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The NRC published a notice of a petition for rulemaking from the Tribal Radioactive Materials Transportation Committee (TRMTC) in the Federal Register on April 9 asking the NRC to revise 10 CFR Part 37 to require that licensees provide advanced notification to participating tribal governments of certain radioactive material shipments that will cross a tribe’s reservation. The petition focuses in particular on the difference between the requirements under 10 CFR 37.77, which does not require notice to participating tribes, and similar notice requirements in 10 CFR Parts 71 and 73, which do. The NRC has requested that public comments on TRMTC’s petition be submitted by June 23, 2021.

Relevant to the petition, the NRC’s requirements for providing notification of shipment of various radioactive materials are found in 10 CFR Parts 37, 71, and 73. Pursuant to 10 CFR 71.97, before shipping irradiated fuel or certain radioactive materials (such as certain thresholds of nuclear waste) outside of a licensed facility, licensees must provide at least seven days’ advance notification to the NRC as well as the states and participating Indian tribes over whose land the shipment will travel. Similarly, pursuant to 10 CFR 73.37(b)(2), licensees must provide at least 10 days’ advance notice to the NRC as well as the states and participating Indian tribes of a shipment of spent nuclear fuel that will be moving through or across the boundary of the state(s) and tribal reservation(s).

Separate from the shipment of spent nuclear fuel, the NRC has requirements for the notification of shipments of Category 1 quantities of radioactive material. Only certain isotopes, including two plutonium isotopes and certain byproduct material that is used by industrial radiography licensees, can have Category 1 quantities; the amount varies by isotope. Based in part on information from the International Atomic Energy Agency, the NRC considers a Category 1 quantity of radioactive material as having a potential risk-significant threat to the public health and safety because, if it were stolen or diverted, it could be used in a “dirty bomb” or “radiological exposure device” by terrorists. Accordingly, the NRC has promulgated physical protection requirements for this material in 10 CFR Part 37, including the requirement in 10 CFR 37.77 that a licensee notify the NRC and states of the shipment. Section 37.77 does not mention any requirement to notify participating tribal governments.

In its petition filed with the NRC on December 4, 2020, the TRMTC requested that the NRC revise 10 CFR Part 37 to establish “consistent notification standards” as compared to 10 CFR Parts 71 and 73 and that notifications made to the NRC and states also be made to the participating tribal governments. The TRMTC explained that the triggering event of its request for a rulemaking was the fact that there was no advanced notification provided to the Omaha Tribe of Nebraska, a participating tribe, of a shipment of a Category 1 quantity of radioactive material that crossed the tribe’s reservation.

The TRMTC’s petition also notes that the US Department of Energy (DOE) is revising DOE Order 460.2A, Departmental Transportation and Packaging Management, to require notification to tribes of shipment of Category 1 quantities of radioactive material across a tribe’s reservation by DOE. DOE Order 460.2A governs DOE’s responsibility when shipping spent nuclear fuel or radioactive material by DOE, but the TRMTC notes that DOE’s policy is that “DOE transport of radioactive materials will meet the same level of protection as comparable shipments conducted by NRC-licensees under NRC regulations.” Accordingly, the TRMTC’s petition requests that the NRC and DOE harmonize their shipping requirements.

In the Federal Register notice, the NRC stated that it had already determined that the petition meets the sufficiency requirements under 10 CFR 2.803 as it is within the NRC’s legal authority and raises a potentially valid issue that warrants further consideration by the NRC. The NRC has assigned docket number PRM-37-2 to the petition and is evaluating whether any changes to its regulations are required.

Morgan Lewis will continue to track issues relating to the regulation of transportation of nuclear materials.