[Federal Register Volume 74, Number 197 (Wednesday, October 14, 2009)]
[Rules and Regulations]
[Pages 52667-52675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24566]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 73
[NRC-2008-0458]
RIN 3150-AI31
Criminal Penalties; Unauthorized Introduction of Weapons
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations to authorize the imposition of Federal criminal penalties
on those who, without authorization, introduce weapons or explosives
into specified classes of facilities and installations subject to the
regulatory authority of the NRC. This action is necessary to implement
section 229, ``Trespass on Commission Installations,'' of the Atomic
Energy Act of 1954, as amended (AEA).
DATES: This rule is effective on April 12, 2010.
ADDRESSES: You can access publicly available documents related to this
document using the following methods:
Federal e-Rulemaking Portal: Go to http://www.regulations.gov and
search for documents filed under Docket ID [NRC-2008-0458]. Address
questions about NRC dockets to Carol Gallagher at 301-415-5905, e-mail
[email protected].
NRC's Public Document Room (PDR): The public may examine and have
copied for a fee publicly available documents at the NRC's PDR, Public
File Area O1 F21, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland.
NRC's Agencywide Documents Access and Management System (ADAMS):
Publicly available documents created or received at the NRC are
available electronically at the NRC's electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain
entry into ADAMS, which provides text and image files of NRC's public
documents. If you do not have access to ADAMS or if there are problems
in accessing the documents located in ADAMS, contact the NRC's PDR
reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to
[email protected].
FOR FURTHER INFORMATION CONTACT: James E. Adler, Office of the General
Counsel, telephone 301-415-1656, e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Public Comments
III. Discussion of the Final Rule
IV. Voluntary Consensus Standard
V. Finding of No Significant Environmental Impact: Environmental
Assessment
VI. Paperwork Reduction Act Statement
VII. Regulatory Analysis
VIII. Regulatory Flexibility Certification
IX. Backfit Analysis
X. Congressional Review Act
XI. Agreement State Compatibility
I. Background
Section 654 of the Energy Policy Act of 2005, ``Unauthorized
Introduction of Dangerous Weapons,'' amended Sec. 229 of the AEA (42
U.S.C. 2278a) to authorize the NRC to issue regulations that make it a
Federal crime to bring, without authorization, weapons or explosives
into facilities designated by the NRC.
[[Page 52668]]
This rule implements that legislative provision.
In 1956, Congress added Sec. 229 to the AEA. That section made it
a Federal crime to bring weapons or explosives, without authorization,
into facilities owned by the Atomic Energy Commission. With the
enactment of the Energy Reorganization Act in 1974, this provision
covered facilities now owned or occupied by the U.S. Department of
Energy (DOE) as well as the buildings occupied by the NRC. Section 229
of the AEA did not extend to facilities regulated by the NRC. Over the
years, there were incidents where individuals were successful in
bringing weapons into NRC-regulated facilities without authorization.
Fortunately, the individuals were not terrorists or others with
malevolent intent and no damage was done. In such circumstances, the
NRC had the ability to take action against its licensee for violation
of security requirements, but could not refer the matter to the U.S.
Department of Justice (DOJ) for criminal prosecution of the individual;
any criminal sanctions had to be sought by the State under State law.
Beginning in the late 1980s, the NRC submitted legislative proposals to
Congress requesting that Congress enact legislation that would make it
a Federal crime to bring weapons or explosives, without authorization,
into NRC-designated facilities.
Congress enacted the requested legislation in Sec. 654 of the
Energy Policy Act of 2005, amending Sec. 229 of the AEA (42 U.S.C.
2278a). This section authorizes the NRC to
issue regulations relating to the entry upon or carrying,
transporting, or otherwise introducing or causing to be introduced
any dangerous weapon, explosive, or other dangerous instrument or
material likely to produce substantial injury or damage to person or
property, into or upon any facility, installation, or real property
subject to the jurisdiction, administration, in the custody of the
Commission, or subject to the licensing authority of the Commission
or certification by the Commission under this Act or any other Act.
Section 229 also requires that ``every such regulation of the
Commission shall be posted conspicuously at the location involved.''
II. Public Comments
The NRC published a proposed rule on September 3, 2008 (73 FR
51378) and provided the opportunity for public comment. The Federal
Register notice for the proposed rule identified certain issues about
which the NRC was particularly interested in receiving comments. These
issues included:
(1) Whether the rule's scope should be extended beyond the
facilities listed in the proposed rule to additionally cover hospitals
and other classes of facilities licensed to possess nationally tracked
sources that are in the National Source Tracking System;
(2) Whether terms used in the proposed rule such as ``dangerous
weapon,'' ``dangerous instrument or material,'' and ``explosive''
should be further defined, and what such definitions should be;
(3) Whether such definitions, if provided at all, should be set
forth in the rule itself or in a guidance document;
(4) Whether the proposed 90-day implementation period provides
licensees sufficient time to acquire and install the signs that the
rule would require licensees to post;
(5) Whether the proposed rule's language regarding sign location is
sufficient; and
(6) Whether the proposed rule's performance-based standard (i.e.,
``easily readable day and night'') should be replaced with more
detailed requirements or with a reference to a preexisting signage
standard, such as the standards promulgated under the Americans with
Disabilities Act.
Seventeen comments were received. A few commenters addressed the
issue of which facilities should be covered by the rule. Some of these
commenters favored extending coverage to hospitals and other facilities
possessing nuclear or radioactive material. Reasons given by such
commenters included:
(1) Anyone who introduces a dangerous weapon, explosive, or other
dangerous material into such a facility most likely intends to do harm;
(2) Anyone bringing such an item into a hospital or other facility
that stores nuclear or radioactive material should expect to be
penalized for doing so;
(3) Signs will ensure that the rule is not violated by accident,
although anyone who intends to cause harm in a covered facility would
likely not be deterred by the rule anyway; and
(4) Those seeking to access nuclear or radioactive materials in
such facilities for illicit purposes would likely be able to locate
those materials even if there are no signs posted pursuant to this
rule. Thus, it is not valid to view such signs as rendering sensitive
materials easier to find and therefore less secure.
Another commenter, however, recommended against extending the sign-
posting requirement to these facilities. This commenter (a major
medical institution) reasoned that:
(1) Signs would attract attention to the location of nationally
tracked sources, thereby potentially rendering them less secure, given
that many licensees currently try to avoid drawing attention to the
locations of such materials;
(2) The strong language in the posting could be frightening to
patients in hospitals, who may already be in a vulnerable state due to
their medical situations; and
(3) Persons with unescorted access to facility areas of concern can
simply be trained both to understand the rule themselves and to warn
persons they escort about the rule's existence.
This commenter also noted that if the National Source Tracking
System is expanded to include Category 3 and 1/10th Category 3 sources,
an expansion of the rule to cover hospitals or other facilities would
reach substantially more facilities than it otherwise would.
Several of the comments recommended that the NRC provide
definitions of terms such as ``dangerous weapon,'' ``explosive,'' and
``dangerous instrument or material.'' Commenters' justifications for
recommending definitions of these terms included promoting consistency
in licensee reporting of violations of this rule and minimizing
ambiguity in a rule whose violation may result in criminal prosecution.
One commenter suggested that the content of these definitions should
relate to the security capabilities of licensees to avoid prohibiting
introduction of items that could not realistically be used to overpower
plant security teams. Another commenter recommended that definitions be
included in the rule itself, with further information and illustrations
provided in a guidance document. Another commenter recommended that the
posted notices identify any items that ordinary persons would not
expect to be considered dangerous, but which nonetheless pose special
hazards in light of the nature of the facility or the material located
at the facility. Lastly, one commenter recommended that another term
used in the proposed rule, ``introduce,'' be defined more clearly to
ensure that the rule will apply to a person who introduces a dangerous
instrument (e.g., a bullet) into the protected area by some means that
does not require the person to pass beyond a sign (e.g., by firing a
gun from outside the protected area).
As to the proposed 90-day implementation period, two industry
commenters recommended that the period be extended to 180 days to allow
sufficient time for sign procurement and installation. No other
commenters expressed views on this issue.
A few comments addressed the issue of sign location. One of these
comments
[[Page 52669]]
recommended installing signs not only at entrances, but also within
protected areas to serve as additional reminders. Another comment
sought clarification regarding areas outside the protected area but
which nonetheless contain nuclear or radioactive material, such as
licensee effluent treatment facilities, low-enriched uranium storage
facilities, and radioactive waste storage facilities. The comment
recommended that the posting requirement not apply to such areas, in
light of the fact that entrants to such areas are not required to be
searched prior to entry. Lastly, one commenter suggested allowing
licensees the option of posting notices on roadways leading to facility
checkpoints or parking areas, in addition to the notices required to be
posted at vehicle and pedestrian entrances, in order to provide advance
warning and thus facilitate the avoidance of protected areas by people
carrying weapons.
Several commenters addressed the issue of sign characteristics.
Some commenters recommended inclusion of specific rules regarding text
size and color. One commenter suggested requiring lighting to ensure
readability at night, while other commenters preferred the more
flexible performance-based standard (i.e., ``easily readable day and
night'') utilized in the proposed rule. No commenters objected to the
requirement that the notices be readable at night.
A number of comments also addressed topics beyond those
specifically identified in the statement of considerations for the
proposed rule. One commenter recommended that the rule require
establishment of temporary weapons storage sites at pedestrian and
vehicle entrances, so that persons lawfully carrying firearms can store
any weapons before entering and pick them up when they leave. Another
commenter recommended that the rule be harmonized with existing DOE
signage regulations to avoid confusion or redundancy for those
facilities that would be required to comply with both regulatory
schemes. One commenter recommended that the rule define the term
``willful'' as ``an intentional act which may include evidence of
subterfuge, masking, or malevolent intent.'' Finally, the DOJ
recommended that the statement of considerations for the final rule
clarify that the Federal Bureau of Investigation is not the only
Federal entity other than the NRC that could potentially conduct
investigations of suspected violations of this rule.
All of these comments are discussed and addressed in Section III
below.
III. Discussion of the Final Rule
The NRC is amending 10 CFR 73.81, ``Criminal Penalties,'' and
adding Sec. 73.75, ``Posting,'' to implement Sec. 654 of the Energy
Policy Act of 2005. Under the regulations, the unauthorized willful
introduction of any dangerous weapon, explosive or any other dangerous
instrument or material likely to produce substantial injury or damage
to persons or property upon the facilities or installations subject to
Sec. Sec. 236a.(1) or (4) of the AEA will be subject to the criminal
penalties set forth in Sec. 229 of the AEA. Consistent with the Energy
Policy Act Sec. 654 requirement that the regulation be posted
conspicuously at each location involved, Sec. 73.75 will require
licensees to post notices at such facilities or installations.
Facilities Covered
The NRC is primarily concerned with dangers posed by the
unauthorized introduction of weapons or explosives or other dangerous
items when nuclear material and radioactive material are present. By
listing these facilities in section 236 of the AEA, Congress has
recognized the potential danger that could result from sabotage of such
facilities; consequently, the NRC believes it prudent to also make the
willful unauthorized introduction of weapons or explosives into or upon
these facilities a Federal crime. The covered facilities include
production and utilization facilities and uranium enrichment, uranium
conversion and fuel fabrication facilities. The rule also covers some
of the facilities listed in AEA Sec. 236a.(2). Specifically, this rule
would apply to high-level waste storage and disposal facilities and
independent spent fuel storage installations. The remaining waste
facilities and installations listed in Sec. 236a.(2) that are subject
to Agreement State jurisdiction may be covered in a future rulemaking.
For other classes of licensees, the unauthorized introduction of
weapons or explosives will continue to be governed, absent other
Federal legislation, by State law.
The final rule accounts for the fact that not all portions of the
listed classes of facilities will necessarily pose sufficient security
concerns to justify imposition of criminal penalties. Therefore, the
rule's application is limited to areas within a facility or
installation's protected area, as well as portions of facilities or
installations that are not within a protected area per se but for which
security plans under 10 CFR part 73 must nonetheless be in place. The
term ``protected facility or installation'' has also been added to the
final rule to refer solely to those portions of facilities that the
criminal penalties are intended to protect. The rule's reference to
security plan requirements under Part 73, which was not included in the
proposed rule, should resolve the ambiguity identified by a commenter
regarding certain portions of facilities that are outside the protected
area but which nonetheless contain nuclear or radioactive materials.
The NRC has limited the rule's applicability to the facilities
listed in Sec. Sec. 73.75(a) and 73.81(c)(2)(i) because the
unauthorized introduction of a weapon or explosive into these
facilities poses the greatest health and safety risk and because the
NRC already pervasively regulates these facilities. Other facilities--
such as hospitals--that contain radioactive materials are not as
extensively regulated by the NRC. In order to apply Sec. 73.81 to
these other facilities, the NRC would have needed to interact with
Agreement States and other State and Federal regulators to further
assess the need for application of Sec. 73.81 to these classes of
facilities and to determine the proper placement of the required
notices and the best way to implement this regulation. As suggested by
a public comment, adding posted notices--which, under the statute, is a
required complement to the imposition of criminal penalties--to
facilities such as hospitals could raise substantial policy and
implementation issues. While the NRC acknowledges the recommendations
of some commenters that hospitals and other facilities be addressed via
this rule, the NRC believes that such extension would raise additional
complexities that would be best addressed in a separate rulemaking,
should the NRC determine at a future date that expansion of the scope
of this rule is warranted.
The NRC is not including the following facilities or materials even
though they are listed in Sec. 236 of the AEA:
Subsection 236a.(3) covering any nuclear fuel for a
utilization facility licensed under this Act, or any spent fuel from
such a facility. Section 229 of the AEA specifically applies to
``facilities and installations,'' while this subsection applies to
``nuclear fuel'' and ``spent nuclear fuel.'' Fuel is neither a facility
nor installation; therefore, Sec. 229, by its terms, is not applicable
to this subsection.
Subsection 236a.(5) covering any ``production,
utilization, waste storage, waste treatment, waste disposal, uranium
enrichment, uranium conversion, or nuclear fuel fabrication facility''
during construction of the facility, if the destruction or damage
[[Page 52670]]
caused or attempted to be caused could adversely affect public health
and safety. The NRC is primarily concerned with dangers posed by the
unauthorized introduction of weapons or explosives into facilities when
special nuclear material, byproduct material, or source material is
present. Therefore, Sec. 73.81(c) will apply only to those facilities
designated in Sec. 73.81(c)(2)(i) upon the receipt of such material.
An unauthorized introduction of a weapon or explosive resulting in
sabotage covered by AEA Sec. 236 before the receipt of special nuclear
material, byproduct material, or source material already constitutes a
Federal crime. Although the proposed rule utilized the terms ``nuclear
material'' and ``radioactive material'' instead of ``special nuclear
material, byproduct material, or source material,'' the former terms
are potentially vague and imprecise. Therefore, the final rule is using
the latter terminology in order to avoid potential misinterpretation.
This change, which appears in Sec. Sec. 73.75(b)(2) and 73.81(c)(4),
is intended to be clarifying rather than substantive.
Subsection 236a.(6) covering any ``primary or backup
facility from which a radiological emergency preparedness alert or
warning system is activated.'' These facilities do not contain special
nuclear material, byproduct material, source material, or the controls
needed to operate a facility.
Subsection 236a.(7) pertaining to other materials or
property that the NRC designates by order or regulation. The NRC is
excluding this section because the rulemaking implementing this
subsection of Sec. 236 has not commenced. The NRC may revisit this
exclusion as part of the rulemaking implementing the Energy Policy Act
of 2005 revisions to Sec. 236, or in a separate rulemaking.
In response to a public comment, one class of facilities and
installations that is exempted under the final rule includes those
facilities and installations that already must comply with similar
signage requirements under DOE regulations. DOE regulations already
criminalize the unauthorized introduction of dangerous weapons,
explosives, or other dangerous instruments or materials into or upon
various facilities and installations within DOE's jurisdiction and
require that such facilities and installations post notices to that
effect. The DOE regulations, however, establish criminal penalties
that, while not substantially different, are nonetheless not identical
to those being established by this rule. Exempting these facilities
from this rule avoids establishing what would in effect be identical
crimes punishable by different penalties with respect to those
facilities.
Criminal Penalties, Investigation, and Prosecution
Under the final rule's terms, whoever willfully introduces, without
authorization, weapons or explosives into or upon any protected
facility or installation (as defined in Sec. 73.81(c)(2)) that is
enclosed by a fence, wall, floor, roof, or other barrier would be
guilty of a misdemeanor, and upon conviction, could be punished by a
fine not to exceed $5,000, or imprisonment for not more than one year,
or both, as set forth in section 229c of the AEA. Whoever willfully
introduces, without authorization, weapons or explosives into or upon
any other protected facility or installation would be, upon conviction,
punishable by a fine of not more than $1,000, as set forth in section
229b of the AEA. The maximum penalties would vary based upon whether
the facility in question is enclosed by a fence, wall, floor, roof, or
other barrier. The proposed rule's version of 73.81(c)(1) was worded in
a manner that, when read in conjunction with AEA sections 229b and
229c, was circular and potentially confusing. The final rule therefore
contains a reworded section 73.81(c)(1). This modification is not,
however, intended to change the substance of the rule in any way.
This final rule does not interfere with State prosecution of these
crimes under State law, but it does allow the Federal Bureau of
Investigation, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives, or other Federal law enforcement agencies to investigate
and DOJ to prosecute in addition to, or instead of, the State
government.
The NRC is also not making violations of Sec. 73.75 criminally
punishable under AEA sections 229b and 229c. The Commission's objective
in this rulemaking, which the Commission believes is consistent with
the Congressional intent, is to ensure that the criminal penalties in
sections 229b and 229c apply to persons who introduce weapons into
facilities without authorization. Furthermore, the NRC has sufficient
administrative sanctions at its disposal to enforce the posting
requirements.
Regulatory Burden--Posting of Signs
This regulation would not impose any burden on States. The only
burden the regulation would impose on licensees is the statutorily
mandated requirement that signs containing the quoted text in Sec.
73.75 be posted conspicuously at each of the listed facilities. The
rule requires that these signs be posted at all entrances to the
protected area, as well as all entrances to buildings not within a
protected area that nonetheless contain special nuclear material,
byproduct material, or source material (except with respect to
buildings for which security plans are not required under 10 CFR part
73). The link between the posting requirements and the NRC's security
plan requirements under part 73 has been added to the final rule in
response to a public comment to ensure consistency between the NRC's
security regulations and the criminal penalties (and licensee posting
obligations) being established. The signs may also include other
prohibitions already posted at the point of entry.
Although one commenter recommended that additional signs be posted
within each facility or installation to serve as further reminders of
the regulation's criminal penalties, any person who willfully brings a
prohibited item into the facility or installation will have already
committed the crime by the time such reminder signs are encountered.
The posting of such signs, therefore, will not be required, but
licensees are not precluded from posting additional signs.
As the rule states, the signs must be easily readable day and night
by both pedestrian and vehicular traffic. The NRC, in response to
comments, is providing a 180-day implementation period for this
requirement to allow licensees sufficient time to acquire and install
the appropriate signs.
The posting requirement is primarily performance-based, stating
that signs should be ``easily readable day and night.'' Accordingly,
any design and placement that renders the notice ``easily readable day
and night'' will satisfy this standard. Although one commenter
suggested requiring lighting in order to ensure readability at night,
the NRC believes it is sufficient to rely upon the performance-based
standard for night readability, because different facilities, as well
as different sign locations at each facility, may have different
lighting needs.
Although the ``easily readable day and night'' standard is
primarily performance-based, it is the NRC's view that compliance with
an up-to-date version of the Americans with Disabilities Act (ADA)
signage standards (currently set forth at 28 CFR part 36, appendix A,
section 4.30) will satisfy the ``easily readable day and night''
standard with respect to those aspects of sign design and placement
that the ADA standards address. In their present version, for instance,
the ADA standards address topics such as character proportion,
character height, finish and
[[Page 52671]]
contrast, and mounting location and height. Providing licensees the
option of relying upon the ADA standards to help ensure compliance with
the ``easily readable day and night'' standard should promote an
appropriate balance of flexibility and predictability. The ADA
standards may not, however, address all aspects of the ``easily
readable day and night'' standard. For example, the current ADA
standards do not address readability at night. Therefore, the ADA
standards may, in practice, serve only as partial guidance with respect
to sign design and placement.
One commenter recommended that the rule require licensees to
provide a means for workers and visitors who lawfully possess weapons
to temporarily store them at facility entrances prior to entering, such
that the weapons could be retrieved later upon exiting. In the NRC's
view, the presence or absence of temporary weapons storage for this
purpose is primarily a convenience and logistical issue of potential
concern to licensees, their employees, and other plant visitors; it is
not an issue of significant regulatory concern that the NRC must
address. Therefore, the final rule will neither prohibit nor mandate
the presence of such temporary weapons storage at the entrances to
affected facilities or installations.
Similarly, the posting of additional notices on roadways leading to
checkpoints or parking areas is neither required nor prohibited by the
rule and is, therefore, left to the licensee's discretion. It is
important to note, however, that the location of a posted notice will
define the point at which introduction into the facility occurs for
purposes of this final rule, at least where introduction occurs at a
traditional vehicle or pedestrian entrance to the facility.
Accordingly, licensees wishing to post notices in addition to those
required by Sec. 73.75, such as to provide advance notice about the
Sec. 73.81 criminal penalties to workers or visitors who are
approaching a facility entrance or a courtesy storage site for
prohibited items, would be advised to ensure that such notices will not
be mistaken for the notices required to be posted at facility entrances
under Sec. 73.75. This could be accomplished, for instance, by not
using the precise language on the ``advance warning'' notices that is
required to be used on the notices posted pursuant to Sec. 73.75. Such
additional ``advance warning'' notices, of course, would not take the
place of the notices that Sec. 73.75 requires to be posted at all
vehicle and pedestrian entrances to each protected facility or
installation.
Although the text of the final rule does not specifically address
such situations, there may, as a practical matter, be cases in which a
covered facility does not require its own posted notices. This would
seem most likely to occur when one covered facility is embedded
completely within the protected area of another covered facility (for
example, an independent spent fuel storage facility located entirely
within a nuclear power plant's protected area). Because Sec.
73.75(b)(1) requires the posting of notices for protected areas only at
the protected area's entrances, the embedded facility would not require
its own notices if none of the embedded facility's entrances serve as
entrances to the larger protected area.
One non-substantive change to the Sec. 73.75 posting provision is
that a new subsection 73.75(a) has been added to identify the
categories of facilities to which Sec. 73.75 applies. This eliminates
an unnecessary cross reference to Sec. 73.81(c). Another non-
substantive change involves Sec. 73.81(c)(2) of the proposed rule. The
requirement found in that provision was redundant, serving merely to
remind readers that there are associated posting requirements in Sec.
73.75. Because some of the definitions in Sec. 73.81(c) of the final
rule perform a similar reminder function by referencing the Sec. 73.75
posting requirements, Sec. 73.81(c)(2) is unnecessary and has been
removed.
Definitions of Key Terms
The unauthorized introduction--whether by carrying, transporting,
discharging of a firearm, or otherwise--of weapons, explosives, or
other dangerous instruments or materials into or upon the area marked
by the posted notices will constitute a Federal crime under this final
rule. For purposes of this final rule, ``without authorization'' means
lacking authorization, as part of one's official duties, to carry the
item in question. Accordingly, the introduction of weapons by security
guards, peace officers, or military personnel as part of their official
duties would be ``authorized'' and these individuals would not be
subject to criminal sanctions under this rule. Additionally, the
introduction of potentially dangerous industrial tools, machinery, or
other materials into a facility as part of one's job duties would
likewise not be subject to criminal sanctions under this rule.
As noted above, a new term, ``protected facility or installation,''
has been added to the final rule. This term, which encompasses solely
those portions of facilities that the criminal penalties are meant to
protect, is included to ensure that the posting requirements under
Sec. 73.75 and the criminal penalty provisions under Sec. 73.81 will
be consistent with one another (a task previously performed by the
proposed rule's definition of ``introduce'') and to create a simple
means of referring, in Sec. 73.81(c)(1), to the facility areas that
provision is meant to cover.
The terms ``dangerous weapons,'' ``dangerous instrument or
material,'' and ``explosives'' are not defined in the statute that
these regulations would implement. In addition, the DOE regulations
referred to above utilize these same terms to define comparable
criminal conduct but do not define them. The NRC has determined,
however, that enforcement could be enhanced by providing definitions
for at least some of these terms. Furthermore, a number of public
comments recommended providing definitions to promote clarity and
consistency in the rule's implementation.
Accordingly, the NRC, after consultation with DOJ, has adopted a
set of definitions from existing Federal criminal statutes. A newly
inserted definition for the rule's term ``dangerous weapon'' references
existing definitions found at 18 U.S.C. 921(a)(3) and 26 U.S.C. 5845(a)
for the term ``firearm'' and the 18 U.S.C. 930(g)(2) definition of the
term ``dangerous weapon.'' \1\ Although these relatively broad
incorporated definitions may overlap with one another in many respects,
the rule references each of them in order to ensure that no
legitimately dangerous items will be inadvertently left uncovered by
this rule. In addition, a new definition for ``explosive'' incorporates
the definition of ``explosive'' found at 18 U.S.C. 844(j). The
referenced ``firearm'' definitions do provide exceptions for antique
weapons, certain recreational and sporting guns, and army surplus
ordnance. Those exceptions, however, will have no effect for purposes
of this final rule, because antique weapons, recreational and sporting
guns, and army surplus ordnance still fall within the terms of the 18
U.S.C. 930(g)(2) definition of ``dangerous weapon,'' which broadly
covers any ``weapon, device, instrument, material, or substance,
animate or inanimate, that is used for, or is readily capable of,
causing death or
[[Page 52672]]
serious bodily injury.'' This is appropriate because even the types of
weapons excepted under the ``firearm'' definitions are not appropriate
for introduction, without authorization, into highly secure nuclear
facilities.
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\1\ Because the term ``dangerous weapon'' as used in 18 U.S.C.
930(g)(2) does not expressly cover firearms, the NRC believes it is
appropriate to incorporate definitions of ``firearm'' as well.
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The NRC does not plan to issue guidance for licensees beyond what
is contained in this statement of considerations to further define
these terms. The NRC considers extensive guidance to licensees
regarding the reporting requirements associated with this final rule to
be unnecessary. The purpose of the rule is to criminalize the
unauthorized introduction of items that licensee security plans should
already be prohibiting as part of their existing security efforts. Such
items include guns, explosives, and any other items that would pose a
legitimate security threat if brought into a protected facility without
authorization. Unremarkable personal items such as pocket knives
attached to key chains, butter knives in lunch boxes, and so on are not
intended to be covered by this rule, and so would not trigger any
licensee reporting requirements absent some further facts (such as, for
example, evidence of intent to commit sabotage) which would implicate
some other criminal provision or other basis for reporting the
incident. Indeed, the 18 U.S.C. 930(g)(2) definition of ``dangerous
weapon,'' which the final rule's definition of ``dangerous weapon''
incorporates, expressly excludes pocket knives with blades less than
2\1/2\ inches long. With these principles in mind, as well as the
additional clarity provided by the definitions of ``dangerous weapon,''
``firearm,'' and ``explosive'' that are being incorporated from
existing Federal criminal statutes, the NRC expects that licensees will
be able to comply with the reporting requirements associated with this
rule without additional formal guidance. As explained in the next
section of this statement of considerations, however, the NRC, after
consulting with DOJ, will consider whether to adopt any additional
guidance that is submitted by the regulated community to the NRC for
review.
As to the term ``willful,'' the NRC is also declining a commenter's
recommendation that the term be defined. The NRC expects that
prosecutors and courts will define the term as it is usually defined
when used in Federal criminal statutes. The U.S. Supreme Court has
stated that, ``[a]s a general matter, when used in the criminal
context, a `willful' act is one undertaken with a `bad purpose.' ''
Bryan v. United States, 524 U.S. 184, 191 (1998). One common way to
prove the existence of a ``bad purpose'' is to show that the defendant
``acted with knowledge that his conduct was unlawful.'' Id. at 192.
This is consistent with one commenter's suggestion that the definition
of willful should refer to ``evidence of subterfuge, masking, or
malevolent intent,'' because such evidence would tend to indicate that
the defendant knew the conduct in question was unlawful. Further, the
easily readable notices posted at all vehicle and pedestrian entrances
will help to ensure that all visitors are aware of the prohibition.
The definition of the term ``introduce,'' which was included in the
proposed rule, is replaced in the final rule for clarification purposes
with a new Sec. 73.81(c)(3), which serves to define the entire phrase
that is used in Sec. 73.81(c)(1) (i.e., ``carrying, transporting, or
otherwise introducing or causing to be introduced''). The new Sec.
73.81(c)(3) removes any possible suggestion that the terms
``carrying,'' ``transporting,'' and ``otherwise introducing'' should be
analyzed separately, rather than as a single concept meant to cover any
conceivable method of introduction. The new provision also more
expressly accounts for the fact that entrance to a protected facility
or installation might occur at a location that is not a traditional
vehicle or pedestrian entrance, and which therefore might not be in the
vicinity of a notice posted pursuant to Sec. 73.75. For instance, a
perpetrator carrying a prohibited item might try to enter the facility
by breaching a fence, wall, or other barrier, or by some other means
that occurs away from the vehicle and pedestrian entrances and any
Sec. 73.75 notices. Under the proposed rule's formulation, it could
have been unclear in these circumstances whether or when an
introduction has actually occurred, because the proposed rule relied
entirely upon the location of the notice to define when an
``introduction'' occurs. The new Sec. 73.81(c)(3), therefore, relies
upon a common sense concept of entering a facility for those instances
where entry does not occur at a traditional ``entrance.'' When entrance
to the facility does occur at a traditional vehicle or pedestrian
entrance, however, the Sec. 73.75 notice will remain the boundary
marker for purposes of this rule.
Relationship of Rule to Licensee Security Procedures
As explained in the statements of consideration for the proposed
rule, this rule should not require any changes to licensee security
procedures. Under Sec. 73.71(b)(1) and paragraph I(d) of appendix G to
Part 73, licensees are required to report within one hour, followed by
a written report within 60 days, ``the actual or attempted introduction
of contraband into a protected area, material access area, vital area,
or transport.'' For purposes of the final rule, weapons, explosives, or
other dangerous instruments or materials that are introduced without
authorization would be ``contraband.'' Licensees should note that the
purpose of this rule is to broaden Federal prosecutorial authority, not
to change licensee security practices.
With that said, licensees who suspect they have uncovered actual or
attempted violations of this rule are encouraged to promptly notify
local or Federal law enforcement authorities, who may provide
additional guidance as circumstances warrant. Licensees may also, of
course, contact the NRC for further guidance. The NRC does not
currently plan to issue any additional guidance regarding the
procedures that licensees should employ upon discovering actual or
suspected violations or attempted violations of this rule. If licensees
desire additional guidance regarding the procedural steps to follow
after discovery of suspected or actual violations or attempted
violations of this rule, the NRC is willing to review and consider
whether to adopt any guidance that the regulated community sees fit to
propose. The NRC anticipates that it would consult with DOJ before
endorsing any proposed guidance.
Finally, the NRC notes that the preexisting responsibilities of
licensees to maintain the security of their facilities are not altered
by the fact that this rule is now making one particular class of
security threat--the unauthorized introduction into protected
facilities of dangerous weapons, explosives, or other dangerous
instruments or materials--a Federal crime.
IV. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995,
Public Law 104-113, requires that Federal agencies use technical
standards that are developed or adopted by voluntary consensus
standards bodies unless using such a standard is inconsistent with
applicable law or is otherwise impractical. In this final rule, the NRC
is establishing criminal penalties for the unauthorized introduction of
weapons or explosives into or upon certain facilities and installations
subject to the regulatory authority of the NRC. This action does not
constitute the establishment of a standard that
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contains generally applicable requirements.
V. Finding of No Significant Environmental Impact: Environmental
Assessment
The NRC has determined under the National Environmental Policy Act
of 1969, as amended, and the NRC's regulations in Subpart A of 10 CFR
part 51, that this rule is not a major Federal action significantly
affecting the quality of the human environment and that, therefore, an
environmental impact statement is not required. The basis for this
determination is as follows:
The Need for the Rule:
This final rule is needed to implement Sec. 229 of the AEA. In
Sec. 654 of the Energy Policy Act of 2005, Congress amended Sec. 229
of the AEA, authorizing the NRC to issue regulations making it a
Federal crime to, without authorization, introduce weapons or
explosives into specified classes of facilities and installations
subject to the regulatory authority of the NRC. Section 229 was also
amended to require that each such regulation be posted conspicuously at
the location involved.
Environmental Impacts of the Rule:
The NRC has completed its evaluation of the rule and concludes that
it will not cause any significant environmental impact. The only action
required by the rule is the requirement in Sec. 73.75 that licensees
place a notice at each entrance to the protected area and to any
buildings not within a protected area that contain special nuclear
material, byproduct material, or source material and which are required
to have security plans under 10 CFR part 73. Licensees already post
notices at the entrances to facilities, and this rule allows licensees
to combine the notice required in Sec. 73.75 with these other notices.
The NRC requested public comments on the environmental assessment
included with the proposed rule, which likewise predicted that there
would be no significant environmental impacts, but no comments on the
topic were received. The final rule includes essentially the same
posting requirements that were found in the proposed rule, with only
minor clarifications as to which buildings and areas are, and are not,
covered by the posting requirements, as well as additional information
regarding permissible sign formats. Therefore, the NRC has concluded
that there will be little to no environmental impact of creating and
posting the notices required by this final rule. Accordingly, the NRC
concludes that there will be no significant environmental impacts
associated with this action.
Alternatives to the Proposed Action:
As an alternative to the proposed action, the NRC staff considered
not promulgating this rule (the ``no-action'' alternative). This would
result in leaving unfulfilled the congressional authorization the NRC
had sought. Moreover, because implementation of the rule would not
result in any significant environmental impacts, the no-action
alternative would not significantly reduce environmental impacts.
Accordingly, the NRC has determined in this environmental
assessment that there will be no significant offsite impact to the
public from this action.
VI. Paperwork Reduction Act Statement
This rule does not contain information collection requirements and,
therefore, is not subject to the requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule does not
establish any reporting requirements. In addition, the posting
requirements contained in this rule are not included in the definition
of information collection. This is because the text to be printed on
the required notices is being completely supplied by NRC regulation (10
CFR 73.75(b)(3)), and a requirement to publicly disclose information
that was originally provided by the Federal Government does not
constitute an ``information collection.'' 5 CFR 1320.3(c)(2).
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.
VII. Regulatory Analysis
A regulatory analysis has not been prepared for this regulation.
Congress authorized the NRC to implement by regulation Sec. 654 of the
Energy Policy Act of 2005, which establishes as a Federal crime the
unauthorized introduction of weapons or explosives into NRC-designated
facilities. The AEA requires that signs be conspicuously posted to warn
facility entrants of the criminal prohibition. The only costs
associated with implementing the rule are the costs to procure, post,
and maintain these signs since procedures and organization required to
protect against the unauthorized introduction of weapons are already
required. The NRC estimates these costs to be $50 per sign, with an
estimated average of six signs per affected facility, for an average
total cost of $300 per facility. Based upon the number of facilities
that would be covered by this rule if it were effective today, the NRC
views $50,000 as a conservative industry-wide cost estimate. The NRC
considers this cost to be reasonable because of the express
congressional requirement that any facilities covered by regulations
promulgated under AEA Sec. 229a.(1) post such regulations
``conspicuously,'' and because the signs are required to be posted only
at locations where entry into covered facilities would ordinarily
occur.
VIII. Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), the NRC certifies that this rule does not have a significant
economic impact on a substantial number of small entities. The
companies that own the facilities affected by this rule do not fall
within the scope of the definition of ``small entities'' set forth in
the Regulatory Flexibility Act or the size standards established by the
NRC (10 CFR 2.810).
IX. Backfit Analysis
The NRC has determined that a backfit rule, 10 CFR 50.109, 70.76,
72.62, 76.76, does not apply to this rule and that a backfit analysis
is not required. A backfit analysis is not required because the only
actions required by the rule are the procuring and posting of signs.
The conspicuous posting of notices is expressly required by Sec.
229a.(2) of the AEA for any facility covered by regulations promulgated
under Sec. 229a.(1), and so the requirement to post notices does not
result from an exercise of NRC discretion. In any event, the posting of
notices pursuant to this rule does not require the modification of or
additions to systems, structures, components, or design of a facility
or the design approval or manufacturing license for a facility, or the
procedures or organization required to design, construct, or operate a
facility.
Likewise, the criminal penalties established by this rule merely
authorize Federal prosecution of certain crimes, and therefore do not
require the modification of or additions to systems, structures,
components, or design of a facility or the design approval or
manufacturing license for a facility, or the procedures or organization
required to design, construct, or operate a facility.
X. Congressional Review Act
In accordance with the Congressional Review Act (5 U.S.C. 801-808),
the NRC
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has determined that this action is not a major rule and has verified
this determination with the Office of Information and Regulatory
Affairs of the Office of Management and Budget.
XI. Agreement State Compatibility
Under the ``Policy Statement on Adequacy and Compatibility of
Agreement State Programs'' approved by the NRC on June 30, 1997, and
published in the Federal Register on September 3, 1997 (62 FR 46517),
this rule is classified as Compatibility Category ``NRC.''
Compatibility is not required for Category ``NRC'' regulations. The NRC
program elements in this category are those that relate directly to
areas of regulation reserved to the NRC by the AEA, or the provisions
of Title 10 of the Code of Federal Regulations. Although an Agreement
State may not adopt program elements reserved to NRC, it may wish to
inform its licensees of certain requirements via a mechanism that is
consistent with the particular State's administrative procedure laws
but does not confer regulatory authority on the State.
List of Subjects in 10 CFR Part 73
Criminal penalties, Export, Hazardous materials transportation,
Import, Nuclear materials, Nuclear power plants and reactors, Reporting
and recordkeeping requirements, Security measures.
0
For the reasons set out in the preamble and under the authority of the
Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of
1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the
following amendments to 10 CFR part 73.
PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS
0
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).
0
2. Section 73.75 is added to read as follows:
Sec. 73.75 Posting.
(a) This section applies to:
(1) Production or utilization facilities;
(2) High-level waste storage or disposal facilities and independent
spent fuel storage installations;
(3) Uranium enrichment, uranium conversion, or nuclear fuel
fabrication facilities.
(b)(1) Licensees or certificate holders operating facilities
described in paragraph (a) of this section that have a protected area
shall conspicuously post notices at every vehicle and pedestrian
entrance to the protected area.
(2) Licensees or certificate holders operating facilities described
in paragraph (a) of this section that include buildings not within a
protected area that nonetheless contain special nuclear material,
byproduct material, or source material shall conspicuously post notices
at the personnel and vehicle entrances to each such building, except
with respect to buildings for which no security plan is required under
this part.
(3) The required notices must state: ``The willful unauthorized
introduction of any dangerous weapon, explosive, or other dangerous
instrument or material likely to produce substantial injury or damage
to persons or property into or upon these premises is a Federal crime.
(42 U.S.C. 2278a.)''
(4) Every notice posted under this section must be easily readable
day and night by both pedestrian and vehicular traffic entering the
facility or installation.
(5) These notices may be combined with other notices.
(c) This section does not apply to facilities that, in addition to
being regulated by the NRC under a license or certificate of compliance
issued by the Commission, are also covered by U.S. Department of Energy
regulations imposing criminal penalties, and associated posting
requirements, under section 229 of the Atomic Energy Act with respect
to unauthorized introduction of dangerous weapons, explosives, or other
dangerous instruments or materials likely to produce substantial injury
or damage to persons or property.
0
3. In Sec. 73.81, paragraph (b) is revised and paragraph (c) is added
to read as follows:
Sec. 73.81 Criminal penalties.
* * * * *
(b) The regulations in part 73 that are not issued under sections
161b, 161i, or 161o for the purposes of section 223 are as follows:
Sec. Sec. 73.1, 73.2, 73.3, 73.4, 73.5, 73.6, 73.8, 73.25, 73.45,
73.75, 73.80, and 73.81.
(c)(1) No person without authorization may carry, transport, or
otherwise introduce or cause to be introduced any dangerous weapon,
explosive, or other dangerous instrument or material likely to produce
substantial injury or damage to persons or property into or upon a
protected facility or installation. Willful violations of this
provision are punishable by the criminal penalties set forth in
sections 229b and 229c of the Atomic Energy Act of 1954, as amended.
(2) As used in this section:
(i) ``Protected facility or installation'' means any production or
utilization facility, high-level waste storage or disposal facility,
independent spent fuel storage installation, uranium enrichment,
uranium conversion, or nuclear fuel fabrication facility, but does not
include those portions of such facilities that are not required under
Sec. 73.75(b) of this part to be identified by notices posted at their
pedestrian and vehicle entrances, and does not include facilities
described in Sec. 73.75(c) of this part.
(ii) ``Without authorization'' means not authorized as part of
one's official duties to carry the weapon, explosive, or other
instrument or material;
(iii) ``Dangerous weapon'' includes any firearm, as defined in
either 18 U.S.C. 921 or 26 U.S.C. 5845, or dangerous weapon, as defined
in 18 U.S.C. 930;
(iv) ``Explosive'' means any explosive as defined in 18 U.S.C.
844(j).
(3) An item, such as a dangerous weapon, explosive, or other
dangerous instrument or material, is considered to have been carried,
transported, or otherwise introduced or caused to be introduced into or
upon a protected facility or installation for purposes of paragraph
(c)(1) of this section once the item has traveled past a notice posted
pursuant to Sec. 73.75 of this part at a vehicle or pedestrian
entrance to the protected facility, or once the item has entered the
protected facility or installation at a location that is not a vehicle
or pedestrian entrance to the facility, whether such entry is
accomplished through, over, under, or around a fence, wall, floor,
roof, or other structural barrier enclosing the protected facility or
installation or by any other means.
(4) For all protected facilities or installations that do not
possess special nuclear material, byproduct material, or source
material as of the effective date of this rule, this provision shall
take effect upon receipt of such material at the applicable facility or
installation.
Dated at Rockville, Maryland, this 5th day of October 2009.
[[Page 52675]]
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E9-24566 Filed 10-13-09; 8:45 am]
BILLING CODE 7590-01-P