Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Proposed Rules 62695 

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, 

or 301–415–4737, or by e-mail to 

PDR.Resource@nrc.gov. The draft Part 

37 implementation guidance is available 

electronically under ADAMS Accession 

Number ML101470684. 

Federal Rulemaking Web site: Public 

comments and supporting materials 

related to the implementation guidance, 

including the draft implementation 

guidance, can be found at http:// 

www.regulations.gov by searching on 

Docket ID NRC–2010–0194. Documents 

related to the proposed rule can be 

found by searching on Docket ID NRC 

2008–0120. 

Discussion 

The NRC published a proposed rule 

that would place the security 

requirements for use of Category 1 and 

Category 2 quantities of radioactive 

material into a new Part 37 of Title 10 

of the Code of Federal Regulations. The 

proposed rule was published on June 

15, 2010 (75 FR 33902) and the public 

comment period runs through October 

13, 2010. The public comment period 

for the proposed rule is being extended 

to January 18, 2011, by separate notice. 

Documents related to the proposed rule 

can be found at http:// 

www.regulations.gov by searching on 

Docket ID NRC 2008–0120. 

In conjunction with the proposed 

rule, the NRC has developed 

implementation guidance. The 

implementation document provides 

guidance to a licensee or applicant for 

implementation of proposed 10 CFR 

Part 37, ‘‘Physical Protection of 

Byproduct Material,’’ specifically 

Category 1 and Category 2 quantities of 

radioactive material. It is intended for 

use by applicants, licensees, Agreement 

States, and NRC staff. The document 

describes methods acceptable to the 

NRC staff for implementing proposed 10 

CFR Part 37. The approaches and 

methods described in the document are 

provided for information only. Methods 

and solutions different from those 

described in the document are 

acceptable if they meet the requirements 

in proposed 10 CFR Part 37. The 

guidance is provided in the form of 

questions and answers on the provisions 

of the proposed rule. The draft 

implementation guidance document for 

proposed 10 CFR Part 37 is available 

electronically under ADAMS Accession 

Number ML101470684, and can also be 

found at http://www.regulations.gov by 

searching on Docket ID: NRC–2010– 

0194. 

On July 14, 2010 (75 FR 40756), the 

NRC noticed the availability of the 

implementation guidance for public 

comment. The public comment period 

for this guidance was to have expired on 

November 12, 2010. The NRC received 

several requests to extend the comment 

period to January 15, 2011. Due to the 

size and complexity of the draft 

implementation guidance and the 

associated proposed rule, the NRC has 

decided to extend the comment period 

until January 18, 2011. 

Dated at Rockville, Maryland, this 29th day 

of September 2010. 

For the Nuclear Regulatory Commission. 

Mark Thaggard, 

Deputy Director, Division of 

Intergovernmental Liaison and Rulemaking, 

Office of Federal and State Materials and 

Environmental Management Programs. 

[FR Doc. 2010–25784 Filed 10–12–10; 8:45 am] 

BILLING CODE 7590–01–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 73 

RIN 3150–AI64 

[NRC–2009–0163] 

Physical Protection of Irradiated 

Reactor Fuel in Transit 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC) is proposing to 

amend its security regulations 

pertaining to the transport of irradiated 

reactor fuel (for purposes of this 

rulemaking, the terms ‘‘irradiated reactor 

fuel’’ and ‘‘spent nuclear fuel’’ (SNF) are 

used interchangeably). This proposed 

rule would establish generically 

applicable security requirements similar 

to those previously imposed by 

Commission orders issued after the 

terrorist attacks of September 11, 2001. 

The proposed rule would establish the 

acceptable performance standards and 

objectives for the protection of spent 

nuclear fuel shipments from theft, 

diversion, or radiological sabotage. The 

proposed amendments would apply to 

those licensees authorized to possess or 

transport spent nuclear fuel. The 

proposed security requirements would 

also address, in part, a petition for 

rulemaking from the State of Nevada 

(PRM–73–10) that requests that NRC 

strengthen the regulations governing the 

security of spent nuclear fuel shipments 

against malevolent acts. 

DATES: The comment period expires 

January 11, 2011. Submit comments 

specific to the information collection 

aspects of this rule by November 12, 

2010. Comments received after this date 

will be considered if practical to do so, 

but the NRC is able to assure 

consideration only for comments 

received on or before this date. 

ADDRESSES: Please include Docket ID: 

NRC–2009–0163 in the subject line of 

your comments. For instructions on 

submitting comments and accessing 

documents related to this action, see 

Section I, ‘‘Submitting Comments and 

Accessing Information’’ in the 

SUPPLEMENTARY INFORMATION section of 

this document. You may submit 

comments by any one of the following 

methods. 

Federal Rulemaking Web site: Go to 

http://www.regulations.gov and search 

for documents filed under Docket ID: 

NRC–2009–0163. Address questions 

about the NRC dockets to Carol 

Gallagher 301–492–3668; e-mail 

Carol.Gallager@nrc.gov. 

Mail comments to: Secretary, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, ATTN: 

Rulemakings and Adjudications Staff. 

E-mail comments to: 

Rulemaking.Comments@nrc.gov. If you 

do not receive a reply e-mail confirming 

that we have received your comments, 

contact us directly at (301) 415–1966. 

Hand deliver comments to: 11555 

Rockville Pike, Rockville, Maryland 

20852, between 7:30 a.m. and 4:15 p.m. 

during Federal workdays. (Telephone 

301–415–1966) 

Fax comments to: Secretary, U.S. 

Nuclear Regulatory Commission at 301– 

415–1101. 

FOR FURTHER INFORMATION CONTACT: 

Cardelia Maupin, Office of Federal and 

State Materials and Environmental 

Management Programs, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001, Telephone 301–415– 

2312, e-mail: Cardelia.Maupin@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Submitting Comments and Accessing 

Information 

II. Background 

III. Discussion 

A. What action is the NRC taking in this 

rule? 

B. Why revise the requirements? 

C. What is requested by the State of Nevada 

in its petition for rulemaking (PRM–73– 

10)? 

D. What are the DOT routing requirements 

for spent nuclear fuel shipments? 

E. What are the NRC routing requirements 

for spent nuclear fuel shipments? 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
62696 Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Proposed Rules 

F. Why do the NRC and DOT routing 

requirements differ for spent nuclear fuel 

shipments? 

G. Why require procedures and training for 

the security of spent nuclear fuel in 

transit? 

H. Why require a telemetric position 

monitoring system or an alternative 

tracking system for continuous 

monitoring of spent nuclear fuel 

shipments? 

I. Why pre-plan and coordinate spent 

nuclear fuel shipments? 

J. Why require constant visual surveillance 

by armed escort? 

K. Why require two-way redundant 

communication capabilities? 

L. Why require background investigations? 

M. Why enhance shipment notifications to 

NRC? 

N. Which type of spent nuclear fuel does 

DOE ship? 

O. What is a non-classified shipment of 

spent nuclear fuel and what are the DOE 

requirements for this type of shipment? 

P. How are the NRC and DOE requirements 

similar and how are they different? 

Q. Who would this action affect? 

R. Does NRC plan to issue guidance on 

these proposed requirements? 

S. What should I consider as I prepare my 

comments to NRC? 

IV. Discussion of the Proposed Amendments 

by Section 

V. Criminal Penalties 

VI. Agreement State Compatibility 

VII. Plain Language 

VIII. Voluntary Consensus Standards 

IX. Finding of No Significant Environmental 

Impact: Availability 

X. Paperwork Reduction Act Statement 

XI. Public Protection Notification 

XII. Regulatory Analysis 

XIII. Regulatory Flexibility Certification 

XIV. Backfit Analysis 

I. Submitting Comments and Accessing 

Information 

Comments submitted in writing or in 

electronic form will be posted on the 

NRC Web site and on the Federal 

rulemaking Web site http:// 

www.regulations.gov. Because your 

comments will not be edited to remove 

any identifying or contact information, 

the NRC cautions you against including 

any information in your submission that 

you do not want to be publicly 

disclosed. The NRC requests that any 

party soliciting or aggregating comments 

received from other persons for 

submission to the NRC inform those 

persons that the NRC will not edit their 

comments to remove any identifying or 

contact information, and therefore, they 

should not include any information in 

their comments that they do not want 

publicly disclosed. 

You can access publicly available 

documents related to this document 

using the following methods: 

NRC’s Public Document Room (PDR): 

The public may examine and have 

copied for a fee publicly available 

documents at the NRC’s PDR, Room 

O–1 F21, One White Flint North, 11555 

Rockville Pike, Rockville, Maryland. 

NRC’s Agencywide Document Access 

and Management System (ADAMS): 

Publicly available documents created or 

received at NRC are available 

electronically at the NRC’s Electronic 

Reading Room at 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 

the NRC’s public documents. If you do 

not have access to ADAMS or if there 

are problems in accessing the 

documents located in ADAMS, contact 

the NRC’s PDR reference staff at 1–800– 

397–4209, or 301–415–4737, or by 

e-mail to PDR Resource. 

Federal Rulemaking Web site: Public 

comments and supporting materials 

related to this proposed rule can be 

found at http://www.regulations.gov by 

searching on Docket ID: NRC–2009– 

0163. 

Document PDR ADAMS Web 

Environmental Assessment ................................................. X ML092710448 .................................................................... X 

Regulatory Analysis ............................................................ X ML102710278 .................................................................... X 

PRM–73–10 ........................................................................ X ML092540603 .................................................................... X 

II. Background 

A. Pre-September 11, 2001 

On June 15, 1979 (44 FR 34466), NRC 

published an interim final rule in the 

Federal Register that established its first 

requirements for the physical protection 

of spent nuclear fuel in transit. The 

interim final rule added 10 CFR 73.37, 

‘‘Requirements for Physical Protection of 

Irradiated Reactor Fuel in Transit’’ to 10 

CFR part 73. After considering public 

comments, the Commission affirmed the 

interim final rule on June 3, 1980 (45 FR 

37399). 

The current § 73.37 has changed little 

since its promulgation in 1980. These 

regulations require licensees to establish 

a physical protection system for spent 

nuclear fuel shipments that meets the 

following objectives: (1) Minimize the 

possibilities for radiological sabotage of 

spent nuclear fuel shipments, especially 

within heavily populated areas, and (2) 

facilitate the location and recovery of 

spent nuclear fuel shipments that may 

have come under the control of 

unauthorized persons. The regulation 

also provides for: (1) The early detection 

and assessment of attempts to gain 

unauthorized access to or control over 

spent nuclear fuel shipments, (2) the 

notification to the appropriate response 

forces of any sabotage events, and (3) 

the impeding of attempts at radiological 

sabotage of spent nuclear fuel shipments 

in heavily populated areas or attempts 

to illicitly move such shipments into 

heavily populated areas. 

Other NRC regulations support the 

protection of spent nuclear fuel in 

transit. The regulations in § 73.72, 

‘‘Requirement for Advance Notice of 

Shipment of Formula Quantities of 

Strategic Special Nuclear Material, 

Special Nuclear Material of Moderate 

Strategic Significance, or Irradiated 

Reactor Fuel’’ require licensees to notify 

NRC in advance about shipments of 

spent nuclear fuel. The regulations in 

10 CFR part 71, ‘‘Packaging and 

Transportation of Radioactive Material,’’ 

establish requirements for packages 

used to transport spent nuclear fuel. 

This proposed rule would consider 

and address, in part, a petition for 

rulemaking submitted by the State of 

Nevada. By a letter dated June 22, 1999, 

the State of Nevada submitted a petition 

for rulemaking requesting that NRC 

strengthen its regulations governing the 

security of spent nuclear fuel shipments 

against malevolent acts. The NRC 

docketed the petition on July 13, 1999, 

as Docket No. PRM–73–10 (PRM–73– 

10). The NRC published a notice of 

receipt of petition and a request for 

public comment on September 13, 1999 

(64 FR 49410). The Commission review 

of this petition was tabled following the 

terrorist attacks of September 11, 2001. 

The petition was denied, in part, by the 

NRC on December 7, 2009 (74 FR 

64012). This proposed rulemaking 

would consider and address the 

remaining requests for the NRC 

rulemaking made in PRM–73–10. 

B. Post-September 11, 2001 

Although the current § 73.37 has 

changed little since its promulgation in 

1980, there have been significant 

changes in the threat environment. The 

terrorist attacks of September 11, 2001, 

heightened concerns about the use of 

risk-significant radioactive materials in 

a malevolent act. After the terrorist 


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attacks of September 11, 2001, the NRC 

issued a series of security-related orders 

to specific licensees. In the area of spent 

nuclear fuel transit security, the orders 

were issued to licensees who shipped or 

received, or were planning to ship or 

receive, spent nuclear fuel. The orders 

were issued as immediately effective 

under the NRC’s authority to protect the 

common defense and security under the 

Atomic Energy Act of 1954, as amended 

(AEA). The requirements established by 

the orders supplement the existing 

regulatory requirements. These 

additional security requirements are 

primarily intended to ensure that spent 

nuclear fuel is shipped in a manner that 

protects the common defense and 

security, and the public health and 

safety. 

C. Current Regulatory Framework 

About two thousand NRC regulated 

shipments of spent nuclear fuel have 

been made throughout the United States 

since the 1970s. The primary objective 

of these shipments has been to move 

spent nuclear fuel to interim storage. 

These spent fuel shipments are 

generally divided into two categories: 

commercial shipments or DOE managed 

spent nuclear fuel shipments. 

Commercial spent nuclear fuel 

shipments are from the NRC-licensed 

facilities such as commercial nuclear 

power reactors, research and test 

reactors, and facilities for nondestructive testing and analysis of spent 

nuclear fuel. The DOE-managed 

shipments involve shipments to DOE 

owned interim spent nuclear fuel 

storage facilities. 

The safe and secure shipment of spent 

nuclear fuel requires coordination and 

collaboration between various Federal, 

State, Tribal and local government 

agencies. These organizations work 

together to create an orderly pattern for 

shipments of spent nuclear fuel. 

1. What is the role of NRC in spent 

nuclear fuel transit? Generally, the NRC 

regulates the design and construction of 

spent nuclear fuel shipping containers 

for domestic and foreign packages used 

to transport spent nuclear fuel solely 

within the United States. Although DOT 

is the lead government agency 

responsible for the approval of export 

and import packages, it relies on the 

NRC’s evaluation as the basis for 

approval of these packages. In addition, 

NRC regulates the physical protection of 

commercial spent nuclear fuel in transit 

against sabotage or other malicious acts, 

which is recognized in the DOT routing 

regulations in 49 CFR 397.101. The NRC 

requirements in 10 CFR Part 73 are 

applied to shipments of spent nuclear 

fuel from the NRC licensees. 

2. What is the role of DOT in spent 

nuclear fuel transit? The DOT regulates 

the transportation of hazardous 

materials, including spent nuclear fuel 

in interstate and intrastate commerce. 

Generally, DOT regulates in 

consultation with NRC the carriers of 

spent nuclear fuel and the conditions of 

transport, such as routing, handling and 

storage incident to transport, and 

vehicle and driver requirements. The 

DOT also regulates the labeling, 

classification, and marking of all spent 

nuclear fuel packages and transport 

vehicles. 

3. What is the role of DOE? For over 

50 years, DOE has transported spent 

nuclear fuel to interim storage facilities. 

These spent nuclear fuel shipments 

have originated from the following: (1) 

Foreign research reactors; (2) DOEowned research and defense reactors, 

and (3) nuclear powered U.S. Navy 

ships. In addition, on a few rare 

occasions, the DOE has accepted some 

spent nuclear fuel from commercial 

nuclear power plants, e.g., Three Mile 

Island Unit 2, for storage at its facilities. 

The DOE managed shipments of spent 

nuclear fuel, unless designated as a 

national security shipment, are 

conducted under requirements 

equivalent to those of DOT and NRC. 

The DOE complies with the DOT 

highway section criteria and carrier 

safety provisions. The DOE spent 

nuclear fuel packages are required to 

meet the NRC design and performance 

criteria in 10 CFR part 71, which is also 

stated in the DOT regulations in 49 CFR 

173.7(d). Spent nuclear fuel shipments 

made by DOE or the DOE contractors are 

not subject to the NRC physical 

protection requirements because DOE is 

not a NRC licensee. DOE’s policy, 

however, is that DOE managed spent 

nuclear fuel shipments meet or exceed 

NRC physical protection requirements. 

4. What is the role of State, local, and 

Tribal governments? State, local and 

Tribal governments play an important 

role in the safe and secure transport of 

spent nuclear fuel. They assist in route 

planning and, for many shipments, 

provide armed escorts. They enforce the 

DOT highway safety regulations, 

including the performance of shipment 

inspections. State, local, and Tribal 

governments are also responsible for 

providing the first line of government 

response to accidents and incidents 

within their jurisdiction. 

III. Discussion 

A. What action is NRC taking in this 

rule? 

The NRC is proposing amendments to 

its regulations to enhance the security 

requirements that apply to the 

transportation of spent nuclear fuel. 

This proposed rulemaking would 

establish generically applicable security 

requirements similar to those previously 

imposed by Commission orders issued 

after the terrorist attacks of September 

11, 2001. The proposed rulemaking 

would also add several new 

requirements not derived directly from 

the security order requirements, but 

developed as a result of insights gained 

by performing security assessments of 

potential security vulnerabilities 

associated with spent nuclear fuel in 

transit. Also, the proposed rulemaking 

would address, in part, the requests for 

the NRC rulemaking raised by PRM–73– 

10. 

The proposed requirements would 

establish acceptable performance 

objectives for the protection of spent 

nuclear fuel in transit from sabotage, 

theft, or diversion for malevolent use. 

These requirements would ensure that 

spent nuclear fuel is shipped in a 

manner that protects the common 

defense and security, and public health 

and safety. 

B. Why revise the requirements? 

After the attacks of September 11, 

2001, NRC re-evaluated its security 

requirements for spent nuclear fuel in 

transit. From this effort, additional 

measures were identified that would 

improve security. The additional 

security measures deemed immediately 

necessary were issued as orders and 

supplemented existing regulations. The 

orders are not publically available, 

because they contain detailed security 

requirements that are designated as 

Safeguards Information (SGI). The 

proposed revisions are based on the 

NRC efforts undertaken since the events 

of September 11, 2001, including 

issuance of additional security 

requirements by orders, insights gained 

from implementation of the orders, and 

insights gained by performing security 

assessments of potential security 

vulnerabilities associated with spent 

nuclear fuel transportation. The 

proposed revisions also reflect portions 

of the State of Nevada’s Petition for 

Rulemaking (PRM–73–10). The NRC 

intends to rescind the security orders 

provided the final rule adequately 

addresses the security requirements set 

forth in those orders. Rescission will be 

addressed in the notice of final 

rulemaking. 

C. What is requested by the State of 

Nevada in its petition for rulemaking 

(PRM–73–10)? 

By a letter dated June 22, 1999, the 

State of Nevada submitted a rulemaking 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
62698 Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Proposed Rules 

petition (docketed as PRM–73–10) 

requesting that NRC initiates 

rulemaking to strengthen its regulations 

for the physical protection of spent 

nuclear fuel shipments against 

radiological sabotage and terrorist acts. 

The NRC published a notice of receipt 

of petition and a request for public 

comment on September 13, 1999 (64 FR 

49410). The Commission review of this 

petition was tabled following the 

terrorist attacks of September 11, 2001. 

In PRM–73–10, Nevada requested that 

NRC: (1) Clarify the meaning of the term 

‘‘hand-carried equipment’’ in 10 CFR 

73.1(a)(1)(i)(D); (2) clarify the definition 

of the term ‘‘radiological sabotage’’ in 10 

CFR 73.2 to include actions against 

spent nuclear fuel shipments which are 

intended to cause a loss of shielding, 

release of radioactive materials or cause 

economic damage or social disruption, 

regardless of the success or failure of the 

action; (3) amend the advance route 

approval requirements in 10 CFR 

73.37(b)(1)(vi) to require shippers and 

carriers of spent nuclear fuel to identify 

primary and alternative routes which 

avoid heavily populated areas; (4) 

require armed escorts along the entire 

road shipment route by eliminating the 

differential based on population in 10 

CFR 73.37(c); (5) require armed escorts 

along the entire rail shipment route by 

eliminating the differential based on 

population in 10 CFR 73.37(d); (6) 

amend 10 CFR 73.37(b) by adopting 

additional planning and scheduling 

requirements for spent nuclear fuel 

shipments that are the same as those 

required for formula quantities of 

special nuclear material by 10 CFR 

73.26(b); (7) amend 10 CFR 73.37(d) to 

require that rail shipments of spent 

nuclear fuel be made in dedicated 

trains; and (8) conduct a comprehensive 

assessment of the consequences of 

terrorist attacks that have the capability 

of radiological sabotage. 

In this proposed rulemaking, the NRC 

will consider the above items raised in 

PRM–73–10, except for the first and 

eighth items, namely, clarification of the 

meaning of the term ‘‘hand-carried 

equipment’’ and the conducting of a 

comprehensive assessment of the 

consequences of terrorist attacks that 

have the capability of radiological 

sabotage. Rulemaking on the first and 

eighth items of PRM–73–10 was denied 

by the NRC on December 7, 2009 (74 FR 

64012). The remaining items are 

addressed below: 

PRM–73–10, Item 2: Clarify the 

definition of the term ‘‘radiological 

sabotage’’ in § 73.2, ‘‘Definitions,’’ and 

amend it to expressly include 

‘‘deliberate actions which cause, or are 

intended to cause economic damage or 

social disruption regardless of the extent 

to which public health and safety are 

actually endangered by exposure to 

radiation.’’ 

The NRC considers that the existing 

definition already encompasses actions 

of the type described by the Petitioner. 

However, NRC agrees that clarification 

may be useful. The NRC is addressing 

this petition item by clarifying the 

definition of radiological sabotage in the 

supporting guidance document 

associated with the proposed rule. 

PRM–73–10, Item 3: Amend the 

advance route approval requirements in 

10 CFR 73.37(b)(7) to ‘‘specifically 

require shippers and carriers to identify 

primary and alternative routes which 

minimize highway and rail shipments 

through heavily populated areas.’’ Also, 

as part of this request, PRM–73–10 

stated that NRC should consider 

adopting the route selection criteria in 

NUREG–0561, Physical Protection of 

Shipments of Irradiated Reactor Fuel in 

Transit, as part of the regulations, and 

specifically require shippers and 

carriers to minimize use of routes which 

fail to comply with the route selection 

criteria. 

The NRC considered incorporating 

the route selection criteria of NUREG– 

0561 into the proposed rule, but 

determined that implementing such 

criteria may cause conflicts with the 

DOT requirements. Sections D through 

F below provide additional information 

about the differences between DOT and 

NRC routing criteria. The PRM–73–10 

request for the adoption of routing 

criteria from NUREG–0561 was 

considered by the NRC and determined 

to be not appropriate. 

The PRM–73–10 also requested that 

NRC amend its regulations to minimize 

highway and rail shipments through 

heavily populated areas. The NRC is 

addressing the goal of minimizing spent 

nuclear fuel shipments through heavily 

populated areas in the proposed 

rulemaking. The proposed revisions to 

10 CFR 73.37 would require licensees to 

preplan and coordinate their shipments 

with the affected States. This issue is 

discussed below under ‘‘Why Require 

Shipment Preplanning and 

Coordination with States?’’ Combining 

the NRC proposed requirements, which 

include State involvement in licensees’ 

planning activities, with the 

requirements of DOT is expected to 

minimize movement of spent nuclear 

fuel through heavily populated areas. 

PRM–73–10, Items 4 and 5: The 

current regulations, § 73.37(c) and (d), 

for road and rail shipments, 

respectively, require armed escorts in 

heavily populated areas, but not in other 

areas along the route. PRM–73–10 

requested that NRC eliminate these 

differential armed escort requirements 

based upon population for both road 

and rail spent nuclear fuel shipments. 

Proposed §§ 73.37(c) and (d) include 

these PRM–73–10 requests. The 

differentiation of security requirements 

based upon population causes potential 

areas of vulnerability along the 

shipment route for theft, diversion, or 

radiological sabotage. The proposed rule 

would require that the same security 

requirements for heavily populated 

areas apply along the entire route for 

road and rail shipments, and at any U.S. 

ports where vessels carrying spent fuel 

shipments are scheduled to stop. 

PRM–73–10, Item 6: Amend § 73.37(b) 

by adopting additional planning and 

scheduling requirements for spent 

nuclear fuel shipments that are the same 

as those required for formula quantities 

of special nuclear material by § 73.26(b). 

The regulations in § 73.26(b) require 

that shipments be scheduled to avoid 

delays and stops, and to ensure timely 

delivery of the shipment. 

The NRC agrees that improvements 

are needed in the planning and 

coordination of shipments and has 

addressed this concern in the proposed 

amendment. This issue is discussed 

below under ‘‘Why Require Shipment 

Preplanning and Coordination with 

States?’’ 

PRM–73–10, Item 7: Amend § 73.37(d) 

to require that all spent nuclear fuel rail 

shipments be made in dedicated trains. 

The same NRC security requirements 

would apply to a spent nuclear fuel rail 

shipment, regardless of whether the 

shipment was made using a dedicated 

train or a mixed-use train. In either case, 

the licensee making the shipment would 

be required to ensure that the security 

protection measures (both hardware and 

personnel) required by the NRC’s 

regulations would be present to provide 

the requisite high assurance of 

protection of public health and safety 

and the common defense and security 

during the entire duration of the 

shipment. The NRC considers the same 

level of security will be obtained 

regardless of whether the shipment is 

made in a dedicated train or mixed-use 

train. Thus, this item is not addressed 

as a part of the proposed rule. 

The NRC invites comments on its 

proposed disposition of items 2 through 

7 of PRM–73–10 as part of its 

consideration of this proposed rule. 

Comments should be sent to the address 

listed under the ADDRESSES heading of 

this document. The PRM–73–10 is 

available at ADAMS Accession Number: 

ML092540603 and the NRC’s September 

13, 1999, notice of receipt of petition 

and request for public comments (64 FR 


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49410) is available on the Federal 

Register’s Web site, http://www.

gpoaccess.gov/fr/index.html. 

D. What are the DOT routing 

requirements for spent nuclear fuel 

shipments? 

The DOT has various terms to define 

and categorize radioactive material 

within the Title 49 of the Code of 

Federal Regulations. Within their 

definitions, DOT includes a category for 

highway route controlled quantity 

(HRCQ) which is defined as a quantity 

of radioactive material within a single 

package that exceeds: (a) 3,000 times the 

A1 value of the radionuclides for special 

form material or 3,000 times the A2

values of the radionuclides for normal 

form material; or (b) 1,000 TBq (27,000 

curies), whichever is less. The HRCQ 

shipments can be made by all modes of 

transport. Spent nuclear fuel shipments 

fall under the DOT’s definition of 

HRCQ. 

For shipments by road, the DOT 

requirements for routing radioactive 

material are found in 49 CFR Parts 172 

(Subpart I—Safety and Security Plans) 

and 397 (Subpart D—Routing of Class 7 

(Radioactive) Materials). The DOT 

highway routing requires carriers to (1) 

Ensure routes are chosen based on 

minimizing radiological risk; (2) 

consider available information on 

accident rates, transit time, population 

density and activities, and the time of 

the day and the day of the week during 

which transportation will occur to 

determine the level of radiological risk; 

and (3) instruct the driver about the 

route and the hazards of the shipment. 

Furthermore, under the DOT 

requirements, HRCQ are transported 

only over preferred routes (i.e., the 

Interstate Highway System, an 

alternative route designated by a State 

routing agency, or both), or an Interstate 

Highway System bypass or beltway 

around a city when available, unless a 

State routing agency has designated an 

alternative route. Routes can only be 

designated after substantive 

consultation with affected local 

jurisdictions and with any other affected 

States to ensure consideration of all 

impacts and continuity of affected 

routes. A written route plan is to be 

prepared by the carrier and provided to 

drivers and shippers. 

The DOT allows motor carriers and 

drivers some deviation from the 

preferred route when picking up or 

delivering material, making necessary 

rest, fuel or motor vehicle repair stops, 

or because emergency conditions make 

continued use of the preferred route 

unsafe or impossible. In addition, a 

person may transport irradiated reactor 

fuel only in compliance with a plan that 

will ensure the physical security of the 

material. The DOT permits variation for 

security purposes from the routing 

requirements of 49 CFR 397.101 only so 

far as necessary to meet the 

requirements imposed under such a 

plan, or otherwise imposed by NRC in 

10 CFR Part 73. 

For shipments by rail, the DOT 

requirements for routing radioactive 

material are found within 49 CFR parts 

172, 174 and 209. The DOT requires rail 

carriers to compile annual data on 

certain shipments of hazardous 

materials, including HRCQ. The data is 

used to analyze safety and security risks 

along rail routes where those materials 

are transported; assess alternative 

routing options; and make routing 

decisions based on those assessments. 

Rail carriers must assess the available 

routes ensuring, at a minimum, that 27 

specific factors are considered. These 27 

factors include, but are not limited to, 

consideration of rail traffic density, 

transit times, number and types of grade 

crossings, proximity to iconic targets, 

population densities and venues along 

the route. 

Rail carriers must also seek relevant 

information from State, local, and Tribal 

officials, as appropriate, regarding 

security risks to high-consequence 

targets along or in proximity to a route 

used by a rail carrier to transport 

security-sensitive materials. Oversight is 

provided by the DOT Federal Railroad 

Administration (FRA), which includes 

review and inspection of rail carrier’s 

risk analyses and route selection, but 

FRA does not pre-approve rail routes. If 

FRA determines that a carrier’s route 

selection documentation and underlying 

analyses are deficient, the carrier may 

be required to revise the analyses or 

make changes in the route selection. In 

addition, if it is determined by DOT that 

a particular route chosen by the railroad 

is not the safest and most secure 

practicable route available, FRA can 

require the use of an alternative route 

until such time as the identified 

deficiencies for the originally chosen 

route are corrected by the railroad. 

E. What are the NRC routing 

requirements for spent nuclear fuel 

shipments? 

For spent fuel in quantities greater 

than 100 grams and exceeding 1 Sv (100 

rems) per hour at a distance of 0.91 

meters (3 feet) from any accessible 

surface without intervening shielding, 

licensees are required to transport such 

spent nuclear fuel along routes that have 

been pre-approved by NRC. 

Furthermore, the proposed rule text of 

§ 73.37(b)(1) requires licensees to 

preplan and coordinate their routes with 

the States, including identification of 

safe havens. 

The proposed rule does not include 

specific routing criteria for licensees to 

use when developing routes. However, 

the objective of § 73.37 is to minimize 

the potential for theft, diversion, or 

radiological sabotage for shipments of 

spent nuclear fuel. Licenses are 

expected to develop routes by 

considering criteria including, but not 

limited to: the DOT routing criteria, 

minimizing transit time, likelihood of 

swift response by local law 

enforcement, availability of safe havens 

(for road shipments), avoidance of 

tactically disadvantageous positions, 

availability of appropriate rest and 

refueling stops (for road shipments), and 

availability of good transportation safety 

features. When selecting a route by road, 

licensees are also expected to conduct 

surveys of the proposed route. The 

objective of these surveys is to locate 

safe havens, evaluate communications 

capability along the route, develop local 

law enforcement contacts, identify food 

and fuel stops for the carrier, and 

identify potential driving problems 

along the route. 

Once a spent nuclear fuel shipment 

route request is received, the NRC 

reviews it closely. The NRC conducts a 

detailed review, considering route 

length and minimizing transit time, 

local law enforcement and emergency 

response contact information, adequacy 

of safe haven locations, and 

communications capability along the 

route. NUREG–0561, ‘‘Physical 

Protection of Shipments of Irradiated 

Reactor Fuel’’ provides guidance to 

licensees seeking the NRC-approval of a 

spent nuclear fuel shipping route. 

F. Why do the NRC and DOT routing 

requirements differ for spent nuclear 

fuel shipments? 

The objective of § 73.37 is to 

minimize the potential for theft, 

diversion or radiological sabotage of 

spent nuclear fuel shipments; facilitate 

the location and recovery of spent fuel 

shipments that may have come under 

the control of unauthorized persons; 

and delay and impede attempts at theft, 

diversion or radiological sabotage of 

spent nuclear fuel shipments until 

response forces arrive. With this in 

mind, NRC expects licensees to route 

shipments according to the DOT 

requirements, and to consider the 

adequacy of the route to meet the 

objectives of § 73.37. This includes 

considering the availability and 

adequacy of safe havens along the route 

and the communications capabilities 

among the transport vehicle, escort 


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vehicle, communications center, and 

local law enforcement agencies (LLEAs) 

for the entire route. 

The DOT HRCQ routing regulations 

for road shipments are based on 

minimizing radiological risk to the 

public (49 CFR 397). The HRCQ are to 

be transported over preferred routes 

which are described in more detail in 

question D above. Carriers are permitted 

to deviate from preferred routes for 

certain conditions including, but not 

limited to: security reasons (e.g., as 

imposed by NRC in 10 CFR Part 73) and 

emergencies. The DOT rail routing 

requirements for HRCQ require carriers 

to consider both safety and security of 

the public when selecting a route (49 

CFR 172 and 209). The DOT requires 

rail carriers to select routes based on the 

criteria described above in question D. 

Rail carriers must assess the available 

routes using, at a minimum, 27 factors 

that address both safety and security of 

the transport. 

As long as there is coordination 

among the licensee, the commercial 

carrier and the States of passage, NRC 

determined that spent nuclear fuel 

shipment primary and alternate routes 

for highway and rail can be developed 

that satisfy both the DOT and NRC 

requirements and guidelines. The NRC 

invites comments on the challenges of 

selecting routes for spent nuclear fuel 

that meets both the DOT and NRC 

requirements and guidance. 

G. Why require procedures and training 

for the security of spent nuclear fuel in 

transit? 

The proposed §§ 73.37(b)(3)(v) and 

(b)(4) would expressly require that 

licensees shipping spent nuclear fuel 

develop normal and contingency 

procedures. These procedures would 

cover notifications; communication 

protocols; loss of communication; and 

responses to actual, attempted, or 

suspicious activities. The proposed 

revisions would also require drivers, 

accompanying personnel, railroad 

personnel, and other movement control 

personnel to be adequately trained in 

normal and contingency procedures. 

These proposed requirements would 

ensure that all personnel associated 

with the shipment are prepared to 

prevent the theft, diversion, or 

radiological sabotage of spent nuclear 

fuel shipments. The proposed revisions 

would address, in part, PRM–73–10 

items (3) and (6). 

H. Why require a telemetric position 

monitoring system or an alternative 

tracking system for continuous 

monitoring of spent nuclear fuel 

shipments? 

The current rule, at § 73.37(b)(4), 

requires that the licensee’s physical 

protection plan include a 

communications center, which will be 

staffed continuously by at least one 

individual who will monitor the 

progress of the spent fuel shipment. The 

proposed rule would reflect the 

availability of new technology and as 

such, the ability to have more active 

control over the shipment by the 

licensee. The proposed § 73.37(b)(3)(i) 

would replace the term 

‘‘communications center’’ with the term 

‘‘movement control center.’’ The 

proposed § 73.37(b)(3)(ii) would also 

require that the movement control 

center be staffed continuously by at 

least one individual, who will actively 

monitor the progress of the spent 

nuclear fuel shipment and who has the 

authority to direct the physical 

protection activities. The proposed 

§ 73.37(b)(3)(iii) would specify that the 

movement control center must monitor 

the shipment continuously, i.e., from 

the time of delivery of the shipment to 

the carrier for transport until safe 

delivery of the shipment at its final 

destination, and must immediately 

notify the appropriate agencies in the 

event of a safeguards event under the 

provisions of § 10 CFR 73.71. 

In addition, the proposed 

§§ 73.37(c)(5) and 73.37(d)(4), for road 

and rail shipments respectively, would 

require movement control centers to use 

a telemetric position monitoring system 

or an alternative tracking system to 

monitor the location and status of 

shipments at all times, which would 

provide a real time indication of any 

potential threats. A telemetric position 

monitoring system is a data transfer 

system that captures information by 

instrumentation and/or measuring 

devices about the location and status of 

a transport vehicle or package between 

the departure and destination locations. 

The gathering of this information 

permits remote monitoring and 

reporting of the location of a transport 

vehicle or package. Global positioning 

systems (GPS) and radiofrequency 

identification (RFID) are examples of 

telemetric position monitoring systems. 

Since the movement control center is 

required to respond to any actual, 

attempted, or suspicious activities, the 

proposed requirements would mitigate 

the likelihood of theft, diversion, or 

radiological sabotage of spent nuclear 

fuel shipments. 

I. Why pre-plan and coordinate spent 

nuclear fuel shipments? 

The current regulations require 

limited shipment preplanning and 

coordination with NRC, States, and 

LLEAs. For example, the current 

§ 73.37(f) regulation requires an advance 

notification to the Governor (or 

designee) by mail to be postmarked at 

least 7 days before transport of a 

shipment within or through the State; 

and require a messenger-delivered 

notification to reach the Office of the 

Governor (or designee) at least 4 days 

before transport of a shipment within or 

through the State. Some States have 

indicated that the current notification 

requirements are insufficient to 

adequately plan for a spent nuclear fuel 

shipment. In addition, the current 

§ 73.37(b)(7) regulation requires 

licensees to obtain the advance NRC 

approval of the routes used for road and 

rail shipments of spent nuclear fuel, but 

does not require prior State 

coordination of the route. The proposed 

amendments would ensure that the 

affected States have early and 

substantial involvement in the 

management of spent nuclear fuel 

shipments by participating in the initial 

stages of the planning, coordination, 

and implementation of the shipment. 

Proposed § 73.37(b)(1)(iv) would 

require licensees to preplan and 

coordinate spent nuclear fuel shipment 

information with the Governors of the 

States which the shipment will transit 

across in order to: (1) Ensure minimal 

shipment delays; (2) arrange for State 

law enforcement escorts; (3) coordinate 

movement control information, as 

needed; (4) coordinate safe haven 

locations; and (5) coordinate the 

shipping route. The proposed 

requirements would ensure that no 

unusual event associated with the 

shipment goes unnoticed or unreported. 

These proposed revisions mitigate the 

risk of theft, diversion, or radiological 

sabotage of a spent nuclear fuel 

shipment. These proposed revisions 

would address, in part, PRM–73–10 

items 3 and 6. 

J. Why require constant visual 

surveillance by armed escort? 

Existing § 73.37(b)(9) requires 

constant visual surveillance by an escort 

when a shipment is stopped. It does not 

specify whether the escort should be 

armed. Proposed § 73.37(b)(3)(vii)(C) 

would ensure that when a shipment is 

stopped, at least one armed escort 

maintains constant visual surveillance. 

The constant surveillance by an armed 

escort while a shipment is stopped 

provides assurance that attempts by an 


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adversary to either perform radiological 

sabotage in place, or to gain control of 

the transport to move it to another 

location are impeded or stopped. The 

requirements of proposed 

§ 73.37(b)(3)(vii)(C) would address 

parked or stopped road shipments, rail 

shipment stops in marshaling areas, and 

docked sea shipments. It would also 

require periodic reports of shipment 

status to the movement control center 

by the armed escort. The proposed 

§ 73.37(b)(3)(vii)(C) would provide 

adequate assurance that spent nuclear 

fuel shipments are protected from theft, 

diversion, or radiological sabotage when 

stopped. 

K. Why require two-way redundant 

communication capabilities? 

The regulations in the current 

§§ 73.37(c), 73.37(d), and 73.37(e) 

provide for redundant communication 

capabilities; however, the requirements 

are specific, i.e., use of citizens band 

radio and radiotelephone. In view of the 

continued advancements in technology, 

these methods of communication could 

become obsolete in the near future. 

Instead of specifying an acceptable 

communications technology, the 

proposed revisions describe the 

performance characteristics of the 

communications capabilities. 

Proposed §§ 73.37(c)(3), 73.37(d)(3) 

and 73.37(e)(4) would require the 

establishment of two-way 

communication capabilities for the 

transport vehicle and escorts to ensure 

contact between the movement control 

center and LLEAs at all times. The 

revisions would also require the 

establishment of alternate capabilities 

for the transport vehicle and escorts to 

contact the movement control center. 

The alternate communications cannot 

be subject to the same interference 

factors. The same interference factors 

are defined as any two systems that rely 

on the same hardware or software to 

transmit their signal (e.g., cell tower, 

proprietary network). These 

requirements would provide the 

capability for continued communication 

between movement control personnel, 

which would ensure the prompt 

reporting of any incident that could lead 

to theft, diversion, or radiological 

sabotage. 

L. Why require background 

investigations? 

1. What is the objective of the 

background investigations requirements 

for those with unescorted access and 

access authorization relative to spent 

nuclear fuel in transit? 

The proposed rule would add a new 

§ 73.38 that would require licensees to 

conduct background investigations of 

those individuals being considered for 

unescorted access or access 

authorization relative to spent nuclear 

fuel in transit. The main objective of the 

background investigations is to ensure 

that those individuals who have 

unescorted access to spent nuclear fuel 

in transit and those individuals who 

have access to safeguards information 

relative to the spent nuclear fuel 

shipment, including but not limited to 

armed escorts, drivers, and movement 

control personnel are trustworthy and 

reliable and do not constitute an 

unreasonable risk to the public health 

and safety or common defense and 

security. These background 

investigations are similar to those 

already in place for unescorted access to 

a commercial nuclear power reactor in 

§ 73.56(d), Background Investigation. 

2. What is the basis for the 

fingerprinting requirements in the 

proposed rule? 

Section 149 of AEA requires that any 

person who is permitted unescorted 

access to radioactive materials subject to 

regulation by the Commission be 

fingerprinted for FBI identification and 

criminal history records check. 

However, Section 149 also requires that 

the Commission make a determination 

that such radioactive material is of such 

significance to the public health and 

safety or the common defense and 

security as to warrant fingerprinting and 

background checks before the 

Commission can exercise the authority 

provided by Section 149. 

Pursuant to Section 149, the 

Commission has determined that the 

transportation of irradiated fuel (spent 

nuclear fuel) is of such significance to 

the public health and safety or the 

common defense and security as to 

warrant fingerprinting and background 

checks for those individuals who have 

such access to the materials in transit. 

Persons who have ‘‘unescorted access’’ 

to this material for purposes of Section 

149, are persons accompanying the 

shipment of spent nuclear fuel during 

transit who have direct access and 

maintain control over the spent nuclear 

fuel. These persons may include, but are 

not limited to, the driver armed escorts 

and movement control center personnel. 

Therefore, under the authority granted 

by Section 149, this rule would impose 

a requirement for fingerprinting as a 

prerequisite to granting unescorted 

access to spent nuclear fuel in transit. 

The criminal history records check 

obtained as a result of that 

fingerprinting would be used by 

licensees as part of the overall 

background investigation to determine 

the trustworthiness and reliability of 

these individuals prior to permitting 

unescorted access. 

3. What are the components of a 

background investigation? 

Proposed § 73.38(d) lists the 

requirements for a background 

investigation, including: informed 

consent, fingerprinting for an FBI 

identification and criminal history 

records check; verification of true 

identity; employment history 

evaluation; verification of education and 

military history; credit history 

evaluation; local criminal history 

review; and character and reputation 

determination. 

Under proposed § 73.38(e), it is the 

licensee’s responsibility to make a 

trustworthiness and reliability 

determination of an individual who has 

unescorted access or access 

authorization relative to a spent nuclear 

fuel shipment. It is expected that 

licensees will use their best efforts to 

obtain the information required to 

conduct a background investigation to 

determine the individuals’ 

trustworthiness and reliability. 

The full credit history evaluation 

requirement, in proposed § 73.38(d)(6), 

reflects the NRC’s intent that all 

financial information available through 

credit reporting agencies is to be 

obtained and evaluated because it has 

the potential to provide highly pertinent 

information. The NRC recognizes that 

some countries may not have routinely 

accepted credit reporting mechanisms, 

and therefore, the NRC allows multiple 

sources of credit history that could 

potentially provide information about a 

foreign national’s financial record and 

responsibility. 

Fingerprinting an individual for an 

FBI criminal history records check, as 

would be required by the proposed 

§ 73.38(d)(3), is an important element of 

the background investigation for 

determining the trustworthiness and 

reliability of an individual. It can 

provide comprehensive information 

regarding an individual’s recorded 

criminal activities within the U.S. and 

its territories and the individual’s 

known affiliations with violent gangs or 

terrorist organizations. In addition, the 

local criminal history review, which 


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would be required by the proposed 

§ 73.38(d)(7) provides the licensee with 

a record of local criminal activity that 

may adversely impact an individual’s 

trustworthiness and reliability. 

It is noted that the proposed 

§ 73.38(d)(5)(iv) would require licensees 

to document any refusals by outside 

entities to provide information on an 

individual. If local law enforcement, a 

previous employer, an educational 

institution, or any other entity with 

which the individual claims to have 

been engaged fails to provide 

information or indicates an inability or 

unwillingness to provide information in 

a timely manner, the licensee would be 

required to document the refusal, 

unwillingness, or inability to respond in 

the record of investigation. The licensee 

would then need to obtain confirmation 

from at least one alternate source that 

has not been previously used. An 

alternate source could be another person 

associated with the entity or institution. 

For example, if the human resources 

department of a company will not verify 

the employment history of the 

individual, an alternate source could be 

the individual’s supervisor during the 

claimed period. The proposed 

§ 73.38(d)(10) is patterned after the 

requirements of § 73.56(d)(4)(iv). 

4. What information should the licensee 

use to determine that an individual is 

trustworthy and reliable? 

The licensee would use all of the 

information gathered during the 

background investigation, including the 

information received from the FBI, in 

making a determination that an 

individual is trustworthy and reliable. 

The licensee may not determine that an 

individual is trustworthy and reliable 

and grant them unescorted access to 

spent nuclear fuel in transit until all of 

the information for the background 

investigation has been obtained and 

evaluated. The licensee may deny an 

individual unescorted access based on 

any information obtained at any time 

during the background investigation. 

The proposed § 73.38(e) includes a 

provision for licensees to document 

their determinations of trustworthiness 

and reliability. 

5. How frequently would a 

reinvestigation be required? 

The proposed rule would include a 

provision, § 73.38(h), that would require 

a reinvestigation every 10 years to help 

maintain the integrity of the program. 

This reinvestigation requirement is 

necessary because an individual’s 

financial situation or criminal history 

may change over time in a manner that 

can adversely affect his or her 

trustworthiness and reliability. The 

reinvestigation would include 

fingerprinting, FBI identification and 

criminal history records check, local 

criminal history review and credit 

history check. The reinvestigation 

would not include employment 

verification, education verification, 

military history verification, or the 

character and reputation determination 

for the reinvestigation. 

6. Are licensees required to protect 

information obtained during a 

background investigation? 

Yes. The proposed §§ 73.38(f)(1)–(2) 

would require licensees to protect the 

information obtained during a 

background investigation. Licensees 

would only be permitted to disclose the 

information to the subject individual, 

the individual’s representative, those 

who have a need-to-know to perform 

their assigned duties to grant or deny 

unescorted access, or an authorized 

representative of NRC. This proposed 

revision is consistent with the 

requirements of § 73.57(f). 

7. Could a licensee transfer personal 

information obtained during an 

investigation to another licensee? 

Yes. The proposed § 73.38(f)(3) 

includes a provision that a licensee 

would be able to transfer background 

information on an individual to another 

licensee if the individual makes a 

written request to the licensee to 

transfer the information contained in his 

or her file. 

8. Which records are required to be 

maintained? 

The proposed § 73.38(f)(5) would 

require licensees to retain all fingerprint 

and criminal history records received 

from the FBI, or a copy if the 

individual’s file has been transferred, 

for 5 years after the individual no longer 

requires unescorted access to spent 

nuclear fuel in transit. 

M. Why enhance shipment notifications 

to NRC? 

The current regulations in 

§ 73.72(a)(4) require an NRC 

notification, by phone, at least 2 days 

before the shipment commences. The 

proposed rule would revise § 73.72(a)(4) 

to require 2 additional notifications of 

NRC, one to be made 2 hours before the 

shipment commences, and the other to 

be made when the shipment reaches its 

final destination. These additional 

notifications allow NRC to monitor 

spent nuclear fuel shipments, and to 

maximize its readiness in case of a 

safeguards event. The notification of 

shipment completion allows NRC to 

resume normal operations. 

To further enhance notification of 

NRC, the proposed revision would 

remove the § 73.72(b) exemption for 

shipments of spent nuclear fuel that are 

transported on public roads. Currently, 

the requirements of § 73.72(b) exempt 

licensees who make a road shipment or 

transfer with one-way transit times of 

one hour or less between installations of 

the licensee from providing advance 

notification of the shipment to NRC. 

The proposed revision would require 

that NRC be informed of any spent 

nuclear fuel shipment on a public road 

so that NRC is able to monitor spent 

nuclear fuel shipments and to maximize 

its readiness in case of a safeguards 

event. These proposed revisions 

mitigate the risk of theft, diversion, or 

radiological sabotage of a shipment. 

N. Which type of spent nuclear fuel does 

DOE ship? 

The DOE spent nuclear fuel 

shipments generally fall into two 

categories: Classified and non-classified 

shipments of spent nuclear fuel. 

Classified shipments are those 

shipments which involve national 

security. Classified shipments of spent 

nuclear fuel typically consist of spent 

fuel from the U.S. Navy. The DOE has 

broad authority under the Atomic 

Energy Act of 1954, as amended (AEA), 

to regulate all aspects of activities 

involving radioactive materials that are 

undertaken by DOE or on its behalf, 

including the transportation of 

radioactive materials. The DOE 

conducts classified shipments of spent 

nuclear fuel using their Office of Secure 

Transport (OST). The OST shipments 

are escorted full-time by armed, 

specially trained (trained in 

communications, firearms, tactics, 

observation, and use of deadly force) 

active duty Navy personnel who 

maintain 24-hour surveillance. The OST 

Transportation Emergency 

Communications Center monitors, 

tracks, and provides communication 

with every shipment. The NRC does not 

regulate classified shipments of spent 

nuclear fuel. 

O. What is a non-classified shipment of 

spent nuclear fuel and what are the 

DOE requirements for this type of 

shipment? 

Non-classified shipments of spent 

nuclear fuel typically consist of spent 

fuel from commercial nuclear power 

reactors and research and test reactors. 

The DOE policy for non-classified spent 

nuclear fuel shipments are found under 

the DOE Orders 460.1C, Packaging and 

Transportation Safety and 460.2A, 


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Departmental Materials Transportation 

and Packaging Management. As a 

matter of policy, the DOE non-classified 

spent nuclear fuel shipments are 

conducted under the requirements and 

standards applicable to comparable 

commercial shipments, i.e., the NRC 

requirements, except if there is a 

determination that national security or 

another critical interest requires 

different action. 

The DOE requirements are set forth in 

the DOE Manual 460.2–1A, Radioactive 

Material Transportation Practices 

Manual. In this manual, it states that 

‘‘Security will be provided in 

compliance with the NRC requirements 

in 10 CFR Part 73 for shipments subject 

to a NRC license. Other DOE shipments 

will be undertaken in a manner that 

meets or exceeds the NRC security 

requirements.’’ The DOE organizations 

and contractors ensure that in-transit 

requirements are addressed, including 

developing security plans, 

implementing information and physical 

security access controls, training, 

escorts, inspections, tracking, 

communications, and employee 

background checks. 

P. How are the NRC and DOE 

requirements similar and how are they 

different? 

As stated in O above, given the DOE 

policy to ‘‘meet or exceed’’ the NRC 

security requirements, the NRC and 

DOE requirements are similar. Similar 

to the NRC requirements, the DOE 

program organizations are expected to 

liaison with Federal, State, local and 

Tribal law enforcement/security 

officials regarding such shipments. This 

liaison should include a determination 

as to whether the State, Tribal or local 

jurisdictions are planning to provide 

escorts for the shipment. The DOE also 

expects drivers and escorts to maintain 

constant surveillance of the shipment. 

One major difference between the 

NRC and DOE requirements deals with 

the tracking and monitoring of spent 

nuclear fuel shipments. The DOE 

requires the use of their Transportation 

Tracking and Communications System 

(TRANSCOM). In the proposed rule, 

NRC requires continuous and active 

monitoring of spent nuclear fuel 

shipments, but, a particular tracking 

method is not specified. The NRC 

determined that providing the 

performance objectives for continuous 

and active monitoring, rather than 

specifying a particular system gives a 

licensee flexibility to choose a system 

that works with their shipping situation. 

Another difference between the NRC 

and DOE requirements is the protection 

of information. For NRC, information 

associated with a spent fuel shipment 

(i.e., shipment schedules and security 

plans) are protected as safeguards 

information (SGI) as specified by the 

requirements of §§ 73.21 and 73.22. The 

DOE does not have a system of 

information protection comparable to 

SGI. Shipment information for the DOE 

non-classified spent nuclear fuel 

shipment is official use only, unless 

there is a reason to designate it as 

classified. 

Q. Who would this action affect? 

The proposed amendments affect all 

the NRC licensees that are authorized to 

possess and transport spent nuclear 

fuel. This includes, but is not limited to, 

licensees of commercial power reactors, 

research and test reactors, and 

independent spent fuel storage 

installations, who transport, or deliver 

to a carrier for transport, in a single 

shipment, a quantity of irradiated 

reactor fuel in excess of 100 grams (0.22 

lbs) in net weight of irradiated fuel, 

exclusive of cladding or other structural 

or packaging material, which has a total 

external radiation dose rate in excess of 

1 Sv (100 rems) per hour at a distance 

of .91 meters (3 feet) from any accessible 

surface without intervening shielding. 

R. Does NRC plan to issue guidance on 

these proposed requirements? 

In conjunction with this the proposed 

rulemaking, NRC is revising NUREG– 

0561, ‘‘Physical Protection of Shipments 

of Irradiated Reactor Fuel in Transit,’’ 

which was published in June 1980, to 

address the new requirements in the 

proposed rule. NUREG–0561 provides 

general guidance to licensees 

concerning the establishment of an 

acceptable security program for spent 

nuclear fuel shipments. 

S. What should I consider as I prepare 

my comments to NRC? 

Tips for preparing your comments: 

When submitting your comments, 

remember to: 

i. Identify the rulemaking (Docket ID: 

NRC–2009–0163). 

ii. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

iii. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

iv. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

v. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

vi. Explain your views as clearly as 

possible. 

vii. Make sure to submit your 

comments by the comment period 

deadline. 

viii. See Section VII of the preamble 

for the request for comments on the use 

of plain language and Section XII for the 

request for comments on the draft 

regulatory analysis. 

IV. Discussion of the Proposed 

Amendments by Section 

A. Proposed § 73.37(a)(1) 

The proposed rule would revise 

§ 73.37(a)(1) to include the International 

System of Measurement (SI) 

accompanied by the equivalent English 

units in parentheses for the weight and 

dose rate measurements. This is under 

the NRC’s metrication policy (57 FR 

46202, October 7, 1992), and the Metric 

Conversion Act of 1975, 15 U.S.C. 205a 

et seq. The proposed rule would also 

add a footnote to clarify that the term 

‘‘irradiated reactor fuel,’’ as used in 10 

CFR 73.37 fn.1, means ‘‘spent nuclear 

fuel.’’ 

B. Proposed § 73.37(a)(1)(i) 

The language in the current regulation 

solely addresses potential radiological 

sabotage of spent nuclear fuel 

shipments. The proposed rule would 

revise § 73.37(a)(1)(i) to clarify that any 

attempted theft or diversion of spent 

nuclear fuel shipments is also covered 

by this regulation. 

The proposed rule would also revise 

§§ 73.37(a)(1)(i) and (a)(2)(iii) to remove 

the distinction between heavily 

populated areas and other areas through 

or across which a spent nuclear fuel 

shipment may pass. The differentiation 

of security requirements based upon 

population densities creates potential 

vulnerabilities in the physical security 

of the shipment. The proposed 

requirement of armed escorts 

throughout the shipment route 

minimizes the risk of theft, diversion, or 

radiological sabotage. The proposed 

revisions would also address items 4 

and 5 of the PRM–73–10. 

C. Proposed § 73.37(a)(2) 

The proposed rule would revise 

§ 73.37(a)(2) to insert ‘‘system’’ after the 

word phrase ‘‘physical protection’’ to 

read as ‘‘physical protection system.’’ 

This change provides consistency in the 

terminology used throughout 10 CFR 

Part 73. 

The proposed revision would 

renumber the paragraphs in 

§ 73.37(a)(2). The current 

§ 73.37(a)(2)(ii) would become the 

proposed § 73.37(a)(2)(iii), and the 

current § 73.37(a)(2)(iii) would become 

the proposed § 73.37(a)(2)(ii). The 


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proposed rule would revise the current 

§ 73.37(a)(2)(iii) to clarify that the 

licensee should delay, as well as 

impede, any attempted theft, diversion, 

or radiological sabotage of spent nuclear 

fuel shipments. 

D. Proposed § 73.37(b) 

This overall section is revised to 

provide a logical, step-by-step approach 

to the development of a physical 

protection system for spent nuclear fuel 

shipments that is more user-friendly. 

E. Proposed § 73.37(b)(1) 

The proposed rule would add a new 

section entitled, ‘‘Preplan and 

Coordinate Spent Nuclear Fuel 

Shipments,’’ which is explained in 

further detail below. The proposed rule 

would move and incorporate the current 

§ 73.37(b)(1) into a new § 73.37(b)(2). 

The proposed rule would add a new 

§ 73.37(b)(1)(i) which requires that 

licensees instruct armed escorts on the 

use of deadly force. The existing 

provisions of § 73.37 provide 

performance objectives to be achieved 

by the physical protection system for 

spent nuclear fuel shipments. These 

performance objectives are not specific 

about the degree of force an armed 

escort may use in protecting shipments. 

Specifically, the licensee is to ensure 

that each non-LLEA armed escort delay 

or impede attempted acts of theft, 

diversion, or radiological sabotage by 

using force sufficient to counter the 

force directed at that person, including 

the use of deadly force when there is a 

reasonable belief that the use of deadly 

force is necessary in self-defense or in 

the defense of others, or any other 

circumstances as authorized by 

applicable Federal or State law. The 

requirements for use of deadly force are 

established under applicable Federal 

and State laws (i.e., the States through 

which the shipment is passing). It 

should be noted that the proposed 

revision is not authorizing the use of 

deadly force, but instead is ensuring 

that the armed guards are 

knowledgeable of the Federal and State 

statutes that apply regarding the use of 

deadly force. The statutes regarding the 

use of deadly force may vary depending 

on the jurisdiction in which the 

shipment is located. Armed escorts are 

expected to carry out their assigned 

duties, including implementation of 

contingency procedures in case of 

attack, in a manner consistent with the 

legal requirements applicable to other 

private armed guards in a particular 

jurisdiction. The LLEA personnel 

escorts are exempt from this 

requirement since they are subject to, 

and should have received training on, 

State and Federal restrictions regarding 

the use of deadly force. 

The proposed rule would add new 

§§ 73.37(b)(1)(ii) and 73.37(b)(1)(iii), 

which are accounting and control 

measures that ensure that only 

authorized individuals receive the 

shipment. The proposed requirements 

would reduce the risk of theft, 

diversion, or radiological sabotage of the 

spent nuclear fuel. 

The proposed rule would re-designate 

§ 73.37(b)(8) as § 73.37(b)(1)(iv) and 

revise it to include requirements for 

licensees to preplan and coordinate 

spent nuclear fuel shipments with 

States. The preplanning and 

coordination would include efforts to 

minimize intermediate stops and delays, 

arranging for State law enforcement 

escorts, the sharing of positional 

information and the development of 

route information, including the 

location of safe havens. The proposed 

amendments would ensure that States 

have early and substantial involvement 

in the management of spent nuclear fuel 

shipments by participating in the initial 

stages of the planning, coordination, 

and implementation of the shipment. 

The proposed rule would re-designate 

§ 73.37(b)(6) as § 73.37(b)(1)(v) and 

revise it to make minor editorial 

changes. 

The proposed rule would re-designate 

§ 73.37(b)(7) as § 73.37(b)(1)(vi) and 

revise it to expand the requirements for 

preplanning and coordination with 

NRC. The proposed § 73.37(b)(1)(vi) 

would require licensees to identify the 

locations of safe havens along road 

shipment routes, obtain the NRC route 

approval prior to the 10-day advance 

notice required by § 73.72(a)(2), and 

provide specific information to NRC, 

such as identification of the shipper, 

consignee, carriers, transfer points, 

modes of shipment, and a description of 

shipment security arrangements. In 

addition the proposed § 73.37(b)(1)(vi) 

reminds licensees that they must also 

comply with the applicable DOT routing 

requirements. 

The proposed rule would add a new 

§ 73.37(b)(1)(vii), which requires the 

documentation of preplanning and 

coordination activities. 

F. Proposed § 73.37(b)(2) 

The proposed rule would re-designate 

§ 73.37(f), the advance notifications 

provision, as § 73.37(b)(2) and would 

revise it to include: (1) A reference to 

§ 73.22 SGI protection requirements, (2) 

a reference to the NRC Web site listing 

contact information for State governors 

and governors’ designees, (3) a 

requirement to include within the 

notification the license number of the 

shipper and receiver, and (4) a 

requirement to provide the estimated 

date and time of arrival of the shipment 

at the destination. The proposed 

§ 73.37(b)(2) would also include new 

recordkeeping and shipment 

cancellation notification requirements. 

G. Proposed § 73.37(b)(3) 

The proposed rule would add a new 

§ 73.37(b)(3) entitled, ‘‘Transportation 

Physical Protection Program.’’ The 

proposed § 73.37(b)(3) would both 

streamline and combine existing 

requirements in §§ 73.37(b)(3)–(5) and 

73.37(b)(9)–(11). 

Proposed § 73.37(b)(3)(i) would 

introduce the term ‘‘movement control 

center,’’ which replaces the term 

‘‘communication center’’ used in the 

current regulation. The term ‘‘movement 

control center’’ is used for consistency 

with physical protection terminology 

and to better define the role and 

responsibilities of the facility. The 

movement control center is defined as 

an operations center which is remote 

from transport activity and which 

maintains periodic position information 

on the movement of the shipment, 

receives reports of attempted theft, 

diversion, or radiological sabotage, 

provides a means for reporting these 

and other problems to appropriate 

agencies, and can request and 

coordinate appropriate aid. 

The proposed rule would re-designate 

§ 73.37(b)(4) as § 73.37(b)(3)(ii) and 

revise it to reflect that the movement 

control center personnel will have the 

authority to direct physical protection 

activities. The proposed rule would also 

add a new § 73.37(b)(3)(iii), which will 

clarify the duties of the movement 

control center personnel. 

The proposed rule would re-designate 

§ 73.37(b)(5) as § 73.37(b)(3)(iv) and 

revise it to make minor editorial 

changes. 

The proposed rule would add a new 

§ 73.37(b)(3)(v), which requires 

licensees to develop, maintain, and 

implement written physical protection 

procedures to address access controls, 

duties of the movement control center 

personnel, drivers, armed escorts and 

other individuals responsible for the 

security of the shipment, reporting of 

safeguards events, communications 

protocols, and normal conditions 

operating procedures. 

The proposed rule would add a new 

§ 73.37(b)(3)(vi), which incorporates the 

recordkeeping requirements of the 

current §§ 73.37(b)(2) and (3). 

The proposed rule would re-designate 

§ 73.37(b)(10) as § 73.37(b)(3)(vii)(A) 

and revise it to include additional 

training requirements described in 


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sections III and IV of Part 73, Appendix 

B. This revision is a clarification of the 

existing requirements in § 73.37. The 

current § 73.37(b)(10) refers to training 

requirements in 10 CFR part 73, 

Appendix D. Appendix D, in turn, refers 

to requirements in 10 CFR part 73, 

Appendix B, III and IV. For clarity, the 

proposed revision would add a direct 

reference to Appendix B. 

The proposed rule would re-designate 

§ 73.37(b)(11) as § 73.37(b)(3)(vii)(B) and 

revise it by changing the escort’s 

requirement to contact the movement 

control center from ‘‘at least every 2 

hours’’ to contacts at ‘‘random intervals, 

not to exceed 2 hours.’’ The proposed 

provision would also change 

‘‘communications center’’ to ‘‘movement 

control center.’’ 

The proposed rule would re-designate 

the current § 73.37(b)(9) as 

§ 73.37(b)(3)(vii)(C) and would revise it 

by further clarifying the escort’s 

responsibilities when the shipment 

vehicle is stopped, or the shipment 

vessel is docked. The proposed 

revisions would ensure that when a 

shipment is stationary at least one 

armed escort maintains constant visual 

surveillance. The proposed rule also 

would provide for periodic reports of 

shipment status to the movement 

control center by the armed escort. 

H. Proposed § 73.37(b)(4) 

The proposed rule would re-designate 

§ 73.37(b)(2) as § 73.37(b)(4)(i)–(iii), 

‘‘Contingency and Response 

Procedures,’’ and would add additional 

requirements. The proposed rule would 

add new §§ 73.37(b)(4)(i) and 

73.37(b)(4)(ii), which would require 

licensees to develop and implement 

contingency and response procedures, 

and would require licensees to train 

personnel in these procedures. The 

current requirements in § 73.37(b) do 

not specifically require personnel 

training, but only require escorts to 

receive instructions. The proposed rule 

would expressly require that written 

procedures are developed and that all 

personnel associated with the transport 

and security of the shipment are 

adequately trained to carry out their 

responsibilities. The proposed revisions 

provide reasonable assurance of a more 

timely and effective response to any 

attempted theft, diversion, or 

radiological sabotage. A response to an 

event must be initiated without delay in 

order to have a high probability of 

success. The response is more likely to 

be timely and effective if roles, 

responsibilities, and actions are clearly 

delineated and understood in advance. 

The proposed rule would also add a 

new § 73.37(b)(4)(iii), which would 

incorporate the current § 73.37(b)(2) 

recordkeeping requirements. 

The proposed rule would re-designate 

§ 73.37(b)(3) as § 73.37(b)(4)(iv) and 

revise it to include the requirement that 

the contingency and response 

procedures direct the escort to take the 

necessary steps to delay or impede theft, 

diversion, or radiological sabotage of 

spent nuclear fuel in transit. 

I. Proposed § 73.37(c) 

The proposed rule would revise 

§ 73.37(c)(1) and delete § 73.37(c)(2) to 

eliminate the distinction between 

heavily populated areas and other areas 

through which a road shipment of spent 

nuclear fuel shipment may pass. 

Proposed § 73.37(c)(1) would require 

armed escorts for the entire shipment 

route. In addition, a new 

§ 73.37(c)(1)(iii) would require nonLLEA armed escorts to have a minimum 

of two weapons. The NRC has 

determined that it is prudent to require 

a minimum of two weapons for each 

armed escort. 

The proposed deletion of the current 

§ 73.37(c)(2) would result in a 

renumbering of the section. The 

proposed rule would re-designate 

current § 73.37(c)(3) as § 73.37(c)(2) and 

revise it as described below. The 

requirements in the current § 73.37(c)(3) 

describe specific acceptable types of 

communication devices, i.e., use of 

citizens band radio, radiotelephone, 

which may become obsolete in the near 

future. Instead of specifying an 

acceptable communications technology, 

the proposed § 73.37(c)(2) revisions 

describe the performance characteristics 

of the communications capabilities. 

The proposed rule would re-designate 

§ 73.37(c)(4) as § 73.37(c)(3) and 

§ 73.37(c)(5) as § 73.37(c)(4). The 

proposed rule would add a new 

§ 73.37(c)(5), which would require 

continuous and active monitoring of the 

shipment by a telemetric position 

monitoring system or an alternative 

tracking system. The proposed revisions 

would ensure that shipments are 

continuously and actively monitored by 

a tracking system that communicates 

continuous position information to a 

movement control center. This 

requirement would allow the movement 

control center to receive positive 

confirmation of the location, status, and 

control of the shipment. These 

requirements would ensure immediate 

detection of any deviations from the 

authorized route, which will provide a 

prompt notification of any emergency or 

safeguards event. The proposed 

revisions would facilitate a more timely 

and effective response. 

J. Proposed § 73.37(d) 

The proposed rule would revise 

§ 73.37(d)(1) and delete § 73.37(d)(2) to 

eliminate the distinction between 

heavily populated areas and other areas 

through which a rail shipment of spent 

nuclear fuel may pass. The proposed 

§ 73.37(d)(1) would require armed 

escorts for the entire shipment route. 

The proposed rule would add a new 

§ 73.37(d)(2) to require a minimum of 2 

weapons for non-LLEA armed escorts. 

The proposed rule would revise 

§ 73.37(d)(3), which describes 

acceptable types of communication 

devices. The NRC recognizes that these 

devices may become obsolete in the 

near future. Instead of specifying 

acceptable communications technology, 

the proposed § 73.37(d)(3) describes the 

performance characteristics of the 

communication capabilities. The 

proposed rule would also add a new 

§ 73.37(d)(4) which would address 

continuous and active monitoring of the 

shipment by a telemetric position 

monitoring system or an alternative 

tracking system. 

K. Proposed § 73.37(e) 

The proposed rule would revise 

§§ 73.37(e)(1) and (e)(2) to eliminate the 

distinction between heavily populated 

areas and other areas for sea shipments 

of spent nuclear fuel. The proposed 

§ 73.37(e)(1)(i) would require armed 

escorts at any U.S. port where vessels 

carrying spent nuclear fuel shipments 

are docked. Proposed § 73.37(e)(1)(i) 

would also require a minimum of two 

weapons for each non-LLEA escort. The 

proposed rule would revise § 73.37(e)(3) 

to eliminate the listing of 

communication devices. Instead of 

specifying acceptable communication 

technology, proposed § 73.37(e)(3) 

would describe the performance 

characteristics of the communication 

capabilities. 

L. Proposed § 73.37(f) 

The proposed rule would re-designate 

the current § 73.37(f) as § 73.37(b)(2). A 

newly proposed § 73.37(f) would require 

an immediate investigation if a 

shipment is lost or unaccounted for after 

the designated no-later-than arrival 

time. This proposed requirement would 

facilitate the location and recovery of 

shipments that may have come under 

control of unauthorized persons. 

M. Proposed § 73.37(g) 

The proposed rule would delete the 

reference to § 73.37(f)(3) and insert the 

reference to § 73.37(b)(2)(iii) to reflect 

the reorganization of § 73.37. It would 

also ensure that the final rule for the 

‘‘Protection of Safeguards Information’’ 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
62706 Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Proposed Rules 

(October 24, 2008, 73 FR 63546) is 

reflected in the proposed rulemaking. 

Under § 73.22(a), information to be 

protected as safeguards information in 

the proposed § 73.37 would include: (1) 

Schedules, itineraries, arrangements 

with LLEA, and locations of safe 

havens, which is the information 

described in § 73.37(b)(1), and 

§§ 73.37(b)(2)(iii)–(b)(2)(v); (2) the 

physical security plan, which is the 

information described in § 73.37(b)(3); 

(3) the procedures for response to 

security contingency events, and the 

tactics and capabilities required to 

defend against attempted theft, 

diversion, or sabotage, which is the 

information described in § 73.37(b)(4); 

and portions of inspection reports, 

evaluations, audits, or investigations 

that contain details of a licensee’s or 

applicant’s physical security system, 

which is the information described in 

§ 73.37(f). In addition, according to 

§ 73.22(a), vehicle immobilization 

features, intrusion alarm devices, and 

communications systems, including 

communication limitations, are also 

considered safeguards information. 

N. Proposed § 73.38 

Proposed § 73.38 would establish the 

personnel access authorization 

requirements for granting an individual 

unescorted access or access 

authorization relative to spent nuclear 

fuel in transit. Proposed § 73.38(a)(1) 

would specify the licensees subject to 

the requirements in the proposed 

section. Proposed § 73.38(a)(2) would 

provide that licensees are required to 

establish, implement, and maintain the 

overall effectiveness of the access 

authorization program. Proposed 

§ 73.38(b) would establish the general 

performance objective to ensure that the 

individuals subject to the access 

authorization program are trustworthy 

and reliable. Proposed § 73.38(c)(1) 

would specify the individuals that 

would be subject to the access 

authorization program. Proposed 

§ 73.38(c)(2) would indicate that 

individuals listed in § 73.59 are not 

subject to the investigative elements of 

the access authorization program. 

Proposed § 73.38(d) would establish 

the background investigation 

requirements for individuals seeking 

unescorted access or access 

authorization relative to spent nuclear 

fuel in transit. For an individual seeking 

unescorted access or access 

authorization relative to spent nuclear 

fuel in transit, proposed §§ 73.38(d)(1)– 

(9) would require licensees to conduct 

fingerprinting and an FBI identification 

and criminal history records check; 

verification of true identity; 

employment history evaluation, 

verification of education; military 

history verification; credit history 

evaluation; criminal history review; 

character reputation and determination; 

and obtain independent information, 

respectively. Proposed § 73.38(d)(10) 

would allow a licensee to rely upon an 

alternate source that has not been 

previously used, if the licensee cannot 

obtain information on an individual 

from their previous employer, 

educational institution, or any other 

entity with which the individual claims 

to have been engaged. Proposed 

§ 73.38(d)(10) is patterned after 

§ 73.56(d)(4)(iv)(B). 

Proposed § 73.38(e) would require 

licensees to make and document 

trustworthiness and reliability 

determinations after obtaining and 

evaluating the information required by 

§§ 73.38(d)(1)–(9). Licensees would be 

required to maintain records of 

trustworthiness and reliability for 5 

years from the date the individual no 

longer requires unescorted access or 

access authorization relative to spent 

nuclear fuel shipments. 

Proposed § 73.38(f) would require 

licenses to protect the information 

obtained from background 

investigations, while allowing licensees 

to transfer background information on 

an individual to another licensee if the 

individual makes a written request for 

such transfer. Proposed § 73.38(f) would 

allow a licensee to rely on the 

background information transferred 

from another licensee, provided that the 

receiving licensee verifies the name, 

date of birth, social security number, 

sex, and other applicable physical 

characteristics to ensure that the 

individual is the person whose file has 

been transferred. 

A number of individuals who would 

be subject to the background 

investigation portion of this proposed 

rule may have recently satisfied similar 

requirements under the prior NRC 

orders. For such individuals, it would 

be an unnecessary use of resources to refingerprint them. Thus, proposed 

§ 73.38(g) would permit persons to 

essentially re-use the results of a 

fingerprint check that has been created 

within 5 years of the effective date of 

the rule. This would not be ‘‘relieving’’ 

such individuals from the rule, but 

rather permitting them to satisfy the 

fingerprinting requirements by other 

means. It is important to emphasize, 

however, that a licensee’s ability to use 

previous fingerprinting results is not a 

substitute for the licensee 

independently concluding that the 

person is suitable for unescorted access 

to spent nuclear fuel in transit, 

including subjecting the person to all 

other applicable requirements of the 

background investigation that would be 

required by § 73.38(d). 

Proposed § 73.38(h) would establish 

the requirements for reinvestigation of 

individuals with unescorted access to 

spent nuclear fuel in transit. Proposed 

§ 73.38(h) would establish completion 

of reinvestigations within 10 years of 

the last investigation. The scope of the 

investigation would be the past 10 years 

and would consist of fingerprinting and 

a FBI identification and criminal history 

records check; criminal history review; 

and credit history re-evaluation. 

Proposed § 73.38(i) would establish the 

requirements for individuals to selfreport legal actions taken by a law 

enforcement authority or court of law to 

which the individual has been subject 

that could result in incarceration or a 

court order or that requires a court 

appearance. This paragraph requires the 

recipient of the report, if the recipient 

is not the reviewing official, to promptly 

convey the report to the reviewing 

official who will then evaluate the 

implications of those actions with 

respect to the individual’s 

trustworthiness and reliability. 

Proposed § 73.38(j) would establish 

the requirements that licensees would 

be required to develop, implement, and 

maintain written procedures for 

conducting the background 

investigations for persons applying for 

unescorted access or access 

authorization relative to spent nuclear 

fuel in transit. The procedures should 

address notification of individuals 

denied unescorted access or access 

authorization, including the basis for 

the denial or termination. The 

procedures should also provide for the 

review of the information by the 

affected individuals. It should also 

ensure that individuals who have been 

denied unescorted access or access 

authorization are not allowed 

unescorted access to spent nuclear fuel. 

These individuals could be escorted by 

an approved individual. These 

individuals should not receive access to 

safeguards information relative to spent 

nuclear fuel in transit. 

Proposed § 73.38(k) would establish 

the requirements that an individual has 

the right to correct his or her criminal 

history records before any final adverse 

determination is made. If the individual 

believes that his or her criminal history 

records are incorrect or incomplete in 

any respect, he or she can initiate 

challenge procedures. These procedures 

would include direct application by the 

individual challenging the criminal 

history records to the law enforcement 

agency that contributed the questioned 


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Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Proposed Rules 62707 

information. Proposed § 73.38(l) would 

establish the requirements that licensees 

retain documentation relative to the 

trustworthiness and reliability 

determination for 5 years after the 

individual no longer requires 

unescorted access or access 

authorization. The proposed rule would 

also require that corrected or new 

information be actively communicated 

by the recipient to other licensees. 

O. Proposed § 73.72(a)(4) 

The proposed rule would revise 

§ 73.72(a)(4) to require 2 additional 

notifications of NRC, 1 to be made 2 

hours before the commencement of the 

shipment and the other to be made 

when the shipment arrives at its final 

destination. The current requirements of 

§ 73.72 require notification 2 days 

before the shipment commences, but not 

2 hours before the shipment begins or 

when it ends. 

P. Proposed § 73.72(a)(5) 

The proposed rule would revise 

§ 73.72(a)(5) to clarify the meaning of 

the language ‘‘greater than ±6 hours’’ that 

appears in the section. The proposed 

revision deletes ‘‘greater’’ and inserts 

‘‘more,’’ and deletes the symbol ‘‘±.’’ 

Q. Proposed § 73.72(b) 

The current requirements in § 73.72(b) 

exempt licensees who make a road 

shipment or transfer with one-way 

transit times of one hour or less between 

installations of the licensee from 

providing advance notification of the 

shipment to NRC. The proposed 

amendment would remove this 

exemption from the regulations. This 

proposed revision would ensure that 

NRC is informed of any spent nuclear 

fuel shipment on a public road, even 

those of short duration, and NRC is 

prepared to respond to an emergency or 

safeguards event. It would mitigate the 

risk of theft, diversion, or radiological 

sabotage of a shipment. 

TABLE 1—CROSS REFERENCE OF PROPOSED REGULATIONS WITH EXISTING REGULATIONS

The proposed regulation Existing regulation 

73.37(a)(1) ................................................................................................ 73.37(a)(1). 

73.37(a)(2) ................................................................................................ 73.37(a)(2). 

73.37(b)(1)(i)–(iii) ...................................................................................... New (no existing equivalent). 

73.37(b)(1)(iv)(A) ...................................................................................... 73.37(b)(8). 

73.37(b)(1)(iv)(B) ...................................................................................... New (no existing equivalent). 

73.37(b)(1)(iv)(C) ...................................................................................... New (no existing equivalent). 

73.37(b)(1)(iv)(D) ...................................................................................... New (no existing equivalent). 

73.37(b)(1)(v) ............................................................................................ 73.37(b)(6). 

73.37(b)(1)(vi) ........................................................................................... 73.37(b)(7). 

73.37(b)(1)(vi)(A) ...................................................................................... New (no existing equivalent). 

73.37(b)(1)(vi)(B) ...................................................................................... 73.37(b)(7). 

73.37(b)(1)(vi)(C) ...................................................................................... 73.37(b)(7). 

73.37(b)(1)(vii) .......................................................................................... New (no existing equivalent). 

73.37(b)(2) ................................................................................................ 73.37 (b)(1) & 73.37(f). 

73.37(b)(2)(i) ............................................................................................. 73.37(f)(1). 

73.37(b)(2)(ii) ............................................................................................ 73.37(f)(2). 

73.37(b)(2)(iii) ........................................................................................... 73.37(f)(3). 

73.37(b)(2)(iv) ........................................................................................... 73.37(f)(4). 

73.37(b)(2)(v) ............................................................................................ 73.37(f)(4). 

73.37(b)(2)(vi) ........................................................................................... 73.70. 

73.37(b)(3)(i) ............................................................................................. New (no existing equivalent). 

73.37(b)(3)(ii) ............................................................................................ 73.37(b)(4). 

73.37(b)(3)(iii) ........................................................................................... 73.37(b)(4). 

73.37(b)(3)(iv) ........................................................................................... 73.37(b)(5). 

73.37(b)(3)(v) ............................................................................................ New (no existing equivalent). 

73.37(b)(3)(vi) ........................................................................................... 73.37(b)(3). 

73.37(b)(3)(vii)(A) ..................................................................................... 73.37(b)(10). 

73.37(b)(3)(vii)(B) ..................................................................................... 73.37(b)(11). 

73.37(b)(3)(vii)(C) ..................................................................................... 73.37(b)(9). 

73.37(b)(4)(i) ............................................................................................. 73.37(b)(2). 

73.37(b)(4)(ii) ............................................................................................ 73.37(b)(2). 

73.37(b)(4)(iii) ........................................................................................... 73.37(b)(2). 

73.37(b)(4)(iv) ........................................................................................... 73.37(b)(3). 

73.37(c) ..................................................................................................... 73.37(c). 

73.37(c)(1) ................................................................................................ 73.37(c)(1). 

(none—paragraph deleted) ...................................................................... 73.37(c)(2). 

73.37(c)(2) ................................................................................................ New (no existing equivalent). 

73.37(c)(3) ................................................................................................ 73.37(c)(3). 

73.37(c)(4) ................................................................................................ 73.37(c)(4). 

73.37(c)(5) ................................................................................................ 73.37(c)(5). 

73.37(c)(6) ................................................................................................ New (no existing equivalent). 

73.37(d) .................................................................................................... 73.37(d). 

73.37(d)(1) ................................................................................................ 73.37(d)(1). 

(none—paragraph deleted) ...................................................................... 73.37(d)(2). 

73.37(d) .................................................................................................... 73.37(d). 

73.37(d)(2) ................................................................................................ New (no existing equivalent). 

73.37(d)(3) ................................................................................................ 73.37(d)(3). 

73.37(d)(4) ................................................................................................ New (no existing equivalent). 

73.37(e) .................................................................................................... 73.37(4). 

73.37(e)(1) ................................................................................................ 73.37(e)(1). 

73.37(e)(2) ................................................................................................ New (no existing equivalent). 

73.37(e)(3) ................................................................................................ 73.37(e)(2). 


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62708 Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Proposed Rules 

TABLE 1—CROSS REFERENCE OF PROPOSED REGULATIONS WITH EXISTING REGULATIONS—Continued 

The proposed regulation Existing regulation 

73.37(e)(4) ................................................................................................ 73.37(e)(3). 

73.37(f) ..................................................................................................... New—incorporates 73.71 reporting provisions. 

73.37(g) .................................................................................................... 73.37(g). 

73.38 ......................................................................................................... New—incorporates background investigations. 

73.72(a)(1) ................................................................................................ 73.72(a)(1). 

73.72(a)(4)(i)–(iii) ...................................................................................... 73.72(a)(4). 

73.72(a)(5) ................................................................................................ 73.72(a)(5). 

(none—exemption deleted from existing) ................................................ 73.72(b). 

73.72(b) .................................................................................................... New (no existing equivalent—new exemption). 

V. Criminal Penalties 

For the purpose of Section 223 of the 

AEA, the NRC is proposing to amend 10 

CFR Part 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 on 

September 3, 1997 (62 FR 46517), this 

rule is classified as a Compatibility 

Category NRC. The NRC analyzed the 

proposed rule under the procedure 

established within Part III, 

‘‘Categorization Process for the NRC 

Program Elements,’’ of Directive 

Handbook 5.9, ‘‘Adequacy and 

Compatibility of Agreement State 

Programs’’ (a copy of which may be 

viewed at http://www.nrc.gov/readingrm/doc-collections/managementdirectives/). 

The NRC program elements in this 

category are those that relate directly to 

areas of regulation reserved to NRC by 

the AEA, or the provisions of 10 CFR. 

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. The regulation of spent 

nuclear fuel is reserved to NRC and 

cannot be relinquished to an Agreement 

State. Thus, this rulemaking will have 

no impact on Agreement States’ 

regulatory programs. Therefore, 

Agreement States will not need to make 

conforming changes to their regulations. 

VII. Plain Language 

The Presidential Memorandum ‘‘Plain 

Language in Government Writing,’’ 

published June 10, 1998 (63 FR 31885), 

directed that the Government’s 

documents be written 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 to the address 

listed 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. The NRC is proposing to (1) 

Amend § 73.37, which contains the 

requirements for the physical protection 

of spent nuclear fuel in transit; (2) add 

a new § 73.38, which establishes the 

requirements for a background 

investigation of individuals applying for 

unescorted access to spent nuclear fuel 

shipments; and (3) amend § 73.72, 

which contains the requirements for the 

advance notification of NRC of spent 

nuclear fuel along with other special 

nuclear material. This action does not 

constitute the establishment of a 

standard that establishes generally 

applicable requirements. 

IX. Finding of No Significant 

Environmental Impact: Availability 

Under the National Environmental 

Policy Act of 1969, as amended, and the 

NRC regulations in subpart A of 10 CFR 

part 51, NRC has determined that this 

proposed rule, if adopted, would not be 

a major Federal action significantly 

affecting the quality of the human 

environment and, therefore, an 

environmental impact statement is not 

required for this rulemaking. The NRC 

has prepared an environmental 

assessment and, on the basis of this 

environmental assessment, has made a 

finding of no significant impact. 

The implementation of the proposed 

rule’s security requirements would not 

result in significant changes to the 

licensees’ facilities, nor would such 

implementation result in any significant 

increase in effluents released to the 

environment. Similarly, the 

implementation of the proposed rule’s 

security requirements would not affect 

occupational exposure requirements. No 

major construction or other earth 

disturbing activities, on the part of 

affected licensees, is anticipated in 

connection with licensees’ 

implementation of the proposed rule’s 

requirements. The NRC has determined 

that the implementation of this 

proposed rule would be procedural and 

administrative in nature. 

The determination of this 

environmental assessment is that there 

will be no significant impact to the 

public from this action. However, the 

general public should note that NRC 

welcomes public participation. 

Comments on any aspect of the 

environmental assessment may be 

submitted to NRC as indicated under 

the ADDRESSES heading in this 

document. 

The NRC will send a copy of the 

environmental assessment and this 

proposed rule to every State Liaison 

Officer, and will request their comments 

on the environmental assessment. The 

environmental assessment may be 

examined at the NRC Public Document 

Room, O–1 F21, 11555 Rockville Pike, 

Rockville, MD 20852. 

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 for review and approval of 

the information collection requirements. 

Type of submission, new or revision: 

Revision. 

The title of the information collection: 

10 CFR part 73, ‘‘Physical Protection of 

Plants and Materials,’’ The Proposed 

Rule. 

The form number if applicable: NA. 

How often the collection is required: 

On occasion. 

Who will be required or asked to 

report: NRC licensees that are 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Proposed Rules 62709 

1For purposes of 10 CFR 73.37, the terms 

‘‘irradiated reactor fuel’’ and ‘‘spent nuclear fuel’’ are 

used interchangeably. 

authorized to possess and transport 

spent nuclear fuel in excess of 100 

grams (0.22 lbs) in net weight exclusive 

of cladding or other material, which has 

a total radiation level in excess of 1 Sv 

(100 rems) per hour at a distance of .91 

meters (3 feet) from any accessible 

surface without regard to any 

intervening shielding. 

An estimate of the number of annual 

responses: 360 (342 responses + 18 

recordkeepers). 

The estimated number of annual 

respondents: 18. 

An estimate of the total number of 

hours needed annually to complete the 

requirement or request: 1,058 (59 hrs 

per respondent). 

Abstract: The NRC is proposing to 

amend its regulations to enhance the 

requirements for the safety and security 

of spent nuclear fuel during transit and 

to make these applicable to all licensees 

by placing them in the 10 CFR. The 

proposed rulemaking would establish 

the minimum performance standards 

and objectives for the protection of 

spent nuclear fuel shipments from theft, 

diversion or radiological sabotage. The 

proposed amendments would affect 

licensees authorized to possess or 

transport spent nuclear fuel. 

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 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–1 F21, Rockville, MD 20852. The 

OMB clearance package and the 

proposed rule are available for 60 days 

after the signature date of this notice at 

the NRC worldwide Web site: http:// 

www.nrc.gov/public-involve/doccomment/omb/index.html. 

Send comments on any aspect of 

these proposed regulations related to 

information collections, including 

suggestions for reducing the burden and 

on the above issues, by November 12, 

2010 to the Records and FOIA/Privacy 

Services Branch (T–5 F52), U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001, or by Internet 

electronic mail to 

Infocollects.Resource@NRC.gov and to 

the Desk Officer, Office of Information 

and Regulatory Affairs, NEOB–10202 

(RIN–3150–AI64), Office of Management 

and Budget, Washington, DC 20503. 

Comments on the proposed information 

collections may also be submitted via 

the Federal eRulemaking Portal http:// 

www.regulations.gov, Document ID: 

NRC–2009–0163. 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. 

XI. 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. 

XII. Regulatory Analysis 

The NRC has prepared a draft 

regulatory analysis on this proposed 

regulation. The analysis examines the 

costs and benefits of the alternatives 

considered by the NRC. 

The NRC requests public comment on 

the draft regulatory analysis. Comments 

on the draft analysis may be submitted 

to NRC as indicated under the 

ADDRESSES heading. The analysis is 

available for inspection in the NRC 

Public Document Room, 11555 

Rockville Pike, Room 0–1 F21, 

Rockville, MD 20852. 

XIII. 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 companies that possess or transport 

spent nuclear fuel 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 NRC (10 CFR 2.810). 

XIV. Backfit Analysis 

The NRC has determined that the 

backfit rule (§§ 50.109, 70.76, 72.62, or 

76.76) does not apply to this proposed 

rule 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 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. 553; the NRC 

proposes to adopt 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 73.37 is revised to read as 

follows: 

§ 73.37 Requirements for physical 

protection of irradiated reactor fuel in 

transit. 

(a) Performance objectives. (1) Each 

licensee who transports, or delivers to a 

carrier for transport, in a single 

shipment, a quantity of irradiated 

reactor fuel 1 in excess of 100 grams 

(0.22 lbs) in net weight of irradiated 

fuel, exclusive of cladding or other 

structural or packaging material, which 

has a total external radiation dose rate 

in excess of 1 Sv (100 rems) per hour at 

a distance of .91 meters (3 feet) from any 

accessible surface without intervening 

shielding, shall establish and maintain, 

or make arrangements for, and assure 

the proper implementation of, a 

physical protection system for 

shipments of such material that will 

achieve the following objectives: 

(i) Minimize the potential for theft, 

diversion, or radiological sabotage of 

spent nuclear fuel shipments; and 

(ii) Facilitate the location and 

recovery of spent fuel shipments that 

may have come under the control of 

unauthorized persons. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
62710 Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Proposed Rules 

(2) To achieve these objectives, the 

physical protection system shall: 

(i) Provide for early detection and 

assessment of attempts to gain 

unauthorized access to, or control over, 

spent fuel shipments; 

(ii) Delay and impede attempts at 

theft, diversion, or radiological sabotage 

of spent nuclear fuel shipments until 

response forces arrive; and 

(iii) Provide for notification to the 

appropriate response forces of any 

attempts at theft, diversion, or 

radiological sabotage of a spent nuclear 

fuel shipment. 

(b) General requirements. To achieve 

the performance objectives of paragraph 

(a) of this section, a physical protection 

system established and maintained, or 

arranged for, by the licensee shall 

include the following elements: 

(1) Preplan and Coordinate Spent 

Nuclear Fuel Shipments. Each licensee 

shall: 

(i) Ensure that each armed escort is 

instructed on the use of force sufficient 

to counter the force directed at the 

person, including the use of deadly 

force when the armed escort has a 

reasonable belief that the use of deadly 

force is necessary in self-defense or in 

the defense of others, or any other 

circumstances, as authorized by 

applicable Federal and State laws. This 

requirement does not apply to members 

of local law enforcement agencies 

performing escort duties. 

(ii) Preplan and coordinate shipment 

itineraries to ensure that the receiver at 

the final delivery point is present to 

accept the shipment. 

(iii) Ensure written certification of any 

transfer of custody. 

(iv) Preplan and coordinate shipment 

information with the governor of a State, 

or the governor’s designee, of a 

shipment of spent nuclear material 

through or across the boundary of the 

State, in order to: 

(A) Minimize intermediate stops and 

delays; 

(B) Arrange for State law enforcement 

escorts; 

(C) Arrange for positional information 

sharing when requested; and 

(D) Develop route information, 

including the identification of safe 

havens. 

(v) Arrange with local law 

enforcement authorities along the 

shipment route, including U.S. ports 

where vessels carrying spent nuclear 

fuel shipments are docked, for their 

response to an emergency or a call for 

assistance. 

(vi) Preplan and coordinate with NRC 

to obtain advance approval of the routes 

used for road and rail shipments of 

spent nuclear fuel, and of any U.S. ports 

where vessels carrying spent nuclear 

fuel shipments are scheduled to stop. In 

addition to the requirements of this 

section, routes used for shipping spent 

nuclear fuel shall comply with the 

applicable requirements of the DOT 

regulations in 49 CFR in particular those 

identified in § 71.5. The advance 

approval application shall provide: 

(A) For road shipments, the route 

should include locations of safe havens 

that have been coordinated with the 

appropriate State(s). 

(B) The NRC approval shall be 

obtained prior to the 10-day advance 

notification requirement in § 73.72 of 

this part. 

(C) Information to be supplied to NRC 

shall include, but is not limited to, the 

following: 

(1) Shipper, consignee, carriers, 

transfer points, modes of shipment; and 

(2) A statement of shipment security 

arrangements, including, if applicable, 

points where armed escorts transfer 

responsibility for the shipment. 

(vii) Document the preplanning and 

coordination activities. 

(2) Advance Notifications. Prior to the 

shipment of spent nuclear fuel outside 

the confines of the licensee’s facility or 

other place of use or storage, a licensee 

subject to this section shall provide 

notification to NRC, under § 73.72 of 

this part, and the governor of the State, 

or the governor’s designee, of the spent 

nuclear fuel shipment. Contact 

information for each State, including 

telephone and mailing addresses of 

governors and governors’ designees, is 

available on the NRC Web site at: 

http://nrc-stp.ornl.gov/special/ 

designee.pdf. A list of the contact 

information is also available upon 

request from the Director, Division of 

Intergovernmental Liaison and 

Rulemaking, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555. 

The licensee shall comply with the 

following criteria in regard to each 

notification: 

(i) Procedures for submitting advance 

notification. (A) The notification must 

be in writing and sent to the office of 

each appropriate governor or the 

governor’s designee. 

(B) A notification delivered by mail 

must be postmarked at least 7 days 

before transport of a shipment within or 

through the State. 

(C) A notification delivered by any 

other method must reach the office of 

the governor or the governor’s designee 

at least 4 days before transport of a 

shipment within or through the State. 

(ii) Information to be furnished in 

advance notification of shipment. The 

notification must include the following 

information: 

(A) The name, address, and telephone 

number of the shipper, carrier and 

receiver of the shipment and the license 

number of the shipper and receiver; 

(B) A description of the shipment as 

specified by DOT in 49 CFR 172.202 

and 172.203(d); and 

(C) A listing of the routes to be used 

within the State. 

(iii) Separate Enclosure. The licensee 

shall provide the following information, 

under § 73.22(f)(1), in a separate 

enclosure to the written notification: 

(A) The estimated date and time of 

departure from the point of origin of the 

shipment; 

(B) The estimated date and time of 

entry into the State; 

(C) The estimated date and time of 

arrival of the shipment at the 

destination; 

(D) 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 under the provisions 

of §§ 73.21 and 73.22 until at least 10 

days after the shipment has entered or 

originated within the State; and 

(E) For the case of a shipment in a 

series of shipments whose schedules are 

related, a statement that schedule 

information must be protected under the 

provisions of §§ 73.21 and 73.22 until 

10 days after the last shipment in the 

series has entered or originated within 

the State, and an estimate of the date on 

which the last shipment in the series 

will enter or originate within the State. 

(iv) Revision notice. A licensee shall 

notify by telephone a responsible 

individual in the office of the governor 

or in the office of the governor’s 

designee of any schedule change that 

differs by more than 6 hours from the 

schedule information previously 

furnished under § 73.37(b)(2)(iii), and 

shall inform that individual of the 

number of hours of advance or delay 

relative to the written schedule 

information previously furnished. 

(v) Cancellation notice. Each licensee 

who cancels a shipment for which 

advance notification has been sent shall 

send a cancellation notice to the 

governor or to the governor’s designee of 

each State previously notified and to the 

NRC’s Director, Division of Security 

Policy, Office of Nuclear Security and 

Incident Response. The licensee shall 

state in the notice that it is a 

cancellation and identify the advance 

notification that is being canceled. 

(vi) Records. The licensee shall retain 

a copy of the preplanning and 

coordination activities, advance 

notification, and any revision or 

cancellation notice as a record for 3 

years under § 73.70. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
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(3) Transportation Physical Protection 

System. (i) The physical protection 

system established under § 73.37(a)(1) 

shall include armed escorts to protect 

spent nuclear fuel shipments and a 

movement control center staffed and 

equipped to monitor and control spent 

nuclear fuel shipments, to communicate 

with local law enforcement authorities, 

and to respond to safeguards 

contingencies. 

(ii) The movement control center 

must be staffed continuously by at least 

one individual who will actively 

monitor the progress of the spent 

nuclear fuel shipment and who has the 

authority to direct the physical 

protection activities. 

(iii) The movement control center 

personnel must monitor the shipment 

continuously, i.e., 24-hours per day, 

from the time the shipment commences, 

or if delivered to a carrier for transport, 

from the time of delivery of the 

shipment to the carrier, until safe 

delivery of the shipment at its final 

destination, and must immediately 

notify the appropriate agencies in the 

event of a safeguards event under the 

provisions of § 73.71. 

(iv) The movement control center 

personnel and the armed escorts must 

maintain a written log for each spent 

nuclear fuel shipment, which will 

include information describing the 

shipment and significant events that 

occur during the shipment. The log 

must be available for review by 

authorized NRC personnel for a period 

of at least 3 years following completion 

of the shipment. 

(v) The licensee shall develop, 

maintain, revise and implement written 

transportation physical protection 

procedures which address the 

following: 

(A) Access controls to ensure no 

unauthorized persons have access to the 

shipment and safeguards information; 

(B) Duties of the movement control 

center personnel, drivers, armed escorts 

and other individuals responsible for 

the security of the shipment; 

(C) Reporting of safeguards events 

under § 73.71; 

(D) Communications protocols that 

include a strategy for the use of 

authentication and duress codes, the 

management of refueling or other stops, 

detours, and the loss of 

communications, temporarily or 

otherwise; and 

(E) Normal conditions operating 

procedures. 

(vi) The licensee shall retain as a 

record the transportation physical 

protection procedures for 3 years after 

the close of period for which the 

licensee possesses the spent nuclear 

fuel. 

(vii) The transportation physical 

protection system shall: 

(A) Provide that escorts (other than 

members of local law enforcement 

agencies, or ship’s officers serving as 

unarmed escorts) have successfully 

completed the training required by 

Appendix D of this part, including the 

equivalent of the weapons training and 

qualifications program required of 

guards, as described in sections III and 

IV of Appendix B of this part, to assure 

that each such individual is fully 

qualified to use the assigned weapons; 

(B) Provide that shipment escorts 

make calls to the movement control 

center at random intervals, not to 

exceed 2 hours, to advise of the status 

of the shipment for road and rail 

shipments, and for sea shipments while 

shipment vessels are docked at U.S. 

ports; and 

(C) Provide that at least one armed 

escort remains alert at all times, 

maintains constant visual surveillance 

of the shipment, and periodically 

reports to the movement control center 

at regular intervals not to exceed 30 

minutes during periods when the 

shipment vehicle is stopped, or the 

shipment vessel is docked. 

(4) Contingency and Response 

Procedures. (i) In addition to the 

procedures established under paragraph 

(b)(3)(v) of this section, the licensee 

shall establish, maintain, and follow 

written contingency and response 

procedures to address threats, thefts, 

and radiological sabotage related to 

spent nuclear fuel in transit. 

(ii) The licensee shall ensure that 

personnel associated with the shipment 

shall be appropriately trained regarding 

contingency and response procedures. 

(iii) The licensee shall retain the 

contingency and response procedures as 

a record for 3 years after the close of 

period for which the licensee possesses 

the spent nuclear fuel. 

(iv) The contingency and response 

procedures must direct that, upon 

detection of the abnormal presence of 

unauthorized persons, vehicles, or 

vessels in the vicinity of a spent nuclear 

fuel shipment or upon detection of a 

deliberately induced situation that has 

the potential for damaging a spent 

nuclear fuel shipment, the armed escort 

will: 

(A) Determine whether or not a threat 

exists; 

(B) Assess the extent of the threat, if 

any; 

(C) Implement the procedures 

developed under paragraph (b)(4)(i) of 

this section; 

(D) Take the necessary steps to delay 

or impede threats, thefts, or radiological 

sabotage of spent nuclear fuel, and 

(E) Inform local law enforcement 

agencies of the threat and request 

assistance without delay, but not to 

exceed 15 minutes after discovery. 

(c) Shipments by road. In addition to 

the provisions of paragraph (b) of this 

section, the physical protection system 

for any portion of a spent nuclear fuel 

shipment by road shall provide that: 

(1) The transport vehicle is: 

(i) Occupied by at least 2 individuals, 

1 of whom serves as an armed escort, 

and escorted by an armed member of the 

local law enforcement agency in a 

mobile unit of such agency; or 

(ii) Led by a separate vehicle occupied 

by at least 1 armed escort, and trailed 

by a third vehicle occupied by at least 

1 armed escort. 

(2) As permitted by law, all armed 

escorts are equipped with a minimum of 

2 weapons. This requirement does not 

apply to local law enforcement agency 

personnel who are performing escort 

duties. 

(3) The transport vehicle and each 

escort vehicle are equipped with 

redundant communication abilities that 

provide for 2-way communications 

between the transport vehicle, the escort 

vehicle(s), the movement control center, 

local law enforcement agencies, and one 

another at all times. Alternate 

communications should not be subject 

to the same failure modes as the primary 

communication. 

(4) The transport vehicle is equipped 

with the NRC-approved features that 

permit immobilization of the cab or 

cargo-carrying portion of the vehicle. 

(5) The transport vehicle driver has 

been familiarized with, and is capable of 

implementing, transport vehicle 

immobilization, communications, and 

other security procedures. 

(6) Shipments are continuously and 

actively monitored by a telemetric 

position monitoring system or an 

alternative tracking system reporting to 

a movement control center. A 

movement control center shall provide 

positive confirmation of the location, 

status, and control over the shipment. 

The movement control center shall 

implement preplanned procedures in 

response to deviations from the 

authorized route or a notification of 

actual, attempted, or suspicious 

activities related to the theft, loss, 

diversion, or radiological sabotage of a 

shipment. These procedures will 

include, but not be limited to, the 

identification of and contact 

information for the appropriate local 

law enforcement agency along the 

shipment route. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
62712 Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Proposed Rules 

(d) Shipments by rail. In addition to 

the provisions of paragraph (b) of this 

section, the physical protection system 

for any portion of a spent nuclear fuel 

shipment by rail shall provide that: 

(1) A shipment car is accompanied by 

2 armed escorts (who may be members 

of a local law enforcement agency), at 

least 1 of whom is stationed at a 

location on the train that will permit 

observation of the shipment car while in 

motion. 

(2) As permitted by law, all armed 

escorts are equipped with a minimum of 

2 weapons. This requirement does not 

apply to local law enforcement agency 

personnel who are performing escort 

duties. 

(3) The train operator(s) and each 

escort are equipped with redundant 

communication abilities that provide for 

2-way communications between the 

transport, the escort vehicle(s), the 

movement control center, local law 

enforcement agencies, and one another 

at all times. Alternate communications 

should not be subject to the same failure 

modes as the primary communication. 

(4) Rail shipments are monitored by a 

telemetric position monitoring system 

or an alternative tracking system 

reporting to the licensee, third-party, or 

railroad movement control center. The 

movement control center shall provide 

positive confirmation of the location of 

the shipment and its status. The 

movement control center shall 

implement preplanned procedures in 

response to deviations from the 

authorized route or to a notification of 

actual, attempted, or suspicious 

activities related to the theft, diversion, 

or radiological sabotage of a shipment. 

These procedures will include, but not 

be limited to, the identification of and 

contact information for the appropriate 

local law enforcement agency along the 

shipment route. 

(e) Shipments by sea. In addition to 

the provisions of paragraph (b) of this 

section, the physical protection system 

for any portion of a spent nuclear fuel 

shipment that is by sea shall provide 

that: 

(1) A shipment vessel, while docked 

at a U.S. port is protected by: 

(i) Two armed escorts stationed on 

board the shipment vessel, or stationed 

on the dock at a location that will 

permit observation of the shipment 

vessel; or 

(ii) A member of a local law 

enforcement agency, equipped with 

normal local law enforcement agency 

radio communications, who is stationed 

on board the shipment vessel, or on the 

dock at a location that will permit 

observation of the shipment vessel. 

(2) As permitted by law, all armed 

escorts are equipped with a minimum of 

2 weapons. This requirement does not 

apply to local law enforcement agency 

personnel who are performing escort 

duties. 

(3) A shipment vessel while within 

U.S. territorial waters shall be 

accompanied by an individual, who 

may be an officer of the shipment 

vessel’s crew, who will assure that the 

shipment is unloaded only as 

authorized by the licensee. 

(4) Each armed escort is equipped 

with redundant communication abilities 

that provide for 2-way communications 

between the vessel, the movement 

control center, local law enforcement 

agencies, and one another at all times. 

Alternate communications should not 

be subject to the same failure modes as 

the primary communication. 

(f) Investigations. Each licensee who 

makes arrangements for the shipment of 

spent nuclear fuel shall immediately 

conduct an investigation, in 

coordination with the receiving 

licensee, of any shipment that is lost or 

unaccounted for after the designated nolater-than arrival time in the advance 

notification. 

(g) State officials, State employees, 

and other individuals, whether or not 

licensees of the Commission, who 

receive information of the kind 

specified in paragraph (b)(2)(iii) of this 

section and any other safeguards 

information as defined in § 73.22(a) 

shall protect that information against 

unauthorized disclosure as specified in 

§§ 73.21 and 73.22 of this part. 

3. Add § 73.38 to read as follows: 

§ 73.38 Personnel access authorization 

requirements for irradiated reactor fuel in 

transit. 

(a) General. (1) Each licensee who 

transports, or delivers to a carrier for 

transport, in a single shipment, a 

quantity of spent nuclear fuel as 

described in § 73.37 (a)(1) shall comply 

with the requirements of this section, as 

appropriate, before any spent nuclear 

fuel is transported or delivered to a 

carrier for transport. 

(2) Each licensee shall establish, 

implement, and maintain its access 

authorization program under the 

requirements of this section. 

(i) Each licensee shall be responsible 

for the continuing effectiveness of the 

access authorization program. 

(ii) Each licensee shall ensure that the 

access authorization program is 

reviewed at an appropriate frequency to 

confirm compliance with the 

requirements of this section and that 

comprehensive actions are taken to 

correct any noncompliance that is 

identified. 

(iii) The review shall evaluate all 

program performance objectives and 

requirements. 

(iv) Each review report must 

document conditions that are adverse to 

the proper performance of the access 

authorization program, the cause of the 

condition(s), and when appropriate, 

recommended corrective actions, and 

corrective actions taken. The licensee 

shall review the audit findings and take 

any additional corrective actions 

necessary to preclude repetition of the 

condition, including reassessment of the 

deficient areas where indicated. 

(3) By (30 days after date the final rule 

is published in the Federal Register), 

each licensee that is subject to this 

provision on (effective date of final rule) 

shall implement the requirements of 

this section through revisions to its 

physical security plan. 

(b) General performance objective. 

The licensee’s access authorization 

program must ensure that the 

individuals specified in paragraph (c) of 

this section are trustworthy and reliable 

such that they do not constitute an 

unreasonable risk to public health and 

safety or the common defense and 

security. 

(c) Applicability. (1) Licensees shall 

subject the following individuals to an 

access authorization program: 

(i) Any individual to whom a licensee 

intends to grant unescorted access to 

spent nuclear fuel in transit, including 

employees of a contractor or vendor; 

(ii) Any individual whose duties and 

responsibilities permit the individual to 

take actions by physical or electronic 

means that could adversely impact the 

safety, security, or emergency response 

to spent nuclear fuel in transit (i.e., 

movement control personnel, vehicle 

drivers, or other individuals 

accompanying spent nuclear fuel 

shipments) 

(iii) Any individual whose duties and 

responsibilities include implementing a 

licensee’s physical protection program 

under § 73.37, including but not limited 

to, non-LLEA armed escorts; 

(iv) Any individual whose assigned 

duties and responsibilities provide 

access to spent nuclear fuel shipment 

information that is considered to be 

Safeguards Information under 

§ 73.22(a)(2); and 

(v) The licensee access authorization 

program reviewing official. 

(2) Persons identified in § 73.59 are 

not subject to the investigative elements 

of the access authorization program. 

(d) Background Investigation. Before 

allowing an individual to have 

unescorted access or access 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Proposed Rules 62713 

2For purposes of 10 CFR 73.38, the terms 

‘‘irradiated reactor fuel’’ as described in 10 CFR 

73.37 and ‘‘spent nuclear fuel’’ are used 

interchangeably. 

authorization relative to spent nuclear 

fuel 2 in transit the licensees shall 

complete a background investigation as 

defined in § 73.2 of the individual 

seeking to have unescorted access or 

access authorization. The scope of the 

investigation must encompass at least 

the past 10 years, or if 10 years of 

information is not available then as 

many years in the past that information 

is available. The background 

investigation does not apply to Federal, 

State or local law enforcement 

personnel who are performing escort 

duties. The background investigation 

must include, but is not limited to, the 

following elements: 

(1) Informed consent. Licensees shall 

not initiate any element of a background 

investigation without the informed and 

signed consent of the subject individual. 

This consent shall include authorization 

to share personal information with 

appropriate entities. The licensee to 

whom the individual is applying for 

access authorization shall inform the 

individual of his or her right to review 

information collected to assure its 

accuracy, and provide the individual 

with an opportunity to correct any 

inaccurate or incomplete information 

that is developed by the licensee. 

(i) The subject individual may 

withdraw his or her consent at any time. 

Licensees shall inform the individual 

that: 

(A) Withdrawal of his or her consent 

will remove the individual’s application 

for access authorization under the 

licensee’s access authorization program; 

and 

(B) Other licensees shall have access 

to information documenting the 

withdrawal. 

(ii) If an individual withdraws his or 

her consent, licensees may not initiate 

any elements of the background 

investigation that were not in progress 

at the time the individual withdrew his 

or her consent, but shall complete any 

background investigation elements that 

are in progress at the time consent is 

withdrawn. The licensee shall record 

the status of the individual’s application 

for access authorization. Additionally, 

licensees shall collect and maintain the 

individual’s application for access 

authorization; his or her withdrawal of 

consent for the background 

investigation; the reason given by the 

individual for the withdrawal; and any 

pertinent information collected from the 

background investigation elements that 

were completed. This information must 

be shared with other licensees under 

paragraph (l)(4) of this section. 

(iii) Licensees shall inform, in writing, 

any individual who is applying for 

access authorization that the following 

actions are sufficient cause for denial or 

unfavorable termination of access 

authorization status: 

(A) Refusal to provide a signed 

consent for the background 

investigation; 

(B) Refusal to provide, or the 

falsification of, any personal history 

information required under this section, 

including the failure to report any 

previous denial or unfavorable 

termination of access authorization; 

(C) Refusal to provide signed consent 

for the sharing of personal information 

with other licensees under paragraph 

(d)(5)(v) of this section; or 

(D) Failure to report any arrests or 

legal actions specified in paragraph (f) 

of this section. 

(2) Personal history disclosure. Any 

individual who is required to have a 

background investigation under this 

section shall disclose the personal 

history information that is required by 

the licensee’s access authorization 

program for the reviewing official to 

make a determination of the 

individual’s trustworthiness and 

reliability. Refusal to provide, or the 

falsification of, any personal history 

information required by this section is 

sufficient cause for denial or 

termination of access authorization. 

(3) Fingerprinting. Fingerprinting and 

an FBI identification and criminal 

history records check under § 73.57. 

(4) Verification of true identity. 

Licensees shall verify the true identity 

of an individual who is applying to have 

access authorization to ensure that the 

applicant is who they claim to be. A 

licensee shall review official 

identification documents (e.g., driver’s 

license, passport, government 

identification, State, province, or 

country of birth issued certificate of 

birth) and compare the documents to 

personal information data provided by 

the individual to identify any 

discrepancy in the information. 

Licensees shall document the type, 

expiration, and identification number of 

the identification, or maintain a 

photocopy of identifying documents on 

file under § 73.38(c). Licensees shall 

certify and affirm in writing that the 

identification was properly reviewed 

and maintain the certification and all 

related documents for review upon 

inspection. 

(5) Employment history evaluation. 

Licensees shall ensure that an 

employment history evaluation has been 

completed on a best effort basis, by 

questioning the individual’s present and 

former employers, and by determining 

the activities of the individual while 

unemployed. 

(i) For the claimed employment 

period, the individual must provide the 

reason for any termination, eligibility 

for rehire, and other information that 

could reflect on the individual’s 

trustworthiness and reliability. 

(ii) If the claimed employment was 

military service the individual shall 

provide a characterization of service, 

reason for separation, and any 

disciplinary actions that could affect a 

trustworthiness and reliability 

determination. 

(iii) If education is claimed in lieu of 

employment, the individual shall 

provide any information related to the 

claimed education that could reflect on 

the individual’s trustworthiness and 

reliability and, at a minimum, verify 

that the individual was registered for 

the classes and received grades that 

indicate that the individual participated 

in the educational process during the 

claimed period. 

(iv) If a previous employer, 

educational institution, or any other 

entity with which the individual claims 

to have been engaged fails to provide 

information or indicates an inability or 

unwillingness to provide information 

within 3 business days of the request, 

the licensee shall: 

(A) Document this refusal or 

unwillingness in the licensee’s record of 

the investigation; and 

(B) Obtain a confirmation of 

employment, educational enrollment 

and attendance, or other form of 

engagement claimed by the individual 

from at least one alternate source that 

has not been previously used. 

(v) When any licensee is seeking the 

information required for an access 

authorization decision under this 

section and has obtained a signed 

release from the subject individual 

authorizing the disclosure of such 

information, other licensees shall make 

available the personal or access 

authorization information requested 

regarding the denial or unfavorable 

termination of an access authorization. 

(vi) In conducting an employment 

history evaluation, the licensee may 

obtain information and documents by 

electronic means, including, but not 

limited to, telephone, facsimile, or email. Licensees shall make a record of 

the contents of the telephone call and 

shall retain that record, and any 

documents or electronic files obtained 

electronically, under paragraph (l) of 

this section. 

(6) Credit history evaluation. 

Licensees shall ensure the evaluation of 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
62714 Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Proposed Rules 

the full credit history of any individual 

who is applying for access authorization 

relative to spent nuclear fuel in transit. 

A full credit history evaluation must 

include, but is not limited to, an inquiry 

to detect potential fraud or misuse of 

social security numbers or other 

financial identifiers, and a review and 

evaluation of all of the information that 

is provided by a national creditreporting agency about the individual’s 

credit history. For foreign nationals and 

United States citizens who have resided 

outside the United States and do not 

have established credit history that 

covers at least the most recent 7 years 

in the United States, the licensee must 

document all attempts to obtain 

information regarding the individual’s 

credit history and financial 

responsibility from some relevant entity 

located in that other country or 

countries. 

(7) Criminal history review. The 

licensee shall evaluate the entire 

criminal history record of an individual 

who is applying for access authorization 

to determine whether the individual has 

a record of criminal activity that may 

adversely impact his or her 

trustworthiness and reliability. The 

scope of the applicant’s criminal history 

review must cover all residences of 

record for the 10 year period preceding 

the date of application for access 

authorization. 

(8) Character and reputation 

determination. Licensees shall ascertain 

the character and reputation of an 

individual who has applied for access 

authorization relative to spent nuclear 

fuel in transit by conducting reference 

checks. Reference checks may not be 

conducted with any person who is 

known to be a close member of the 

individual’s family, including but not 

limited to, the individual’s spouse, 

parents, siblings, or children, or any 

individual who resides in the 

individual’s permanent household. The 

reference checks must focus on the 

individual’s reputation for 

trustworthiness and reliability. 

(9) Obtain independent Information. 

The licensee shall also, to the extent 

possible, obtain independent 

information to corroborate that provided 

by the individual (e.g., seek references 

not supplied by the individual). 

(e) Determination of Trustworthiness 

and Reliability; Documentation. (1) The 

licensee shall determine whether to 

grant, deny, unfavorably terminate, 

maintain, or administratively withdraw 

an individual’s access authorization 

based on an evaluation of all of the 

information required by this section. 

The licensee may terminate or 

administratively withdraw an 

individual’s access authorization based 

on information obtained after the 

background investigation has been 

completed and the individual granted 

access authorization. 

(2) The licensee may not permit any 

individual to have unescorted access or 

access authorization until all of the 

information required by this section has 

been evaluated by the reviewing official 

and the reviewing official has 

determined that the individual is 

trustworthy and reliable. The licensee 

may deny unescorted access or access 

authorization to any individual based 

on disqualifying information obtained at 

any time during the background 

investigation. 

(f) Protection of Information. (1) 

Licensees shall protect background 

investigation information from 

unauthorized disclosure. 

(2) Licensees may not disclose the 

background investigation information 

collected and maintained to persons 

other than the subject individual, his/ 

her representative, or to those who have 

a need to know in performing assigned 

duties related to the process of granting 

or denying unescorted access to spent 

nuclear fuel in transit. No individual 

authorized to have access to the 

information may re-disseminate the 

information to any other individual who 

does not have a need to know. 

(3) The personal information obtained 

on an individual from a background 

investigation may be transferred to 

another licensee: 

(i) Upon the individual’s written 

request to the licensee holding the data 

to re-disseminate the information 

contained in his/her file; and 

(ii) The acquiring licensee verifies 

information such as name, date of birth, 

social security number, sex, and other 

applicable physical characteristics for 

identification. 

(4) The licensee shall make 

background investigation records 

obtained under this section available for 

examination by an authorized 

representative of NRC to determine 

compliance with applicable laws and 

regulations. 

(5) The licensee shall retain all 

fingerprint and criminal history records 

received from the FBI, or a copy if the 

file has been transferred, on an 

individual (including data indicating no 

record) for 5 years from the date the 

individual no longer requires 

unescorted access or access 

authorization relative to spent nuclear 

fuel in transit. 

(g) Grandfathering. For purposes of 

this section, licensees are not required 

to obtain the fingerprints of any person 

who has been fingerprinted, pursuant to 

an NRC order or regulation, for an FBI 

identification and criminal history 

records check within the 5 years of the 

effective date of this rule. 

(h) Reinvestigations. Licensees shall 

conduct fingerprinting and FBI 

identification and criminal history 

records check, a criminal history 

review, and credit history re-evaluation 

every 10 years for any individual who 

has unescorted access authorization to 

spent nuclear fuel in transit. The 

reinvestigations must be completed 

within 10 years of the date on which 

these elements were last completed and 

should address the 10 years following 

the previous investigation. 

(i) Self-reporting of legal actions. (1) 

Any individual who has applied for an 

access authorization or is maintaining 

an access authorization under this 

section shall promptly report to the 

reviewing official, his or her supervisor, 

or other management personnel 

designated in licensee procedures any 

legal action(s) taken by a law 

enforcement authority or court of law to 

which the individual has been subject 

that could result in incarceration or a 

court order or that requires a court 

appearance, including but not limited to 

an arrest, an indictment, the filing of 

charges, or a conviction, but excluding 

minor civil actions or misdemeanors 

such as parking violations or speeding 

tickets. The recipient of the report shall, 

if other than the reviewing official, 

promptly convey the report to the 

reviewing official. On the day that the 

report is received, the reviewing official 

shall evaluate the circumstances related 

to the reported legal action(s) and redetermine the reported individual’s 

access authorization status. 

(2) The licensee shall inform the 

individual of this obligation, in writing, 

prior to granting unescorted access or 

certifying access authorization. 

(j) Access Authorization Procedures. 

(1) Licensees shall develop, implement, 

and maintain written procedures for 

conducting background investigations 

for persons who are applying for 

unescorted access or access 

authorization for spent nuclear fuel in 

transit. 

(2) Licensees shall develop, 

implement, and maintain written 

procedures for updating background 

investigations for persons who are 

applying for reinstatement of unescorted 

access or access authorization. 

(3) Licensees shall develop, 

implement, and maintain written 

procedures to ensure that persons who 

have been denied unescorted access or 

access authorization are not allowed 

access to spent nuclear fuel in transit or 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Proposed Rules 62715 

3For purposes of 10 CFR 73.72, the terms 

‘‘irradiated reactor fuel’’ as described in 10 CFR 

73.37 and ‘‘spent nuclear fuel’’ are used 

interchangeably. 

information relative to spent nuclear 

material in transit. 

(4) Licensees shall develop, 

implement, and maintain written 

procedures for the notification of 

individuals who are denied unescorted 

access or access authorization for spent 

nuclear fuel in transit. The procedures 

must include provisions for the review, 

at the request of the affected individual, 

of a denial or termination of unescorted 

access or access authorization. The 

procedure must contain a provision to 

ensure that the individual is informed of 

the grounds for the denial or 

termination of unescorted access or 

access authorization and allow the 

individual an opportunity to provide 

additional relevant information. 

(k) Right to correct and complete 

information. (1) Prior to any final 

adverse determination, licensees shall 

provide each individual subject to this 

section with the right to complete, 

correct, and explain information 

obtained as a result of the licensee’s 

background investigation. Confirmation 

of receipt by the individual of this 

notification must be maintained by the 

licensee for a period of 1 year from the 

date of the notification. 

(2) If after reviewing their criminal 

history record an individual believes 

that it is incorrect or incomplete in any 

respect and wishes to change, correct, 

update, or explain anything in the 

record, the individual may initiate 

challenge procedures. 

(l) Records. (1) The licensee shall 

retain documentation regarding the 

trustworthiness and reliability of 

individual employees for 5 years from 

the date the individual no longer 

requires unescorted access or access 

authorization relative to spent nuclear 

fuel in transit. 

(2) The licensee shall retain a copy of 

the current access authorization 

program procedures as a record for 5 

years after the procedure is no longer 

needed or until the Commission 

terminates the license, if the license is 

terminated before the end of the 

retention period. If any portion of the 

procedure is superseded, the licensee 

shall retain the superseded material for 

5 years after the record is superseded. 

(3) The licensee shall retain the list of 

persons approved for unescorted access 

or access authorization and the list of 

those individuals that have been denied 

unescorted access or access 

authorization for 5 years after the list is 

superseded or replaced. 

(4) Licensees who have been 

authorized to add or manipulate data 

that is shared with licensees subject to 

this section shall ensure that data linked 

to the information about individuals 

who have applied for unescorted access 

or access authorization, which is 

specified in the licensee’s access 

authorization program documents, is 

retained. 

(i) If the shared information used for 

determining individual’s 

trustworthiness and reliability changes 

or new or additional information is 

developed about the individual, the 

licensees that acquire this information 

shall correct or augment the data and 

ensure it is shared with licensees 

subject to this section. If the changed, 

additional or developed information has 

implications for adversely affecting an 

individual’s trustworthiness and 

reliability, licensees who discovered or 

obtained the new, additional or changed 

information, shall, on the day of 

discovery, inform the reviewing official 

of any licensee access authorization 

program under which the individual is 

maintaining his or her unescorted 

access or access authorization status of 

the updated information. 

(ii) The reviewing official shall 

evaluate the shared information and 

take appropriate actions, which may 

include denial or unfavorable 

termination of the individual’s 

unescorted access or access 

authorization. If the notification of 

change or updated information cannot 

be made through usual methods, 

licensees shall take manual actions to 

ensure that the information is shared as 

soon as reasonably possible. Records 

maintained in any database(s) must be 

available for the NRC review. 

(5) If a licensee administratively 

withdraws an individual’s unescorted 

access or access authorization status 

caused by a delay in completing any 

portion of the background investigation 

or for a licensee initiated evaluation, or 

re-evaluation that is not under the 

individual’s control, the licensee shall 

record this administrative action to 

withdraw the individual’s unescorted 

access or unescorted access 

authorization with other licensees 

subject to this section. However, 

licensees shall not document this 

administrative withdrawal as denial or 

unfavorable termination and shall not 

respond to a suitable inquiry conducted 

under the provisions of 10 CFR part 26, 

a background investigation conducted 

under the provisions of this section, or 

any other inquiry or investigation as 

denial nor unfavorable termination. 

Upon favorable completion of the 

background investigation element that 

caused the administrative withdrawal, 

the licensee shall immediately ensure 

that any matter that could link the 

individual to the administrative action 

is eliminated from the subject 

individual’s access authorization or 

personnel record and other records, 

except if a review of the information 

obtained or developed causes the 

reviewing official to unfavorably 

terminate or deny the individual’s 

unescorted access. 

4. In § 73.71, paragraphs (a) 

introductory text, (a)(1), (a)(4), (a)(5) and 

(b) are revised to read as follows: 

§ 73.71 Requirement for advance notice of 

shipment of formula quantities of strategic 

special nuclear material, special nuclear 

material of moderate strategic significance, 

or irradiated reactor fuel. 

(a) A licensee, other than one 

specified in paragraph (b) of this 

section, who, in a single shipment, 

plans to deliver to a carrier for transport, 

to take delivery at the point where a 

shipment is delivered to a carrier for 

transport, to import, to export, or to 

transport a formula quantity of strategic 

special nuclear material, special nuclear 

material of moderate strategic 

significance, or irradiated reactor fuel 3

required to be protected in accordance 

with § 73.37, shall: 

(1) Notify in writing the Director, 

Division of Security Policy, Office of 

Nuclear Security and Incident 

Response, using any appropriate 

method listed in § 73.4. Classified 

notifications shall be sent to the NRC 

headquarters classified mailing address 

listed in appendix A to this part. 

* * * * * 

(4) The NRC Headquarters Operations 

Center shall be notified about the 

shipment status by telephone at the 

phone numbers listed in appendix A to 

this part. Classified notifications shall 

be made by secure telephone. The 

notifications shall take place at the 

following intervals: 

(i) At least 2 days before 

commencement of the shipment; 

(ii) Two hours before commencement 

of the shipment; and 

(iii) Once the shipment is received at 

its destination. 

(5) The NRC Headquarters Operations 

Center shall be notified by telephone of 

schedule changes of more than 6 hours 

at the phone numbers listed in 

Appendix A to this part. Classified 

notifications shall be made by secure 

telephone. 

(b) A licensee who conducts an onsite transfer of spent nuclear fuel that 

does not travel upon or cross a public 

highway is exempt from the 

requirements of this section for that 

transfer. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
62716 Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Proposed Rules 

Dated at Rockville, Maryland, this 1st day 

of October 2010. 

For the Nuclear Regulatory Commission. 

Annette Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. 2010–25392 Filed 10–12–10; 8:45 am] 

BILLING CODE 7590–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2010–1021; Directorate 

Identifier 2010–CE–053–AD] 

RIN 2120–AA64 

Airworthiness Directives; Pacific 

Aerospace Limited Model FU24–954 

and FU24A–954 Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: We propose to adopt a new 

airworthiness directive (AD) for the 

products listed above that would 

supersede two existing ADs. This 

proposed AD results from mandatory 

continuing airworthiness information 

(MCAI) originated by an aviation 

authority of another country to identify 

and correct an unsafe condition on an 

aviation product. The MCAI describes 

the unsafe condition as: 

To prevent possible in-flight failure of the 

vertical stabiliser, leading to loss of control 

of the aircraft * * * 

The proposed AD would require actions 

that are intended to address the unsafe 

condition described in the MCAI. 

DATES: We must receive comments on 

this proposed AD by November 29, 

2010. 

ADDRESSES: You may send comments by 

any of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: (202) 493–2251. 

• Mail: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590. 

• Hand Delivery: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

Examining the AD Docket 

You may examine the AD docket on 

the Internet at http:// 

www.regulations.gov; or in person at the 

Docket Management Facility between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. The AD 

docket contains this proposed AD, the 

regulatory evaluation, any comments 

received, and other information. The 

street address for the Docket Office 

(telephone (800) 647–5527) is in the 

ADDRESSES section. Comments will be 

available in the AD docket shortly after 

receipt. 

FOR FURTHER INFORMATION CONTACT: Karl 

Schletzbaum, Aerospace Engineer, FAA, 

Small Airplane Directorate, 901 Locust, 

Room 301, Kansas City, Missouri 64106; 

telephone: (816) 329–4146; fax: (816) 

329–4090. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

We invite you to send any written 

relevant data, views, or arguments about 

this proposed AD. Send your comments 

to an address listed under the 

ADDRESSES section. Include ‘‘Docket No. 

FAA–2010–1021; Directorate Identifier 

2010–CE–053–AD’’ at the beginning of 

your comments. We specifically invite 

comments on the overall regulatory, 

economic, environmental, and energy 

aspects of this proposed AD. We will 

consider all comments received by the 

closing date and may amend this 

proposed AD because of those 

comments. 

We will post all comments we 

receive, without change, to http:// 

regulations.gov, including any personal 

information you provide. We will also 

post a report summarizing each 

substantive verbal contact we receive 

about this proposed AD. 

Discussion 

On February 4, 2004, we issued AD 

2004–03–29, Amendment 39–13473 (69 

FR 6553; February 11, 2004) and on 

June 30, 2008, we issued AD 2008–14– 

12, Amendment 39–15607 (73 FR 

40951; July 17, 2008). Those ADs 

required actions intended to address an 

unsafe condition on the products listed 

above. 

Since we issued AD 2008–14–12, 

Pacific Aerospace Limited has 

developed a new vertical stabilizer 

design to eliminate the cracking in the 

vertical stabilizer that occurred with the 

original design. The new vertical 

stabilizer design incorporates a forward 

spar and is a failsafe structure. 

The Civil Aviation Authority (CAA), 

which is the aviation authority for New 

Zealand, has issued AD DCA/FU24/178, 

dated April 30, 2009 (referred to after 

this as ‘‘the MCAI’’), to correct an unsafe 

condition for the specified products. 

The MCAI states: 

To prevent possible in-flight failure of the 

vertical stabiliser, leading to loss of control 

of the aircraft * * * 

Replace the vertical stabiliser with P/N 08– 

32005–2 by accomplishing modification 

PAC/FU/0345 in accordance with the 

instructions in Pacific Aerospace Limited 

Mandatory SB No. PACSB/FU/094 issue1 

dated 14 August 2008 * * * 

The MCAI requires replacement of the 

vertical stabilizer with a new design that 

incorporates a forward spar and is a 

failsafe structure. You may obtain 

further information by examining the 

MCAI in the AD docket. 

Relevant Service Information 

Pacific Aerospace Limited has issued 

Mandatory Service Bulletin PACSB/FU/ 

094, Issue 1, dated August 14, 2008. The 

actions described in this service 

information are intended to correct the 

unsafe condition identified in the 

MCAI. 

FAA’s Determination and Requirements 

of the Proposed AD 

This product has been approved by 

the aviation authority of another 

country, and is approved for operation 

in the United States. Pursuant to our 

bilateral agreement with this State of 

Design Authority, they have notified us 

of the unsafe condition described in the 

MCAI and service information 

referenced above. We are proposing this 

AD because we evaluated all 

information and determined the unsafe 

condition exists and is likely to exist or 

develop on other products of the same 

type design. 

Differences Between This Proposed AD 

and the MCAI or Service Information 

We have reviewed the MCAI and 

related service information and, in 

general, agree with their substance. But 

we might have found it necessary to use 

different words from those in the MCAI 

to ensure the AD is clear for U.S. 

operators and is enforceable. In making 

these changes, we do not intend to differ 

substantively from the information 

provided in the MCAI and related 

service information. 

We might also have proposed 

different actions in this AD from those 

in the MCAI in order to follow FAA 

policies. Any such differences are 

highlighted in a Note within the 

proposed AD. 

Costs of Compliance 

We estimate that this proposed AD 

will affect 3 products of U.S. registry. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS