[Federal Register Volume 64, Number 244 (Tuesday, December 21, 1999)]
[Proposed Rules]
[Pages 71331-71333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32929]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 71 and 73
RIN 3150-AG41
Advance Notification to Native American Tribes of Transportation
of Certain Types of Nuclear Waste
AGENCY: Nuclear Regulatory Commission.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is considering an
amendment to its regulations that would require NRC licensees to notify
Native American Tribes of shipments of certain types of high-level
radioactive waste, including spent nuclear fuel, prior to transport to
or across the boundary of Tribal lands. Current NRC regulations require
advance notification of these shipments to States. In recognition of
Tribal sovereignty and the need for Tribes to be informed about
activities that occur on Tribal lands, the NRC seeks to extend these
regulations to include advance notification of these shipments to
Federally recognized Native American Tribes. This advance notice of
proposed rulemaking is issued to invite early input from affected
parties and the public on the issue of advance notification.
DATES: The comment period expires March 22, 2000. Comments received
after this date will be considered if it is practical to do so, but the
Commission is able to assure consideration only for comments received
on or before this date.
ADDRESSES: Mail comments to: The Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Rulemakings and
Adjudications Staff.
Hand deliver comments to: 11555 Rockville Pike, Rockville,
Maryland, between 7:30 am and 4:15 pm on Federal workdays.
You may also provide comments via the NRC's interactive rulemaking
website (http://ruleforum.llnl). This site provides the availability to
upload comments as files (any format), if your web browser supports
that function. For information about the interactive rulemaking site,
contact Ms. Carol Gallagher, (301) 415-5905; e-mail [email protected].
Certain documents related to this rulemaking, including comments
received, may be examined at the NRC Public Document Room, 2120 L
Street NW. (Lower Level), Washington, DC. These same documents also may
be viewed and downloaded electronically via the rulemaking website.
FOR FURTHER INFORMATION CONTACT: Tony DiPalo, Office of Nuclear
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, telephone (301) 415-6191, e-mail [email protected]
or Stephanie R. Martz, Office of the General Counsel, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-
1520, e-mail SRM[email protected].
SUPPLEMENTARY INFORMATION:
Background
Current NRC regulations require that licensees inform State
governors of certain radioactive waste shipments passing through or
across the boundary of the State.
In particular, 10 CFR 71.97 requires advance notification to States
of shipments of certain types of radioactive waste and small quantities
of irradiated reactor fuel. The types of shipments covered by the Part
71 notification requirements are specified in 10 CFR 71.97(b).
In 10 CFR 73.37, advance notification to States of shipments of
certain quantities of irradiated reactor fuel is required. The
notification requirements in Part 73 apply to most shipments of
irradiated reactor fuel. The types of shipments covered by the Part 73
notification requirements are detailed in 10 CFR 73.37(a). NRC
regulations (10 CFR 73.37(g)) require State officials and other
individuals to protect schedule information related to these fuel
shipments from unauthorized disclosure as specified in 10 CFR 73.21.
The NRC was directed to promulgate these regulations by the NRC
Authorization Act for Fiscal Year 1980 (Sec. 301(a), Pub. L. 96-295).
In accordance with the notification procedures in Part 71, a
licensee must notify the governor of a State, or the governor's
designee, in writing, prior to a shipment of radioactive waste or
nuclear fuel. If the notification is delivered by mail, it must be
postmarked at least 7 days before the beginning of the 7-day period
during which it is estimated that the shipment will depart from its
point of origin. If the notification is hand-delivered, it must be
delivered at least 4 days before the beginning of the 7-day period
during which it is estimated that the shipment will depart from its
point of origin.
In accordance with 10 CFR 71.97, a list of the names and mailing
addresses of the governor's designees receiving advance notification is
published in the Federal Register and is updated on a
[[Page 71332]]
yearly basis (see, e.g., 64 FR 35197 (June 30, 1999)).
The notification for shipments under Part 71 must contain the
following information:
(1) The name, address, and telephone number of the shipper,
carrier, and receiver of the irradiated reactor fuel or nuclear waste
shipment;
(2) A description of the irradiated reactor fuel or nuclear waste
contained in the shipment;
(3) The point of origin of the shipment and the 7-day period during
which the shipment is estimated to depart;
(4) The 7-day period during which the shipment is estimated to
arrive at the State boundary;
(5) The shipment's destination and the 7-day period during which
the shipment is estimated to arrive at its destination; and
(6) A point of contact, with a telephone number, for current
shipment information.
If the schedule of the shipment changes by more than 6 hours from
the information furnished, the licensee must notify the governor or the
governor's designee (``the responsible party'') of the schedule change
by telephone (or other means), and must inform the responsible party of
the number of hours that the schedule has changed (i.e., advanced or
delayed) relative to the previously furnished information.
The notification for shipments under 10 CFR 73.37(f)(2) must
contain the following information:
(1) The name, address, and telephone number of the shipper,
carrier, and receiver;
(2) A description of the shipment;
(3) A listing of the routes to be used within the State; and
(4) A statement that certain information, which is provided as a
separate enclosure to the written notification, is required by NRC
regulations in 10 CFR 73.21 to be protected as Safeguards Information.
The information to be provided as a separate enclosure to the
notification under Part 73 is as follows:
(1) The estimated date and time of departure from the point of
origin of the shipment;
(2) The estimated date and time of entry into the State;
(3) For a single shipment whose schedule is not related to the
schedule of any subsequent shipment, a statement that schedule
information must be protected in accordance with the provisions of 10
CFR 73.21, as Safeguards Information, until at least 10 days after the
shipment has entered or originated within the State; and
(4) For a shipment in a series of shipments whose schedules are
related, a statement that schedule information must be protected in
accordance with the provisions of 10 CFR 73.21, as Safeguards
Information, until at least 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.
To help minimize the possibility for radiological sabotage,
schedules and itineraries for shipments of irradiated reactor fuel
under Part 73 are required to be protected as Safeguards Information.
State officials, State employees, and other responsible parties who
receive schedule information are required to protect that information
from unauthorized disclosure under 10 CFR 73.21 and 73.37(g). Title 10
of the Code of Federal Regulations, 10 CFR 73.21(a), stipulates that
information protection procedures employed by State and local police
forces are deemed to meet the information protection measures specified
in 10 CFR 73.21(b) through (i). Title 10 of the Code of Federal
Regulations, 10 CFR 73.21(c), specifically limits information
disclosure except to persons with an established ``need to know.'' For
State and local governments, these persons are either the governor, the
governor's designated representative, or a member of a State or local
law enforcement authority that is responsible for responding to
requests for assistance during safeguards emergencies. Title 10 of the
Code of Federal Regulations, 10 CFR 73.21(d), prescribes protection
required while the information is being used or stored, and 10 CFR
73.21(g) specifies the protection required when the information is
transmitted outside an authorized place of use or storage. With respect
to the provision of 10 CFR 73.37(f)(4) that the governor's
representative be notified in the event of a change in the schedule,
NRC policy is that the licensee need notify only a single designated
individual within each State (47 FR 600; January 6, 1982).
Further information regarding NRC's transportation requirements can
be found in NUREG-0725, ``Public Information Circular for Shipments of
Irradiated Reactor Fuel,'' Revision 13, October 1998. Single copies are
available for purchase from the National Technical Information Service,
5285 Port Royal Road, Springfield, Virginia 22161.
Specific Proposal
The Commission is considering amending Parts 71 and 73 to require
that licensees provide timely advance notification to Native American
Tribes prior to transport of certain types of nuclear waste, including
spent fuel, to or across the boundary of Tribal lands. This amendment
would require licensees to provide to the Native American Tribes
notification similar to that now required to be provided to the States.
In 1994, the U.S. Department of Energy (DOE) notified the NRC of
its intent to implement its Tribal notification policy for DOE's
shipments of spent nuclear fuel and high-level radioactive waste. DOE
presently accomplishes these shipments under DOE regulations. An
amendment to NRC regulations would clarify how DOE, when making
shipments under NRC regulations, and NRC licensees would provide
notification to Native American Tribes of spent nuclear fuel and high-
level radioactive waste shipments that pass to or across the boundary
of Tribal lands. Such an amendment would advance NRC's efforts to
recognize the sovereignty of Federally recognized Native American
Tribes in accordance with President Clinton's 1994 memorandum entitled,
``Government-to-Government Relations with Native American Tribal
Governments.'' [59 FR 22951; May 4, 1994] This memorandum states, in
part,
The United States Government has a unique legal relationship
with Native American tribal governments as set forth in the
Constitution of the United States, treaties, statutes, and court
decisions. As executive departments and agencies undertake
activities affecting Native American tribal rights or trust
resources, such activities should be implemented in a knowledgeable,
sensitive manner respectful of tribal sovereignty.
The President's memorandum does not impose any new obligations on
NRC, as an independent regulatory agency, or on other Executive
departments and agencies. However, this memorandum encourages Federal
agencies, among other things, to consult with Tribal governments,
before engaging in activities that may affect Tribes, and to remove any
procedural impediments to agencies being able to work directly with
Tribal governments.
To accomplish this, the memorandum encourages each Executive
department and agency to ``apply the requirements of Executive Order
Nos. 12875 (``Enhancing the Intergovernmental Partnership'') and 12866
(``Regulatory Planning and Review'') to design solutions and tailor
Federal programs, in appropriate circumstances, to address specific or
unique needs of tribal communities.''
[[Page 71333]]
The primary purpose of the rule contemplated by the Commission
would be to inform Native American Tribes of shipments passing to or
across the boundary of Tribal lands as a recognition of Tribal
sovereignty as well as the need for Tribes to be aware of activities
that occur on Tribal lands. While emergency preparedness would not be
the main reason for developing such a rule, Tribes that do have
emergency preparedness capabilities would benefit from notification.
Specific Considerations
Before the NRC prepares a proposed rule on the subject, the NRC is
seeking advice and recommendations on this matter from all interested
persons. Comments accompanied by supporting reasons are particularly
requested on the following questions arranged by topic:
A. Developing a List of Native American Tribe Contacts
A.1. In preparing the list of Tribal contacts, the NRC would most
likely look to the list of Federally recognized Native American Tribes
maintained by the Bureau of Indian Affairs (BIA), U.S. Department of
the Interior. Is this an appropriate approach? Are there any other
sources that the NRC should consider? (See the BIA website at http://
www.doi.gov/bureau-indian-affairs.html).
A.2. How can the NRC ensure that contact information is kept
current, particularly for smaller Tribes? In maintaining State
contacts, the NRC provides each State with the opportunity to update
its information annually. Should NRC follow the same approach for
Tribal contacts?
A.3. How can licensees effectively and efficiently provide
notification to Native American Tribes, particularly smaller Tribes, of
a schedule change that would require updated notification by telephone
at any time of day?
B. Minimizing the Licensees' Administrative Burden
B.1. In what ways can licensees comply with this advance
notification requirement, while keeping their administrative burden at
a minimum?
B.2. If a shipper is unable to make contact with a Tribe prior to
or during a shipment, should the shipment proceed?
C. Identifying the Location of Tribes Along Shipment Routes
C.1. How can licensees effectively and comprehensively identify the
location of Native American Tribes along a particular vehicle, rail, or
vessel shipment route?
C.2. Should DOE and NRC licensees develop and maintain a central
data base regarding the location of Tribal lands? Should NRC look to
Geographic Information System (GIS) resources to provide licensees with
information regarding the location of Tribal lands?
C.3. What types of Tribal lands should the rule apply to (e.g.,
Trust Lands, Fee Lands (i.e., lands owned by Native Americans but not
held in trust by the Federal government), etc.)?
D. Safeguards Information
D.1. Should advance notification of spent fuel shipments be
provided to any federally recognized Native American Tribe when spent
fuel shipments are transported to or across tribal boundaries?
D.2 The NRC's ``need-to-know'' requirement for advance notification
of spent fuel shipment information is found in 10 CFR 73.21. Should
this requirement be broadened to include other entities, such as
Federally recognized Native American Tribes?
D.3. Does wider dissemination of shipment information increase the
risk to safeguarding spent fuel shipments (i.e., protecting public
health and safety)? How should the NRC address any increase in risk
compared with the benefits to be gained from Tribal notification?
D.4. How should the rule address the point of contact for
Safeguards Information in the context of Tribal notification?
D.5. A recipient of Safeguards Information must expend resources to
ensure the information is handled properly. Are there Tribes who may
not wish to be recipients of Safeguards Information?
D.6. If a Tribal government receives Safeguards Information, should
the NRC review the Tribe's actions to control and protect Safeguards
Information?
D.7. 10 CFR 73.21(a) states that ``information protection
procedures employed by State and local police forces are deemed to meet
the information protection requirements of Sec. 73.21(b) through (i).''
Should the NRC determine the ability of Tribal governments to protect
Safeguards Information and, if so, how?
D.8. Should the contemplated rule include an exemption to the
notification requirement if there is reason to believe that a Tribe
will not be able to protect the Safeguards Information from disclosure?
What basis would the NRC need for granting such an exemption?
D.9. Should 10 CFR 73.37(f) be changed to a permissive form? That
is, should the licensee be permitted rather than required to release
Safeguards Information to responsible Tribal government officials?
The preliminary views expressed in this notice may change in light
of comments received. If the proposed rule is developed by the
Commission, there will be another opportunity for additional public
comment in connection with that proposed rule.
List of Subjects
10 CFR Part 71
Criminal penalties, Hazardous materials transportation, Nuclear
materials, Packaging and containers, Reporting and recordkeeping
requirements.
10 CFR Part 73
Criminal penalties, Hazardous materials transportation, Exports,
Imports, Nuclear materials, Nuclear power plants and reactors,
Reporting and recordkeeping requirements, and Security measures.
The authority citation for this document is: 42 U.S.C. 2201; 42
U.S.C. 5841.
Dated at Rockville, Maryland, this 14th day of December, 1999.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 99-32929 Filed 12-20-99; 8:45 am]
BILLING CODE 7590-01-P