[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]
[Proposed Rules]
[Pages 64012-64016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29054]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 73

[Docket No. PRM-73-10; NRC-2000-0026]


State of Nevada; Denial of Portions of Petition for Rulemaking, 
Consideration of the Remaining Portions in the Rulemaking Process

AGENCY: Nuclear Regulatory Commission.

ACTION: Closure of petition for rulemaking docket; Partial Denial.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying, in 
part, a petition for rulemaking (PRM 73-10) submitted by the State of 
Nevada on June 22, 1999. The NRC will consider the remainder of the 
petition in the rulemaking process. The petitioner requested that NRC 
amend its regulations governing safeguards for shipments of spent 
nuclear fuel against sabotage and terrorism. The petitioner also 
requested that the NRC conduct a comprehensive assessment of the

[[Page 64013]]

consequences of terrorist attacks that have the capability of 
radiological sabotage, including attacks against transportation 
infrastructure used during nuclear waste shipments, attacks involving 
capture of nuclear waste shipments and use of high energy explosives 
against a cask or casks, and direct attacks upon a nuclear waste 
shipping cask or casks using antitank missiles or other military 
weapons. This action closes the docket for PRM-73-10.

DATES: The docket for the petition for rulemaking PRM-73-10 is closed 
on December 7, 2009.

ADDRESSES: You can access publicly available documents related to this 
petition for rulemaking using the following methods:
    Federal e-Rulemaking Portal: Public comments and supporting 
materials related to this petition for rulemaking can be found at the 
Federal rulemaking Web site http://www.regulations.gov by searching on 
Docket ID: NRC-2000-0026. Further NRC action on the remaining issues 
raised by this petition will be accessible at http://www.regulations.gov by searching on Docket ID NRC-2009-0163. Address 
questions about NRC dockets to Carol Gallagher (301) 492-3668; 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, Room O-
1F21, 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 PDR 
reference staff at 1-800-397-4209, (301) 415-4737, or by e-mail to 
[email protected].
    The NRC also tracks all rulemaking actions in the ``NRC Regulatory 
Agenda: Semiannual Report'' (NUREG-0936).

FOR FURTHER INFORMATION CONTACT: Naiem S. Tanious, Office of Federal 
and State Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-
6103, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

The Petition

    The petition, dated June 22, 1999, was filed with NRC by the State 
of Nevada and assigned Docket No. PRM 73-10 on July 13, 1999. The NRC 
published a notice of receipt of a petition for rulemaking on September 
13, 1999 (64 FR 49410). The petitioner (the State of Nevada) states 
that it is a corridor State for spent nuclear fuel (SNF) shipments, and 
has been a destination and origin State for SNF shipments to and from 
Federal research facilities. Nevada is also the potential host State 
for a Federal geologic repository and could become the ultimate 
destination for shipments of SNF and high-level radioactive waste.
    The petitioner requests that NRC amend its regulations governing 
safeguards for shipments of spent nuclear fuel against sabotage and 
terrorism. Specifically, the petitioner requests seven amendments to 10 
CFR Part 73:
    (1) Clarification of the meaning of the term ``hand-carried 
equipment'' in 10 CFR 73.1(a)(1)(i)(D) to include: (a) One or more 
large military demolition devices, such as the U.S. Army M3A1 shaped 
charge weighing 40 pounds; (b) a significant quantity (limited only by 
the carrying capacity of the vehicle) of commercial explosives packaged 
in crates, boxes, suitcases, or other hand-carried containers; and (c) 
numerous man-portable antitank weapon systems such as the Carl Gustav 
M2 recoilless gun (weight 15 kg), the Milan antitank missile (weight 32 
kg), and the infantry version of the TOW 2 antitank missile (weight 116 
kg with tripod launcher);
    (2) Clarify the definition of ``radiological sabotage'' in 10 CFR 
73.2 to include actions against SNF shipments which are intended to 
cause a loss of shielding or a release of radioactive materials as well 
as those 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;
    (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, adopt the route selection 
criteria in NUREG-0561, and require shippers and carriers to minimize 
use of routes which fail to comply with the route selection criteria;
    (4) Amend 10 CFR 73.37(c) to eliminate the differential armed 
escort requirements based on population for SNF shipments by road;
    (5) Amend 10 CFR 73.37(d) to eliminate the differential armed 
escort requirements based on population for SNF shipments by rail;
    (6) Amend 10 CFR 73.37(b) to make applicable to SNF shipments the 
10 CFR 73.26(b)(1) planning and scheduling requirements for special 
nuclear material in transit; and
    (7) Amend 10 CFR 73.37(d) to require that SNF rail shipments be 
made by dedicated trains.
    In addition, the petitioner requests that NRC, in support of the 
aforementioned rulemaking, conduct a comprehensive assessment of the 
consequences of terrorist attacks that have the capability of 
radiological sabotage, including attacks against transportation 
infrastructure used during nuclear waste shipments, attacks involving 
capture of nuclear waste shipments and use of high energy explosives 
against a cask or casks, and direct attacks upon a nuclear waste 
shipping cask or casks using antitank missiles or other military 
weapons.
    The petitioner's rationale for requesting a rulemaking to better 
deter, prevent, and mitigate the consequences of any attempted 
radiological sabotage, as well as a comprehensive assessment of the 
consequences of terrorist attacks is based on the following:
    (1) The petitioner asserts that the thousands of shipments to a 
geologic repository will create opportunity for terrorist attacks or 
sabotage of spent fuel shipments. The petitioner contends that 
opportunity is created because the spent fuel shipments will be over 
long distances, many in number, regular and predictable, and to a fixed 
destination.
    (2) The petitioner asserts that the means for mounting an attack 
are available. The petitioner contends that several varieties of high 
energy explosives are currently available including the M3A1 shaped 
charge, commercial shaped charges, and thousands of antitank weapons 
that have been produced world-wide in the last several years including 
the Milan and TOW 2 antitank missiles.
    (3) The petitioner asserts that the spent fuel shipments may be 
attractive targets. The petitioner contends that a national repository 
may have a greater symbolic value to terrorists as a target than 
current reactor storage facilities, and that ``enhanced symbolic 
value'' may extend to spent fuel shipments. The petitioner also 
contends that a single facility with a large stockpile of spent fuel 
might be a more tempting target. Further, the petitioner suggests that 
a facility operated by the

[[Page 64014]]

Department of Energy (DOE), the U.S. Government agency responsible for 
producing nuclear weapons, may have greater symbolic value to 
terrorists as a target than commercial storage facilities, and that 
``enhanced symbolic value'' may extend to DOE's shipments of spent 
fuel.
    (4) The petitioner asserts that after 1984 when NRC last evaluated 
the adequacy of spent fuel transportation safeguards, the nature of the 
terrorist threat has changed significantly. The petitioner contends 
that during the past 17 years major changes have occurred, including: 
an increase in the lethality of terrorist attacks in the United States; 
an increase in serious terrorist attacks against transportation 
systems; and renewed concern about nuclear terrorism generally, and 
terrorist actions involving potential radioactive contamination 
specifically.
    (5) The petitioner asserts that shipping casks are vulnerable to 
terrorist attack using high-energy explosive devices. The petitioner 
contends that this vulnerability is caused by two developments: the 
capabilities and availability of explosive devices, especially antitank 
weapons, have increased significantly; and new shipping casks, 
developed to increase payloads without exceeding specified weight 
limits, appear to be more vulnerable to attack using commercial 
explosives or past, current, and future weapons systems. The petitioner 
perceives that after the early 1980s, portable antitank weapons have 
become more powerful, reliable, and available world-wide. The 
petitioner states that most of the antitank missiles, identified in its 
attachment, have warheads capable of completely perforating a truck 
cask and its spent fuel cargo, and deeply penetrating a rail cask and 
damaging its spent fuel cargo. The petitioner also states that spent 
fuel shipping casks are vulnerable to attack using military and 
commercial explosives, particularly a conical-shaped charge with an 
incendiary device. Lastly, the petitioner claims that shaped charges 
developed for use in oil and gas well perforating are particularly 
powerful, efficient, and stable.

Public Comments on the Petition

    The notice of receipt of the petition for rulemaking invited 
interested persons to submit comments. During the comment period, which 
closed on January 28, 2000,\1\ the NRC received 24 comment letters: 15 
from States and agencies or counties within States; 2 from Federal 
agencies; and 1 each from the Nuclear Energy Institute, Western 
Governors Association, Northeast High-Level Radioactive Waste 
Transportation Task Force, Association of American Railroads, Heartland 
Operation to Protect the Environment, an NRC licensee, and a private 
individual. Comment letter number 21 from the Agency for Nuclear 
Projects, State of Nevada provided additional information. The comments 
have been divided into three groups: (1) Those supporting assessment 
only, (2) those supporting both assessment and rulemaking, and (3) 
those opposing both assessment and rulemaking.
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    \1\ The NRC extended the comment period, which originally was to 
close on November 29, 1999, to January 28, 2000 (64 FR 59684, 
November 3, 1999).
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    Nine commenters support assessment only. They agree with the 
petitioner that the estimated risks and potential consequences to the 
public from a terrorist attack of spent fuel in transit should be made 
current, and if indicated, the regulations should be revised 
accordingly.
    The State of Louisiana urges NRC to review and strengthen, where 
necessary, the applicable procedures and safeguards to ensure the 
security and safety of both the spent nuclear fuel shipments and the 
citizens that would be affected by any act of terrorism, sabotage, or 
more importantly, an accident which would result in the release of 
radioactive materials. Also, the State of Louisiana notes that the 
technology for tracking sensitive freight shipments is available and 
should be a required safeguard. For example, Automatic Vehicle Location 
Technology allows near real-time tracking of vehicles.
    The Department of Environmental Quality of the Commonwealth of 
Virginia indicates that it is reasonable for NRC to reevaluate its 
requirements for safeguarding spent fuel shipments against sabotage and 
terrorism.
    The Department of Public Safety of the State of Oklahoma agrees 
that assessment of safeguards for the shipment of spent fuel and 
response to emergency situations during shipments should be current.
    The Western Governors Association recommends that NRC: (1) 
Reevaluate the adequacy of current physical protection regulations for 
transporting spent fuel, (2) conduct a comprehensive consequence 
assessment of attacks that have the potential for radiological 
sabotage, (3) create a stakeholder advisory group to assist NRC in the 
comprehensive consequence assessment, and (4) publish a full report on 
all unclassified assessment findings.
    The Nuclear Energy Institute concurs that NRC should complete a 
comprehensive assessment of credible threats of sabotage and terrorism 
on spent fuel in transit.
    Six commenters support both assessment and rulemaking. They agree 
with the petitioner that the safeguards requirements for spent fuel in 
transit should be strengthened and that a proposed rulemaking effort 
should be supported by a comprehensive assessment of the potential 
consequences of sabotage or terrorist attack.
    Nye County, Nevada asserts that there is a need for a comprehensive 
assessment of the consequences of terrorist attacks that covers the 
entire spectrum of nuclear waste and spent fuel shipments to a 
repository, and that the petition raises legitimate and substantial 
issues that should be fully explored in a proposed rulemaking.
    Clark County, Nevada supports both assessment and rulemaking 
because it believes that NRC's standards for safety and security for 
spent fuel in transit are out of date.
    Eureka County, Nevada asserts that the petition raises legitimate 
and substantial issues that should be fully explored in a notice and 
comment rulemaking.
    The State of Utah agrees with the need to reevaluate requirements 
for safeguarding shipments of spent nuclear fuel due to the changing 
nature of threats involving terrorism and sabotage, wants any 
assessment to address the need for a more comprehensive and reliable 
system to track shipments, and recommends increased armed escort for 
shipments of spent nuclear fuel.
    The State of Utah also asserts that the nature of the terrorist 
threat has significantly changed since NRC last assessed the adequacy 
of its spent fuel transportation safeguards regulations, and that the 
current regulations are predicated on outdated assessments.
    Eight commenters oppose both assessment and rulemaking. They 
disagree with the petitioner that either an assessment or proposed 
rulemaking is necessary.
    One licensee asserts that the existing safeguards regulations are 
adequate and no rulemaking change to Part 73 is necessary. Moreover, 
any assessment undertaken in response to the petition should consider 
the physical protection requirements for spent fuel shipments both in 
the context of all hazardous material shipments and in comparison to 
other targets for terrorist attack.
    The Department of Emergency Services within the Commonwealth of 
Virginia acknowledges that terrorism poses one of the most challenging

[[Page 64015]]

threats to public safety today and agrees that the possibility of such 
an attack involving spent fuel warrants serious consideration. However, 
this Department believes that NRC, the DOE, the U.S. Federal Bureau of 
Investigation (FBI), and the national security agencies should consider 
the issue of terrorism involving nuclear shipments as part of the 
overall domestic preparedness mission. Moreover, this Department states 
that changes in the nation's security programs and domestic 
preparedness must be based on sound risk assessment and threat 
analysis. When such an analysis results in additional risk factors, 
only then should resources be committed to making necessary regulatory 
changes.
    The Northeast High-Level Radioactive Waste Transportation Task 
Force, representing nine States, asserts that transportation casks are 
very robust and do not make an attractive target, the nature of a 
terrorist threat has not changed significantly, and additional 
rulemaking on safeguards for spent fuel transportation is not necessary 
because current safeguards provide adequate protection. The Task Force 
points out that there are a high number of shipments routinely 
occurring without difficulty, spent fuel shipments in NRC certified 
casks have an excellent safety record, and 2380 safe shipments have 
occurred during the past 35 years without radiological release, 
sabotage, or terrorism. Moreover, leaving the spent fuel in place has 
undesirable features with respect to protecting public health and 
safety since most reactor storage sites are located near rivers, lakes, 
or sea shores.
    The Association of American Railroads disagrees with the 
petitioner's assertion that ``the NRC should specifically require 
shippers and carriers to identify primary and alternate routes that 
minimize highway and rail shipments through heavily populated areas.'' 
The Association points out that a premise of hazardous materials 
transportation is that transportation time should be minimized. Thus, 
routing to avoid heavily-populated areas would be counter productive by 
causing large increases in transportation time because routes around 
urban areas are almost always significantly more circuitous.
    The DOE asserts that the petition does not offer compelling reasons 
for either a comprehensive assessment or rulemaking. DOE states that 
there is no evidence that either a reassessment or rulemaking would 
result in any measurable increase in public health or safety. DOE also 
states that their most recent sabotage analyses indicate that the 
current regulations adequately protect public health and safety and the 
environment. Moreover, the petition's reference to terrorist events 
throughout the world does not reflect the actual situation in the U.S. 
or mean that spent fuel shipments are actually terrorist targets. 
Recent studies by DOE show that the fundamental response of casks to 
offensive weapons has not dramatically changed. In addition, the 
estimated consequences of credible sabotage scenarios continue to be 
bounded by the consequences evaluated under severe accident conditions.
    The Naval Nuclear Propulsion Program (NNPP), Department of the 
Navy, states that the petitioner has not provided sufficient 
justification for the requested actions. Since 1957, the NNPP has made 
700 shipments of naval spent fuel by rail, all safely. There have not 
been any accidents, releases of radioactivity, or acts of terrorism or 
sabotage. Also, the NNPP disagrees that the nature of the terrorist 
threat has changed substantially from that which the existing 
regulations are designed to protect against. Moreover, simply listing 
U.S. terrorist attacks of the past two decades and speculating about 
increased concerns for terrorist attacks against spent fuel shipments 
does not support the position that regulatory changes are necessary. 
NNPP further states that if a terrorist group could obtain and use 
military weapons, they would be likely to select targets where they 
could cause large numbers of immediate fatalities. Furthermore, NNPP 
asserts that the petition provides neither new technical information 
nor other justification for the proposed regulatory changes.
    The NRC reviewed and considered the comments in its decision to 
deny, in part, the petition for rulemaking and to consider the 
remainder of the petition in the rulemaking process. In reaching its 
decision, the NRC has also considered the intervening events since 
1999, when the petition was filed and the comments were received, 
including the terrorist attacks of September 11, 2001, and since those 
attacks, the various security assessments that have been conducted and 
the various security measures that have been put in place. The NRC's 
analysis is set forth below.

Petition Resolution

    The NRC is denying the following two specific requests from the 
petitioner: (1) The request for amending the design basis threat (DBT) 
for radiological sabotage to include a clarification in the meaning of 
the phrase ``hand-held equipment'' in 10 CFR 73.1(a)(i)(D) and to amend 
the DBT to include use of explosive devices and other weapons larger 
than those commonly considered to be hand-carried or hand-held, and the 
use of vehicles other than four wheel drive civilian land vehicles; and 
(2) the request that the NRC conduct comprehensive security assessment 
studies. The remaining petition requests are being considered in the 
NRC rulemaking process.
    Petition Requests that are being denied:

1. Amending the DBT To Clarify the Meaning of Hand-Carried Equipment 
and To Include the Use of Explosive Devices, Other Weapons Larger Than 
Those Considered Hand-Carried, and Vehicles Other Than 4-Wheel Drive

    The Petitioner requested that the NRC clarify the meaning of the 
phrase ``hand-carried equipment'' in 10 CFR 73.1(a)(i)(D) to include: 
(a) One or more large military demolition devices, such as the U.S. 
Army M3A1 shaped charge weighing 40 pounds; (b) a significant quantity 
(limited only by the carrying capacity of the vehicle) of commercial 
explosives packaged in crates, boxes, suitcases, or other hand-carried 
containers; and (c) man-portable antitank weapon systems such as the 
Carl Gustav M2 recoilless gun (weight 15 kg), the Milan antitank 
missile (weight 32 kg), and the infantry version of the TOW 2 antitank 
missile (weight 116 kg with tripod launcher).
    The NRC is denying this request for rulemaking. On March 19, 2007, 
the Commission issued a final rule amending 10 CFR 73.1 (72 FR 12705), 
Design Basis Threat. This rule contained the Design Basis Threat with 
which affected licensees must comply. However, the Commission was 
careful to set forth rule text that did not compromise licensee 
security, but also balances the necessity to keep the public informed 
of the types of attacks against which nuclear power plants and Category 
I facilities are required to defend. Specific information on adversary 
capabilities (e.g., specific weapons, ammunition type, etc) are 
contained in adversary characteristics documents which contain 
classified or Safeguards Information (SGI).
    The technical bases for the adversary characteristic documents are 
derived largely from intelligence information. They contain classified 
or SGI information which cannot be publicly disclosed. These documents 
must be withheld from public disclosure and made available on a need-
to-know basis to those who are cleared for access. Consequently, the 
petitioner's suggested changes to this regulation would be

[[Page 64016]]

inconsistent with the Commission's recent revision of Sec.  73.1.
    The Petitioner also requested that the NRC consider amending the 
DBT to include use of explosive devices and other weapons larger than 
those commonly considered to be hand-carried or hand-held, and the use 
of vehicles other than four wheel drive civilian land vehicles. Well-
trained and dedicated adversaries could conceivably obtain and use 
military attack vehicles or military aircraft armed with bombs, 
missiles, or other powerful weapons.
    The NRC is denying this request. The specific details of the 
adversary's capabilities are now contained in adversary characteristics 
documents which contain classified or SGI information. The adversary 
characteristics documents are derived largely from intelligence 
information. These documents must be withheld from public disclosure 
and made available on a need to know basis to those who are cleared for 
access. The petitioner's suggested changes to this regulation would not 
be consistent with the Commission's recent revision to Sec.  73.1.

2. Comprehensive Assessment of the Consequences of Terrorist Attacks

    The petitioner requested that the NRC conduct a comprehensive 
assessment of the consequences of terrorist attacks that have the 
capability of radiological sabotage to include: Attacks against 
transportation infrastructure used by nuclear waste shipments, attacks 
involving capture of a nuclear waste shipment and use of high energy 
explosives against the cask, and direct attacks upon a nuclear waste 
shipping cask using antitank missiles.
    The NRC is denying this request because it does not involve (i.e., 
contain) a request to amend, create, or revise the NRC's existing 
regulations, as is required by the provisions of 10 CFR 2.802, 
``Petition for Rulemaking.'' Instead of requesting changes to the NRC's 
regulations (as it has specified for other topics elsewhere in its 
petition) the Petitioner has requested the NRC complete a comprehensive 
assessment. A comprehensive assessment is not a change to the language 
of the NRC's regulations.
    It is important to note however, that relevant studies (which 
accomplish the objectives of the Petitioner) were performed at the 
request of the Commission following the September 11, 2001, terrorist 
attacks. As a result of these studies, the staff has developed a 
security assessment decision-making framework to be used as a tool for 
NRC to determine the appropriate level of security measures and 
mitigating strategies required for a given threat scenario, including 
threat scenarios involving spent fuel storage casks and certified 
radioactive material transportation package designs.

Consideration in Rulemaking

    The NRC will consider the issues raised in PRM-73-10 and the 
remainder of the petitioner's requests in a proposed SNF transportation 
security rulemaking, which is expected to be available for public 
comment in 2010. The NRC has determined that the underlying technical 
considerations regarding the physical security of SNF shipments are 
sufficiently related to this ongoing rulemaking activity; therefore, 
the issues raised in PRM-73-10, other than the requests that are being 
denied, are being considered in the rulemaking activity.
    Specifically, the NRC is considering a proposed SNF transportation 
security rulemaking which will require that licensees plan and 
coordinate SNF shipments, including routes and safe havens, with the 
States through which the shipment will pass. The proposed rulemaking 
would also require including armed escorts along the entire length of 
the route, continuous and active monitoring of the SNF shipment, 
redundant communications capabilities among the transport, local law 
enforcement agencies and a licensee movement control center, and 
planning and development of normal and contingency procedures.
    The NRC is continuing work to develop this proposed rulemaking. 
Although the NRC will consider the issues raised in the petition, other 
than the requests being denied, the petitioner's concerns may not be 
addressed exactly as the petitioner has requested. During the 
rulemaking process, the NRC will solicit comments from the public and 
will consider all comments before issuing a final rule. If the NRC does 
not issue a proposed rule, the NRC will issue a document in the Federal 
Register that addresses why the petitioner's requested rulemaking 
changes were not adopted by the NRC.
    For the reasons provided above, the NRC is denying the petition, in 
part, and considering the remainder of the petitioner's requests in the 
NRC's ongoing rulemaking process. With this action the NRC closes the 
docket for PRM-73-10.

    Dated at Rockville, Maryland, this 10th day of November, 2009.

    For the Nuclear Regulatory Commission.
R.W. Borchardt,
Executive Director for Operations.
[FR Doc. E9-29054 Filed 12-4-09; 8:45 am]
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