RULEMAKING ISSUE

(AFFIRMATION) 

October 7, 2011 SECY-11-0142

FOR: The Commissioners 

FROM: R. W. Borchardt 

Executive Director for Operations 

SUBJECT: FINAL RULE: ADVANCE NOTIFICATION TO NATIVE AMERICAN 

 TRIBES OF TRANSPORT OF CERTAIN TYPES OF NUCLEAR WASTE 

 (RIN 3150-AG41) 

PURPOSE: 

To request Commission approval to publish a final rule in the Federal Register that would amend 

Parts 71 and 73 of Title 10 of the Code of Federal Regulations (10 CFR). Under the final rule,

licensees must provide advance notification to participating Federally-recognized Tribal 

governments prior to shipping irradiated reactor fuel and certain radioactive wastes through 

Tribal reservations. Also, the rule extends to Tribal officials, their designee, and Tribal law 

enforcement personnel, relief from fingerprinting requirements required for access to 

Safeguards Information (SGI). 

SUMMARY: 

The U.S. Nuclear Regulatory Commission (NRC) staff is recommending that the Commission 

approve a final rule that would require licensees to provide advance notification to participating 

Federally-recognized Tribal governments prior to shipping irradiated reactor fuel and certain 

radioactive wastes through Tribal reservations. The rule also extends to Tribal officials, their 

designee, and Tribal law enforcement personnel, relief from fingerprinting requirements required 

for access to SGI. The purpose of the rule is to inform Tribes that choose to receive advance 

notification of shipments of irradiated reactor fuel and other nuclear wastes passing across their 

reservation, which recognizes Tribal sovereignty, and to recognize Tribal governments’ interest 

in being informed of activities occurring on Tribal reservations. 

CONTACT: Merri Horn, FSME/DILR 

 301-415-8126 
The Commissioners 2 

BACKGROUND:

Current NRC regulations require licensees to inform State governors, or the governors’ 

designees, of certain shipments of irradiated reactor fuel and certain radioactive wastes listed in 

10 CFR 71.97 that pass through or across the boundary of States. The NRC first developed 

regulations in 1982 for the advance notification of state governors to comply with the NRC 

Authorization Act for Fiscal Year 1980. 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 Tribal reservations. Tribal officials have sought similar 

notification. 

On December 21, 1999 (64 FR 71331), 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. In SECY-01-0021, dated February 2, 2001, the staff provided a summary of the 

ANPR comments and a rulemaking plan to proceed with a proposed rule. The staff suspended 

the rulemaking following the terrorist attacks of September 11, 2001. In SECY-10-0095, dated 

July 23, 2010, the staff provided the proposed rule for Commission approval. The Commission 

approved publication of the proposed rule in a Staff Requirements Memorandum dated 

October 6, 2010 (Agencywide Documents Access and Management System Accession No. 

ML102790267). On December 8, 2010 (75 FR 75641), the NRC published the proposed rule for 

public comment. As part of the Tribal outreach, the NRC sent a copy of the proposed rule to all 

565 Federally-recognized Tribes. The comment period ended on February 22, 2011, and 

10 comment letters were received. The commenters on the proposed rule included Tribes, a 

Tribal organization, individuals, companies, and a Federal agency. Commenters supported the 

rule but did have several questions related to implementation. The comments and the NRC’s 

responses are discussed in detail in the Federal Register notice (Enclosure 1). 

DISCUSSION: 

The purpose of the rule is to inform Tribes that choose to receive advance notification of 

shipments of irradiated reactor fuel and other nuclear wastes passing across their reservation, 

which recognizes Tribal sovereignty, and to recognize Tribal governments’ interest in being 

informed of activities occurring on Tribal reservations. 

Regulations under 10 CFR 73.37 require advance notifications to State governors 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. Regulations under § 71.97 require advance notice for shipments of 

irradiated reactor fuel in quantities less than that subject to § 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 exceeds the least of: (1) 3000 times the A1 value of the 

radionuclides as specified in 10 CFR Part 71, Appendix A, Table A-1, for special form 

radioactive material; (2) 3000 times the A2 value of the radionuclides as specified in Appendix A, 

Table A-1, for normal form radioactive material; or (3) 1000 Terabequerel (TBq) (27,000 curies). 
The Commissioners 3 

Certain information provided for shipments of irradiated reactor fuel is considered to be SGI 

under the NRC regulations and must be protected in accordance with the requirements in 

§§ 73.21 and 73.22. The NRC staff is proposing to amend these regulations to include a 

provision that will require licensees to provide participating Tribal officials, or their designees, 

advance notice of shipments of irradiated reactor fuel and other radioactive wastes listed in 

§ 71.97 before crossing the border of Tribal reservations. The changes also include revising 

§ 73.59 to provide relief for Tribal officials, Tribal officials’ designees, and Tribal law enforcement 

personnel from the criminal history checks, fingerprinting, and other elements of background 

checks that are required for access to SGI. 

The proposed rule as written would have provided relief from the elements of the background 

investigation only for access to the SGI contained in the advance notifications and not to all SGI. 

However, the NRC also invited comment on whether the relief should be expanded to include all 

types of SGI. Only one commenter actually addressed this issue in their comments, and the 

individual recommended that the relief be expanded to all SGI. After careful consideration of the 

issue and the potential future needs of the NRC to share other forms of SGI with Tribal officials, 

the NRC staff is recommending that the relief be expanded to include any SGI and not just the 

advance notifications. Revising the regulations permits the Commission to more efficiently 

provide SGI to Tribes when it is determined that the Tribe has a need-to-know. The NRC staff 

believes that exempting Tribal officials, Tribal official designees, or Tribal law enforcement 

personnel from the fingerprinting requirement is analogous to exempting the State governor, 

State governor designees, or State law enforcement personnel from the fingerprinting and 

background check requirements. Providing the relief also recognizes the right of Indian tribes to 

self-government and supports Tribal sovereignty and self-determination. Relief from the 

fingerprinting requirement cannot be provided by Commission order; it can only be provided by 

rule. By including the relief in this rulemaking for all types of SGI, a future rulemaking will not 

need to be conducted, thus saving agency resources. Tribal officials will still need to have an 

established need-to-know before they would be given access to any other types of SGI. This 

rulemaking establishes need-to-know for the advance notifications for irradiated reactor fuel and 

nuclear waste shipments that pass within or across the boundary of a Tribal reservation. 

IMPLEMENTATION: 

The staff is recommending that the final rule be effective 60 days after publication in the Federal 

Register and inserts a date in the regulatory text that is 1 year after publication of the rule, before 

the licensees are required to implement the regulatory provisions. The 1 year period provides 

time for the NRC to develop the list of Tribal contacts, develop the map that shows locations of 

Tribal reservations, provide training on protection of SGI to the Tribes, and provide time for 

licensees to develop procedures and conduct training on the new requirements. However, the 

relief from the background investigation for access to SGI will be effective 60 days after 

publication of the final rule. The staff will be updating the guidance document as part of the 

separate rulemaking effort on security of spent fuel shipments. Any updates needed to address 

this rule will be included as part of the larger effort and will not be conducted as a separate task. 

In order to receive the advance notifications, Tribes will need to declare that they would like to 

receive the information and certify that the Tribe will appropriately protect any SGI information. 

Given the information protection requirements involved, the NRC believes Tribes should have 

the option to choose whether to receive advance notifications of shipments that pass through 
The Commissioners 4 

their Tribal reservations. If a Tribe opts to receive the advance notifications, the Tribe will be 

obligated to protect the schedule of the shipments and itineraries in accordance with SGI 

information handling requirements in §§ 73.21 and 73.22. If a Tribe opts not to receive the 

advance notifications, the Tribe will have no SGI information protection obligations relating to 

the shipments. 

The NRC staff is considering several different mechanisms to inform the Tribes of their 

responsibilities regarding SGI protection. When the final rule is published in the Federal 

Register, the NRC staff plans to contact all 565 Federally-recognized Tribes via letter. This 

initial contact will include a copy of the final rule and information on the protection of SGI, as well 

as a request to inform the NRC if the Tribe wants to receive the advance notifications. For those 

Tribes that express interest, more detailed training will be available by Webinar, meetings, 

training classes, compact disk, etc. Decisions on the best mechanism to provide the training will 

depend on such things as the number of Tribes that will need the training, locations of the 

Tribes, and each Tribe’s preference. 

The staff will develop a map that shows the reservations of Tribes that notify NRC they would 

like to receive these advance notifications. The Web site associated with the map will also 

provide the necessary contact information for the Tribe. Licensees will be able to use the map to 

determine what Tribes along the route will need to be contacted for the advance notifications. 

The necessary information will be available on the NRC’s Web site before the effective date of 

the rule. 

No change to the enforcement policy should be necessary for implementation. 

This final rule, if approved, will revise the advance notification provisions of § 73.37(f). The NRC 

staff is currently working on another rule, “Physical Protection of Irradiated Reactor Fuel in 

Transit” that will also revise § 73.37(f). If the Tribal notification rule is approved before the spent 

fuel transportation security rule, the Tribal notification provisions will need to be added to the 

spent fuel transportation security rule before publication so that the second rule does not remove 

the changes made by the Tribal notification rule. In order to accomplish this goal, the Advance 

Tribal Notification rule will become effective 60 days after publication in the Federal Register so 

the spent fuel transportation security rule can incorporate these changes into subsequent 

regulatory revisions of 73.37(f). A specific date, 1 year after publication in the Federal Register, 

will be added to the regulatory text in §71.97(c)(3) and §73.37(f) stating when the licensee must 

comply with the Advance Tribal Notification regulatory requirements. This revision provides 

notice of when the licensees must send out advance notifications to participating tribes. The 

1 year delay in implementation provides the Tribes adequate time to decide whether to 

participate in the program, NRC time to implement the program, and NRC time to train Tribes 

and licensees. 

In the unlikely event that the spent fuel transportation security rule is approved before the Tribal 

notification rule, the Tribal notification rule will be revised to reflect the language from the spent 

fuel transportation security rule. The spent fuel transportation security rule is due to the 

Commission in February 2012. 
The Commissioners 5 

STRATEGIC GOALS AND OBJECTIVES: 

The final rule is consistent with the NRC’s strategic objectives and performance goals. The rule 

will continue to ensure the protection of public health and safety and the common defense and 

security. The rulemaking was conducted in an open process that allowed the public to comment 

on the advance notification measures. 

AGREEMENT STATE ISSUES: 

A copy of the draft final rule Federal Register notice was provided to the Agreement States so 

they could have an early opportunity for review. No comments were received from the 

Agreement States. 

The NRC staff has analyzed the final rule in accordance with the procedures established 

within Part III of the Handbook to Management Directive 5.9, “Categorization Process for NRC 

Program Elements.” The changes to 10 CFR Part 71 are Compatibility Category B and the 

changes to 10 CFR Part 73 are reserved to the NRC. Compatibility is also addressed in 

Section V of the Statements of Consideration. The Standing Committee on Compatibility 

reviewed the proposed rule and agreed that these amendments to the NRC regulations are 

a matter of compatibility between the NRC and the Agreement States. No changes to the 

compatibility designations were made in the final rule. 

COMMITMENTS: 

1. Notify each Federally-recognized Tribe of the publication of the final rule and ask the Tribe if 

it wants to receive advance notifications of shipments that cross the Tribe’s reservation. 

2. Develop a list of participating Tribes, Tribal contact information, and a map delineating the 

participating Tribe’s reservation to post on the NRC Web site. 

RECOMMENDATIONS: 

That the Commission: 

1. Approve for publication in the Federal Register the notice of final rulemaking (Enclosure 1). 

2. To satisfy the requirement of the Regulatory Flexibility Act, 5 U.S.C. 605 (b), certify that this 

rule, if promulgated, will not have significant impact on a substantial number of small entities. 

This certification is included in the enclosed Federal Register notice. 

3. Note: 

a. That the Chief Counsel for Advocacy of the Small Business Administration will be 

informed of the certification and the reasons for it, as required by the Regulatory 

Flexibility Act, 5 U.S.C. 605(b); 
The Commissioners 6 

b. A final Regulatory Analysis has been prepared for this rulemaking (Enclosure 2); 

c. The staff has determined that this action is not a “major rule,” as defined in the 

Congressional Review Act of 1996 (5 U.S.C 804(2)) and has confirmed this 

determination with the Office of Management and Budget (OMB). The appropriate 

Congressional and Government Accountability Office contacts will be informed; 

d. The appropriate Congressional committees will be informed; 

e. A press release will be issued by the Office of Public Affairs when the final rulemaking 

is filed with the Office of the Federal Register; and 

f. The final rule contains amended information collection requirements subject to the 

Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.) that must be submitted to 

the OMB for its review and approval before publication of the final rule in the Federal 

Register. 

RESOURCES: 

The estimated resources to complete the rule are included in the fiscal year (FY) 2011 

President’s Budget and FY 2012 budget request (1.1 FTE across all the offices in FY 11 

(0.7 for the Office of Federal and State Materials and Environmental Management Programs) 

and about 0.1 in FY 12 (0.1 for the Office of Nuclear Material Safety and Safeguards and less 

than 0.1 for the Office of the General Counsel)). The resources for developing the Tribal list and 

the map delineating the location of Tribal reservations are included in the FY 2012 budget 

request (about 0.8 FTE in FY12). Neither effort has contract dollars associated with it. 

COORDINATION: 

The Office of the General Counsel has no legal objection to the rulemaking. The Office of the 

Chief Financial Officer has reviewed this Commission Paper for resource implications and has 

no objections. 

 /RA by Michael F. Weber for/ 

R. W. Borchardt 

Executive Director 

 for Operations 

Enclosures: 

1. Federal Register Notice 

2. Regulatory Analysis
The Commissioners 6 

b. A final Regulatory Analysis has been prepared for this rulemaking (Enclosure 2); 

c. The staff has determined that this action is not a “major rule,” as defined in the 

Congressional Review Act of 1996 (5 U.S.C 804(2)) and has confirmed this 

determination with the Office of Management and Budget (OMB). The appropriate 

Congressional and Government Accountability Office contacts will be informed; 

d. The appropriate Congressional committees will be informed; 

e. A press release will be issued by the Office of Public Affairs when the final rulemaking 

is filed with the Office of the Federal Register; and 

f. The final rule contains amended information collection requirements subject to the 

Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.) that must be submitted to 

the OMB for its review and approval before publication of the final rule in the Federal 

Register. 

RESOURCES: 

The estimated resources to complete the rule are included in the fiscal year (FY) 2011 

President’s Budget and FY 2012 budget request (1.1 FTE across all the offices in FY 11 

(0.7 for the Office of Federal and State Materials and Environmental Management Programs) 

and about 0.1 in FY 12 (0.1 for the Office of Nuclear Material Safety and Safeguards and less 

than 0.1 for the Office of the General Counsel)). The resources for developing the Tribal list and 

the map delineating the location of Tribal reservations are included in the FY 2012 budget 

request (about 0.8 FTE in FY12). Neither effort has contract dollars associated with it. 

COORDINATION: 

The Office of the General Counsel has no legal objection to the rulemaking. The Office of the 

Chief Financial Officer has reviewed this Commission Paper for resource implications and has 

no objections. 

 /RA by Michael F. Weber for/

R. W. Borchardt 

Executive Director 

 for Operations 

Enclosures: 

1. Federal Register Notice 

2. Regulatory Analysis 

*email ML112220078/WITS 200800219/EDATS: SECY-2011-0521 

OFFC PM:RBB/DILR BC:RBB/DILR DD:DILR D:DILR NMSS 

NAME MHorn KO’Sullivan DJackson JPiccone CHaney 

(JOlmstead for) 

DATE 8/15/ 11 9/7/ 11 9/19/11 9/19/11 7/21/11 

OFFC OCFO NRR OIS OGC OE 

NAME JDyer 

(RBaum* for) 

ELeeds 

(SHelton* for) 

RNichols 

(TDonnell* for) 

BJones NLO 

(JOlmstead* for) 

RZimmerman 

(SWoods* for) 

DATE 9/7/11 7/20/11 7/26/11 8/9/11 7/28/11 

OFFC ADM NSIR Tech Editor FSME EDO 

NAME CBladey (LTerry* for) JWiggins (MD for) PTressler CCarpenter (A) 

(RLewis for) 

RWBorchardt 

(MWeber for) 

DATE 7/25/11 7/18/11 9/ 23/11 9/29/11 10/7/11 

OFFICIAL RECORD COPY