEA, the Commission is 
proposing to amend 10 CFR parts 71 and 73 under one or more of Sections 
161b, 161i, or 161o of the AEA. Willful violations of the rule would be 
subject to criminal enforcement.

VI. Agreement State Compatibility

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' approved by the Commission on June 30, 1997, 
and published in the Federal Register (62 FR 46517; Sept. 3, 1997), 
this proposed rule would be a matter of compatibility between the NRC 
and the Agreement States, thereby providing consistency among the 
Agreement States and the NRC requirements. The NRC staff analyzed the 
proposed rule in accordance with the procedure established within Part 
III, ``Categorization Process for NRC Program Elements,'' of Handbook 
5.9 to Management Directive 5.9, ``Adequacy and Compatibility of 
Agreement State Programs'' (a copy of which may be viewed at https://www.nrc.gov/reading-rm/doc-collections/management-directives/).
    NRC program elements (including regulations) are placed into four 
compatibility categories (see the Draft Compatibility Table in this 
section). In addition, the NRC program elements can also be identified 
as having particular health and safety significance or as being 
reserved solely to the NRC. Compatibility Category A are those program 
elements that are basic radiation protection standards and scientific 
terms and definitions that are necessary to understand radiation 
protection concepts. An Agreement State should adopt Category A program 
elements in an essentially identical manner 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. An Agreement State should adopt Category B program 
elements in an essentially identical manner. 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 nationwide 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.
    Health and Safety (H&S) are program elements that are not required 
for compatibility but are identified as having a particular health and 
safety role (i.e., adequacy) in the regulation of agreement material 
within the State. Although not required for compatibility, the State 
should adopt program elements in the H&S category based on those of the 
NRC that embody the essential objectives of the NRC program elements 
because of particular health and safety considerations.
    Compatibility Category NRC are those program elements that address 
areas of regulation that cannot be relinquished to Agreement States 
under the AEA, or provisions of 10 CFR. These program elements are not 
adopted by Agreement States. The following table lists the parts and 
sections that would be revised and their corresponding compatibility 
categorization under the ``Policy Statement on Adequacy and 
Compatibility of Agreement State Programs.''
    The NRC invites comment on the compatibility category designations 
in the proposed rule and suggests that commenters refer to Handbook 5.9 
of Management Directive 5.9 for more information (a copy of which may 
be viewed at https://www.nrc.gov/reading-rm/doc-collections/management-directives/). The NRC notes that, like the rule text, the compatibility 
category designations can change between the proposed rule and final 
rule, based on comments received and Commission decisions regarding the 
final rule. The NRC encourages anyone interested in commenting on the 
compatibility category designations to do so during the comment period.

                                   Draft Compatibility Table for Proposed Rule
----------------------------------------------------------------------------------------------------------------
                                                                                        Compatibility
            Section                    Change               Subject        -------------------------------------
                                                                                 Existing             New
----------------------------------------------------------------------------------------------------------------
                                                     Part 71
----------------------------------------------------------------------------------------------------------------
71.4...........................  New..............  Definition Indian       --...............  B
                                                     Tribe.
71.4...........................  New..............  Definition Tribal       --...............  B
                                                     official.
71.97..........................  Amend............  Advance notification    B................  B
                                                     of shipment of
                                                     irradiated reactor
                                                     fuel and nuclear
                                                     waste.
----------------------------------------------------------------------------------------------------------------
                                                     Part 73
----------------------------------------------------------------------------------------------------------------
73.2...........................  New..............  Definition Indian       --...............  NRC
                                                     Tribe.
73.2...........................  New..............  Definition Tribal       --...............  NRC
                                                     official.
73.21..........................  Amend............  Protection of           NRC..............  NRC
                                                     Safeguards
                                                     Information:
                                                     Performance
                                                     Requirements.
73.37..........................  Amend............  Requirements for        NRC..............  NRC
                                                     physical protection
                                                     of irradiated reactor
                                                     fuel in transit.
73.59..........................  Amend............  Relief from             NRC..............  NRC
                                                     fingerprinting,
                                                     identification and
                                                     criminal history
                                                     records checks and
                                                     other elements of
                                                     background checks for
                                                     designated categories
                                                     of individuals.
----------------------------------------------------------------------------------------------------------------


[[Page 75646]]

VII. Plain Language

    The Presidential Memorandum ``Plain Language in Government 
Writing'' published June 10, 1998 (63 FR 31883), directed that the 
Government's documents be in clear and accessible language. The NRC 
requests comments on this proposed rule specifically with respect to 
the clarity and effectiveness of the language used. Comments should be 
sent as indicated under the ADDRESSES heading of this document.

VIII. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995 (Pub. 
L. 104-113) requires that Federal agencies use technical standards that 
are developed or adopted by voluntary consensus standards bodies unless 
the use of such a standard is inconsistent with applicable law or 
otherwise impractical. In this proposed rule, the NRC would require 
that advance notification be provided to Tribal governments for 
shipments of irradiated reactor fuel and other nuclear wastes listed in 
Sec.  71.97 that pass within or across Tribal reservations. The NRC is 
not aware of any voluntary consensus standards that address the subject 
matter of this proposed rule. The NRC will consider using a voluntary 
consensus standard if an appropriate standard is identified. If a 
voluntary consensus standard is identified for consideration, the 
submittal should explain why the standard should be used.

IX. Environmental Impact: Categorical Exclusion

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

X. Paperwork Reduction Act Statement

    This proposed rule contains new or amended information collection 
requirements that are subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). This rule has been submitted to the Office of 
Management and Budget (OMB) for review and approval of the information 
collection requirements.
    Type of submission, new or revision: Revised.
    The title of the information collection: 10 CFR Parts 71 and 73, 
``Advance Notification to Native American Tribes of Transportation of 
Certain Types of Nuclear Waste.''
    The form number if applicable: NA.
    How often the collection is required: On occasion; each time a 
shipment of irradiated reactor fuel or certain other nuclear wastes 
listed in Sec.  71.97 is made that crosses Tribal reservation borders.
    Who will be required or asked to report: Licensees that are 
shipping irradiated reactor fuel or certain other nuclear wastes listed 
in Sec.  71.97.
    An estimate of the number of annual responses: 386 (380 responses 
plus 6 record keepers).
    The estimated number of annual respondents: 18.
    An estimate of the total number of hours needed annually to 
complete the requirement or request: 163 (6.4 recordkeeping hours plus 
156.4 third party hours) all of which is associated with Part 73.
    Abstract: The NRC is proposing to amend its regulations to put in 
place a new requirement for licensees to provide advance notification 
to participating Tribes of any shipments of irradiated reactor fuel or 
certain other nuclear wastes listed in Sec.  71.97 that pass within or 
across Tribal reservations.
    The NRC is seeking public comment on the potential impact of the 
information collections 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?
    2. Is the estimate of burden accurate?
    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 information collection be minimized, 
including the use of automated collection techniques?
    A copy of the OMB clearance package may be viewed free of charge at 
the NRC Public Document Room, One White Flint North, 11555 Rockville 
Pike, Room O-1F21, Rockville, MD 20852. The OMB clearance package and 
rule are available at the NRC worldwide Web site https://www.nrc.gov/public-involve/doc-comment/omb/ for 60 days after the 
signature date of this notice.
    Send comments on any aspect of these proposed information 
collections, including suggestions for reducing the burden and on the 
above issues, by January 5, 2011 to the Information Services Branch (T-
5F53), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
or by Internet electronic mail to INFOCOLLECTS.Resource@NRC.gov and to 
the Desk Officer Christine J. Kymn, Office of Information and 
Regulatory Affairs, NEOB-10202, (3150-0008, 0002), Office of Management 
and Budget, Washington, DC 20503. Comments on the proposed information 
collections may also be submitted via the Federal eRulemaking Portal at 
https://www.regulations.gov, Docket Number NRC-1999-0005. Comments 
received after this date will be considered if it is practical to do 
so, but assurance of consideration cannot be given to comments received 
after this date. You may also e-mail comments to Christine J. Kymn at 
Christine.J.Kymn@omb.eop.gov or comment by telephone at 202-395-4638.

Public Protection Notification

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

XI. Regulatory Analysis

    The Commission has prepared a draft regulatory analysis on this 
proposed regulation. The analysis examines the costs and benefits of 
the alternatives considered by the Commission.
    The Commission requests public comment on the draft regulatory 
analysis. Comments on the draft analysis may be submitted to the NRC as 
indicated under the ADDRESSES heading of this document. The analysis is 
available for inspection in the NRC Public Document Room, One White 
Flint North, 11555 Rockville Pike, Room O-1F21, Rockville, MD 20852 and 
can be found at https://www.regulations.gov by searching on Docket ID 
NRC-1999-0005.

XII. Regulatory Flexibility Certification

    Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the 
Commission certifies that this rule would not, if promulgated, have a 
significant economic impact on a substantial number of small entities. 
The amendments will apply to reactor licensees and a few licensees who 
possess large sources of byproduct materials. The majority, if not all, 
of these licensees are not ``small entities'' under either the 
Regulatory Flexibility Act or NRC's size standards (10 CFR 2.810).

XIII. Backfit Analysis

    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 proposed rule

[[Page 75647]]

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.

List of Subjects

10 CFR Part 71

    Criminal penalties, Hazardous materials transportation, Import, 
Nuclear materials, Packaging and containers, Reporting and 
recordkeeping requirements.

10 CFR Part 73

    Criminal penalties, Export, Hazardous materials transportation, 
Import, Nuclear materials, Nuclear power plants and reactors, Reporting 
and recordkeeping requirements, Security measures.
    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 553; the NRC is proposing to 
adopt the following amendments to 10 CFR parts 71 and 73.

PART 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL

    1. The authority citation for part 71 continues to read as follows:

    Authority:  Secs. 53, 57, 62, 63, 81, 161, 182, 183, 68 Stat. 
930, 932, 933, 935, 948, 953, 954, as amended, sec. 1701, 106 Stat. 
2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2201, 
2232, 2233, 2297f); secs. 201, as amended, 202, 206, 88 Stat. 1242, 
as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 
Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 
No. 109-58, 119 Stat. 594 (2005). Section 71.97 also issued under 
sec. 301, Pub. L. 96-295, 94 Stat. 789-790.
    2. In Sec.  71.4, new definitions for Indian Tribe and Tribal 
official are added in alphabetical order to read as follows:


Sec.  71.4  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. 479a.
* * * * *
    Tribal official means the highest ranking individual that 
represents Tribal leadership, such as the Chief, President, or Tribal 
Council leadership.
* * * * *
    3. In Sec.  71.97, paragraphs (a), (c)(1), (c)(3), (d)(4), (e), and 
(f)(1) are revised to read as follows:


Sec.  71.97  Advance notification of shipment of irradiated reactor 
fuel and nuclear waste.

    (a)(1) As specified in paragraphs (b), (c), and (d) of this 
section, each licensee shall provide advance notification to the 
governor of a State, or the governor's designee, of the shipment of 
licensed material, within or across the boundary of the State, before 
the transport, or delivery to a carrier, for transport, of licensed 
material outside the confines of the licensee's plant or other place of 
use or storage.
    (2) As specified in paragraphs (b), (c), and (d) of this section, 
each licensee shall provide advance notification to the Tribal official 
of participating Tribes referenced in paragraph (c)(3)(iii) of this 
section, or the official's designee, of the shipment of licensed 
material, within or across the boundary of the Tribe's reservation, 
before the transport, or delivery to a carrier, for transport, of 
licensed material outside the confines of the licensee's plant or other 
place of use or storage.
* * * * *
    (c) Procedures for submitting advance notification. (1) The 
notification must be made in writing to:
    (i) The office of each appropriate governor or governor's designee;
    (ii) The office of each appropriate Tribal official or Tribal 
official's designee; and
    (iii) The Director, Division of Security Policy, Office of Nuclear 
Security and Incident Response.
* * * * *
    (3) A notification delivered by any other means than mail must 
reach the office of the governor or of the governor's designee or the 
Tribal official or Tribal official's designee at least 4 days before 
the beginning of the 7-day period during which departure of the 
shipment is estimated to occur.
    (i) A list of the names and mailing addresses of the governors' 
designees receiving advance notification of transportation of nuclear 
waste was published in the Federal Register on June 30, 1995 (60 FR 
34306).
    (ii) The list of governor's designees and Tribal official's 
designees of participating Tribes will be published annually in the 
Federal Register on or about June 30th to reflect any changes in 
information.
    (iii) A list of the names and mailing addresses of the governors' 
designees and Tribal officials' designees of participating Tribes is 
available on request from the Director, Division of Intergovernmental 
Liaison and Rulemaking, Office of Federal and State Materials and 
Environmental Management Programs, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001.
* * * * *
    (d) * * *
    (4) The 7-day period during which arrival of the shipment at State 
boundaries or Tribal reservation boundaries is estimated to occur;
* * * * *
    (e) Revision notice. A licensee who finds that schedule information 
previously furnished to a governor or governor's designee or a Tribal 
official or Tribal official's designee, in accordance with this 
section, will not be met, shall telephone a responsible individual in 
the office of the governor of the State or of the governor's designee 
or the Tribal official or the Tribal official's designee and inform 
that individual of the extent of the delay beyond the schedule 
originally reported. The licensee shall maintain a record of the name 
of the individual contacted for 3 years.
    (f) Cancellation notice. (1) Each licensee who cancels an 
irradiated reactor fuel or nuclear waste 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 previously 
notified, each Tribal official or to the Tribal official's designee 
previously notified, and to the Director, Division of Security Policy, 
Office of Nuclear Security and Incident Response.
* * * * *

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

    4. The authority citation for part 73 continues to read as follows:

    Authority:  Secs. 53, 161, 149, 68 Stat. 930, 948, as amended, 
sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2169, 2201); sec. 201, 
as amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 
Stat. 2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 
Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 
109-58, 119 Stat. 594 (2005).

    Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425, 
96 Stat. 2232, 2241 (42.U.S.C. 10155, 10161). Section 73.37(f) also 
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841 
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100 
Stat. 876 (42 U.S.C. 2169).

    5. In Sec.  73.2, new definitions for Indian Tribe and Tribal 
official are added in alphabetical order to read as follows:


Sec.  73.2  Definitions.

* * * * *
    Indian Tribe means an Indian or Alaska Native Tribe, band, nation, 
pueblo, village, or community that the

[[Page 75648]]

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. 479a.
* * * * *
    Tribal official means the highest ranking individual that 
represents Tribal leadership, such as the Chief, President, or Tribal 
Council leadership.
* * * * *
    6. In Sec.  73.21, paragraph (a)(2) is revised to read as follows:


Sec.  73.21  Protection of Safeguards Information: Performance 
Requirements.

    (a) * * *
    (2) Information protection procedures employed by Federal, State, 
Tribal, and local law enforcement agencies are presumed to meet the 
general performance requirement in paragraph (a)(1) of this section.
* * * * *
    7. In Sec.  73.37, paragraphs (f) and (g) are revised to read as 
follows:


Sec.  73.37  Requirements for physical protection of irradiated reactor 
fuel in transit.

* * * * *
    (f) Prior to the transport of spent fuel within or across a State 
or Tribal reservation, a licensee subject to this section shall notify 
the governor or the governor's designee and the Tribal official of each 
participating Tribe referenced in Sec.  71.97(c)(3) of this chapter or 
the Tribal official's designee. The licensee shall comply with the 
following criteria in regard to a notification:
    (1) The notification must be in writing and sent to the office of 
each appropriate governor or the governor's designee and each 
appropriate Tribal official or the Tribal official's designee. A 
notification delivered by mail must be postmarked at least 7 days 
before transport of a shipment within or across the State or Tribal 
reservation. A notification delivered by messenger must reach the 
office of the governor or the governor's designee and any Tribal 
official or Tribal official's designee at least 4 days before transport 
of a shipment within or across the State or Tribal reservation. A list 
of the mailing addresses of governors and governors' designees and 
Tribal officials and Tribal officials' designees is available upon 
request from the Director, Division of Intergovernmental Liaison and 
Rulemaking, Office of Federal and State Materials and Environmental 
Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 
20555.
    (2) The notification must include the following information:
    (i) The name, address, and telephone number of the shipper, carrier 
and receiver.
    (ii) A description of the shipment as specified by the Department 
of Transportation in 49 CFR 172.202 and 172.203(d).
    (iii) A listing of the routes to be used within the State or Tribal 
reservation.
    (iv) A statement that the information described in paragraph (f)(3) 
of this section is required by NRC regulations to be protected in 
accordance with the requirements of Sec. Sec.  73.21 and 73.22.
    (3) The licensee shall provide the following information on a 
separate enclosure to the written notification:
    (i) The estimated date and time of departure from the point of 
origin of the shipment.
    (ii) The estimated date and time of entry into the governor's State 
or Tribal reservation.
    (iii) For the case of a single shipment whose schedule is not 
related to the schedule of any subsequent shipment, a statement that 
schedule information must be protected in accordance with the 
provisions of Sec. Sec.  73.21 and 73.22 until at least 10 days after 
the shipment has entered or originated within the State or Tribal 
reservation.
    (iv) For the case of a shipment in a series of shipments whose 
schedules are related, a statement that schedule information must be 
protected in accordance with the provisions of Sec. Sec.  73.21 and 
73.22 until 10 days after the last shipment in the series has entered 
or originated within the State or Tribal reservation and an estimate of 
the date on which the last shipment in the series will enter or 
originate within the State or Tribal reservation.
    (4) A licensee shall notify by telephone or other means a 
responsible individual in the office of the governor or in the office 
of the governor's designee and the office of the Tribal official or in 
the office of the Tribal official's designee of any schedule change 
that differs by more than 6 hours from the schedule information 
previously furnished in accordance with paragraph (f)(3) of this 
section, and shall inform that individual of the number of hours of 
advance or delay relative to the written schedule information 
previously furnished.
    (g) State officials, State employees, Tribal officials, Tribal 
employees, and other individuals, whether or not licensees of the 
Commission, who receive schedule information of the kind specified in 
paragraph (f)(3) of this section shall protect that information against 
unauthorized disclosure as specified in Sec. Sec.  73.21 and 73.22.
    8. In Sec.  73.59, new paragraph (l) is added to read as follows:


Sec.  73.59  Relief from fingerprinting, identification and criminal 
history records checks and other elements of background checks for 
designated categories of individuals.

* * * * *
    (l) Tribal official or the Tribal official's designated 
representative, and Tribal law enforcement personnel to whom access has 
been granted for the purpose of advance notification of shipments under 
provisions of Sec.  73.37(f).

    Dated at Rockville, Maryland this 1st day of December 2010.

    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,

Secretary of the Commission.
[FR Doc. 2010-30478 Filed 12-3-10; 8:45 am]
BILLING CODE 7590-01-P