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NUCLEAR REGULATORY COMMISSION

Veterans Affairs Department

CFR Citation: 10 CFR Parts 60, 63, 73, and 74

RIN ID: RIN 3150-AI06

NOTICE: Part III

DOCUMENT ACTION: Proposed rule.

SUBJECT CATEGORY: Geologic Repository Operations Area Security and Material Control and Accounting Requirements

DATES: The comment period expires March 4, 2008. Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date.

DOCUMENT SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend its regulations to revise the security requirements and material control and accounting (MC&A) requirements for a geologic repository operations area (GROA). The goal of this rulemaking is to ensure that effective security measures are in place for the protection of high level radioactive waste (HLW) and other radioactive material at a GROA given the postSeptember 11, 2001, threat environment. New requirements for specific training enhancements, improved access authorization, enhancements to defensive strategies, and enhanced reporting requirements would be incorporated. The proposed rule would establish general performance objectives and corresponding system capabilities for the GROA MC&A program, with a focus on strengthening, streamlining, and consolidating all MC&A regulations specific to a GROA. In addition, the proposed rule would require the emergency plan to address radiological emergencies.

SUMMARY: Nuclear Regulatory Commission,

SUPPLEMENTAL INFORMATION

I. Background
II. Discussion

A. What Action Is the NRC Taking?

B. Whom Would This Action Affect?

C. Why Do the Requirements Need to be Revised?

D. When Do the Security and MC&A Plans Need To Be Submitted?

E. What Types of Material Would Be Covered by the New Security and MC&A Requirements?

F. What Are the Key Aspects of the Proposed MC&A Requirements?

G. What Kinds of Systems Capabilities Would Be Proposed for the MC&A Program?

H. Would ShipperReceiver Comparisons With Independent Measurements Be Required for Receipts?

I. What Measurements Would Be Necessary Under the GROA MC&A Program?

J. What Would an MC&A Detection and Response Program Involve?

K. What Additional Requirements Would Be Imposed if DOE Possesses Formula Quantities of Strategic SNM That Is in a Form Other Than as Irradiated Nuclear Reactor Fuel?

L. What Special MC&ARelated Needs Exist?

M. What Is the Objective of the Proposed Physical Security Requirements?

N. What Threat Would a GROA Be Required To Defend Against?

O. Why Do the Security Requirements Differ for Various Aspects of a GROA?

P. Would Access Authorization Requirements Apply to a GROA and What Would They Cover?

Q. Would Criminal History Checks Apply to a GROA?

R. What Are the Key Aspects of the Security Requirements?

S. What Is a Target Set as it Applies to a GROA?

T. What Weapons Authorization Would Be Necessary for the GROA Operations?

U. Would DOE Be Required To Conduct ForceonForce Exercises for the GROA Facility?

V. How Would the Security Plans Handle Construction at a GROA After Receipt of HLW Begins?

W. Does This Rulemaking Cover Transportation of HighLevel Radioactive Waste to a GROA?

X. Would the Security and MC&A Plans Cover Postclosure?

Y. What Safeguards Reporting Requirements Would Be Proposed for a GROA?

Z. Does the NRC Plan To Issue Guidance Documents?

AA. Would the GROA Facilities Be Subject to IAEA Safeguards?

BB. What Changes Would Be Made to the Emergency Plan Requirements?

CC. What Should I Consider as I Prepare My Comments to NRC? III. Discussion of Proposed Amendments by Section
IV. Criminal Penalties
V. Agreement State Compatibility
VI. Plain Language
VII. Voluntary Consensus Standards
VIII. Finding of No Significant Environmental Impact
IX. Paperwork Reduction Act Statement
X. Public Protection Notification
XI. Regulatory Analysis
XII. Regulatory Flexibility Certification
XIII. Backfit Analysis

I. Background

On November 2, 2001 (66 FR 55732), the NRC published its final rule governing disposal of HLW in a potential geologic repository at Yucca Mountain in Nevada. The U.S. Department of Energy (DOE) must comply with these regulations for NRC to authorize construction and license operation of a potential repository at Yucca Mountain in Nevada. The security requirements applicable to a GROA in these regulations were developed prior to September 11, 2001, under a previous and very different
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threat environment. Currently, there is no distinction between the security and MC&A requirements for independent spent fuel storage installations (ISFSIs) and the requirements for larger, more complicated geologic repositories for permanent disposal of HLW. At the time the security provisions were established, the NRC used the same regulatory approach for protecting a GROA as that for protecting spent nuclear fuel storage facilities licensed under 10 CFR part 72. GROA operations, at least those conducted in surface facilities, seemed vulnerable to the same kinds of potential threats that were characteristic of the storage of spent nuclear fuel (SNF). The same level of protection was deemed sufficient to protect against acts that might be inimical to the common defense and security. The same reasoning applies to the MC&A requirements.

The NRC's regulatory approach was predicated on maintaining the physical integrity of the SNF rods. In the event the physical integrity of the SNF rods could not be maintained, the staff planned to address the additional security measures that would be necessary by incorporating conditions into the license.

Potential surface operations at a GROA have become more complex over the years. For example, the DOE has indicated that it now plans to include bare SNF handling operations within a spent fuel pool to transfer SNF from a nonTAD (transfer, aging, disposal) canister to a TAD canister, which would then be utilized for emplacement and permanent disposal of the SNF in the Yucca Mountain repository.

Because both the threat environment and the plans for surface operations at the GROA have changed, the NRC now believes that a separate regulatory approach for protecting and safeguarding a GROA is necessary. The DOE has not set forth a final concept of operations for the GROA. Therefore, it is not clear what types of facilities will be part of the surface operations or what type of handling of the HLW within the surface facilities may occur.

The new security and MC&A requirements also should be broad enough and sufficiently flexible to cover a range of possible types of nonHLW radioactive materials without the need for additional rulemaking. The DOE, in its Final Environmental Impact Statement (FEIS) for a geologic repository at Yucca Mountain, considered the possibility that radioactive waste types other than SNF and HLW, such as GreaterThan ClassC lowlevel radioactive waste (LLW) and SpecialPerformance AssessmentRequired LLW might be disposed of in a geologic repository. See Final Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and HighLevel Radioactive Waste at Yucca Mountain, Nye County, Nevada, February 2002, Vol. II, A1, A57 A64. Disposal of such nonHLW could require new legislation or a determination by the NRC that these wastes require permanent isolation. The NRC is not making such a determination in this rulemaking. However, the security and MC&A requirements being proposed for a GROA take account of the possibility that the geologic repository might be used for the disposal of radioactive materials which are not SNF or HLW.

Following the terrorist attacks on September 11, 2001, the NRC conducted a thorough review of its security requirements to ensure that special nuclear material (SNM) at fixed sites and in transit continued to have effective security measures in place given the changing threat environment. Through a series of security orders issued to certain NRC licensees, the Commission specified changes to the Design Basis Threat (DBT) for power reactor and Category I Strategic SNM licensees, and implemented enhanced requirements for specific training, access authorization, defensive strategies, and security. Through generic communications, the Commission specified expectations about enhanced notifications to the NRC for certain security events or suspicious activities. These enhancements resulted in some licensees revising their physical security plans, security personnel training and qualification plans, and safeguards contingency plans to defend against the supplemental DBT requirements. These security orders specifically required certain licensees to: (1) Increase patrols; (2) augment the security force capabilities and security posts; (3) add and modify existing physical security barriers; (4) move vehicle check points to a greater standoff distance; (5) enhance coordination with local law enforcement agency (LLEA) and military authorities; (6) augment their security and emergency response training, equipment, and
communications; and (7) strengthen offsite access controls, including additional background and screening checks of employees. The enhanced security measures have yet to be imposed on a GROA. This rulemaking is the mechanism the NRC is using to impose the new requirements on the DOE for operations at a GROA.

This rulemaking to upgrade the requirements for physical protection of HLW and other radioactive materials at a GROA combines lessons learned, current/best practices, and requirements based on those contained in security orders issued to NRC licensees that address the postSeptember 11, 2001, threat environment. The security orders, as well as other ongoing security rulemakings, are used as the basis for upgrading the GROA security requirements. Specifically, the security requirements for power reactors are being used as the starting point for the security requirements for this proposed rule. The reactor requirements are used as the stating point because of the similarity in material, the material's attractiveness for malevolent use, and the potential consequences of its malevolent use. The security requirements should provide protection equivalent to a power reactor. The reactor requirements have been proposed in a rule entitled ``Power Reactor Security Requirements'' (71 FR 62664; October 26, 2006).

Section 653 of the Energy Policy Act of 2005 (EPAct), signed into law on August 8, 2005, allows the NRC to authorize licensees to use, as part of their protective strategies, an expanded arsenal of weapons, including machine guns and semiautomatic assault weapons. Section 653 requires that all security personnel with access to any weapons undergo a background check that includes fingerprinting and a check against the Federal Bureau of Investigation's (FBI) National Instant Criminal Background Check System (NICS) database. Under Section 161k. of the Atomic Energy Act (AEA), as amended, the DOE has authority for authorization of weapons. The NRC does not plan to use its authority under Section 653 of the EPAct. The DOE, under its own authority under Section 161k. of the AEA, may authorize the use of an expanded weapons arsenal and the use of force in accordance with the requirements of 10 CFR part 1047.

The goal of this rulemaking is to ensure that effective security measures are in place for the protection of HLW and other radioactive materials given the postSeptember 11, 2001, threat environment. New requirements for specific training enhancements, improved access authorization, and enhancements to defensive strategies would be incorporated. The proposed rule would establish general performance objectives and corresponding system capabilities for the GROA MC&A program, with a focus on strengthening, streamlining, and consolidating into 10 CFR Part 74 all MC&A regulations specific to a GROA. In addition, the proposed rule would
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require the emergency plan to address radiological emergencies. II. Discussion

A. What Action Is the NRC Taking?

The NRC is proposing to amend its regulations primarily to establish new physical security and MC&A requirements for HLW and other radioactive materials at a GROA. The requirements specified in this rulemaking would establish the objectives and minimum performance standards that the DOE must meet to protect against each threat (theft or diversion and radiological sabotage) at a GROA, and the objectives and minimum capabilities for the MC&A program. The proposed rule is riskinformed and performancebased.

B. Whom Would This Action Affect?

Only the DOE, as the potential operator of any repository, would be impacted by this proposed rule. The regulations in 10 CFR Part 63 are specific for the Yucca Mountain repository.

C. Why Do the Requirements Need To be Revised?

The current regulations for MC&A and security for a GROA were developed under a different threat environment, and the threat environment has changed, as have the plans for surface operations at a GROA. The NRC now believes that a new regulatory approach for protecting a GROA is necessary. In addition, the DOE has not set forth a final concept of operations document for the GROA; therefore, the types and forms of material to be handled and disposed of at a GROA have not been finalized. The current security and MC&A requirements for a GROA are not adequate to protect the common defense and security or the public health and safety. The new security and MC&A requirements must be broad enough and sufficiently flexible to cover a range of possible activities without the need for additional rulemaking. This rulemaking to upgrade the requirements for physical protection of HLW and other radioactive materials at a GROA capitalizes on the lessons learned, current/best practices, and security orders issued to NRC licensees to address the postSeptember 11, 2001, threat environment. The security orders, as well as ongoing security rulemakings, have been used as the basis for upgrading the GROA security requirements. The proposed rule would also establish general performance objectives and corresponding system capabilities for the GROA MC&A program, with a particular focus on strengthening, streamlining, and consolidating into 10 CFR part 74 all MC&A regulations specific to a GROA.
D. When Do the Security and MC&A Plans Need To Be Submitted?

The DOE should include a description of the security and MC&A plans in its license application when it is submitted. The actual plans would be submitted no later than 180 days after the Commission grants the construction authorization for the GROA. A description of the security and MC&A plans is necessary at the time of the application to demonstrate that the DOE can adequately address and meet the NRC requirements for security and MC&A. Additionally, there may be some aspects that would be better integrated during construction. Submitting the plans after the Commission grants a construction authorization allows the DOE to take advantage of any new technology and concepts that may not be available at the time the construction application is submitted. The timing still allows some aspects, if appropriate, to be addressed during construction. The plans would not need to be implemented until the Commission grants a license to receive and possess source, special nuclear, or byproduct material at a GROA. E. What Types of Material Would Be Covered by the New Security and MC&A Requirements?

This rule would cover the security and MC&A aspects for the radioactive material at both surface and subsurface areas where waste handling activities are conducted. This radioactive material can include HLW in the form of irradiated reactor fuel and reprocessing wastes. Section 63.102(b)(4) provides that if the DOE proposes to use the GROA for storage of radioactive waste other than HLW, the storage of this radioactive waste is subject to the requirements of 10 CFR Part 63. Irradiated reactor fuel contains SNM and fission byproducts. Depending on the enrichment and quantity, the SNM may be considered strategic special nuclear material, SNM of moderate strategic significance, or SNM of low strategic significance. The higher the enrichment of the SNM, the more attractive the material may be for malevolent purposes. While it is expected that the primary waste to be handled at a GROA is irradiated reactor fuel, it is possible that the DOE may propose the storage of other types of radioactive waste. Therefore, the Commission has attempted in this proposed rule to develop security and MC&A requirements that are broad enough to cover the spectrum of waste materials that could potentially be dispositioned at a GROA without the need for future rulemaking. The security requirements that would be established are, in part, based on the attractiveness of the waste material, shape, size, and the potential consequences if the waste were used for malevolent purposes. The MC&A requirements pertain to the SNM content of the waste.
F. What Are the Key Aspects of the Proposed MC&A Requirements?

The proposed rule would establish general performance objectives and corresponding systems capabilities for the GROA MC&A program, with a particular focus on strengthening, streamlining, and consolidating in 10 CFR Part 74 all MC&A regulations specific to a GROA. Proposed objectives for the GROA MC&A program would center on detecting and responding to a potential loss of SNM, including theft and diversion, commensurate with the strategic worth of the SNM. The DOE would be required to submit an MC&A plan describing how those objectives would be achieved through the implementation of specified system capabilities commensurate with safeguards risks.
G. What Kinds of Systems Capabilities Would Be Proposed for the MC&A Program?

The DOE would be required to establish and maintain internal control, inventory, auditing, and recordkeeping capabilities. Internal controls would include comprehensive measures for management structuring, personnel qualification and training, validating receipts and any shipments, item control, collusion protection, measurements, and measurement control for resolving anomalies (as needed). This would include an overall detection and response program and a collusion program to thwart theft or diversion and would include incorporating checks and balances that are sufficient to detect falsification of data and reports that could conceal the theft or diversion of SNM.

Item control of SNM and continuous assurance of its integrity from receipt to emplacement would be important. If necessary, additional item control and physical inventory measures may be required for recovery of waste packages or retrieval of waste packages from emplacement in Yucca Mountain to an alternate storage or an area for possible examination or external shipment.
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H. Would ShipperReceiver Comparisons With Independent Measurements Be Required for Receipts?

No, the DOE would not be required to conduct independent measurements on receipts of HLW or SNM at a GROA. The DOE would be allowed to accept the originatorassigned values. However, the DOE would be required to routinely assure the validity of each originator's assigned SNM content values and the integrity of receipts (with validating physical checking of unique identity, intactness, and tampersafing) accepted at a GROA. No routine nondestructive assay (NDA) measurements of receipts would be required. The DOE would be required to closely coordinate with originators to adequately understand the technical basis for assigning SNM content and procedures to be followed for packaging and assuring item identification and integrity, (e.g., with reactor fuel burnup calculations, unique serial numbers, and the tampersafing of canisters and shipment overpacts). Tampersafing refers to the use of devices on containers in a manner that ensures a clear indication if the device has been removed to allow opening of the container.

For shipments of commercial SNF to the proposed Yucca Mountain repository, the DOE is currently expected to be the shipper as the DOE is expected to take possession of the material at the nuclear reactor. However, for the purposes of reporting to the Nuclear Material Management Safeguards System (NMMSS), power reactor utilities would be expected to complete and file the DOE/NRC Form741 for transferring the SNM to the GROA using their respective NRC Reporting Identification Symbol (RIS). As a result, following the instructions in NUREG/BR0007 and NMMSS Report D24, the transfer for MC&A technical purposes would be made between two NRC RISsfrom a power reactor utility RIS to that assigned to the GROA for receiving and possessing SNM under license. This is not a new requirement as licensees are currently required to report transfers of SNM. In their reference to shippers, the MC&A regulations at Sec. 74.15 are addressing the licensed utilities who are originating and reporting the transfers with SNM content values technically assigned by the utility. Any required tampersafing of shipments to assure their integrity (e.g., the welding of canisters or the affixing of tamperindicating devices on shipping overpacts) would also be done by such originating shippers from a shipperreceiver validation/comparison.
I. What Measurements Would Be Necessary Under the GROA MC&A Program?

As warranted, independent confirmatory weight and NDA measurements of HLW and SNM would be required for offnormal circumstances (e.g., in resolving certain types of anomalies that may arise and trigger investigations and special reporting of safeguards events). The state oftheart for NDA and other practical limitations shall be considered for such nonroutine measurements (e.g., at a wet transfer facility where bare spent fuel assemblies may be handled). At this point, no routine onsite measurements are foreseen as necessary to further validate/accept SNM content values assigned to receipts by the originators.
J. What Would an MC&A Detection and Response Program Involve?

The focus would be on rapidly detecting and responding to indications of SNM loss, including possible theft or diversion. This includes triggering investigations and resolving action on anomalies, as well as a way to thwart any attempts to covertly steal or divert SNM by insiders acting individually or in collusion. The design of measures to counter such a potential internal threat is to include a diversion path analysis or risk analysis of postulated scenarios considering conceivable ways and means potential insiders might try to steal or divert SNM at a GROA.

As background, the general diversion path analysis method that has been used by the NRC is described in the open literature (R. Hawkins, S. Baloga, N. Zack, W. Stanbro, and J. Markin, ``Diversion Path AnalysisA New Approach,'' INMM Proceedings XXI, 763769, 1992). This technical paper expanded on diversion path analysis methods originally developed by the U.S. Bureau of Standards and published by the U.S. Energy Research and Development Administration (ERDA) (M. Maltese, K. Goodwin, and J. Scheter, ``Diversion Path Analysis Handbook,'' ERDA, October 1976). In addition, diversion path analysis methods have been extensively applied by the International Atomic Energy Agency (IAEA) for designing and implementing its safeguards strategy under the Treaty on the NonProliferation of Nuclear Weapons. Regarding the generic safeguarding of geologic repositories, the IAEA has published a comprehensive, multivolume document (``Safeguards for the Final Disposal of Spent Fuel in Geologic Repositories,'' STR312, IAEA, Department of Safeguards, September 1998), which identifies and analyzes, in considerable detail, resulting diversion paths for a hypothetical facility.
K. What Additional Requirements Would Be Imposed if the DOE Possesses Formula Quantities of Strategic SNM That Is in a Form Other Than as Irradiated Nuclear Reactor Fuel?

Additional requirements would be included for specified system capabilities for strategic SNM. These requirements include additional measures for item monitoring and more rigorous access control, quality assurance, and alarm resolution in concert with any enhanced physical protection to be provided under 10 CFR Part 73.

L. What Special MC&ARelated Needs Exist?

There is a need to consider riskinformed, performancebased alternatives for resolving anomalies, particularly onsite NDA measurements by the DOE in cases where item identity and integrity may have been compromised. Another need is the extent of item control and physical inventorying that would be necessary for SNM (in HLW and other radioactive waste) in underground drifts and at aging pads, especially from a containment, surveillance, and access control perspective, and a worker perspective that involves reducing radiation exposure to personnel to as low as is reasonably achievable, as well as other impact aspects. The MC&A plan also needs to address SNM control and accounting functional aspects of retrievability and alternate storage capabilities that are required by Sec. Sec. 60.21(c)(12) and 63.21(c)(7).
M. What Is the Objective of the Proposed Physical Security Requirements?

The objective of the proposed physical security requirements is to provide high assurance that activities at a GROA are not inimical to the common defense and security, and do not constitute an unreasonable risk to the public health and safety. In order to provide a high assurance of protection, the NRC's philosophy is to use a defensein depth strategy towards the protection of HLW. Defenseindepth relies on a holistic approach towards the protection of these materials and other radioactive materials, which includes using people, processes, equipment, and facilities to protect HLW and other radioactive materials from theft or diversion or radiological sabotage for malevolent purposes. The GROA physical security requirements would [[Page 72526]]
be determined using a graded approach related to the projected risk from radiological sabotage, theft, or diversion of HLW and other radioactive materials.

N. What Threat Would a GROA Be Required To Defend Against?

The design basis threat defined in Sec. 73.1(a) would apply to a GROA in the specific circumstances where a radiological sabotage or theft and diversion event may involve formula quantities of SNM. Under the proposed rule, the threat to a GROA is largely defined by specific security scenarios which represent the greatest threats against which GROA security forces must be able to defend against, with a high assurance of success. A GROA would have graded security measures based on the material, waste form, and operations within a particular facility at a GROA. Therefore, depending on the material content, quantity, and consequence from a radiological sabotage event, as well as the theft or diversion of certain material, the security measures may rely on the design basis threat defined in Sec. 73.1(a) or may rely on other Commission requirements. The NRC specifically invites comment on the physical protection protocol for a GROA. We are interested in information concerning: Do we need a specific physical protection protocol for a GROA or should we apply the existing DBT and increased controls as appropriate.
O. Why Do the Security Requirements Differ for Various Aspects of a GROA?

The consequences of radiological and theft or diversion security events are highly dependent on the characteristics and packaging of the HLW and other radioactive materials and their location within a GROA. The activities and operations at a GROA aid in defining the physical security requirements and protective strategies that would be implemented. At this time, the GROA concept of operations has not been fully defined by the DOE; therefore, the NRC is establishing physical security requirements that would be dependent upon the consequences of a potential radiological event and the theft or diversion of certain material. These physical security requirements would be based on five proposed protection levels. The highest protection level would be for waste containing strategic SNM with the protection system designed to protect the material against the design basis threat for both theft or diversion and radiological sabotage. The next protection level would be for radioactive material that could result in a significant radiological sabotage event releasing radioactive materials in sufficient quantity such that any individual located at the lesser of the controlled area boundary or 400 meters from the source could receive a total effective dose equivalent equal to or greater than 0.25 Sv (25 rem). For these materials, the protection system must be designed to protect against the design basis threat for radiological sabotage. The third protection level would be for radioactive material that could result in a moderate radiological sabotage event releasing radioactive materials in sufficient quantity such that any individual located at the lesser of the controlled area boundary or 400 meters from the source could receive a total effective dose equivalent equal to or greater than 0.05 Sv (5 rem) but less than 0.25 Sv (25 rem). For these materials, the protection system must be designed to protect the material against radiological sabotage. The fourth protection level would be for all other radioactive material containing SNM. The physical protection system would be designed to protect the material against securityrelated events specified for theft and diversion. The lowest protection level would be for other solidified radioactive material and material that would meet the criteria in appendix P to 10 CFR part 110 (Categories 1 and 2 radioactive materials). The protective strategy for these materials would be equivalent to the increased controls (i.e., prevent or impede removal, locate and prompt recovery, and mitigation of any potential consequence).
P. Would Access Authorization Requirements Apply to a GROA and What Would They Cover?

Yes, access authorization requirements would apply to a GROA. The facilities that possess large radiation sources, such as irradiated nuclear reactor fuels (e.g., SNF), are attractive targets for those who seek to commit radiological malevolent acts. Insiders who have unescorted access to facilities that possess such radiation sources, including a GROA, could pose a threat to the public health and safety or the common defense and security because they may have the ability to commit radiological malevolent acts. Therefore, imposing access authorization requirements is a prudent security measure to ensure that individuals who are granted unescorted access to the protected area of a GROA: (1) Are trustworthy and reliable; (2) do not impose an unreasonable risk to the health and safety of the public or the common defense and security (as a result of increasing the likelihood of an insider threat); and (3) do not pose a potential threat to commit radiological malevolent acts or theft or diversion of HLW. Fingerprints are required of any individual granted unescorted access to the protected area of a GROA.

Q. Would Criminal History Checks Apply to a GROA?

Section 652 of the EPAct amended Section 149 of the AEA to require fingerprinting and a Federal Bureau of Investigation identification and criminal history records check of any person who is permitted unescorted access to radioactive materials subject to regulation by the Commission, and which the Commission determines to be of such significance to the public health and safety or the common defense and security as to warrant fingerprinting and background checks. The Commission has determined that the radioactive material at a GROA is of such significance and is proposing to implement the requirement for fingerprinting and a FBI identification and criminal history records check of any person who is permitted unescorted access to radioactive materials at a GROA. Background investigations, which include criminal history checks, represent a key element of the access authorization program ensuring that individuals who have unescorted access to a GROA are trustworthy and reliable. To accomplish this task, requirements were developed that focused on accumulating data on an individual's past that would produce an overall perspective of the individual's character and allow the licensee to make a determination of trustworthiness and reliability.

R. What Are the Key Aspects of the Security Requirements?

The key aspects of the security requirements for a GROA are similar to the security requirements for similar types of NRClicensed material and facilities. The proposed regulations would require an integrated security plan that would implement defenseindepth concepts and protective strategies based on protecting target sets from various threat scenarios. The requirements are performance based and include an access authorization program and a physical protection system to detect, delay, and respond to postulated threat scenarios in such a way that prevents or mitigates undesirable consequences of malevolent actions. The postulated threat scenarios include the theft or diversion of SNM and HLW as well as radiological sabotage. The access authorization program requirements include measures
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necessary to assure that personnel having critical safety or security functions or having access to certain nuclear materials remain trustworthy and reliable. The physical protection system requirements for detection measures include intrusion sensing, alarm communication, alarm assessment, and entry or access controls. Detection would be provided through the use of detection equipment, patrols, access controls, and other program elements required by this proposed rule. It also would provide notification to the licensee that a potential threat is present and where the threat is located. Alarm assessment is the mechanism through which the licensee obtains the information necessary to identify the nature of the threat detected and to determine how to respond. There are access control requirements for personnel, vehicles, and hazardous materials. The requirements for delay measures include barriers to delay adversarial actions to allow a timely response by security personnel. The requirements for responding to malevolent events allow the DOE to develop effective response strategies to challenge intruders so they cannot accomplish actions that are necessary to achieving undesirable consequences. In some instances, the strategy may include neutralizing adversaries to deny access to the nuclear material. The proposed rule uses a riskinformed approach for response requirements that permits protective strategies to be tailored to the type of material being protected, operations that involve handling this material and the potential consequences of postulated threat scenarios.

Security personnel who are responsible for the protection of the radioactive waste would be required to meet minimum requirements and performance criteria. The DOE would have to meet general criteria requirements for selection, training, equipping, testing,
qualification, and contingency plans of security forces involved in GROA operations. These requirements would include hiring personnel who function as drill and exercise controllers to ensure that security forces are trained and qualified to execute their assigned duties. Drills and exercises are key elements to assuring the preparedness of the security force and must be conducted in a manner that demonstrates the DOE's ability to execute the protective strategy as described in the site security plans. As for contingency plans, the information required in the safeguards contingency plans includes responses to threats, up to and including design basis threats, as described in Sec. 73.1(a). The DOE would be required to submit for NRC approval a plan detailing how the prescribed criteria are going to be met. S. What Is a Target Set as it Applies to a GROA?

As it applies to a GROA, target set means the combination of equipment or operator actions which, if all are prevented from performing their intended safety function or prevented from being accomplished, would likely result in significant operational disruption or radiological contamination barring extraordinary action by site operators. For a GROA, a target set means the quantities and form of HLW and other radioactive material and the protective and mitigative measures to protect against potential large scale releases of fission products from malevolent actions. For example, a target set with respect to spent fuel sabotage at a GROA could be draining the spent fuel pool leaving the spent fuel uncovered for a period of time, allowing spent fuel to heat up, and the associated potential for release of fission products. Due to the sensitivity of this information, specific target sets to the GROA will not be available in a public document.
T. What Weapons Authorization Would Be Necessary for the GROA Operations?

There are two ways weapons may be authorized for use at a GROA. First, section 161A of the AEA allows the NRC to authorize licensees to use, as part of their protective strategies, an expanded arsenal of weapons, including machine guns. Section 161A was added to the AEA under the EPAct. Secondly, under section 161k. of the AEA, the DOE has separate authority for authorization of weapons on any of its sites. The DOE, under its own authority under section 161k. of the AEA, may authorize the use of an expanded weapons arsenal, limited arrest authority, and the use of force in accordance with the DOE's current regulations under 10 CFR part 1047. The NRC does not plan to use its authority under Section 161A of the AEA.
U. Would DOE Be Required To Conduct ForceonForce Exercises for the GROA Facility?

Yes, some type of forceonforce exercises are necessary to test the effectiveness of the DOE's protective strategies for the high consequence target sets. The requirement for annual forceonforce exercises only applies to formula quantities of strategic SNM and significant radiological sabotage consequence target sets.
V. How Would the Security Plans Handle Construction at a GROA After Receipt of HLW Begins?

A license to receive and possess source, special nuclear, or byproduct material at a GROA may only be issued by the Commission on a finding that construction of the GROA has been substantially completed. Construction may be considered substantially complete if the construction of surface and interconnecting structures, systems, and components and any underground storage space required for initial operation are substantially complete. Some construction activities could continue once receipt of material begins.

The NRC's security requirements are designed to protect all material at a GROA. Handling, storage, and emplacement operations for HLW and other radioactive materials shall be conducted inside a protected area. The NRC's security requirements are flexible enough to allow the DOE to establish a protected area that could separate remaining construction activities from operations involving HLW and other radioactive material. Any construction activity occurring within the protected area would be subject to the NRC's security requirements. Any construction activities outside the protected area, but within the DOE controlled area, would be subject to some NRC security controls and DOE security orders. The protected area and security plans would be expanded to include new facilities or areas before radioactive material could be received in that new facility or area.
W. Does This Rulemaking Cover Transportation of HighLevel Radioactive Waste to a GROA?

No, the NRC's regulatory authority is limited to the operations at a GROA. As an independent Federal Agency, the DOE must comply with its own internal requirements (DOE orders) and Departments of
Transportation and Homeland Security regulations when transporting HLW and other radioactive materials to a GROA. However, the DOE must use shipping containers certified by the NRC under the regulations in 10 CFR part 71. Part 71 is not being revised by this proposed rule. X. Would the Security and MC&A Plans Cover Postclosure?

No, these plans would not cover the postclosure period. Once the NRC license is terminated, the NRC would no longer have regulatory authority. However, the DOE plans for continued
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oversight of the Yucca Mountain site after permanent closure. Y. What Safeguards Reporting Requirements Would Be Proposed for a GROA?

Prompt notification to the NRC of a security event involving an actual or imminent threat would permit the NRC to contact other Federal authorities and other licensees, as appropriate. The Commission would expect the DOE to notify the NRC Operations Center as soon as possible after they notify local law enforcement agencies, but within 15 minutes. A written 60day report would also be required for these notifications. This new reporting requirement would require the DOE to promptly notify the NRC of any event involving an actual or imminent threat at the GROA.

Fourhour notification would be proposed for suspicious activities, attempts at access, etc., that may indicate preoperational surveillance, reconnaissance, or intelligence gathering activities targeted against the GROA. This would assist the intelligence and homeland security communities in evaluating threats across critical infrastructure sectors.

The current provision for onehour notifications for certain safeguards events (e.g., theft or unlawful diversion of SNM, significant physical damage to the facility, entry of an unauthorized person into protected areas) would be retained, with some modifications to include attempted actions and to broaden the scope of the language used for specific areas. The provision for events to be recorded in the safeguards log would also be retained.

Z. Does the NRC Plan To Issue Guidance Documents?

Yes, the NRC intends to issue guidance documents. The NRC intends to issue a GROAspecific regulatory guidance document. This document would address adversary characteristics for the design basis threats and describe details of the GROA securityrelated threats. Other guidance documents are under consideration. The publication of the guidance documents is planned after the publication of the final rule. Because the guidance documents may contain Safeguards Information and/ or classified information, these documents would only be available to those with a needtoknow, and who are qualified to have access to Safeguards Information and/or classified information, as applicable. However, the NRC has determined that access to these guidance documents is not necessary for the public or other stakeholders to provide informed comment on this proposed rule.
AA. Would the GROA Facilities Be Subject to IAEA Safeguards?

The U.S. Government has not yet made a determination as to whether a GROA can be subject to IAEA safeguards.
BB. What Changes Would Be Made to the Emergency Plan Requirements?

The emergency plan requirements would be changed to reflect the need to respond to radiological emergencies instead of radiological accidents. The term radiological emergencies is more inclusive of the types of situations that the emergency plan may need to address. In addition, Sec. 63.21(c)(21) requires a description of the plan for responding to, and recovering from, radiological emergencies; the proposed change is consistent with this language.
CC. What Should I Consider as I Prepare My Comments to NRC?

Tips for preparing your commentswhen submitting your comments, remember to:

i. Identify the rulemaking (RIN 3150AI06).

ii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iii. Describe any assumptions and provide any technical information and/or data that you used.

iv. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

v. Provide specific examples to illustrate your concerns, and suggest alternatives.

vi. Explain your views as clearly as possible.

vii. Make sure to submit your comments by the comment period deadline identified.

viii. See item N of the Discussion portion of this notice for NRC's specific request for comments on the need for a specific physical protection protocol for a GROA. See Section VI of the preamble for the request for comments on the use of plain language and Section XI for the request for comments on the draft regulatory analysis.
III. Discussion of Proposed Amendments by Section

Section 60.21 Content of Application

Paragraph (b)(3) would be revised to change the reference for the security requirements from Sec. 73.51 to the new requirements in Sec. 73.53 and to require a description instead of plans. Paragraph (b)(4) would be revised to change the reference for the MC&A requirements from Sec. 60.78 to the new requirements in 10 CFR Part 74. The actual plans would be submitted after the construction authorization was issued. The security and MC&A plans would not be implemented until SNM is received at the GROA.
Section 60.24 Updating of Application and Environmental Impact Statement

Paragraph (d) would be added to require the DOE to submit the actual security plans and MC&A plan for NRC approval no later than 180 days after the Commission issues the construction authorization. Under the current regulations, the DOE was not required to submit the actual MC&A plan for NRC approval. This requirement corrects that oversight. Section 60.78 Criticality Reporting

This section would be renamed to reflect the criticality reporting that remains after the MC&A requirements are relocated to 10 CFR part 74. Currently, the criticality reporting requirement is captured by the reference to Sec. 72.74. The section would be revised to include the criticality reporting requirement instead of a reference to another section. The actual requirements would not change.

Section 63.21 Content of Application

Paragraph (b)(3) would be revised to change the reference for the security requirements from Sec. 73.51 to the new requirements in Sec. 73.53 and would clarify that only a description of the program need be submitted with the construction application. Paragraph (b)(4) would be revised to change the reference for the MC&A requirements from Sec. 63.78 to the new requirements in 10 CFR part 74. The actual security and MC&A plans would be submitted after the construction authorization was issued. The security and MC&A plans would not be implemented until SNM is received at the GROA.
Section 63.24 Updating of Application and Environmental Impact Statement

Paragraph (d) would be added to require the DOE to submit the actual security plans and MC&A plan for NRC approval no later than 180 days after the Commission issues the construction authorization. Under the current regulations, the DOE was not required to submit the actual plans for NRC approval. This requirement corrects that oversight. Section 63.78 Criticality Reporting

This section would be renamed to reflect the criticality reporting that remains after the MC&A requirements are relocated to 10 CFR part 74.
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Currently, the criticality reporting requirement is captured by the reference to Sec. 72.74. The section would be revised to include the criticality reporting requirement instead of a reference to another section. The actual requirements would not change.
Section 63.161 Emergency Plan for the Geologic Repository Operations Area Through Permanent Closure

This section would be revised to refer to radiological emergencies instead of radiological accidents. The term radiological emergencies is more inclusive of the types of situations that the emergency plan may need to address. In addition, Sec. 63.21(c)(21) requires a description of the plan for responding to, and recovering from, radiological emergencies; the proposed change is consistent with that language. The reference to develop and implement a plan to ``cope with radiological accidents'' is changed to a plan to ``provide reasonable assurance that adequate protective measures can and would be taken in the event of a radiological emergency.''

Section 73.2 Definitions

This section would be revised to incorporate the definition for highlevel radioactive waste in 10 CFR part 63 and to add a definition for target set for application to a GROA.
Section 73.50 Requirements for Physical Protection of Licensed Activities

This section would be revised to include a reference to Sec. 73.53 to retain the exemption for a GROA from the security requirements listed in the section. Requirements for a GROA are specified in proposed Sec. 73.53.
Section 73.51 Requirements for Physical Protection of Stored Spent Nuclear Fuel and HighLevel Radioactive Waste

This section would be revised to remove references to a GROA. The security requirements for an ISFSI and a monitored retrievable storage installation would remain unchanged. The requirements for a GROA would be contained in new section 73.53.
Section 73.53 Requirements for Physical Protection at a Geologic Repository Operations Area

The proposed rule would create a new section for the GROA physical protection requirements. The existing requirements for GROA security are contained in Sec. 73.51(b), (c), and (d). The requirements have been expanded and strengthened to reflect the postSeptember 11, 2001, threat environment and placed in this new section.

Paragraph (a) would establish that the physical protection requirements in this section apply to The DOE for the operation of a GROA.

Paragraph (b)(1) would require The DOE to submit a Physical Security Plan, Training and Qualification Plan, and Safeguards Contingency Plan that describe how the requirements of the section would be met. The plans would be submitted no later than 180 days after the NRC issues a construction authorization for a GROA. Paragraph (b)(1) would also establish the implementation timeframe. Paragraph (b)(2) would exempt the DOE from the security requirements after permanent closure of a GROA. This provision is currently located at Sec. 73.51(e).

Paragraph (c) would establish the performance objectives. Paragraph (c)(1) would establish the general performance objective to provide high assurance that activities involving radioactive waste are not inimical to the common defense and security and do not constitute an unreasonable risk to the public health and safety. The current general objective does not address common defense and security. Paragraphs (c)(2) and (c)(3) would establish objectives based on the type and form of material and the consequences of a postulated radiological sabotage event. The more risksignificant the material, the higher the level of protection required.

Paragraph (d) would establish general requirements for the physical security program. The DOE would be required to design and implement a program to satisfy the performance requirements and to ensure that no single act can disable the personnel, equipment, or systems necessary to prevent the theft of strategic SNM and significant radiological sabotage. The DOE would also be required to establish and maintain a written performance evaluation program, an access authorization program, an insider mitigation program, and a corrective action program.

Paragraph (e) would require the DOE to develop security plans that describe how the physical protection program would prevent the theft or diversion and radiological sabotage of SNM and byproduct material and to protect safeguards information against unauthorized disclosure. The DOE would be required to establish, implement, and maintain written procedures and to have a process for the DOE's approval of implementing procedures. The DOE would be allowed to make changes to the security plans without NRC approval as long as the changes do not decrease the plan's effectiveness. The DOE would be required to establish, maintain, and follow a Commissionapproved training and qualification plan and a safeguards contingency plan and to establish, implement, and maintain a Commissionapproved physical security plan.

Paragraph (f) would require the DOE to establish and maintain a security organization designed, staffed, trained, and equipped to provide early detection, assessment, and response to unauthorized activities within any area of the facility. The Commission expectation would be that the management system oversee all aspects of the onsite physical protection program to ensure the effective implementation of Commission requirements through the approved security plans and implementing procedures. The DOE would also be required to ensure that any written agreement with any contractor used to implement the onsite physical protection program was retained as a record for the duration of the contract and that the contract clearly state several conditions related to training, access authorization, and document availability. Provisions regarding the security organization are currently addressed at Sec. 73.51(d)(5). The proposed requirements would strengthen and expand on the current requirements.

Paragraph (g) would provide a performancebased requirement for determining the use and placement of physical barriers for the protection of personnel, equipment, and systems, the failure of which could directly or indirectly endanger public health and safety. The DOE would be required to establish and maintain physical barriers in the controlled area, as necessary, to deter, delay, or prevent unauthorized access; facilitate the early detection of unauthorized activities; and control approach routes to the facility. Paragraph (g) would establish requirements related to physical barriers (paragraph (g)(3)), isolation zones (paragraph (g)(4)), protected areas (paragraph (g)(5)), vital areas (paragraph (g)(6)), vehicle barrier systems (paragraph (g)(7)), and unattended openings (paragraph (g)(8)). Current provisions addressing physical barriers are located at Sec. 73.51(d)(1). The proposed requirements would strengthen and expand on the current requirements.

Paragraph (h) would require the DOE to develop and identify target sets and document the analyses and methodologies used to determine and group the target set equipment or
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elements. The DOE would also be required to implement a program for the oversight of certain facility equipment and systems documented as part of the DOE protective strategy.

Paragraph (i) would require the DOE to establish an access control program for personnel, vehicles, and material. The paragraph would establish the features required for the access control program, including access control points, emergency conditions, vehicles, access control devices, visitors, and escorts. Current provisions addressing access control are found at Sec. 73.51(b)(2), 73.51(d)(7), and 73.51(d)(9). The proposed requirements would strengthen and expand on the current requirements.

Paragraph (j) would establish the requirements for search programs for individuals, packages, and vehicles. This paragraph would expand and strengthen the current requirements located in Sec. 73.51(d)(9).

Paragraph (k) would establish the requirements for the detection and assessment systems. The DOE would be required to establish and maintain an intrusion detection and assessment system that must provide the capability for early detection and assessment of unauthorized persons and activities. This proposed requirement would not mandate specific intrusion detection equipment for any specific area, but rather would require that the system provide detection and assessment capabilities that meet Commission requirements. The current requirements addressing detection and assessment systems are located at Sec. 73.51(b)(2), 73.51(d)(2), 73.51(d)(3), 73.51(d)(4), and 73.51(d)(11). The proposed requirements would strengthen and expand on the current requirements.

Paragraph (l) would require the DOE to establish and maintain continuous communication capability with onsite and offsite resources to ensure effective command and control during both normal and emergency situations. The chosen communication method would be available and operating any time it would be needed to communicate information. The proposed requirements would strengthen and expand on the current requirements located at Sec. 73.51(b)(2), 73.51(d)(6), and 73.51(d)(8).

Paragraph (m) would establish the response requirements for personnel and equipment and armed responders. The DOE would be required to establish and maintain the minimum number of properly trained and equipped personnel required to intercept, challenge, delay and/or neutralize any security related events.

Paragraph (n) would require the DOE to implement a cybersecurity program that provides high assurance that computer systems, which if compromised could adversely impact safety, security, and emergency preparedness, are protected from cyber attacks.

Paragraph (o) would establish the requirements for security program reviews and audits. The DOE would be required to review the physical protection program at intervals not to exceed 12 months or as necessary based upon assessments or other performance indicators with each element being reviewed at least every 24 months. The DOE would also be required to conduct quarterly drills and annual exercises in accordance with Section III of Appendix C of 10 CFR part 73 and the DOE performance evaluation program. The proposed requirements expand on the current requirement for a physical protection program review every 24 months that is in Sec. 73.51(d)(12).

Paragraph (p) would require the DOE to implement a maintenance, testing and calibration program to ensure that security programs and equipment are tested for operability and performance at predetermined intervals, are maintained in operable condition, and are capable of performing their intended function when needed.

Paragraph (q) would require the DOE to identify measures and criteria needed to compensate for the loss or reduced performance of personnel, equipment systems, and components that are required to meet the requirements.

Paragraph (r) would authorize the DOE to suspend implementation of affected requirements of Sec. 73.53 in an emergency when action is immediately needed to protect the public health and safety and during severe weather when the suspension is needed to protect personnel from a life threatening situation. In both cases, a designated senior site manager would need to approve the suspension before taking the action.

Paragraph (s) would require the DOE to maintain all records required to be kept until the Commission terminates the license and to maintain superseded portions of these records for at least 3 years after the record is superseded.

Paragraph (t) would require the DOE to develop and implement a process to inform and coordinate safety and security activities to ensure that these requirements do not adversely affect the capabilities of the security organization to satisfy the security requirements or overall GROA safety.

Paragraph (u) would provide a mechanism for the DOE to receive approval for use of alternative measures to those required by Sec. 73.53. Current provisions for alternative measures are covered by Sec. 73.51(d).

Paragraph (v) would contain additional performance capabilities that must be met if the DOE were to possess formula quantities of strategic SNM, unless otherwise approved by the Commission. These additional measures include requirements on the security organization; physical barrier subsystem; access control subsystem and procedures; search programs; detection, surveillance, and alarm subsystems and procedures; and response requirements.
Section 73.56a Personnel Access Authorization Requirements for a Geologic Repository Operations Area

This section would be added to address the requirements for the personnel access authorization program for a GROA. The current regulations require the DOE to grant access to the protected area only to individuals who are authorized to enter the protected area; however, there are no specific requirements for the access authorization program. The proposed program addresses the integration of the access authorization requirements and security program requirements. The proposed performance objective is to provide high assurance that individuals granted unescorted access are trustworthy and reliable, such that they do not constitute an unreasonable risk to public health and safety or the common defense and security, including the potential to commit radiological sabotage, theft, or diversion. The proposed rule would establish requirements for the background investigation (paragraph (d)), psychological assessments (paragraph (e)), behavioral observation (paragraph (f)), arrest reporting (paragraph (g)), granting unescorted access authorization (paragraph (h)), maintaining access authorization (paragraph (i)), access to vital areas (paragraph (j)), trustworthiness and reliability of background screeners and authorization program personnel (paragraph (k)), review procedures (paragraph (l)), protection of information (paragraph (m)), audits and corrective action (paragraph (n)), and records (paragraph (o)). The proposed requirements are nearly identical as those proposed for power reactors (71 FR 62664; October 26, 2006).
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Section 73.57 Requirements for Criminal History Checks of Individuals Granted Unescorted Access to a Nuclear Power Facility or the Protected Area of a Geologic Repository Operations Area, or Access to Safeguards Information by Power Reactor Licensees

This section would be retitled to include the protected area of a GROA. New paragraph (a)(4) would be added to require the DOE to comply with the requirements for criminal history checks contained in this section upon receipt of Commission authorization to receive and possess source, special nuclear, or byproduct material at a GROA. Paragraph (b)(2)(iii) would be added to expand the requirements for criminal history checks to anyone granted unescorted access to the protected area of a GROA. Paragraphs (b)(1), (b)(4), (b)(4)(i), (b)(5), (b)(8), (c)(1), (d)(1), (f)(2), and (f)(5) would be revised to expand the requirements to individuals granted unescorted access to the protected area of a GROA.

Section 73.70 Records

The introductory paragraph would be revised to include a reference to Sec. 73.53. Paragraph (c)(1) would be added to include a reference to Sec. 73.53(i)(7). A new paragraph (c)(1) is being proposed because changes to paragraph (c) have been proposed in the power security rule and it could cause confusion to stakeholders to propose additional changes to the same section. This section would establish the requirements for record retention. Record retention requirements are currently located in Sec. 73.51(c), 73.51(d)(10), and 73.51(d)(13). The record retention period remains 3 years or termination of the license, depending on the record type.

Section 73.71a Reporting of Safeguards Events for a GROA

Section 73.71a would be created to contain the safeguards reporting events that are specific to a GROA. A new section is being proposed because significant changes to this section have been proposed in the power reactor security rule and it could cause significant confusion to stakeholders to propose additional changes to the same section. A new reporting requirement is proposed that would require the DOE to promptly notify the NRC of any event involving an actual or imminent threat. Fourhour notification is being proposed for suspicious events and tampering events not otherwise covered under Appendix G. The provision for onehour notifications for certain safeguards events (e.g., theft or unlawful diversion of SNM, significant physical damage to any facility, entry of an unauthorized person into protected areas.) would be retained, with some modifications to include attempted actions and to broaden the scope of the language used for specified areas. The provisions for events to be recorded in the safeguards log would be retained with minor revisions. Requirements for making the required telephonic and written notifications are also proposed.
Appendix B to 10 CFR Part 73General Criteria for Security Personnel

A new Section VII, ``Geologic Repository Operations Area Training and Qualification Plan,'' would contain the training and qualification requirements for security personnel. These new requirements would include additional physical requirements for unarmed security personnel to assure the personnel performing these functions meet physical requirements commensurate with their duties. Proposed new requirements also include a minimum age requirement of 18 years for unarmed responders, qualification scores for testing required by the training and qualification plan, qualification requirements for security trainers, qualification requirements of personnel assessing psychological qualifications, armorer certification requirements, and program requirements for onthejob training.
Appendix C to 10 CFR Part 73Licensee Safeguards Contingency Plans

A new Section III, ``Geologic repository operations area safeguards contingency plans,'' would establish the requirements that govern the development of the safeguards contingency plan for a GROA. Proposed requirements include specific references to personnel who function as drill and exercise controllers to ensure these persons are trained and qualified to execute their as

FOR FURTHER INFORMATION CONTACT Merri Horn, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 205550001, telephone (301) 415 8126, email, mlh1@nrc.gov.