Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52667 

a public meeting and all entities, both 

large and small, were able to express 

views on the issues. 

This rule does not impose additional 

reporting or recordkeeping requirements 

on either small or large Oregon and 

Washington pear handlers. As with all 

Federal marketing order programs, 

reports and forms are periodically 

reviewed to reduce information 

requirements and duplication by 

industry and public sector agencies. As 

noted in the initial regulatory flexibility 

analysis, USDA has not identified any 

relevant Federal rules that duplicate, 

overlap, or conflict with this rule. 

AMS is committed to complying with 

the E-Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

A proposed rule regarding this action 

was published in the Federal Register 

on August 26, 2009 (FR 74 43082). 

Copies of the rule were made available 

to all Oregon and Washington processed 

pear handlers. The proposal was also 

made available through the Internet by 

USDA and the Office of the Federal 

Register. A 30-day comment period 

ending September 25, 2009, was 

provided so that persons interested in 

the proposal could respond. No 

comments were received. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and order may be 

viewed at: http://www.ams.usda.gov/

AMSv1.0/ams.fetchTemplateData.do?

template=TemplateN&page=Marketing

OrdersSmallBusinessGuide. Any 

questions about the compliance guide 

should be sent to Jay Guerber at the 

previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

After consideration of all relevant 

material presented, including the 

information and recommendation 

submitted by the PCC and other 

available information, it is hereby found 

that this rule, as hereinafter set forth, 

will tend to effectuate the declared 

policy of the Act. 

Pursuant to 5 U.S.C. 553, it is also 

found and determined that good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register 

because (1) The 2009–2010 fiscal period 

began on July 1, 2009, and the order 

requires that the assessment rate for 

each fiscal period apply to all pears for 

canning handled during such fiscal 

period; (2) the PPC needs to have 

sufficient funds to pay its expenses, 

which are incurred on a continuous 

basis; (3) handlers are aware of this 

action, which was recommended by the 

PPC at a public meeting and is similar 

to other assessment rate actions issued 

in past years; and (4) a 30-day comment 

period was provided for in the proposed 

rule. 

List of Subjects in 7 CFR Part 927 

Marketing agreements, Pears, 

Reporting and recordkeeping 

requirements. 

■ For the reasons set forth in the 

preamble, 7 CFR part 927 is amended as 

follows: 

PART 927—PEARS GROWN IN 

OREGON AND WASHINGTON 

■ 1. The authority citation for 7 CFR 

part 927 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. In § 927.237, the introductory text 

and paragraph (a) are revised to read as 

follows: 

§ 927.237 Processed pear assessment 

rate. 

On or after July 1, 2009, the following 

base rates of assessment for pears for 

processing are established for the 

Processed Pear Committee: 

(a) $8.41 per ton for any or all 

varieties or subvarieties of pears for 

canning classified as ‘‘summer/fall’’ 

excluding pears for other methods of 

processing; 

* * * * * 

Dated: October 6, 2009. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E9–24681 Filed 10–13–09; 8:45 am] 

BILLING CODE P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 73 

[NRC–2008–0458] 

RIN 3150–AI31 

Criminal Penalties; Unauthorized 

Introduction of Weapons 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Final rule. 

SUMMARY: The Nuclear Regulatory 

Commission (NRC) is amending its 

regulations to authorize the imposition 

of Federal criminal penalties on those 

who, without authorization, introduce 

weapons or explosives into specified 

classes of facilities and installations 

subject to the regulatory authority of the 

NRC. This action is necessary to 

implement section 229, ‘‘Trespass on 

Commission Installations,’’ of the 

Atomic Energy Act of 1954, as amended 

(AEA). 

DATES: This rule is effective on April 12, 

2010. 

ADDRESSES: You can access publicly 

available documents related to this 

document using the following methods: 

Federal e-Rulemaking Portal: Go to 

http://www.regulations.gov and search 

for documents filed under Docket ID 

[NRC–2008–0458]. Address questions 

about NRC dockets to Carol Gallagher at 

301–415–5905, e-mail 

Carol.Gallagher@nrc.gov. 

NRC’s Public Document Room (PDR): 

The public may examine and have 

copied for a fee publicly available 

documents at the NRC’s PDR, Public 

File Area O1 F21, 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 http://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, 

301–415–4737, or by e-mail to 

pdr.resource@nrc.gov. 

FOR FURTHER INFORMATION CONTACT: 

James E. Adler, Office of the General 

Counsel, telephone 301–415–1656, 

e-mail: james.adler@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Public Comments 

III. Discussion of the Final Rule 

IV. Voluntary Consensus Standard 

V. Finding of No Significant Environmental 

Impact: Environmental Assessment 

VI. Paperwork Reduction Act Statement 

VII. Regulatory Analysis 

VIII. Regulatory Flexibility Certification 

IX. Backfit Analysis 

X. Congressional Review Act 

XI. Agreement State Compatibility 

I. Background 

Section 654 of the Energy Policy Act 

of 2005, ‘‘Unauthorized Introduction of 

Dangerous Weapons,’’ amended § 229 of 

the AEA (42 U.S.C. 2278a) to authorize 

the NRC to issue regulations that make 

it a Federal crime to bring, without 

authorization, weapons or explosives 

into facilities designated by the NRC. 


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52668 Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 

This rule implements that legislative 

provision. 

In 1956, Congress added § 229 to the 

AEA. That section made it a Federal 

crime to bring weapons or explosives, 

without authorization, into facilities 

owned by the Atomic Energy 

Commission. With the enactment of the 

Energy Reorganization Act in 1974, this 

provision covered facilities now owned 

or occupied by the U.S. Department of 

Energy (DOE) as well as the buildings 

occupied by the NRC. Section 229 of the 

AEA did not extend to facilities 

regulated by the NRC. Over the years, 

there were incidents where individuals 

were successful in bringing weapons 

into NRC-regulated facilities without 

authorization. Fortunately, the 

individuals were not terrorists or others 

with malevolent intent and no damage 

was done. In such circumstances, the 

NRC had the ability to take action 

against its licensee for violation of 

security requirements, but could not 

refer the matter to the U.S. Department 

of Justice (DOJ) for criminal prosecution 

of the individual; any criminal 

sanctions had to be sought by the State 

under State law. Beginning in the late 

1980s, the NRC submitted legislative 

proposals to Congress requesting that 

Congress enact legislation that would 

make it a Federal crime to bring 

weapons or explosives, without 

authorization, into NRC-designated 

facilities. 

Congress enacted the requested 

legislation in § 654 of the Energy Policy 

Act of 2005, amending § 229 of the AEA 

(42 U.S.C. 2278a). This section 

authorizes the NRC to 

issue regulations relating to the entry upon 

or carrying, transporting, or otherwise 

introducing or causing to be introduced any 

dangerous weapon, explosive, or other 

dangerous instrument or material likely to 

produce substantial injury or damage to 

person or property, into or upon any facility, 

installation, or real property subject to the 

jurisdiction, administration, in the custody of 

the Commission, or subject to the licensing 

authority of the Commission or certification 

by the Commission under this Act or any 

other Act. 

Section 229 also requires that ‘‘every 

such regulation of the Commission shall 

be posted conspicuously at the location 

involved.’’ 

II. Public Comments 

The NRC published a proposed rule 

on September 3, 2008 (73 FR 51378) and 

provided the opportunity for public 

comment. The Federal Register notice 

for the proposed rule identified certain 

issues about which the NRC was 

particularly interested in receiving 

comments. These issues included: 

(1) Whether the rule’s scope should be 

extended beyond the facilities listed in 

the proposed rule to additionally cover 

hospitals and other classes of facilities 

licensed to possess nationally tracked 

sources that are in the National Source 

Tracking System; 

(2) Whether terms used in the 

proposed rule such as ‘‘dangerous 

weapon,’’ ‘‘dangerous instrument or 

material,’’ and ‘‘explosive’’ should be 

further defined, and what such 

definitions should be; 

(3) Whether such definitions, if 

provided at all, should be set forth in 

the rule itself or in a guidance 

document; 

(4) Whether the proposed 90-day 

implementation period provides 

licensees sufficient time to acquire and 

install the signs that the rule would 

require licensees to post; 

(5) Whether the proposed rule’s 

language regarding sign location is 

sufficient; and 

(6) Whether the proposed rule’s 

performance-based standard (i.e., 

‘‘easily readable day and night’’) should 

be replaced with more detailed 

requirements or with a reference to a 

preexisting signage standard, such as 

the standards promulgated under the 

Americans with Disabilities Act. 

Seventeen comments were received. 

A few commenters addressed the issue 

of which facilities should be covered by 

the rule. Some of these commenters 

favored extending coverage to hospitals 

and other facilities possessing nuclear 

or radioactive material. Reasons given 

by such commenters included: 

(1) Anyone who introduces a 

dangerous weapon, explosive, or other 

dangerous material into such a facility 

most likely intends to do harm; 

(2) Anyone bringing such an item into 

a hospital or other facility that stores 

nuclear or radioactive material should 

expect to be penalized for doing so; 

(3) Signs will ensure that the rule is 

not violated by accident, although 

anyone who intends to cause harm in a 

covered facility would likely not be 

deterred by the rule anyway; and 

(4) Those seeking to access nuclear or 

radioactive materials in such facilities 

for illicit purposes would likely be able 

to locate those materials even if there 

are no signs posted pursuant to this 

rule. Thus, it is not valid to view such 

signs as rendering sensitive materials 

easier to find and therefore less secure. 

Another commenter, however, 

recommended against extending the 

sign-posting requirement to these 

facilities. This commenter (a major 

medical institution) reasoned that: 

(1) Signs would attract attention to the 

location of nationally tracked sources, 

thereby potentially rendering them less 

secure, given that many licensees 

currently try to avoid drawing attention 

to the locations of such materials; 

(2) The strong language in the posting 

could be frightening to patients in 

hospitals, who may already be in a 

vulnerable state due to their medical 

situations; and 

(3) Persons with unescorted access to 

facility areas of concern can simply be 

trained both to understand the rule 

themselves and to warn persons they 

escort about the rule’s existence. 

This commenter also noted that if the 

National Source Tracking System is 

expanded to include Category 3 and 

1/10th Category 3 sources, an expansion 

of the rule to cover hospitals or other 

facilities would reach substantially 

more facilities than it otherwise would. 

Several of the comments 

recommended that the NRC provide 

definitions of terms such as ‘‘dangerous 

weapon,’’ ‘‘explosive,’’ and ‘‘dangerous 

instrument or material.’’ Commenters’ 

justifications for recommending 

definitions of these terms included 

promoting consistency in licensee 

reporting of violations of this rule and 

minimizing ambiguity in a rule whose 

violation may result in criminal 

prosecution. One commenter suggested 

that the content of these definitions 

should relate to the security capabilities 

of licensees to avoid prohibiting 

introduction of items that could not 

realistically be used to overpower plant 

security teams. Another commenter 

recommended that definitions be 

included in the rule itself, with further 

information and illustrations provided 

in a guidance document. Another 

commenter recommended that the 

posted notices identify any items that 

ordinary persons would not expect to be 

considered dangerous, but which 

nonetheless pose special hazards in 

light of the nature of the facility or the 

material located at the facility. Lastly, 

one commenter recommended that 

another term used in the proposed rule, 

‘‘introduce,’’ be defined more clearly to 

ensure that the rule will apply to a 

person who introduces a dangerous 

instrument (e.g., a bullet) into the 

protected area by some means that does 

not require the person to pass beyond a 

sign (e.g., by firing a gun from outside 

the protected area). 

As to the proposed 90-day 

implementation period, two industry 

commenters recommended that the 

period be extended to 180 days to allow 

sufficient time for sign procurement and 

installation. No other commenters 

expressed views on this issue. 

A few comments addressed the issue 

of sign location. One of these comments 


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Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52669 

recommended installing signs not only 

at entrances, but also within protected 

areas to serve as additional reminders. 

Another comment sought clarification 

regarding areas outside the protected 

area but which nonetheless contain 

nuclear or radioactive material, such as 

licensee effluent treatment facilities, 

low-enriched uranium storage facilities, 

and radioactive waste storage facilities. 

The comment recommended that the 

posting requirement not apply to such 

areas, in light of the fact that entrants to 

such areas are not required to be 

searched prior to entry. Lastly, one 

commenter suggested allowing licensees 

the option of posting notices on 

roadways leading to facility checkpoints 

or parking areas, in addition to the 

notices required to be posted at vehicle 

and pedestrian entrances, in order to 

provide advance warning and thus 

facilitate the avoidance of protected 

areas by people carrying weapons. 

Several commenters addressed the 

issue of sign characteristics. Some 

commenters recommended inclusion of 

specific rules regarding text size and 

color. One commenter suggested 

requiring lighting to ensure readability 

at night, while other commenters 

preferred the more flexible performancebased standard (i.e., ‘‘easily readable 

day and night’’) utilized in the proposed 

rule. No commenters objected to the 

requirement that the notices be readable 

at night. 

A number of comments also 

addressed topics beyond those 

specifically identified in the statement 

of considerations for the proposed rule. 

One commenter recommended that the 

rule require establishment of temporary 

weapons storage sites at pedestrian and 

vehicle entrances, so that persons 

lawfully carrying firearms can store any 

weapons before entering and pick them 

up when they leave. Another 

commenter recommended that the rule 

be harmonized with existing DOE 

signage regulations to avoid confusion 

or redundancy for those facilities that 

would be required to comply with both 

regulatory schemes. One commenter 

recommended that the rule define the 

term ‘‘willful’’ as ‘‘an intentional act 

which may include evidence of 

subterfuge, masking, or malevolent 

intent.’’ Finally, the DOJ recommended 

that the statement of considerations for 

the final rule clarify that the Federal 

Bureau of Investigation is not the only 

Federal entity other than the NRC that 

could potentially conduct investigations 

of suspected violations of this rule. 

All of these comments are discussed 

and addressed in Section III below. 

III. Discussion of the Final Rule 

The NRC is amending 10 CFR 73.81, 

‘‘Criminal Penalties,’’ and adding 

§ 73.75, ‘‘Posting,’’ to implement § 654 

of the Energy Policy Act of 2005. Under 

the regulations, the unauthorized willful 

introduction of any dangerous weapon, 

explosive or any other dangerous 

instrument or material likely to produce 

substantial injury or damage to persons 

or property upon the facilities or 

installations subject to §§ 236a.(1) or (4) 

of the AEA will be subject to the 

criminal penalties set forth in § 229 of 

the AEA. Consistent with the Energy 

Policy Act § 654 requirement that the 

regulation be posted conspicuously at 

each location involved, § 73.75 will 

require licensees to post notices at such 

facilities or installations. 

Facilities Covered 

The NRC is primarily concerned with 

dangers posed by the unauthorized 

introduction of weapons or explosives 

or other dangerous items when nuclear 

material and radioactive material are 

present. By listing these facilities in 

section 236 of the AEA, Congress has 

recognized the potential danger that 

could result from sabotage of such 

facilities; consequently, the NRC 

believes it prudent to also make the 

willful unauthorized introduction of 

weapons or explosives into or upon 

these facilities a Federal crime. The 

covered facilities include production 

and utilization facilities and uranium 

enrichment, uranium conversion and 

fuel fabrication facilities. The rule also 

covers some of the facilities listed in 

AEA § 236a.(2). Specifically, this rule 

would apply to high-level waste storage 

and disposal facilities and independent 

spent fuel storage installations. The 

remaining waste facilities and 

installations listed in § 236a.(2) that are 

subject to Agreement State jurisdiction 

may be covered in a future rulemaking. 

For other classes of licensees, the 

unauthorized introduction of weapons 

or explosives will continue to be 

governed, absent other Federal 

legislation, by State law. 

The final rule accounts for the fact 

that not all portions of the listed classes 

of facilities will necessarily pose 

sufficient security concerns to justify 

imposition of criminal penalties. 

Therefore, the rule’s application is 

limited to areas within a facility or 

installation’s protected area, as well as 

portions of facilities or installations that 

are not within a protected area per se 

but for which security plans under 10 

CFR part 73 must nonetheless be in 

place. The term ‘‘protected facility or 

installation’’ has also been added to the 

final rule to refer solely to those 

portions of facilities that the criminal 

penalties are intended to protect. The 

rule’s reference to security plan 

requirements under Part 73, which was 

not included in the proposed rule, 

should resolve the ambiguity identified 

by a commenter regarding certain 

portions of facilities that are outside the 

protected area but which nonetheless 

contain nuclear or radioactive materials. 

The NRC has limited the rule’s 

applicability to the facilities listed in 

§§ 73.75(a) and 73.81(c)(2)(i) because 

the unauthorized introduction of a 

weapon or explosive into these facilities 

poses the greatest health and safety risk 

and because the NRC already 

pervasively regulates these facilities. 

Other facilities—such as hospitals—that 

contain radioactive materials are not as 

extensively regulated by the NRC. In 

order to apply § 73.81 to these other 

facilities, the NRC would have needed 

to interact with Agreement States and 

other State and Federal regulators to 

further assess the need for application of 

§ 73.81 to these classes of facilities and 

to determine the proper placement of 

the required notices and the best way to 

implement this regulation. As suggested 

by a public comment, adding posted 

notices—which, under the statute, is a 

required complement to the imposition 

of criminal penalties—to facilities such 

as hospitals could raise substantial 

policy and implementation issues. 

While the NRC acknowledges the 

recommendations of some commenters 

that hospitals and other facilities be 

addressed via this rule, the NRC 

believes that such extension would raise 

additional complexities that would be 

best addressed in a separate rulemaking, 

should the NRC determine at a future 

date that expansion of the scope of this 

rule is warranted. 

The NRC is not including the 

following facilities or materials even 

though they are listed in § 236 of the 

AEA: 

• Subsection 236a.(3) covering any 

nuclear fuel for a utilization facility 

licensed under this Act, or any spent 

fuel from such a facility. Section 229 of 

the AEA specifically applies to 

‘‘facilities and installations,’’ while this 

subsection applies to ‘‘nuclear fuel’’ and 

‘‘spent nuclear fuel.’’ Fuel is neither a 

facility nor installation; therefore, § 229, 

by its terms, is not applicable to this 

subsection. 

• Subsection 236a.(5) covering any 

‘‘production, utilization, waste storage, 

waste treatment, waste disposal, 

uranium enrichment, uranium 

conversion, or nuclear fuel fabrication 

facility’’ during construction of the 

facility, if the destruction or damage 


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52670 Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 

caused or attempted to be caused could 

adversely affect public health and 

safety. The NRC is primarily concerned 

with dangers posed by the unauthorized 

introduction of weapons or explosives 

into facilities when special nuclear 

material, byproduct material, or source 

material is present. Therefore, § 73.81(c) 

will apply only to those facilities 

designated in § 73.81(c)(2)(i) upon the 

receipt of such material. An 

unauthorized introduction of a weapon 

or explosive resulting in sabotage 

covered by AEA § 236 before the receipt 

of special nuclear material, byproduct 

material, or source material already 

constitutes a Federal crime. Although 

the proposed rule utilized the terms 

‘‘nuclear material’’ and ‘‘radioactive 

material’’ instead of ‘‘special nuclear 

material, byproduct material, or source 

material,’’ the former terms are 

potentially vague and imprecise. 

Therefore, the final rule is using the 

latter terminology in order to avoid 

potential misinterpretation. This 

change, which appears in §§ 73.75(b)(2) 

and 73.81(c)(4), is intended to be 

clarifying rather than substantive. 

• Subsection 236a.(6) covering any 

‘‘primary or backup facility from which 

a radiological emergency preparedness 

alert or warning system is activated.’’ 

These facilities do not contain special 

nuclear material, byproduct material, 

source material, or the controls needed 

to operate a facility. 

• Subsection 236a.(7) pertaining to 

other materials or property that the NRC 

designates by order or regulation. The 

NRC is excluding this section because 

the rulemaking implementing this 

subsection of § 236 has not commenced. 

The NRC may revisit this exclusion as 

part of the rulemaking implementing the 

Energy Policy Act of 2005 revisions to 

§ 236, or in a separate rulemaking. 

In response to a public comment, one 

class of facilities and installations that 

is exempted under the final rule 

includes those facilities and 

installations that already must comply 

with similar signage requirements under 

DOE regulations. DOE regulations 

already criminalize the unauthorized 

introduction of dangerous weapons, 

explosives, or other dangerous 

instruments or materials into or upon 

various facilities and installations 

within DOE’s jurisdiction and require 

that such facilities and installations post 

notices to that effect. The DOE 

regulations, however, establish criminal 

penalties that, while not substantially 

different, are nonetheless not identical 

to those being established by this rule. 

Exempting these facilities from this rule 

avoids establishing what would in effect 

be identical crimes punishable by 

different penalties with respect to those 

facilities. 

Criminal Penalties, Investigation, and 

Prosecution 

Under the final rule’s terms, whoever 

willfully introduces, without 

authorization, weapons or explosives 

into or upon any protected facility or 

installation (as defined in § 73.81(c)(2)) 

that is enclosed by a fence, wall, floor, 

roof, or other barrier would be guilty of 

a misdemeanor, and upon conviction, 

could be punished by a fine not to 

exceed $5,000, or imprisonment for not 

more than one year, or both, as set forth 

in section 229c of the AEA. Whoever 

willfully introduces, without 

authorization, weapons or explosives 

into or upon any other protected facility 

or installation would be, upon 

conviction, punishable by a fine of not 

more than $1,000, as set forth in section 

229b of the AEA. The maximum 

penalties would vary based upon 

whether the facility in question is 

enclosed by a fence, wall, floor, roof, or 

other barrier. The proposed rule’s 

version of 73.81(c)(1) was worded in a 

manner that, when read in conjunction 

with AEA sections 229b and 229c, was 

circular and potentially confusing. The 

final rule therefore contains a reworded 

section 73.81(c)(1). This modification is 

not, however, intended to change the 

substance of the rule in any way. 

This final rule does not interfere with 

State prosecution of these crimes under 

State law, but it does allow the Federal 

Bureau of Investigation, the Bureau of 

Alcohol, Tobacco, Firearms, and 

Explosives, or other Federal law 

enforcement agencies to investigate and 

DOJ to prosecute in addition to, or 

instead of, the State government. 

The NRC is also not making violations 

of § 73.75 criminally punishable under 

AEA sections 229b and 229c. The 

Commission’s objective in this 

rulemaking, which the Commission 

believes is consistent with the 

Congressional intent, is to ensure that 

the criminal penalties in sections 229b 

and 229c apply to persons who 

introduce weapons into facilities 

without authorization. Furthermore, the 

NRC has sufficient administrative 

sanctions at its disposal to enforce the 

posting requirements. 

Regulatory Burden—Posting of Signs 

This regulation would not impose any 

burden on States. The only burden the 

regulation would impose on licensees is 

the statutorily mandated requirement 

that signs containing the quoted text in 

§ 73.75 be posted conspicuously at each 

of the listed facilities. The rule requires 

that these signs be posted at all 

entrances to the protected area, as well 

as all entrances to buildings not within 

a protected area that nonetheless 

contain special nuclear material, 

byproduct material, or source material 

(except with respect to buildings for 

which security plans are not required 

under 10 CFR part 73). The link 

between the posting requirements and 

the NRC’s security plan requirements 

under part 73 has been added to the 

final rule in response to a public 

comment to ensure consistency between 

the NRC’s security regulations and the 

criminal penalties (and licensee posting 

obligations) being established. The signs 

may also include other prohibitions 

already posted at the point of entry. 

Although one commenter 

recommended that additional signs be 

posted within each facility or 

installation to serve as further reminders 

of the regulation’s criminal penalties, 

any person who willfully brings a 

prohibited item into the facility or 

installation will have already committed 

the crime by the time such reminder 

signs are encountered. The posting of 

such signs, therefore, will not be 

required, but licensees are not 

precluded from posting additional signs. 

As the rule states, the signs must be 

easily readable day and night by both 

pedestrian and vehicular traffic. The 

NRC, in response to comments, is 

providing a 180-day implementation 

period for this requirement to allow 

licensees sufficient time to acquire and 

install the appropriate signs. 

The posting requirement is primarily 

performance-based, stating that signs 

should be ‘‘easily readable day and 

night.’’ Accordingly, any design and 

placement that renders the notice 

‘‘easily readable day and night’’ will 

satisfy this standard. Although one 

commenter suggested requiring lighting 

in order to ensure readability at night, 

the NRC believes it is sufficient to rely 

upon the performance-based standard 

for night readability, because different 

facilities, as well as different sign 

locations at each facility, may have 

different lighting needs. 

Although the ‘‘easily readable day and 

night’’ standard is primarily 

performance-based, it is the NRC’s view 

that compliance with an up-to-date 

version of the Americans with 

Disabilities Act (ADA) signage standards 

(currently set forth at 28 CFR part 36, 

appendix A, section 4.30) will satisfy 

the ‘‘easily readable day and night’’ 

standard with respect to those aspects of 

sign design and placement that the ADA 

standards address. In their present 

version, for instance, the ADA standards 

address topics such as character 

proportion, character height, finish and 


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Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52671 

1Because the term ‘‘dangerous weapon’’ as used 

in 18 U.S.C. 930(g)(2) does not expressly cover 

firearms, the NRC believes it is appropriate to 

incorporate definitions of ‘‘firearm’’ as well. 

contrast, and mounting location and 

height. Providing licensees the option of 

relying upon the ADA standards to help 

ensure compliance with the ‘‘easily 

readable day and night’’ standard 

should promote an appropriate balance 

of flexibility and predictability. The 

ADA standards may not, however, 

address all aspects of the ‘‘easily 

readable day and night’’ standard. For 

example, the current ADA standards do 

not address readability at night. 

Therefore, the ADA standards may, in 

practice, serve only as partial guidance 

with respect to sign design and 

placement. 

One commenter recommended that 

the rule require licensees to provide a 

means for workers and visitors who 

lawfully possess weapons to 

temporarily store them at facility 

entrances prior to entering, such that the 

weapons could be retrieved later upon 

exiting. In the NRC’s view, the presence 

or absence of temporary weapons 

storage for this purpose is primarily a 

convenience and logistical issue of 

potential concern to licensees, their 

employees, and other plant visitors; it is 

not an issue of significant regulatory 

concern that the NRC must address. 

Therefore, the final rule will neither 

prohibit nor mandate the presence of 

such temporary weapons storage at the 

entrances to affected facilities or 

installations. 

Similarly, the posting of additional 

notices on roadways leading to 

checkpoints or parking areas is neither 

required nor prohibited by the rule and 

is, therefore, left to the licensee’s 

discretion. It is important to note, 

however, that the location of a posted 

notice will define the point at which 

introduction into the facility occurs for 

purposes of this final rule, at least 

where introduction occurs at a 

traditional vehicle or pedestrian 

entrance to the facility. Accordingly, 

licensees wishing to post notices in 

addition to those required by § 73.75, 

such as to provide advance notice about 

the § 73.81 criminal penalties to workers 

or visitors who are approaching a 

facility entrance or a courtesy storage 

site for prohibited items, would be 

advised to ensure that such notices will 

not be mistaken for the notices required 

to be posted at facility entrances under 

§ 73.75. This could be accomplished, for 

instance, by not using the precise 

language on the ‘‘advance warning’’ 

notices that is required to be used on the 

notices posted pursuant to § 73.75. Such 

additional ‘‘advance warning’’ notices, 

of course, would not take the place of 

the notices that § 73.75 requires to be 

posted at all vehicle and pedestrian 

entrances to each protected facility or 

installation. 

Although the text of the final rule 

does not specifically address such 

situations, there may, as a practical 

matter, be cases in which a covered 

facility does not require its own posted 

notices. This would seem most likely to 

occur when one covered facility is 

embedded completely within the 

protected area of another covered 

facility (for example, an independent 

spent fuel storage facility located 

entirely within a nuclear power plant’s 

protected area). Because § 73.75(b)(1) 

requires the posting of notices for 

protected areas only at the protected 

area’s entrances, the embedded facility 

would not require its own notices if 

none of the embedded facility’s 

entrances serve as entrances to the 

larger protected area. 

One non-substantive change to the 

§ 73.75 posting provision is that a new 

subsection 73.75(a) has been added to 

identify the categories of facilities to 

which § 73.75 applies. This eliminates 

an unnecessary cross reference to 

§ 73.81(c). Another non-substantive 

change involves § 73.81(c)(2) of the 

proposed rule. The requirement found 

in that provision was redundant, serving 

merely to remind readers that there are 

associated posting requirements in 

§ 73.75. Because some of the definitions 

in § 73.81(c) of the final rule perform a 

similar reminder function by 

referencing the § 73.75 posting 

requirements, § 73.81(c)(2) is 

unnecessary and has been removed. 

Definitions of Key Terms 

The unauthorized introduction— 

whether by carrying, transporting, 

discharging of a firearm, or otherwise— 

of weapons, explosives, or other 

dangerous instruments or materials into 

or upon the area marked by the posted 

notices will constitute a Federal crime 

under this final rule. For purposes of 

this final rule, ‘‘without authorization’’ 

means lacking authorization, as part of 

one’s official duties, to carry the item in 

question. Accordingly, the introduction 

of weapons by security guards, peace 

officers, or military personnel as part of 

their official duties would be 

‘‘authorized’’ and these individuals 

would not be subject to criminal 

sanctions under this rule. Additionally, 

the introduction of potentially 

dangerous industrial tools, machinery, 

or other materials into a facility as part 

of one’s job duties would likewise not 

be subject to criminal sanctions under 

this rule. 

As noted above, a new term, 

‘‘protected facility or installation,’’ has 

been added to the final rule. This term, 

which encompasses solely those 

portions of facilities that the criminal 

penalties are meant to protect, is 

included to ensure that the posting 

requirements under § 73.75 and the 

criminal penalty provisions under 

§ 73.81 will be consistent with one 

another (a task previously performed by 

the proposed rule’s definition of 

‘‘introduce’’) and to create a simple 

means of referring, in § 73.81(c)(1), to 

the facility areas that provision is meant 

to cover. 

The terms ‘‘dangerous weapons,’’ 

‘‘dangerous instrument or material,’’ 

and ‘‘explosives’’ are not defined in the 

statute that these regulations would 

implement. In addition, the DOE 

regulations referred to above utilize 

these same terms to define comparable 

criminal conduct but do not define 

them. The NRC has determined, 

however, that enforcement could be 

enhanced by providing definitions for at 

least some of these terms. Furthermore, 

a number of public comments 

recommended providing definitions to 

promote clarity and consistency in the 

rule’s implementation. 

Accordingly, the NRC, after 

consultation with DOJ, has adopted a set 

of definitions from existing Federal 

criminal statutes. A newly inserted 

definition for the rule’s term ‘‘dangerous 

weapon’’ references existing definitions 

found at 18 U.S.C. 921(a)(3) and 26 

U.S.C. 5845(a) for the term ‘‘firearm’’ 

and the 18 U.S.C. 930(g)(2) definition of 

the term ‘‘dangerous weapon.’’ 1

Although these relatively broad 

incorporated definitions may overlap 

with one another in many respects, the 

rule references each of them in order to 

ensure that no legitimately dangerous 

items will be inadvertently left 

uncovered by this rule. In addition, a 

new definition for ‘‘explosive’’ 

incorporates the definition of 

‘‘explosive’’ found at 18 U.S.C. 844(j). 

The referenced ‘‘firearm’’ definitions do 

provide exceptions for antique weapons, 

certain recreational and sporting guns, 

and army surplus ordnance. Those 

exceptions, however, will have no effect 

for purposes of this final rule, because 

antique weapons, recreational and 

sporting guns, and army surplus 

ordnance still fall within the terms of 

the 18 U.S.C. 930(g)(2) definition of 

‘‘dangerous weapon,’’ which broadly 

covers any ‘‘weapon, device, 

instrument, material, or substance, 

animate or inanimate, that is used for, 

or is readily capable of, causing death or 


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52672 Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 

serious bodily injury.’’ This is 

appropriate because even the types of 

weapons excepted under the ‘‘firearm’’ 

definitions are not appropriate for 

introduction, without authorization, 

into highly secure nuclear facilities. 

The NRC does not plan to issue 

guidance for licensees beyond what is 

contained in this statement of 

considerations to further define these 

terms. The NRC considers extensive 

guidance to licensees regarding the 

reporting requirements associated with 

this final rule to be unnecessary. The 

purpose of the rule is to criminalize the 

unauthorized introduction of items that 

licensee security plans should already 

be prohibiting as part of their existing 

security efforts. Such items include 

guns, explosives, and any other items 

that would pose a legitimate security 

threat if brought into a protected facility 

without authorization. Unremarkable 

personal items such as pocket knives 

attached to key chains, butter knives in 

lunch boxes, and so on are not intended 

to be covered by this rule, and so would 

not trigger any licensee reporting 

requirements absent some further facts 

(such as, for example, evidence of intent 

to commit sabotage) which would 

implicate some other criminal provision 

or other basis for reporting the incident. 

Indeed, the 18 U.S.C. 930(g)(2) 

definition of ‘‘dangerous weapon,’’ 

which the final rule’s definition of 

‘‘dangerous weapon’’ incorporates, 

expressly excludes pocket knives with 

blades less than 21⁄2 inches long. With 

these principles in mind, as well as the 

additional clarity provided by the 

definitions of ‘‘dangerous weapon,’’ 

‘‘firearm,’’ and ‘‘explosive’’ that are 

being incorporated from existing 

Federal criminal statutes, the NRC 

expects that licensees will be able to 

comply with the reporting requirements 

associated with this rule without 

additional formal guidance. As 

explained in the next section of this 

statement of considerations, however, 

the NRC, after consulting with DOJ, will 

consider whether to adopt any 

additional guidance that is submitted by 

the regulated community to the NRC for 

review. 

As to the term ‘‘willful,’’ the NRC is 

also declining a commenter’s 

recommendation that the term be 

defined. The NRC expects that 

prosecutors and courts will define the 

term as it is usually defined when used 

in Federal criminal statutes. The U.S. 

Supreme Court has stated that, ‘‘[a]s a 

general matter, when used in the 

criminal context, a ‘willful’ act is one 

undertaken with a ‘bad purpose.’ ’’ 

Bryan v. United States, 524 U.S. 184, 

191 (1998). One common way to prove 

the existence of a ‘‘bad purpose’’ is to 

show that the defendant ‘‘acted with 

knowledge that his conduct was 

unlawful.’’ Id. at 192. This is consistent 

with one commenter’s suggestion that 

the definition of willful should refer to 

‘‘evidence of subterfuge, masking, or 

malevolent intent,’’ because such 

evidence would tend to indicate that the 

defendant knew the conduct in question 

was unlawful. Further, the easily 

readable notices posted at all vehicle 

and pedestrian entrances will help to 

ensure that all visitors are aware of the 

prohibition. 

The definition of the term 

‘‘introduce,’’ which was included in the 

proposed rule, is replaced in the final 

rule for clarification purposes with a 

new § 73.81(c)(3), which serves to 

define the entire phrase that is used in 

§ 73.81(c)(1) (i.e., ‘‘carrying, 

transporting, or otherwise introducing 

or causing to be introduced’’). The new 

§ 73.81(c)(3) removes any possible 

suggestion that the terms ‘‘carrying,’’ 

‘‘transporting,’’ and ‘‘otherwise 

introducing’’ should be analyzed 

separately, rather than as a single 

concept meant to cover any conceivable 

method of introduction. The new 

provision also more expressly accounts 

for the fact that entrance to a protected 

facility or installation might occur at a 

location that is not a traditional vehicle 

or pedestrian entrance, and which 

therefore might not be in the vicinity of 

a notice posted pursuant to § 73.75. For 

instance, a perpetrator carrying a 

prohibited item might try to enter the 

facility by breaching a fence, wall, or 

other barrier, or by some other means 

that occurs away from the vehicle and 

pedestrian entrances and any § 73.75 

notices. Under the proposed rule’s 

formulation, it could have been unclear 

in these circumstances whether or when 

an introduction has actually occurred, 

because the proposed rule relied 

entirely upon the location of the notice 

to define when an ‘‘introduction’’ 

occurs. The new § 73.81(c)(3), therefore, 

relies upon a common sense concept of 

entering a facility for those instances 

where entry does not occur at a 

traditional ‘‘entrance.’’ When entrance 

to the facility does occur at a traditional 

vehicle or pedestrian entrance, however, 

the § 73.75 notice will remain the 

boundary marker for purposes of this 

rule. 

Relationship of Rule to Licensee 

Security Procedures 

As explained in the statements of 

consideration for the proposed rule, this 

rule should not require any changes to 

licensee security procedures. Under 

§ 73.71(b)(1) and paragraph I(d) of 

appendix G to Part 73, licensees are 

required to report within one hour, 

followed by a written report within 60 

days, ‘‘the actual or attempted 

introduction of contraband into a 

protected area, material access area, 

vital area, or transport.’’ For purposes of 

the final rule, weapons, explosives, or 

other dangerous instruments or 

materials that are introduced without 

authorization would be ‘‘contraband.’’ 

Licensees should note that the purpose 

of this rule is to broaden Federal 

prosecutorial authority, not to change 

licensee security practices. 

With that said, licensees who suspect 

they have uncovered actual or 

attempted violations of this rule are 

encouraged to promptly notify local or 

Federal law enforcement authorities, 

who may provide additional guidance 

as circumstances warrant. Licensees 

may also, of course, contact the NRC for 

further guidance. The NRC does not 

currently plan to issue any additional 

guidance regarding the procedures that 

licensees should employ upon 

discovering actual or suspected 

violations or attempted violations of this 

rule. If licensees desire additional 

guidance regarding the procedural steps 

to follow after discovery of suspected or 

actual violations or attempted violations 

of this rule, the NRC is willing to review 

and consider whether to adopt any 

guidance that the regulated community 

sees fit to propose. The NRC anticipates 

that it would consult with DOJ before 

endorsing any proposed guidance. 

Finally, the NRC notes that the 

preexisting responsibilities of licensees 

to maintain the security of their 

facilities are not altered by the fact that 

this rule is now making one particular 

class of security threat—the 

unauthorized introduction into 

protected facilities of dangerous 

weapons, explosives, or other dangerous 

instruments or materials—a Federal 

crime. 

IV. Voluntary Consensus Standards 

The National Technology Transfer 

and Advancement Act of 1995, Public 

Law 104–113, requires that Federal 

agencies use technical standards that are 

developed or adopted by voluntary 

consensus standards bodies unless 

using such a standard is inconsistent 

with applicable law or is otherwise 

impractical. In this final rule, the NRC 

is establishing criminal penalties for the 

unauthorized introduction of weapons 

or explosives into or upon certain 

facilities and installations subject to the 

regulatory authority of the NRC. This 

action does not constitute the 

establishment of a standard that 


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Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52673 

contains generally applicable 

requirements. 

V. Finding of No Significant 

Environmental Impact: Environmental 

Assessment 

The NRC has determined under the 

National Environmental Policy Act of 

1969, as amended, and the NRC’s 

regulations in Subpart A of 10 CFR part 

51, that this rule is not a major Federal 

action significantly affecting the quality 

of the human environment and that, 

therefore, an environmental impact 

statement is not required. The basis for 

this determination is as follows: 

The Need for the Rule: 

This final rule is needed to implement 

§ 229 of the AEA. In § 654 of the Energy 

Policy Act of 2005, Congress amended 

§ 229 of the AEA, authorizing the NRC 

to issue regulations making it a Federal 

crime to, without authorization, 

introduce weapons or explosives into 

specified classes of facilities and 

installations subject to the regulatory 

authority of the NRC. Section 229 was 

also amended to require that each such 

regulation be posted conspicuously at 

the location involved. 

Environmental Impacts of the Rule: 

The NRC has completed its evaluation 

of the rule and concludes that it will not 

cause any significant environmental 

impact. The only action required by the 

rule is the requirement in § 73.75 that 

licensees place a notice at each entrance 

to the protected area and to any 

buildings not within a protected area 

that contain special nuclear material, 

byproduct material, or source material 

and which are required to have security 

plans under 10 CFR part 73. Licensees 

already post notices at the entrances to 

facilities, and this rule allows licensees 

to combine the notice required in 

§ 73.75 with these other notices. The 

NRC requested public comments on the 

environmental assessment included 

with the proposed rule, which likewise 

predicted that there would be no 

significant environmental impacts, but 

no comments on the topic were 

received. The final rule includes 

essentially the same posting 

requirements that were found in the 

proposed rule, with only minor 

clarifications as to which buildings and 

areas are, and are not, covered by the 

posting requirements, as well as 

additional information regarding 

permissible sign formats. Therefore, the 

NRC has concluded that there will be 

little to no environmental impact of 

creating and posting the notices 

required by this final rule. Accordingly, 

the NRC concludes that there will be no 

significant environmental impacts 

associated with this action. 

Alternatives to the Proposed Action: 

As an alternative to the proposed 

action, the NRC staff considered not 

promulgating this rule (the ‘‘no-action’’ 

alternative). This would result in 

leaving unfulfilled the congressional 

authorization the NRC had sought. 

Moreover, because implementation of 

the rule would not result in any 

significant environmental impacts, the 

no-action alternative would not 

significantly reduce environmental 

impacts. 

Accordingly, the NRC has determined 

in this environmental assessment that 

there will be no significant offsite 

impact to the public from this action. 

VI. Paperwork Reduction Act 

Statement 

This rule does not contain 

information collection requirements 

and, therefore, is not subject to the 

requirements of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). This rule does not establish any 

reporting requirements. In addition, the 

posting requirements contained in this 

rule are not included in the definition 

of information collection. This is 

because the text to be printed on the 

required notices is being completely 

supplied by NRC regulation (10 CFR 

73.75(b)(3)), and a requirement to 

publicly disclose information that was 

originally provided by the Federal 

Government does not constitute an 

‘‘information collection.’’ 5 CFR 

1320.3(c)(2). 

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. 

VII. Regulatory Analysis 

A regulatory analysis has not been 

prepared for this regulation. Congress 

authorized the NRC to implement by 

regulation § 654 of the Energy Policy 

Act of 2005, which establishes as a 

Federal crime the unauthorized 

introduction of weapons or explosives 

into NRC-designated facilities. The AEA 

requires that signs be conspicuously 

posted to warn facility entrants of the 

criminal prohibition. The only costs 

associated with implementing the rule 

are the costs to procure, post, and 

maintain these signs since procedures 

and organization required to protect 

against the unauthorized introduction of 

weapons are already required. The NRC 

estimates these costs to be $50 per sign, 

with an estimated average of six signs 

per affected facility, for an average total 

cost of $300 per facility. Based upon the 

number of facilities that would be 

covered by this rule if it were effective 

today, the NRC views $50,000 as a 

conservative industry-wide cost 

estimate. The NRC considers this cost to 

be reasonable because of the express 

congressional requirement that any 

facilities covered by regulations 

promulgated under AEA § 229a.(1) post 

such regulations ‘‘conspicuously,’’ and 

because the signs are required to be 

posted only at locations where entry 

into covered facilities would ordinarily 

occur. 

VIII. Regulatory Flexibility 

Certification 

In accordance with the Regulatory 

Flexibility Act (5 U.S.C. 605(b)), the 

NRC certifies that this rule does not 

have a significant economic impact on 

a substantial number of small entities. 

The companies that own the facilities 

affected by this rule do not fall within 

the scope of the definition of ‘‘small 

entities’’ set forth in the Regulatory 

Flexibility Act or the size standards 

established by the NRC (10 CFR 2.810). 

IX. Backfit Analysis 

The NRC has determined that a 

backfit rule, 10 CFR 50.109, 70.76, 

72.62, 76.76, does not apply to this rule 

and that a backfit analysis is not 

required. A backfit analysis is not 

required because the only actions 

required by the rule are the procuring 

and posting of signs. The conspicuous 

posting of notices is expressly required 

by § 229a.(2) of the AEA for any facility 

covered by regulations promulgated 

under § 229a.(1), and so the requirement 

to post notices does not result from an 

exercise of NRC discretion. In any event, 

the posting of notices pursuant to this 

rule does not require the modification of 

or additions to systems, structures, 

components, or design of a facility or 

the design approval or manufacturing 

license for a facility, or the procedures 

or organization required to design, 

construct, or operate a facility. 

Likewise, the criminal penalties 

established by this rule merely 

authorize Federal prosecution of certain 

crimes, and therefore do not require the 

modification of or additions to systems, 

structures, components, or design of a 

facility or the design approval or 

manufacturing license for a facility, or 

the procedures or organization required 

to design, construct, or operate a 

facility. 

X. Congressional Review Act 

In accordance with the Congressional 

Review Act (5 U.S.C. 801–808), the NRC 


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52674 Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 

has determined that this action is not a 

major rule and has verified this 

determination with the Office of 

Information and Regulatory Affairs of 

the Office of Management and Budget. 

XI. Agreement State Compatibility 

Under the ‘‘Policy Statement on 

Adequacy and Compatibility of 

Agreement State Programs’’ approved by 

the NRC on June 30, 1997, and 

published in the Federal Register on 

September 3, 1997 (62 FR 46517), this 

rule is classified as Compatibility 

Category ‘‘NRC.’’ Compatibility is not 

required for Category ‘‘NRC’’ 

regulations. The NRC program elements 

in this category are those that relate 

directly to areas of regulation reserved 

to the NRC by the AEA, or the 

provisions of Title 10 of the Code of 

Federal Regulations. Although an 

Agreement State may not adopt program 

elements reserved to NRC, it may wish 

to inform its licensees of certain 

requirements via a mechanism that is 

consistent with the particular State’s 

administrative procedure laws but does 

not confer regulatory authority on the 

State. 

List of Subjects in 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. 552 and 553, 

the NRC is adopting the following 

amendments to 10 CFR part 73. 

PART 73—PHYSICAL PROTECTION OF 

PLANTS AND MATERIALS 

■ 1. 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). 

■ 2. Section 73.75 is added to read as 

follows: 

§ 73.75 Posting. 

(a) This section applies to: 

(1) Production or utilization facilities; 

(2) High-level waste storage or 

disposal facilities and independent 

spent fuel storage installations; 

(3) Uranium enrichment, uranium 

conversion, or nuclear fuel fabrication 

facilities. 

(b)(1) Licensees or certificate holders 

operating facilities described in 

paragraph (a) of this section that have a 

protected area shall conspicuously post 

notices at every vehicle and pedestrian 

entrance to the protected area. 

(2) Licensees or certificate holders 

operating facilities described in 

paragraph (a) of this section that include 

buildings not within a protected area 

that nonetheless contain special nuclear 

material, byproduct material, or source 

material shall conspicuously post 

notices at the personnel and vehicle 

entrances to each such building, except 

with respect to buildings for which no 

security plan is required under this part. 

(3) The required notices must state: 

‘‘The willful unauthorized introduction 

of any dangerous weapon, explosive, or 

other dangerous instrument or material 

likely to produce substantial injury or 

damage to persons or property into or 

upon these premises is a Federal crime. 

(42 U.S.C. 2278a.)’’ 

(4) Every notice posted under this 

section must be easily readable day and 

night by both pedestrian and vehicular 

traffic entering the facility or 

installation. 

(5) These notices may be combined 

with other notices. 

(c) This section does not apply to 

facilities that, in addition to being 

regulated by the NRC under a license or 

certificate of compliance issued by the 

Commission, are also covered by U.S. 

Department of Energy regulations 

imposing criminal penalties, and 

associated posting requirements, under 

section 229 of the Atomic Energy Act 

with respect to unauthorized 

introduction of dangerous weapons, 

explosives, or other dangerous 

instruments or materials likely to 

produce substantial injury or damage to 

persons or property. 

■ 3. In § 73.81, paragraph (b) is revised 

and paragraph (c) is added to read as 

follows: 

§ 73.81 Criminal penalties. 

* * * * * 

(b) The regulations in part 73 that are 

not issued under sections 161b, 161i, or 

161o for the purposes of section 223 are 

as follows: §§ 73.1, 73.2, 73.3, 73.4, 73.5, 

73.6, 73.8, 73.25, 73.45, 73.75, 73.80, 

and 73.81. 

(c)(1) No person without 

authorization may carry, transport, or 

otherwise introduce or cause to be 

introduced any dangerous weapon, 

explosive, or other dangerous 

instrument or material likely to produce 

substantial injury or damage to persons 

or property into or upon a protected 

facility or installation. Willful violations 

of this provision are punishable by the 

criminal penalties set forth in sections 

229b and 229c of the Atomic Energy Act 

of 1954, as amended. 

(2) As used in this section: 

(i) ‘‘Protected facility or installation’’ 

means any production or utilization 

facility, high-level waste storage or 

disposal facility, independent spent fuel 

storage installation, uranium 

enrichment, uranium conversion, or 

nuclear fuel fabrication facility, but does 

not include those portions of such 

facilities that are not required under 

§ 73.75(b) of this part to be identified by 

notices posted at their pedestrian and 

vehicle entrances, and does not include 

facilities described in § 73.75(c) of this 

part. 

(ii) ‘‘Without authorization’’ means 

not authorized as part of one’s official 

duties to carry the weapon, explosive, or 

other instrument or material; 

(iii) ‘‘Dangerous weapon’’ includes 

any firearm, as defined in either 18 

U.S.C. 921 or 26 U.S.C. 5845, or 

dangerous weapon, as defined in 18 

U.S.C. 930; 

(iv) ‘‘Explosive’’ means any explosive 

as defined in 18 U.S.C. 844(j). 

(3) An item, such as a dangerous 

weapon, explosive, or other dangerous 

instrument or material, is considered to 

have been carried, transported, or 

otherwise introduced or caused to be 

introduced into or upon a protected 

facility or installation for purposes of 

paragraph (c)(1) of this section once the 

item has traveled past a notice posted 

pursuant to § 73.75 of this part at a 

vehicle or pedestrian entrance to the 

protected facility, or once the item has 

entered the protected facility or 

installation at a location that is not a 

vehicle or pedestrian entrance to the 

facility, whether such entry is 

accomplished through, over, under, or 

around a fence, wall, floor, roof, or other 

structural barrier enclosing the 

protected facility or installation or by 

any other means. 

(4) For all protected facilities or 

installations that do not possess special 

nuclear material, byproduct material, or 

source material as of the effective date 

of this rule, this provision shall take 

effect upon receipt of such material at 

the applicable facility or installation. 

Dated at Rockville, Maryland, this 5th day 

of October 2009. 


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Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52675 

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. E9–24566 Filed 10–13–09; 8:45 am] 

BILLING CODE 7590–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Bureau of Customs and Border 

Protection 

19 CFR Parts 4, 122, 123, and 192 

[CBP Dec. 09–39] 

Technical Correction To Remove 

Obsolete Compliance Date Provisions 

From Electronic Cargo Information 

Regulations 

AGENCY: Customs and Border Protection, 

Department of Homeland Security. 

ACTION: Final rule; technical correction. 

SUMMARY: This final rule removes the 

compliance date provisions of various 

sections of the CBP regulations 

pertaining to mandatory advance 

electronic transmission of in-bound and 

out-bound cargo information. As all the 

provisions requiring advance electronic 

transmission of cargo information are 

now in effect because the various dates 

or events described in the compliance 

date paragraphs triggering the 

compliance date have occurred, the 

compliance date paragraphs are now 

obsolete. 

DATES: The rule is effective on October 

14, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Gregory Olsavsky, Director, Cargo 

Control Division, Office of Field 

Operations, 202–344–1049. 

SUPPLEMENTARY INFORMATION: 

Background 

As circumstances warrant, CBP 

sometimes publishes a regulation (a 

final or interim final rule) that delays its 

compliance date, or the compliance date 

for one or more of its provisions, until 

a future date and/or the occurrence of 

one or more specified events. When the 

condition or conditions precedent has 

been met, the provision becomes out of 

date and obsolete. This final rule 

removes several obsolete compliance 

date provisions from several sections of 

the CBP regulations. 

Each compliance date provision being 

amended in this technical correction 

involves a final rule that was 

promulgated pursuant to section 343(a) 

of the Trade Act of 2002, as amended by 

the Maritime Security Act (19 U.S.C. 

2071 note) (hereafter, section 343(a) of 

the Act). The final rule was published 

in the Federal Register (68 FR 68140) on 

December 5, 2003. Section 343(a) of the 

Act mandates the collection of cargo 

information through a CBP-approved 

electronic data interchange system 

before cargo is brought into or departs 

from the United States by any mode of 

commercial transportation (sea, air, rail, 

truck). This requirement spawned new 

sections of the regulations (19 CFR 

122.48a, 123.91, 123.92, and 192.14) 

and required amendment of an existing 

section (19 CFR 4.7) to implement the 

law. Four of the five sections pertain to 

the advance electronic transmission 

requirement for cargo arriving in the 

United States by vessel carrier, air 

carrier, rail carrier, and truck carrier, 

and the fifth section pertains to this 

requirement for cargo departing from 

the United States onboard all modes of 

transportation. Because some carriers 

were not yet automated (with systems 

capable of electronic transmission 

through the appropriate CBP-approved 

data interchange system) or CBP had to 

upgrade its system, the new and 

amended regulations were drafted to 

contain a compliance date provision 

that delayed the date the carriers would 

be required to comply with the 

mandatory electronic transmission 

requirements. Over time, the 

compliance dates for these five sections 

of the CBP regulations have taken effect, 

rendering these provisions obsolete. 

Changes Made in This Final Rule 

This final rule amends the following 

five sections of the CBP regulations to 

remove from each an obsolete 

compliance date provision: 

19 CFR 4.7 

Under 19 CFR 4.7, applicable to 

commercial vessels transporting cargo to 

the United States, CBP must receive the 

CBP-approved electronic equivalent of 

the vessel’s cargo declaration 24 hours 

before the cargo is laden aboard the 

vessel at the foreign port (19 CFR 

4.7(b)(2)). This section also sets forth 

other requirements, such as information 

to be transmitted, and a compliance 

date. Under 19 CFR 4.7(b)(5), vessel 

carriers (and non-vessel operating 

common carriers electing to participate) 

must comply with the requirement to 

make electronic transmissions under 

paragraph (b)(2) within 90 days of 

December 5, 2003 (the date the 

implementing final rule was published) 

at all ports of entry in the United States. 

Inasmuch as the compliance date has 

passed, this final rule removes 

paragraph (b)(5) from this section and 

makes a conforming change to 

paragraph (b)(2). 

19 CFR 122.48a 

Under 19 CFR 122.48a, applicable to 

commercial air carriers transporting 

cargo to the United States, CBP must 

electronically receive from an inbound 

air carrier (or from another party 

authorized under paragraph (c)(1) of this 

section) certain information concerning 

incoming cargo. In the case of flights 

departing directly to the United States 

from any port or place in North 

America, CBP must receive the 

information no later than the aircraft’s 

departure and, for flights departing from 

any other foreign port or place, no later 

than 4 hours prior to the aircraft’s 

arrival in the United States. Section 

122.48a sets forth other requirements, 

including the information to be 

transmitted and a compliance date. 

Under 19 CFR 122.48a(e)(1), air 

carriers must comply with the 

requirement to transmit cargo 

information to CBP electronically on 

and after March 4, 2004. Under 19 CFR 

122.48a(e)(2), CBP may delay the 

compliance date set forth in paragraph 

(e)(1) of this section in certain 

circumstances (that need not be 

specified here). Under this paragraph 

(e)(2), CBP would announce any such 

delays in the Federal Register. As the 

March 4, 2004, compliance date was not 

delayed, no announcements of delay 

were published. 

Inasmuch as the compliance date for 

all air carriers has passed, this final rule 

removes paragraph (e) from this section 

and makes a conforming change to 

paragraph (a). 

19 CFR 123.91 

Under 19 CFR 123.91, applicable to 

U.S. bound railroad trains with 

commercial cargo aboard, CBP must 

electronically receive from the rail 

carrier certain information concerning 

the incoming cargo. CBP must receive 

the information no later than 2 hours 

prior to the cargo’s arrival at the first 

port of arrival in the United States (19 

CFR 123.91(a)). This section also sets 

forth other requirements, including 

exceptions, the information to be 

submitted, and a compliance date. 

Under 19 CFR 123.91(e), carriers are 

required to comply with the section’s 

electronic transmission requirements 90 

days from the date that CBP publishes 

notice in the Federal Register informing 

carriers that the electronic data 

interchange system for transmission of 

cargo information is operational at the 

affected port(s). 

On April 12, 2004, CBP published a 

notice in the Federal Register (69 FR 

19207) providing a schedule of dates by 

which the electronic data interchange 


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